October 20, 2009 Special Issue

Freedom of expression: Quebec’s Bill 9

The National Assembly redrafts defamation legislation

by Mark Bantey

Strategic lawsuits against public participation (“SLAPPs”) are designed to intimidate and silence those who speak out on issues in the public interest. They frequently take the shape of abusive defamation suits launched by plaintiffs with unlimited resources against ordinary citizens who have the temerity to express their opinions on such issues.

A classic example is the groundless libel suit filed by a real estate developer against members of the community critical of the developer’s plans. The plaintiff’s objective is not so much to win the lawsuit, but to silence critics by burdening them with escalating legal costs and time-consuming legal proceedings and cross-examinations. The David versus Goliath aspect of SLAPP suits was described quite aptly by the Supreme Court of California, who wrote that “intimidation will naturally exist anytime a community member is sued by an organization for millions of dollars even if it is probable that the suit will be dismissed.”

Some 20 American states have adopted some form of anti-SLAPP legislation designed to allow a court to dismiss a SLAPP suit at its preliminary stages. In California, for example, a defendant may file a motion to strike a SLAPP suit and the suit will be dismissed unless the plaintiff convinces the court that there is some probability that the plaintiff will win the suit.

Quebec courts, ever mindful of the old adage that “everyone is entitled to his day in court,” have been extremely reluctant to dismiss lawsuits at their early stages. However, faced with an explosion of libel suits and particularly of SLAPP defamation suits, this summer the National Assembly adopted what it hopes to be our equivalent of anti-SLAPP legislation. Bill 9, a series of amendments to the Code of Civil Procedure, came into force on June 4, 2009. The National Assembly says that its aim is to “promote freedom of expression and prevent improper use of the courts and the abuse of procedure, in particular if it thwarts the right of citizens to participate in public debate.”

Bill 9 allows the court to dismiss “improper” proceedings at their preliminary stages. An “improper proceeding” is defined as “a claim or pleading that is clearly unfounded, frivolous or dilatory or in conduct that is vexatious or quarrelsome. It may also consist in bad faith, in the use of procedure that is excessive or unreasonable or causes prejudice to another person, or in an attempt to defeat the ends of justice, in particular, if it restricts freedom of expression in public debate.”

Short of dismissing the suit, the court may also impose certain conditions on the continuance of the suit, including ordering the plaintiff to advance costs to the defendant if the latter’s financial situation would prevent it from effectively defending the case.
Will this new legislation be successful in promoting freedom of expression in Quebec? I am not optimistic for two reasons.

First, a similar provision had been on the books for years. The old section 75.1 of the Code of Civil Procedure allowed the court to dismiss a lawsuit at its preliminary stages if it was, on its face, “frivolous or clearly unfounded.” However, the courts rarely applied it, preferring to allow a lawsuit to run its course and let a judge decide its merits at trial. The court consistently held that the procedural tool was an exceptional one which the court should apply with “extreme prudence” so as not to deprive a party from being heard and having “its day in court.”

My fear is that the courts will apply the same type of reasoning to the anti-SLAPP legislation, with the result being that it will be extremely difficult to strike down a SLAPP suit at its early stages.

The second reason for my pessimism is that our courts are still light years away from the U.S.’s commitment to First Amendment values of freedom of expression. To give just one example: under the First Amendment, there is, in the words of the U.S. Supreme Court, “no such thing as a false idea.” All forms of opinion, no matter how outrageous, are constitutionally protected. In Quebec, in contrast, our courts cling stubbornly to the notion that only “reasonable” opinions are protected. Who defines what is reasonable? The judge.

In Hustler Magazine v. Falwell, the U.S. Supreme Court held that a fake advertisement published by Hustler Magazine portraying evangelist Jerry Falwell as having sex with his mother in an outhouse was constitutionally-protected opinion. Unless our own Supreme Court intervenes, it is unlikely Quebec courts will adopt such an absolutist approach to free speech.
After all, Quebec civil law of liability is grounded in the benchmark of the “prudent administrator.” Until such time as our courts are more protective of freedom of expression, Bill 9 will probably have little impact. However, the legislation does provide one tool that is cause for optimism; while the courts may remain reluctant to deny a plaintiff their “day in court,” they might be convinced to force a SLAPP plaintiff to finance the defendant’s legal costs, thus giving David the necessary resources to fend off Goliath.