I’d gotten the email hours earlier. The website finally wanted to run my editorial. They were telling me this nearly a month after I’d finished writing it, a week after they told me they were scared to publish it without having a lawyer look at it first, days after the editorial was first slated to run. Now, they decided they were going to run it anyway—without a lawyer looking at it—for reasons I couldn’t discern. It was early in the morning. I was supposed to be asleep. Instead I was crying in my bathroom. I didn’t know what to do.
I’d written about the contradictory ways the same university treated two men accused of abuse—one accused by a white woman, and one accused by numerous Indigenous people. The Indigenous people had been considered liars for years, despite the fact that none of their claims had ever been tried in court. Hardly any mainstream news sites were covering their situation. I couldn’t understand why—until that moment in the bathroom, weighing whether I should run my editorial and risk being sued, or pull the piece and protect myself and my family from financial consequences I was nowhere near equipped to handle.
I decided to pull the piece.
What I was experiencing that night was an effect that’s so common it has its own term: libel chill. This is a phenomenon that’s unique to Canada: our defamation laws are considered to be the most plaintiff-friendly in the English-speaking world.
Unfortunately, this information isn’t as well-known as it should be. When Elizabeth* reported that she was sexually harassed by a powerful, well-connected man, she didn’t think it would lead to her being sued.
“I, probably like most Canadians, thought that as long as I was reporting truth and followed proper reporting procedures, that I was within my rights to do so,” she says. Even when she heard rumours that the man was filing a lawsuit, she assumed it was just talk, since many people threaten litigation without ever following through on those threats.
“Once I heard that he was taking actual legal action [against me] I think I went into shock. My doctor actually had to medicate me,” says Elizabeth.
While her lawsuit hasn’t gone before the courts yet, if it does, Canada’s current defamation laws have ensured Elizabeth has a long, difficult task ahead of her—much more difficult than if she lived in the U.S.
“In the current U.S. system, the plaintiff must prove both falsity and that their reputation has been harmed by the making of the statement,” explains Lisa Jean Helps, a Vancouver-based lawyer. That means that the onus is on the person suing to prove that what the defendant said is false, and that they knowingly said something false to hurt the plaintiff.
In Canada, however, the plaintiff in a defamation suit does not have to prove the disputed statements are false or that the person who made them did so with malice. And unlike in a criminal trial, the defendant in a Canadian defamation case is not considered innocent until proven guilty; they are considered prima facie, or liable until proven innocent. This means the onus is on the defendant to prove that what they’ve said is true—something that can be incredibly difficult in situations of alleged abuse, where only two people were involved and they’re both making opposing claims.
This makes defamation laws in Canada incredibly easy to use to silence not only survivors, but also reporters who publish stories about alleged abuse. One notable recent example is former Ontario Conservative leader (and newly-elected Brampton, Ont. mayor) Patrick Brown, who is currently suing CTV for $8 million for reporting on two women’s accusations of sexual misconduct against him. (As of this writing, Brown is not suing the women who came forward with the accusations; he has never been charged with any crime in relation to the accusations.)
Jeramy Dodds, poet and former editor at Coach House Books is doing the same. Dodds has filed a $13.5 million lawsuit against four anonymous women, as well as The Globe and Mail and Toronto Star for reporting on allegations of sexual misconduct against him. (When the National Post covered the issue back in July, Dodds had plans to file a similar suit against Buzzfeed Canada.) The reports came shortly after Coach House Books announced it was closing its poetry program and seemingly removed Dodds’ name from its website.
All four of these women—who brought the allegations forward in an email to BuzzFeed News that became Canada’s equivalent of the “Shitty Media Men” list—are referred to in Dodds’ lawsuit as “Jane Doe.” However, as of the writing of this article, none of the women have been identified or served with a lawsuit. Dodds’ lawyer, Richard Watson, would not tell the Post if he knew who the women were.
While it’s currently uncommon for women to be sued for defamation/libel for levelling allegations of abuse against an individual, the accused frequently *threaten* to sue their accusers, even if they don’t actually follow through. That threat is never meaningless; even if the suit never goes to court, the stress of possibly being thrown into a lengthy, expensive, demeaning court battle still puts immense pressure and stress on accusers. All things considered, it’s far easier to delete or rescind allegations and avoid a lawsuit than to pursue them, even if they are true.
