Supreme Court of Canada affirms the importance of protecting “counter-speech”
In Hansman v. Neufeld, the Supreme Court of Canada recognized a weighty public interest in protecting “counter-speech” by those who advocate for 2SLGBTQI+ equality. In doing so, the Court rendered a historic judgment that affirms the importance of protecting the dignity and equality of trans individuals under Canadian law. The Court also provided important guidance on the test to be applied in “anti-SLAPP” applications and the defence of “fair comment” in defamation actions.
Anti-SLAPP legislation
In British Columbia, Ontario, and Quebec, a defendant in a proceeding that arises out of their expression related to a matter of public interest may seek to have the proceeding dismissed at an early stage. The legislation that authorizes such applications is known as “anti-SLAPP” legislation; a “SLAPP” is a “strategic lawsuit against public participation”.[1]
In Hansman, the Supreme Court summarized the anti-SLAPP framework in British Columbia (which is nearly identical to the framework in Ontario) as follows:
[An anti-SLAPP] application first requires the applicant (the defendant) to prove, on a balance of probabilities, that the proceeding arises from expression that relates to a matter of public interest …. If the defendant does so, the onus shifts to the respondent (the plaintiff) … to satisfy the court there are grounds to believe that: (1) the proceeding has substantial merit … , and (2) the defences raised by the defendant are not valid, in that they can be said to have no real prospect of success …. If the court is not satisfied the plaintiff has met their onus as to one or both criteria, it must dismiss the proceeding. Even if, however, the plaintiff meets their burden, the court must conduct a public interest weighing exercise … , in which the plaintiff must satisfy the court that the harm they are likely to have suffered or are likely to suffer due to the defendant’s expression outweighs the public interest in protecting that expression.[2]
Two steps of the anti-SLAPP analysis were at issue in Hansman: the “no valid defence” requirement and the weighing of public interests.
Summary of the facts
Barry Neufeld was an elected public school trustee in Chilliwack, British Columbia. He posted comments online criticizing “SOGI 123”, a provincial government initiative to help educators teach about sexual orientation and gender identity. Among other things, Mr. Neufeld condemned SOGI 123 as a “weapon of propaganda” and, in a Facebook post, expressed concern about its teachings on gender and “non-heterosexual norms”.
Mr. Neufeld’s comments provoked a forceful response, including from Glen Hansman, a former president of British Columbia’s public school teachers’ union. Among other things, Mr. Hansman characterized Mr. Neufeld’s views as “intolerant” and “bigoted”, condemned his comments as “transphobic”, and stated that he had “tip toed quite far into hate speech” and that he should not be “anywhere near students”. In the lead-up to the October 2018 Chilliwack school board election (in which Mr. Neufeld was a candidate), Mr. Hansman was also quoted as saying that “[i]t is extremely problematic to have somebody who is running as a school trustee continuing to spread hate about LGBTQ people — especially trans people”.
Mr. Neufeld sued Mr. Hansman for defamation. Mr. Hansman brought an “anti-SLAPP” application under British Columbia’s Protection of Public Participation Act, seeking to have Mr. Neufeld’s lawsuit dismissed.
Mr. Hansman won in the B.C. Supreme Court, which concluded that: (i) there were no grounds to believe that Mr. Hansman did not have a valid defence of “fair comment”; and (ii) even if Mr. Hansman did not have a “fair comment” defence, the public interest in protecting Mr. Hansman’s expression outweighed the likely harm suffered by Mr. Neufeld.[3]The B.C. Supreme Court dismissed Mr. Neufeld’s defamation action.
Mr. Neufeld appealed. The Court of Appeal for British Columbia allowed the appeal and reinstated Mr. Neufeld’s defamation claim. Among other things, the Court of Appeal faulted the lower court for “not consider[ing] the potential chilling effect on future expression by others who might wish to engage in debates on this or other highly charged matters of public interest—that is, the risk that people would withdraw or not engage in public debate for fear of being inveighed with negative labels and accusations of hate speech with no opportunity to protect their reputation”.[4] In other words, because allowing Mr. Neufeld’s lawsuit to continue would avoid “chilling” expression who might wish to express views like his without risking vociferous condemnation, the public interest in protecting Mr. Neufeld’s defamation claim outweighed the public interest in protecting Mr. Hansman’s expression.
Mr. Hansman sought and obtained leave to appeal to the Supreme Court of Canada. On May 18, 2023, by a 6-1 majority, the Supreme Court reversed the Court of Appeal’s decision and dismissed Mr. Neufeld’s action.
Key takeaways
The Supreme Court of Canada’s judgment is important for at least three reasons. First, it affirms the dignity and equality interests of trans individuals under Canadian law. Second, it recognizes the importance of “counter-speech” to vulnerable groups, including 2SLGBTQI+ people, and thus the weighty public interest in protecting such “counter-speech”, to which the defence of “fair comment” will often apply. Third, it confirms that, even if ending Mr. Neufeld’s lawsuit discouraged others from expressing views like his, this is not a “chilling effect” that warrants allowing his claim to continue.
