CKNW Editorial
for July 6, 2000

The government has tabled Bill 29, the Protection of Public Participation Act in order to deal with what are called SLAPPS or Strategic Lawsuits Against Public Participation and to the credit of the minister, Attorney-general Andrew Petter put out a lengthy discussion paper last May which attracted some 100 responses.

The evil to be addressed here is what is known in my trade as "libel chill" and while you might not suspect it when looking at the minister’s press release, I think that, contrary to the statementgs in the press release, the main beneficiaries will be members of the media so you would think I would be delighted. But looking fairly at the matter, I’m not so sure I am. Let me explain.

The cases cited in the discussion paper were four in number and indeed did not involve the media but were development cases. In one, in 1999, a developer in Saanich brought a case against the municipality and 8 citizens and the judge found that the action was frivolously brought to stifle debate. Another, in 1998, was a multi national paper company that brought action against a small volunteer group opposed to logging on traditional Indian lands. Another one in 1993 was brought by a hotel against three individuals who opposed them getting a beer and wine store and the last, again in 1993 MacBlo brought an action for damages against a group that opposed logging in a certain area. It would seem, then, that the AG is out to protect the little guy against the corporate monster that brings, mostly, defamation suits against protesters.

Here’s what the Bill would do.

It protects and communication or conduct genuinely aimed at furthering lawful action as long as it doesn’t involve damage to property, physical injury, breach of the law or is considered to be unwarranted interference with the rights or property of any person

It permits any defendant against whom a proceeding is brought to apply to have the proceedings dismissed

The onus, once such an application is brought, rests upon the plaintiff

The court may dismiss the proceedings, award costs and, where it deems such to be appropriate, award punitive damages against the plaintiff.

But we should be sure that there are not unintended consequences of this legislation. And let me use by way of illustration a suit against me a few years ago by former Mulroney Cabinet Minister Tom Siddon. The case arose out of the proposed Kemano Completion Program which was a billion dollar power project near Prince George. I opposed the development and in the course of many editorials and comments I said unkind things about Mr Siddon in his handling of this matter while minister responsible. He sued me for libel and, contrary to the wishes of my senior counsel, the management of the radio station and myself, the matter was settled on instructions of our insurers who simply looked at the potential costs. Notwithstanding the fact that I was sued and damages were paid, I would not deny Mr Siddon the right to take his action … he was entitled to his day in court yet as I read this act, had it been in place in 1996, he might have been out of court before he really got started.

Clearly under Section 2(1) I was making communications genuinely aimed at promoting lawful action by the public or the government in the public interest and I was not doing any of the following

1. doing damage to property

2. inflicting physical injury

3. acting in breach of any law or order of the court

committing an unwarranted interference with the rights of any person, unless you include defamation under that section in which case the Act renders itself meaningless. As Defendant in the action I would have been entitled, had this bill been the law, to put the onus on Mr Siddon to prove I was doing one of the four enumerated things and, if he couldn’t, I would not only be entitled to my costs but, if Mr Siddon’s action was considered frivolous, I could nail him, for damages.

Now nothing would have given me greater pleasure than to have gone to court with Mr Siddon and I think to this day, as does my counsel, that we would have won. But having said that, I’m not sure I would have wanted to deny Mr Siddon the opportunity of pleading his case that I had libeled me and proving his case for damages.

There are a number of things I think should be changed about the laws of defamation, especially libel. I believe the onus of proof ought to remain with the Plaintiff … I think that people in public life must expect rough treatment as is the case in the United States … and I believe that the defence of privilege and qualified privilege ought to be expanded. But I’m not sure that I should have a licence to say whatever I want subject to the four limitations in the act which I have paraphrased.

Perhaps I’m missing something here in which case I’m pretty sure I will hear from Mr Petter before the newscast at the top of the hour.