Righteous crusader or civil rights menace?
Richard Warman says he’s fighting hate. Critics say free speech is the real victim.
CHARLIE GILLIS | April 9, 2008 |
If an airless room located on the 11th floor of a nondescript building in Ottawa could be considered a stage, this one appeared to be set. Pant-suited lawyers took their chairs at the front. Assorted reporters, bloggers and members of the public endured security pat-downs for a chance to sit in the gallery. Reputed neo-Nazis — normally allergic to the instruments of government control — seemed downright eager to spread limbs for the metal-detecting wands. This, after all, was their long-awaited chance to see a nemesis shamed: Dean Steacy, an investigator from the Canadian Human Rights Commission, was due for a grilling over his apparent habit of pretending to be a white nationalist sympathizer while trolling online for hate-mongers — all before the very tribunal where white supremacists typically answer for their own poisonous rhetoric.
For the sort of people who blame their problems on Jewish cabals and the government commissions empowered to protect them, this session of the Canadian Human Rights Tribunal was can’t-miss testimony. But something — or rather, someone — was missing. No sooner had the proceedings begun than Paul Fromm, a former supporter of Holocaust denier Ernst Zundel, rose to bemoan the absence of Richard Warman, the man whose complaint against alleged online hate-monger Marc Lemire had led to today’s hearing. “I note for the record that he’s been absent from these proceedings for the 20th straight day,” said Fromm, whose organization, the Canadian Association for Free Expression, has intervened in the Lemire case. The tribunal’s chairman dutifully wrote it down. Lemire’s shaven-headed supporters in the gallery grunted their disappointment.
Warman had told me the previous evening he would probably take a pass on this tableau. The evidence about Steacy roaming suspected hate sites while posing as a fellow traveller had been disclosed in written submissions weeks before the session, he’d said, and the question of investigative techniques had little to do with his case against Lemire. Besides which, he had no intention of giving his enemies the satisfaction of confronting him in some sort of scene — as Fromm had once done with pickets and placards outside the commission offices in Ottawa.
Still, it felt a bit like The Tempest without Prospero. For weeks, the lawyer and activist credited with creating a brave new world where human rights investigators oversee online conversations on behalf of right-thinking Canadians had been flying under the radar — a conspicuous absence, given the commission’s growing reputation as a bureaucratic Big Brother. Since 2002, Warman has filed more than a dozen complaints under Section 13(1) of the act, which bans any form of electronic communication that is “likely to expose” people to hatred or contempt based on race, religion, gender, disability or sexual orientation. He has won 10 of those cases, while two are still pending — a success rate that his supporters say proves his righteousness. If his targets were anything but the worst kind of white supremacists, they reason, why does he win every case?
But to others, the slam-dunk quality to Warman’s Section 13 cases are a cause for worry, symbolizing the drift of human rights commissions into the boggy territory of covert investigation and speech control. Those concerns deepened two weeks ago with revelations that, for a time, Warman was acting both as a complainant and an investigator at the commission. Even after he left in 2004, he seemed to enjoy easy access to commission offices, stopping by to chat with staff or get documents printed. “Having delved into it a bit, I frankly can’t believe what’s been happening behind the scenes,” says Keith Martin, a Liberal MP who has tabled a motion for the repeal of Section 13(1). “You have a large number of the complaints about hate speech being filed by one person, and the normal structure within a court, such as the assumption of innocence, don’t apply at the tribunal.” Of the fact Warman and investigators were going online undercover, Martin says simply: “That’s appalling.”
His reaction comes on the heels of warnings that the commission has overreached its original mission. A few weeks before the Lemire hearing, Alan Borovoy, one of the architects of rights commissions as we know them in Canada, called for Section 13 to be scrapped, noting its recent use against Maclean’s for material that complainants felt was anti-Islamic. “It just never occurred to anybody that this instrument we were struggling to create would be used against the expression of free speech,” he said.
