27 Sep 2013 Guest Post: Canadian Pregnancy Centre Defamation Case: When a Loss is Actually a Win
By Albertos Polizogopoulos
This past Wednesday, the Vancouver and Burnaby Crisis Pregnancy Centres (“Vancouver CPCs”) announced that they would not appeal the decision of the British Columbia Supreme Court dismissing their defamation suit against Joyce Arthur and the Pro-Choice Action Network (“Pro-CAN”). In 2009, Arthur wrote a report for the Pro-CAN with the express goal of exposing “the anti-woman and anti-feminist agenda of CPCs”. The report, Exposing Crisis Pregnancy Centres in British Columbia (the “Report”), which was funded using federal taxpayer dollars was released and concluded that CPCs use unethical methods to mislead, deceive and hurt women and convert them to Christianity. The Vancouver CPCs denied the allegations set out in the Report and disputed its accuracy and reflection of them.
Crisis pregnancies happen and when they do, they are, well, a crisis. Regardless of where you stand on abortion, the vast majority of people acknowledge that the decision to have an abortion or carry a pregnancy to term is not taken lightly. Because of the complex and sensitive nature of the decision women should be given the opportunity to consider and discuss their options, should they want to. That’s where CPCs step in. CPCs do not provide abortions or refer women to abortionists. In my experience, and I have sat on the board of a local CPC, CPCs do not hide the fact that a referral for an abortion is not an available service. What they do offer is information on pregnancy options, including adoption, abortion and keeping the child; counseling for pregnant and post-abortive women and men; childbirth classes; doula services and the provision of maternity and baby-related items such as clothes, bottles and strollers. Most CPC clients are, with the exception perhaps of the pro-choice “undercover clients” on a mission to “expose” a particular CPC, happy with the counseling and information they received from a CPC, regardless of whether or not they end up having an abortion.
In her Report however, Arthur does not address the good that CPCs do or the fact that their clients are generally satisfied with their services. Instead, she makes outlandish allegations and generalization, basing them in part on the say-so of someone who admittedly, lied and deceived people she interacted with to “expose” them. Among Arthur’s allegations were that CPCs provide inaccurate information, use graphic imagery and mislead clients into thinking that the CPC was a medical clinic. The Vancouver CPCs however, as with most CPCs, do not employ such tactics. Worried that their reputation was being tarnished, the Vancouver CPCs sued Arthur and the Pro-CAN for defamation alleging that specific portions of the Report were defamatory to the Vancouver CPCs.
In Court, Arthur and the Pro-CAN argued that although the Report did reference the Vancouver CPCs and one of their executive directors, that the portion of the Report alleged to be defamatory was not talking about the Vancouver CPCs specifically. In fact, Arthur and Pro-CAN argued that this section of the Report talked about CPCs across North America. This is an important legal question because in order for the Report to be considered defamatory, there needs to be a target of the defamation. The Vancouver CPCs argued that they were the targets because they were specifically referred to in an appendix and because the Report as a whole was about CPCs in British Columbia, where they both operate. If, however, that section of the Report was found to be about CPCs in North America, of which there are approximately 4,200, then the sample is simply too large for any reasonable person to suspect that the Report is speaking about the Vancouver CPCs.
It’s a clever argument that has been used in many defamation cases in the past and unfortunately, it was successful in this case. Somehow, the Court found that the impugned statements in the Report, despite the fact that the Report was entitled Exposing Crisis Pregnancy Centres in British Columbia, that it had “Exposing Crisis Pregnancy Centres in British Columbia” at the top of each page and despite the fact that it attached an appendix listing all of the CPCs in British Columbia, including the Vancouver CPCs and the name of one of their executive director, were not referring to CPCs in British Columbia, but rather, of CPCs in North America generally.
While it’s true that some of the allegations in the Report are prefaced with words like “most CPCs” and “the majority of CPCs”, I do not see how, given the above-noted facts, anyone could conclude anything other than that the allegations contained in the Report apply to at least CPCs in British Columbia, which include the Vancouver CPCs. Although this decision appears, at first, to be a loss, we need to see and appreciate that it is not. The Vancouver CPCs sued Arthur and the Pro-CAN because the allegations in the Report did not accurately reflect the way they operate. The Vancouver CPCs lost their case, not because the contents of the Report were true, but because the Court found that the impugned statements in the Report were not about them. That means the Vancouver CPCs were vindicated.
There are very basic and straightforward defenses to defamation. These include that the impugned statements were true, made in good faith with the reasonable belief that they were true or were personal opinion. As a lawyer, if I had a client seek my advice after being sued for making defamatory statements of fact, the first question I would ask is if the statements were true. If they were, that’s how we would defend the claim. If the statements turned out not to be true, then the next question I would ask is whether the person knew that the statements were true when they were making them. If so, then this, “good faith” would be our second possible defence.
It’s only if and when I conclude that these straightforward defenses are not available that I would start to look at other possible defenses like, the comments were not about the Vancouver CPCs specifically, but rather, CPCs in North America generally. Again, Arthur and the Pro-CAN’s argument is a clever one that has been used before, but it’s not, at least in my opinion, the easiest, simplest or strongest argument to a defamation suit. If you read Arthur and the Pro-CAN’s written arguments, which I have done, you see that Arthur and the Pro-CAN do not spend their efforts arguing that the contents of the Report were being true and accurate. Rather, they focussed on this weak and last resort argument about who the impugned statements in the Report were targeting. Lawyers need to advance the best possible argument for their clients. This leads me to believe that the ‘truth’ argument was not, in this case, the best argument for Arthur and the Pro-CAN.
I don’t want to speak for Ms. Arthur and the Pro-CAN, but it is my opinion that they made this argument because it was the only one available, meaning that they knew that the contents of the Report were not true or were not wholly true. And that’s why we need to look at this decision as a victory. Defamation cases are fact-centred and fact-specific and so there is no great precedent set by this decision. There is nothing in here to be relied on by the Courts in the future to limit what CPCs or pro-lifers can or cannot do. What does come out of this decision however, is the following:
- The impugned allegations in the Report were not about the Vancouver CPCs; and,
- The impugned allegations in the Report were not proven to be true and accurate.
I would chalk that up to a victory any day of the week.
Albertos Polizogopoulos is a Partner with the firm Vincent Dagenais Gibson LLP/s.r.l. in Ottawa, Ontario. He regularly appears before courts and appellate courts including the Supreme Court of Canada to advocate for his clients’ rights to freedom of religion, freedom of expression and parental authority. He also frequently appears in media interviews and on panels to discuss constitutional law. @CharterLaw