The most widely read magazine for Canadian lawyers
Issue link: https://digital.canadianlawyermag.com/i/50808
opinion BACK PA G E BY EZRA LEVANT a hearing before the B.C. Human Rights Tribunal. The style of cause, as posted on the door, read: Mohamed Elmasry on be- half of Muslim residents of the province of British Columbia vs. Rogers. That in itself is a neat trick. Elmasry A travesty of a mockery of a sham T his June I attended a kangaroo court. Not in Iran or Zimbabwe, but on Hornby Street in Vancouver. It was isn't a B.C. Muslim and never has been — he lives in Waterloo, Ont. And, though he claimed — and the registrar obviously accepted — he spoke for that province's Muslims, that came as a rude surprise to the young Vancouver Muslim man who sat next to me in the courtroom. Until he read that sign, he didn't know Elmasry claimed to speak for him legally. But my seatmate didn't have a chance to put his objection to Elmasry himself, as the nom- inal plaintiff didn't bother to show up for the week-long hearing. On the other side of the courtroom was the target of the suit — Maclean's maga- zine. Like Elmasry, Maclean's is based in Ontario. Speaking of Ontarians, Julian Porter was the lawyer representing Ma- clean's. And Elmasry was represented by Faisal Joseph from London, Ont. Any other court in Canada would have said: get back to Ontario and stop your blatant forum-shopping. But not the B.C. Human Rights Tribunal — it took juris- diction, though an identical complaint had already been dismissed by the On- tario and Canadian human rights com- missions. That's triple jeopardy, if we're keeping track. The substance of the hearing was Elmas- ry's claim he was discriminated against, on the basis of his religion, when Ma- clean's published a book excerpt entitled "The future belongs to Islam." If I were in the business of proselytizing, as Elmasry is, I'd be thrilled with that kind of PR. But Elmasry ob- jected, among other things, to the "tone" of the article. A good hour was devoted to inquiring whether or not the author, Mark Steyn, was funny or merely sarcastic. But forget the forum-shopping, and the absurd cause of action. The way the BCHRT heard the case itself was stagger- ing. Or, as Woody Allen would say, it was a travesty of a mockery of a sham. Elmasry did not testify but sent in a proxy wit- ness. I do believe that's an innovation. He didn't hire an actor or a professional PR man; he sent in Khurrum Awan, an On- tario articling student to give testimony for him. Awan had even less standing than Elmasry — he was neither a British Co- lumbian nor the nominal complainant. He had helped draft the complaint. But — over the objections of Maclean's — he was sworn to give testimony about how the Maclean's article discriminated against him. Back in Ontario. Awan was not an expert in anything. He was not a party to the suit. But he did have some ties to the case at hand: he will complete his term as an articling student by working for the aforementioned Faisal Joseph, Elmasry's lawyer, the same law- yer who led Awan's examination. It gets better. Awan's evidence included hearsay evidence about what his fellow articling students also thought about Maclean's — articling students sitting a few feet away, also assisting in the plaintiff 's case. It was a closed loop. If it were synchronized swim- ming, it would have been beautiful. Many of Elmasry's documents were accepted as evidence by the tribunal without being disclosed in advance to Maclean's. In one case, they were ruled admissible by the tribunal even before the tribunal saw them. Maclean's object- ed again and again for the record, but lost almost every one. I don't know how the troika hear- ing the case will rule. I predict they will acquit Maclean's, against every instinct they have, only to avoid a political scan- dal that could result in the disbanding of their overweening tribunal. But that goes to the substance of the trial. The B.C. Human Rights Tribunal ought to be shut down for their capri- cious procedures, too. No matter what their verdict, their conduct of the hear- ing has brought the administration of justice into disrepute. Ezra Levant is a Calgary lawyer. He can be reached at ezra@ezralevant.com VANCOUVER 1-800-465-7878 70 A UGUST 2008 www. EDMONTON 780-420-0897 GUELPH 1-800-265-8381 Law ye rmag.com HALIFAX 1-800-565-0695 USA 1-800-265-2789 www.mckellar.com ILLUSTRATION: SCOTT PAGE