Strategic litigation against public participation (SLAPP) involves lawsuits brought by individuals, corporations, groups, or politicians to curtail political activism and expression. An increasingly large part of the political landscape in Canada, they are often launched against those protesting, boycotting, or participating in some form of political activism. A common feature of SLAPPs is that their intention is rarely to win the case or secure a remedy; rather, the suit is brought to create a chill on political expression. Blocking Public Participation examines the different types of litigation and causes of action that frequently form the basis of SLAPPs, and how these lawsuits transform political disputes into legal cases, thereby blocking political engagement. The resource imbalance between plaintiffs and defendants allows plaintiffs to tie up defendants in complex and costly legal processes. The book also examines the dangers SLAPPs pose to political expression and to the quality and integrity of our democratic political institutions. Finally, the book examines the need to regulate SLAPPs in Canada and assesses various regulatory proposals. In Canada, considerable attention has been paid to the 'legalization of politics' and the impact on the Charter in diverting political activism into the judicial arena. SLAPPs, however, are an under-studied element of this process, and in their obstruction of political engagement through recourse to the courts they have profound implications for democratic practice.
Byron Sheldrick is chair of the Political Science Department at the University of Guelph. His research involves the intersection of law and politics and the way social movements organize around legal issues. Before joining the University of Guelph he taught at the University of Winnipeg and at Keele University in the United Kingdom.
1 SLAPPs: Courts, Democracy, and Participation
In 1995, the lumber company Daishowa, seeking an injunction to prevent an ongoing boycott of their products, sued a small non-profit social group, the Friends of the Lubicon. In 2009, an environmental activist and opponent of the British Columbia salmon farming industry was sued for $125,000 by Mainstream Canada, a Norwegian-based company and the second largest salmon farming company in British Columbia. Also in 2009, the City of Guelph, in Ontario, launched a $5 million lawsuit against a group protesting the development of an industrial park that would, allegedly, have an adverse effect on the Hanlon Creek watershed, a sensitive ecological area. And in 2010, the Youthdale Treatment Centre of Toronto sued former patients and their parents, claiming that allegations made about the practices at the clinic constituted defamation. The treatment centre sought $5 million in damages and an injunction.
These cases are all examples of a very specific type of lawsuit called a SLAPP, which stands for "strategic lawsuit/litigation against public participation." Such lawsuits are brought for the purpose of preventing or discouraging political expression and comment on public issues. They are designed to limit protest and dissuade individuals, citizens, and activists from political participation. There are many instances of SLAPPs, and they take a wide range of forms. Allegations of defamation, trespass, and a host of other civil wrongs often form the basis of a SLAPP lawsuit. The cases can involve a wide range of plaintiffs, ranging from individuals, corporate executives, and politicians to companies and governments. Defendants may similarly range from individual citizens to a variety of social movement organizations, including interest groups, activist coalitions, and grassroots community organizations. What all of the cases have in common, regardless of their form, is that they take place within a context of political contestation. The lawsuit, while alleging a civil claim based in common law, is a strategy within a broader political dispute. The purpose is often to put activists on the defensive, redirect their energies and resources to a costly legal battle, and, in some cases, shut down their political campaign entirely. Sometimes a SLAPP is a defensive and reactive measure on the part of those who launch such cases. In other instances, it is a pre-emptive strike, intended to prevent democratic debate and political discussion of issues of public importance. In many instances, the goal is not to see the case through to completion, or even to secure a final legal victory. Cases can become extremely lengthy and drawn out, complicated by motions, preliminary hearings, trials, and appeals that many activists simply do not have the resources or energy to continue. SLAPPs frequently involve tactics of attrition.
SLAPPs are an important strategy that can be employed by those in positions of power and authority to attack and sideline those who are challenging their activities. By invoking the authority of the courts, these suits represent a significant threat to both freedom of expression and political participation. More broadly, they raise questions about the role of the courts in policing and adjudicating political disputes as well as about the nature and quality of our democratic practices. If the quality of our democracy is measured by the degree to which people can actively and freely participate in political life, then the role of SLAPPs, and the ability of some to use the courts to curtail and constrain debate on public issues, needs to be carefully examined.
