THE DEMOCRATIC REPORTER
Pages of Special Interest;
Other Table of Contents;
Most Canadians think that their government would be above using SLAPPs or the police and false charges to stop a community group but events around the Cawthra Bush issue prove them wrong. Members of our groups have been harassed by the police and City staff for just being on public land getting petitions signed. False records about our activities are routinely created by City staff and Peel police in order to justify escalating legal actions. The Peel police have been sent to my door by City politicians as they didn't like my "demeanor". The Peel police have also arrested a man for writing his MPP asking for medical help for a friend. In Mississauga, we have a 80 year Mayor who thinks there is a coup out to get her, so she takes any challenge to her power very personally and seriously. So, if blood is shed then, so much the better for her.
The below is provided to show a growing trend in using the law, wrongly, against those in the community who are doing what is right and another example of how some in Canada are following the worse of the USA's examples. Usually for some kind of gain. This trend should be taken in context with other changes in Canadian law to fully understand how seriously our rights and freedom have been undermined, in recent years.
From the INTERVENOR
THE NEWSLETTER OF THE CANADIAN ENVIRONMENTAL LAW ASSOCIATION - VOLUME 19, ISSUE 4 JULY / AUGUST 1994
SLAPPs: The Need for Legislative Reform
by Kevin Hawthorne
In Canada and the U.S., growing numbers of environmental conflicts are ending up before the civil courts. Citizens, activists and community groups who speak out against the environmental misdeeds of large companies are finding themselves the targets of carefully contrived civil tort actions, sometimes referred to as "Strategic Lawsuits Against Public Participation" (SLAPPs).
SLAPPs arise when non-governmental individuals and organizations are targeted with civil lawsuits due to their political advocacy. They are often filed by large organizations against individuals or local citizens' groups whose political activism may threaten the organization's business interests. An important aspect of SLAPP suits is that legal victory is not their primary goal. Rather, they are intended to punish, preoccupy and intimidate political opponents. Legal defense is expensive and time consuming and the outcome is never certain. Irrespective of the final legal outcome, SLAPP targets suffer financial risk, psychological stress and the diversion of their time, resources and energy away from their original issue of concern.
The situation is most acute in the U.S. where SLAPPs have proliferated. As of 1991, more than 1,800 private American citizens and groups had been "SLAPPed" in suits demanding an average of $9 million in damages. American activists, academics and legislators have been apprehensive about the impact of these SLAPPs on the right of free speech and political participation. The level of concern is such that several States have passed legislation specifically aimed at eliminating SLAPPs, as described below.
The Canadian experience with SLAPPs is limited by comparison. There have been fewer than 12 cases in Canada involving more than 75 individual defendants. Little has been written on SLAPPs in the Canadian context (see INTERVENOR, Vol. 16 Issue 1) and no province has proposed anti-SLAPP reforms. However, the small number of Canadian SLAPPs is no cause for complacency. They have all occurred since 1991 and may represent the beginning of a trend toward ever more strategic litigation in political conflicts. We have no shortage of acrimonious environmental conflicts; moreover much of the law under which SLAPPs are brought is substantially similar in both Canadian and American jurisdictions.
Canadians are uniquely positioned to benefit from the policy and legal developments which have occurred south of the border. With the requisite political will, anti-SLAPP measures could be implemented before the SLAPP problem in Canada reaches American proportions.
THE AMERICAN EXPERIENCE
The following is a brief outline of some of the basic characteristics of SLAPPs as they have evolved in the U.S.
SLAPPs take the form of nondescript, apolitical judicial claims - most commonly defamation (libel/slander), business torts, and judicial process abuse. Less frequently they are filed for conspiracy, civil rights and nuisance. The "targeted" speech or behaviour alleged in a SLAPP, however, is characteristically political speech and behaviour. People and groups have been sued for: circulating petitions, filing litigation, making formal government protests, reporting violations of law, testifying or even appearing at public hearings, submitting written opinions and organizing boycotts and demonstrations.
As mentioned above, legal victory is not generally the primary goal of a SLAPP - fewer than one in five SLAPPs are won. It is the process which appeals. By embroiling the defendant in expensive, extended legal battles, SLAPP filers can achieve their purpose of punishing, intimidating and silencing their less affluent political opponents. Costs that are monumental for a target are likely an affordable business expense for a corporation.
Within existing legal frameworks, various substantive legal defense and procedural remedies have been identified as ways of responding to the SLAPP problem. Filing counter-suits or "SLAPPing-back" has been suggested as an effective strategy. For various reasons, however, each of these approaches has been insufficient to the task of controlling SLAPPs.
The substantive legal defenses available include specific defense on the merits and the defense of immunity (provided for in the Petition Clause of the First Amendment of the U.S. Constitution). These have proven very effective against SLAPPs, but defendants must still go through the litigation process and suffer the associated burdens of lost time, expense and stress. The ability of SLAPPs to intimidate and punish remains unchecked.
The procedural remedies identified as solutions against SLAPPs involve the use of motions for summary judgement and early dismissal. Although they may shorten the life of frivolous litigation and reduce its impact on defendants, these motions have traditionally been difficult to secure in all but the most frivolous and vexatious actions.
