Five-Year Probe

David Matas, B'nai Brith's senior counsel, says more objectivity is needed in investigations.

The Manitoba Human Rights Commission has ruled that there is "no reasonable basis in the evidence" for the hate speech charge against B'nai Brith Canada that it spent more than five years investigating, based on an anonymous tipster, a complainant who was not there and the secret report of a secret expert.

The epic fallout from the conference on terrorism for emergency responders that the Jewish human rights group hosted in Winnipeg in October, 2003, began four months later, when Shahina Siddiqui, executive director of the Islamic Social Services Association, filed a formal complaint under the "discriminatory signs and statements" section of the Manitoba Human Rights Code.

She said she had spoken with three police officers, including the Winnipeg Police Service's diversity relations officer, who attended the workshop put on by the Higgins Counterterrorism Research Center, a consultancy based in Arlington, Va.

"Based on comments from some in attendance that the presentation was biased against Muslims, I conclude that the content of the seminar presented a negative prejudice about Muslims in terms of being probable terrorists," her complaint reads.

"This prejudiced picture would encourage and support racial profiling by first responders and law enforcement agencies dealing with possible terrorist incidents."

Even today, with the dismissal of the complaint and the release of an investigation report, B'nai Brith still does not know the identity of its accusers, nor what exactly is alleged to have been said at the conference. One of the few direct quotations in the investigation report, the word "ragheads," was found to have been used as part of a warning not to dismiss Islamist terrorism with empty epithets.

"It's almost all news to us," said David Matas, B'nai Brith's senior counsel and a prominent international human rights lawyer.

The report also shows that the MHRC investigator, Tracy Lloyd, spoke with seven anonymous witnesses, including one as late as November, 2006. But only one, a city of Winnipeg employee, shared Ms. Siddiqui's criticism that the conference was "one-sided." The diversity relations officer, for example, thought it was "pretty professional," and said police in general are capable of putting almost anything they hear into proper context.

There is no mention in the investigation report of a secret expert report, which the MHRC commissioned last year. It later refused B'nai Brith's request to know the expert's identity, mandate or material provided.

"[T]he full investigation of the complaint that took place was warranted," MHRC vice-chairwoman Yvonne Peters wrote in a letter to B'nai Brith. "The decision was based solely on the insufficiency of the evidence with respect to this particular section of the Human Rights Code." Mr. Matas says the MHRC has taken a contradictory position. "So what they're saying is that a full investigation is warranted even when there's no evidence, as long as the accusation is within the jurisdiction of the board," he said. "There's a lot of problems with this."

"What basically happened is that Siddiqui heard a rumour. She makes a complaint, as a result of which the commission goes on a five-year fishing expedition. They don't find anything. We're co-operating with them. And then they dismiss the complaint. That's not a proper procedure, in my view," he said.

Ms. Siddiqui did not return a call seeking comment.

The sheer duration of the Manitoba investigation, under threat of legal sanction or fines, illustrates the current frustration with human rights commissions, and the parallel legal system that enables them.

Defenders of human rights commissions sometimes say all is well that ends well, that the recent hate speech cases that seemed most frivolous, such as the three about Islamophobia in Maclean's magazine or the Danish Muhammad cartoons, ultimately failed. That line is echoed by the Canadian Human Rights Commission, which emphasizes the goals of mediation and balancing the rights of complainant and respondent.

But a failed five-year investigation of a respected human rights advocacy group based on an anonymous tipster raises questions about the seriousness of the whole process.

"Our general view is that the procedures are defective," Mr. Matas said. "They'll take an allegation, without evidence, and just run with it to see if it's true."

These questions are ever more pressing with the recent structural change in Ontario's human rights legal system, following British Columbia to one in which complainants have direct and automatic access to a tribunal. The model has attracted interest in the rest of the country, where provincial commissions follow the standard model of a commission that accepts and investigates complaints, then chooses which to argue before a separate tribunal.

The debate has caused rifts among long-standing allies.

B'nai Brith has long been a close partner of human rights commissions, especially in hate speech cases, and it defended this case in private for four years. The decision to publicly protest it last August goes some way to explaining the stinging tone of their submission, delivered the same week, to the Moon Report on Internet hate speech.

In it, Mr. Matas wrote that human rights commissions have shown "a disastrous combination of investigative zeal and substantive ignorance" that has left them vulnerable to abuse by "political Islam."

"[L]ike generals, [they] are fighting the last war. They do not see new threats until they are overwhelmed by them," it read.

Mr. Matas said yesterday that he is accustomed to being on both sides of a tribunal. As part of his work on Nazi war criminals, for example, he was once brought before his law society based on complaints, since dismissed, from the daughter of one of his targets.

"I wouldn't say that [she] or Shahina Siddiqui acted in bad faith. I mean, I assume they believe what they said, and they didn't know from the beginning that their complaints were false and they were just using the procedures for the point of harassment. But what I would say is that the people who run these procedures have to have a more objective viewpoint than the people who make the complaint."

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