If you have followed the news about a recent BC Court of Appeal ruling which permitted a high-profile person accused of sexual assault to bring a defamation case to trial, certain headlines and article ledes may have you feeling nervous.
The Globe and Mail’s report, titled “Sexual assault accusers not immune to defamation suit, B.C. court rules,” began: “People accused of sexual assault have a right to sue their accusers for defamation, British Columbia’s top court has ruled, rejecting arguments that such lawsuits will strike a serious and possibly fatal blow to the reporting of sexual offences.”
Of course, the fact that anyone can attempt to sue anyone else for defamatory statements would make for a much less compelling headline. Whether such a case will be taken up by a court or ultimately be successful is another matter entirely. In the case at the centre of this media frenzy, a court has yet to decide if the defendants will be found liable for allegedly making defamatory statements against the plaintiff.
However, there’s no doubt that reporting on Rooney v. Galloway, 2024 BCCA 8 could have a chilling effect. Sexual assault survivors, who are frequently already nervous about what pursuing justice may entail, may see this reporting and have second thoughts about coming forward with their own allegations.
In this blog post, first I briefly outline the context and rulings in this case. Then, I explain why this case should serve as a reminder for sexual assault survivors and their supporters to exercise caution if or when they make public statements about what they experienced. Importantly, exercising caution should not be equated with complete silence.
These rulings should not dissuade a survivor from coming forward to speak to report these offences to an appropriate authority. By seeking independent legal advice from a sexual assault lawyer, survivors can better understand their rights and options. This knowledge will empower them to make informed decisions about seeking justice for the harm done to them while protecting themselves from experiencing further harm.
What Were the Recent Court Rulings in Rooney v. Galloway About?
In Rooney v. Galloway, the Court of Appeal for British Columbia (“BCCA”) ruled on a number of pre-trial applications under British Columbia’s Protection of Public Participation Act (“PPPA”). This statute is aimed, in part, at dissuading SLAPPs, or “strategic lawsuits against public participation.”
As the Court of Appeal notes: “SLAPPs are ‘lawsuits initiated against individuals or organizations who speak out or take a position on issues of public interest’ in an effort to silence or deter that party from participating in public affairs. SLAPPs are tactical actions that seek to suppress expression on matters of public interest and the goal ‘is not necessarily a legal victory, but a political one: to intimidate and suppress criticism with the threat of costly litigation.’”
In this case, multiple people who made verbal statements, produced artistic expressions, or published statements on social media platforms, were sued for defamation in a tort action by Steven Galloway — a writer, novelist, and former tenured professor. In its summary, the BCCA stated that Galloway “alleges those individuals defamed him by repeating the allegations that he had sexually assaulted, raped, and physically assaulted A.B. who was a former graduate student.”
The court noted: “Twelve of the defendants sought to have his action dismissed under s. 4 of the PPPA on various bases, including that their expression(s) were protected because they were addressing a matter of public interest. The chambers judge allowed Mr. Galloway’s action to proceed with respect to most of the alleged defamatory statements, but dismissed the action with respect to other statements. She dismissed the claim in its entirety against two defendants.”
Certain defendants and the plaintiff sought to appeal parts of the chambers judge’s ruling. In a lengthy decision, the BCCA dismissed all appeals by the defendants and allowed some of the plaintiff’s appeals and cross-appeals while dismissing others.
What Do These Rulings Mean for the Defendants?
In a PPPA section 4 application for dismissal of an action, if the defendant establishes that the proceeding against them arises from an expression relating to a matter of public interest, the onus will fall to the plaintiff seeking to continue proceedings to satisfy a judge that:
- there are grounds to believe the proceeding has substantial merit;
- there are grounds to believe the defendant has no valid defence to the action; and
- the harm likely to have been or to be suffered by the plaintiff as a result of the defendant’s expression is serious enough that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the defendant’s expression.
The chambers judge, who accepted that the defendants had established grounds for the applications, reviewed the alleged defamatory statements presented by the plaintiff and found that most, but not all, of these statements satisfy grounds for proceeding to trial. The BCCA agreed with most of the chamber judge’s rulings, but overturned a few instances where she had dismissed claims against specific defendants or statements.
The ruling is nonetheless troubling for the defendants, particularly in that the Court was satisfied that “there are grounds to believe the defendant has no valid defence to the action.” PPPA applications are intended to be an early stage in the overall litigation process. Defences that require assessments of credibility or inferences from competing sets of facts are generally not dealt with at this stage. It remains for the trial judge to make these assessments and inferences after reviewing all of the evidence at trial and determine if any defences are actually valid.
What Does This Mean for Survivors and Their Supporters?
This case has attracted public attention not only because of the profile of the plaintiff, but also because the #MeToo movement and its calls to believe survivors gained widespread attention as the case was being considered for trial.
The #MeToo movement encouraged an unprecedented number of survivors to publicly state that someone had sexually assaulted or sexually abused them. For a type of crime that had had a history of being significantly underreported, public recognition of the extent of sexual violence reached a new peak.
We have seen a number of efforts and campaigns geared towards showing survivors that they will be taken seriously when reporting sexual violence and not be subjected to pervasive disbelief or otherwise discouraged from pursuing justice. There are fears — in my opinion, very legitimate fears — that reporting around defamation lawsuits such as this one could have a chilling effect on efforts and campaigns like these.
It’s important to remember that both defamation law and anti-SLAPP laws are complex. The particular circumstances that formed the basis for these applications will not be applicable to every case. Moreover, the plaintiff’s allegations that he was defamed and suffered damages have not been proven at trial.
However, the media coverage around this case does present sexual assault lawyers with an opportunity to speak out and publicize what we generally advise survivors to do.
First, if you have questions about your own right to sue for damages or what kinds of statements you should or should not make about what happened to you, a sexual assault lawyer can provide important independent legal advice.
Second, in general, if you are planning to seek or have sought criminal charges and/or a civil tort claim against the person who harmed you, we advise against making public statements before or during proceedings. In cases where a survivor’s credibility is often a key determining factor in success, limiting opportunities for the defendant to pick apart your words in search of inconsistencies is generally advisable.
Finally, while there may be setbacks as survivors become more emboldened to sue or speak out about the abuse they suffered, the door opened by the #MeToo movement can never be closed again. Too many survivors have learned that they are not alone and that they have significant public support. The sheer number of people fighting against systemic sexual and gender-based violence make it unlikely for us to return to a time where silence, skepticism, and cover-ups are the status quo.
Help for Survivors.
At Jellinek Ellis Gluckstein, we understand that survivors often have many questions and concerns when they come forward. By taking the time to answer your questions and address your concerns, we hope to empower you to make an informed decision about how to seek justice for the harm done to you.
If you are a survivor who wants to know more about your legal rights and options, we would be pleased to speak to you as part of a no-cost, no-obligation initial consultation. To learn more, contact us today.