Protest Rights: An interview with Alan Dutton

April 12, 2016

Alan Dutton is a retired academic and human rights advocate who taught in the Department of Sociology and Anthropology, First Nations and Corrections Canada University transfer programs. He has worked against racism as the National Director of the Canadian Anti-Racism Education and Research Society and as a member of the Government of B.C. Advisory Council on multiculturalism. He is a recipient of the MOSAIC Annual Human Rights Award and the Attorney General of British Columbia’s Award for Excellence in Research and Education. Alan was spokesperson for the Burnaby Residents Opposing Kinder Morgan Expansion (BROKE) and one of five protesters named in an injunction lawsuit launched by Kinder Morgan. He is now working to encourage B.C. to adopt anti-SLAPP legislation.alan-dutton 2015

This article is part of a series of interviews with advocates, legal thinkers, community organizers and academics on issues related to Canadian civil liberties produced by CCLA volunteers. All responses are the interview subject’s own, and do not necessarily represent the viewpoint or positions of the CCLA.

CCLA: Why do you think protest rights are important in Canada?

AD: Democracy is based on civil and political rights, including the fundamental right to information, free speech, assembly, access to justice and the right to participate fully in public matters. If we are to build a democracy, we need to fully implement and protect these rights.

CCLA: How and why did you become involved in the protests against Kinder Morgan?

AD: In 2013 I became involved with a newly formed group of Burnaby residents protesting a plan by Kinder Morgan, a Texas based oil company, to dramatically expand the export of diluted bitumen from the Alberta tar sands to oversees markets through a small marine terminal in Burrard Inlet, just miles from the City of Vancouver. The new pipeline would triple the amount of diluted bitumen transported through a seismically active area of the Southwest coast of British Columbia, double the oil storage tank capacity on Burnaby Mountain above heavily populated areas and dramatically increase the number of Aframax tankers required to ship the oil from Kinder Morgan’s marine terminal through Burrard Inlet and coastal waters.

The new group was known as the Burnaby Residents Opposing Kinder Morgan Expansion, or BROKE. I built a website for the group, developed a social media network and became a spokesperson. My goal was to help build a social movement to help stop the mining and export of tar sands and the export of diluted bitumen through Burnaby and coastal waters. I received funding from the National Energy Board and Environmental Defense Relief Fund for BROKE to submit scientific evidence on the seismic risks to critical infrastructure of the proposed expansion.

My involvement with BROKE resulted from my concern about the state of oil extraction in Western Canada, the industrialization of Burrard Inlet and personal experience. In 2008 I was evacuated from my home along with five hundred other residents when a natural gas pipeline previously owned by Kinder Morgan ruptured near Lake City Way in North Burnaby.[1] That was the second evacuation of residents caused by a broken pipeline in North Burnaby in as many years. The first occurred in 2007 when a pipeline owned by Kinder Morgan ruptured near Burrard Inlet. The cost of clean up and damages was over $20 million. In 2009 a further 200,000 liters of crude oil spilled from a Kinder Morgan storage tank on Burnaby Mountain – kilometers from the two earlier pipeline ruptures.[2] In the following years, there were several more ruptures, leaks and accidents with the Kinder Morgan pipeline and related infrastructure throughout the province.[3]

CCLA: Why did you feel it was important to challenge Kinder Morgan’s lawsuit against you?

AD: As a person dedicated to social justice throughout my life, I had no choice but to fight Kinder Morgan’s attempt to stop peaceful protests. In October 2014 Kinder Morgan began clear cutting trees in the Burnaby Mountain Conservation Area to determine the geological risk of construction of a new pipeline. The City of Burnaby opposed test drilling and appealed the decision of the National Energy Board to allow it in the BC Supreme Court. The Tsleil-Waututh Nation also filed a constitutional challenge of Kinder Morgan’s planned expansion.

Concerned citizens gathered on the mountain to monitor Kinder Morgan’s activities, to express their opposition, and, in a few isolated cases, to engage in civil disobedience by causing delays to clear cutting of trees and drilling. I was not part of the isolated instances of civil disobedience, and consistently called for peaceful protests since the strategy of non-violence is the most effective way to mobilize the largest number of people against corporations and governments.

