SLAPPing democracy in the face

What’s gone wrong with democracy? That’s the question recently posed by the British magazine The Economist, which observed that even in established democracies like Canada, “flaws in the system have become worryingly visible and disillusion with politics is rife.”

The Economist’s diagnosis of what ails democracy is disturbing. Politicians have been captured by special interest groups (read: powerful industries and their lobbyists) and undermined by anti-democratic habits like, say, proroguing parliament to dodge inconvenient questions and indefensible lapses of judgment.

But the biggest challenge to democracy, insists The Economist, comes from within, from citizens themselves. This, of course, isn’t a new concern. Plato, for instance, worried that citizens would “live from day to day, indulging the pleasure of the moment.”

To get democracy right, The Economist argues, free speech and the freedom to organize must be guaranteed.

But even more fundamental is public participation in politics beyond mere voting. As the French political philosopher Alexis de Tocqueville observed about America nearly 200 years ago, “town-meetings are to liberty what primary schools are to science; they bring it within people’s reach, they teach men how to use and enjoy it.”

The Economist notes that city mayors regularly receive twice the approval ratings of national politicians, and imagines a world where “technology can implement a modern version of Tocqueville’s town-hall meetings to promote civic involvement and innovation.”

This is why the letter recently sent by the mayors of 10 Ontario boreal towns and cities to Premier Wynne urging her not to pass Bill 83, the Protection for Public Participation Act (also known as “anti-SLAPP legislation”) is so profoundly disappointing.

As nicely explained in these pages by Julee Boan, boreal program manager for Ontario Nature in Thunder Bay, a SLAPP is a Strategic Lawsuit Against Public Participation in political governance (letter, March 3). The purpose of a SLAPP is to limit citizens’ freedom of expression and neutralize their actions by improperly resorting to the courts to intimidate them, drain their resources, and kneecap their ability to meaningfully participate in public decision-making.

A SLAPP is nothing short of a slap in the face of democracy itself.

The mayors who signed the letter clearly understand the purpose of the law, which is simple and unassailable. The bill’s purpose is to provide the courts with additional powers to dismiss abusive lawsuits brought against individuals who speak out on issues of public importance.

Like, say, climate change and the protection of the natural environment.

Now, why do I say “additional powers”? Because courts already possess the inherent jurisdiction to dismiss cases that are frivolous, vexatious and therefore an abuse of their processes. But courts are nevertheless reluctant to dismiss such cases. The reasons for this are many, but at the root of our adversarial legal system remains the highly questionable assumption that every dog gets to have his day in court.

So the purpose of Bill 83 — just like the purpose of anti-SLAPP laws enacted elsewhere in Canada and the United States — is to encourage courts to exercise the powers they already have to ensure that the judicial process isn’t abused.

The boreal mayors understand this. They note in their letter that Bill 83 is “redundant,” meaning that it doesn’t add anything new legally, except for the added encouragement the courts sorely need. According to the Uniform Law Conference of Canada, “a way must be found to overcome the reluctance of courts to characterize such suits as abusive at early stages.”

Enter Bill 83.

But the boreal mayors are very afraid of Bill 83. They declaim that, “[s]imply put, this bill will destroy the livelihood of northern families through the loss of jobs and will discourage investment in Ontario threatening sustainability, particularly in the resource, energy and heavy manufacturing sectors.”

Given The Economist’s disturbing diagnosis of democracy, it’s not terribly difficult to understand why the boreal mayors think Bill 83 is so dangerous. Never mind that the mayors cite not a whit of evidence to support their hysterical attempt at fear mongering. Their own irrational fear is the predictable result of their complete capture by special interests, the industries they hope to lure to their communities.

Simply put, while the boreal mayors pay cheap lip service to “northern families,” they see their real constituents as being the folks who contribute — directly and indirectly — to their re-election campaigns. And those folks are against Bill 83.

But Bill 83 is for those northern families and for anyone else who dares to step up and speak out about important public issues. Bill 83 is for citizens of Ontario who aspire to have both a vibrant economy and a healthy environment. Bill 83 is for those of us who still believe in democracy.

Jason MacLean

Published in the bi-weekly column, Sustainability Matters, The Chronicle-Journal, Thunder Bay, Monday, March 17, 2014