Permissible Lies, Honest Belief and Non-Criminal Rape

Three Dangerous Ideas Rejected by the Supreme Court of Canada

On Thursday, October 10th, the Supreme Court of Canada (SCC) rejected three applications for leave to appeal filed by eight defendants in Galloway v. A.B.. The defendants had accused writer and former UBC Chair of Creative Writing Steven Galloway of rape and/or sexual assault and he subsequently sued them for making those accusations. The original accuser was A.B., whose name is protected by a publication ban.

The defendants brought an unsuccessful application in BC Supreme Court to have Galloway’s case dismissed under British Columbia’s Protection of Public Participation Act PPPA), also known as “anti-SLAPP” legislation. Enacted in March 2019, this law provides a mechanism for dismissing frivolous lawsuits that could stifle public discourse on matters of public importance.

In her December 2021 decision, Madam Justice Adair cleared the way for Galloway’s case to proceed against all but two defendants: writer Alicia Elliott and Galloway’s former colleague at UBC, Annabel Lyon. The anti-SLAPP application then went before three justices at the BC Court of Appeal (BCCA) in March 2023, in a series of appeals and cross-appeals brought by the defendants and Mr. Galloway. In January 2024, the BCCA upheld the bulk of Madam Justice Adair’s decision while allowing Galloway’s appeal to add Ms. Lyon back to the lawsuit.

The SCC was the final avenue of appeal for the defendants. The SCC only grants leave in cases involving matters of significant public importance or legal issues deemed worthy or requiring the Court’s consideration (or in some cases, oversight). When denying applications for leave to appeal, the SCC provides no reasons or commentary and generally does not award costs, except in specific situations, such as frivolous or vexatious applications, bad faith dealings, or when, for any reason, fairness justifies an award of costs.

Galloway was awarded costs by the SCC.

In the absence of written commentary from the Court, we can only conclude that the Court reviewed the defendants’ applications and found no matters of public importance, nor any legal issue justifying or requiring their intervention, but determined that some aspect of the applications warranted an award of costs to Galloway.

As insight into the Court’s decision, we have the three applications filed by the defendants to support their appeal, one of which states, “This case cries out for this Court’s attention.”

Here are three issues raised by the defendants:

Application 1: Permissible Lies

Up until this SCC application, the most legally and socially dangerous idea presented by the defendants was the proposition that sexual assault allegations should be protected speech to encourage women to come forward with such allegations – truthful or not.

As A.B.’s lawyer submitted to Madam Justice Adair during the initial anti-SLAPP hearing in BC Supreme Court:

“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.”

Madam Justice Adair rightly rejected this submission in her decision:

“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…”

A.B.’s application for leave to appeal to the SCC contains an equally dangerous (and tautological) proposition: That those making allegations of sexual assault should be permitted to lie without a finding of malice because “sexual harassment and sexual assault complainants are likely to harbor ill will towards their abusers, with good reason.”

As I have previously reported, A.B. admitted under oath to fabricating, spreading and leveraging a false claim that lawyers at CBC had vetted her rape allegations. Madam Justice Adair was unequivocal in her ruling:

The CBC Document was a tissue of lies, which A.B. knew was going to be presented at the November Meeting. 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. Thus, in the CBC Document, A.B. manufactured a story for the occasion.

In her application for leave, A.B. asserted that Justice Adair’s findings on malice perpetuate a detached, unrealistic and problematic view of how a survivor ought to disclose an assault and specifically that:

In terms of the “CBC vetting” email, the chambers judge wrongly conflated the truth of that email with reckless indifference as to the truth of the underlying allegations.

The national issue of importance that A.B. wanted the SCC to consider was an ability for people who accuse others of sexual assault to be given wide latitude to lie without a finding of malice because “ill will towards abusers” is a likely outcome of having been raped or sexually assaulted.

A.B. submitted to the Court that if telling a “peripheral lie in order to be believed” was sufficient to establish malice on a PPPA application then the PPPA would rarely protect sexual assault allegations except for “the perfect victim.”

We’ve now come full circle since 2016 when A.B.’s supporters publicly attacked the writer Margaret Atwood for having the gall to write in Walrus Magazine:

To think that members of a group called “women” are always right and never lie does a great disservice to accusing women and abuse survivors

A.B. asked the Supreme Court of Canada to create a legal exception that not only accepts that women lie but expects and excuses lies from them on matters as serious as sexual assault. They declined.

Application 2: Honest Belief

The second application was brought by Mr. Galloway’s former student Chelsea Rooney and his former UBC colleagues Keith Maillard and Annabelle Lyon. All three were directly involved in the scandal at UBC, so I will refer to them as the “UBC Three”.

