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Can Canadian courts police the internet? Transgender teen's family law case shows shortfalls of gag orders

Last Updated Mar 7, 2020 at 12:36 am PST

BC Supreme Court in Vancouver
Summary

The case began with a father tried to prevent his teenage, transgender son from taking hormone replacement therapy

The court sided with the boy, finding he did not need his father’s consent to continue treatment

Aspects of the case are subject to publication bans, including identities of the boy and his father

VANCOUVER (NEWS 1130) – What began as a dispute within a B.C. family has spilled into the public sphere, fuelling a modern-day culture war and raising vexing questions about the ability – and right – of the Canadian state to control the spread of information.

The case began with a B.C. father trying, and failing, to prevent his teenage, transgender son from taking hormone replacement therapy.

In January, B.C.’s Court of Appeal upheld a B.C. Supreme Court ruling that sided with the boy, finding he did not need his father’s consent to continue treatment. That ruling was followed by an injunction against the father that said any attempts to persuade the boy to abandon treatment was a form of family violence.

Several aspects of the case are subject to publication bans, including the identities of the boy, his father and the medical professionals involved in the teen’s care.

But enforcing those bans is trickier than it once was.

Courts hoping to restrict the widespread dissemination of sensitive information once worried primarily about journalists respecting a judge’s decrees. When barred information was printed or broadcast, those responsible could be called before the courts and, sometimes, charged with a crime.

While those rules still apply to the mainstream media, the courts can have a harder time applying them more broadly in the digital age.

‘A private family matter’

Claire Hunter, a lawyer representing the boy, declined to answer questions about the case, calling it “a private family law matter.” But it has already been covered by international outlets. Some have equated the teen’s hormone treatment to child abuse.

Laura-Lynn Tyler Thompson, a Christian blogger and former People’s Party of Canada candidate, has jumped to the B.C. father’s defence. The self-described “political activist” interviewed the father in early February and posted the video online. She admits to knowingly breaching the court order.

“Yes, we deliberately violated the publication ban because we feel that this issue is of such importance,” Thompson told NEWS 1130.

On Feb. 21, a B.C. Supreme Court judge ordered Thompson to take the video down, including from Twitter, Facebook and YouTube – as well as delete any reference to information subject to by the publication ban.

The judge also said that Thompson, the father, and an ally of theirs, Jenn Smith, must monitor their social platforms and remove any comments that could identify the father, his son or the child’s care providers.

“Laura-Lynn Tyler Thompson, Jenn Smith and [the father] are restrained from encouraging or directing any person publicly or privately to take any step which may lead to a breach of the orders of this court in this proceeding,” Justice Michael Tammen wrote in his ruling.

‘Not subject’ to Canadian law

Thompson told NEWS 1130 she complied with the order and removed the video from her social media accounts. But by then, it had been picked up around the world.

Social media users reposed the video in Australia, Germany, the U.S., France and elsewhere, according to Thompson.

“They, of course, are not subject to Canadian publication bans and they are sharing it – but all the videos that I had shared have been taken down,” she said.

But the video interview remains visible and easy to find online from Canada.

Thompson said she knows some of the people who continue to share the video and has been in contact with some of them. She said that contact doesn’t violate the publication ban, according to her understanding.

‘Community standards’ violated

NEWS 1130 asked Facebook and YouTube what they were doing to address the issue.

“We removed this video for violating our community standards,” A Facebook spokesperson said in an email.

While it appears one version of the video has been removed from the platform, others remained visible on Facebook as of Friday afternoon.

A YouTube spokesperson also emailed a statement.

“Where we have been notified of content that is in violation of this court order, we have restricted the content from view in Canada. We’ll continue to prioritize further requests relating to this matter,” it reads.

A copy of the video brought to YouTube’s attention by NEWS 130 was no longer visible as of Friday afternoon – but other versions of the interview could still be viewed in Vancouver.

‘That’s predatory behaviour’

“This is outrageous,” Morgane Oger, a trans rights advocate and former BC NDP candidate, said. “Leaving alone the fact that a parent causing harm to their child because of their ideology is outrageous … people have the right to privacy and have the right to not have their medical information spread around by their dad no matter what the dad thinks.”

Once something is online, it can never be fully scrubbed and Thompson knew that when she posted the video, Oger said.

“I hope that the courts are harsh in dealing with a deliberate violation of court orders in order to pursue an agenda that causes harm to individuals,” she said. “A supposed Christian journalist violates a court-order on purpose, in order to undermine Canadian law on purpose, in order to cause harm to a child … that’s predatory behaviour and that needs to have an appropriate consequence.”

Oger said the father, Thompson, and others have every right to disagree with government policy and judges’ decisions and to express those opinions publicly – but they don’t need to violate a vulnerable child’s privacy to do so.

‘Not a new dilemma’

While this case and those like it may seem to present a uniquely modern dilemma, University of Victoria law professor Rebecca Johnson said social media has merely added new contours to an age-old debate.

“This challenge is rooted in thousands of years of human community,” she said.

When serial killer Paul Bernardo was on trial in Ontario in the 1990s, many aspects of the trial were under publication ban – but those bans did not apply on the other side of the border. American media freely reported details Canadian media wasn’t allowed to touch.

Newspapers printed in Detroit, Michigan, were trucked the roughly five-kilometre distance to Windsor, Ontario and farther afield in Canada, Johnson said.

Officials began stopping newspaper shipments at the border and clipping out coverage of the Bernardo trial, she said.

“So we’ve got this dilemma and it’s not a new dilemma,” she said.

Johnson said the publication ban’s seeming inability to scrub the internet of the video and other information about the case does not mean it’s totally useless – but it does suggest other approaches are needed to keep vulnerable people safe.

“If we had already in place networks of care and compassion and engagement then a publication ban is not the only tool available to people,” she said.

“We put up the dams that we think we can, but when the flows are so high, you need to think about the structures more. And those structural questions – how we deal with social media in this time – those are going to require a lot of conversations from a lot of places and a lot of people.”

With files from the Canadian Press