SCC Affirms the Public Interest in Counter-Speech That Advances the Equality Rights of Transgender Youth in Anti-SLAPP Decision

On May 19, 2023, the Supreme Court of Canada (Court) released its decision in Hansman v. Neufeld (Hansman), the latest high-profile anti-SLAPP case in Canada. Hansman clarifies the circumstances in which courts will dismiss a defamation action pursuant to the key public interest weighing exercise in anti-SLAPP legislation. The case also represents a significant moment for transgender rights in Canada. The Court concluded that there is a high public interest in counter-speech that combats discrimination against transgender youth and other LGBTQI2S+ people, as well as advancing their equality rights and dignity.  

Background

In 2016, British Columbia’s Ministry of Education launched a program called Sexual Orientation and Gender Identity 123 (SOGI 123) in schools across the province. The aim of SOGI 123 is to foster inclusion and respect for students who may face discrimination in school because of their sexual orientation, gender identity or gender expression.

The plaintiff, Barry Neufeld, was an elected public-school board trustee who criticized SOGI 123 on his Facebook page and in other public forums. The Facebook posts, which garnered significant media attention, included disparaging comments about the LGBTQI2S+ community, including a concern about children growing up with same-sex parents and a statement that allowing children to express their gender identity “is nothing short of child abuse.” The defendant, Glen Hansman, was the president of the British Columbia Teacher’s Federation. In a media interview, Mr. Hansman denounced Mr. Neufeld’s comments as bigoted.

Mr. Neufeld sued Mr. Hansman for defamation. In response, Mr. Hansman brought an application pursuant to section 4 of B.C.’s new anti-SLAPP legislation, the Protection of Public Participation Act (PPPA). SLAPP refers to Strategic Lawsuits Against Public Participation. Anti-SLAPP legislation strikes a balance between an individual’s right to protect their reputation with protecting free speech about matters of public interest. Section 4 of the PPPA seeks to strike this balance by requiring courts to dismiss a proceeding if, among other things, the proceeding arises out of an expression related to a matter of public interest, and the public interest in protecting that expression outweighs the public interest in continuing the proceeding.

Hansman represents the next chapter in the Court’s anti-SLAPP jurisprudence. This follows its decisions in two companion cases interpreting Ontario’s similar anti-SLAPP legislation (see our September 2020 Blakes Bulletin: Pointed Exchange: SCC Clarifies Ontario’s Anti-SLAPP Test, Splits Over Its Application).

The Decision

Mr. Hansman appealed the British Columbia Court of Appeal’s decision that overturned the British Columbia Supreme Court’s decision to dismiss Mr. Neufeld’s defamation action. Writing for the majority of the Court, Justice Karakatsanis allowed the appeal, thereby dismissing Mr. Neufeld’s defamation suit.

The Court concluded that “Mr. Hansman spoke out to counter expression that he and others perceived to be discriminatory and harmful towards transgender and other LGBTQI2S+ youth — groups especially vulnerable to expression that reduces their worth and dignity in the eyes of society and questions their very identity.” As a result, the public interest in protecting Mr. Hansman’s speech outweighed the public interest in remedying any reputational harm to Mr. Neufeld. In addition, Mr. Neufeld failed to discharge his burden to challenge the validity of Mr. Hansman’s fair comment defence.

Implications of the Decision

Hansman makes several important statements and clarifications about anti-SLAPP laws, including the following:

• The core feature of a SLAPP. Hansman clarified that the “consistent defining feature of a SLAPP is that the proceeding acts to silence the defendant, and more broadly, to suppress debate on matters of public interest, rather than to remedy serious harm suffered by the plaintiff.” A SLAPP need not bear the archetypal hallmarks of being initiated by the rich and powerful or by someone with a history of using litigation to threaten and silence critics.  

• The weight given to a specific expression. The Court affirmed that the public interest weighing exercise in anti-SLAPP legislation is the cornerstone of the analysis. The closer the expression is to the core values in section 2(b) (freedom of expression) of the Canadian Charter of Rights and Freedoms (Charter), and the more the expression advances the values of the equality guarantee in section 15 of the Charter, the higher the public interest in protecting it. 

• The importance of counter-speech. Hansman concluded that counter-speech motivated by the defence of a vulnerable or marginalized group should attract significant public interest protection because “[t]argets of degrading expression belonging to a vulnerable group in society may lack the ability or authority to effectively combat the harmful speech themselves.”

The most significant implication of Hansman may be its lengthy discussion of the discrimination faced by transgender youth and other LGBTQI2S+ individuals and the importance of advancing the equality and dignity of this population. Hansman represents the first time in which the Court has considered the unique circumstances of transgender youth. The decision highlights the fact that, in 2021, the Superior Court of Quebec held that “[g]ender identity is analogous to the grounds listed at s. 15(1)” of the Charter. Ultimately, the Court concluded that speech intended to “combat discriminatory and harmful expression and to protect transgender youth in schools” is “deserving of significant protection.”

While Hansman turned on the public interest weighing test, the majority also held that Mr. Hansman had a valid fair comment defence. Hansman advances the Court’s line of jurisprudence from WIC Radio Ltd. v. Simpson in emphasizing a wide scope for comment on matters of public interest. Importantly, the majority affirmed that an allegation of bias or prejudice will typically be classified as a comment (rather than a fact, which may have to be proven true to be defensible). This holding will be relevant to the protected scope of expression in an array of different contexts.

Hansman demonstrates that Canadian anti-SLAPP legislation offers a robust mechanism to challenge defamation actions before trial. Courts will continue to grapple with striking the careful balance between giving defamation plaintiffs their day in court with the desire to deter SLAPPs.

Blakes acted in this appeal for the interveners: QMUNITY and the Skipping Stone Scholarship Foundation.

For further information, please contact:

Brendan MacArthur-Stevens      +1-403-260-9603
Renee Reichelt                              +1-403-260-9698
Iris Fischer                                     +1-416-863-2408
Alexandra Mackenzie                  +1-403-260-9708
Laura Dougan                               +1-416-863-2187

or any other member of our Litigation & Dispute Resolution or Media & Defamation group.