Malice Recklessness And A Disaster For All
14 Takeaways From The Galloway SLAPP Ruling
Dear Readers, thank you as always for your patience as I’ve worked my way through Madam Justice Adair’s decision on the SLAPP applications in Galloway v. A.B.. I’m preparing a deep dive to contextualize this decision in relation to what it means for the defendants, the plaintiff, sexual assault victims, CanLit and Canadians in general, but while I plug away on that, here are 14 things you need to know about this landmark decision.
1. First Reactions Didn’t Match The Result
The ever-attentive Jonathan Goldsbie at Canadaland was quick out of the gate on Twitter when, less than two hours after the decision was emailed to Galloway and all the defendants (Canadaland has used the defendant Chelsea Rooney as a source for their reporting), he declared the decision “complex,” ran the numbers in a spreadsheet like a sportsbook and tweeted out what must be the first ever SLAPP hearing scorecard.
Mr. Goldsbie is correct that the case is “complex” but there were no “split decisions.” A numerical breakdown of the result (which defamations were “trimmed” from the case and which will proceed to trial) obscures the substance of Madam Justice Adair’s reasons for judgment.
Madam Justice Adair found, unequivocally, that Galloway’s suit has substantial merit and does not have the classic features of a SLAPP suit. She found grounds to believe that ALL of the defendants had claims against them with substantial merit, while releasing two defendants from the case, Annabel Lyon on a limitations defence, and Alicia Elliott on the grounds that “Mr. Galloway has not met his burden to show grounds to believe that fair comment is not a valid defence.”
Madam Justice Adair also found that there is a strong public interest for the case proceeding to trial. As she wrote:
Mr. Galloway deserves to have his day in court to potentially vindicate his reputation.
2. Professor’s Actions Lead To “A Disaster for Everyone”
UBC isn’t actually being sued, but the university itself remains on trial in the court of public opinion. In July 2018 UBC published a statement claiming that the faculty and staff who handled the case were “professional and principled in all of their dealings and were guided throughout by the relevant policies and prescribed processes.” They were later fined $75,000 for this statement. Madam Justice Adair’s findings render this claim a total falsehood.
Here are some highlights from Madam Justice Adair’s decision pertaining to the conduct of Galloway’s mentor, Professor Keith Maillard, former friend, Professor Annabel Lyon and Chelsea Rooney, his former student and a complainant enlisted by UBC to solicit additional allegations against Galloway.
Maillard and Lyon were motivated by malice toward Mr. Galloway:
In my view, and in the context of the PPPA Applications, all of this provides grounds to believe that Professor Maillard and Professor Lyon were reckless so as to meet the legal test for malice
Maillard and Lyon did not engage in due diligence:
In November 2015, Professor Maillard uncritically accepted A.B.’s version of events, and he condemned Mr. Galloway as guilty of crimes without ever speaking to or contacting him again.
On the record, Professor Maillard and Professor Lyon asked A.B. no questions. They simply accepted her version of events as accurate, and relied on what she told and provided to them as supporting and proving what she claimed to have happened. This would not have been a problem had Professor Maillard and Professor Lyon gone directly to the Dean with A.B.’s claims. But they did not.
Maillard and Lyon acted as A.B.’s advocate during a faculty meeting they represented to the Court as an impartial meeting:
Professor Maillard and Professor Lyon embraced their roles as A.B.’s allies and advocates in presenting what A.B. described as “our case” against Mr. Galloway.
Maillard and Lyon deceived Galloway while supporting A.B.:
Neither Professor Maillard nor Professor Lyon contacted Mr. Galloway to warn him about what was going on, or to get his side of events. Indeed, based on Professor Lee’s notes of the November Meeting, Professor Maillard went out of his way in a phone call with Mr. Galloway to deceive him. Both Professor Maillard and Professor Lyon refused to answer Mr. Galloway’s phone calls.
