Why is the B.C. Human Rights Tribunal protecting the identity of antivaxxers?

After two of them filed complaints, the tribunal's chair felt that their names should be kept out of her decisions

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      Anyone who's been reading my columns for a few years (wince!) knows that I have a few hobby horses.

      Here's one of them. It bugs the hell out of me that B.C. politicians blindly accept our at-large system for electing city councillors. This is the case even though multi-member districts (which an at-large system really is) have repeatedly been found to be discriminatory in U.S. courts.

      It also bugs the hell out of me that we still have a street in Vancouver named after Joseph Trutch. He was a colonial-era land commissioner who may have done more than any other British Columbian in history to steal Indigenous lands.

      Every time I pass Trutch Street, I feel a sense of disgust. After nearly a decade of writing about this, city council finally voted this year to change the name. Before that happens, city staff will have to report back with names proposed by the Musqueam Indian Band.

      Another one of my hobby horses is the B.C. Human Rights Tribunal's willingness to keep adult complainants' names secret, despite the "open court" principle.

      This morning, Vancouver lawyer Sarah Leamon wrote a column on this website about two complaints to the B.C. Human Rights Tribunal regarding vaccine passports.

      In Complainant v. Dr. Bonnie Henry, the person purported that the B.C. Vaccine Card program violated his human rights as a person with a disability—even though he appeared to provide no medical evidence to support his claim

      Tribunal chair Emily Ohler dismissed the complaint. She also ordered a "limitation on the publication of the name of the Complainant to protect his privacy". 

      Ohler justified this because the tribunal doesn't normally publish decisions issued at such an early stage in the proceedings.

      In the second case, Ohler dismissed a complaint  by a man who purported that the B.C. Vaccine Card program violated his human rights on the basis of his political beliefs.

      In this decision, Ohler repeated her boilerplate explanation why the public has no right to know the name of this antivaxxer who was making use of a publicly funded tribunal to advance his arguments.

      I want to provide my readers with the names of these two people who filed these complaints to the B.C. Human Rights Tribunal.

      This could be particularly newsworthy if these same complainants are involved in disrupting local restaurant businesses, organizing protests outside B.C. hospitals, or violating mask mandates on public transit as part of their so-called "Rosa Parks challenge".

      But I cannot reveal the complainants' names because the tribunal chair—someone who has lectured on international and common law at the University of British Columbia—decided that their privacy trumps my section 2(b) right to freedom of the media and freedom of expression under the Canadian Charter of Rights and Freedoms.

      Open courts and the constitution

      The McConchie Law Corporation website has an extensive section on the open-court principle in Canada. Here's part of what it says:

      "The 'open court' principle assumes that public confidence in the integrity of the court system and understanding of the administration of justice is fostered by openness and full publicity. The objectives include: (1) maintaining an effective evidentiary process; (2) ensuring a judiciary and juries that behave fairly and that are sensitive to the values espoused by society; (3) promoting a shared sense that our courts operate with [integrity] and dispense justice; and (4) providing an on-going opportunity for the community to learn how the justice system operates and how the law being applied daily in the courts affects them. Accordingly, personal embarrassment or financial prejudice to an accused or to a witness is generally not a valid basis for publication ban."

      Here is what the Supreme Court of Canada said about this principle in a 1996 decision involving the Canadian Broadcasting Corporation.

      "The open court principle is one of the hallmarks of a democratic society, fostering public confidence in the integrity of the court system and understanding of the administration of justice.  This principle is inextricably tied to the rights guaranteed by s. 2(b) of the Charter

      "The freedom to express ideas and opinions about the operation of the courts and the right of members of the public to obtain information about them are clearly within the ambit of s. 2(b).  As well, s. 2(b) protects the freedom of the press to gather and disseminate this information. 

      "Members of the public in general rely and depend on the media to inform them and, as a vehicle through which information pertaining to courts is transmitted, the press must be guaranteed access to the courts in order to gather information. 

      "Measures that prevent the media from gathering that information, and from disseminating it to the public, restrict the freedom of the press guaranteed by s. 2(b). To the extent that such measures prohibit public access to the courts and to information about the courts, they may also be said to restrict freedom of expression in so far as it encompasses the freedom of listeners to obtain information that fosters public criticism of the courts."

      There's nothing in the Human Rights Code granting Ohler and other tribunal members legal authority to anonymize the names of antivaxxers who file complaints. The tribunal has simply decided on its own that their privacy and the privacy of many other complainants and respondents are more important than the public's right to know their identity.

      This tribunal hands out anonymization orders like they're Halloween candy.

      That's why I have a funny feeling that this won't be the last column I'll be writing about this particular hobby horse.

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