Allowing wealthy corporations or powerful government agencies to launch baseless court cases against citizens who speak out against them is putting a chill on free expression in B.C. and there is a growing need for legislation against SLAPP suits, says the B.C. Civil Liberties Association.

It is time to fight back against Strategic Lawsuits Against Public Participation (SLAPP), which aim to intimidate and silence critics by landing them with the often-unmanageable cost of defending themselves against an unwarranted lawsuit, said Micheal Vonn, BCCLA policy director, who believes SLAPP suits are undermining B.C.’s democratic health.

BCCLA is aiming to put pressure on the provincial government to bring in anti-SLAPP legislation, similar to changes introduced last year in Ontario, to help those threatened with legal action to defend themselves against those with powerful financial interests and deep pockets.

“We need a concerted movement for people to make their voices heard. We need to explain what SLAPP is, what it does, what devastation it can cause and how it skews and distorts the political process,” Vonn said.

“There is the ability to bring a suit that has zero merit and it could be weeks in court before it comes to the crux of the argument, and by that time, you may have spent your whole life savings,” said Vonn, emphasizing that corporations are careful to frame lawsuits in such a way that basic protections against “frivolous or vexatious” lawsuits do not click in until someone has already mortgaged their house or gone deep into debt.

“It is too late even if you win, because the process is the punishment,” she said.

Other jurisdictions, ranging from Quebec to Texas, have anti-SLAPP legislation and, in 2001, in the dying days of the NDP government, B.C. New Democrats briefly enacted anti-SLAPP legislation that was seen as ground-breaking.

But it was repealed five months later by the newly-elected BC Liberal government who argued it would lead to a “protest culture.”

Laws Needed to Protect Citizens from Industry & Government SLAPP Suits, Says @bccla https://t.co/4VS24Uc8MU #bcpoli #SiteC #KinderMorgan

— DeSmog Canada (@DeSmogCanada) October 7, 2016

Last year, the NDP again unsuccessfully tried to reintroduce anti-SLAPP legislation and the issue remains on the NDP to-do-list as the province heads into a spring election.

“People must be able to have their voices heard without the threat of expensive legal action,” said New Democrat justice spokesman Leonard Krog, when he introduced the motion.

“The rights of free speech and peaceful assembly are absolutely fundamental to any democratic society.”

A statement from the Justice Ministry, in answer to questions from DeSmog Canada, said the province has existing mechanisms for dealing with improper lawsuits or other abuses of legal process.

“These include court rules allowing for the early dismissal of frivolous claims, summary judgments, security for costs and awards of costs where a lawsuit is found to be without merit,” said the emailed statement.

“These mechanisms work to protect the public from abuses of legal process and ensure British Columbians can participate in public discussion without fear of retribution.”

Vonn disagrees.

“There has been a growing aggressiveness around SLAPPs. It has certainly affected environmental groups — but not just environmental groups — who have found themselves deeply hampered in public participation by having to deal with these suits,” Vonn said.

Recent cases that raised questions include:

• A $6.6-million lawsuit launched by Kinder Morgan against five members of the group Burnaby Residents Opposing Kinder Morgan Expansion — the suit was later dropped with the company picking up court costs;
• Taseko Mines was accused of filing a SLAPP suit against opponents of its proposed tailing plan at the New Prosperity mine;
• BC Hydro is being accused of using SLAPP tactics in civil suits against six protest campers at the Site C dam site — something that BC Hydro denies, saying it supports protests that do not disrupt construction;
• Numerous legal letters were delivered to residents of Shawnigan Lake who oppose a contaminated landfill site operated by South Island Resource Management Ltd.

“These are people like your neighbour, who are speaking their minds about something that affects them deeply,” Vonn said.

BCCLA and others working towards anti-SLAPP legislation envisage rules that would ensure early access to the court system to weed out potential SLAPP suits.

“The ultimate goal here is to basically level the playing field to make sure parties who are the targets of these sorts of suits have access to the courts early and they can present to the court to say why they think it’s a SLAPP suit and what remedy they are seeking,” said Chris Tollefson, Hakai Chair in Environmental Law and Sustainability at the University of Victoria and co-founder of the Pacific Centre for Environmental Law and Litigation.

With a fast-track procedure it would then be up to the court to give the case special scrutiny and decide whether there should be an early dismissal, he said.

“I think there’s a very significant issue of democracy in play here if we think of democracy as being a system where people are not only protected, but encouraged to express themselves even in ways that might be controversial, in ways that challenge government or private companies. If that is something that we are serious about, we need to take steps to protect that wherever there’s a threat,” Tollefson said.

