A SLAPP in the face: Democracy suffers when politicians go to court

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Donald Trump’s reaction to last month’s publication of Michael Wolf’s book, The Fire and Fury, was to threaten to sue.

The U.S. president is well-known for his litigious inclinations, but this is by no means just an American or Trumpian phenomena.

Last fall, Kathleen Wynne, the premier of Ontario, filed a defamation lawsuit against Patrick Brown, then the leader of the opposition. Given Brown’s recent resignation, however, it would not be surprising to see the Wynne lawsuit dropped because the political motivations behind it will no longer exist.

Brown and the Progressive Conservative Party had also filed lawsuits against a group of dissent party members, a suit that was recently thrown out of court.

Such lawsuits are relatively rare, but have been popping up on the Canadian political landscape. Wynne has previously engaged in the same strategy — before the 2014 election, while former Prime Minister Stephen Harper threatened to sue several Liberal MPs, and did sue the Liberal Party of Canada over allegations about his involvement in the infamous Chuck Cadman affair.

Lawsuits of this sort are a dangerous trend in our parliamentary democracy. Why?

Risks to free speech

Individuals should certainly be entitled to go to court to seek remedies if they’ve been aggrieved. At the same time, there is something unseemly about politicians responding to criticism through lawsuits.

As a politician, being subject to criticism and critique, including questions about one’s conduct, arguably goes with the job. Lawsuits therefore might pre-empt a probing inquiry into matters of public interest, and chill future questions and criticism.

When the defendant is another politician or political party, the lawsuit interferes with the vigorous debate and critique that is at the heart of our democratic system.

These lawsuits frequently end through a settlement rather than going to trial. However, those settlements often include a provision that the issue not be raised or spoken about, including the very terms of the settlement.

Transparency suffers when public debate is subordinated by a private agreement not to discuss the issue.

Parliamentary privilege, after all, precludes such lawsuits for a reason. Parliamentary rules make it clear that any statements made in Parliament or a provincial legislature cannot be the subject of a lawsuit. Parliament, it was believed, could not function properly as a forum of debate if members feared their comments might expose them to lawsuits.

A policy choice was made to prefer complete freedom of expression over an individual’s right to recourse to the courts. The same statements made outside the legislature, however, could be the subject of a lawsuit.

But parliamentary privilege no longer operates to ensure a space for free political debate.

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