Maybe it would be best if we lost this battle

I think my favourite 60 Minutes segment ever was the time, shortly after the fall of the Soviet Union, that they sent a liberal Russian journalist to interview the surviving members of the Moscow-based Institute of the Brain. The institute, as its name does not quite imply, was set up after Lenin’s death in 1924 for the purpose of analyzing just what it was about the great man’s brain that made him superior to other men. Lenin’s body, of course, was embalmed, and kept on public view in Red Square. But the brain they’d cut up into thousands of micro-thin slices, the better to perform various tests on it. Which they’d been doing ever since.

What made the piece work was, in part, how deadpan it was. The correspondent never cracked a smile as he interviewed these people who had spent their lives in such a sublimely pointless pursuit. But what really made it soar was the detail. I can tell you about the Institute for the Study of Lenin’s Brain. But unless you saw it close up–unless you watched those poor, lunatic pseudo-scientists describe their work, at length and with evident pride–you would not capture the full absurdity of it.

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I feel much the same way now, after two days spent in a downtown Vancouver courtroom watching the B.C. Human Rights Tribunal’s hearings into the case of Mohamed Elmasry et al. versus Mark Steyn and Maclean’s. I have tried to convey some of the sense of what I have seen in my posts to the magazine’s website. But I fear that unless you were actually in that tiny, suffocating room, you could not fully grasp just how utterly deranged the proceedings were.

You will perhaps be familiar with the case. It concerns an excerpt from Mark Steyn’s book, America Alone, published in Maclean’s a year and a half ago. You will recall that a group of students under Elmasry’s influence approached the magazine some months after publication, demanding it publish an article of equal length (5,000 words!), unedited, together with cover art of their choosing. I do not know of any magazine anywhere that has ever consented to such demands.

So instead we are in court–or rather, not court, but some mad parody of a court, whose contours seem to bend and stretch like some psychedelic vision circa Yellow Submarine. Things are not quite as bad in B.C. as in Ontario, where the province’s human rights commission felt able to issue a judgment without the cost and inconvenience of a hearing. But it’s a near thing.

Section 7.1 of the B.C. Human Rights Code prohibits “any statement, publication, notice, [etc.] that … is likely to expose a person or a group or class of persons to hatred or contempt.” Not that it actually exposes them to anything, note: just that it’s likely to. Nor does Section 7.1 make any allowance for the usual defences that apply where the law intrudes upon free speech rights. There is no defence of fair comment, for example, or of the public interest, or of good faith. Most notoriously, even truth is not a defence.

The “remedies” at the tribunal’s command are equally breathtaking. Should, I don’t know, a magazine be found to have contravened the code, the tribunal must, at a minimum, order that unnamed magazine to “cease the contravention“–ie. to stop publishing whatever sort of material it was that the tribunal deemed unpublishable. But the tribunal can also force it to publish something, or make it pay compensation to whoever launched the complaint against it.

But it’s in the actual process of hearing cases that the going gets truly weird. As was evident this week, it isn’t just that the tribunals have lower standards than regular courts when it comes to rules of evidence, protections for the accused and so on–it’s that they have no standards. Practices that would earn prosecutors a stern rebuke, if not summary dismissal, in any proper court–failure to disclose, hearsay, you know, all that Perry Mason stuff–were here the subject of furrowed brows and frequent huddles among the three panellists. They truly appeared to be making it up as they went along.

In consequence, our high-priced legal help, fine lawyers that they are, found themselves boxing with shadows: all but forbidden to mount a defence, raising objections to evidence without the first clue of what rules, if any, the tribunal would apply, plowing methodically through whatever odd bits of flotsam and jetsam the complainants could think to throw at them–not just their own subjective reactions to Steyn’s piece, but polls, blog posts, reports on Islamophobia in other countries, the works.

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Is it any wonder that I concluded, even before the hearing began, that our best strategy was to lose? Win the case, and all we do is legitimize the process. See, its defenders would argue–the system works, correctly distinguishing between an occasionally over-the-top polemicist like Steyn and a real, honest-to-God hate-monger. And so we would simply be teeing up the next complainant, and the next. For what they seek is not, as they pretend, the right of reply. Their purpose is rather to prevent the offending material from being published in the first place.

No, the only answer is to lose, and challenge the law on appeal, on constitutional grounds-and if that doesn’t work, to embarrass the politicians into repealing it. I’m guessing the tribunal can see the threat to their livelihoods if they convict Maclean’s, and will do all they can to acquit us. But I have every confidence our lawyers can outwit them.

ON THE WEB: For more Andrew Coyne, visit his blog at www.macleans.ca/andrewcoyne