On October 30, 2014 four protest organizers and I were served with a lawsuit, an application for an injunction, and affidavit material claiming that we and unnamed individuals were liable for $5.6 million in damages to Kinder Morgan. The lawsuit was brought in BC Supreme Court against me personally and as a representative of BROKE for trespass, public and 3 private nuisances, assault, intimidation intentional interference with contractual relations, and conspiracy.

No facts were specifically asserted against me, but the Notice of Civil Claim made unspecified allegations that all defendants and unnamed individuals had engaged in unlawful activity. To support its claim against me of conspiracy, Kinder Morgan relied on two Facebook postings written by unnamed individuals, and a quote from a newspaper article in which I expressed my own opinion about civil disobedience. Mr. Justice Cullen of the Supreme Court of BC ruled in favour of Kinder Morgan, finding that there was a strong prima facie case against the group and unnamed individuals to grant an injunction.

I had not engaged in any unlawful activity, nor encouraged any illegal act, and it seemed very clear to me that Kinder Morgan’s lawsuit was simply a strategic lawsuit against public participation (or SLAPP) on a critical environmental issue. SLAPPs have become a common practice of corporations in BC since the 1980s to intimidate, silence and undermine community groups. As a result, I decided to apply to have Kinder Morgan’s lawsuit against me dismissed as a SLAPP with special costs.

The reason for my decision to fight Kinder Morgan in court was to show that: 1) the lawsuit was primarily meant to intimidate and silence people concerned about the environment and climate change, 2) “SLAPP Backs” can work in favour of citizens by creating positive national and international media attention for environmental matters, 3) community groups can stop the privatization of public protests by fighting SLAPPs in court, 4) there was definitely no evidence that I had condoned, encouraged, conspired, or engaged in any illegal act, and 5) that Kinder Morgan should be liable for special costs to help cover even a small part of my legal expenses.

With growing negative media attention against Kinder Morgan’s tactics, the corporation offered to discontinue the lawsuits against all five defendants. This is typical of a SLAPP because the intention of a SLAPP is to silence and intimidate, not to go to trial since to go to trial would probably mean a loss. Since the intention of the corporation is to silence, weaken and demoralize people and groups, going to trial and having a hearing based on the evidence is risky and irrelevant. For defendants, to prove malicious intent against all but the most inept SLAPP filer is almost impossible and the rules of the court favour judges allowing all but the most ridiculous cases to go to trial. The deck is clearly stacked against the exercise of civil and political rights in Canada.

Two Burnaby Mountain organizers accepted Kinder Morgan’s offer to halt court proceedings without cost. Most defendants do accept offers to discontinue regardless of the evidence because of the real costs of mounting a defence that might drag on for years and never come to a conclusion, risk their homes and future income.

However, I and two other defendants refused to accept a discontinuance and in January 2015 I applied to have Kinder Morgan’s claims against me dismissed, as an abuse of process, or that there was no genuine issue for trial. I argued that there was no factual foundation on which to bring the claims against me and that the case by Kinder Morgan was a SLAPP, aimed at discouraging others and myself from efforts to raise awareness about the environmental impact of the pipeline project and to organize people in peaceful protest.

Mr. Justice Wong found that I had failed to prove on a balance of probabilities that the lawsuit had been brought for an improper purpose and ruled that he was bound by the Court’s earlier finding that there was a strong prima facie case against me. As a result, my application was dismissed.[4]

Just two weeks later, Kinder Morgan unilaterally discontinued the lawsuit against myself and the two other protestors, effectively stopping all further court proceedings. Following the rules of court, Kinder Morgan paid my tariff costs, but these amounted to only a fraction of my actual legal expenses, and none of the legal expenses of the two defendants who settled earlier and none of legal expenses of the two remaining defendants who also refused to accept the first offer of a discontinuance.

The timing of the unilateral discontinuance is telling: Kinder Morgan was suffering a tremendous loss of media and public support and was forced to rid itself of the lawsuit through a unilateral discontinuance that offered the remaining three defendants no choice to challenge or reject.

It could be argued that Kinder Morgan’s goal had been achieved, at least in part. Whether unintended or intended, the effect of the lawsuit against all five protestors was to intimidate, silence, disrupt further protests and to breakup groups through threat of lawsuit and privatizing a matter of public importance within the judicial system.

However, as a number of reporters warned Kinder Morgan and the industry as a whole, SLAPPs can, and do, backfire, creating the ground for future more dedicated social movements, better prepared and financed to take on government, corporations and industry.[5]

CCLA: What do you think the result of your challenge says about the state of protest rights in Canada?