However, just because these anonymous women haven’t been served yet doesn’t mean they won’t, which is why I offered them access to a legal fund I started back in February this year. I’d created the fund out of fear that #MeToo in Canada would backfire, and women who spoke publicly about alleged abuse, assault, harassment and/or misconduct would be slapped with defamation suits they couldn’t afford to fight. According to Helps, that amount wouldn’t even cover half the time spent in court for a two-week trial, which is likely the minimum amount of time such a trial would take.
“The sitting time alone is 45 hours: $17,505. That would be without any preparation time. At a minimum, the preparation time would be $50,000 to $100,000 for a trial of this nature, based on Canadian Lawyer’s coast-to-coast average rates,” says Helps. “All of that is assuming you could find a lawyer willing to take it for $389 per hour, the average hourly rate for civil litigation.”
This lines up with what Elizabeth has found navigating the suit against her. Lawyers weren’t willing to take on her case without knowing she had hundreds of thousands of dollars to pay them. This isn’t even taking into account the other costs of a public defamation suit; as a result of her speaking out, Elizabeth says she has lost friends who were too fearful for their own careers to support her, she’s lost her own career due to her PTSD (which she developed as a result of stress) and even became suicidal for months.
What’s more: although the identities of sexual assault victims can be protected in a criminal trial by publication bans, the threshold for attaining one in a civil suit is much higher and therefore more difficult to acquire.
“Financially this has destroyed me,” says Elizabeth. Thanks to this suit and the publicity around it, people consider Elizabeth a liar and untrustworthy, making it hard for her to get a new job.
“Even if I was ready to go back to work, my reputation is now called into question and a simple Google search is devastating,” says Elizabeth. “Compounding the harm is the fact I can’t tell my side because of the ongoing litigation. So in essence, I’m stuck living my life at [the plaintiff’s] mercy and bound by a process that is expensive, not user friendly, and moves slower than cold molasses.”
There are changes that could be made to ensure that defamation laws couldn’t be used against alleged victims. “A threshold court hearing for a judge to determine that the suit could continue would be a way to ensure that these lawsuits couldn’t be filed and then left [to hang] over the heads of the victims,” suggests Helps. “The standard itself should also be examined by the courts: should the burden really be to presume that the statements are untrue? The plaintiff should have to prove they are, rather than making the defendant, the victim, prove their truth.”
With the popularity of the #MeToo and #TimesUp movements, it would seem that the time is right to make these sorts of changes. In June 2017, Status of Women Minister Maryam Monsef announced a new initiative called, “It’s Time: Canada’s Strategy to Prevent and Address Gender-Based Violence.” When I contacted the Status of Women office to ask whether defamation laws were on their radar, they directed me to the Department of Justice, which is tasked with looking at any legal changes that need to be made. Considering how lawsuits have been launched against the media for even reporting on accusations of sexual assault, harassment and misconduct in Canada, it would make sense for this initiative to at least consider the ways current defamation laws and libel chill scare victims of gender-based violence into silence.
However, David Taylor, the director of communications for Minister of Justice and Attorney General of Canada Jody Wilson-Raybould, told me that this is not something that they can address. “Civil libel and slander, any related legislation, and lawsuits concerning damages for libel or slander fall within the jurisdiction of the provinces and territories, not the federal government. It would therefore be unconstitutional for the federal government to attempt to regulate or legislate in this area,” he wrote. To change these laws, then, would require every province to make the necessary changes—something that seems unlikely, to say the least.
Last December, Justice Minister Wilson-Raybould gave a speech at an #AfterMeToo symposium—a town hall put together by the Globe and Mail to address the stories of sexual assault, harassment and misconduct that had erupted on social media under the #MeToo hashtag. During the event, Wilson-Raybould referred to a federal bill to amend the Criminal Code to ensure victims were treated better in courtrooms, saying, “We must all open our eyes to the prevalence of sexual violence and harassment, their insidious forms, and the devastating consequences they have for individuals, families, and communities. Together we must turn this page into history.
The question is: will we?
*name has been changed