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Excerpt from Blocking Public Participation: The Use of Strategic Litigation to Silence Political Expression by Byron Sheldrick

From Chapter 1: SLAPPs: Courts, Democracy, and Participation

SLAPPs represent a potentially serious threat to political activism and political participation. At a time when we lament the diminished quality of political participation in Canada, as evidenced by decreasing voter turnout, youth disengagement, and general apathy about public issues, it is important to examine critically those structures within our political system that limit and constrain political debate. slapps operate within a highly contradictory context. While one wants to encourage political participation, one also wants to ensure that those who genuinely have suffered a civil wrong have appropriate means of redress. At the heart of this contradictory context are the courts, which must both seek to safeguard democratic practices while also safeguarding their own, far more traditional role as adjudicative bodies.

From Chapter 7: Final Thoughts

SLAPPs, then, represent a very clear legalization of political life. They constitute a strategy of utilizing judicial processes to sideline political activism and block political expression. The targets of these lawsuits are often activists, but often they are also ordinary citizens who have been adversely affected by the exercise of political and economic power. The chilling effect of these lawsuits is difficult to assess, but it certainly cannot be discounted or ignored. Moreover, increasingly, there is evidence that SLAPP-type litigation has moved beyond what might be termed “private matters,” where both parties operate within civil society, to conflicts that take place within our institutions of democratic practice and accountability. In this context, SLAPPs present an even clearer threat to standards of democratic participation and political expression.

Certainly, due process, the rule of law, and access to justice are also important values of our democratic system. However, when judicial processes can be distorted and abused, in order for one party to constrain and silence the political expression of another, the values of access to justice have been ill served. For this reason, anti-SLAPP legislation is needed throughout Canada. The success or failure of governments to implement regulations will be a test of the quality of our democracy.