Anti-SLAPP motion dismissed: calling drag performers ‘groomers’ not public-interest expression

Promoting myths and stereotypes about the 2SLGBTQI+ community not public interest speech: judge

Anti-SLAPP motion dismissed: calling drag performers ‘groomers’ not public-interest expression
Douglas Judson, Judson Howie LLP

A Thunder Bay court has found that using the term “groomers,” which refers to manipulating children to commit sexual abuse, does not count as public-interest expression protected by the anti-SLAPP provisions under s. 137.1 of Ontario’s Courts of Justice Act.

As a result, the defamation action can continue against a man who posted on Facebook that organizers and performers of a series of drag events were “groomers.” He argued that his comments' focus was a CBC article about the events and the CBC’s public funding. But those suing him for defamation successfully argued that his post promoted myths and stereotypes that associate the 2SLGBTQI+ with pedophilia and harming children.

“To qualify as an expression relating to a matter of public interest, the expression must concern an issue ‘about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached,’” said Justice Tracey Nieckarz, quoting Grant v. Torstar, 2009 SCC 61.

The judge said that if Webster had only posted about whether the CBC should promote drag story time events, she “would be inclined to find that this constituted public interest expression.” Had he posted about whether drag story time was appropriate for children and expressed his opinion that it was not, she said she “may have been inclined to find that the matter was social commentary and public interest speech.”

But, as the plaintiffs’ evidence confirmed, said Nieckarz, the term “groomer” refers to “someone who manipulatively develops a relationship or connection with a child to exploit and abuse them.” She said it is a slur that is used to accuse drag performers of sexualizing children and attempting to recruit them into the 2SLGBTQI+ community.

“I agree with the Plaintiffs that perpetuating such stereotypes and myths about members of the 2SLGBTQI community is not public interest speech,” said Nieckarz. “It is not a matter about which the community has a genuine interest or genuine stake in knowing.”

Douglas Judson, a lawyer for the plaintiffs, says the decision answers a question that members of the 2SLGBTQI+ community have had about what legal tools were available to push back against online hate.

“We now have a precedent from the court that says that anti-SLAPP is not going to be available in most circumstances to protect people who engage in that sort of harmful rhetoric about our community,” he says.

The self-represented defendant, Brian Webster, says his post related to a matter of public interest. He says he was expressing an opinion about the issues detailed in a CBC article, the reporter’s approach to the story, and the CBC’s promotion of drag performances for children.

“I even used the hashtag, #DefundCBC because I'm very anti-CBC,” says Webster. “I don't believe taxpayer dollars should be used to fund the Canadian Broadcasting Corporation – or stories like this, for that matter. I don't believe the taxpayer should be funding it.

“They're attempting to normalize their activities before children,” he says. “I'm not saying that they're trying to groom children for sexual purposes at all… They brought in a gender studies expert to claim that this is what I really meant to say. And in fact, if you read the actual comments I made, it all referred to the CBC. And what I was really saying is the CBC is attempting to normalize this type of activity for children.”

He says he will file a motion to have the defamation claim heard before a jury.

“I’m prepared to take this before a jury of six and make my arguments there. I believe that six normal citizens with no legal background will see my point.

“For the record, I'm not opposed to any grown adults choosing whatever gender or sexual identities that they so choose,” says Webster. “I just don't believe it should be displayed for children.”

Anti-SLAPP laws allow defendants in defamation suits to move to have the judge dismiss the claim if it is brought to chill free expression on matters of public interest.

Ontario’s anti-SLAPP law, under .137.1 of Ontario’s Courts of Justice Act, requires a judge to dismiss defamation proceedings against a person if they satisfy the judge that the allegedly defamatory expression relates to a matter of public interest. According to s. 137.1(4), the judge will not dismiss the proceeding if there are grounds to believe that it has substantial merit, the moving party has no valid defence, and the defamation’s harm to the responding party is severe enough that the public interest in continuing the proceeding outweighs the public interest in protecting the expression.

The anti-SLAPP provisions are intended to “protect the public interest in freedom of expression by preventing the silencing of persons who are speaking on matters that have significance beyond themselves,” said Nieckarz. But the judge added that the provisions are “not a carte blanche to defame” and do not provide a license to “ruin reputations or make unjustified assaults on a person’s reputation.”

Rainbow Alliance Dryden et al. v. Webster, 2023 ONSC 7050 stemmed from a series of drag events, including an adult drag show, an all-age drag brunch, and an all-ages drag story time at the local public library. One plaintiff, Rainbow Alliance Dryden, organized the events with various other community partners. The other plaintiff is a drag performer who was involved in the events. After the latter plaintiff was interviewed for a CBC Radio broadcast, someone reported to police that the event was an attempt to “groom children,” said the court’s decision. The police investigated the complaint, and the CBC followed up with an article titled, “Dryden, Ont., was all set to host a weekend drag event. Then police responded to an unfounded prank call.”  

Webster posted images of the CBC article to a Facebook page he administers called “Real Thunder Bay Courthouse – Inside Edition.” Accompanying the images was the text:

“TAXPAYER FUNDED CBC REPORTER JON THOMPSON HAS AN AGENDA TO PROMOTE

ASK YOURSELF WHY THESE PEOPLE NEED TO PERFORM FOR CHILDREN?

GROOMERS. That’s the agenda. Just look at the face of the one child in the photo. Tells you all you need to know.

Your tax dollars pay Jon Thompson to promote this stuff.

#DefundCBC”

The defendant’s page has 4,400 likes and 6,500 followers.

Rainbow Alliance Dryden argued that the post inferred that it organizes events for sexual predators. The plaintiff drag performer appeared in a photo in the CBC article. She alleged that the defendant’s post accused her of being a “groomer,” which refers to “someone who grooms a minor for exploitation and especially nonconsensual sexual activity.”

Comments under the post included accusations that the organizers and performers were pedophiles, and one commenter asked: “Can we buy tags to hunt these animals?”

The plaintiffs produced affidavit evidence from two academics who described the contemporary usage and historical background of the term “groomer.” Nieckarz said that the evidence established that the term is used to associate people in the 2SLGBTQI+ community with sexually predatory behaviour.

Among other submissions, the intervenor, Egale Canada, told the court that drag is “a central aspect of 2SLGBTQI identity and cultural expression,” which has been “instrumental in increasing the visibility of 2SLGBTQI people, particularly gender diverse or gender non-conforming people.” Egale said that drag story time is intended to normalize gender and sexually diverse families and counter stereotypes that depict 2SLGBTQI+ people and their culture as harmful to children.
 

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