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Defending the Right to Protest

Burnaby No Trans Mountain Pipeline March

I am very happy to speak tonight about strategic lawsuits against public participation – or SLAPPs. – because SLAPPs raise some of the most important issues of our time.

We fought for the right to freedom of expression, freedom of assembly, and the right to protest. We have a Charter of Rights and Freedoms, a Constitution and we have signed international agreements that are supposed to guarantee our rights. But they clearly don’t.

As the local newspaper, Burnaby Now, states:

“…the fact you can sue a group of people, claim millions in damages and blame a few in the crowd for the acts committed by the whole is alarming.

What happens if you are at a protest and someone throws a brick through a window? Could you be sued because you're an easy face to pick out of the crowd?

Dutton took this case [Kinder Morgan] on to stand up for freedom of expression and the right to protest, but the judge's decision raises serious questions about how we can exercise those rights.”

The warning by the Burnaby Now is important because it clearly recognizes that Kinder Morgan’s lawsuit against me was an attack not only on my democratic rights but on the democratic rights of everyone in BC, speaking, protesting or not.

Given the present state of the law, even if there isn’t a shred of credible evidence against you, you can be charged and be forced to pay thousands in legal fees to defend yourself.

Based on my experience, having faced two SLAPPs, I argue that the purpose of a SLAPP is not to protect a valid legal claim but rather to frighten and silence those who are bold enough to criticize, question and speak out. SLAPPs turn court cases into weapons in a political war over democratic rights versus corporate profit. Protestors who have legitimate concerns are suddenly turned into defendants who must prove their innocence against multi-million dollar corporations or powerful government bureaucracy. In short, SLAPPs force public disputes into the private realm of the courts where advocates become defendants and must pay tens of thousands of dollars simply to defend their right to freedom to protest public matters. As such, SLAPPs are a corporate assault on democratic rights.

What can we do to protect our democratic rights?

The Burnaby Now does not offer any solutions but, based on my experience, I an many others argue that we need: 1) much greater public awareness about SLAPPs and better organization to fight them in the media and in the courts, and 2) strong and effective legislation to stop SLAPPs, provide support to the targets of SLAPPs and provide a disincentive to corporations that use SLAPPs to try to intimidate and silence dissent.

Here is why.

Kinder Morgan’s SLAPP

I’m sure that many of you here tonight know about Kinder Morgan’s plan to build a new pipeline from Alberta to the Westridge terminal in Burnaby so I won’t go into great detail, except to say that Kinder Morgan’s planned pipeline expansion would triple the export of diluted bitumen to an expanded oil storage facility on Burnaby Mountain. These tanks are directly above homes, schools and daycares. The new pipeline would tunnel through Burnaby Mountain to Westridge terminal in Burrard Inlet where oil would be shipped by Aframax class tankers through Second Narrows and on to China.

It’s important to recognize that Burnaby Mountain sits in one of the most seismically active areas in Canada. There is no viable fire or evacuation plan for nearby residents and the number of Aframax tankers will be increased from about 50 per year to over 400. They will join an increase of freighters in Burrard Inlet from the expansion of a Suadi/US terminal in North Vancouver and perhaps even more from the planned 66% expansion of freight through the Dubai operated Centerm in the downtown eastside. This dramatic increase in traffic through Burrard Inlet and Salish Sea and is going to cause bottlenecks and uncontrollable accidents.

In 2013 I became involved organizing town halls and demonstrations to draw attention to the safety and climate issues of building a new pipeline and I helped organize public demonstrations on Burnaby Mountain with First Nations and several with Kennedy Stewart MP for Burnaby North and one with the Mayor of Burnaby, Derek Corrigan. These events helped expose the threat to the West Coast and Burrard Inlet and created a growing negative reaction to Kinder Morgan’s plans.

On October 30, 2014 Kinder Morgan applied for a court injunction to stop demonstrations in the conservation area of Burnaby Mountain and filed a $5.6 million civil suit against five people, including myself personally and as a representative of a local residents group. Kinder Morgan’s lawsuit against me alleged, among other things, trespass, assault, intimidation, intentional interference with contractual relations, and conspiracy.

