October 03, 2022 – According to recent investigations, media reports and local incidents there is a disturbing trend towards greater secrecy and increasing evidence of bullying and silencing of the public by authorities, governments and corporate entities.
Strategic Lawsuits against Public Participation (SLAPPs), publication bans of court proceedings, and non-disclosure agreements (NDAs) are some of the tools now frequently used by organizations already powerful in their own right to quell public criticism, to chill public discourse.
The use of the courts to achieve these ends is casting a pall on our society and weakening our democratic institutions – not just in the remote upper echelons of Ottawa and Victoria, but also right here in Qualicum Beach.
Legal system tactics suppress public access to information, discourage public participation
The mere threat of SLAPP suits discourages public discussion. People in Qualicum Beach will be familiar with these “frivolous” lawsuits because of a defamation lawsuit filed by Todsen Design & Construction Ltd. in May 2021 against the Qualicum Nature Preservation Society. The legal battle concluded August 8, 2022 with a B.C. Supreme Court judge dismissing the Todsen lawsuit.
NDAs muzzle victims. Canadians have recently become familiar with NDAs due to the seemingly endless revelations of sex crimes committed in the hockey industry, long hidden because the evidence was “sealed” under non-disclosure agreements (NDAs) imposed on the alleged victims in so-called “settlements.”
Publication bans rob the public’s right to know what’s going on. For example, as regular readers will know, Vancouver Island Health Authority obtained a ban on publication of the evidence in court proceedings related to the alleged unlawful confinement by Island Health of Eileen Wicks, a long-time resident of Qualicum Beach, over the objections of both Eileen and her husband Trevor Wicks, and the thousands of people who have commented in support of the couple.
Overt Council hostilities set the stage in Qualicum Beach
As we reported two years ago, then-Councillor Adam Walker petitioned the BC Supreme Court in August 2020 to quash the Town of Qualicum Beach’s attempts to sanction Walker for some alleged breach of confidentiality of a “Document” that we can guess — only from Court filings, as the Town hid behind its perpetual cloak of secrecy — included criticism of some unnamed Town employee’s conduct.
That left only three on Council, creating a carte blanche for Mayor Wiese and Councillor Harrison to assert majority control of Council decisions.
Two months later, Walker was off to greener (well, oranger) pastures as our newly minted MLA in the provincial legislature. Then there were only four on Council.
A month after that, in December 2020 Councillor Robert Filmer took medical leave from his position as Councillor, citing a “very, very toxic environment” at Town Hall, including bullying and harassment “where an extreme lack of vision and any meaningful leadership has left me in an untenable position, where I fear for my health and well-being.”
That left only three on Council, creating a carte blanche for the Mayor Wiese and Councillor Harrison to assert majority control of Council decisions.
Setting the tone for the Todsens
The aggressive behaviour in our civic politics was not confined to Town Hall. About the same time as ex-Councillor Walker and his Council colleagues were duking it out over “The Document,” the Todsen property development application came onto Council’s agenda.
Community concerns arose immediately and began to grow.
In a muscular response, the Todsens developed a plan to stifle criticism, choosing to single out two community advocates as targets, eventually filing a defamation claim against each of them concurrently in May 2021.
The defendants Ezra Morse and Deborah McKinley, correctly as it turned out, each considered the Todsens’ actions to be “SLAPP suits,” a prohibited violation of BC’s Protection of Public Participation Act. The defamation lawsuits were dismissed in BC Supreme Court.
“Rick Todsen’s candid admission [under cross-examination] that the plaintiffs [Todsens] pursued the two most prominent of their critics in the hope that this would cause others ‘to shut up’ and refrain from public participation is troubling to say the least.”
Chris Tollefsoon, Counsel for defendant ezra morse, BC Supreme Court submission
Affidavit evidence and cross-examination illuminated the Todsens’ strategy. As Chris Tollefson, Counsel for one of the defamation defendants explained to Justice Jan Brongers in the BC Supreme Court, “Rick Todsen’s candid admission [under cross-examination] that the plaintiffs [Todsens] pursued the two most prominent of their critics in the hope that this would cause others ‘to shut up’ and refrain from public participation is troubling to say the least.”
Speaking of aggressive behaviours, cross-examination also exposed some nasty tactics by Todsen allies. According to Mr. Tollefson’s arguments in Court, “Todsen allies have resorted to the use of fake names to infiltrate private Facebook groups and gather evidence against Mr. Morse…, as well as for political purposes.
“To this end, it is now a matter of record that Mr. [Steve] Knutson [Todsens’ son-in-law] used the alias ‘Jordan Wolfe’ while John Wood used the alias ‘Julio Hassenpfeffer’ to these ends.” Readers may recall Second Opinion QB’s previous revelation of what appears to be repetitive incidents of deceit by Mr. Wood.
“This dismissal application was an important test for BC’s anti-SLAPP law. Justice Brongers’ decision should reassure the public that our courts will safeguard their rights to democratic expression on matters of public interest as long as they are exercised in an honest and responsible manner,” Tollefson said in a statement.