Enacting legislation should be an issue that crosses party lines, he said.

“This should not be party political. There should be no question really that this is something that one needs to do regardless of what party you support,” Tollefson said.

Image: B.C. legislature. Photo: Jason Baker via Flickr CC by 2.0.

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WARNING: Military Spooks Probably Know You Are Reading This

You could be in Canada's secret surveillance database. All it takes is a phone call, text message or email to someone in another country. And every time you visit a website your location, your browsing history and other metadata can be collected by the little-known Communications Security Establishment Canada.

All of this is illegal according to BC Civil Liberties Association which filed a lawsuit in BC Supreme Court Tuesday.

“Unaccountable and unchecked government surveillance presents a grave threat to democratic freedoms,” says Joseph Arvay, Q.C., lawyer for the BC Civil Liberties Association.

"We are deeply concerned that CSEC (Communications Security Establishment Canada) is gaining secret, illegal access to the private communications of ordinary Canadians," said Arvay.

CSEC, which will soon be housed the most expensive government building ever constructed (almost $1.2 billion), is Canada's $350 million-a-year counterpart to the U.S. National Security Agency (NSA).

In recent months the NSA has received much media attention after whistleblower Edward Snowden leaked secret NSA documents. Those documents revealed the extensive surveillance the NSA undertakes including tracking the calls of almost every American citizen and spying on a vast but unknown number of Americans’ international calls, text messages, and emails.

Turns out CSEC also spies on Canadian citizens but unlike the NSA no court or committee  oversees its operations. Canada's other big spy agency, the $500-million-a-year Canadian Security Intelligence Service (CSIS) has its activities monitored by an independent  committee.

CSEC is a military spy agency and has no such overview. The Minister of National Defence calls all the shots and issues directives in secret.

However a Nov 21, 2011 directive that became public revealed that then Minister Peter Mackay approved the collection and analysis of metadata. This is information that is automatically produced each and every time a Canadian uses a mobile phone or accesses the internet. [See Guardian's Guide to Metadata]

"Metadata information can reveal the most intimate details of Canadians’ personal lives, including relationships, and political and personal beliefs," said David Martin, lawyer for the BCCLA.

Canadians should be able to use the internet "without the government snooping on our personal information and monitoring our behaviour online," Martin said in a Vancouver press conference Tuesday.

The spy agency is allowed to capture the communications of Canadians at home and abroad if the collection relates to obtaining “foreign intelligence.” CSEC shares this information with foreign intelligence entities in the United States, the United Kingdom, New Zealand and Australia.

Arvay says CSEC's domestic spying infringes on Canadians rights of freedom of expression.

"Canadians are going to censor themselves fearing their communications will be intercepted," he said.

It's "unbelievable there is no judicial oversight of CSEC" said Caily DiPuma, Counsel for the BCCLA.

"Canadians have a right to privacy. We have no idea what CSEC is doing with their information or how they are interpreting laws," DiPuma said.

No one knows have many Canadians are caught up in the CSEC net said OpenMedia.ca Executive Director Steve Anderson.

OpenMedia fought a successful battle against Bill C30 – the online spying bill. "I was shocked to learn that CSEC is monitoring Canadians online and we're picking up the tab," Anderson said.

"We can’t even tell when we’ve been victimized by it. We strongly support the BCCLA’s court challenge," he said.

OpenMedia has launched a new online sign-up pledge against "out-of-control spying on Canadians.”

Incredibly, CSEC is just the tip of the domestic spying spear for Canadians involved in labour and social justice, indigenous issues, environmental or other organizations the Harper government has labeled as a "threat" to Canada's business interests.

The RCMP, CSIS and others involved in "security intelligence" have been monitoring Canadians involved in various non-governmental organizations such as environmental groups said Jeffrey Monaghan of the Surveillance Studies Centre at Queen's University in Kingston, Ontario.

Protests and opposition to Canada's resource-based economy, especially oil and gas production, are now viewed as threats to national security, Monaghan said.

Based on security documents just released under freedom of information laws, CSIS has likely created a wide-ranging surveillance net in partnership with the private sector he said.

One Feb 2011 document reads: "…the private sector is ideally suited to provide the Service (CSIS) with unsolicited, but potentially valuable street-level information."

Later the document notes that the private sector can violate Canada's privacy laws "for reasons of law enforcement, national security, defense of Canada, conduct of international affairs…"

Part II will look at the role of the private sector, including energy companies, in working with law enforcement to spy on and punish individuals and organizations involved in legal, democratic activities. 

Image Credit: CSEC Common Criteria icon

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.