Review: Shakedown

Ezra Levant is a Canadian conservative activist, blogger and publisher who was dragged in front of this country’s human rights apparatus for republishing the Danish editorial cartoons depicting Mohammed. Since then he has been embroiled in a total of 20 different legal complaints launched by various aggrieved and affronted characters with miscellaneous reservations about the value of free speech. His response has been to write Shakedown, an account of the campaign of Canada’s human rights commissions to weed out incorrect and irresponsible expression, which is entertaining and disturbing in about equal parts.

While there is a great deal that could and has been said about the various issues involved one of the most noteworthy and telling is the degree of arbitrariness in the procedures of the human rights apparatus. The following irregularities are documented by Levant (many of them are neatly summarized in Appendix A at the end of the book):

The checks and balances which have been incorporated in the traditional legal system over generations need not apply in human rights (for brevity, HR) proceedings. For example, there is apparently no principle of double jeopardy. An accused can be charged with a complaint, then a nearly identical complaint can be submitted again by someone else. A complaint at the provincial level can be repeated at the federal level with its separate commission, or in another province, or several others, or, in principle, in all of them. HR investigators can, at least in some provinces, enter the home or workplace of a subject of investigation without a search warrant signed by a judge, something the police are not allowed to do. In addition, they can also inspect any document or other property (such as computers) without a search warrant. Subjects of interrogation may be required by law to answer all questions put to them. Investigators are not fire-walled from the police; they have in the past asked for and received confidential information acquired by the police using search warrants. HR processes do not always obey normal judicial restrictions. In a criminal trial, for example, the prosecution must reveal its entire case to the accused in advance. Failure to do so can result in the case being quashed. In some HR cases, however, information was disclosed only once the proceeding were underway; in one case after all the witnesses had testified, and then those documents which were disclosed turned out to have been partially blacked out, an act performed at the sole discretion of the HR commission. In a court of law, hearsay evidence is not admitted; HR tribunals are apparently not subject to this restriction. There is no clear requirement for HR proceedings to be public; hearings are made open or closed on an ad hoc basis. In one case an HR commission asked for reporters to be temporarily banned from court, a request the tribunal granted. On another occasion the commission even requested that the accused himself be barred from a part of a hearing against him (although this batty motion was not actually successful). Under criminal law, slow-moving as it is, there are at least some limits to how long a process may take, and cases may be dismissed if they do take too long to go to trial (as illustrated in the Askov case in Ontario). HR proceedings are apparently not subject to any such restrictions and may therefore drag out indefinitely. One set of proceedings (not a free speech case) involving a rape relief centre in Vancouver took 5 years to get to a HR hearing (and ten years to finally conclude). The Stephen Boissoin case was sparked by a letter to the editor written in 2003; the HR ruling was not made until 2008 and the appeal is still underway. Proceedings against Ezra Levant for republishing the Danish cartoons took place two years after the act. In Manitoba B’nai Brith was subject to a 5-year investigation for fomenting hatred. By way of thickening the police state atmospherics around the case the name of the complainant has still not been made public, nor the contents of the allegedly offensive speech nor the member of B’nai Brith who was allegedly responsible for it. HR investigators have acted as both investigators and as complainants (although the ultimate degree of irregularity whereby investigators investigate the claims they themselves have advanced has apparently not yet been reached). HR staff have launched lawsuits and law society complaints against critics of the HR process. They have also acted as agents provocateurs, creating bogus accounts on neo-Nazi websites and posting extremist comments there. (Your tax dollars at work). There appears to be no policy at HR commissions regarding the ethics or legality of investigators attempting to entrap offenders into committing speech crimes, or on the ethics or legality of investigators posting remarks which would be considered actionable under HR standards if posted by a private citizen. Investigations have been carried out against political websites against which no complaint has been made. There do not appear to be any restrictions on the sanctions which HR tribunals can levy. Perpetrators of prohibited speech may be subject to blanket bans of indefinite duration on publishing disparaging remarks not only about protected groups but also HR complainants or witnesses. (This is not only draconian, but more than a little bizarre, as “disparagement” would appear to be a stricter standard than that expressed in the original HR speech code. In other words, if this kind of thing stands up, there will be two criteria for prohibited speech: what is said and who said it (i.e. are you already under an HR gag order?). So much for constitutional principles). In addition, HR tribunals can demand that people publicly apologize for their previously stated opinions, a penalty which does not appear to be applied anywhere else in democratic legal systems. And finally, the crimes of expression which HR tribunals prosecute are far from clearly defined. Forbidden expression, according to the infamous section 13 of the HR act, includes “any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that person or those persons are identifiable on the basis of a prohibited ground of discrimination.” This could be almost anything, based not only on the generality of the term “likely,” but also on the wide net cast by “prohibited grounds of discrimination” which may include not only the usual statuses such as race, gender or disability but also things like source of income or political beliefs. So think before you speak.

