April 12, 1998
In this province, our human rights system has bent over so far backward to enhance the rights of the disadvantaged that its head—its seat of reason—has disappeared up its posterior.
This is the only conclusion I can reach, given the judicial contortions being performed by the B.C. Human Rights Tribunal. The sexual harassment case brought against University of B.C. professor Donald Dutton is such a gross violation of democratic justice it bears allusion to Stalin’s show trials. By rights, the tribunal should have frogmarched complainant Fariba Mahmoodi out of the hearing room and recommended that harassment charges be brought against her.
However, tribunal chairwoman Frances Gordon claims she can’t do anything of the sort. Regardless of credibility, the hearings will continue May 4. How could this be? How could a charge based on innuendo and specious evidence be taken seriously in the face of incontrovertible proof that the complainant has waged an extensive campaign of slander, character assassination, extortion and harassment against the respondent, as well as harassment of innocent third parties?
Welcome to B.C.’s Theatre of the Politically Absurd.
First, you have to appreciate that B.C.’s Human Rights Commission and Tribunal are now separate entities—two hemispheres of a brain that have been severed. The commission receives a complaint and may or may not investigate before referring the matter to the tribunal. Once a case goes to a hearing, the commission is out of the picture.
If a case is to be dismissed, the commission—and only the commission—must make that determination before the case goes to a hearing. Gordon says the tribunal receives only the most basic outline of the commission’s investigation. The tribunal does not see the investigator’s report, which Gordon likened to a judge being shown a police report.
In the Dutton/Mahmoodi case something weird happened. On Sept. 8, 1995, senior human rights officer Cindy Bachman determined—as did the University of B.C.—that evidence of sexual harassment by Dutton did not exist. Furthermore, Bachman found no support for Mahmoodi’s claim of bias by UBC in investigating her claims, or for her charge that she received low marks because of prejudice.
Bachman concluded: “There is direct evidence from several sources of inappropriate behaviour by the Complainant before and after she filed her sexual harassment complaint with UBC.” Bachman recommended that charges against Dutton be dismissed per Section 13(1)(c) of the old Human Rights Act as “trivial, frivolous, vexatious or made in bad faith.”
(This section, among others, has been repealed. It was deemed to be insulting and disrespectful toward whose who had no evidence to support their claims of sexual harassment. It has been partially replaced by Section 27 (1)(e) of the new Human Rights Code, which allows for dismissal on ground of bad faith or improper motives.)
Here’s how we stand: Dutton, UBC investigators and Bachman all agree that Mahmoodi is a barking loon who cannot be taken seriously, and that there is no credible evidence that Dutton committed sexual harassment.
However, on Feb. 23, 1996, the chairman of the tribunal recommended further investigation. Why? Nobody will comment.
Here’s the Catch-22. The case against Dutton is obviously bogus, but because it has already gone to a hearing it can’t be stopped, since only a commissioner has the power of dismissal, and the commission is out of the picture.
Yet, Mahmoodi’s charge is a textbook example of one that should be dismissed under Section 27 (1)(e). Gordon, the tribunal chairwoman, said she can’t do anything until the hearings are over, at which time she’ll decide on the validity of Mahmoodi’s claim. Bollocks! Either she’s in charge or she isn’t, and if she is, she has a moral obligation to stop this spectacle before more harm is done to Dutton’s life and reputation.
I can understand the need for an Ombudsman-type of body to deal with private disputes, such as sexual harassment, and I can see laxer rules governing admissibility of evidence, but a tribunal must at least be impartial. Without dispassion, the rule of law becomes the handmaiden of whoever controls it.
In B.C., human rights is so infested with feminist activism that no male respondent can expect fair treatment at a hearing. Previously discredited rumour, innuendo, fallacies and supposition is heard, because rules governing admissibility of evidence are virtually non-existent. Even if the complainant loses, she still wins because she impugned the respondent’s character.
The pièce de résistence to this sordid affair is the May 9, 1997, response to Bachman’s findings from Mahmoodi’s lawyer Clea Parfitt. Among the personal attacks and feminist boilerplate, Parfitt wrote: “Even if inappropriate sexual conduct cannot be proven, the Respondent Dutton’s actions went well beyond the appropriate boundaries of a student teacher meeting in other respects, and these alone constitute sexual harassment.”
Brilliant! Admit you don’t have a case, and then redefine the crime to make the case seem winnable. If Parfitt tried that before a judge she’d be laughed out of court.
It’s time to deliver the inquisition into the hands of its enemies and pull our heads out of the darkness.
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