Hansman is a significant victory for 2SLGBTQI+ and especially trans dignity and equality, and for those who defend 2SLGBTQI+ communities through “counter-speech”. It confirms that “anti-SLAPP” applications may properly be used to protect advocates for 2SLGBTQI+ dignity and equality against efforts to silence them through defamation suits.
Trans rights
The Supreme Court recognized for the first time that “transgender people occupy a unique position of disadvantage in our society”[5] and “have faced discrimination in many facets”,[6] and that, “[u]nlike other groups … , transgender people often find their very existence the subject of public debate and condemnation”.[7] The Court also recognized that “gender identity and/or expression are now prohibited grounds of discrimination in human rights codes across the country and included within the prohibition against hate speech under the Criminal Code”[8] and that,”[i]n the wake of this legislative progress, judicial recognition of the plight of transgender individuals in Canada is growing”.[9]
Importantly, the Court noted with approval that “the Superior Court of Quebec [has] held that ‘[g]ender identity is analogous to the grounds listed at s. 15(1) of the Canadian Charter’ because ‘[g]ender identity is an immutable personal characteristic’”.[10]Section 15(1) of the Charter guarantees equality rights and prohibits state discrimination on the basis of either enumerated or “analogous” grounds. Before Hansman, the Supreme Court had recognized sexual orientation as an analogous ground under section 15(1).[11]Though it stopped short of according similar recognition to gender identity in Hansman, the Court’s judgment strongly suggests that it could be forthcoming.
Counter-speech
The Court analyzed Mr. Hansman’s allegedly defamatory statements as “counter-speech”, in other words, expression by which a “speaker seek[s] to contribute to public discourse by countering ignorant or harmful expression with an informed or compassionate response”.[12] That the allegedly defamatory expression was counter-speech was relevant at two different stages of the anti-SLAPP analysis: (i) the public interest balancing; and (ii) and the determination of whether there were grounds to believe that Mr. Hansman had no valid defence of fair comment.
Public interest
The Court recognized that, “[w]hile counter-speech is not necessarily a complete solution to harmful expression …, its close proximity to the values at the core of s. 2(b) [of the Charter, which guarantees the freedom of expression] is beyond doubt”.[13] Moreover:
Counter-speech motivated by the defence of a vulnerable or marginalized group in society also engages the values at the core of s. 15(1) [of the Charter]; namely, the equal worth and dignity of every individual …. Targets of degrading expression belonging to a vulnerable group in society may lack the ability or authority to effectively combat the harmful speech themselves ….. Discourse can then take on an uneven quality, making protective counter-speech by the group or individual’s more powerful advocates all the more influential and important….[14]
In assessing the public interest in protecting Mr. Hansman’s expression, the Court observed that “Mr. Hansman’s counter-speech fell close to the core of s. 2(b)” of the Charter, in part because, “[i]n speaking out, he sought to counter expression that he and others perceived to undermine the equal worth and dignity of marginalized groups”.[15] The Court concluded that “there is a great public interest in protecting Mr. Hansman’s freedom of speech” on, among other things, “the need for safe and inclusive schools”.[16] It also held that “the motivation behind” Mr. Hansman’s comments — namely, “to combat discriminatory and harmful expression and to protect transgender youth in schools” — is “deserving of significant protection”.[17]
The Court’s conclusion that there is a strong public interest in protecting counter-speech that seeks to protect members of a vulnerable or marginalized group, such as trans youth, is significant. In provinces with anti-SLAPP legislation, those who speak out in support of the dignity and equality of 2SLGBTQI+ individuals, and who are sued for defamation for doing so, may now rely on Hansman in seeking to have those claims dismissed.
Fair comment
Even in jurisdictions without anti-SLAPP legislation, the Court’s comments on counter-speech should assist those who advocate for the equality and dignity of 2SLGBTQI+ individuals and who are sued for defamation as a consequence. In particular, the Court’s reasoning with respect to the defence of fair comment suggests that “protective counter-speech” will often qualify. This is so for two reasons.
First, one of the requirements of the fair comment defence is that the impugned statement must be “based on fact”.[18] The Court held that, to establish this element of the defence, “Mr. Hansman need not demonstrate that Mr. Neufeld is bigoted, transphobic, promoted hatred, or created an unsafe environment for students”; rather, “Mr. Neufeld’s original Facebook post” — that is, the expression that prompted Mr. Hansman’s protective counter-speech — “could provide the requisite factual basis for most statements at issue”.[19] Moreover, the Court noted, “Mr. Neufeld’s views were … available to readers within the four corners of the publications [in which Mr. Hansman’s impugned statements appeared], either within the text itself or via hyperlinks to further articles and explanations”.[20] The Court’s reasoning makes it more likely that protective counter-speech — which often, if not usually, refers to the expression to which it responds — would be “based on fact” for the purpose of the fair comment defence.