Until now, Warman has been content to let this sort of criticism slide, rebuffing interview requests or else letting his writs do the talking (when National Post columnist Jonathan Kay suggested in print that Warman, working incognito, posted a hate-filled message describing Liberal Senator Anne Cools as a “nigger” and a “c–t,” he served a libel notice on the paper, later telling Maclean’s, “I had absolutely nothing to do with it”; the Post has since printed a retraction). But with criticism of human rights bodies no longer the exclusive domain of the lunatic right, a new narrative has begun to unfold. In it, Warman’s sheer mastery of the system draws unwelcome attention to institutions once held in high esteem — their practices, their controls and, ultimately, whether they have any business telling Canadians what they can or cannot say.
What strikes you first is the laugh. It springs from the chest, yet registers as a kind of cartoonish yuk — a sound rendered all the more weird if you know the reputation of its owner. As with many legal complainants, Warman comes across on paper as a mirthless scold. But in person, he is all charm and mockery, and tonight the laughs are on Mark Hilton, a New York City man who runs a website dedicated to discrediting Warman and who, appropriately enough, has a day job in pest control. “The significance of this is not lost on me,” says Warman. “It’s a bit like being stalked by the Orkin man.”
We are seated at D’Arcy McGee’s, a Parliament Hill watering hole, where Warman has arrived in a dark coat with a copy of Roméo Dallaire’s book Shake Hands with the Devil tucked under his arm. It is a none-too-subtle reminder of the stakes as he sees them — i.e., unchecked dissemination of hatred can quickly morph into something like the 1994 Rwandan genocide.
But this isn’t Rwanda, and Warman isn’t here to talk history. He is angry at Maclean’s columnist Mark Steyn, who has described the federal human rights apparatus in print as Warman’s “personal Inquisition.” And he’s worried for his safety. In one recent online threat, a U.S.-based anti-Semite calling himself Bill White envisioned an enraged human rights defendant decapitating Warman with a shotgun blast through the mouth (in the story, Warman is identified as “Waxman”). Postings on the same site revealed Warman’s address and showed his home with a Google satellite map. “I generally like being demonized,” he says. “But even I have my limits.”
And so there are conditions. Questions will be emailed, answers supplied in writing. Even with those assurances, Warman goes deliberately vague on parts of his back story, keeping references to his family, hometown and age (late 30s) generic, and skirting published reports that he is now working at the Department of National Defence. He describes himself as “a WASP boy from Smallville, Ontario,” who from a young age was moved by the sacrifice his relatives and others around the world made to end Nazism, and who took a strong interest in anti-racist activism at university. His eureka moment came in 1993, he says, when he was living in Toronto and the Canadian Human Rights Tribunal commenced hearings into a telephone hate line run by the notorious Heritage Front. “There was a wonderful lawyer there named Eddie Taylor from the human rights commission,” Warman recalls wistfully. “He kicked this neo-Nazi group all over the courtroom.”
Infused with a sense of mission, Warman studied cases involving hate propaganda while taking his master’s in law at McGill University. And while he dabbled in organized politics, running both provincially and federally under the Green party banner, anti-racism remained his preoccupation. In 2002, he took a job doing legal work with the federal human rights commission, by which time he’d already filed two complaints under Section 13(1). He continued to file complaints while he worked there and after he was laid off in July 2004 — in some cases providing information to police even as the commission investigated — and neither he nor his employers seemed to view this as a conflict.
To say the least, he has altered the landscape of hate prosecution. The question is whether it’s for the better. Before Warman entered the picture, say supporters, the only hate that got investigated was the kind produced for spectacle — the 2004 firebombing of a Jewish school in Montreal, for example, or recent white supremacist rallies in Calgary or Edmonton. Warman grasped early on how the Internet would provide both a virtual community hall for these people and a place for investigators to find them, says Leo Adler, director of national affairs with the Friends of Simon Wiesenthal Center for Holocaust Studies. More importantly, he recognized the advantage of Section 13 of the Canadian Human Rights Act over the hate propaganda provisions in the Criminal Code, which require a much higher standard of proof. Conceived in the late 1970s as a means of using federal jurisdiction over communications to combat racist propaganda, the law’s broad language — later amended to include the Web — put the actual conversations of hate-mongers within the reach of authorities for the first time. “What Warman did was invest time to use these existing legal levers to do something,” says Michael Geist, a University of Ottawa professor and an expert in law as it relates to cyberspace. “The act provides relatively easy access to an investigative unit and rules that can be applied.”
