Slow Coast

By Denise Reinhardt

Most of us in Powell River have heard by now that we citizens won a great victory for free speech on March 26, thanks to John Dixon and the BC Civil Liberties Association. The court decided, in the case of Dixon v. Powell River (City), 2009 BCSC 406, that a city may not sue for libel or slander and that the City of Powell River acted unlawfully when it threatened to sue its citizens for speaking freely about city affairs. But, as always when citizens win a victory against repressive government, we still have work to do.

Before we do that work, it would be good to know what was really decided in this case.

The story of this case is well-known to Powell River. The City wanted to borrow $6.5 million to rehabilitate the North Harbour for long-term moorage of pleasure boats. Instead of going directly to the voters, City Council chose to use the “alternative elector approval process”, requiring 10% of the electorate to sign petitions in order to bring the question of this huge loan to a full public vote. This led to what the court in Dixon called “public discussion as to the merits of the proposed local improvement, the method of obtaining the approval of the community, and the management of the affairs and finances of the City of Powell River by the mayor and council.”

Robust debate and exchange of views about the government and its acts are the hallmarks of a democracy. Believing that they lived in a democracy, many citizens spoke their minds about what they saw as a bad idea being put through in an undemocratic way. Much to our collective shock, the City’s lawyers sent letters to three of those citizens, Noel Hopkins, Win Brown and Patricia Aldworth, telling them that their comments were defamatory, that is, false and harmful to the City’s reputation. The letters implied that the City would sue the three citizens (including Aldworth, then a City Councillor) for the “defamation”, demanded a retraction and public apology.

Win Brown, who was concerned that he could not afford to be sued, attempted to withdraw his statements and apologize for them in the Powell River Peak Online. The Peak Online refused, seeing no need for retraction or apology. The City’s lawyer then told Brown that he had to “do something”. Brown went to City Council in open session, where he publicly withdrew his statements and apologized for them. Mayor Stewart Alsgard denied Brown’s request to be assured that the matter was laid to rest. Instead, the Mayor said that the City would consult their lawyer and that the City would not tolerate defamation from anyone. Many in the community were horrified that Brown was forced to endure public humiliation and that the City still kept the threat of a lawsuit hanging over his head, even though he took back his statements and said he was sorry for them.

According to legal doctrine, free speech is the bedrock of democracy. Freedom of expression provides us with the space for disagreement where we can seek the truth and learn what we need to know to take part effectively in civic affairs. “[F]reedom of thought, belief, opinion and expression, including freedom of the press and other media of communication” are fundamental freedoms proclaimed in the Charter of Rights and Freedoms, Section 2(b).

Freedom of expression is a delicate growth. People representing one ideology or position can use censorship to control the public discourse, either directly or by threatening to sue in defamation. If they do, this has a “chilling effect” on the expression of all citizens, not just on those directly threatened. That chilling effect was certainly felt throughout Powell River after the City sent out the defamation suit threat letters and refused to accept Win Brown’s apology. Robust debate over the wisdom of the North Harbour plan and other City activities was muted. And we were denied the right to hear what members of our community had to say about City affairs.

But there are no police and prosecutors whose job it is to defend free speech. The burden to keep our speech free and to vindicate other Charter rights falls on us as individuals and as members of organizations such as the BCCLA. So our thanks go out to John Dixon and the BCCLA, who took up the cudgels on our behalf and brought their lawsuit against the City of Powell River.

They did so very well. At first, the City filed an elaborate statement of defence. The City withdrew that defence after the election last November; their threats to sue City citizens to silence their free speech had been a major issue in the runup to the election. So, while the lawsuit was unopposed by the City at the end, that does not make the case a slam dunk. The court must still be convinced that the plaintiffs had rights and that those rights were violated, and in this case the court did not grant all the relief requested.

The court first determined that John Dixon had the right to sue, known as standing, because he had suffered personal harm: he owns property in Powell River and his taxes paid for those threatening lawyer’s letters. As well, as a citizen he has the right to speak freely and to hear what others had to say about government actions, and those rights were violated. So, the court recognized that freedom of expression includes both the speaker’s right to be heard and the listener’s right to hear. The court did not decide whether the BCCLA had standing, or the right to sue, concluding that it was unnecessary to do so.