The only evidence the giant Texas oil corporation presented against me was a single post on a facebook page I managed and one newspaper article in the Burnaby Now that I was cited in. The post on the Facebook page was a notice of a meeting on Burnaby Mountain to protest Kinder Morgan’s planned pipeline. Kinder Morgan did not present any evidence about who wrote the post or who posted it. My name was simply put forward because I managed the page.

But that simple post on a Facebook page was used as evidence that I was involved in a wide conspiracy to commit unlawful conduct.

The article in the Burnaby Now quoted me, saying that demonstrations were being held and more were planned. Nowhere was there any mention of an intention to break the law. Yet the fact I was quoted was apparently enough for the Judge in the original civil suit and the Judge in my appeal to justify a trail for conspiracy, assault, trespass, interference and other serious charges.

However, I argue that mounting negative publicity and growing negative public reaction to the plan for a new pipeline forced Kinder Morgan to reconsider the SLAPP and to offer a discontinuance to end it. The offer to discontinue was unusual because corporations usually drag SLAPPs out for years to punish, silence and bankrupt defendants and are only dropped just before trial. SLAPPs are usually dropped before trial since trial is not the intention of the lawsuit - the aim is simply to stop protests, turn protestors into defendants, and stop people from speaking out through legal intimidation.

But the offer of discontinuance to stop negative publicity did not work. Just two defendants accepted the offer and I refused along with two other defendants, keeping the case alive.

In December 2014, I applied to the BC Supreme Court to have Kinder Morgan’s civil suit dismissed as a SLAPP. I did this because I believed that it was a travesty to sue to stop me from protesting and speaking out. I believed then as I do now that the lawsuit was unjustified and constituted an attempt to intimidate and silence not just me but every other person thinking about speaking out or exercising the right to assembly. As such, the lawsuit was an attempt to deny my democratic rights based on baseless charges.

I applied to have Kinder Morgan’s claim dismissed under the rules of court as an abuse of process, or as no genuine issue for trial. I argued that there was no factual foundation on which to bring the claims against me and that the case was a SLAPP, aimed at discouraging efforts to raise awareness about the environmental impact of the pipeline project and to organize people in peaceful protest.

The Supreme Court of BC ruled against me in January 2015. Commenting on the ruling, my legal counsel stated:

“… In his brief oral ruling, the Honourable Mr. Justice Wong found that Mr. Dutton had failed to prove on a balance of probabilities that the lawsuit had been brought for an improper purpose. He accepted Trans Mountain’s assertion that the evidence could support a claim in conspiracy and should be allowed to proceed to trial. He ruled he was bound by the Court’s earlier finding there was a strong prima facie case against Mr. Dutton. The application [to dismiss the charges] was dismissed.”

As I noted above there was no evidence whatsoever of any wrongdoing by myself, or that I was part of any grand conspiracy. I simply organized peaceful protests, marches and speeches. In fact, there were dozens of police officers on Burnaby Mountain monitoring events, along with numerous security personnel and contractors. Yet, in none of the hundreds of pages of affidavits entered into evidence by Kinder Morgan was there one report of any illegal or questionable activity on my part. In fact, I had consistently argued at all meetings and in news releases for peaceful demonstrations and mass mobilization to draw attention to Kinder Morgan’s violation of Conservation Land protections and the danger of shipping diluted bitumen.

Justice Wong ruled in favour of Kinder Morgan because the bar is set very high to dismiss a civil suit. There is a bias within common law courts to allow cases to go to trial where evidence can be properly evaluated. It is also almost impossible to prove beyond a reasonable doubt that the intention of a well-funded corporation is to suppress freedom of speech and freedom of assembly.

The bias in the judicial system obviously puts anyone engaging in a public protest, or writing about a protest, at risk because attempting to prove innocence against charges falls on the party with the least resources. As the Burnaby Now stated above, there are serious questions about exercising our democratic rights in Canada given the present system.