But the nuances of Section 13 weren’t the only thing Warman was investing time in. Even as he was typing up his affidavits, he was honing a system for digging up information on the operators of sites, or chat-room participants who had posted offensive material. Some cases required only a modicum of computer acumen — the “WHOIS” domain search, or sites like http://www.the-cloak.com, which allow a surfer to log onto chat sites without revealing his identity. But for harder cases, he devised a technique that would prove as incendiary as it did efficient: he would pretend to be a hate sympathizer, joining chat rooms under monikers and posting friendly messages. “Keep up the good work Commander Schoep! 88,” he once wrote to a putative ally under the name “Axetogrind.” (The sign-off 88 is understood on white supremacist sites to mean “HH,” or “Heil Hitler,” H being the eighth letter of the alphabet.) Another note, posted under the name “Pogue Mahone,” read: “Exactly when will white cops understand that they should stand by THEIR race?!” Over time, Warman would invite other participants into one-on-one conversations where he would tease out personal information — names, email addresses, hometowns, addresses. Once satisfied he had the identity of a poster, he would then lodge a complaint to the commission, and human rights investigators would take it from there.
Warman figures he was doing nothing wrong. His undercover work helped identify at least two people found guilty of circulating discriminatory material, he says, and he never posted anything that itself could be regarded as a violation of Section 13. To others, though, the latitude he has enjoyed highlights the commission’s lack of investigative rigour, and the tribunal’s inherent weaknesses as a quasi-court of law. The mere fact Warman could file complaints while still working at the commission raises a perception of unfairness that worries Borovoy: “The optics are not good,” says the veteran civil libertarian. Then there’s the matter of best practices, which at the commission appear pretty far from best. In testimony at the Lemire hearing, Steacy admitted there were no guidelines telling what he could and couldn’t do while surfing, no rules governing how he identified himself, no boss putting his covert musings on hate sites to any sort of ethical smell test. When asked about adopting online pseudonyms, his response could have been mistaken for a mantra for the whole investigative operation: “No one told me I couldn’t do it.”
These shortcomings might have been addressed by now, observers say, if respondents to human rights complaints enjoyed anything close to the protection afforded to criminal suspects. But the commission, along with the tribunal to which it refers its most serious cases, was designed to adjudicate the relatively low-stakes issues of equitable access to employment and public services, notes Wayne Sumner, a University of Toronto philosophy professor who has studied hate speech. As such, it is less focused on protecting the accused than producing satisfactory outcomes, he says: its evidentiary test is a balance of probabilities rather than the reasonable doubt used in criminal proceedings; its respondents, unlike destitute criminal suspects, must pay for their own defence. This despite the tribunal’s power to levy tens of thousands of dollars in fines in hate speech cases, along with the heavy social stigma of being labelled a racist. “We don’t like hate-mongers in liberal society like Canada,” says Sumner, whose 2004 The Hateful and the Obscene: Studies in the Limits of Free Expression argues against using human rights law against expression. “This is a serious business, and the proper place for it is in a criminal court, not a human rights tribunal.”
The result, say a growing number of civil libertarians, has been to encourage abuse of the process against speech that would normally be considered legitimate debate. In early 2006, a Calgary Muslim leader launched complaints at the Alberta human rights commission against Ezra Levant, a rabble-rousing conservative blogger and former magazine editor who had published the Danish cartoons of the prophet Mohammed that had inflamed Muslims around the world. Levant figures he spent $100,000 defending himself before the case was finally dropped. Similarly, after Maclean’s ran a book excerpt by Mark Steyn under the headline “The Future Belongs to Islam,” a group of Muslim law students filed complaints to the federal, Ontario and B.C. commissions accusing the magazine of hate-mongering. The magazine has retained legal counsel and the case is working its way through two separate processes (the Ontario commission has recommended that the case be dropped).
