BLOCKING PUBLIC PARTICIPATION Sheldrick_Final_Proofs2.indb 1 14-01-29 12:28 PM Sheldrick_Final_Proofs2.indb 2 14-01-29 12:28 PM BLOCKING PUBLIC PARTICIPATION THE USE OF STRATEGIC LITIGATION TO SILENCE POLITICAL EXPRESSION Byron Sheldrick Sheldrick_Final_Proofs2.indb 3 14-01-29 12:28 PM This book has been published with the help of a grant from the Canadian Federation for the Humanities and Social Sciences, through the Awards to Scholarly Publications Program, using funds provided by the Social Sciences and Humanities Research Council of Canada. Wilfrid Laurier University Press acknowledges the financial support of the Government of Canada through the Canada Book Fund for our publishing activities. Library and Archives Canada Cataloguing in Publication Sheldrick, Byron M., author Blocking public participation : the use of strategic litigation to silence political expression / Byron Sheldrick. Includes bibliographical references and index. Issued in print and electronic formats. ISBN 978-1-55458-929-6 (pbk.).—ISBN 978-1-55458-930-2 (pdf).— ISBN 978-1-55458-931-9 (epub) 1. Political participation—Canada. 2. Frivolous suits (Civil procedure)—Canada. I. Title. KE4425.S44 2014 342.7108’54 C2013-905911-3 KF4483.A8S44 2014 C2013-905912-1 Cover design by Martyn Schmoll. Front-cover image from iStockphoto. Text design by James Leahy. © 2014 Wilfrid Laurier University Press Waterloo, Ontario, Canada www.wlupress.wlu.ca This book is printed on FSC recycled paper and is certified Ecologo. It is made from 100% post-consumer fibre, processed chlorine free, and manufactured using biogas energy. Printed in Canada Every reasonable effort has been made to acquire permission for copyright material used in this text, and to acknowledge all such indebtedness accurately. Any errors and omissions called to the publisher’s attention will be corrected in future printings. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior written consent of the publisher or a licence from the Canadian Copyright Licensing Agency (Access Copyright). For an Access Copyright licence, visit http://www.accesscopyright.ca or call toll free to 1-800-893-5777. Sheldrick_Final_Proofs2.indb 4 14-01-29 12:28 PM In memory of my father Melville A. Sheldrick Sheldrick_Final_Proofs2.indb 5 14-01-29 12:28 PM Sheldrick_Final_Proofs2.indb 6 14-01-29 12:28 PM Contents Acknowledgements ix 1 slapps: Courts, Democracy, and Participation 1 2 slapps: Balancing Law and Democracy 11 3 slapps in Canada 39 4 slapps Come to Parliament 63 5 The Regulation of slapps 89 6 Resisting and Defending against slapps 123 7 Final Thoughts 141 Appendix: Legal Resources 149 Notes 151 Works Cited 153 Index 165 Sheldrick_Final_Proofs2.indb 7 14-01-29 12:28 PM Sheldrick_Final_Proofs2.indb 8 14-01-29 12:28 PM Acknowledgements The inspiration for this book came from a conversation with my son one evening as we watched the national news. It had just been announced that Prime Minister Stephen Harper was suing the Liberal Party of Canada, as well as the leader of the party and several other members of Parliament, over comments published on their website in the so-called Cadman affair. My son turned to me and said, “He can’t do that, can he?” The answer, of course, was that “well, yes, he can.” The specific case fell outside of the scope of parliamentary privilege, and there was no legal barrier to it. At the same time, I shared my son’s discomfort with the notion that political issues between the parties could lead to litigation. This led to research into the scope of parliamentary privilege that was presented in 2009–10 at the annual conferences of the Atlantic Provinces’ Political Science As- sociation and the British Association of Canadian Studies. That research forms the basis of Chapter 4 of this book. It concluded that our current structures of parliamentary privilege are ill suited to modern political prac- tices. Lawsuits like the Prime Minister’s allegations against the Liberal party, I argued, should be understood as examples of strategic litigation against public participation. This, in turn, led to the observation that this was a relatively ignored topic in Canadian political science and that a fuller book-length examination of the topic would be a timely addition to the academic literature on Canadian public interest law. In pursuing a major book project, one requires the support of a collegial and intellectually stimulating environment. Accordingly, I need to thank Sheldrick_Final_Proofs2.indb 9 14-01-29 12:28 PM x Acknowledgements my colleagues at the University of Guelph for creating a rich and dynamic environment for intellectual inquiry. In particular, thanks go to Troy Rid- dell and Dennis Baker, who share a commitment to studying the inter- section of law and politics. Even though we might disagree about much, they are wonderful colleagues and I am proud to count them among my good friends. I would also like to thank