We’re not going to sugar coat it. These decisions aren’t what we hoped for.

On September 10, 2020, the Supreme Court of Canada released judgments in two cases that have serious implications on the right of survivors of gender-based violence to speak out about their experiences. The cases concern the interpretation of Ontario’s anti-Strategic Lawsuits Against Public Participation (SLAPP) laws.

SLAPP suits are often defamation cases that are brought by someone with access to legal resources and are designed to intimidate the person being sued into silence. The case may be entirely without merit, but if the person being sued cannot afford to fight it, they lose the ability to speak out. Anti-SLAPP laws are supposed to protect people against these cases.

BC’s Protection of Public Participation Act is modeled on those Ontario laws, and the Court’s judgments in these cases – 1704604 Ontario Ltd. v Pointes Protection Assn and Bent v Platnick – heard in November 2019 are the first opportunities that the Supreme Court has taken to interpret anti-SLAPP laws.

We intervened in coalition with Atira Women’s Resource Society, Battered Women’s Support Services, and WAVAW Rape Crisis Centre, represented by our fantastic pro bono counsel David Wotherspoon and Rajit Mittal of Dentons Canada. Our arguments focused on the way in which SLAPP suits silence and harm survivors of sexual assault: defamation claims against survivors of gender-based violence have become increasingly common in the backlash to the #MeToo movement. We said that the Court should recognize that among the many reasons that survivors do not come forward is a fear that they will not be believed. 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.

There is some good news here. The Court unanimously held that in deciding what kind of expression is in the public interest, an expansive, liberal approach must be taken. But that’s not enough to protect survivors from retaliatory defamation lawsuits.

In fact, when applied to a defamation claim, we have grave concerns that the Court’s judgment invites judges to favor potential harm to an alleged abuser’s reputation over the public interest in protecting survivors’ disclosure of their experiences.

So, what’s at stake?

Without having their disclosure and reporting protected as a matter of public interest, survivors of gender-based violence face an unacceptable choice. If they disclose or report the violence they have experienced for any reason, including seeking support or ensuring safety for others, they risk being sued in defamation and dragged through a lengthy civil court proceeding. Or they keep quiet and lose their right to this expression.

West Coast LEAF got involved in this case because we believe that survivors’ voices should be heard. We believe that survivors have the right to speak out about the violence they’ve experienced, and that speech is in the public interest—your interest.

Instead of recognizing that right, these decisions leave survivors exposed to lawsuits, compounded with the fact that legal help is often out of reach and services are underfunded. When the law protects the powerful over the powerless, it’s bad law.

We 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.