Canada owes one to Dr. Elmasry

Now that the “court” action in the Canadian Islamic Congress v. Maclean’s Magazine is over in British Columbia, there are three things that didn’t happen that I think were mistakes.

I suppose it looks rather silly for this blogger to be suggesting to high-priced and experienced legal counsel (Maclean’s lawyers) that they might have done something differently. After all, my legal status is best painted by former Ontario Premier, Bill Davis, who always puckishly referred to himself as “just a B student at law school”.

However, this law school B student would have asked the head sock puppet on cross-examination why he and his colleagues didn’t do what any other reasonable persons in their position would have done. When people are aggrieved at things they see in the media they write letters to the editor or they produce their own op-ed pieces and try to get them published. These whiners ran all over the media complaining that Maclean’s would not submit to their editorial demands. But they never produced the counter-Steyn article and submitted it for publication, either through Maclean’s or through other media outlets.

I think the fact that they didn’t do that goes to the heart of this dispute. It’s possible this course of events was never about getting a counter piece published. It was about forcing the issue into a human rights complaint and obtaining a fatwa. Dr. Elmasry, head of the CIC, is on record as having previously complained that the anti-hate legislation in this country is useless. Such a line of cross-examination might have unearthed that intent.

The second thing I would have done differently is to get down in the muck with the lawyer for the complainants.

Maclean’s chose to go the high road, not offering any evidence of it’s own, simply challenging the admissibility of the complainant’s evidence (about a 50% success rate) and confining itself to cross-examination of witnesses.

Maclean’s should have produced evidence on the importance of the right of free speech and how that is exercised in this country through vigorous debate in a free media. Never assume that “judges” have that understanding – especially when the ones in this case were viewed so negatively by those who are horrified by these proceedings.

Besides, if the real strategy is to get an adverse ruling that one can take to a real court on appeal, it is favourable to the appeal to be able to say that such evidence was presented at the trial court and was inappropriately and mistakenly dismissed by that tribunal.

Thirdly, it would not have hurt to present evidence from the blogosphere in support of free speech and to show that the very fact a human rights commission would even entertain this case is upsetting to many, many people. If the BC HRC had declined to admit irrelevant blogging evidence on behalf of the complainants, then maybe not, but since it did, then fight fire with fire. Don't be so prissy, legally correct and dainty about the fight. If there are no rules then make up your own.

The choice was to attorn to the jurisdiction or not. Once you accept the challenge in that forum, then go all the way and play the game the way it is intended to be played. You are either in the fray or you are not, but you are never above it.

Finally, Canada owes a debt of gratitude to Dr. Elmasry and the CIC for turning over this human rights rock and exposing the bugs hiding in the shadows, nooks, crannies and crevices to the sunlight of international exposure and the court of public opinion.