Next, relying on decisions from other provinces, the court concluded at paragraph 46 of the Reasons for Judgment that a government has no right to sue its citizens for so-called defamation:

. . . [G]overnments cannot sue for defamation for damage to their governing reputations. The Charter enshrined value of freedom of expression is paramount and local governments have resort to other means to protect their reputations from citizens who publish critical commentary about the government itself.

In support of this conclusion, the court quoted at length from another decision, which explains the importance of freedom of expression to a democratic society:

It is hardly necessary to repeat here the importance of the rights protected by s. 2(b) of the Charter, namely “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. These rights are an inherent aspect of our system of government and have been generously interpreted by the courts. Democracy depends upon the free and open debate of public issues and the freedom to criticize the rich, the powerful and those, such as police officers, who exercise power and authority in our society. Freedom of expression extends beyond political debate to embrace the “core values” of “self- fulfilment”, “the communal exchange of ideas”, “human dignity and the right to think and reflect freely on one’s circumstances and condition”: R.W.D.S.U. v. Pepsi-Cola, [2002] 1 S.C.R. 156 at para. 32. Debate on matters of public interest will often be heated and criticism will often carry a sting and yet open discussion is the lifeblood of our democracy. This court recognized in R. v. Kopyto (1987), 62 O.R. (2d) 449 at 462 that “[i]f these exchanges are stifled, democratic government itself is threatened.”

The court then said:

[47] The passage just quoted is equally applicable to this case. It is antithetical to the notion of freedom of speech and a citizen’s rights to criticize his or her government concerning its governing functions, that such criticism should be chilled by the threat of a suit in defamation.

This means that our freedom of speech trumps the City’s claim of defamation. We are all guaranteed the right to speak freely and to hear free speech about our governments, without threat of censorship or lawsuits.

The court also gave Dixon a declaration that the City’s conduct was unlawful and has not been corrected. The court said, at paragraph 48:

I am satisfied that Mr. Dixon’s right to receive communications concerning his local government were infringed by the defamation threat letters. That threat has not been withdrawn in a manner that removes the chilling effect it had on the electorates’ freedom of speech.

The court granted Dixon an order saying that “The defendant City of Powell River lacks any legal basis or right to bring civil proceedings for defamation of its governing reputation, or bring other proceedings of similar purpose or effect, or to threaten to do so,” including by sending the defamation suit threat letters.

With these words, the court said flat out that the City was wrong and acted unlawfully when it threatened to sue its citizens for alleged defamation. In addition, the court held that the City has not withdrawn the threat, so the chilling effect persists.

Finally, the court declined to issue an order forbidding the City to sue or threaten to sue its citizens because of their criticisms of the City. Dixon and the BCCLA asked for this permanent injunction to enforce the declaration that the City violated the Charter rights of freedom of expression. Unfortunately, the court thought that the requested injunction was too broad, and that it was unnecessary, because the City’s “withdrawal of its statement of defence and lack of opposition to this application [w]as some recognition that its conduct was not lawful.” Paragraph 52.

Some of us doubt that the City has truly recognized that they violated our fundamental Charter right of freedom of expression when they threatened to sue citizens for their criticisms of City acts and policies. The withdrawal of the defence against John Dixon and the BCCLA’s suit looks to us like political expediency, after it became crystal clear that threatening to sue citizens for their free speech was wildly unpopular with those citizens.

So, we need to ask Mayor Alsgard and the City Council: Do you truly acknowledge that you trampled on all of our Charter right of free speech when you sent the defamation suit threat letters to citizens of Powell River? Do you understand why it was wrong to send those letters? And are you sorry that you did?

Our work as citizens is cut out for us. The right to free speech means nothing if we don’t use it. We must continue to let the City and our community know when and why we agree or disagree with what the City says and does, and to tell them what we want them to do. And we must tell the Regional District, the Liberal government of British Columbia, the Conservative government of Canada and the opposition parties what we think and know about their doings. Our democratic rights are under constant assault; we must constantly fight back by asserting them whenever we can.

[Editor's note: as we go to press, the Powell River Peak has published their coverage of the court's decision.]