Maillard and Lyon’s conduct led to “a disaster for everyone” involved including A.B.:
Eventually A.B.’s complaint was reported to the Dean, who then instituted the Boyd Investigation. Mr. Galloway does not complain about A.B.’s letter to Dr. Piper or the actual report to the Dean. However, it can hardly be said that the path Professor Maillard, Professor Lyon and A.B. took to arrive at the Boyd Investigation was preferable. Instead, it could be described as a disaster for everyone. Among other things, it placed A.B. in the position where she felt compelled to manufacture evidence to be presented at the November Meeting. This cannot be described as supporting a victim.
Maillard and Lyon’s conduct hurt A.B.:
However, in the context of what occurred at the November Meeting, Professor Maillard’s and Professor Lyon’s unquestioned belief in A.B. did not help her.
Rooney’s conduct was reckless and motivated by malice, spite and ill will to Galloway:
She was clearly pre-disposed to believe the worst of Mr. Galloway, and motivated (with encouragement from A.B., Professor Maillard and Professor Lyon) to recruit others to her point of view.
Rooney was motivated by malice to curtail Madam Justice Boyd’s findings in order to advance her own problematic position:
Her malice respecting Mr. Galloway extended to her rejection of the conclusions reached in the Boyd Report. Her expressions were not about truth-seeking, or promoting truth-seeking. Rather, Ms. Rooney’s motivations were about confirming and vindicating her own very bad opinions about Mr. Galloway, and her deep dissatisfaction with the Boyd Investigation and with the conclusions in the Boyd Report.
3. A.B. Lied About The CBC To Turn Galloway’s Colleagues Against Him
In April I reported that insiders at CBC disavowed A.B.’s lie that their legal team or any producer at CBC vetted her allegations against Galloway. This evidence wasn’t presented to Madam Justice Adair, but she arrived at the same conclusion:
The CBC Document was a tissue of lies, which A.B. knew was going to be presented at the November Meeting.
And Madam Justice Adair was clear on the purpose of this lie:
Indeed, its purpose was to provide “evidence” to “build the case” against Mr. Galloway. The CBC Document was a deliberate fabrication, designed to persuade those attending the November Meeting that Mr. Galloway was guilty of rape, that lawyers at the CBC who had heard A.B.’s story had accepted it as reliable and true, and that the story would be taken to a national audience unless the faculty acted.
4. A.B. Received A UBC Masters Degree With An Incomplete Thesis
In April I also reported that during cross examination Lyon admitted to signing off on A.B.’s incomplete thesis, thereby conferring a degree on her that she had not earned. Maillard denied this in cross examination but Madam Justice Adair confirmed the thesis was incomplete:
A.B. had not yet finished her thesis. Professor Maillard was prepared to accept what she had completed as sufficient to meet UBC’s requirements to graduate. Professor Lyon, A.B.’s second reader, was not. Eventually, Professor Maillard persuaded Professor Lyon to accept what A.B. had produced, so as to allow A.B. to graduate. However, Professor Lyon did not feel comfortable doing this, and later, after Mr. Galloway had been suspended, she went to the Dean of Arts to tell him what she had done.
The fact that UBC has seemingly taken no action on this issue calls into question every degree the university has awarded and lowers the value of the credentials of the entire Alma Mater of UBC. It even more directly calls into question the academic integrity of the UBC School of Creative Writing itself.
5. A.B. Threatened Faculty To Make Them Prejudge & Act Against Galloway
In April I also reported that A.B. threatened faculty in order to convince them to take action against Galloway outside of regular reporting channels. A.B.’s threats are now confirmed in Madam Justice Adair’s findings with there being grounds to believe that faculty at UBC acted on them:
There are also grounds to believe that Professor Maillard and Professor Lyon were motivated (at least in part) to do what A.B. wanted because of the pressure that would have been created by A.B.’s threats…to go to the national media and to bring proceedings against members of the Creative Writing Department based on a failure to act.
Madam Justice Adair directly quotes Galloway’s testimony:
She wanted, as she said in the e-mail to Keith Maillard I have read, she wanted me ostracized, and I was.
