Greenpeace today joined environmental groups endorsing a proposed new law that would defend Ontarians’ rights to speak out on issues of public interest without fear of high-cost lawsuits meant to intimidate them.
Hours before the unexpected resignation of Premier Dalton McGuinty and the suspension of the legislature, Yasir Naqvi, Member of Provincial Parliament for Ottawa Centre, tabled a private member’s bill – the Protection of Public Participation Act – that targets just such lawsuits. Was the bill intended to wither on the vine with full knowledge that it would run into a suspended legislature? Quite probably. Very cynical.
Nonetheless, this sleight of hand brought to attention an often overlooked issue. Called strategic lawsuits against public participation (SLAPPs), these lawsuits are intended to censor, intimidate and silence critics by burdening them with the cost of a legal defence until they abandon their opposition. The plaintiff’s goals are accomplished if the defendant abandons a cause to fear, mounting legal costs or simple exhaustion.
A SLAPP will also intimidate others from taking up a fight. It is a tool increasingly used by large corporations in Canada to silence and intimidate opposition to environmental destruction and other activities detrimental to the public good. Even if a SLAPP suit never goes to court, corporations win by draining resources needed by activists and their organizations to fight against corporate power.
Some background to today’s welcome development: in 2010 the government of Ontario convened an Advisory Panel to provide recommendations to the Attorney General regarding anti-SLAPP legislation in this province. Quebec and more than half the U.S. states have already passed legislation to tackle this problem. Greenpeace’s submission to the Panel defended Charter rights to free expression and assembly, and called for the government of Ontario to fulfill its responsibility to defend these rights against wealthy private parties.
In his oral submission to the Panel, Greenpeace Canada Executive Director Bruce Cox argued passionately that public debate should be encouraged, not punished in a democracy. Money might give you access to high power lawyers but it can’t trump free speech.
The Panel, chaired by University of Toronto Law School’s Dean Mayo Moran, concluded after much deliberation that the threats of lawsuits for speaking out on matters of public interest, combined with a number of actual lawsuits, were already deterring significant numbers of Ontarians from participating in discussions on such matters. This required urgent action from the government of Ontario to legislate against “the use of legal processes that affect people’s ability or willingness to express views or take action on matters of public interest”.
The bill belatedly and briefly tabled by Naqvi in the hours before the legislature was suspended (and after his government had sat idle on the Panel's clear advice for two years) largely adopts the Panel’s recommendations, which include a faster process for dismissing SLAPPs, strong disincentives for initiating them, and guidelines for judges on how to identify them.
The threat posed by SLAPP suits is a bipartisan issue and Greenpeace calls on all parties to treat serious proposals, when they emerge at some future point, to address it as such. Legislation to prevent lawsuits from silencing ordinary Ontarians has attracted broad public support from organizations as diverse as the Association of Municipalities of Ontario, Ontario Bar Association, Greenpeace and the Canadian Civil Liberties Association.In stopping SLAPP suits, we shall see to what extent our political representatives are willing to really stand up for ordinary Ontarians.
One outstanding issue which remained unaddressed by the Panel and in the recent proposed legislation is the need for legal or financial assistance to be provided to SLAPP victims at the earliest possible stage in proceedings, given the real risk that many people will not have the funds to even challenge a SLAPP suit and therefore choose to remain silent on important public issues.
Supporting legislation as proposed by the Panel of experts would be an excellent first step for the province of Ontario and the rest of Canada. British Columbia was the first province to enact anti-SLAPP legislation, in 2001, only to see it repealed shortly after a change of government. I need hardly note that B.C. and now Ontario have elections just around the corner…
Bottom line: politicians of all stripes should get behind anti-SLAPP legislation. When a company sues an organization or individual in order to intimidate them, we all lose. Canada needs people unafraid to advocate for a healthier and more vibrant society.