Galloway Update: Truth Cannot Be Weighed
Galloway Update: Truth Cannot Be Weighed
Part One: A.B.'s Arguments to Dismiss
Dear Readers, here is your first update on court proceedings. There is a lot more to come. The applicants took more time than expected to present (I’ll be writing about this issue in a separate post) and Steven Galloway’s lawyer, Dan Burnett, Q.C., will only begin his oral submissions today. The hearing will then adjourn until June. You can expect a longer comprehensive piece in your inbox soon. Keep an eye out for it.
Note: Day one of the SLAPP hearing in Galloway v. A.B. was marred by technical glitches for counsel, Madam Justice Adair and the public (including me) who were shut out of the first hour of the hearing. It’s my understanding that little transpired above dealing with glitches and other housekeeping, but I will update this page once I receive transcripts of that first hour.
Truth Removed
I entered the first day of the Galloway v. A.B. SLAPP hearing in time to hear A.B.’s counsel, David Wotherspoon Q.C., explain the first explosive issue of the day. For the purposes of the PPPA (SLAPP) motion, A.B. will not be relying on the defence of “truth,” also known as “justification,” despite having pleaded it as a defence for trial. Wotherspoon told the court that the truth of the matter, whether a rape occurred or not, could not be determined without doing a “deep dive” into the evidence, which is precluded in a SLAPP motion, which is why they would not be presenting “truth” as a defense.
A.B.’s position is that:
Galloway’s case has no merit and should be thrown out for being frivolous.
The defence of truth is so complex that it can’t even be tested for merit without a full trial.
So out of the gate Mr. Wotherspoon is on difficult ground. For balance let me present this excerpt from Galloway’s Outline of Argument on PPPA Applications:
AB, despite pleading truth as a defence and having relied on it in her Notice of Application and having filed publicly available affidavit assertions of the rape allegations, now does not rely on the truth defence for this PPPA…She apparently wishes to sting but not to justify; to leave criminal accusations public and hanging in the air, without facing up to the evidence that it never happened. It is an aggravation of damages. Doing so makes the clearing of the plaintiff’s name all the more essential.
While Mr. Wotherspoon told the court that truth should not be considered, A.B.’s second lawyer, Joanna Birenbaum, emphatically repeated the defamations as fact and spent the majority of her time asserting truth of the rape allegations, and/or putting forward arguments that are only relevant if truth of the allegations were established.
She told the court that Galloway was guilty of sexual assault, rape, slut shaming, victim blaming and called him a “serial predator,” while specifically explaining why she thought the term “serial” applied. Ms. Birenbaum’s submissions were by far the most defamatory statements I’ve heard leveled at Galloway since his suspension was first announced in November of 2015.
Ms. Birenbaum didn’t provide any evidence to back up her claims that Galloway committed sexual assault but instead focused on Madam Justice Boyd’s (Ret.) finding that Galloway sexually harassed A.B. as defined by UBC policy. Ms. Birenbaum suggested that Madam Justice Boyd (Ret.) found that the harassment finding meant that the consensual affair was in fact “rape” due to power imbalance. But the Retired Justice made no such finding.
Galloway was cross-examined on the issue and stated:
That particular portion of my interview with Justice Boyd was maybe three minutes of a nine-hour conversation where I was entirely focused on the allegations of sexual assault.
Question:
Justice Boyd got it wrong, is what you're saying?
Answer:
In that particular instance I believe Justice Boyd was not provided with the complete set of facts, yes.
Mr. Wotherspoon told the court that Madam Justice Boyd (Ret.) didn’t find that on a balance of probabilities the assaults “didn’t occur” but that she found on a balance of probabilities that she couldn’t find that they “had occurred.” In the case of the first alleged assault the Retired Justice’s exact words are:
I am unable to find, on a balance of probabilities, that the violent event described by MC occurred in March of 2011 or at all.
