Adoption of Bill 9 : Écosociété and the authors of Noir Canada will be the test

Éditions Écosociété salutes the adoption of an Act to amend the Code of Civil Procedure to prevent improper use of the courts and promote freedom of expression and citizen participation in public debate. We extend our thanks to the MPs for passing such a law.

Adoption of this Bill is the result of a long citizen struggle that began in 2005 with the Citoyens Taisez-vous ! campaign, at the initiative of the AQLPA and the Comité de restauration de la rivière Etchemin, both groups the victims of a $5 million action suit. Over the last four years, more than fifty community, union, environmental and feminist organisations, as well as over 10 000 citizens and a great number of experts have given and expressed their support for the adoption of legislation aiming to protect citizens from such abuses.

Écosociété and the authors of Noir Canada will soon make use of the new legislative tools at their disposal. Their case will serve as an efficiency test for this new legislation.

Écosociété has often requested a strong legislative intervention in order to reaffirm preeminence of freedom of speech over protection of one’s reputation within the public debate. Even though this law is a step in the right direction, some of our demands, especially those requesting stronger protection of public debate, have not been heard. We remain somewhat worried as to our future.

We would have liked that there be a presumption of abuse in cases where action suits are filed against a person or organisation using freedom of speech in the context of public debate around an issue of public concern or interest. In effect, a presumption of abuse would automatically reverse the burden of proof, transferring it to the suing party so that it now would have to demonstrate the non-abusive character of its action from the moment it wishes to intervene regarding a person or group’s participation in the public debate.

As Écosociété’s prosecutor Me Tamaro indicated, such a change would have shifted more importance towards preserving the public debate in a time when it is too often giving way to the right to protect a reputation. In this way it would have echoed the decision rendered by Judge Binnie in 2008 : « The function of a defamation offence is to allow to redress one’s reputation but many court tribunals have concluded that perhaps some traditional constitutive elements of this offence should be changed so to make more place for freedom of expression. We worry that for fear of ever increasing costs and other problems caused by being sued for defamation, broadcasters will avoid addressing some public issues and keep silent about them (…) Public controversy sometimes has tough requirements and the Law should respect those requirements.»

Unfortunately, the new law does not integrate well enough this important message when it should instead be giving courts of law the means to reverse the current imbalance. When appealing to the law to defend against an abusive pursuit in cases where public debate is concerned, they will have to redress this imbalance in favour of freedom of expression. This one of the « tough requirements » essential to democracy.

History will tell whether by this we have really given ourselves the means to defend the place and importance of critical thinking and public debate in our democracy.