AD: What the process I faced clearly shows is that corporate interests directly threaten civil and political rights in Canada. The right to suspend political rights, even without compelling evidence or evidence that has been tested, is now the norm. By his decision, Mr. Justice Wong excused the suspension of my Charter rights simply as a temporary inconvenience that was soon given back by a corporation. The important matter for the court was not the fundamental civil and political rights to peaceful protest, but the rights of a powerful transnational to use the courts to privatize public matters.[6]

The fact that a Canadian court could not see the necessity of the strict application of Charter protections is a commentary on the status of protest rights in Canada when they come into conflict with powerful corporations. Justices Cullen and Wong’s decisions both show that when it comes to civil and political rights, the emphasis is on the rights of powerful corporations and not defendants. This shows a systemic bias against protests in common law courts and the lack of implementation of Charter rights when corporations sue individuals and community groups. As one media source warned:

“…the fact you can sue a group of people, claim millions in damages and blame a few in the crowd for the acts committed by the whole is alarming.

What happens if you are at a protest and someone throws a brick through a window? Could you be sued because you’re an easy face to pick out of the crowd?

Dutton took this case on to stand up for freedom of expression and the right to protest, but the judge’s decision raises serious questions about how we can exercise those rights.”[7]

I am not alone in the fight against the privatization of protests. BC has a long history of fighting corporate bullying.[8] In 2001 BC enacted the first legislation in Canada against strategic lawsuits against public participation. However, a newly elected pro-business government repealed the legislation within months of taking office.[9] Arguably, if that legislation had been in force, Kinder Morgan’s lawsuit would have been much easier to dismiss early on.

Building an effective opposition will determine the outcome of the right to protest and speak out on important public matters. Shortly after Mr. Justice Wong dismissed my claim and Kinder Morgan issued a unilateral discontinuance, the Environmental Law Association approved two funding applications to research and develop model anti-SLAPP legislation and Jane Shin, the new MLA for Burnaby-Lougheed, organized a number of meetings to discuss anti-SLAPP legislation. In May 2015, anti-SLAPP legislation was tabled in the BC Legislature.

CCLA: What do you consider to be the strengths and weaknesses of the laws protecting protest rights in Canada?

AD: There should be strong protections for civil and political rights in Canada. As my case clearly shows, however, there aren’t sufficient protections of civil and political rights in Canada and won’t be until SLAPPs are taken seriously within all levels of government, the Senate and the judiciary.

The federal government signed the International Covenant on Civil and Political Rights (ICCPR) in 1976 and regardless of any jurisdictional matters between the federal and provincial governments, it is supposed to be binding. The Covenant guarantees that:

“Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of choice.” (S. 19)

The United Nations Human Rights Committee clarified the provisions to protect the right to participate in public affairs and take part in popular assemblies:

“Citizens may participate directly by taking part in popular assemblies which have the power to make decisions about local issues or about the affairs of a particular community and bodies established to represent citizens in consultation with government (para. 6) …

Citizens also take part in the conduct of public affairs by exerting influence through public debate and dialogue with their representatives through their capacity to organize themselves. This participation is supported by ensuring freedom of expression, assembly and association. (para. 8)

In order to ensure the full enjoyment of rights protected by article 25, the free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media to comment on public issues without censorship or restraint and to inform public opinion. (para. 26)

However, the fundamental civil and political rights protected by the ICCPR have not been fully implemented in Canada, or when implemented, it has been in a very narrow and limited manner, particularly when these rights come into conflict with large corporations as SLAPPs demonstrate.

The Charter of Rights and Freedoms and the Constitution are also supposed to provide protection of civil and political rights in Canada. Freedom of thought, belief, opinion and expression, including freedom of the press and other media or communications are guaranteed by Section 2(b) of the Charter and freedom of peaceful assembly by section 2(c). However, the protection of civil and political rights by the Charter and Constitution have not been systematically implemented at any level of the judicial system because these protections apply only

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon territory and the Northwest Territories; and

(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

In other words, the Charter and Constitution, except in a few cases, has been interpreted by the Supreme Court of Canada as a tool to protect citizens of Canada from government. It has not been used to protect the rights of citizens against powerful corporations intent on suppressing civil and political rights. This leaves Canadians vulnerable to strategic lawsuits against public participation through the privatization of fundamental civil and political rights in the judicial system.