6. A.B. Lied About Her Affair With Galloway To Distort Evidence
In September I reported that prior to accusing Galloway of rape A.B. had made complaints of sexual harassment against him (specifically that he had served her alcohol and propositioned her for sex) while not disclosing to UBC that she had just ended a consensual sexual relationship with him. A.B. also denied any relationship with Galloway so that she could convince Maillard and Lyon that a voicemail Galloway left her was a confession of rape when Galloway was clearly offering to “turn himself in,” by which he meant disclosing their affair.
Madam Justice Adair found Maillard and Lyon’s acceptance of this lie to be part of their recklessness:
In relation to Mr. Galloway’s longer voice-mail message (Voicemail No. 2), it appears never to have occurred to either Professor Maillard or Professor Lyon to pause and think whether it made any sense at all for Mr. Galloway to leave a voice- mail message, one in which he indicated a desire to come clean to his mentor (Professor Maillard) before A.B. spoke to Professor Maillard, to confess (to A.B., his accuser) to a very serious crime (rape). Rather, both Professor Maillard and Professor Lyon accepted without question A.B.’s version of events, and (as they were being strongly encouraged by A.B. to do) they treated Voicemail No. 2 as further proof of Mr. Galloway’s guilt. That was the version of the facts presented to the attendees at the November Meeting.
Madam Justice Adair’s decision shows that A.B.’s counsel, Joanna Birenbaum, publicly spread a falsehood when she wrote in an open letter:
“MC [AB] never denied a relationship existed, but rather described it as abusive.”
As Madam Justice Adair wrote:
In A.B.’s e-mail communications with Professor Maillard and Professor Lyon before the November Meeting, A.B. never mentioned that she and Mr. Galloway had been in a relationship beginning in 2011 and ending in 2013. Rather, her communications imply the opposite (that she and Mr. Galloway had “no ‘relationship’ whatsoever”), and that Mr. Galloway was continuing to prey on and was a serious threat to her.
7. Twitter is Misery
Some of the most prescient commentary in Madam Justice Adair’s decision relates to Twitter and how the platform has contributed to this entire mess. The defendants argued that the case should be dismissed so that they can continue using Twitter in the same manner for which they are now being sued.
A number argue that they feel they have been silenced, and this litigation has had, and will have, a chilling effect on their expressions, particularly their use of Twitter.
But Madam Justice Adair rejected this:
There is no public interest in promoting the careless or reckless use of Twitter. Rather, in my view, the public interest lies in promoting the opposite.
But perhaps she captured it best in her response to the defendant Theresa Smalec’s argument that her right to Tweet is at risk of being stifled:
If Ms. Smalec feels the need to be more measured and thoughtful in her expression, particularly on a medium such as Twitter, I consider that to be in the public interest.
8. Artistic Expression Is Not Being Curtailed
In the summer of 2018 A.B. enlarged pages of her accusations against Galloway from her formal statement to Justice Boyd, hung them in a small gallery in New York and published portions of them to the internet as an art exhibit. She told the court she did this to address the trauma of her experience as a sexual assault survivor and that her artistic expressions should therefore be protected in the name of the public interest. Madam Justice Adair agreed that artistic expression is worthy of protection:
I accept that, broadly speaking, there is a significant public interest in protecting expression themotivation of which is to allow the author of the expression to address traumatic personal experience, of which sexual assault is clearly an example.
But the court disagreed that A.B.’s exhibit was as described by A.B.:
Although presented in an artistic form, the statements in A.B. No. 2 would be understood by a reasonable person, in the context in which they were presented, as statements of fact. The “sting” of the Art Exhibit is that the Professor – that is, Mr. Galloway – committed rape and sexual assault of A.B.