However, filing the defamation lawsuit DID work for the Todsens. It achieved their sole purpose which was to quell and suppress public criticism. They admitted it accomplished that, in sworn testimony. So what if their reputation suffered a self-inflicted hit. It also had other implications for the community.
“This dismissal application was an important test for BC’s anti-SLAPP law. Justice Brongers’ decision should reassure the public that our courts will safeguard their rights to democratic expression on matters of public interest as long as they are exercised in an honest and responsible manner,”
Chris Tollefson, Counsel for Ezra Morse and the qualicum Nature Preservation Society
The Todsens’ lawsuit and the decision provided impetus for Council to ram through approval of the Todsen application in a 3-2 vote just eight weeks before the upcoming civic election, rather than defer such an important decision to the incoming Council.
Capital Daily reported that Councillor Anne Skipsey argued that the Todsens’ lawsuits had loomed over the previous public hearing and affected debate.
“We’re in uncharted territory here,” Skipsey said. “No other local government has been in this position where we are considering a public hearing that took place during what the judge [described as] ‘a type of SLAPP proceeding’ … and I think we need to know what the legal consequences are, prior to taking this vote.
“We have a duty in this room to ensure and protect the democratic process and free speech, and there were submissions at the public hearing from people who said they did not feel comfortable coming and participating,” she added.
“Councillor Teunis Westbroek sided with Skipsey, but the two were outvoted by Harrison, Filmer, and Wiese, who called the rezoning approval “a no-brainer.”
Publication ban secrecy shields parties from public scrutiny
As previously reported in Second Opinion QB, an investigation revealed a “steep increase” in publication bans regarding court cases in British Columbia just in the past two years. This would include the publication ban obtained by Island Health to prevent revealing information about the conduct of Island Health in its allegedly unlawful confinement of Eileen Wicks.
As an example in a June 18, 2022 report on their investigation into publication bans in Canadian courts, the National Post wrote that “a trial is scheduled to start in St. John’s, N.L. for a prominent lawyer charged with four counts of sexual assault of a female, starting when she was 12 years old, and yet the public can’t know who he is because a publication ban protects his identity. The order was overturned last month after news organizations appealed, but it remains in place, at least until the lawyer’s team of blue-chip lawyers has a chance to appeal to the Supreme Court of Canada.”
On August 4, 2022, CBC News reported that “the curtain has been lifted on the identity of Newfoundland lawyer Robert Regular, after the Supreme Court of Canada declined Thursday to hear an appeal that would allow him to continue shielding his name from publication.”
On September 20, 2022 Second Opinion QB attended a hearing in Nanaimo Courthouse for the on-going case identified on the daily court list posted in the lobby as VANCOUVER ISLAND HEALTH AUTHORITY v. EILEEN WICKS.
Due to a publication ban that Island Health (aka VIHA) obtained, we cannot report much about the two court case(s) involving Eileen Wicks — an application filed in B.C. Provincial Court by Island Health on May 4, 2022 for a court order to force Eileen into “protective” custody in long-term care; and a habeas corpus application filed by Eileen’s former lawyer on April 28, 2022 in B.C. Supreme Court seeking her immediate release on grounds of unlawful confinement and violation of her Charter rights.
Second Opinion QB has received reports from several people that Island Health transferred Eileen Wicks to a long-term care facility in Qualicum Beach, and that Eileen was recently seen out in the community of Qualicum Beach. However, friends who attempted to visit her in the care facility have been told that Eileen is “not permitted to have any visitors.” Eagle Park staff reportedly said, “No one is supposed to know she’s here.”
On September 26, 2022, B.C. Premier John Horgan appeared at the Civic Centre in Qualicum Beach for an NDP fundraiser, just a hundred metres from Eagle Park, a long-term care facility operated by Island Health. Whether he knew this or not, Premier Horgan was literally right next door to where a Qualicum Beach woman is reportedly wrongfully confined and being kept in lock-down by the government he leads.
Second Opinion QB is still seeking information from Island Health to confirm the validity of the “automatic” publication ban that resulted after Island Health argued that Eileen Wicks legal case is a “family matter.” Family matters are cases involving divorce and child custody and, as such, the identity of those families are understandably protected from public scrutiny by an automatic publication ban.
Several lawyers and a judge have said that they do not believe that an automatic publication ban applies to the Wicks’ case.
The Wicks case involves alleged wrong-doing by the Vancouver Island Health Authority — a public body, not a family member. Neither Eileen nor her husband Trevor Wicks have asked for any protection from disclosure. Indeed both husband and wife object to any publication ban. Island Health is the party that sought and obtained the publication ban, arguably for the purpose of preventing disclosure of their alleged wrong-doing in the serious matter of unlawful confinement.
The Right to Know undermined by our governments
In an ironic coincidence, this past week, September 26 – October 2, 2022, was Right to Know Week, celebrating the rights of citizens in Canada to access information held by public bodies and showcasing the benefits of open, accessible government.
