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NWT Legislative Assembly Standing Committee on Government Operations
committees@ntassembly.ca
Attn: Julian Morse, chair, Standing Committee on Government Operations
Cc. Denny Rodgers, Jane Weyallon Armstrong, Kate Reid, Richard Edjericon, and Robert Hawkins, members, Standing Committee on Government Operations
Dear committee chair and members,
The Canadian Association of Journalists (CAJ) appreciates the opportunity to provide feedback on private member’s Bill 46: Prevention of Proceedings that Hamper Expression on Matters of Public Interest Act.
The CAJ is an independent, not-for-profit organization that provides advocacy and professional development for journalists across Canada, and serves as the national voice of Canadian journalists.
The CAJ is a strong advocate for robust legislation in all Canadian jurisdictions to protect journalists from strategic lawsuits against public participation, commonly known as anti-SLAPP laws.
Without such legislation, individuals, corporations and government bodies are able to proceed with meritless lawsuits with the aim of censoring, intimidating and silencing journalists, media organizations and others on matters of public interest. Even the threat of such legal action can negatively influence reporting and result in a chilling effect, obstructing access to information and discussion on matters of public interest.
SLAPP actions are a misuse of court resources, are costly and time-consuming to fight, and undermine the Charter right to freedom of expression including freedom of the press. Smaller and independent media organizations as well as independent and freelance journalists particularly face risks if burdened with the high costs and time required to mount a legal defence to such actions.
Given these factors, the CAJ is pleased to see Bill 46 be introduced and pass second reading in the NWT Legislative Assembly.
Many aspects of the proposed legislation are positive including the time limit on cross-examinations, pausing all other steps in proceedings once an application to dismiss an action is filed, requiring judicial approval for amendments to pleadings, allowing defendants to be awarded damages if a lawsuit was brought in bad faith, and requiring appeals to be heard as soon as practicable.
These sections of the proposed act will help to prevent the waste of resources on SLAPP actions and deter individuals, corporations and government bodies from filing bad faith lawsuits. `
Of particular strength is the clause in the bill which ensures that oral or written communication on a matter of public interest has qualified privilege regardless of whether the communication is witnessed or reported by media representatives or other persons. This will help encourage people to speak freely on matters of public interest, including to the media, and ensure public access to information.
Compared to legislation implemented in other provinces including British Columbia and Ontario, which the Centre for Free Expression at Toronto Metropolitan has ranked as the strongest anti-SLAPP laws in the world, the legislation proposed in Bill 46 has some weaknesses that could be addressed through amendments.
Bill 46 proposes that enhanced legal costs be awarded to a defendant unless a judge decides otherwise. Comparatively, Ontario’s Protection of Public Participation Act allows for defendants to be awarded full indemnity costs.
Given the high financial costs and time required to mount a legal defence to a SLAPP action, allowing for defendants to be awarded only enhanced legal costs means such actions can still financially damage journalists and media outlets, particularly those with limited resources. Allowing for enhanced costs is also not as strong a deterrent to bad faith actors as granting costs on a full indemnity basis and could still risk a chill on reporting.
Bill 46 also proposes that an application for dismissal be heard as soon as practicable after it is filed with the court rather than within the 60 day timeline outlined in Ontario legislation. Providing a firm deadline provides clarity to the parties involved and prevents unnecessary delays.
Finally, unlike the Ontario law, Bill 46 does not include provisions allowing for a stay of related tribunal or administrative proceedings. Such a provision is intended to prevent a defendant from incurring increased legal costs while a motion to dismiss is pending.
In closing, the CAJ supports robust legislation in the NWT that protects freedom of expression including freedom of the press; deters bad faith actors from misusing court resources or the threat of legal action to censor, intimidate or silence journalists; and allows SLAPP actions to be dealt with quickly and effectively.
Board of Directors, Canadian Association of Journalists
The Canadian Association of Journalists is the country’s largest professional organization that serves to advance the interests of journalists from coast to coast to coast. The CAJ’s primary roles are public-interest advocacy work and professional development for its members.
For further information: Brent Jolly, president, Canadian Association of Journalists, brent@caj.ca
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