Civilly Protect Sexual Assault Survivors:A Call to Amend Libel and Slander Laws in the Wake of S-12

Rebecca Jaremko Bromwich and Mark Bourrie

Maya Angelou said that “there is no greater agony than bearing an untold story locked up inside you.” Medical and psychological research substantiates that telling our own stories can be beneficial to the mental health to those who tell and those who hear them. It is crucial for us to all be able to tell and own our truths. The watershed #METOO movement demonstrates the power of sharing stories, and the importance of hearing them to those who have been victimized and thought they were alone. Yet, as H.G. Watson notes in this article, too often Canadians who talk about the sexual assaults, harassment, or other victimization they have survived, are sued in defamation for telling their stories.

Among other things, Canada’s new Bill S-12 , An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act which received Royal Assent on October 26, 2023, will amend the Criminal Code to permit sexual assault survivors to identify themselves, and to tell their own stories even where a publication ban has been ordered in their cases. We strongly feel this law reform is a good step towards enabling survivors of various traumas to tell their truths, and it should be followed up with law reform in a similar spirit in the civil realm.

Currently, when a survivor tells her (or his) story, even after the passage of S-12, they run the risk of being sued civilly for defamation by the person whom they allege to have been assaulted by. It is not just conceivable, but common enough to have become a type of case we find ourselves too often litigating, for a survivor to be sued for telling what she (or he) believes to be their truth. This even extends to instances where the survivor has reported the assault to police. Under the current laws relating to defamation in Canada’s provinces and territories, such as the Ontario Libel and Slander Act, 1990 , a person is vulnerable to being sued for defamation even where they make a police report.

While assaults are prosecuted as crimes, the law of defamation is almost invariably argued in a civil context, where there is little or no meaningful legal aid funding, and people must pay significant sums of money to be represented if sued. Libel suits can be filed where a person is alleged to damage another’s reputation through written communication, and slander can be alleged where the statements are made orally. Litigants are unlikely to recover those funds even if ultimately vindicated. Even if a defendant wins a lawsuit, and no libel or slander on their part is found, they may financially suffer, and can certainly endure stress and be re-traumatized in the legal system. We represent civil defendants in this position, who have spent years of stress and fortunes of money defending themselves for telling their stories. Truth is a total defence to defamation, but it takes a long time to litigate that.

A SLAPP lawsuit, which stands for "Strategic Lawsuit Against Public Participation," is a legal action filed with the intention of silencing or intimidating individuals or groups who have spoken out on matters of public interest. The target of a SLAPP lawsuit is typically someone who has criticized a person, organization, or government entity. These lawsuits are often used as a means to discourage free speech, activism, and public participation by burdening the defendant with the costs and stress of a legal battle. Quebec, Ontario, and British Columbia do have Anti- SLAPP laws, but even in these provinces courts are circumscribed as to where they rule a lawsuit to be a strategic abuse of process, as is shown by the Supreme Court of Canada in Hansman v. Neufeld, 2023 SCC 14

SLAPP lawsuits can take various forms, including defamation, libel, slander, and other legal claims, but their primary purpose is not necessarily to win a legitimate legal judgment. Instead, the objective is often to silence critics; deter public participation; and punish dissent. It is a convenient benefit that vexatious SLAPP plaintiffs can severely burden defendants financially with legal costs, even where the defendants are ultimately successful. Encouraged by the widely publicized trial between Johnny Depp and Amber Heard (where success was actually divided), vexatious plaintiffs have much incentive to seek to destroy those who complain about them, and too often try to use the courts as tools in their abusive arsenals.

Now that S-12 has received Royal assent and Canada, at the Federal level, has recognized the value of victims of crime being able to express themselves about what happened to them, the provinces and territories should follow suit and revise their anti-defamation legislation to provide survivors of assaults, harassment, and sexual violence, better protection against SLAPP lawsuits intended to prevent justice from being served. Survivors need to be able to talk about what happened, and the public should hear their stories.