Blocking Public Participation
The Use of Strategic Litigation to Silence Political Expression
Publication Year: 2014
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.
Published by: Wilfrid Laurier University Press
Title Page, Copyright, Dedication
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1. SLAPPS: Courts, Democracy, and Participation
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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...
2. SLAPPS: Balancing Law and Democracy
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In Chapter 1, slapps were presented as a threat to the values of political participation. These lawsuits operate to redefine disputes, transforming issues of public debate into private issues subject to civil litigation. More broadly, they also operate to punish and threaten individuals and groups engaged in political participation, and potentially to dissuade others from participation. The chilling effect of these lawsuits on political participation cannot be underestimated...
3. SLAPPS in Canada
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In this chapter, we will examine the Canadian experience of slapps from a historical and case-based perspective. In this way, the degree to which slapps are an issue in Canada, as well as the implications for public participation and expression, can be assessed. Utilizing the typology developed in Chapter 2, we can begin to examine in a more concrete fashion the democratic implications of slapp litigation. The first section of the chapter will provide an overview of the slapp phenomenon in Canada, including an examination of a number of specific slapp cases from different parts of the country, representing different categories of the typology...
4. SLAPPS Come to Parliament
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In Chapter 3, we examined the development of slapps in the Canadian context, as well as several specific case studies of slapps. We also looked at judicial pronouncements in relation to slapps, which clearly identified the dangers posed by these lawsuits to the democratic values of expression and political engagement. Recently, however, there has been a disturbing trend of slapp-type lawsuits emerging within more mainstream areas of political life. In particular, slapp lawsuits are becoming a feature of parliamentary and legislative politics...
5. The Regulation of SLAPPs
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In this chapter, we will examine efforts to regulate slapps. Such efforts necessarily limit access to the courts and potentially operate to exclude meritorious cases. The rule of law is considered a fundamental cornerstone of Western democracies, and inherent in the concept is the notion that the ordinary courts of the land are charged with the responsibility for determining the outcome of legal disputes. Legislation that regulates slapps appears to run afoul of this principle...
6. Resisting and Defending against SLAPPS
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In Chapter 5, we examined various attempts to implement legislation to regulate slapp litigation and reduce its incidence. As we saw, while there have been many proposals for legislation, and considerable public demand, very few jurisdictions in Canada have successfully implemented regulatory frameworks. Given this, it is necessary to consider how individuals and social groups can respond to slapps and prepare for them. In conflicts over environmental issues and land-use decisions, slapps increasingly appear to be part of the arsenal of weapons brought to bear on citizens and development opponents...
7. Final Thoughts
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The phenomenon of slapps as a feature of our political system fundamentally challenges many of our assumptions regarding the nature of political participation and the operation of the legal system. In the first place, we often think of political activism and political expression as defined by the institutions of our political system. Political expression takes place through parties, interest groups, and electoral politics. We also assume that there are few restrictions on political expression and that those limitations that do exist can be relatively easily justified...
Appendix: Legal Resources
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Page Count: 182
Publication Year: 2014