Hansman v Neufeld: Speech Promoting Equality is More Equal
The Supreme Court of Canada (“the Court”) has recognized that expression promoting equality by countering harmful speech is worthy of heightened protection because of its relation to Canadian Charter of Rights and Freedoms [Charter] s. 15(1) values, which bring it closer to the core values animating s. 2(b).
In Hansman v Neufeld, 2023 SCC 14 [Hansman], the Court assessed a motion to dismiss a defamation suit in the context of a heated debate over sexual orientation and gender identity initiatives in public schools. With Côté J dissenting, the Court clarified the framework developed in 1704604 Ontario Ltd v Pointes Protection Association, 2020 SCC 22 [Pointes]. The Court also clarified the extent of evidence needed to demonstrate serious harm in this pre-trial process, and established that only legal penalties can have a chilling effect on expression.
Barry Neufeld brought a defamation suit against Glen Hansman. Mr. Neufeld was a public school trustee who spoke out against a new sexual orientation and gender identity program (“SOGI 123”) introduced by the provincial government. His inflammatory comments drew significant public attention. Mr. Hansman is the president of the British Columbia’s public school teachers’ union, and a gay man. The defamation suit was about Mr. Hansman’s statements in 11 publications countering Mr. Neufeld’s views.
Mr. Hansman moved to have the defamation suit dismissed pre-trial by relying on British Columbia’s “anti-SLAPP” legislation: the Protection of Public Participation Act, SBC 2019, c 3 [PPPA]. The PPPA is designed to prevent meritorious lawsuits where they would silence people speaking on issues of public importance without strong reason. The provision at s. 4 of the PPPA reads:
4 (1) In a proceeding, a person against whom the proceeding has been brought may apply for a dismissal order under subsection (2) on the basis that
(a) the proceeding arises from an expression made by the applicant, and
(b) the expression relates to a matter of public interest.
(2) If the applicant satisfies the court that the proceeding arises from an expression referred to in `subsection (1), the court must make a dismissal order unless the respondent satisfies the court that
(a) there are grounds to believe that
(i) the proceeding has substantial merit, and
(ii) the applicant has no valid defence in the proceeding, and
(b) the harm likely to have been or to be suffered by the respondent as a result of the applicant’s expression is serious enough that the public interest in continuing the proceeding outweighs the public interest in protecting that expression.
The chambers judge granted the application to dismiss, concluding that Mr. Neufeld did not adequately challenge Mr. Hansman’s fair comment defence (Neufeld v Hansman, 2019 BCSC 2028 [Hansman BCSC]). He found that the statements could not be distinguished from those in WIC Radio Ltd v Simpson, 2008 SCC 40 [WIC Radio], which were adjudged to be comments, not statements of fact (Hansman BCSC, para 137). The chambers judge found that even if his finding was wrong, the public interest in protecting the speech outweighed the likely harm suffered by Mr. Neufeld (Hansman BCSC, para 161). In the judge’s view, Mr. Neufeld provided little evidence about the harm he suffered (Hansman BCSC, para 158), and Mr. Hansman’s expression should be strongly protected because it was largely spoke on the need for safe and inclusive schools (Hansman BCSC, para 160).
On appeal, the British Columbia Court of Appeal (“BCCA”) found that the chambers judge erred in both parts (Neufeld v Hansman, 2021 BCCA 222 [Hansman BCCA]). First, there was reason to believe that at least one of the publications made statements of fact not recognizable as comments (Hansman BCCA, para 31). They emphasized that WIC Radio assessed fair comment at trial outside the preliminary stages, so the chambers judge erroneously elevated Mr. Neufeld’s burden under the PPPA by over-relying on WIC Radio (Hansman BCCA, paras 39-40). The chambers judge also erred at the public interest hurdle by failing to effect to the principle in defamation law that general damages are presumed (Hansman BCCA, para 51).
According to the BCCA, the judge overlooked the chilling effect that would result from denying Mr. Neufeld’s legal recourse to vindicate his reputation (Hansman BCCA, para 63). Namely, others might become afraid to speak out for fear that their reputation would be tarnished unfairly without legal recourse.
At the SCC
The Court majority agreed with the chambers judge and overturned the BCCA. They found that Mr. Hansman had the fair comment defence available and the value of his speech outweighed the public interest in allowing the lawsuit to proceed. Côté J dissented on both parts.
Not Much Evidence of Harm to Work With
Karakatsanis J, writing for the majority, began her analysis with the public interest hurdle, noting that it made no difference which part she analyzed first (Hansman, para 53). She wrote that the harm caused by defamatory statements cannot be serious solely based on presumed general damages because this would “gut” the weighing exercise (Hansman, para 67). Karakatsanis J also reasoned that a party can only be chilled by a potential legal penalty, not by losing the right to impose a legal penalty (Hansman, para 77).
