Steven Galloway at UBC, April 11, 2014.John Lehmann/The Globe and Mail
A judge says novelist Steven Galloway can bring a lawsuit for defamation against an alleged sexual-assault survivor and her supporters, and that the lawsuit will not suppress the voices of victims.
B.C. Supreme Court Justice Elaine Adair firmly rejected arguments that Mr. Galloway’s lawsuit, if allowed to proceed, would reverberate around Canada, and have a chilling effect on the reporting of sexual assault. His lawsuit says he did not sexually or physically assault anyone, and that his life has been destroyed by public statements that he did.
Leaving him without access to the courts to defend his reputation would be “extreme and potentially reckless,” Justice Adair wrote in a ruling on Thursday, giving the defamation suit a green light.
The legal case involving Mr. Galloway pits a once-bestselling author “cancelled” by publishers and the wider community, and who now earns a bare living doing physical labour, against the struggles of sexual-assault survivors to be heard.
Mr. Galloway, a former chair of the University of British Columbia’s creative writing program, was fired in 2016 over breach of trust and misconduct. Mr. Galloway and a former student known as A.B. (her identity is covered by a publication ban) had sexual relations between 2011 and 2013 that he says were consensual, and she says were abusive. She complained to the university. In 2015, UBC hired retired B.C. judge Mary Ellen Boyd to investigate, and she found in April, 2016, that on a balance of probabilities he did not commit sexual assault or assault. Two years later, Mr. Galloway filed his defamation suit against A.B. and more than 20 of her supporters.
A.B. and 11 others asked Justice Adair to throw out the lawsuit to protect their freedom of expression. Under B.C. law, a legal action can be shut down if a court deems it to be a strategic attempt to silence and intimidate others. The law is modelled on one in Ontario. (These laws are known as anti-SLAPP, which refers to a strategic lawsuit meant to stifle public participation.) Justice Adair dismissed the defamation case against two of the 11, and part of the case against A.B. and some of the others.
Among the expressions that Mr. Galloway sued for was an art show featuring a “rape narrative” from A.B., backed by online publicity. She also published statements such as: “It’s terrifying to try to exist in the world again, because not only is the man who raped you determined to punish you, so are many powerful people who support that man.”
Under the anti-SLAPP law, Justice Adair was required to decide whether the public interest in allowing the lawsuit to go forward outweighs the public interest in protecting the expression of the ones being sued. There were other hurdles for Mr. Galloway to overcome, too. He had to show that he had a strong chance of winning his lawsuit, and that A.B. and her supporters had no valid defences. (Fair comment is a defence to defamation, but Justice Adair said calling someone a rapist is a statement of fact. She stressed that she was not making a judgment at this stage of the proceedings on whether any sexual assaults occurred.)
Joanna Birenbaum, a lawyer representing A.B., argued that greater weight should be given to ensuring justice for sexual-assault victims, and less to reputational harm. Letting the lawsuit proceed, she argued, would reverberate beyond B.C., and set back the reporting of sexual assault.
Justice Adair disagreed.
“There would be no legal consequences of any kind attached to publicly calling someone a rapist, completely outside of any formal reporting, and no obligation ever to prove the statement was true,” she wrote in her ruling.
“No distinction would be made between making a confidential report to an institution … and publishing on Twitter to the world. There would be no recourse – certainly not in civil proceedings – for the person publicly so accused. It is difficult to see how something so extreme and potentially reckless would be in the public interest.”
The only way to “ensure justice,” Justice Adair wrote, is to let the claims go forward, where they can be tested in court.
Daniel Burnett, a lawyer for Mr. Galloway, said the ruling means his client’s lawsuit can proceed after years of delay.
“The judge rejected the proposition that engaging in an important public discussion gives anyone a license to use Twitter and other unofficial communications to accuse Mr. Galloway of crimes,” he said in an e-mail.
He added that it is unclear whether certain portions of the ruling will be appealed.
Ms. Birenbaum said she worries the ruling will stifle survivors’ attempts to express themselves.
“We are disappointed that A.B.’s artistic expression was treated as ‘fact’ by the court and are concerned that survivors who similarly use art to work through their experiences will be significantly inhibited and that this important form of healing will be cut off.”
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