The Supreme Court of Canada’s decision in Hansman v Neufeld

Monday 28 August 2023

Steeves Bujold
Canadian Bar Association, Ottawa, Ontario

This article discusses a decision rendered by the Supreme Court of Canada on 19 May 2023, in Hansman v Neufeld [2023 SCC 14]. The case focuses on a defamation lawsuit after a public debate around an initiative to equip educators with resources to teach students about sexual orientation and gender identity. In 2016, British Columbia’s Ministry of Education launched ‘Sexual Orientation and Gender Identity 123’ (SOGI 123). The aim of SOGI 123 is to foster inclusion and respect for students who may face discrimination in school because of their gender identity or expression. Barry Neufeld, an elected public school board trustee in Chilliwack, British Columbia, publicly criticised the initiative in online posts, which triggered significant controversy including calls for him to resign. Many people in the community considered his statements derogatory of transgender and other 2SLGBTQ+ individuals (two-spirit, lesbian, gay, bisexual, transgender, queer or questioning and additional sexual orientations and gender identities). Glen Hansman, a gay man, teacher and former president of the British Columbia Teachers’ Federation, publicly denounced Neufeld’s views, including to the news media, calling them bigoted, transphobic and hateful. He accused him of undermining safety and inclusivity for transgender and other 2SLGBTQ+ students in schools and questioned whether he should remain a school board trustee.

Neufeld sued Hansman for defamation. In response, Hansman asked the court to dismiss the lawsuit under the province’s Protection of Public Participation Act (the ‘Act’). He argued that Neufeld had launched a strategic lawsuit against public participation (SLAPP). Rather than compensating the plaintiff for serious harm to their reputation, the goal of this kind of legal action is to silence the defendant and suppress debate on matters of public interest. The Act aims to counter SLAPPs. When a court determines that protecting free debate on matters of public interest outweighs harm to the plaintiff, section 4 of the Act instructs it to dismiss this type of lawsuit.

The first instance judge dismissed Neufeld’s defamation lawsuit, finding that it had the effect of suppressing debate on matters of public interest. He determined the value in protecting Hansman’s expression outweighed the harm Neufeld likely suffered. The Court of Appeal disagreed and allowed the defamation suit to continue. Hansman appealed to this Court.

The Supreme Court allowed the appeal. Writing for the majority, Justice Karakatsanis restored the first judge’s order dismissing Neufeld’s defamation suit. She decided the public interest in protecting Hansman’s speech outweighed the public interest in remedying the reputational harm to Neufeld. She agreed with the judge that Neufeld had suffered limited harm, as he continued to express his views despite the public reaction and won re-election a year later.

As for Hansman, he spoke out to counter what he and others perceived to be discriminatory and harmful speech against transgender and other 2SLGBTQ+ youth, ‘groups especially vulnerable to expression that reduces their worth and dignity in the eyes of society and questions their very identity’. His response to Neufeld’s statements was neither disproportionate nor gratuitous.

As Justice Karakatsanis explained, ‘[t]he closer the expression lies to the core values of [freedom of expression], including truth-seeking, participating in political decision-making and diversity in the forms of self-fulfillment and human flourishing, “the greater the public interest in protecting it”’. She concluded Hansman’s speech aligned with these values.

Finally, the Supreme Court notes: ‘The transgender community is undeniably a marginalized group in Canadian society. The history of transgender individuals in Canada has been marked by discrimination and disadvantage.’