Jan 8, 2021 @ 9:55am ~ Carey Linde to The Advocate
On November 27, 2020, almost a month before the Chief Justice’s controversial practice directive, I was in chambers before Madam Justice MacDonald. representing a mother on whose behalf I had previously obtained a without notice injunction preventing a defendant surgeon from performing a bilateral mastectomy on my client’s 17 year old daughter. The minor had been diagnosed as having gender dysphoria and had been prescribed a regimen of testosterone.
My client has commenced a civil petition action against her daughters GP and the cosmetic surgeon.
Although not initially a party, by consent the minor was made a party.
Counsel for one of the doctors and another for the minor had applied to have my client’s action struct. The justice still has not
come down with her decision.
Attached is one page from the official transcript of the proceedings.
Colleagues have suggested your magazine might want to comment on this issue as a preferred option on how to deal with the issue of pronouns for a party.
Should it be of interest, I can submit it in proper format as a letter to the editor.
Jan 8, 2021 @ 11:08am ~ The Advocate to Carey Linde
I think a formal letter to the editor is appropriate.
Jan 14, 2021 ~ Shahdin Farsai to The Advocate
Hello Mr. Bain,
Attached you will find my submission for the next edition of The Advocate. The recent practice directives from the Provincial and Supreme Courts present serious concerns for our profession and are ripe for reflection and discussion by lawyers. I am confident the essay will engender the overdue dialogue we need to have on these matters.
I am open to any edits you see fit. The endnotes should be compliant with the McGill Legal Citation guide. The length is about 2600 words excluding the endnotes. I tried to adhere to your rules on headings and subheadings.
Please advise if the piece will be considered for publication at your earliest convenience. Thank you.
Jan 14, 2021 ~ Shahdin Farsai email to colleagues 2021-=001-14
Ladies and Gentlemen,
Just had a long call with the Advocate´s editor. He will run the piece.
He will contact the SOGIC CBA group and send them the draft and see if they would like to respond with their own article. If they decline to respond, he will have an editor´s note saying that he gave them an opportunity to do so. So they will get two weeks to respond and if they take longer, my piece and theirs would go into the May issue instead of March.
Jan 22, 2021 ~ The Advocate to Shahdin Farsai
I am writing to advise that after considerable discussion amongst the editorial team we have concluded that we are unable to proceed with publishing your article.
We were dismayed to discover that part of the paper contains a transcript from a proceeding which is subject to both a sealing order and a publication ban. While the publication ban appears to only extend to identifying parties to the lawsuit, the sealing order, in our view, extends to publication of the transcript itself. We also note that the same case from which the transcript arises was recently reported as A.M. v. Dr. F, 2021 BCSC 32 and the notice of civil claim in that case was struck as an abuse of process (para. 111). We also note that there was a finding of a failure to meet the full and frank disclosure obligation on an ex parte application related to the lawsuit.
In light of the decisions in Oger v. Whatcott (No. 7) 2019 BCHRT 58 and Dawson v. Vancouver Police Board (No. 2) 2015 BCHRT 54 we are of the view that there is legal authority that finds using gender pronouns other than the ones a party or witness uses to be discriminatory in nature and therefore a breach of the Human Rights Code.
Also, in light of the Court of Appeal’s decision in A.B. v. C.D., 2020 BCCA 11 we are of the view that the law as it stands in British Columbia is that a party (or presumably anyone) can be compelled to employ specific pronouns when referring to an individual as well as be compelled to use a specific name when dealing with a trans individual. In other words, speech referencing gender pronouns can be compelled speech in British Columbia and the right to free speech guaranteed by the Charter can be restricted in such a circumstance. Moreover, it would appear that in British Columbia individuals can be cited for contempt of court, professional misconduct and sued for human rights infractions for using the wrong pronouns.
Accordingly, we are not willing to step into the fray based on the law as it currently stands.
I thank you for your continued interest in The Advocate.
Michael Bain, Q.C.
Jan 23, 2021 ~ Shahdin Farsai to The Advocate
Michael and Ludmila,
Thank you for your email. I understand that this was not an easy decision and that you were placed in a delicate position. The rebuttal that was provided to you by those from whom you sought input should have found its place next to my piece. Unsurprisingly, you sought out a reasoned response and instead you were met with successful efforts to silence the dissenting opinion. As you explained to me Michael if we cannot have a dialogue on this issue in The Advocate, then where else do we?
I will first lay out the faults with the rebuttal you received and then I will ask that I be given an opportunity to edit the piece such that your fears of any legal action against the magazine be put at ease. You neglect the fact that The Advocate has constitutionally protected rights.
You were told this issue is settled law. We simply have no law on regulating gender pronouns in court. Can you please advise how the cases you cited address the issue in the context of judicial proceedings? Those tribunal decisions are not at all on point. I explicitly referenced the Human Rights Act in the piece to make the point that it protects gender ID and expression outside of court. However, I then went on to explain that the law on absolute privilege in court prevents the statute´s application in court. No one could ever file a human rights complaint against another for failing to use their PGPs in court. The same applies to breach of any other legislation. I cited the BCCA on this point and the policy reasons behind it. If I was not clear enough, I can revise that part of the article. If others disagree, well then they can explain themselves next to my piece. That is not reason to silence me.
Further, as set out in the BCCA practice directive, PDs cannot be court orders and neither are they law. No contempt of court is legally available. However, the point that I was making was what do we do when a judge goes that far and puts words in your mouth in court as demonstrated in the UK example, that is what I am trying to shed light on. Again, if others disagree, they can do so and provide law that contradicts the pronouncement of the BCCA.
In respect of the sealing order, again, the media were present at the hearing. Can you please explain your reasoning on how you concluded that the sealing order includes a transcript? It applies to the actual court file at the registry. Also the publication ban clearly states that you cannot publish anything that “could identify the names of the parties or persons referred to in these proceedings”, the transcript excerpt does nothing of the sort and only uses initials as in the style of cause. I can remove the quote if it is too worrisome for you.
The outcome in the A.M. v. Dr. F, 2021 BCSC 32 has absolutely no bearing on the article. I just needed to make the point that a lawyer was stifled and unnecessarily apologetic to the court for remaining loyal to his client´s instructions and legal position.
Also, A.B. v. C.D., 2020 BCCA 11, the father was issued a conduct order under the Family Law Act to call his daughter by a male name and gender pronouns. This was specifically under the FLA and not under the Human Rights Act. Yes, it is true that the tribunal can also order someone to use another´s PGP, but again, what about in court. No law is on this point, hence let us discuss it.
I expended considerable time and effort into this piece. I think you can show me some courtesy here and respond to the points above. If you rather ignore them, then please advise of what edits you would like.
I am happy to remove the reference to the transcript, or anything else that is making you uneasy. I just have a simple dissenting opinion that I know other lawyers share. I want us to discuss these issues openly rather than pre-emptively silence each other. This is not what The Advocate is about.
You have printed plenty of controversial opinions and now are you both of the mind that I cannot say anything on this matter at all? You have received other letters to the editors about this issue, are you also unwilling to print those as well?
I sincerely hope you recall the purpose of this publication and what it ought to stand for. The piece is undoubtedly in the lawyer’s interest and of interest to the lawyer.
I look forward to your response.