All of this could be viewed as just the sloppy and amateurish attempts of people without formal qualifications (which the HR industry by and large does not require) to run something supposed to resemble an adjudication system. Levant notes that in an audit of its management practices the national HR Commission did not once get a grade of “best practice” or even “advanced practice” in 33 areas audited. But a better explanation is that the organization of the HR shadow legal system on the principles of totalitarian legality is neither inadvertent nor coincidental. Totalitarian legal systems claim the authority of the law, but without any of its limitations. Arbitrariness is central to such systems: after all, state power is really unlimited only if the state can do anything it wants. That is, accuse or arrest anyone at any time, drag out the proceedings without limit, charge the same offence multiple times, and impose any penalties it thinks fit. Other time-honoured features of police state policing include agents provocateurs who seek to entrap citizens, civilian denouncers who can report anyone else at a moment’s notice and at no cost or consequence to themselves, and widespread surveillance in case incorrect thoughts are expressed anywhere. The incorrectness of such thoughts is never clearly defined, of course; this helps to keep the citizenry on its toes. Other hallmarks of totalitarian law include forced retraction of opinions and self-denunciation, important for enforcing correct thinking and humiliating those who have the effrontery to voice their own views. And it is political imperatives, not actual violations, which are the driver for prosecutions. This is echoed in Ontario HR head Barbara Hall’s self-revealing remark that the number of HR cases is not high enough and “may have to spike.” Quite right. If you’re Himmler.

In short, the HR speech control apparatus is implicitly totalitarian in its roots: in its view that all expression can be categorized, namely as either permissible or impermissible; that impermissible expression needs to be controlled, that the thinking underlying it in turn needs to be suppressed and, since it has no legitimate justification, ultimately extirpated. Since hate speech has no legitimacy there need be no concern about the means used to get rid of it. Procedural abuse follows. In fact it is difficult to imagine any organization with the mandate of the HR speech control apparatus not adopting an abusive prosecutorial style.

But having said all that, we probably don’t need to keep the shotgun ready in the bedroom in anticipation of the 3 am knock on the door. The HR apparatus is an example of the totalitarian mentality in embryo, proving, as if any new evidence were needed, that this way of thinking will always be with us and that there will always people ready to step up to fill the slots in the inquistional bureaucracy. On the other hand, it’s kind of like a baby alligator. Not dangerous unless it gets a lot bigger.

What will keep the HR speech control system in check is openness and a sense of the ridiculous. Shakedown does an excellent job in the cause of both. In fact, aside from the plight of the victims dragged into this mire, the whole HR business is risible. There isn’t a single case in the book which isn’t silly. Probably the best stuff is the Nazi-hunting, the HR system’s number one priority, which amounts to the spectacle of one little gang of Gestapo wannabes snooping on another. Nazi chat sites are where our bureaucratic Web-surfers hang out, trying to raise the temperature. Levant even suggests the possibility that there may have been times when there weren’t any genuine neo-Nazis on these sites at all, only Canadian government employees trying to entrap each other (it’s not clear if they all knew each other’s fake identities). Nazi kooks, wacky bureaucrats, deeply offended oddball complainants, foaming imams: that is what comes out of the HR barrel of monkeys.

To close on the downside, however, while it isn’t very likely that the HR speech tribunals are going to grow into a full-fledged threat to freedom of speech it is not clear that they are going to go away either. While many of their practices, and even their existence, may ultimately turn out to be unconstitutional such a conclusion cannot be reached without many years or even decades of litigation, and, with all respect to Ezra Levant’s persistence and determination, it isn’t clear who has the motivation and resources to fight and win such a battle. The alternative, and more direct, route to the elimination of HR speech tribunals is political, but the obstacles here look just as formidable. The Conservatives voted to abolish HR speech tribunals at the convention in Winnipeg last fall, but this is really nothing more than the PM allowing the rabble let off steam. There is little reason to think that the Tories (or any other party) are going to come within a mile of this radioactive issue. And despite the mutterings of various MPs cited by Levant the old saw applies: backbenchers are nobodies. For movement on this issue the PM or at least the Leader of the Opposition is going to have to come out with an unequivocal stand on the matter. This isn’t going to happen, or at least not without a great deal of pressure from the public. Mere disapproval, as is clear from the example of the parallel “justice” system for young offenders, doesn’t get the job done when something is set in cement. So we are quite likely left with a standoff. The HR speech creature will have to lay off prey that it can’t swallow, like Maclean’s (too big) or Levant (too prickly), but it will continue to slither around in the weeds hunting various right-wing crawly amphibians and wiggly neo-Nazi worms of the online ecosystem. Despite Levant’s optimistic characterization of HR speech codes as being fundamentally un-Canadian there is more truth in Mark Steyn’s observation that many Canadians, like many Europeans, view unfettered freedom of speech as an American and suspect concept. Shakedown is an important contribution to defending our democratic rights, for which Ezra Levant deserves congratulations. But it isn’t the end of the battle, although it may be the end of the beginning.

To support the cause of freedom of speech in our wonderful country by buying Shakedown click here.

To contribute to Ezra Levant’s legal defense fund (sadly still a necessity) click here.