Counter-speech protecting interests of LGBTQ+ neither antithesis to public interest nor amounts to defamation; Canada SC dismisses SLAPP suit

Supreme Court of Canada: In a case where two competing values—freedom of expression and protection of reputation were at crosshead, the Bench of Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Jamal and O’Bonsawin JJ. was tasked to clarify the proper equilibrium between these two values where the expression at issue relates to a matter of public interest.

The instant case concerns the application of section 4 of British Columbia’s anti-SLAPP (Strategic Lawsuits Against Public Participation) statute, the Protection of Public Participation Act, S.B.C. 2019, c. 3 (hereinafter “the PPPA”). The defamation suit at issue arose out of a high-profile public debate on British Columbia’s efforts to develop Sexual Orientation and Gender Identity 123 (SOGI 123), an initiative to guide educators on instruction about sexual orientation and gender identity to combat discrimination against transgender and other 2SLGBTQ+ youth.

Chronology of Events

Barry Neufeld, a public-school board trustee in Chilliwack, British Columbia, publicly criticized SOGI 123 by calling it a “weapon of propaganda” that teaches the “biologically absurd theory” that “gender is not biologically determined, but is a social construct”. He also lamented that children were “being taught that heterosexual marriage is no longer the norm”.

Neufeld’s posts triggered significant controversy and lead to protests as many considered his comments to be derogatory of transgender and other 2SLGBTQ+ individuals. Glen Hansman, a gay man, teacher, and former president of the British Columbia Teachers’ Federation made statements to media calling Neufeld’s views bigoted, transphobic, and hateful; accused him of undermining safety and inclusivity for transgender and other 2SLGBTQ+ students in schools; and questioned whether he was suitable to hold elected office.

Neufeld sued Hansman for defamation who then applied to have the defamation action dismissed as a SLAPP under section 4 of the PPPA. The Chambers judge found that Neufeld’s defamation action had the effect of unduly suppressing debate on matters of public interest and dismissed the suit. The Court of Appeal disagreed and reinstated the action.

Section 4 of the PPPA

A key feature of a SLAPP is the strategic use of the legal system to silence contrary viewpoints. Anti-SLAPP legislation, such as the PPPA, creates a procedure for screening proceedings arising from expression on matters of public interest at an early stage by enabling a defendant to apply to the court to dismiss a proceeding against them.

Section 4 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 (s. 4(1). If the defendant does so, the onus shifts to the respondent (the plaintiff) under s. 4(2) to satisfy the court there are grounds to believe that:

a. the proceeding has substantial merit (s. 4(2)(a)(i)), and

b. the defences raised by the defendant are not valid, in that they can be said to have no real prospect of success (s. 4(2)(a)(ii)).

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 under s. 4(2)(b), 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.

“The core feature of both laws is the recognition that even claims with substantial merit will be dismissed where the public interest in preserving free debate outweighs the harm to the plaintiff that the litigation purports to address. In this way, anti-SLAPP legislation instructs judges to deny claimants a day in court on a meritorious claim, given a more compelling social goal.”

Analysis by the Majority (Côté, J. dissenting)

Issue 1: Public Interest Weighing

Section 4(2)(b) requires the plaintiff to prove on a balance of probabilities that — due to “the harm likely to have been or to be suffered” by the plaintiff as a result of the defendant’s expression — the public interest in allowing the proceeding to continue outweighs the proceeding’s “deleterious effects on expression and public participation”

To succeed on the weighing exercise, a plaintiff must provide evidence that enables the judge “to draw an inference of likelihood” of harm of a magnitude sufficient to outweigh the public interest in protecting the defendant’s expression. However, considering that Neufeld continued to express the same contentious views despite the public reaction and won re-election a year later, the majority held that Neufeld failed to identify any specific harm flowing from the statements serious enough to outweigh the public interest in protecting Hansman’s expression.

Noting that Hansman’s expression was counter-speech motivated by a desire to promote tolerance and respect for a marginalized group in society, the majority opined that his expression deserved significant protection. Hence, the Court held that the public interest in protecting Hansman’s expression outweighed the public interest in remedying the harm to Neufeld and that allowing the proceeding to continue will chill the expression of the defendant and others who might be sued in defamation.

Issue 2: No Valid Defence

Regarding the fair comment defence, the majority held that Neufeld failed to adequately challenge the defence as he adduced no evidence that would form the basis of an argument against the validity of the fair comment defence.