Ever since, academic, political and legal heavyweights have been lining up against Section 13 — and by extension, Warman. Martin brought forward his Commons motion, decrying among other things the fact that one man appeared to have turned the commission into his personal hobby horse. Borovoy weighed in on behalf of Maclean’s, saying the commissions “ought not to be engaged in suppressing the expression of free opinion.” Even Irwin Cotler, the former justice minister and long-time civil rights advocate, agreed the act may need to be tweaked. For Warman, the reaction has been exasperating. He has nothing to do with the cases against Maclean’s or Levant, he says, so why take away the legal weapons he uses against unregenerate hate-mongers? But John Dixon, a two-term former president of the B.C. Civil Liberties Association who has locked horns with Warman in the past, says it’s disingenuous for someone with Warman’s means and legal acumen to run from the consequences of his cases. “Unless you’re an idiot, you have to be thinking about what kind of conception of the law, what conception of freedom of expression, what conception of the relationship between the individual and the state is cemented in place by your action,” he says. “Cases like these foster an atmosphere in which sensible people who know they can’t summon the resources to defend themselves will censor themselves. It creates an ever-growing body of very regressive law when it comes to the integrity and freedom of a democratic forum.”
And the uncomfortable questions about fairness are starting to pile up. After months of legal stonewalling, the HRC’s lawyers lost a bid two weeks ago to keep Steacy from having to testify in an open hearing about his research methods (Maclean’s had contested a previous decision to hold the session in camera). On the stand, an alternately truculent and resigned Steacy admitted he had adopted Warman’s tactic of logging onto racist websites under the moniker Jadewarr (“short for Jade Warrior, a character from a novel I read as a youth”) and pretending to be, in effect, one of the gang. At least three other people, including his manager, knew he was doing it, he said. He denied ever consulting Warman himself on how to log onto the sites, while a second investigator, Hann-ya Rizk, testified she’d received basic Internet search training from the Ottawa lawyer after he left the commission. In previous cases, it has emerged that Warman would drop by commission offices, asking about the progress of his complaints, even having pages printed off to add to his files.
By last week, the case had devolved into a full-blown public relations fiasco: one of Steacy’s log-ons to a purported hate site turned out to originate from the wireless Internet account of a woman who lived near the commission offices, yet had no idea her account was in use. The federal privacy commissioner has announced plans to investigate, and the commission has been in damage-contol mode ever since. In an interview earlier this week, general counsel Ian Fine said no commission employees have wireless on their office computers, though he couldn’t speak for their private computers. He rejected the suggestion that Warman enjoyed privileged access, saying it’s not unusual for commission staff to confer with complainants during the process of an investigation, including to print documents. As for Warman continuing to file complaints during his tenure at the commission, Fine said that the Ottawa lawyer was not permitted to work on his own or any other Section 13 complaints during his two years at the commission. Any citizen has a legal right to file a complaint, Fine noted, “whether or not they work at the Canadian Human Rights Commission.”
It’s not the first time Warman’s use of the law to curb hate speech has produced unintended consequences. Far from the polemics surrounding the Lemire case, he has been locked in a battle that has pitted him against the British author David Icke and — somewhat improbably — against Canadian public libraries. That Icke happens to be one of the great wing nuts of the modern age makes the dispute all the harder to fathom. In a series of delusional tomes, the sportscaster-turned-visionary maintains that humanity is controlled by a circle of influential Jews known as the “Illuminati,” who are in turn descended from fourth-dimensional, lizard-like creatures from outer space. He accuses numerous world leaders of engaging in ritual sacrifice of children, including the Queen and former prime minister Brian Mulroney. People like Warman, who seek to shut him down, are written off as stooges for the Illuminati.