In general, SLAPPs have been given fairly limited attention within the Canadian context. This sharply contrasts with the situation in other jurisdictions, particularly the United States, where there is a considerable literature on the phenomenon. While this undoubtedly reflects the more litigious nature of American political culture in general, it also reflects the degree to which public interest law has become a fixture of both American politics and academics. The study and practice of public interest law, by which we mean the utilization of the law and rights to advance social movement causes, are highly developed in the United States. Public interest law itself is the subject of much academic and political debate. It focuses on a variety of dimensions, including the utilization of the law by elite groups as a tool for resisting social change and striking back at activists and social movement organizations.
In Canada, by contrast, the study of public interest law remains somewhat less developed. This is not to say that considerable attention has not been paid to some aspects of the issue. The introduction of the Charter of Rights and Freedoms in 1982 spurred the development of a law and politics movement within Canadian academic circles. The literature of this movement initially focused on the legitimacy of judicial review and its broad implications for questions of democratic practice and political accountability. The so-called legalization of politics thesis interrogated the significance of an emerging rights discourse for Canadian politics. Left-wing academics such as Judy Fudge and Harry Glasbeek (1992), Alan Hutchinson and Andrew Petter (1988, 1989), and Michael Mandel (1994) argued that the Charter of Rights and Freedoms potentially undermined democratic practice by diverting social movements from political mobilization to the courts, where lawyers and the legal discourse operated as a demobilizing force. A right-wing version of the thesis, represented by the work of Morton and Knopff, argued that a "court party" of groups, mobilized by the opportunity to make Charter claims, had developed (2000, 24). This represented, in their view, a displacement of politics from appropriate democratic forums, most notably legislatures, to undemocratic and unaccountable courts.
Both versions of the legalization of politics thesis have come under considerable criticism (Herman 1993; Sheldrick 1995; Sigurdson 1993). The range of these criticisms is beyond the scope of this book. However, it is important to note that the debate over the legitimacy of judicial review, and the utilization of the Charter by social movement organizations to press their claims, dominated much of the early debate over the intersection of law and politics in Canada.
This had several interrelated effects. First, the development of public interest law scholarship was dominated by considerations of the legitimacy of the court's role in adjudicating rights claims and the implications of this for public policy (Hiebert 1996, 2002; Manfredi 2001). Much of the debate has focused on whether or not it was appropriate for the courts, given that judges are neither elected nor democratically accountable, to pronounce on the constitutionality of state policy and overturn the decisions of democratic parliaments. How courts navigate their relationship with legislatures, interpret rights, and decide questions of reasonable limits, have been important topics within these debates. This, of course, also led to a focus almost exclusively on the decisions of the Supreme Court of Canada in high-profile Charter cases.1 There has been much less attention on lower courts, or on non-Charter/constitutional aspects of the law-politics intersection.
The focus on constitutional cases, however, has also led to an examination of the role of social movement organizations, on the one hand, and of the state, on the other. To the extent that scholars have looked beyond the largely theoretical and normative questions of constitutionalism, it has been to focus on the actual practices of social movements and the how they have organized around law and rights. In particular, much attention has been paid to the contribution of the women's movement, aboriginal organizations, and other equity-seeking groups to the development of Charter jurisprudence (Herman 1997; Jhappan 2002; Manfredi 2004; Razak 1991; Sheldrick 2004; Smith 1999). At the same time, scholars have also examined how the state has responded to the need to defend its policies against Charter scrutiny and the implications of Charter decisions on particular areas of public policy.2 This has produced a body of literature examining the internal decision-making structures of the state, and mapping how internal processes have been altered in response to new Charter demands (Kelly 2005). More recently, scholars have also begun to interrogate the judicial appointments process and the internal decision-making structures of the Supreme Court of Canada (McFarlane 2013; Riddell, Hausegger, and Hennigar 2008). These concerns reflect an ongoing interest with the democratic/undemocratic character of both the courts and judicial review.
It is in this context that a consideration of SLAPPs has much to tell us about the relationship between law and politics, and about the broader question of the role courts play in our political system. In particular, it offers a corrective to what, I would argue, is an overemphasis on "constitutionalism" as the primary context in which the relationship between law and politics takes place. While it is understandable that one should pay attention to the decisions of the Supreme Court of Canada, at the same time the relationship between law and politics plays out in a number of other judicial and quasi-judicial contexts (Sheldrick 2004). The original proponents of the legalization of politics approach were undoubtedly correct to the extent that courts and law do have an...