Right to Reputation vis-a-vis Right to Counter-speech

The majority observed that the level of protection to be afforded to any particular expression can vary widely according to the quality of the expression, its subject matter, the motivation behind it, or the form through which it was expressed. The closer the expression lies to the core values of section 2(b) of the Canadian Charter of Rights and Freedoms, including truth-seeking, participation in political decision-making and diversity in the forms of self-fulfillment and human flourishing, “the greater the public interest in protecting it”. The majority further commented,

“Where the defendant is not the only one speaking out against the plaintiff, inferring a causal link between the defendant’s expression and the harm suffered by the plaintiff becomes both more important, and more difficult.”

Opining that the possible imposition of a legal penalty would cause speakers to refrain from commenting on matters of public interest, the majority said,

“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. As Mr. Hansman spoke out to counter expression, he perceived to be untrue, prejudicial towards transgender and other 2SLGBTQ+ individuals, and potentially damaging to transgender youth.”

Verdict

Hence, upholding the views of the Chambers judge that there was a great public interest in protecting Hansman’s freedom of speech, the majority held that the subject matter of his speech (commenting on the value of a government initiative, the need for safe and inclusive schools, and the fitness of a candidate for public office), the form in which it was expressed (solicited by the media to present a counter-perspective within an ongoing debate), and the motivation behind it (to combat discriminatory and harmful expression and to protect transgender youth in schools) were all deserving of significant protection.

Consequently, the appeal was allowed the order of the Court of Appeal for British Columbia was set aside, and the order of the chambers judge dismissing the defamation action was restored.

The Dissent

Expressing his dissent, Côté, J. opined that counter-speech does not enjoy absolute constitutional protection, nor is it inherently more valuable than the speech to which it responds. Criticizing the majority’s take on the issue, the judge gave following reasons to deviate from the aforesaid conclusion:

• Counter-speech aimed at completely removing the initial expression from the public sphere appears to be inconsistent with the search for truth. Silencing contrary and unpopular views seems antithetical to our liberal, pluralistic and democratic society, which is committed to the free exchange of ideas in the pursuit of truth.

• The majority took a wrong turn by addressing public interest weighing before merit based hurdles (that there are “grounds to believe” that the proceeding has substantial merit and that the defendant has no valid defence), because though the public interest weighing exercise mandated by section 4(2)(b) of the PPPA is the “crux” of the analysis, it must first be established that it clears the merits-based hurdle. Ultimately, it is “the public interest in allowing meritorious lawsuits to proceed” that is weighed against “the public interest in protecting expression on matters of public interest”.

• To succeed, the plaintiff does not have to establish that the applicant has no valid defence for every impugned statement; it suffices that a valid defence is unavailable for some statements or even only one. Hansman’s statements accusing Neufeld of promoting hatred against an identifiable group, i.e. LGBTQ students; and that he had “tip toed quite far into hate speech” indicated that there were grounds to believe that the two impugned statements were made as statements of fact and not as comments and, consequently, the fair comment defence was not available for them.

• The fact that Neufeld was not silenced by Hansman’s statements did not negate any harm he suffered. Otherwise, public figures could claim only nominal damages for defamation unless they lost their platform as a result.

• Hansman did not limit himself to criticizing Neufeld’s views on SOGI 123 or to affirming his support for inclusive schools. He made personal attacks and serious hate speech accusations that were likely to cause or that did cause significant harm to Neufeld and lowered the public interest in protecting his speech.

• Interpreting s. 4 of the PPPA so as to deprive defamed parties who have suffered serious harm of their day in court could very well be detrimental to public debate. It could prevent those who hold controversial or unpopular views from entering the public arena to share them.

Emphasizing on the need to grant equal protection to minority view, Côté, J., said,

“Freedom of expression is content-neutral, which is why its scope even encompasses expression that is “unpopular, distasteful or contrary to the mainstream”. This fundamental freedom would be seriously undermined if the outcome of the public interest weighing exercise under the PPPA depended on the alignment between the views expressed by the applicant and those held by the court.”

He further said,

“Anti-SLAPP legislation like the PPPA does not provide a licence to defame. Being the subject of defamatory counter-speech is not the price that those who engage in public debate by expressing minority views on contentious topics must inevitably pay.”

[Glen Hansman v. Barry Neufeld, 2023 SCC OnLine Can SC 4, decided on 19-05-2023]

*Kamini Sharma, Editorial Assistant has put this report together