Vancouver Sun

Le­gal group calls for re­turn of anti-SLAPP leg­is­la­tion

- IAN MUL­GREW imul­grew@post­ Twit­­mul­grew U.S. News · Society · White-collar Crime · Canada News · Discrimination · Politics · Law · Crime · Courts · Human Rights · Supreme Court of Canada · U.S. Supreme Court · British Columbia · David Eby · Thompson Rivers University · Pacific Ocean · United States of America · New Democratic Party (Canada) · Quebec · Ontario · Washington · Guam · Taseko Mines Limited · Nanaimo · Leonard Krog · Ottawa · Frank Iacobucci · Ujjal Dosanjh · Wally Oppal · Joseph Arvay · University of British Columbia Faculty of Law · University of British Columbia · Burnaby · Western Canada Wilderness Committee · Williams Lake

A group of 15 le­gal lu­mi­nar­ies and schol­ars — in­clud­ing two for­mer Supreme Court of Canada jus­tices and two erst­while pro­vin­cial at­tor­neys gen­eral — is call­ing on the B.C. gov­ern­ment to pass anti- SLAPP leg­is­la­tion.

In an open let­ter to at­tor­ney gen­eral David Eby to be re­leased to­day, the blue-rib­bon le­gal pride says the con­tin­u­ing pres­ence of these abu­sive law­suits threat­ens con­fi­dence in the le­gal sys­tem and can re­sult in a sig­nif­i­cant waste of pub­lic and ju­di­cial re­sources.

“Plain­tiffs in strate­gic law­suits against pub­lic par­tic­i­pa­tion, or ‘SLAPPs’ as they are known, un­fairly tar­get in­di­vid­u­als or groups with strate­gic law­suits with the ef­fect of de­ter­ring them from speak­ing out on mat­ters of pub­lic in­ter­est,” read an ad­vance copy of the let­ter pro­vided to Post­media.

“De­fen­dants of SLAPPs are ex­posed to oner­ous fi­nan­cial and emo­tional costs in­curred in a process that at­tacks their in­di­vid­ual right to speak on mat­ters of pub­lic in­ter­est and chills cit­i­zen en­gage­ment more broadly. … Bri­tish Columbia needs to safe­guard the ad­min­is­tra­tion of jus­tice by en­act­ing ef­fec­tive an­tiSLAPP leg­is­la­tion.”

It is signed by for­mer Supreme Court of Canada jus­tices Ian Bin­nie and Frank Ia­cobucci, Uj­jal Dosanjh (for­mer premier and ex-at­tor­ney gen­eral), Wally Op­pal (for­mer B.C. Court of Ap­peal jus­tice and ex-at­tor­ney gen­eral), Lynn Smith (for­mer B.C. Supreme Court jus­tice), Carol Baird El­lan (for­mer B.C. pro­vin­cial court chief judge), lawyer Joseph Ar­vay, ex-lawyer and nov­el­ist William Deverell, dean of the Peter A. Al­lard School of Law Cather­ine Dau­vergne, and pro­fes­sors John Bor­rows (UVic), Val Napoleon (UVic), Chris Tollef­son (UVic), Ni­cole Sch­abus (Thomp­son Rivers Univer­sity), Joel Bakan (UBC), and David Boyd (UBC).

“It’s the right thing to do,” said Tollef­son, ex­ec­u­tive di­rec­tor of the Pa­cific Cen­tre for En­vi­ron­men­tal Law and Lit­i­ga­tion. “It’s be­come very main­stream, the idea that demo­cratic ex­pres­sion needs to be pro­tected . ... And we need to re­lieve the courts of these kind of suits by pro­vid­ing a pro­ce­dural means to iden­tify them and get them out of the sys­tem. It’s about restor­ing pub­lic trust and en­cour­ag­ing the pub­lic par­tic­i­pa­tion that these law­suits un­der­mine.”

An anti-free-speech tac­tic, SLAPP suits first ap­peared in the U.S. in the late 1980s in­tended to cen­sor, in­tim­i­date or si­lence crit­ics by sad­dling them with le­gal ex­penses and sap­ping pro­ce­dural de­mands. A high-pro­file 1999 case prompted the last NDP gov­ern­ment, un­der Dosanjh, to pass an anti-SLAPP law.

Af­ter the Lib­er­als won power in 2001, they re­pealed the Pro­tec­tion of Pub­lic Par­tic­i­pa­tion Act, the first law of its kind in Canada, say­ing it was un­nec­es­sary and would lead to a “protest cul­ture.”

Since then, Que­bec adopted a sim­i­lar law in 2009 and On­tario in 2015 to “al­low the pub­lic to par­tic­i­pate more freely in pub­lic dis­cus­sions with­out fear of ret­ri­bu­tion.”

In the U.S., 28 states, the District of Columbia and Guam have sim­i­lar statutes.

A case brought by Taseko Mines Ltd. and another — later aban­doned by Trans Moun­tain against five in­di­vid­u­als linked to Burn­aby pipe­line protests — re-ig­nited the B.C. de­bate over anti- SLAPP leg­is­la­tion.

NDP Nanaimo MLA Leonard Krog in­tro­duced an anti- SLAPP bill in 2015 that went nowhere be­cause the Lib­er­als still con­trolled the leg­is­la­ture.

In De­cem­ber, Taseko lost its ap­peal of a B.C. Supreme Court de­ci­sion toss­ing its suit against the Western Canada Wilder­ness Com­mit­tee over harsh crit­i­cism of its pro­posed New Pros­per­ity gold-cop­per mine near Williams Lake.

The com­pany ini­tially launched the lit­i­ga­tion to douse the com­mit­tee’s cam­paign against the $1.5-bil­lion mine (ap­proved by B.C. but twice re­jected by Ot­tawa), while deny­ing it was a SLAPP law­suit.

In his Jan­uary 2016 rul­ing, how­ever, Jus­tice Gor­don Funt dis­missed the firm’s claims and said they did try “to si­lence crit­ics on a mat­ter of pub­lic im­por­tance.”

The ven­er­a­ble sig­na­to­ries rec­om­mend leg­is­la­tion mod­elled on On­tario’s Pro­tec­tion of Pub­lic Par­tic­i­pa­tion Act.

“On­tario’s leg­is­la­tion reme­dies the prin­ci­pal de­fects of B.C.’s short-lived pre­vi­ous anti-SLAPP leg­is­la­tion, which re­quired de­fen­dants who at­tempted to use the mech­a­nism to demon­strate an im­proper mo­tive on the part of the plain­tiff,” the let­ter said. “As mo­tive is very dif­fi­cult to prove in civil suits such as the ones at is­sue, this thresh­old would gen­er­ally be in­sur­mount­able and was avoided in the On­tario leg­is­la­tion. It is not nec­es­sary to have a mo­tive re­quire­ment in place to en­sure that mer­i­to­ri­ous claims can pro­ceed while al­low­ing SLAPPs to be dis­missed at an early stage.”

On­tario’s leg­is­la­tion, they added, did just that: “The rem­edy we are urg­ing here is not costly, and in­deed, is likely to bring cost sav­ings in prop­erly pre­serv­ing limited ju­di­cial re­sources.”

 ??  ?? In Jan­uary 2016, a judge ruled that Taseko Mines tried to “si­lence crit­ics” of its New Pros­per­ity gold-cop­per mine near Williams Lake through a law­suit.
In Jan­uary 2016, a judge ruled that Taseko Mines tried to “si­lence crit­ics” of its New Pros­per­ity gold-cop­per mine near Williams Lake through a law­suit.
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