However, a landmark 1984 decision by the Colorado Supreme Court in Protect Our Mountain Environment v. District Court, altered the procedural rules for SLAPPs. The POME solution, as it is now called, makes it easier to secure motions for early dismissal of lawsuits which implicate the Petition Clause of the First Amendment.
Of the anti-SLAPP strategies available within existing legal frameworks, the filing of countersuits may be the most effective. "SLAPP-back" countersuits are typically brought for malicious prosecution, abuse of process, or conspiracy to deprive constitutional rights. Numerous SLAPP targets have successfully countersued and in some cases won large jury verdicts: Raymond Leonardini countersued Shell Oil for malicious prosecution and recovered $5,1911,000 in fees, costs and damages ($5 million of the award was for punitive damages).
The "SLAPP-back" approach usually entails more protracted litigation - requiring both time and money that many activists may neither have nor wish to expend. Large corporations are still better able to use the civil legal system (both properly and improperly) than are those citizens and groups with more modest means. "SLAPPing-back" does not provide an adequate solution to the problem.
REFORMS FOR CONTROLLING SLAPPS
As responses within the legal framework - including legal defense, procedural motions and counterclaims - have failed to eliminate the use of SLAPPs in political conflicts, many U.S. jurisdictions have turned to legislative reform packages.
Following the lead of the POME, solution, most of the legislated reform measures in the U.S. have relied heavily on First Amendment Immunity as the basis for identifying SLAPPs and triggering various anti-SLAPP legal mechanisms. The Noerr-Pennington doctrine in American jurisprudence defines this immunity very broadly as absolute immunity for petitioning activity unless it is "sham" petitioning. Most anti-SLAPP legislation has further defined this immunity in statutes. New Jersey legislation, for example, provides that "a person who in good faith and without actual malice expresses an opinion of belief concerning a public issue which affects the person shall be immune from liability for damages arising out of the communications."
New York's legislative reforms may be the most comprehensive anti-SLAPP measures to date. The reforms, enacted in January 1993, consist of amendments to the New York Civil Rights Law and the New York Civil Practice Law and Rules. They include substantive and procedural remedies and a creative costs and damages awarding scheme which creates a financial disincentive against SLAPPs.
The civil practice laws and rules amendments follow the lead of the POME decision by establishing procedures for early review and dismissal of cases involving protected speech activity. The courts are directed to grant priority to hearing motions for summary judgement or dismissal and rule changes make it more difficult for the plaintiffs in these situations to prevail.
In actions for libel involving "public petition and participation," the civil rights law amendments raise the standard of proof. The plaintiff must now establish "actual malice" by "clear and convincing evidence," rather than by the more common civil standard of a "preponderance of evidence."
Another section seeks to remove the financial incentive to SLAPP by enabling a defendant in actions involving public petition and participation to recover attorney's fees, compensatory damages and punitive damages. Interestingly, this section creates a sliding scale that attempts to link the recovery of costs and damages to the degree of vexatiousness of the SLAPP action.
2. Compensatory damages may be recovered upon a demonstration that
3. Punitive damages may be recovered upon an additional demonstration
New York is by no means alone in its attempt to legislate an end to SLAPPs - California, Florida and New Jersey have designed effective anti-SLAPP reforms, as have several other states.
A CANADIAN SOLUTION FOR SLAPPS?
In Canada, as in the U.S., environmental conflicts often involve opponents with vastly different economic resources. This economic inequality allows the advantaged party to misuse the legal system in its struggle to overcome political opposition. In the name of private rights, SLAPPs threaten democratic public participation. As the problem grows in Canada, it will be necessary to legislate measures to protect political free speech, abbreviate the litigation process and above all, discourage filing SLAPPs in the first place.
Comprehensive anti-SLAPP legislative reforms warrant serious provincial consideration. Legislation should be designed and implemented before SLAPPs catch on.
Canada's Constitution provides specific protection for free political speech and other political activity. For example, s.2 of the Charter of Rights and Freedoms provides that everyone has a number of "fundamental freedoms," such as freedom of thought, belief, opinion and expression, including freedom of the press and other media and freedom of peaceful assembly and association. Thus, the Charter can provide an important foundation for anti-SLAPP reform in Canada.
Unlike the U.S., Canada's Constitution does not explicitly guarantee the right to petition government. In addition, Canadian jurisprudence has interpreted the Charter as applying only to citizens' disputes with governments, not those between citizens. Accordingly, the defense of immunity may be more difficult to establish in the Canadian context.
The Canadian response to SLAPPs should include the following minimum elements:
1. A legislated definition of speech activity which is protected from civil
2. Procedures for early review and dismissal, combined with a reverse
3. Direction to the courts to award damages to successful defendants,
4. Direction to the courts to fashion penalties commensurate with the
5. Provisions for discretionary public defense of civil cases which
If these reforms are developed and implemented quickly, then Canadian. SLAPPs should be largely pre-empted before they become firmly rooted in our legal landscape.
Kevin Hawthorne is a student in the Environmental and Resource Studies program at Trent University.
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