Lawsuits Thwarting Democracy, Free Speech, Prof Says in New Book
April 21, 2014 - News Release
The recent libel action involving Ontario Premier Kathleen Wynne and Progressive Conservative leader Tim Hudak is a good example of how SLAPP lawsuits can thwart democracy, according to a University of Guelph professor who has written a new book on the subject.
SLAPPs – Strategic Litigation Against Public Participation – often involve big companies taking legal action to curtail activism, says Prof. Byron Sheldrick, chair of Guelph’s Department of Political Science.
But it’s now becoming increasingly common for politicians to take or threaten legal action against other politicians.
“There seems to be an increasing trend where litigation is becoming part of the political arsenal of our leaders,” he said.
"It’s a new strategy of sorts. Politicians start using SLAPPs, which threatens to undermine political democratic institutions.”
Sheldrick looks at the effect of such lawsuits on public engagement, expression and democratic integrity in Blocking Public Participation: The Use of Strategic Litigation to Silence Political Expression.
SLAPPs have been around for decades, but have recently been catapulted into the public arena due to high-profile situations such as the Wynne-Hudak case, Sheldrick said.
And the variety of such lawsuits is huge. “There are many more cases than we know about or hear about because often they never go to court,” he said.
“This is because most often, winning is not the objective; rather it’s to silence or intimidate the opposition with a legal threat, to put a chill on expression. So it’s hard to know how many cases are out there.”
This is especially the case in “David vs. Goliath” SLAPPs, when a large company sues a small group or NGO to quash opposition.
Recent examples include a Lake Simcoe developer filing almost $100-million worth of lawsuits against a citizen groups; a logging company in British Columbia suing Greenpeace for $7 million; and Marineland filing a $1.5-million lawsuit against an animal rights group.
“The resource imbalance between the parties becomes important -- Goliath can afford to play it out for a long time, to use their resources to really take advantage of their position and use the courts as a vehicle within a political dispute,” Sheldrick said.
Usually, courts will allow a SLAPP case to proceed, hearing all of the evidence before making a decision on the merits of the case. “That is why it might take years and cost hundreds of thousands of dollars, making SLAPPs an effective political strategy for those with the resources.”
The motivation is slightly different in SLAPPs involving politicians, and Sheldrick dedicates an entire chapter, “SLAPPs Come to Parliament,” to the hows and whys.
A member of Parliament can say anything they wish on the floor in the House of Commons, he explained. “It can be clearly defamatory, clearly false, it can even be a lie, and they are protected against a lawsuit by the rules of parliamentary privilege.
“But the floor of the legislature is not the place where politics takes place now. In this age of the Internet, television, radio, blogs and Twitter, politicians carry out or try to communicate directly with members of the public through various media.”
And this is where things are often said that draw the attention and ire of other politicians, prompting the filing of lawsuits, he said.
Recent examples include Wynne’s threat of legal action against Hudak for alleging that she oversaw and even possibly ordered the destruction of documents to cover up the gas plants scandal.
In 2008, Prime Minister Stephen Harper filed a libel lawsuit against the Liberal Party over statements on the party’s website regarding allegations of bribery made in a book about the life of late MP Chuck Cadman.
Liberal leader Justin Trudeau was named in a $1.5-million defamation lawsuit filed this month by a former Liberal candidate, alleging a character attack during her campaign run.
No matter the type of SLAPP, there are ripple effects, Sheldrick said.
In “David vs. Goliath” cases, deep-pocketed companies use the law to silence resource-poor groups or individuals. People feel threatened by the prospect of massive legal fees, a disruption of activities or large damage awards, he said.
“There is a lot of concern about the democratic deficit and citizen apathy. The possibility of being sued for coming forward or speaking out about genuine public issues is a serious problem.”
SLAPPS involving politicians can affect the effectiveness of our democratic institutions and their processes of accountability, he added.
“Wynne arguably may have a case,” he said. “But the question is whether, in the political context, politicians should step outside and away from the normal mechanism of political accountability to use litigation.”
It also means that, when asked about the gas plant situation, the premier may decline to comment, saying that the matter is a subject of legal action, Sheldrick said.
“It has the effect of chilling our democratic institutions, making them less effective vehicles for political accountability.”
Ontario is considering taking action against SLAPPs. Bill 83, now in second reading, would allow judges to prevent powerful people or companies from using litigation to silence dissent.
The bill was submitted by the attorney general last May following an advisory panel review. Its passage would make Ontario the second Canadian province with anti-SLAPP legislation, Sheldrick said.
“But with a spring election widely anticipated, there is every likelihood that the bill will die.”
Prof. Byron Sheldrick
Department of Political Science
519 824-4120, Ext. 56503
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