The Supreme Court of Canada last week agreed to hear the motion of Éditions Ecosociété and the authors of the book Noir Canada to repatriate to Quebec a $5M libel lawsuit instituted against them by Banro Corporation in the Superior Court of Ontario. Banro is a Canadian-based gold exploration and development company with mining operations in the Democratic Republic of the Congo.
Écosociété, a small publisher based in Quebec, and academics/authors Alain Deneault, Delphine Abadie and William Sacher are now facing two lawsuits over the publication of Noir Canada. The Canadian mining corporation Barrick Gold is also suing them in Quebec for $6M on nearly identical grounds. Noir Canada provides a chilling account of the controversial role of Canadian corporations in Africa, based on credible documentation, such as United Nations reports or publications by organizations such as Human Rights Watch and the Pole Institute.
Écosociété and Noir Canada’s authors hope to defend Banro’s frivolous, unwarranted and grossly disproportionate legal action in Quebec, where they can avail of the protection offered in the province against a lawsuit of this nature, known as Strategic Litigation Against Public Participation (SLAPP). SLAPP suits refer to:
Lawsuits undertaken against organisations or individuals who are engaged in the public sphere and discussing issues of public interest, aiming to limit the scope of freedom of expression of these organisations and individuals and to neutralize their action by using the courts to intimidate them, impoverish them, and deter them from public action.
In short, SLAPP suits involve using the courts for the purpose of intimidation and to shift the forum from public debate to private court action – a situation where a corporation or other wealthy third party has far more resources. In the Écosociété case, this is vividly demonstrated by a small publishing house valiantly battling not one, but two mining giants.
By shifting the forum from public debate to legal battles where financial wealth, rather than rational argument, will prevail, corporations not only rob individuals of their ability to speak their mind, they also eviscerate deliberative democracy. It is Greenpeace’s fundamental position that each person has the right to make her opinions known regarding matters of public interest on an equal footing with any corporate entity.
Imbalance of arms
As a victim of numerous SLAPP actions, Greenpeace made a submission in August 2010 to the Attorney General of Ontario’s anti-SLAPP Advisory Panel, calling for anti-SLAPP legislation to protect Charter rights to free expression, conscience and assembly against wealthy private parties. In our submission, we also argued along with many others that the immediate provision of financial or legal resources to victims of SLAPP suits is urgently required. We made a similar, though unheeded, observation in our submission prior to Quebec’s own anti-SLAPP law reform. Fighting 2 lawsuits in 2 languages in 2 provinces with 2 legal syatems must be a nightmare for Écosociété and Noir Canada’s authors. Without legal assistance, it is unclear how long they can hold out.
Ontario not the appropriate jurisdiction
In any case, it makes sense for the case to be repatriated to Quebec, since Noir Canada was written in Quebec, in French, for a Quebec audience and published by a Quebec publisher. Incredibly, the Ontario courts decided in February 2009 that the lawsuit could be filed in Ontario despite the fact that only 83 copies are circulating in Ontario. This means covering the legal costs involved in fighting lawsuits in two provinces – a logistical and financial horror for anyone without a corporate war chest.
Quebec’s anti-SLAPP legislation was an “Act to… promote freedom of expression and citizen participation in public debate.” Ontario’s anti-SLAPP panel recently recommended legislation with a title such as the “Protection of Public Participation Act.” There is a clear consensus that SLAPP suits, such as those taken against Écosociété, pose a mortal threat to public participation – the bedrock of democracy.
The term “public participation” is a broad but vital one. It reflects a range of fundamental rights such as the right to information, the right to protest, academic freedom, freedom of speech, freedom of assembly, freedom of conscience and freedom of the press. Unless we are free to exercise all of these rights and thereby engage without fear in the public forum, democracy cannot exist. This is what we mean by “public participation” and we must protect it. In the word of former Supreme Court Justice William McIntyre:
Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection.
Banro and Barrick’s lawsuits are not only financially crippling Écosociété and silencing the academics who produced Noir Canada – they also attack all of our civil liberties. To date, 299 Canadian university professors have signed a petition insisting that:
Academics and intellectuals need to be able to contribute their critical viewpoints without having to do so in a climate of fear.
We agree. If Écosociété cannot publish materials bringing to the Canadian public’s attention the harm caused by Canadian mining companies, then can other organisations, like Greenpeace, continue to speak out about environmental abuses around the world? Is speaking truth to power now entirely prohibited in this country?
Éric Darier is the Director of Greenpeace in Quebec
Shane Moffatt is a legal and communications assistant with Greenpeace Canada, based in Toronto
Pour lire en Français, veuillez voir: http://www.greenpeace.org/canada/fr/Blog/david-contre-le-goliath-des-mines/blog/33190
For Greenpeace Canada’s submission to Ontario’s Advisory Panel on anti-SLAPP reform, see: http://www.greenpeace.org/canada/Global/canada/report/2010/8/GP%20Submission.pdf
For the Advisory Panel’s final report to the Attorney General of Ontario, see: http://www.attorneygeneral.jus.gov.on.ca/english/anti_slapp/anti_slapp_final_report_en.pdf
For the academic petition in support of Écosociété and the authors of Noir Canada, see: http://www.freespeechatrisk.ca/academic-petition/
To find out more, and to support Écosociété, visit: http://slapp.ecosociete.org/en/
 In 2003, 53% of the active mining companies in Africa were Canadian.
 The comprehensive definition adopted by the vast majority of public interveners in the development of anti-SLAPP legislation in Quebec.
 Not incidentally, as a signatory to the International Covenant on Civil and Political Rights, Canada has a further legal obligation to guarantee that these freedoms are ensured against all parties, including corporations.