In the opening paragraph of the application for leave to appeal, the UBC Three assert that in Hansman v. Neufeld, the SCC held that subjective honest belief in an alleged defamatory statement negates the possibility of finding malice. Put more simply, what they are saying is that if you honestly believe an allegation of rape, you can repeat without legal consequences because you honestly believe it to be true.

The UBC Three submitted to the SCC that the BC Supreme Court and the BCCA erred when Madam Justice Adair found, and the BCCA upheld, that there was reason to believe they had acted with malice. Their application states:

The Courts below in this case carved out a surprising exception to this rule, holding that the failure to “intensively examine” a sexual assault complainant when she discloses the assault creates an inference of malice.

The UBC Three further claimed that Justice Adair found that “conducting an investigation in response to a complaint, and voicing support for, or belief in, a complainant are defamatory, reckless, and (in direct conflict with the honest belief rule) malicious acts.”

In response to this claim Galloway’s lawyer Dan Burnett KC states:

…the applicants erroneously assert in their very first paragraph that the BC Court of Appeal decision created a special sexual assault exemption to avoiding a malice finding, and assert that the decision below held that the failure to “intensively examine” the rape claim before repeating and endorsing it resulted in a finding of malice.

…The quotation marks around “intensively examine” suggest that these were the words of the court below. They were not. No such phrase appears in either decision below.

The UBC Three submitted to the SCC that it was a matter of national importance to weigh in on their honest belief:

The applicants ask this Court to grant leave and confirm there is no sexual assault exception to the rule that there is no malice when a defamation defendant honestly believes their statement.

In reply, Mr. Burnett argued that neither of the lower courts found that the UBC Three held honest beliefs. Madam Justice Adair found grounds to believe that Professor Maillard and Professor Lyon were reckless enough to meet the legal test for malice. Once the erroneous descriptions within their application are corrected, the issue they claim to be of “national importance” vanishes.

Application 3: Non-Criminal Rape

In their application for leave to appeal, the defendants Marcelle Kosman, Mandi Gray, Kiera Anderson, and Ari Rombough refer to themselves as the “Online Defendants” and define themselves as “strangers participating in a heated online debate about institutional responses to reports of gender-based violence.”

What the Online Defendants have in common is that they all publicly stated that Mr. Galloway had committed sexual assault or rape without knowing him or any details about the allegations against him. All four also present themselves as academic or public authorities on sexual assault. At times, their application for leave to appeal reads like the back of a paperback novel:

This application is brought by four strangers, separated by geography, circumstance, and time, who each thought they were participating in a robust—and important—public debate, but have instead found themselves the targets of litigation.

The majority of their application outlines what they call the “firestorm” of public debate following the publication of the UBC Accountable Letter, which defended Mr. Galloway’s right to due process. Their application also names Margaret Atwood nine times, cites her previously mentioned comments in the Walrus magazine as the inspiration for Ms. Rombough to publicly state that Mr. Galloway committed sexual assault, and rehashes arguments about the “chilling effect” of Galloway’s lawsuit that have already been meticulously dismissed by both lower courts.

The novel issue they present as worthy of the SCC’s intervention is their assertion that Madam Justice Adair relieved Galloway of his burden to prove harm because the defamations they made against him (committing sexual assault and/or rape) were criminal in nature.

The Online Defendants argue that Justice Adair’s decision sets a precedent where any criminal allegations (i.e. rape) will automatically defeat a motion to dismiss under the PPPA. They further argue that rape is on a spectrum of which the criminality of the various types of rape are uncertain. As they write:

…the line between criminal and non-criminal conduct is far from clear. Indeed, what constitutes sexual assault—including the meaning of consent between a professor and a student—is itself part of the public debate. Does the PPPA require that such conversations be parsed, and that different results flow depending on where the line of “criminality” is drawn?

What the Online Defendants are saying is that one could discuss various types of rape including rape that is non-criminal. They continue:

The BCCA’s carve-out for criminal allegations is of national importance. #MeToo was an “unprecedented international movement protesting sexual violence against women”, and it caused lasting societal change. Yet the BCCA’s decision makes the PPPA unavailable in public debates about sexual misconduct—solely because the subject matter of those debates relates to an offence in the Criminal Code. This cannot be what the Legislature intended.

What they are getting at in this specific case is that Madam Justice Adair made an assumption about their statements being criminal rape when it could feasibly be that Mr. Galloway engaged in other types of conduct that were rape-like but not classified as such under the Criminal Code. They submit, as they did in the lower courts, that their public discussions should not be hampered when their commentary drifts into issues of criminality.

This is an issue which Madam Justice Adair covered in her decision:

I do not accept that, unless Dr. Kosman is permitted to publicly label Mr. Galloway as violent, a rapist and criminal, she is unable to carry on her work. This, again, is a false dilemma. 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.

In dismissing their application for leave to appeal, it’s safe to assume that the Supreme Court of Canada agreed.