“[T]he differences between dictatorships and democracies are clear,” writes Sylvia Stead, public editor of The Globe and Mail in an opinion piece published March 16, 2022, “and one key difference is a free press working to report the truth.”
Another key difference is the ability of citizens in a democracy to speak the truth without fear of reprisal. Unlike Russian citizens — who, if they call the invasion of Ukraine a war, will be prosecuted by their courts and jailed — Canadians are free to speak their minds. Or so we believe.
“When you think of a dystopian society in which unelected government officials control what you can say, you probably think of George Orwell’s grim cautionary tale Nineteen Eighty-Four,” wrote the Toronto Star editorial board on September 24, 2022. “But there is another way for the government to shut down freedom of expression: Let people say whatever they want, but control whether anyone hears them.”
The Toronto Star editorial board made this statement in opposition to the federal government’s vigorous efforts underway now to pass Bill C-11, legislation that the Toronto Star and many others believe will harm the public’s ability to speak their minds and to obtain information.
Effusive media kits celebrating Right to Know Week present a sugar-coated, shimmering image that bears little resemblance to life in the real world in Canada today.
“Accountability is a key element of democratic forms of government,” said Michael McEvoy, BC’s Information and Privacy Commissioner, in a press release dated September 28, 2022. “Robust access to information laws is one of the most important measures to ensure accountability, offering citizens a window into what public bodies are doing. BC’s access to information laws help provide that accountability, but are only part of the story when it comes to supporting a citizen’s right of access. As we celebrate Right to Know Week, I continue to strongly encourage public bodies to proactively disclose more categories of records to shine greater light on government actions.”
Unfortunately, the government of British Columbia has embedded escape hatches in many of its laws that enable government agencies and their personnel to act with utter impunity shielded by laws that the public is scarcely aware of. As we have written previously about B.C.’s draconian Adult Guardianship Act, democracy dies in the darkness.
One of the 10 principles of the Right to Know that the BC government professes to adhere to is “the public interest takes precedence over secrecy.” Yet, the Vancouver Island Health Authority has steadfastly denied the local Qualicum Beach couple access to the most basic information (her medical records) requested under B.C.’s Freedom of Information and Privacy Act, a promise Island Health made twice and reneged on twice — once to the couple’s MP Gord Johns and once to Eileen Wick’s former lawyer.
When you need to rely on it most, this hallmark of Canadian society vanishes like a mirage in the desert.
On a lighter note, veteran Vancouver journalist Bob Mackin laughed when he received notice on September 28 — during Right to Know Week — that the City of New Westminster hired a lawyer to try to ban him from asking for information, requesting an order from BC’s Information and Privacy Commissioner to restrict Mackin to a single FOI request per year.
Bob Mackin tweeted, “So, New Westminster doesn’t like me asking so many questions about why the fire chief disappeared last October and how much the city manager spends on her expense account. Instead of just showing me, they hired a lawyer and want to ban me!
“I’ve filed 23 #FOIA requests to @New_Westminster New Westminster in 2022. It’s my #RightToKnow (and report) what the fire chief and city manager said to each other. Royal City acts like a monarchy, rather than open government in a democracy.
“Then I got a letter from the city hall lawyer. Just following orders of the city manager/FOI department head? I reminded him that his licence says: “a lawyer should not aid, counsel or assist any person to act in any way contrary to the law.”
Pablum for the locals
Back home in Qualicum Beach, we noted that PQB News featured a column by editor Philip Wolf on September 7, just in time for the election season, relaying concerns that “there is a lack of respect, a loss of civility, an absence of critical thinking… so much polarization, refusal to engage in respectful debate…” Though, about his own interactions with people he writes, “the civility remains.”
Wolf concludes his column by urging readers to “be kind and respectful to one another” and to “take a break and have some fun…”. The subtle theme here is “move along people, nothing to see here.”
While Wolf’s piece may seem like an innocuous “feel-good” article designed to lift spirits, this is a common tactic used by some media to discourage criticism or throw shade on anyone who criticizes the status quo — especially when published by the dominant media outlet in our area in the lead-up to an important election — after four years of arguably the most divisive and disrespectful conduct by members of Council (rivalling that of Nanaimo’s infamous reputation for bullying, threats and lawsuits in 2016-17).
John Ivison, writing on July 9, 2022 in the National Post about federal government dysfunction, offered some wisdom that could apply to all levels of government.
Pointing to a cynicism within the bureaucracy, Ivison says “many politicians, political staffers and public servants sense the empty-headedness and smell the rot. They are resigned to the debasement of our politics by a government that is, in H.L. Mencken’s memorable phrase, ‘a broker in pillage’ — a collection of individuals whose only talent is getting and holding office…”
He continues, “The real blame lies with Canadians who vote in sufficient numbers to reward those who manipulate short attention spans and exploit the desire for immediate gratification.”
The antidote is to speak up, to vote, and to demand better from those who use our votes to gain and wield enormous power over our lives.