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What We Won for Free Expression at the Supreme Court of Canada

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In an important victory for free expression rights, the Supreme Court of Canada has issued strong rulings supporting the broad scope of Ontario’s anti-SLAPP suit law. The BCCLA intervened in these significant court cases to support freedom of expression and to discourage litigation by powerful private actors that curbs the free expression of citizens in important public interest debates. The BCCLA was represented by pro bono counsel Maia Tsurumi, Barrister and Solicitor, and Peter Kolla of Goodmans LLP. Peter Kolla, reflects on the importance of these cases.

On September 10, 2020, the Supreme Court of Canada released its decisions in 1704604 Ontario Ltd. v. Pointes Protection Association and Bent v. Platnick. These cases addressed the Supreme Court of Canada’s interpretation of Ontario’s “anti-SLAPP” legislation.  Strategic lawsuits against public participation, known by the acronym “SLAPPs”, are legal proceedings brought not to advance a real claim, but rather to try to chill freedom of expression and prevent people from participating in public debates on matters of public interest.

Recognizing the harm caused by SLAPPs to freedom of expression on matters of public interest, the governments of Ontario, British Columbia and Quebec have passed laws aimed at stopping SLAPPs. These laws, known as anti-SLAPP legislation, provide defendants with an expeditious route to have those lawsuits dismissed at an early stage. 

The BCCLA has long been a proponent of anti-SLAPP legislation.  When two cases about the interpretation of Ontario’s anti-SLAPP legislation were heard by the Supreme Court in November of 2019, the BCCLA intervened in the proceedings in support of a robust interpretation of the legislation that would provide broad protection to freedom of expression on matters of public interest.  These cases were the first time that the Supreme Court, Canada’s highest court, has interpreted anti-SLAPP legislation.

In its decisions, and in particular the Pointes Protection case where a unanimous Supreme Court set out the principles for how to interpret the Ontario legislation at issue, the Supreme Court powerfully endorsed the importance of protecting freedom of expression on matters of public interest

Important aspects of the Supreme Court’s analysis were consistent with the points argued by the BCCLA, which focused its submissions exclusively on the interpretation of the weighing provision in s. 137(4)(b) of the Courts of Justice Act.  The Supreme Court in Pointes Protection called that weighing provision “the heart of the legislation”, the “crux of the analysis”, and the “core” and “key portion” of the analysis. 

The Supreme Court specifically noted that the BCCLA had argued that this provision, which requires that two separate public interests be weighed against each other, should not be called a “balancing exercise”.  The BCCLA argued the express statutory language did not seek to balance those two public interests (which would undermine the protection to freedom of expression on matters of public interests), but rather to weigh them and if they are equally balanced then the expression wins.  The Supreme Court agreed, holding:

Here, the provision expressly requires that one consideration “outweig[h]” the other. I am of the view that this is substantively different than if the statute had required that the two considerations be balanced against one another. The difference can be illustrated by the following quantification of weighing and balancing: where one factor must outweigh the other, the ratio between the two must be at least 51/49; in contrast, where one factor must be balanced against the other, a ratio of 50/50, or even 45/55, might be sufficient for a judge to rule in favour of the former. The word “outweighs” necessarily precludes such a conclusion. [emphasis in original]

The Supreme Court’s ruling was also consistent with other points argued by the BCCLA. 

The BCCLA had argued that it was incorrect to supplanted the weighing exercise required by the legislation with four “indicia of a SLAPP suit”, as that would incorrectly curtail the broad protection to freedom of expression on matters of public interest set out in the legislation.  The Supreme Court’s decision said that that such indicia must be tethered to the text of the statute, and articulated a broad range of factors – not just four – that could be considered in the weighing exercise. 

The BCCLA also  argued that the Supreme Court should adopt an approach to the weighing analysis by assessing, on a spectrum from low to high, the two public interests.  The Supreme Court used the “spectrum” language in performing the weighing analysis. 

Finally, the BCCLA had argued that it was proper for courts when conducting the weighing analysis to look at the motive and quality of the expression at issue, and the Supreme Court’s decision is consistent with that position.

Hopefully the Supreme Court’s decision will have two additional effects.  First, it could encourage other provincial governments to pass laws protecting freedom of expression on matters of public interest.  Second, it could encourage people to speak out on matters of public interest, with less fear that they will be targeted by a SLAPP lawsuit as a result of their expression. 

As Justice Suzanne Côté held for the Supreme Court in the unanimous ruling  in Pointes Protection, in a passage that highlights the importance of freedom of expression, “Strengthening the integrity of the justice system by encouraging truthful and open testimony is inextricably linked to the freedom of participants to express themselves in the forums concerned without fear of retribution.”

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