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New law takes the starch out of attempts to suppress critics

This month, B.C.’s Protection for Public Participation Act because Canada’s first anti-SLAPP legislation, and perhaps one of North America’s most robust and innovative laws of the type.

British Columbians know that lawfully participating in the political life of this province can be a risky business. SLAPPs  (Strategic Lawsuits Against Public Participation) aim to penalize citizens for participating in public affairs and to deter others. They have often targeted local residents, citizens’ councils, municipal governments, neighbourhood groups and protesters, who might be sued by developers for reporting bylaw violations, speaking at municipal meetings or even for picketing and circulating petitions.

The favoured causes of action are “defamation” or “tortious interference with contract”. The purpose of such lawsuits is not to have the case heard by a judge (who would dismiss it), but rather to force the critic to either shut up, or pay tens of thousands of dollars to take the matter to court. Hence the term “strategic”.

Few legislative initiatives can claim the breadth of support—urban and rural, left and right, communities large and small—that exists across North America for a SLAPP antidote. In B.C., its most active proponents over the past seven years include such diverse groups as the B.C. Federation fo Labour, the Union B.C. Municipalities and the B.C. Civil Liberties Association.

It is not surprising that the Act has been challenged by Opposition politicians, including justice critic Geoff Plant; that is his job.

However, it is also appropriate to explain why many lawyers, academics and civil libertarians do not share his concerns.

Mr. Plant’s criticisms are threefold.

First, he suggests SLAPPs are not a problem worth addressing.

Alternatively, he says that, if there is a problem, our judicial system is amply equipped to handle it.

Finally, he raises the spectre of the new legislation restricting access to the courts for citizens with legitimate concerns.

We believe SLAPPs a pressing problem that deserves our attention.

The pervasiveness of SLAPPs is difficult to measure, because most will achieve their goals of silencing criticism long before they ever get before a judge.

These suits fly beneath the radar of public consciousness, escaping the notice of judicial reporters and media generally, but have a profound censoring effect. While the SLAPP virus in B.C. has not spread to the debilitating extent that it has in the United States (where close to 20 states have now enacted anti-SLAPP laws), this is not a reason for complacency.

Existing legal rules were not designed with SLAPPs in mind, and often make it difficult for targets to have meritless claims dismissed until after years of litigation.

SLAPP targets cannot defend themselves by relying on the Charter of Rights, unlike the U.S. where targets can invoke the First Amendment.

The act changes this by giving citizens a new, legally recognized right to public participation. It not only protects communications to government (as similar U.S. laws do), but also lawful attempts to influence public opinion (including various forms of consumer action). It also better equips courts to identify and dismiss SLAPP suits early in the litigation process, penalize SLAPP filers and justly compensate innocent targets.

We do not believe the Act will lead to legitimate lawsuits being dismissed.

The Act carefully protects private rights by ensuring that the protected “public participation” does not include speech or activities that are unlawful or unreasonable infringements on others’ rights. Indeed, ours were among the voices that criticized an earlier government proposal on the basis, among other things, that it did not adequately balance private and public rights.

In any healthy democracy, citizens must be free to fulfil their duties as public actors; when they vote, certainly but also when they participate in the thrust and parry of vigorous public debate.

This is not to say that there must be an open season during such discourse. The Act is not about fostering a “protest culture”, to borrow Mr. Plant’s colourful phrase. It does not protect those who defy court orders, engage in criminal conduct or harm people or property. It does not assist those whose statements are motivated by malice or are beyond the scope of legitimate public debate.

The Act clearly prescribes that its twin purposes are to encourage public participation and to preserve the right of access to the courts for legitimate claims.

We are confident that courts will be mindful of these purposes when interpreting and applying the Act in a manner that affirms our democratic culture by protecting public rights when those rights are put at risk by baseless censorship in the guise of private litigation.

Chris Tollefson is a professor of law at the University of Victoria; Craig Jones is an adjunct professor of law at the University of B.C. and a member of the B.C. Civil Liberties Association’s board of directors.