April 2000
In a decision that prompted outraged responses from many private citizens
and media figures, the B.C. Human Rights Tribunal ruled in favor of complainant
Fariba Mahmoodi in her sexual harassment case against Professor Don Dutton.
Dutton, a full professor in UBC’s (University of British Columbia) Department
of Psychology, is an internationally-known expert on domestic violence.
The basic facts of the case are these. In the late fall of 1994, Mahmoodi
approached Dutton about enrolling in a directed studies course. On December
30, she went to his apartment in the evening to discuss research. Subsequently,
she sent him a letter threatening to destroy his career if he did not get
her into graduate school. Dutton took the letter to UBC’’s Equity Office
and complained that he was being blackmailed. They did nothing.
Mahmoodi filed a complaint that Dutton had tried to seduce her while
she was in his apartment. Upon receiving Mahmoodi’s complaint, the Equity
Office immediately launched an extensive investigation of Dutton.
Mahmoodi produced a murky tape recording that included sounds of music
being played and snippets of conversation between her and Dutton. Exactly
how this recording was made was never determined, although the method of
production would seem to be of central importance in assessing the motivation
of Mahmoodi. Dutton claimed he never made the recording. Mahmoodi claimed
the voice recording accidentally occurred while Dutton was recording music
for her. Yet the ability of the tape recorder to actually perform this feat without
a microphone was never proven. A definite possibility is that Mahmoodi
produced the recording herself.
Ultimately, the B. C. Human Rights Tribunal decided that there was no
evidence Dutton had physically seduced Mahmoodi, but found him guilty anyway
of “creating a sexualized environment.” He was fined $13,000. His legal
expenses are already in six figures.
Numerous aspects of the BC Human Rights Tribunals procedures give grave
cause for concern. The most serious problems are the following:
Professor James Steiger testified that Mahmoodi approached him about
a failing mark around the same time she visited Dutton’s apartment, and
threatened (in the presence of a witness) to charge Steiger with racial
discrimination if he failed to pass her. The court ruled this testimony
“inadmissible,” on the grounds that the probative value of the testimony
was inadequate to compensate for its potential damage to the reputation
of the complainant.
The probative value of the testimony was considered limited because
of many alleged differences between the circumstances under which Mahmoodi
approached Steiger and Dutton. The fact that she approached two professors,
in the same department, in the same time frame, and allegedly threatened
each in order to achieve an academic objective seemed lost on Frances Gordon,
the Tribunal chair.
All record of this testimony has now disappeared. There is no mention
of it in the extensive notice of decision (available at the HRT’s website,
http://www.bchrt.gov.bc.ca/mahmoodi3.htm) with one notable exception.
A letter from Dutton to Steiger was entered into the record, because the
tribunal chair felt that it reflected negatively on Dutton’s credibility.
A careful reading of the decision reveals just how selective Frances
Gordon was in processing and compiling information. For example, in a key
section of the her report, Gordon intersperses actual elements from the
tape recording with Mahmoodi’s allegations, creating a seamless narrative
strictly from Mahmoodi’s point of view. It is very easy for a casual reader
to lose sight of the fact that much of this material is uncorroborated
conjecture, and almost all damaging “facts” in the narrative are unproven
allegations by Mahmoodi.
On the other hand, Gordon presents only a small snippet of the blackmail
letter Mahmoodi sent to Don Dutton, blunting the impact of the very negative
piece of evidence.
One must recall that the complainant in these cases has legal bills
paid by the government, while the defendant is paying by the minute for
legal advice. Under these conditions, failure to establish expeditious
procedures and failure to control outbursts from the complainant are both
prejudicial to the interests of the defendant, and can contribute to financial
hardship.
During the tribunal proceedings, numerous facts were presented that
reflected very negatively on the complainant’s credibility. Besides the
matter of the forged letters of recommendation and Mahmoodi’s initial blackmail
letter to Dutton, there were discussions of falsified immigration records,
falsified educational transcripts, recordings of obscene phone calls Mahmoodi
made to staff members working in Dutton’s lab, and details of Mahmoodi’s
physical harassment of Dutton and other UBC staff members. Ultimately,
Frances Gordon found Dutton to be less credible than Mahmoodi! [In an interesting
postscript to these matters, Mahmoodi was recently arrested at Vancouver
International Airport and charged with a criminal offense.]
What emerged from the Mahmoodi-Dutton tribunal hearing was a disturbing
truth. The British Columbia Human Rights Tribunal is a parallel court
system out of control. Originally, the system was weighted heavily
on the side of the complainant because it was designed to aid individuals
whose rights were compromised by large organizations with overwhelming
financial and legal resources to maintain violations of a complainant’s
rights. The quixotic notion was that the system would provide balance for
righting serious wrongs in the society.
What exists in fact is something else: a system which places immense
power in the hands of a political bureaucracy, with an obvious agenda–
to use selected complainants to establish new legal precedents. Say the
wrong thing, be charged with a Human Rights violation, and you may end
up spending several years defending yourself under indeterminate conditions.
The court will decide what evidence to admit, how the tribunal will proceed,
and answers to no one after deciding your fate. The power of such a system
to repress freedom of speech is disturbing, and similarities to certain
totalitarian societies are frightening.
John Furedy has described the Human Rights Tribunal system as “velvet
totalitarianism.” This is entirely accurate.
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