Candace Johnson, Craig Johnson, Carol Dauda, David Macdonald, Tim Mau, Ian Spears, Jordi Diez, Janine Clark, Tamara Small, and the rest of the Department of Political Science at Guelph for their friendship and support. And I would like to thank my staff: Debbie Bowie, who keeps my life organized and without whom the department simply could not function; and Geri McCauley and Renée Tavascia, who both do such fabulous jobs. I also need to thank Laura Maclean, a student in our Environmental Governance program who was an invaluable research assistant. I also want to express my appreciation and thanks to Dr. O.P. Dwivedi, who sadly passed away shortly after this book was completed. O.P. epitomized what it is to be a scholar in the tru- est sense of the word. He was a remarkable man and he is greatly missed. This book was written while on a research leave after the completion of my first term as Chair of the Department of Political Science at the University of Guelph. That leave was spent as a visiting scholar in the Department of Political Science at Memorial University of Newfoundland in St. John’s. I owe a particular debt to David Close, who facilitated and supported my coming to Memorial. I also need to thank Luke Ashworth, Head of Department at MUN, who provided me with office space and resources, but kindly made no real demands of me. Luke was working on his own manuscript throughout the year, and his support and encourage- ment were greatly appreciated. My time at MUN provided me with the space and time to read, think, and write. As anyone who has served as chair of department knows, these are resources that are in scare supply while dealing with the administrative realities of university life. Memorial University, St. John’s, and Newfoundland now hold special places in my life, and I hope that I am able to maintain my connection to them long into the future. Special thanks to Russ Williams, Amanda Bittner, Matt Kerby, Alex Marland, Miriam Anderson, Dimitrios Panagos, Scott Mat- thews, and Kelly Blidook. You were fabulous colleagues during my year in Newfoundland, and I greatly value your friendship. I owe a huge debt to Ryan Chynces, Brian Henderson, Lisa Quinn, Blaire Comacchio, and all the staff at Wilfrid Laurier University Press for their support, patience, and encouragement, as well as the anonymous Sheldrick_Final_Proofs2.indb 10 14-01-29 12:28 PM Acknowledgements xi reviewers of the manuscript for their very helpful comments. Their contri- butions helped make this a better book than it otherwise would have been. I also need to thank Rodolphe Devillers from the Department of Geo- graphy at MUN. While Rodolphe was enjoying his own research leave, my family was able to rent his wonderful house in Torbay. The views of the ocean, including playful whales and soaring bald eagles, provided the perfect setting for a productive year of writing and contemplation, all the while observing the changing nature of the land and sea. Of course, New- foundland is well known for the harshness of its climate, particularly dur- ing the winter. Over the course of my time there I came to appreciate the wonder and beauty of that climate. “Onward through the fog” is more than a Newfoundland statement about the weather; it’s a philosophy of life. It is, perhaps, particularly applicable to academic life. I now understand the fierceness of a winter storm, the sound of gale-force winds, and the diversity and beauty of the snow. Sometimes, being snowed in can be an amazing experience and just what the mind and body require. I must also thank my family for their continued love and support: my partner Robin, and our children Lachlan and Morag. Over the past several years I’m sure they have seen me at my best (hopefully) and my worst (sadly). Yet they continue to put up with me, occasionally laugh at my jokes, and forgive my propensity to dance and sing in public. Without them my life would be far less rich and fulfilling and I cherish them so very much. This book has been published with the help of a grant from the Federa- tion for the Humanities and Social Science, through the Awards to Schol- arly Publications Program, using funds provided by the Social Sciences and Humanities Research Council of Canada. Finally, this book is motivated by the struggles and commitment of so- cial activists. These are people who labour, often without compensation, because they are dedicated to the vision of a better world and are not pre- pared to accept the world we live in as a given. Their efforts, commitment, and sacrifice, continue to inspire! Byron Sheldrick Guelph, Ontario Sheldrick_Final_Proofs2.indb 11 14-01-29 12:28 PM Sheldrick_Final_Proofs2.indb 12 14-01-29 12:28 PM slapps: Courts, Democracy, and 1 Participation In 1995, the lumber company Daishowa, seeking an injunction to pre- vent an ongoing boycott of their products, sued a small non-profit social group, the Friends of the Lubicon.