These two cases about strategic lawsuits against public participation (“SLAPP suits”) were heard together by the Supreme Court of Canada. SLAPP suits commonly take the form of defamation claims and may often be used to silence dissenting views or to intimidate.
Defamation claims are increasingly being used as a legal weapon against survivors of gender-based violence who, having made the difficult decision to come forward, are then threatened with or have lawsuits filed against them. In this way, SLAPP suits serve as a barrier to reporting gender-based violence, which is disproportionately experienced by women and trans people.
These two cases, Maia Bent, et al. v Howard Platnick, et al. and 1704604 Ontario Limited v Pointes Protection Association, et al., were appealed from Ontario, but BC recently passed a law that is modeled on the Ontario law that was challenged in these two appeals. On March 25, 2019, the BC legislature passed the Protection of Public Participation Act, S.B.C. 2019, c. 3. The purpose of this new law is to enhance public participation by protecting expression on matters of public interest from lawsuits that limit this kind of expression.
These cases were the first time that the Supreme Court of Canada considered legislation that is specifically aimed at addressing the harms of SLAPP suits. This type of law is often called “anti-SLAPP legislation.”
West Coast LEAF’s Involvement
West Coast LEAF joined with a coalition of frontline organizations serving and promoting the interests of women and gender-diverse persons in BC, including Atira Women’s Resource Society, Battered Women’s Support Services (BWSS), and WAVAW (“the BC Coalition”). The BC coalition jointly applied for leave to intervene in these important cases to make arguments about the way in which SLAPP suits silence and harm survivors of sexual assault.
The BC Coalition was granted leave to intervene in these appeals. Our arguments focused on the context of gender-based violence defamation claims and how the Court must recognize that among the many reasons that survivors do not come forward is a fear that they will not be believed. These survivors often reach out to and confide in a friend, family member, or co-worker. This type of disclosure should be protected from SLAPP suits and should not be subject to victim-blaming tactics.
We argued that courts should not give weight to prevailing but discredited myths surrounding fake allegations of gender-based violence. Fake allegations of sexual assault are very rare, occurring at a rate similar to other offences. However, there is a culturally entrenched and damaging skepticism about sexual assault complaints, resulting in victim silencing and further harm to survivors of gender-based violence.
Our law reform project Dismantling the Barriers to Reporting Sexual Assault focuses on barriers in the criminal justice system facing survivors of sexual assault. In our report We Are Here, survivors generously shared some of the factors that informed their decision of whether or not to report sexual assault to police, including concerns about being automatically disbelieved, blamed, or subjected to unwanted legal consequences as a result of reporting.
These appeals were heard by the Supreme Court of Canada on November 12, 2019, and the Court issued its judgments on September 10, 2020. The Court provided important clarity on the interpretation of Ontario’s anti-SLAPP legislation, including that courts should take an expansive approach to deciding what types of expression are in the public interest and may consider the impacts of the impugned expression and/or the defamation suit on equality seeking groups. However, the Court declined to address the BC Coalition’s arguments about the specific impacts of SLAPP suits on sexual assault survivors, as well as its proposed interpretation of the anti-SLAPP legislation to better protect survivors against SLAPP suits. Further, we are concerned that the Courts’ decisions could be interpreted in the context of an anti-SLAPP application by a survivor to give undue emphasis to the alleged abuser’s reputation.
West Coast LEAF and its coalition partners will continue to look for opportunities to support survivors in seeking pathways to health, well-being, and justice in the forms that work best for them. As defamation cases against survivors move forward in the courts—and we expect they will—we will push for interpretations of anti-SLAPP laws that protect, not punish, survivors.