Mark Steyn And The Court Of Last Resort

From the National Post:


Maclean's faces the B. C. Human Rights Tribunal
Brian Hutchinson, National Post Published: Tuesday, June 03, 2008

VANCOUVER -In the subterranean bowels of a provincial courthouse, a bizarre and frightening spectacle starts to unfold.

At issue are the pointed musings of Mark Steyn, a journalist and author living in the United States. A lengthy excerpt from his controversial book, America Alone, was published two years ago in Toronto-based Maclean's magazine, a weekly publication owned by Toronto-based Roger's Publishing Ltd.

The book excerpt ran as a cover story, entitled "Why the Future Belongs to Islam," and argued that Western democracy is threatened by the spread of Islam. In response, a human rights complaint was made here, in British Columbia, by an electrical engineer living in Waterloo, Ont.

That's the bizarre part, or one slice of it. None of the main players starring in this quasi-judicial drama actually live or work in B. C. Not Mr. Steyn, not the editors responsible for Maclean's, and not Mohamed Elmasry, a Muslim who launched a complaint to the B. C. Human Rights Tribunal on behalf of all Muslims in this province.

Neither Mr. Steyn, nor his editors, nor Mr. Elmasry were in sight when the tribunal panel began the week-long hearing yesterday. Mr. Steyn will not testify, say lawyers for Maclean's. Nor will Mr. Elmasry, the aggrieved. So why bring the complaint forward here?

Because Mr. Elmasry can.

This thanks to provincial human rights legislation of a breadth and elasticity not known in other parts of Canada.

Mr. Elmasry, the president of the Canadian Islamic Congress, and a highly controversial figure himself -- especially among Jewish groups -- claims the Steyn excerpt denigrated and vilified Canadian Muslims and promoted hatred of an identifiable group.

He is not obliged to demonstrate what harm occurred to whom, or to what degree. Maclean's magazine and Mr. Steyn could still be found to have violated B. C.'s Human Rights Code. No proof of damage is required.

Meanwhile, if found to have violated the code, Maclean's faces sanctions, including payment to the complainant "an amount that the member or panel considers appropriate to compensate that person for injury to dignity, feelings and self respect or to any of them."

The magazine could also be ordered to stop publishing certain ideas and points of view.

Lawyer Faisal Joseph, representing the complainant, asked the Tribunal yesterday to use its "discretion" and order Maclean's to publish a suitable response in its pages. That, or publish the panel's ultimate findings. Such are the frightening aspect of this case.

"Strict rules of evidence do not apply" in cases before the Tribunal, noted its chairwoman, Heather MacNaughton.

A lawyer and a veteran of human rights inquiries, she made the comment yesterday afternoon, when allowing an Ontario law student -- yet another non-B. C. resident -- to deliver for the complainant testimony about the "Islamaphobic" Steyn excerpt.

Over the objection of Maclean's lawyers, witness Khurrum Awan was allowed to proceed with his dire interpretation of the Steyn piece, and to discuss the harm that it allegedly caused to Muslims in B. C., where he does not reside.

Mr. Joseph knew precisely what to expect from the first witness. Mr. Awan is soon to begin work at the London, Ont., law firm where Mr. Joseph is a partner. The young protege is one third of a student research team assigned to help with this case. Mr. Steyn and others dismissively call them the Elmasry "sock puppets," by which they mean his eager stand-ins. All three law students sat at the counsel table yesterday.

Behind them sat Naiyer Habib, a local physician named in a second, virtually identical complaint against Maclean's. His appearance at least gave the affair a local flavour.

Seated in an area reserved for the respondents were a number of Roger's executives.

Packing the small gallery behind them were Mark Steyn supporters, Internet bloggers, and others opposed to limits placed on free speech.

Mr. Joseph opened with a blistering attack. The Steyn excerpt that Maclean's published in October, 2006, presented Muslims as "a violent people" who hold traditional Canadian values "in contempt," he alleged. Their religion was portrayed as "inhuman" and "violent." Even the cover image that Maclean's chose to run with the Steyn excerpt was hauled before the inquiry. The image of two Muslim women, along with the magazine's cover line, "could have been the picture of a horror cult movie," declared Mr. Joseph.

He soon swerved off topic, referring to inflammatory passages from Mr. Steyn's book that did not appear in Maclean's. He mentioned "20 other articles" that ran in Maclean's, beginning in January, 2005; these were also unkind to Muslims, he alleged, even if they were not part of his client's complaint. Mr. Joseph even slammed Maclean's for publishing letters from readers praising the magazine and Mr. Steyn.

The absent Mr. Elmasry, meanwhile, was presented as the model of restraint. He was not seeking criminal charges, Mr. Joseph noted. He was not suing for defamation.

Why not? One suspects he would have failed. Mr. Joseph suggested as much. "You are the court of last resort," he told the B. C. tribunal yesterday. "You are the only opportunity to right ? a terrible wrong to a clearly identifiable group numbering hundreds of thousands in this great country, and tens of thousands in the beautiful province of British Columbia. You are the only thing between racist, hateful, contemptuous Islamaphobic and irresponsible journalism, and law-abiding Canadian citizens."

There was no mention at that point of his pre-emptive offer to settle with Maclean's, one month before the hearing, "in exchange for Maclean's publishing a mutually acceptable response to the Steyn article from an agreed upon author."

The offer was delivered in the form of a press release. Obviously, it's no longer on the table. In any event, Maclean's would never have acquiesced; to its credit, the magazine has steadfastly refused to negotiate the control of its pages.

Instead, it has chosen the more difficult route, with the odds of success stacked against it. Mounting a defence of hate charges before the B. C. Human Rights Tribunal is virtually impossible. In this province, practising responsible journalism is not considered a defence, noted Roger McConchie, a lawyer representing Maclean's before the Tribunal.
Nor, he added, is demonstrating the truth.

Little wonder, then, that Maclean's has chosen not to call any witnesses. The hearing continues today.