Protecting the public interest GUARDIAN FILE

ANTI-SLAPP legislation would help P.E.I. government's stated goal of transparency

Finance Minister Jill Burridge has presented the provincial government’s 2024-25 budget which highlights the considerable challenges facing Islanders. The idea of "public interest" was a theme that ran through the government's speech from the throne.

It reads, in part, “… while my government embarks on this journey, it will not forget the promise they made to Islanders during the most recent democratic exercise – to always engage with our citizens and listen to their needs and concerns. It is programs that truly benefit Islanders. This means building trust and respect and creating a culture of transparency and accountability.”

CULTURE OF TRANSPARENCY

Creating a “culture of transparency” raises the question of how a government actually determines, and protects, the "public interest," especially in an environment of complex, competing policy challenges across ministerial mandates.

Legally, public interest is “anything affecting the wellbeing, the rights or finances of the public at large,” basically that which benefits the welfare of a society rather than the welfare of private interests.

Importantly, is public interest determined through A: opportunities for public discourse which invite debate on government policy agendas, as well as B: respects and protects the voices of opposing views on the nature of those policies as well as how those policies will be implemented and regulated over a government’s mandate.

DISSENTING VOICES

In recent months, however, there have been examples of issues in the public interest which have tested the idea of a culture of transparency resulting in the the issue becoming secondary to the character and motives of the dissenting voices.

Two development proposal disputes; the placement of the Community Outreach Centre; closures at the Prince County Hospital; and the building of the UPEI medical school have all sparked important public discourse. Unfortunately, they have also sparked more than the expected frustrated finger pointing, by publicly questioning the integrity of senior public officials, the "negativity" of an employee union; the concerns of a recognized community developer; and the democratic right of an environmental advocacy coalition. The latter has resulted in a lawsuit for simply asking questions, which is a tactic to silence debate as well as undermine the public interest in the name of "progress."

SILENCING DEBATE

The lawsuit in question arose following a coalition of organizations filing an appeal with the Island Regulatory and Appeals Commission (IRAC) regarding a development decision. Given the sensitivity on P.E.I. to land use and protection (public interest!) and the projected future impacts of climate change on our shorelines and wetlands, public concerns and the need for government regulatory policy action will only increase differences of opinion.

However, following the submission to IRAC, a statement of claim was filed by a developer stating the group had conspired to harm the developer by preventing the development of the property. What does this have to do with public interest? Everything!

According to the Centre for Free Expression, strategic lawsuits against public participation (SLAPP) are used by individuals, corporations, or others to intimidate and silence critics by forcing them

In recent months, however, there have been examples of issues in the public interest which have tested the idea of a culture of transparency ...

into legal battles that would be extremely costly and time consuming to fight. This notion corresponds with input from representatives of advocacy groups on P.E.I. that a culture of public participation, well-honed by Islanders, could become a culture of silence on matters of public interest. It can be intimidating to think that a lawsuit levied by someone with power and wealth, could mean the loss of your home and assets if successful.

SLAPP PROTECTION

The Province of Ontario, Canada’s corporate heartland, developed and passed the Protection of Public Participation Act in 2015. The act has survived challenges all the way to the Supreme Court of Canada and was copied by British Columbia in 2019. The Ontario act is considered to have the best protections against frivolous, harmful lawsuits anywhere in the world. Similar legislation has also been passed in 33 U.S. States.

“ANTI-SLAPP” legislation is designed to allow defendants to bring forward a “motion to dismiss” at a very early stage of the litigation if that lawsuit qualifies as a SLAPP. The defendant must satisfy the judge that the proceeding arises from an expression made by the defendant that relates to a matter of public interest. The plaintiff also has recourse and must prove the defendant has no valid defence in the proceeding, and that the harm to the plaintiff will be greater than the benefit to the public interest.

DISCOURSE NOT LITIGATION

Societies that use litigation or other intimidating means for resolving differences have basically adopted a zero-sum game approach with a "fireready-aim” mentality. Like most Institutions that serve the public, our court system is already challenged to hear cases in a timely basis without the further distraction of selfserving allegations.

Given the limited geography of P.E.I., the projected population growth, and our shrinking degrees of separation, the probability that tensions between the three forces of government policy and public interest and private developments will likely only increase across sectors.

Mark Twain may have inadvertently framed the future of land protection policy when he said, “Buy land, they are not making any more of it.”

So, given the public policy complexities contained in Minister Burridge’s budget statement and the auditor general’s report, where he outlines concerns about special warrants approved outside of debate in the legislative assembly, a culture of transparency to foster public participation is needed now more than ever.

Public participation cannot be silenced to serve corporate or private interests and it is heartening to hear the Finance minister support the push to improve transparency across her government. We need, however, to call on the Minister of Justice, Public Safety, and Attorney General Bloyce Thompson to review the Ontario Protection of Public Participation Act as a tested means for encouraging Islanders that it is safe to play a participatory and responsible role in public life. Such legislation is a progressive action, which will help present and future governments to better sustain a culture of transparency and protect our public interest.

Doug Crossman, of Rustico, P.E.I. is retired from a career that included roles as executive director with Mental Health Nova Scotia, regional director with Mental Health Services, Western Nova Scotia, and senior policy analyst, Public Health Agency of Canada.