It is fantastical and offensive stuff, riffing off notorious anti-Semitic tracts such as The Protocols of the Elders of Zion. But the conspiratorial elements have gained Icke a cult-like following, and it was this growing popularity Warman sought to curb in 2000 when he rendezvoused in Vancouver with the documentarist Jon Ronson. Warman appears in the piece about Icke that Ronson produced for Britain’s Channel 4 Television, boasting about having scuttled Icke’s media interviews and book signings. Vancouverites, however, seem irked by the perception of benevolent censorship. By the end of the episode, fully 1,200 turn up for an Icke lecture at a downtown theatre.
The rout seemed only to whet Warman’s appetite. When Icke’s next book, Children of the Matrix, came out in 2001, Warman fired libel notices to libraries across the country warning that the book contained a series of defamatory assertions, including the claim that Warman “worked ferociously” to stop the exposure of abuse, torture and sacrifice of children. Unless the libraries pulled it from their shelves, he said, he would include them in his libel claim against Icke — even though he had not yet won a judgment against the author. Disturbed, the B.C. Libraries Association referenced the notices on an Internet database of censorship incidents, which drew yet another libel claim from Warman — a case settled only after the BCLA agreed to drop quotations from Icke’s book and include his rebuttal on their site.
Still, the librarians sensed a cause worth defending. “We are faced with monetary choices all the time,” explains Kevin Keirans, director of the Kamloops, B.C.-based Thompson Nicola Regional Public Libraries, who received one of Warman’s notices. “It’s quite easy to say, do I really need this hassle and just skip a book over and not get it. That’s the chilling of campaigns like this. I didn’t think that was right.” So with the support of Dixon and the B.C. Civil Liberties Association, the BCLA persuaded the provincial government to pass a law protecting them from the sort of action Warman had taken. It was necessary, says Ann Curry, a former BCLA member who now heads the School of Library and Information Studies at the University of Alberta, in part because Warman refused to consider the broader issues at stake. “What was most frustrating to me was his lack of understanding that perhaps his limits [on expression] are not the limits of other people,” she says, “or that his limits may not be what’s best for society in every case.”
Warman’s response? “It’s intellectually and morally dishonest to suggest libraries should knowingly contribute to wrongfully destroying someone’s reputation just because they’re libraries.” And herein lies his flaws as a flagbearer for social justice, say critics — namely, his inability to distinguish between a good case and a good cause. What he’s doing may fall within what the law allows, notes Dixon, “but I’m very impatient with that argument as an excuse for indulging in lawsuits that ultimately support a regressive conception of the law.” Ronson, too, was struck by Warman’s blindness to the bigger picture. “I remember we were sitting in a hotel room at one point and he was joking about getting Icke’s books seized and incinerated,” he says. “He joked about having me arrested for bringing one of Icke’s books through customs. I mean, book-burning carries a lot of baggage, doesn’t it?”
All of which invites intriguing questions about the role Warman will play in the ensuing argument over whether to rein in human rights commissions. Martin’s motion to eliminate Section 13(1) has sparked heated debate over whether we need the law at all, but Warman — who arguably understands the legislation better than anyone in the country — may not be the person its defenders want in the public eye.
Alas for them, he has a few scores left to settle. He still has complaints waiting in the human rights hopper, he notes. And he’s quick to point out that the Lemire matter, in which he alleged that Lemire played Web host to calls for genocide against blacks, Aboriginals and francophones, has yet to be decided. “The case against Lemire is solid,” he says. “I’m convinced it will be upheld no matter how long he tries to delay it.” So as the commission takes its lumps, as critics cut away at his legacy, as the death threats against him accumulate, Warman vows to fight on. “No one ever promised me a rose garden,” he says, and that’s probably just as well. Given the way things have gone for Richard Warman in recent weeks, and given his history of throwing down legal gauntlets, anyone who had made such a foolish guarantee to him would need a good lawyer.
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