The Supreme Court of Canada recently decided an appeal of the first decision made pursuant to British Columbia's anti-SLAPP legislation, the 2019 Protection of Public Participation Act (the "PPPA"). The dispute involved a high-profile public debate between a school board trustee, who was publicly critical of the provincial government's introduction of sexual orientation and gender identity programming into schools, and a teacher, who regarded the trustee's public comments as bigoted and transphobic. In its decision in Hansman v Neufeld, 2023 SCC 14, a majority of the Supreme Court affirmed that "counter-speech" intended to protect vulnerable and marginalized groups is deserving of protection under anti-SLAPP legislation.
In 2016, the British Columbia Ministry of Education implemented certain initiatives to promote inclusion and address discrimination against transgender and other 2SLGBTQIA+ children and youth in schools. The Ministry ordered BC school boards to add gender identity or expression as a prohibited ground of discrimination in student codes of conduct. The Ministry also collaborated with others to develop Sexual Orientation and Gender Identity 123 ("SOGI 123"), an initiative aimed at guiding schools on instruction about sexual orientation and gender identity to foster inclusion and respect.
Barry Neufeld, a Chilliwack school board trustee, criticized the new curriculum on social media. He called SOGI 123 a "weapon of propaganda" that teaches the "biologically absurd" theory that gender is not biologically determined but a social construct. He called SOGI 123 a "fad" that was nothing short of child abuse. He also lauded certain regimes that had taken a hard line on 2SLGBTQIA+ rights, stating, among other things: "I belong in a country like Russia or Paraguay, which recently had the guts to stand up to these radical cultural nihilists."
Neufeld's comments were met with forceful criticism. One of Neufeld's more vocal critics was Glen Hansman, a teacher (and then president of the BC Teachers Federation). Hansman publicly accused Neufeld of promoting transphobia and bigotry and of having "tip-toed quite far into hate speech." Hansman called on Neufeld to step down or be removed as a school board trustee.
Based on these public criticisms, Neufeld sued Hansman for defamation in the BC Supreme Court. Hansman applied to have the action dismissed under the provisions of the PPPA.
The PPPA, like other provincial anti-SLAPP legislation, creates a pre-trial screening procedure to weed out strategic lawsuits against public participation (known colloquially as "SLAPPs"). If the defendant can demonstrate that the action arises out of an expression on a matter of public interest, the burden shifts to the plaintiff to overcome a "merits-based hurdle" by establishing grounds to believe that (a) the proceeding has substantial merit and (b) the defendant has no valid defences. If the plaintiff fails to satisfy either of the requirements of the merits-based hurdle, the action will be dismissed. However, if the plaintiff meets that burden, the court will conduct a weighing exercise to determine whether the public interest in remedying the plaintiff's harm outweighs the public interest in protecting the defendant's expression.
At first instance, the chambers judge dismissed Neufeld's action. The chambers judge determined that Neufeld had failed to overcome the merits-based hurdle because Hansman had a valid, fair comment defence. However, in the event this conclusion was wrong, the chambers judge proceeded with the public interest weighing exercise, concluding that the public interest in protecting Hansman's expressions outweighed the harm likely suffered by Neufeld. Key to this conclusion was the fact that Neufeld had submitted almost no evidence of damage suffered and no evidence causally linking any alleged harm to Hansman's statements.
The BC Court of Appeal overturned the chambers judge's decision and ordered that the action proceed to a trial. With respect to the defence of fair comment, the court commented that at least some of Hansman's expressions could be characterized as statements of fact rather than comment. The court further held that the chambers judge, in the public interest weighing exercise, failed to give full effect to the presumption of damages in defamation and failed to consider the potential chilling effect on future expressions by those who might wish to engage in debates on highly charged matters of public interest should the availability of defamation claims be limited.
On further appeal, the Supreme Court of Canada reversed the Court of Appeal's conclusion in a 6-1 decision, restoring the dismissal of the action.
Justice Karakatsanis, writing for the majority, was critical of the Court of Appeal's approach to the public interest weighing exercise. While damage may be presumed in defamation, Justice Karakatsanis noted that the plaintiff still must demonstrate that the harm suffered is sufficiently serious to outweigh the public interest in protecting the defendant's expression. In other words, the presumption of damage may establish the existence of harm, but it cannot establish the seriousness of harm.
Justice Karakatsanis also criticized the Court of Appeal's consideration of the "chilling effect" allegedly flowing from a plaintiff's inability to pursue a defamation claim. Anti-SLAPP jurisprudence addresses the concern that the imposition of a legal penalty will cause speakers to refrain from commenting on matters of public interest. However, the Court of Appeal held that the "inability to inflict a legal penalty on Mr. Hansman would chill Mr. Neufeld's expression and those of others who wish to express unpopular views," turning the concept of "chilling effect" on its head. Justice Karakatsanis explained that "there is no chilling effect in barring potential plaintiffs from silencing their critics and collecting damages through a defamation suit." The public interest weighing exercise considers the impact of the defendant's expression on the plaintiff's reputation, not the "chilling effect" on the plaintiff if he or she is unable to proceed with a defamation suit. In making this finding, the Supreme Court of Canada remedied what many viewed as the most controversial aspect of the Court of Appeal's decision; it is not surprising that it is one of the grounds upon which the appeal was allowed.
Importantly, in her reasons, Justice Karakatsanis acknowledged the importance of counter-speech and its role in public discourse on matters of public interest. Hansman's expressions were found to be deserving of significant protection because they were motivated by a desire to protect the rights of transgender and other 2SLGBTQIA+ persons, "undeniably a marginalized group in Canadian society." She cited research indicating that transgender people are at increased risk of violence, report high rates of poor mental health, suicidal ideation, and substance abuse, and are disadvantaged with respect to housing, employment, and healthcare. While there have been legal advancements in transgender rights over the last 35 years, Justice Karakatsanis recognized that transgender people remain among the most marginalized in Canadian society.
There is no question that the content of Hansman's expressions played a significant role in Justice Karakatsanis' analysis (a point raised in Justice Coté's dissent). However, this decision serves as a powerful affirmation of the continued need for advocacy to protect the rights and freedoms of 2SLGBTQIA+ persons, which is supported by the principles of equality enshrined in section 15 of the Charter of Rights and Freedoms. With its release just prior to the start of Pride Month, this decision gives Canadians cause for celebration that the country's highest court values the protection of marginalized groups and their efforts to speak up against bigotry and discrimination.
Related blog re: anti-SLAPP legislation in Ontario:
Anti SLAPP Legislation in Ontario | Lerners Lawyers
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