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Protecting Democratic Rights in Canada

The province of British Columbia faces a growing problem. Like other areas of the world, large powerful corporations are increasingly using strategic litigation to silence, intimidate and block public participation. Unlike Quebec and Ontario, the province of BC does not have legislation to prevent the attack on civil and political rights and the Canadian Charter of Rights and Freedoms offers no protection of freedom of expression, assembly or access to justice to private parties (e.g., citizens versus corporations). The courts also offer little protection since Judges are biased towards allowing cases to be tried on the basis of evidence. In the case of strategic litigation, however, the aim of the corporation is not to win at trial, but to destroy the opposing citizen’s group or citizen through long protracted and very expensive legal proceedings. The remaining avenue for justice and the protection of civil and political rights is the United Nations International Covenant on Civil and Political Rights to which Canada is a signatory. The following outlines the impediments and avenues to achieving civil and political rights in Canada.

1. Strategic Lawsuits Against Public Participation

SLAPP suits undermine and subvert democratic rights and the democratic process. The Charter of Rights and Freedoms does not protect protestors and critics and the courts impose a huge burden to achieve any sort of justice and redress.

In a recent scholarly study of SLAPP suits and the democratic process in Canada, Normand Landry (2014) notes, that SLAPP suits “constitute a strategy of utilizing judicial processes to sideline political activism and block political expression.” In fact, SLAPPs are an attempt to intimidate, silence and block public participation in the democratic process through fear of massive lawsuits and expensive legal proceedings.

To have a lawsuit alleging defamation, conspiracy, etc., dismissed, a target of a SLAPP suit must prove on the balance of probabilities that a suit was filed for a malicious purpose such as to silence a person on a matter of public concern or to stop them from demonstrating. To prove malicious intent against a large corporation with almost unlimited resources is difficult at best. In short, it is very difficult and expensive to have a SLAPP suit dismissed in Canada even if there is no credible proof that a lawsuit is an abuse of process, malicious and without factual basis. This is unlike the United States where over half the States have specific anti-SLAPP legislation and First Amendment rights to free speech that provide rules for the better protection of the right to protest and speak out against government agencies and corporations. (Landry, 2014)

Many legal scholars in Canada now advocate anti-SLAPP legislation to curb the power of corporations to block public participation. An increasing number of SLAPP suits across Canada resulted in the passing of anti-SLAPP legislation in Quebec in 1996, the tabling of legislation in Ontario in 2010 and in BC in 2015. Legislation was finally enacted in Ontario in late 2015, but the BC legislation did not go to second reading. BC was the first province to adopt anti-SLAPP legislation in 2001 but the incoming Liberal government quickly dismissed it. Geoff Platt, who has the distinction of being the Attorney General at the time, spoke against the legislation and now represents a corporation suing a number of citizens for defamation over a proposed garbage site in Nicole Valley.

2. Strategic Lawsuits and the Charter of Rights and Freedoms

Everyone in Canada should have the protection of the Charter of Rights and Freedoms to freely voice their concerns about public matters and they should have the right to organize peaceful public demonstrations. But they don't. Freedom of speech, assembly, access to justice, the right to information and the right to participate in public affairs are all under attack and not protected by the Charter when those rights come into conflict with powerful corporations.

The Charter of Rights and Freedoms is part of the Canadian Constitution and while it is supposed to protect citizens against government it is not generally applied to disputes between private parties – as between citizens and corporations.

Freedom of thought, belief, opinion and expression, including freedom of the press and other media or communications are guaranteed by Section 2(b) of the Charter and freedom of peaceful assembly by section 2(c). However, unlike the First Amendment to the US Constitution, the Canadian Charter of Rights and Freedoms applies only to protection from government intervention since the Charter applies only

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon territory and the Northwest Territories; and

(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

The courts have interpreted the Canadian Constitution as a tool that is supposed to protect the citizens of the country from their government and not as a set of norms to regulate the behaviour of citizens with each other or the behaviour and rights of citizens versus huge corporations. This leaves Canadians vulnerable to strategic lawsuits against public participation.

3. United Nations Civil Rights Protections

The right to a fair and equitable trail is guaranteed by the International Covenant on Civil and Political Rights as are the right to freedom of expression (S. 19) and the right to participate in public affairs (Article 25).

Canada is a signatory to the Covenant defines the right to freedom of expression as:

“Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of choice.”

Article 25 of the International Covenant on Civil and Political Rights defines the right to participate in public affairs and the United Nations Human Rights Committee clarified the provisions in article 25. The Committee stated:

“Citizens may participate directly by taking part in popular assemblies which have the power to make decisions about local issues or about the affairs of a particular community and bodies established to represent citizens in consultation with government (Para. 6) …

“Citizens also take part in the conduct of public affairs by exerting influence through public debate and dialogue with their representatives through their capacity to organize themselves. This participation is supported by ensuring freedom of expression, assembly and association. (Para. 8)

“In order to ensure the full enjoyment of rights protected by article 25, the free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media to comment on public issues without censorship or restraint and to inform public opinion. (Para. 26)”

The United Nations Human Rights Committee serves under the auspices of the Office of the United Nations High Commissioner for Human Rights and was established by article 28 of the International Covenant on Civil and Political Rights. It’s mandate includes receiving and reviewing communications from citizens who say they have been victims of violations of the rights outlined in the Covenant as well as monitoring its application.

Canadians must therefore look to the United Nations Human Rights Committee for protection against SLAPP suits.

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1. Normand Landry, Threatening Democracy: SLAPPS and the Judicial Repression of Public Discourse. (2014).

2. In the high profile case of Dutton v. Trans Mountain the defense argued that there was no evidence whatsoever linking Dutton to any violence and that he was included in the $5.6 million lawsuit with four other defendants solely on the basis that he was a prominent organizer and spokesperson against exporting oil through a protected conservation area and a fragile ecosystem. http://www.burnabynow.com/opinion/editorial/alan-dutton-s-case-raises-al...

3. Scott, Michaelin and Chris Tollefson, “Strategic Lawsuits Against Public Participation: The British Columbia Experience”. (2010).

4. See, for example, “Breaking the Silence: The urgent need for anti-SLAPP legislation in Ontario.” Canadian Environmental Law Association. (2010).

5. The Supreme Court did, however, uphold the right of a union to demonstrate on public property. This is the only exception to the rule and legal scholars believe that it is unlikely that the case will set a precedent applicable to the prevention of SLAPP suits.

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