|Code of Silence: An academic book, a multimillion-dollar lawsuit, and a question: is Canadian law failing free speech?|
by CANDICE VALLANTIN, The Walrus Magazine
October 27th, 2011
Les Éditions Écosociété, a tiny Montreal publishing house, released a 348-page treatise on human rights and environmental violations by Canadian mining companies overseas. Noir Canada: Pillage, corruption, et criminalité en Afrique (Black Canada: Plundering, Corruption, and Crime in Africa) presents evidence for Barrick Gold’s alleged complicity in the deaths of fifty-two miners in Tanzania, and for Banro Corporation’s fueling of violent conflict in the Democratic Republic of the Congo. The book, based on previously published accounts from the international press and UN reports, was intended as a study, not a bestseller. “We were expecting to sell 700 copies at $34 each,” says Elodie Comtois, Écosociété’s head of communications.
The case may highlight the fact that to date Quebec remains the only Canadian province to enact anti-legislation. In April 2001, British Columbia’s enacted the Protection of Public Participation Act, but it was repealed by the provincial Liberals just five months later. In New Brunswick and Nova Scotia, private members’ bills calling for similar legislation failed to pass. Last year, an independent panel released a report to the Attorney General of Ontario that strongly supported the creation of anti- laws, but the province has yet to act on it.
Meanwhile, other nations have surged forward. Since a landmark 2006 ruling, large for-profit companies in Australia can’t sue for defamation. In the United States, twenty-eight states have some kind of protection, and many others are considering similar measures. California’s legislation is the most renowned; if judges find that cases have the effect of stifling public debate, they can be thrown out — and the plaintiffs can be fined.
So why is Canada so far behind? It’s all in the fine print. In the US, freedom of speech has precedence over other rights under the First Amendment. In the Canadian Charter of Rights and Freedoms, however, freedom of expression is limited by the right to protect one’s reputation. To further complicate the situation, Quebec is the sole province with its own charter that governs rights between private citizens; the federal Charter of Rights and Freedoms, by which the other provinces abide, only governs relationships between citizens and the state. Finally, s are difficult to identify and impossible to count: Who knows how many Canadians received a threatening letter from a hotshot lawyer last year? And of all the cases that made it to court, how many were abusive? The upshot is a lack of political will; few politicians risk tackling an issue they can’t even prove exists.
In August, the Quebec Superior Court declared that Barrick’s case against Noir Canada did appear abusive, but because the book’s assertions were so damning the trial would go ahead in the fall, with Barrick Gold responsible for the defendants’ legal fees. (As of this writing, the authors are anxiously awaiting news on whether the Banro suit will be relocated from Ontario — where fewer than 100 copies of the book are circulating — to Quebec.) Regardless of the outcome, the authors have effectively been ed. “We’ve lived these suits like permanent censure,” William Sacher says. “That they even exist has obliged us to avoid expressing ourselves during public events. We’ve been constrained to a state of auto-censorship, contrary to our principles.”
The verdicts may affect all Canadians. In December, the same week the Noir Canada lawyers filed their motion for the court to declare Barrick Gold’s case abusive, Pierre Noreau, a law professor at L’Université de Montréal, published an editorial in Le Devoir. Co-signed by more than two dozen law professors from around the country, it laid out the stakes. “Behind [this case] remains a fundamental question: Can we still be critical in our society? Should power (and money) always prevail over the right to know, or at least the right to question publicly?… The future of thought rests on this case.”