These are two cases being heard together by the Supreme Court of Canada about strategic lawsuits against public participation (“SLAPP suits”). 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 are being appealed from Ontario, but BC has recently passed a law that is modeled on the Ontario law being 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 are the first time that the Supreme Court of Canada will consider 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 has 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 will focus 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 will argue 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 will be heard by the Supreme Court of Canada on November 12, 2019. The BC Coalition will file its written argument (factum) by October 22, 2019.