Promotion of Equality and “Counter-Speech” are Crucial
On the other side of the hurdle, the majority noted that s. 2(b) Charter jurisprudence grounds the analysis, but that s. 15(1) values can factor in when appropriate (Hansman, para 79). Following Pointes, the majority analyzed the quality, subject matter, motivation, and form of expression, each measured against its relation to the s. 2(b) values of truth-seeking, public participation in political decision-making, and protecting diverse forms of self-fulfillment. They recognized Mr. Hansman’s speech as “counter-speech,” a type of expression aimed at counteracting harmful or ignorant expression (Hansman, paras 80-82). For instance, Mr. Hansman was motivated by a desire to combat expression he reasonably believed was harmful to and discriminatory against these youth (Hansman, para 91). His expression was in the context of an interview, where his thoughts were elicited by journalists to provide a view counter to Mr. Neufeld’s. The Court cautioned against interpreting the judgment as immunizing all defamatory counter-speech; it was relevant that Mr. Hansman’s counter-speech was proportionate to the statements to which he responded (Hansman, para 92).
Hate Speech Accusations are not Statements of Fact
Contrary to the BCCA, the Court found no grounds for believing the publications were not based in fact and were not recognizable as comment or motivated by malice. The majority focused on the broader social context to show why Mr. Hansman’s statements were understandable as comments and not facts.
The chambers judge found Mr. Hansman honestly believed his statements from the “thrust” of his evidence (Hansman, para 117). Mr. Neufeld did not use his ability to cross-examine Mr. Hansman on his affidavit, leaving the chambers judge the discretion to find that Mr. Neufeld had not met his persuasive burden in demonstrating malice (Hansman, para 118).
A Multi-Pronged Dissent
Côté J stood alone in dissent on several points. She agreed with the majority that counter-speech is part of free dialogue and preferable to the silencing of ideas, but that the majority goes too far by giving it more value than the speech it responds to (Hansman, para 123). She stressed that the PPPA is a pre-trial screening mechanism, which the court has warned against turning into a “de facto summary judgment” (Hansman, para 130). Côté J emphasized that, per Pointes, the public interest hurdle should be completed after the other elements. The order explicitly fed into the reasoning for a low burden at the other stages to facilitate getting to the public interest hurdle (Hansman, paras 136-138).
Regarding the fair comment defence, Côté J agreed with the BCCA that WIC Radio was improperly relied upon because the judge thought it was so similar that any contextual analysis could be skipped (Hansman, para 148). Any ambiguity between what is comment or fact must benefit the plaintiff, and the fact that Mr. Hansman was speaking as the president of a teacher’s union and the works were published in news articles tips the balance to the plaintiff (Hansman, para 149).
On the public interest hurdle, Côté J found the comment itself contained an allegation of sufficient gravity for the trial judge to infer the likelihood of serious harm to reputation (Hansman, para 160). Partnered with the powerful position of the speaker, the harm Mr. Neufeld suffered was likely serious (Hansman, paras 163-164). She criticized the majority for straying from a content-neutral approach to core s. 2(b) principles when they valued Mr. Hansman’s counter-speech because it defended marginalized communities (Hansman, para 169). She pointed out that the promotion of equality is not tethered to the statute’s text (Hansman, para 171), and disagreed that the removal of the right to a legitimate claim is not a legal penalty (Hansman, para 175).
The Less-Discussed Perspective
Commentators have already lauded the Court’s recognition of counter-speech and its importance for people advocating on behalf of the interests of 2SLGBTQ+ people. I want to respectfully highlight a few of the weaker aspects of the judgment.
Why Not Also Make Every Other Right Core to Freedom of Expression?
Traditionally, the values of free expression and equality are balanced by courts when they conflict. In Pointes, this balancing was limited to potential to “provoke hostility” against a vulnerable group. It did not positively value defence against that hostility. In Hansman, para 91, the Court instead entangled the defense of s. 15(1) values to principles at the core of s. 2(b). This approach is reminiscent of the argument that the scope of s. 2(b) should be limited by the values of s. 15(1), which was rejected in R v Keegstra  3 SCR 697 because it was not content-neutral. The majority’s path eschewed content neutrality in the context of public debates regarding equality. Undoubtedly, many equality-seeking Canadians will see this as a good thing, and perhaps it is. However, it is unclear whether a forceful opposition to SOGI 123 without the inflammatory characteristics would still warrant the Court valuing defamatory counter-speech based solely on its alignment with s. 15(1) values. How would it impact proportionality? Is there a reason s. 15(1) values are unique for counter-speech purposes, or would counter-speech defending the values undergirding freedom of association, privacy or parental rights also fall close to the core s. 2(b)? Unfortunately, the text of the statute does not provide guidance. A lack of clarity around these questions and the resulting consequences could reasonably lead to self-censorship on either side.
A Technical Limitation on Chilling
The majority’s clarification of what constitutes “chilling” elevates technicality over purpose. The public interest hurdle is value-driven. If denying a claim negatively impacts public discourse, it should be relevant for the same reasons as chilling effects. Mr. Neufeld criticized a government initiative in his capacity as a public school trustee, a highly protected area of expression. The purpose of defamatory legislation is not limited to imposing a legal penalty on the defamer, but includes vindication of reputation. It is hard to see how denying that access to justice could not be framed as a legal penalty. Since Pointes para 80 identifies these as additional considerations, the Court did not need to find the chambers judge in error regardless.
Equality is a vital value to Canadian society. This judgment may make the right call by using it as a hurdle to defamation suits in certain contexts, but Côté J’s dissent gives a strong reason to doubt that call. I look forward to seeing how the courts interpret the effect of this case on content neutrality as the jurisprudence develops.
Editor: Meredith Wilson-Smith