SCC notes importance of defending marginalized groups with ‘counter-speech’ in anti-SLAPP ruling

In the Supreme Court of Canada’s first consideration of BC’s anti-SLAPP legislation, the court has restored an order dismissing a man’s defamation action.

In Hansman v. Neufeld, 2023 SCC 14, which was released Friday morning, the court was split 6-1. The majority found that the public interest in protecting one man’s expression outweighed the “limited harm” it had caused another. The case dealt with the Protection of Public Participation Act, BC’s anti-SLAPP law, which is intended to give defendants to defamation suits a tool to dismiss claims that effectively chill free expression on matters of public interest.

“The decision is an important precedent for those who speak out in defence of vulnerable communities and marginalized individuals,” says Robyn Trask, counsel to the appellant in the case, Glen Hansman, and general counsel at the BC Teachers’ Federation.

The majority noted that Hansman’s statements, which were the subject of the defamation action, were directed at countering expression that he and others viewed to be discriminatory toward trans and other 2SLGBTQ+ youth. There is “substantial public interest” in protecting Hansman’s counter-speech, which was “motivated by a desire to promote tolerance and respect for a marginalized group in society,” the court’s majority said.

“The court recognized that while counter-speech is not necessarily a complete solution to harmful expression, it plays an important role in a democratic society and is aligned with Charter values,” says Trask.

Hansman v. Neufeld was also the first time the SCC has described the discrimination faced by trans and non-binary people in Canadian society, she says.

“The transgender community is undeniably a marginalized group in Canadian society,” said Justice Andromache Karakatsanis, who wrote the reasons for the majority. “The history of transgender individuals in Canada has been marked by discrimination and disadvantage.”

The alleged defamation occurred after Barry Neufeld, a public-school board trustee in Chilliwack, BC, posted criticisms online of a provincial government initiative involving education about gender identity and sexual orientation. Glen Hansman, who is gay, a teacher, and a former president of the BC Teachers’ Federation, responded in statements to the media, calling Neufeld’s comments bigoted, transphobic, and hateful. Hansman said Neufeld had undermined the safety and inclusion of trans and other 2SLGBTQ+ students, and Hansman questioned whether he was fit for office.

Neufeld brought a defamation claim, and Hansman responded with an application to have the claim dismissed under s. 4 of the Protection of Public Participation Act.

The chambers judge ruled in Hansman’s favour, finding the defamation suit suppressed debate on a matter of public interest. The judge found that the value of protecting the expression outweighed its resulting harm to Neufeld. The Court of Appeal disagreed and reinstated the defamation action.

Paul Jaffe, who acted for Neufeld, says that the SCC’s majority took a “selective” and “results-oriented” approach to the facts and produced an “ideologically driven analysis.”

“My view expressed to the court was that it ought not to involve itself in the underlying debate because it then becomes effectively politicized,” he says. “What I saw in the judgment was some regard to this idea that Mr. Hansman was speaking on behalf of vulnerable people, without any regard at all to the fact that Neufeld was doing the same thing. He was speaking out on behalf of the kids and the parents and those who had concerns but had no voice.”

“That is a very, very troubling thing. To think that courts now have the power to prevent access on libel claims based on an underlying debate, especially when that debate is so politically and ideologically charged as this whole gender ideology business. This is a very troubling move for the court system.”

The lone dissenter was Justice Suzanne Côté, who said the question in the appeal was not whether the court agreed with either Neufeld’s expression or Hansman’s counter-speech but whether the defamation action should be dismissed at such an early stage. It should not, and Neufeld deserved his day in court, she said.

Côté said she disagreed with the structure of the majority’s analysis. Section 4 of the Protection of Public Participation Act provides a pretrial screening mechanism where a judge dismisses a defamation action concerning a matter of public interest “unless the plaintiff can satisfy the judge that their action has substantial merit, the defendant has no valid defence in the proceeding, and the harm to the plaintiff as a result of the defendant’s expression is serious enough to outweigh the public interest in protecting that expression.”

Karakatsanis had begun weighing the public interest before examining Hansman’s defence. For Côté, this was backwards. First, Neufeld was required to “overcome a merits-based hurdle” by showing that his claim had “substantial merit” and that Hansman’s had “no valid defence.” While Karakatsanis said the order in which a judge addressed these elements was up to their discretion, Côté said this ignored the SCC’s recent decision in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22.

Côté also said that Karakatsanis followed “an improper path of reasoning” by justifying the reinstatement of the dismissal order on the basis that Hansman’s expression was made to promote equality. Giving the promotion of equality a role in the public-interest assessment went against “the doctrine of content neutrality embraced by this Court in its jurisprudence on s. 2(b) of the Charter,” she said.

The court’s majority, says Trask, rejected the concept endorsed by the BC Court of Appeal that judges should consider the potential chilling effect on plaintiffs when deciding whether to dismiss a defamation action under the Protection of Public Participation Act.

“The Supreme Court of Canada was clear that this concept does not form part of the public interest weighing exercise,” she says. “As stated by the Court: ‘Simply put, there is no chilling effect on barring potential plaintiffs from silencing their critics and collecting damages through a defamation suit,’ and the law protects the right of individuals like Mr. Hansman to respond in these types of circumstances.”

Jaffe says that the purpose of anti-SLAPP laws is to give people like Neufeld their day in court. He is an individual and a retired probation officer, living on a pension. And against him he has the public sector union, the government, and several public interest groups, many of which were intervenors at the SCC and backing Hansman, he says.

“I'm the only guy there for the little guy who's getting hammered by all these other folks,” says Jaffe. “And for me, the whole purpose of the anti-SLAPP law has been turned on its head. Who in the public arena is going to now speak out on controversial matters if they can be defamed with impunity?”

“I think that's a real threat to freedom of speech. I think this court has made a terrible, terrible judgment. And I think it's going to have far-reaching implications.”