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Province introduces legislation to protect dissident speech

VANCOUVER—Alan Dutton is still $4,000 in debt from when he was taken to court by Kinder Morgan for speaking out against the Burnaby Mountain project in 2014.

It’s a small chunk compared to the thousands the retired professor has paid off in legal fees so far, for defending himself in court against allegations that he defamed Kinder Morgan through posts on Facebook and comments to the press as a spokesperson for Burnaby Residents Opposing Kinder Morgan Expansion.

Alan Dutton was sued by Kinder Morgan in 2014 for $5.6 million, for allegedly defaming the company through posts on Facebook and comments to the press opposing the Burnaby Mountain pipeline. He is pleased that the province is introducing legislation to protect people from similar types of legal action. (JENNIFER GAUTHIER / STARMETRO)

“Simply because of my vocal opposition to the project and my writing, I was sued for $5.6 million,” Dutton said. “It cost me tens of thousands to defend myself in court.”

Dutton was one of five people sued by Kinder Morgan for defamation, and he was the only one who continued to fight them in court over what he believed was a lawsuit intended to silence opposition to the project.

Now, legislation has been introduced to prevent people like Dutton from racking up legal bills for expressing dissenting opinions on matters of public interest. On Tuesday, the province introduced the Protection of Public Participation Act, which is meant to protect against costly and unfair lawsuits that can silence critics. These lawsuits are commonly known as strategic lawsuits against public participation, or SLAPP suits, and a case is usually identified as a SLAPP when it involves a powerful group that uses legal action to have silencing effect on dissenting opinions.

Dutton, as well as free speech organizations, are expressing relief that the legislation is being introduced.

“I am so happy, along with all the other people who have been charged, that constitutional charter rights for freedom to protest is going to be protected in B.C.,” said Dutton.

While the Burnaby case is thought to be one of B.C.’s most high profile SLAPPs, there have been many others. Josh Paterson, executive director of the British Columbia Civil Liberties Association (BCCLA), said that due to the silencing nature of these types of litigation, it is impossible to know the full impact of SLAPP suits on free expression.

“A lot of this happens underneath the nose of public and media,” Paterson said. He said that a lot of these cases start with people “receiving threatening letters from lawyers,” and while they don’t always end up in court, it has an overall silencing effect.

“I’ve spoken to many people who are afraid to get involved, to write letters to the editor, to speak up at city council,” he said. “That’s just unacceptable in a democracy.”

It is the first time in 17 years that anti-SLAPP legislation is being considered by the provincial government. The BCCLA, along with other groups and advocates of free expression, have been calling for this since 2001, when similar legislation was enacted by the NDP, but was repealed just five months later by the incoming BC Liberal government.

B.C. Attorney General David Eby said the proposed legislation will allow for greater freedom of expression in the province because defendants can bring up the possibility of a SLAPP at the start of trial.

“You can go through a multi-year court action and win, but that’s not available to many people because its expensive,” Eby said. “This gives people who are sued some chance to go to court to say you are trying to promote public interest.’

Under the proposed act, defendants will not have to prove that the intent of the legal case against them was to silence them — just that it had a silencing effect.

“For many people there’s not a smoking gun, there’s nothing on paper that says ‘we’re suing this person to shut them up’ ... but that is the effect of the legal threat,” Eby said.

But the bill won’t protect against all forms of protest, only “things you may say or write,” Eby said.

If passed, the act would make B.C. only the third province to have anti-SLAPP laws, after Ontario and Quebec.

Dutton is hoping that the federal government will eventually introduce national legislation against SLAPPs.

“National protection is so important — seven provinces don’t have any protections,” he said. “And when freedom of expression is denied people have fewer options.”

Cherise Seucharan is a Vancouver-based reporter covering health and safety/youth. Follow her on Twitter: cseucharan