Editor’s note: Elliott Leven, a Winnipeg lawyer in private practice is also a Manitoba Human Rights commissioner, who published an article in Canadian lawyer on August 21, 2008 about human rights commissions.

Ezra Levant , conservative pundit and lawyer  will respond to Leven’s published comments. Levant , publisher of the now defunct Western Standard magazine was investigated in a highly controversial case by the Alberta Human Rights  and Citizenship Commission after reprinted Danish cartoons depicting  the Muslim prophet Mohammed.

At first blush there appear to be several similarities between Leven and Levant: both are lawyers with solid Winnipeg Jewish pedigree, both have initials  E. L., and the Hebrew word “Lev” in their name. Both have had articles in the Winnipeg Jewish Review. But, the similarities may end there. Leven argues that Canadians need human rights commissions more than ever, while Levant contends they should be scrapped altogether.

What follows below are excerpts  from Leven’s published comments in Canadian Lawyer and Levant’s responses to those comments.

LEVEN:   As a labour and employment lawyer and human rights commissioner, I believe that Canada needs human rights commissions now more than ever. That does not mean that all provincial human rights laws should contain hate-speech provisions. In fact, most don’t. B.C., Alberta, and Saskatchewan are the only common law provinces that include hate-speech sections in their human rights laws.

LEVANT:  Other provinces have almost identical provisions that apply to other forms of expression. And, of course, there's the federal Canadian Human Rights Commission, which has a hate speech provision -- and [ virtually] a 100% conviction rate at the tribunal.
 

LEVEN: One [criticism ]is that some human rights complaints are frivolous . That is certainly true. ..But, in a democratic society, there is literally no way to screen out all frivolous litigation in a way that would not also screen out some perfectly valid litigation.

I know from personal experience as a human rights commissioner that it is sometimes impossible to tell whether a complaint has any merit until at least a few key witnesses have been interviewed or a few key documents reviewed. …

The investigation may ultimately reveal that the complainant was less than fully honest and that the complaint is totally without merit. The respondent is angry and jaded about the whole human rights process, particularly if he or she has hired a lawyer and incurred some legal bills. I sympathize with the respondent, but what’s a responsible commission to do?

LEVANT:   When someone files a nuisance suit in a civil court, they have to pay the costs of the party they harrass. Leven's…"what can we do?" is pretty obviously answered: they can pay for the abusive costs they put their victims through.

LEVEN: Also, human rights commissions are becoming extremely skilled at mediating mutually agreeable settlements, at no cost to either party. The courts do not provide free mediation for parties to civil lawsuits.

LEVANT: Leven’s] pride in their "mediation" skills is laughable. It's not mediation. It's a Shakedown. The reason HRCs convince 90% of their victims to accept a plea deal is because, after a few months in the kangaroo court process, victims realize they cannot win. Even if they're "acquitted", they will not be made whole for their wasted time and money -- unlike a real court, or even some other commissions and boards. In my case, that "expert mediation" took the form of an extortion demand: I pay the Muslim imam a few thousand dollars and give him a page in the magazine, unedited, and I could go free. Instead, I fought on principle, and spent about $100,000. A rational person would have taken the deal, and suffered the humiliation

The thing about other boards and commissions is that they are actually experts. Take Manitoba's Surface Rights Board. That's all they do: arbitrate between the person who owns land (typically a farmer) and the personal who owns the minerals underneath it (typically a mining company). That's it. And you can bet they're more expert about it than any court.

Not so HRCs. One day they're telling restaurants not to order staff to wash their hands. The next day they're telling school boards what programs to offer. The next day they're telling me how to run my magazine. They're not legal experts or technical experts. They're … political activists, who have an agenda that could never get through an election -- so they'll impose it under the counterfeit name of "human rights".

LEVEN: The rules of evidence used by courts are very complex, and many hours have been spent by lawyers arguing over evidentiary issues in the courts.

 Leven puts down real courts, saying they… take time. If the junk case against me had been in a real court, I could have applied for a summary dismissal, and be done with it within weeks. Instead, I was dragged through a 900-day process, involving 15 government bureaucrats and lawyers… Sorry, I'm not interested in being a stimulus program for lawyers. And that's what HRCs are: they're extremely slow. The average case in Alberta takes a year and a half to resolve -- whereas small claims courts and landlord and tenant forums typically get results in half that time, or less.

LEVEN: In short, my direct first-hand experience is that, at least in my home province, the human rights commission is working quickly and efficiently, and still plays an essential role.

LEVANT: There are 14 HRCs in Canada, employing 1,000 people like Leven, at an annual cost of about $200,000,000 to taxpayers. Time to shut them down -- and encourage them to find more meaningful employment.