It is the position of A.B.’s counsel that Madam Justice Boyd’s (Ret.) findings on the sexual assault were incorrect but that Boyd’s determination on a sexual harassment workplace policy finding (which is in dispute) proves the rape allegations that were found to have not happened on a balance of probabilities.
Going further, Ms. Birenbaum argued that Madam Justice Boyd’s (Ret.) description of the three alleged assaults (two alleged physical assaults and one alleged rape) represented outdated thinking since, “the definition of rape as the penetration of a man by a woman was removed from our criminal code in 1982.” Ms. Birenbaum then told the court all three assaults should be considered rape thereby tripling the number of rape allegations against Galloway.
Ms. Birenbaum also told the court that one of the reasons Galloway was fired from UBC was for excessive consumption of alcohol with students, but this is contradicted by the Retired Justice’s findings on the issue of alcohol which can be found in my 2018 Quillette article that defence counsel introduced into evidence:
I entirely dismiss the general complaints that the Respondent intentionally created a culture where students felt pressure to participate in drinking sessions, whether on or off campus, that he plied students with alcohol or otherwise went about deliberately creating a sexualized environment.
From The Boyd Report as printed in Quillette
Ms. Birenbaum also suggested to the Court that because Galloway stated that he was not initially aware of who had accused him at UBC (and had to deduce it) that his uncertainty was possibly due to the number of potential victims he had to choose from. She also suggested a known falsehood that has been floating around social media since Galloway won an arbitration award after being fired from UBC, which is that Galloway’s guilt can be inferred because the Faculty Association withdrew his termination from his arbitration process.
Arbitrator John Hall specifically dispelled this falsity in his written decision for a supplemental award (after UBC breached the terms of their non-disclosure agreement) by specifically pointing out that parties may be motivated to withdraw termination for any number of reasons. To clarify the issue Hall cites Globe and Mail (The) and CEP, Local 87-M:
"Parties settle grievances for a variety of reasons which may be unrelated to liability or wrongdoing….Employees may settle discharge grievances not because they accept that they have engaged in culpable misconduct warranting dismissal, but because they need money as they are now unemployed and can't afford to wait the weeks, months or years for their grievance to be decided.”
At the same time as Ms. Birenbaum repeated the defamations against Galloway, she simultaneously argued that proven falsehoods in A.B.’s evidence should be completely ignored, explained away and/or blamed on Mr. Galloway.
I will write more about the specific issues around A.B.’s credibility in a forthcoming post but for now just let me say that documents A.B. disclosed, after applying for leave to appeal, contained information that contradicted her testimony under cross-examination.
To attempt to explain this, Ms. Birenbaum told the Court that A.B.’s answers were “truthful,” but that due to the trauma of being raped by Mr. Galloway there are certain memories that A.B. has lost access to. She therefore changed her answers under subsequent cross- examination because she had been able to refresh her memory when the documents ordered were finally produced (the fight over these documents lasted a year). Even then, Ms. Birenbaum told the Court, A.B. had to do so with the assistance of her legal counsel, because to read them on her own was too risky and “she wouldn’t survive the process.”
Ms. Birenbaum then told the Court that A.B.’s memory loss does not tarnish her credibility but instead provides another example of the harm Galloway caused by raping her.
The Power Of A.B.’s Art
Mr. Wotherspoon addressed “A.B. defamation 2,” which involves A.B.’s art show and which I will refer to as “The Exhibit.”
Because of the media ban I cannot link to the show in question or A.B.’s past artistic projects, nor can I describe them in any detail that would identify her. A.B. is a fine art photographer who showed at galleries and sold prints online and through charity auctions.
Her two most widely known photographic projects are a series of blurred photographs that depict what Madam Justice Boyd (Ret.) referred to as “women's faces in apparently orgasmic states.” The second and most prominent is her photographic study of the ritual slaughter of animals. These are fine art photographs of dismembered animals coupled with her poetic writings on the beauty of ritual animal slaughter, death and blood.
