Jay Currie

Ezra has the latest idiocy from the divine Ms. Blight (the CHRC’s most recent lawyer) with respect to disclosure in the Lemire case:

The disclosure materials which were disclosed in a less-redacted form yesterday, were re-redacted taking into account the following principles:

1. Names of individuals employed by the Commission at an below the level of Manager are to be redacted…

2. With respect to individuals outside the Commission and as a general rule, information identifying an individual’s name and coordinates is to be redacted… letter to parties, ezra levant

Ezra does an excellent job dissecting the legal lunacy which underlies this totally inadequate, far too late, partial disclosure. In fact his blog entry could form the basis of the decision of the Federal Court judge when he tosses the decision in Lemire into the legal round file on judicial review.

But what I find fascinating is how Ms. Blight’s letter illustrates how the CHRC sees itself. Various leftie commentators have suggested that the CHRC is a great example of an alternative dispute resolution structure which saves the aggrieved and, indeed, the accused, from the full rigors of the Court system. A sort of landlord/tenant alternative adjudication process: rough but cheap justice.

I fear that this cheery view is belied by Ms. Blight and the entire conduct of the Lemire matter. The CHRC seems to see itself as a poor man’s CSIS full of agents whose identities need to remain state secrets and whose investigation techniques cannot be disclosed in the interest of public security. (They actually made that claim under the Canada Evidence Act earlier in this farce.)

Now, we need to be clear about a couple of things: nowhere in Ms. Blight’s letter does she provide a statutory basis for the CHRC’s claimed right to withhold information. In the normal course, where evidence is being withheld, a lawyer would cite a section of, say, the Canada Evidence Act under which the agency is purporting to act. Not our Ms. Blight. Nope, she just flat out refuses to name names and Lemire et al are just going to have to take her word for it that she has this power. (I see an appearance in Federal Court in Ms. Blight’s future.)

Second, as Ezra points out, the CHRT’s own rules as well as the rules of natural justice and a great deal of administrative law jurisprudence, require, save in truly exceptional circumstances, full disclosure of all relevant documents. Not disclosure of bits and pieces of relevant documents, not disclosure of randomly redacted documents…full disclosure.

So what could possess Ms. Blight to ignore several centuries of jurisprudence, natural justice and the CHRT’s own rules?

My guess is that the fearless (well actually terrified) neo-Nazi hunters at the CHRC have confused themselves with the real agents at CSIS. They have somehow convinced themselves that they deserve the special immunities we grant the people who risk their lives protecting the security of Canadians against actual threats. Rather than understanding their purely bureaucratic function, a total lack of managerial competence and proper supervision have led to these cowboys thinking they really are secret agents.

Now I have many issues with the conduct of CSIS but I have no doubt at all that confronting Islamic extremists, Sikh separatists or Tamil Tigers requires a genuine capacity to run agents undercover and to employ investigative techniques wholly at odds with, for example, the techniques used by police forces. Revealing the undercover agents or the techniques could result in the death of those agents or of innocent Canadians or of people abroad. Moreover, CSIS has significant, accountable management systems in place and direct, political, oversight.

The CHRC’s s. 13 investigations – and I use the term loosely – are about people (often the investigators themselves) posting unpleasant things on the internet. That’s it. No airliners being blown up, no beheadings, no suicide bombers.

Ms. Blight is demanding CSIS level protection for a bunch of internet busybodies whose conduct may very well have been, in itself illegal. It does not take much imagination to figure out why she is trying this on: the CHRC realizes that its “no rules” regime will not bear even the lightest scrutiny. So it sending Ms. Blight out to try to shut down the show before the illegalities and the CHRC arrogance and incompetence are exposed.

Too late boys, much, much too late.