Gag me not

In 2016, Ontario comedian and radio personality Mike Bullard was charged with criminal harassment and harassing communication and later with breaching court orders because he failed to follow the bail conditions imposed on him related to the first two charges. In 2018, he pleaded guilty to harassing communication and breaching court orders, having been discharged on the criminal harassment charge at the preliminary hearing.

Following completion of the criminal case, Sarah Boesveld wrote an article for Chatelaine about the story, based largely on an interview with the victim, Cynthia Mulligan.

At this point, Bullard (the plaintiff) brought an action for defamation against Rogers Media, publisher of Chatelaine, Boesveld and executive editor Christina Vardanis (the defendants), who in turn brought a motion to have Bullard’s action dismissed, pursuant to Ontario’s Courts of Justice Act, section 137.1; known as anti-SLAPP legislation.

The background

Bullard and Mulligan were involved in a romantic relationship for several months in 2016. As she described in the Chatelaine article, he “got very intense very quickly.” After she ended the relationship, despite her repeated requests that he stop, his texts and phone calls became “relentless.”

Mulligan reported his behaviour to the police, who gave him first one and then two more warnings when he did not stop communicating with her.  He was charged criminally, at which point he lost his job with CFRB radio. Once he lost his job, his private work also dried up.

Bullard’s lawyer described his behaviour as “wilful blindness fueled by love” when the guilty pleas were entered in 2018. Not surprisingly, Mulligan saw it differently. As she wrote in her victim impact statement:

“No woman should ever have to go through this simply because she ended a relationship.”

Once the criminal matters were dealt with, the story moved into the civil courts, with Bullard’s defamation action.

Freedom of expression

SLAPPs, strategic lawsuits against public participation, are lawsuits initiated against one or more individuals or groups that speak out or take a position on an issue of public interest. These lawsuits, including the threat of them, have the effect of gagging free speech through intimidation.

Anti-SLAPP legislation is intended to protect individuals and organizations from such silencing. Section 137.1 of Ontario’s Courts of Justice Act sets out the purposes of the legislation as being:

“(a) to encourage individuals to express themselves on matters of public interest;

“(b) to promote broad participation in debates on matters of public interest;

“(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

“(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.”

Threats by abusive men to sue survivors of their violence for defamation are not uncommon. Even when no lawsuit surfaces, the threat itself can have a chilling effect because women feel silenced and afraid to tell their story, even to the police, because they are so afraid of being sued.

Some such lawsuits have been successful: almost 10 years ago, two Ancaster sisters told their family that an uncle had sexually abused them when they were children. He responded by suing them for libel and defamation, even though they did not go to the police and he was not criminally charged. The uncle was successful, and the women were ordered to pay him $125,000 in damages.

The truth will out

In making its decision in the Bullard case, the court concluded that the article related to a matter of public interest:

“In my view, the comments are a matter of public interest as they relate to gender-based harassment which is a legitimate area for public concern.”

Justice McKelvey noted that Ballard did not establish malice on the part of the journalist or the publisher:

“It is significant in my view that virtually all of the facts and opinions expressed in the Chatelaine article mirror those which Ms. Mulligan expressed in her victim impact statement.”

According to Justice McKelvey, Bullard did not establish that the article had a negative impact on his career, because he was fired by CFRB at the time he was charged, two years before the Chatelaine article was published:

“It is not surprising in these circumstances to see that Mr. Bullard’s history of well-paying contracts disappeared virtually overnight after the charges were laid and he lost his employment with Bell Media and CFRB.”

In dismissing Ballard’s action, Justice McKelvey wrote:

“I do not view the Chatelaine article as one where the statements are delivered full of lies, vitriol and obscenities. Nor do I view the Chatelaine article as damaging the plaintiff’s reputation in a way that is inconsistent with the damage which had already occurred. . . Most of the material facts in the article are demonstrably true and the comments in the article represent fair comment . . .

“I am also of the view that the value of freedom of expression is high in this case. Gender based abuse is recognized as a serious social problem in our society. It is generally understood that there are systemic barriers to reporting this type of activity. The consequences of gender based harassment are too often severe and the public interest in expression on this topic is high.”

Score one for the good guys.

One thought on “Gag me not

  1. Great article Pam Cross! So good to know that the courts are finally starting to respond adequately to violence against women.

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