Justice Wong was careful to imply in his three-page ruling that my civil and political rights were not denied because I was still free to continue my opposition to Kinder Morgan through the National Energy Board process. Justice Wong apparently did not consider the wider issues of the protection of my civil and political rights and the tens of thousands of dollars spent in legal fees to defend against the SLAPP.

But the issue of money and costs was not lost on Kinder Morgan’s counsel who spoke about seeking higher court costs against me as a deterrent to any further court challenges.

Just a short time after Justice Wong’s ruling, and before court costs could be decided against me for the application to dismiss the lawsuit, Kinder Morgan issued a “unilateral discontinuance.” The negative publicity and growing public reaction to Kinder Morgan obviously had a profound and hopefully long lasting effect; Kinder Morgan decided to force a unilateral discontinuance to stop all legal proceedings. A unilateral discontinuance does not require the consent of those charged in the original suit. So the unilateral discontinuance effectively ended the civil suit without the consent of those charged. But this does not prevent Kinder Morgan from making the same charges at a later date.

Lessons

The best defense is a good offense and this is why governments in the provinces of Quebec and Ontario have enacted anti-SLAPP legislation, following a majority of US states. BC needs anti-SLAPP legislation that:

1. Recognizes the right to freedom of speech, information, assembly, and access to justice;

2. Provides a mechanism for the early recognition and dismissal of SLAPPs with special and punitive costs;

3. Provides monetary compensation for damages to groups or individuals when defendants of a SLAPP.

We must work together to make this happen.

An NDP government enacted anti-SLAPP legislation in BC in 2001. That legislation was aimed at the early dismissal of SLAPPs with special costs. But the incoming Liberal government quickly repealed the legislation as unnecessary. It should be noted that Geoff Platt, the Attorney general at the time, argued then and now against anti-SLAPP legislation. Platt now works for a large law firm that represents major corporations and advises the Liberal government on major projects having environmental impact.

Repealing and preventing anti-SLAPP legislation is part of the war to silence the public. The repeal of anti-SLAPP legislation demonstrates that governments are not neutral bodies but are in fact the site and arena of struggle between ordinary people and powerful corporations. Democratic rights are never given to people; they are always the subject of struggle – in this case between human rights and corporate profit.

Following the failure of my application to have Kinder Morgan’s lawsuit recognized as a SLAPP with costs, Jane Shin, MLA for Burnaby North, began to hold community meetings to discuss SLAPPs and worked with other members of the NDP to table a bill in the Legislature to protect the right to freedom of expression and the right to protest. Leonard Krog, MLA for Nanaimo introduced the proposed legislation in May 2015. Unfortunately, the bill did not proceed to second reading.

While we fight for anti-SLAPP legislation, we need to work as members of political parties and communities and as individuals to: build strong organizational and community support to fight SLAPPs in the media and in court and lobby the federal government to implement the International Covenant on Civil and Political Rights Canada signed in 1976 but which is not in force throughout Canada at all levels of government.

We must work together to make this happen.

With Special Thanks

In May 2015 introduced anti-SLAPP legislation in the BC Legislature. While the legislation eventually died, the effort of MLAs like Jane Shin and Leonard Krog to advance protections against SLAPPs must not be forgotten.

We want to specially thank the following groups and individuals for supporting this important social movement to stop SLAPP suits and help recover democracy:

Jane Shin, MLA Burnaby Lougheed
Leonard Krog. MLA Nanaimo
BC Civil Liberties Association
Lawyer’s Rights Watch
West Coast Environmental Law
Carol Baird Ellan, former BCSC Judge and Federal NDP Candidate
Neil Chantler, Chantler & Co.
Janice Edmonds, NSNOPE
C.D. Cornish, Canadian Anti-Racism Education and Research Society
Gail Davidson, Human Rights Watch
Sierra Club
Kwantlen University

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