She also did not see the therapeutic value in defamation:
Implicit in A.B.’s position is that she would be unable to create, and unable to gain any therapeutic benefit from creating, without defaming Mr. Galloway through A.B. No. 2. I do not find this persuasive. All art involves making choices. A.B. chose the subject matter of the Art Exhibit, and she chose what to communicate in it and the artist’s statement that accompanied it. In addition, the Art Exhibit was designed for public display: that was the point of it. Not only was the Art Exhibit (with A.B. No. 2) available for public viewing at the Gallery, but it was also available for viewing on both the Gallery’s and A.B.’s website (where is remains so, with a website address that identified A.B. by name). The broad publication of the Art Exhibit’s graphic content (only some of which Mr. Galloway is suing over) had great power to damage Mr. Galloway’s reputation. It was a public demonstration of A.B.’s malice toward Mr. Galloway.
Mandi Gray and A.B.’s counsel Joanna Birenbaum do not agree with Madam Justice Adair.
9. Galloway Has Suffered Serious Harm
In June I reported on defence arguments that Galloway had not sustained any damages from the defamations for which he is suing, or if he did suffer damages then they were in fact his own fault because he kept talking about them. Madam Justice Adair did not agree:
In my opinion, the reputational harm to Mr. Galloway from being called a rapist and someone who has perpetrated criminal acts is likely serious and sustained. Litigation appears to be the only available avenue for possible rehabilitation of Mr. Galloway’s reputation.
Madam Justice Adair acknowledged the spectrum of “serious” harm that has been caused to him:
On the record, the harm – monetary, professional and non-monetary – suffered by Mr. Galloway is serious and extensive. Every statement, and every post on Twitter, capable of bearing the meaning that Mr. Galloway is a rapist and sexually assaulted A.B., is defamatory and contributes (often in the thousands of viewers) to maintaining and repeating the allegations of sexual assault and criminal misconduct against him.
In my opinion, Mr. Galloway has a legitimate justification for bringing these claims, namely, to seek to remedy legitimate and serious harm, and that harm is not limited to monetary harm.
Madam Justice Adair put to rest the notion put forth by defence that Galloway had ruined his own reputation by discussing the allegations publicly:
When Mr. Galloway mentioned the sexual assault allegations, it was in the context of denying the claims.
Madam Justice Adair also put to rest the defense’s assertion that Galloway’s reputation was sufficiently destroyed between 2015-2017 that later defamations had no effect:
It cannot be said that, by 2018, statements that Mr. Galloway was a rapist carried no sting and resulted in no harm. The opposite is true.
10. The Court Condemned Online Mobbing
The defence argued that Galloway couldn’t prove damages led back to any one person since so many people had attacked him online. On this point Madam Justice Adair agreed with Galloway’s counsel:
In Mr. Burnett’s submission, it [the defence’s argument] treats Mr. Galloway as acceptable roadkill, and his reputation as expendable. Further, in Mr. Burnett’s submission, it ignores the dynamic of a mob and the collective effect of many punches. In his submission, the law of defamation rejects such an attitude.
The Court also agreed with Mr. Burnett that the defendants cannot minimize the sting of being called a rapist:
Mr. Burnett, in response to arguments advanced by some of the Applicants that they did not publish as many times or to as large an audience as others or had a tiny following on Twitter, submits that a single publication painting someone as a rapist, posted for the entire world, is a grave matter. I agree.
11. The Most Ironic Defence Brought By Chelsea Rooney
Hands down the most out-of-left-field defence put forth was by Chelsea Rooney, who argued that Galloway had “implicitly consented” to being called a rapist because Galloway had sent her a cease and desist letter early on an early defamation but failed to do so after that, and therefore he had consented to being called a rapist.
Madam Justice Adair’s response, dismissing this argument:
The “consent” cannot be passive.
12. Mandi Gray Perpetuates Rape Myths
Of all the defendants, Mandi Gray is most closely associated with “sexual assault activism”—which appears to be her full-time occupation. In respect to Ms. Gray’s focus on Mr. Galloway, Madam Justice Adair was scathing:
In my opinion, Ms. Gray made a deliberate attack on Mr. Galloway, labelling him as someone guilty of criminal acts. Her conduct was reckless and malicious. Her object in posting her statements on Twitter was for a broad audience to see them.
