Kafka’s “The Trial” is alive and well and living in Canada

All a blur at Maclean’s tribunal
By IAN KING

The travelling road show against Maclean’s has reached B.C., and what is unfolding in Courtroom 105 at Robson Square is a funhouse mirror image of a trial.

In October 2006, Maclean’s published an excerpt from columnist Mark Steyn’s book America Alone, where he hypothesized that Islam would overrun the West. This led the Canadian Islamic Congress to file human rights complaints across Canada last year.

Absent from the hearing’s first three days was any testimony from B.C. Muslims, the group allegedly aggrieved. Finally yesterday, Abbotsford doctor Naiyer Habib testified briefly.
Just one other British Columbian has testified: University of Victoria professor Andrew Rippin, himself a non-Muslim. There has been no direct testimony about how Steyn’s work has brought contempt upon Muslims in B.C. Every other witness was from Ontario.

That’s not a problem; there’s no need to prove harm, causality, stay within a jurisdiction or anything else a real court requires. All they need to show is that the article might expose Muslims to hate or contempt.

Of course, it’s not really about hate. It’s about causing offence. Referring to another article introduced into the hearing, Canadian Islamic Congress lawyer Faisal Joseph asked his witness – and articling student – Kurrum Awan on the hearing’s second day, “What in this article did you find objectionable?”

Nothing about what harm the article caused, or whether it incited discriminatory conduct.
Most of the hearing has been motions from both sides over what can be heard, with spectators dozing off. The real kangaroo aspect to this court is the way the hearing leaps between being a court case, a political debate and a sociology seminar.

It’s difficult to figure out what frame of reference the tribunal is using to make its decisions.
Perhaps the tribunal is unsure. It was designed for those without resources or lawyers. Instead, it’s hearing arguments from high-priced lawyers – Steyn told 24 hours that the Maclean’s legal team cost them $50,000 a day.

Tribunal chair Heather MacNaughton noted at the start that the tribunal was not a formal court proceeding and wasn’t bound by the same rules in a civil or criminal trial. None the-less, she said, the panel would be guided by those rules. If they are, it’s hard to tell how.

Among the evidence allowed have been studies from Europe published before 2006. Posts on weblogs and forums unaffiliated with Maclean’s, or written by its affiliates have been allowed to be used against it.

This evidence is key to Joseph’s One True Argument, that there is a pervasive Islamophobia that transcends borders. It’s a phenomenon strong enough to overrule all legal or logical arguments. In fact, Joseph made much those same points when arguing to include his evidence.

Maclean’s lawyers Roger McConchie and Julian Porter are trying to confine the arguments to the article and the law, rather than engage in Joseph’s political grandstanding.

With the tribunal’s rules and standards ill-defined, it’s impossible to predict the final ruling. Still, the muttering consensus in the gallery was that Maclean’s was likely to lose this case.