The problem is so serious that several provinces in Canada,[10] 30 states within the USA, Australia and other democracies have enacted anti-SLAPP legislation to guarantee the right to participate in public matters and demonstrations.

As the history of SLAPPs demonstrates, anti-SLAPP legislation is under attack by corporations, when enacted it is often piecemeal, and still does not address the critical matter of citizens’ access to justice. The legal costs associated with SLAPPS are so extreme that few can take on a lawsuit. As a result, Canadians suffer from a lack of access to justice to protect themselves when they try to participate in public matters and speak out or share information.

CCLA: What changes could be made to enhance the protection of protest rights in Canada?

AD: There isn’t a simple solution to the problem of protecting civil and political rights. In general, the more people know about the attack on protest rights, the better we will be prepared to create change. The following are a number of modest recommendations.

The International Covenant on Civil and Political Rights must be applied to protect civil and political rights in Canada. Canada is legally bound to implement the Covenant but it is well known that Canada has not, and, like all other rights, will not without significant public pressure. Public pressure is a function of education, concerted action through civil society and the embarrassment of political leaders who are failing to protect the rights of Canadians. The mechanism for implementation is not within the judicial system but through a joint committee of the Senate and House of Commons with full public disclosure of all meetings and decisions.

There should be federal anti-SLAPP legislation in Canada as proposed in the United States and other nation-states. This would be an important step, helping create a national standard in Canada and it would serve as a model for the provinces and territories.

Public pressure must be mounted to force the enactment of anti-SLAPP legislation throughout the territories and provinces of Canada. While such legislation may be somewhat piecemeal, anti-SLAPP legislation is a start.[11] Fundamentally, however, every Canadian and must be provided access to justice. The cost of a SLAPP suit is far too high for all but the wealthiest Canadians to afford. A SLAPP suit against most community groups is also beyond their means and many fall apart when faced with a SLAPP.  A solution involves the provision of Legal Aid to cover all legal expenses, the quick identification of a lawsuit as a SLAPP, and a mechanism for awarding damages against the SLAPP filer to discourage further SLAPPs.

Canadians face attempts by large powerful corporations to privatize rights. This may be as a result of intent or simply as the effect of the lack of legislation and court rules ill informed concerning SLAPPs. Whatever the case, the solution lays in significant support for the comprehensive education of judges and all Canadians at every level of the educational system, from high school to university, and through unions, immigrant serving agencies and other non-governmental organizations. Canadians should know if and when they are covered by civil and political rights protections and if not, why not.

 

[1] https://en.wikipedia.org/wiki/FortisBC

[2] http://www.cbc.ca/news/canada/british-columbia/crude-oil-leak-at-burnaby-mountain-tank-contained-kinder-morgan-1.854643

[3] https://www.wildernesscommittee.org/frequently_asked_questions_regarding_the_kinder_morgan_pipeline_proposal

[4] Chantler, Neil. 2015. Recommendations for Legislation to Protect Public Participation. Committee for the Public Participation. Available: http://www.stopslappsuits.ca/content/case-study-trans-mountain-pipeline-ulc-v-dutton-et-al.

[5] Morgan, Geoffrey. June 9-11, 2015. “What new anti-SLAPP laws could mean for Canada’s energy sector.” Alberta Oil.

[6] Sheldrick, Byron. 2014. Blocking Public Participation: The Use of Strategic Litigation to Silence Political Expression. Wilfred Laurier University Press and Landry, Normand. 2014. Threatening Democracy: SLAPPS and the Judicial Repression of Political Discourse. Fernwood Publishing.

[7] http://www.burnabynow.com/opinion/editorial/alan-dutton-s-case-raises-alarming-questions-1.1732379

[8] See Defend BC at http://defendbc.ca/speakout-petitions/defend-right-to-speak-out/

[9] See Scott, Michaelin and Chris Tollefson. 2010. “Strategic Lawsuits Against Public Participation: The British Columbia Experience.” Review of European Community & International Environmental Law. 19, 1:45-57.

[10] The province of Quebec enacted anti-SLAPP legislation in 2009 and Ontario will enact legislation in 2016.

[11] A proposal for specific provisions and remedies can be found at http://www.stopslappsuits.ca.