The Court was clear on the damage that could result:
There is, in my view, little public interest in protecting reckless and malicious accusations of criminal conduct, especially where published on a social media platform such as Twitter. Rather than promoting responsible reporting of sexual assault and supporting victims, such reckless expressions risk perpetuating myths and stereotypes, a result that is strongly contrary to the public interest. These expressions weigh at the lower end of the protection-deserving scale.
In response to the judgement, Gray took to twitter to denounce Madam Justice Adair in a now deleted tweet:
On the record, however, this is at best a gross mischaracterization of the facts. In dealing with this particular defamation, Madam Justice Adair wrote:
Gray No. 7 shows Ms. Gray pictured at the opening of the Art Exhibit, which is identified by name and Ms. Gray identifies A.B. by her real name. In context, a reasonable person, acquainted with Mr. Galloway, would infer that Gray No. 7 was of and concerning Mr. Galloway, and infer that Mr. Galloway had committed sexual violence upon A.B.
13. We Can Expect A Fair Trial For All
Madam Justice Adair points out that a trial will mean a chance for any party involved to be vindicated, including A.B.:
Allowing Mr. Galloway’s claims to proceed provides A.B. with at least the opportunity for complete – and public – vindication.
Everyone involved can expect fairness:
The claims – including A.B.’s claims that she was raped and sexually assaulted by Mr. Galloway, and Mr. Galloway’s denials – will be adjudicated by an impartial court. Mr. Galloway’s “power in the Canadian literary community,” assuming it even exists, will be irrelevant.
14. This Case Will Help Survivors Of Sexual Assault & Advance The Interests Of Society As A Whole
The final test for the SLAPP motions was for Madam Justice Adair to weigh the public interest in both sides of the argument. She put a citizen’s right to defend themselves against criminal accusations on the high end of the spectrum of importance.
Accordingly, I conclude that there is a strong public interest in permitting Mr. Galloway’s claims in respect of the Remaining Expressions to continue. In my view, the harm likely to have been suffered by Mr. Galloway from the Remaining Expressions lies close to the high end of the spectrum, and so too does the public interest in allowing his claims in respect of those Expressions to proceed.
Madam Justice Adair was unequivocal on the need to support victims of sexual assault and that “appropriate, compassionate and necessary support and encouragement” for victims to report sexual violence:
The importance of the general subject matter – that victims of sexual assault should be and must be encouraged to report, and be supported when they do – is beyond argument. However, it does not follow from the importance of the general subject matter that the public interest in protecting any particular expression of any of the Applicants outweighs the public interest in permitting Mr. Galloway to continue his claim or claims against that Applicant.
But the Court did not agree that recklessly repeating unfounded accusations of sexual assault, as the defendants have done, was even a matter of reporting:
The Remaining Expressions are not reports of sexual assault at all. Rather, they are statements that would be understood to mean that Mr. Galloway is a rapist and guilty of criminal acts.
Regarding the criminal accusations made by the defendants, the Court placed no importance on a person’s right to recklessly accuse another person of a criminal act.
There is very little public interest in protecting reckless accusations of criminal conduct, and it is difficult to see how doing so could either encourage reporting or support victims of such conduct.
The Court strikes at the heart of the matter by laying out the case against malicious and reckless behaviour. The last paragraph I leave you with succinctly sums up the reasoned arguments many Canadian writers have been making since this scandal broke – a position for which they have been accused of “implicit misogyny” and being “rape apologists” or, as Keith Maillard accused Carmen Aguirre, of being “Men’s Rights Activists.” It is therefore some comfort to have this position plainly restated in our Supreme Court by a respected and impartial (and female) jurist. As Madam Justice Adair writes:
The implication of the Applicants’ submissions is essentially that any public statement, the natural and ordinary meaning of which would be understood to be that a sexual assault was perpetrated by one person against another (in this case, that Mr. Galloway raped A.B.), and regardless of the circumstances in which the statement was published, must be protected. 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. This, in effect, would place all statements concerning that type of claim into the category of absolute privilege. No distinction would be made between making a confidential report to an institution (almost certainly a privileged occasion), 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.
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