Second, another requirement of the fair comment defence is that the impugned statement “must be recognisable as comment”.[21] In relation to this element of the defence, the Court endorsed “the many cases in which Canadian courts have determined that loose, figurative or hyperbolic labels … , like homophobic, transphobic, bigoted, racist, or sexist are properly characterized as comment, not fact”.[22] The Court also rejected Mr. Neufeld’s argument that “accusations of hate speech would necessarily be understood by ordinary readers as referring to a Criminal Code offence” because “[s]uch allegations have permeated public discourse in a way that well exceeds their narrow meaning within the legal system”.[23] This reasoning, too, will often apply to protective counter-speech; the Court has confirmed that, so long as “a reasonable reader would have interpreted the statements as expressions of … opinion”,[24] an accusation of homophobia, transphobia, or bigotry may properly constitute fair comment (and thus may be defensible in a defamation suit).
“Chilling effect”
As noted above, the Court of Appeal reinstated Mr. Neufeld’s lawsuit. It reasoned that, if it did not do so, “others who might wish to engage in debates on this or other highly charged matters” might “withdraw or not engage in public debate for fear of being inveighed with negative labels and accusations of hate speech with no opportunity to protect their reputation”.[25] According to the Court of Appeal, this enhanced the public interest in allowing Mr. Neufeld’s claim to continue.
The Supreme Court of Canada rejected this reasoning forcefully: “Simply put, there is no chilling effect in barring potential plaintiffs from silencing their critics and collecting damages through a defamation suit. Just as our law protects Mr. Neufeld’s right to voice his opinions on matters of public interest, so it protects the right of others, like Mr. Hansman, to respond.”[26]In other words, though a court may properly consider the possibility that allowing the lawsuit to continue might deter expression like the defendant’s,[27] it does not follow that the court should also weigh the possibility that dismissing the lawsuit might deter expression like the plaintiff’s.
Here, too, Hansman affirms the particular importance of protective counter-speech, a central purpose of which may be to deter the expression to which it responds. Those who would otherwise express views that could be considered homophobic or transphobic might well be discouraged from doing so by the prospect of protective counter-speech — and by the dismissal of Mr. Neufeld’s claim against Mr. Hansman. Still, according to the Supreme Court, this is not a “chilling effect” that weighs in favour of permitting the lawsuit to proceed, nor is it even “a ‘harm’ suffered by Mr. Neufeld for the purpose of the weighing exercise”.[28]
Bottom line
Hansman is a meaningful victory for the defence of 2SLGBTQI+ and especially trans dignity and equality in Canada. The Supreme Court has now powerfully affirmed the importance of protective counter-speech and explained how anti-SLAPP legislation properly protects such speech from attempts to silence it through defamation suits. The Court also provided important guidance on how the defence of fair comment should apply to counter-speech, including in jurisdictions in which anti-SLAPP legislation has not been enacted.
The authors represented Egale Canada, Canada’s leading organization for 2SLGBTQI+ people and issues, in this appeal. Read Egale Canada’s factum here.
[1] See: Hansman v. Neufeld, 2023 SCC 14 [Hansman (S.C.C.)], at para. 2. See also: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22; Platnick v. Bent, 2020 SCC 23.
[2] Hansman (S.C.C.), at para. 53.
[3] Neufeld v. Hansman, 2019 BCSC 2028.
[4] Neufeld v. Hansman, 2021 BCCA 222 [Hansman (B.C. C.A)], at para. 65.
[5] Hansman (S.C.C.), at para. 85.
[6] Hansman (S.C.C.), at para. 86.
[7] Hansman (S.C.C.), at para. 85, quoting Oger v. Whatcott (No. 7), 2019 BCHRT 58, 94 C.H.R.R. D/222, at para. 61.
[8] Hansman (S.C.C.), at para. 87.
[9] Hansman (S.C.C.), at para. 88.
[10] Hansman (S.C.C.), at para. 88, quoting Centre for Gender Advocacy v. Attorney General of Quebec, 2021 QCCS 191, at paras. 104 and 106.
[11] See: Egan v. Canada, [1995] 2 S.C.R. 513, at p. 528; Vriend v. Alberta, [1998] 1 S.C.R. 493, at para. 90.
[12] Hansman (S.C.C.), at para. 80.
[13] Hansman (S.C.C.), at para. 81 (citations omitted).
[14] Hansman (S.C.C.), at para. 82 (citations omitted).
[15] Hansman (S.C.C.), at para. 91.
[16] Hansman (S.C.C.), at para. 93.
[17] Ibid.
[18] Hansman (S.C.C.), at para. 96, citing Grant v. Torstar Corp., 2009 SCC 61, at para. 31.
[19] Hansman (S.C.C.), at para. 102.
[20] Hansman (S.C.C.), at para. 103.
[21] Hansman (S.C.C.), at para. 96, citing Grant v. Torstar Corp., 2009 SCC 61, at para. 31.
[22] Hansman (S.C.C.), at para. 111 (quotation marks and citation omitted).
[23] Hansman (S.C.C.), at para. 113.
[24] Hansman (S.C.C.), at para. 112.
[25] Hansman (B.C. C.A), at para. 65.
[26] Hansman (S.C.C.), at para. 77.