Mr. Wotherspoon told the Court that The Exhibit was a powerful piece of art as well as a means of therapy for A.B. to heal the damage caused by Galloway’s assaults. A.B. was terrified, Wotherspoon said, because at every turn they had to think about whether Steven Galloway would find out about The Exhibit and then set out to punish her.
At the same time, Wotherspoon told the Court that The Exhibit wasn’t even about Galloway but rather about the universal experience of reporting sexualized violence to a large institution. He then said that the only connection between The Exhibit and Galloway was the one Galloway made himself by taking legal action against her. Wotherspoon said Galloway is not a victim and his conduct is a continuation of his abuse.
“He has chosen to be a character in the exhibit,” Wotherspoon said, “and he has no right to be a character in it.”
The Exhibit is composed entirely of redacted versions of A.B.’s statements to Madam Justice Boyd (Ret.) in which she claims Galloway raped her. But Wotherspoon told the Court that A.B. significantly modified the text turning it into a new artistic expression and that this was the power of it. A.B. could have kept silent but she reported.
“That’s not malice,” Mr. Wotherspoon said, “That’s courage.”
West Coast LEAF’s Application To Intervene
West Coast LEAF is one of the most respected and effective legal advocacy groups in Canada. The organization was founded in 1985 at the same time as the national organization Women’s Legal Education and Action Fund, known simply as LEAF. On the face of it, having West Coast LEAF apply to intervene against his case was certainly a troubling optic for Galloway but with a little scrutiny the intervention carries significantly less weight.
Joanna Birenbaum is the former Legal Director of LEAF and David Wotherspoon is West Coast Leaf’s pro bono counsel. The Honourable Madam Justice Adair dismissed West Coast LEAF’s application to intervene and in her Reasons for Judgment gave one reason as being that A.B.’s application to dismiss “very closely parallels points that West Coast LEAF proposes to argue.”
Despite Ms. Birenbaum and Mr. Wotherspoon’s close ties to West Coast LEAF, which were not disclosed to the Court, Ms. Birenbaum said that she took exception to the fact that Galloway stated that A.B. does not speak for survivors of sexual assault because he opposed West Coast LEAF’s intervention. She then presented Galloway’s objection to the intervention (which had been declined) with indignation and the inference that it was hypocritical.
“I was a bit surprised to see this,” Ms. Birenbaum told the court, “Those words can’t lie in the plaintiff’s mouth.”
Arguments to Dismiss for the Public Good
On her final day of oral submissions Ms. Birenbaum addressed the final test of the PPPA: That to weigh the importance of the expressions against what can be proven is within the public good by promoting healthy robust public dialogue. Ms. Birenbaum’s position is that even false allegations of sexual assault need to be protected in order to promote women coming forward with sexual assault allegations.
“What if it is a false report?” Ms. Birenbaum said. “We don’t have a systemic social problem of false reports; we have a systemic social problem of under reporting.”
Ms. Birenbaum then told the Court that 100% of sexual assault allegations are labelled as false by the accused. She specifically noted that this is a gendered issue and that it’s men who call sexual assault allegations false because they say the women who accuse them regret the relationship, or she wants his job, or wants custody of their children. Ms. Birenbaum told the Court that this is always the case.
Ms. Birenbaum equivocally stated that Galloway v. A.B. should be dismissed because to do otherwise, whether the allegations against Mr. Galloway are true or not, would silence survivors of sexual assault and further reduce reporting of sexual assault by creating “libel chill.”
“The concern with the false report is a foundational rape myth,” Ms. Birenbaum said.
But when it comes to rape myths Birenbaum continually presented arguments that men are always guilty. She repeatedly inferred or stated Galloway’s guilt without presenting any evidence, all the while telling the Court that “truth” cannot be weighed at this stage. But when it comes to Steven Galloway, she clearly wants to weigh it.
“He denies sexual assault,” Ms. Birenbaum said, “as do most men accused of sexual assault.”
