Defamation, "chilling effects," and calling a public official a bigot - what should have been an easy case

Last month the Supreme Court released its decision in Hansman v. Neufeld, a defamation case. The case arose after Barry Neufeld, a public school board trustee in BC, criticized provincial policy concerning the instruction of students on gender identity and sexual orientation (a central post of his involved the usual bromides about traditional “family values,” calling into question the socially constructed nature of gender, and claiming that “allowing little children [to] choose to change gender is nothing short of child abuse.” (see para. 102 of the decision).

In response, Glen Hansman, a former president of a teacher’s union, called him out as bigoted and transphobic. Neufeld launched a defamation suit, and Hansman applied to have the case dismissed under BC’s anti-SLAPP law. Anti-SLAPP legislation is designed to prevent targeted ‘strategic lawsuits against public participation’ - defamation claims designed to suppress free expression and that (usually) involve powerful interests seeking to silence criticism on matters of public interest.

In my opinion, this should have been an easy case. In fact, it seems precisely like the sort of action that anti-SLAPP laws were created to address: a public official posts plainly transphobic and homophobic messaging and gets criticized - and yes, labelled - for it.

But while the chambers judge found in Hansman’s favour, the BC Court of Appeal overturned the decision, finding that the chambers judge erred on several grounds. Some of these were potentially important legal grounds, asserting, for example, that the chambers judge failed to address the specific expressions at stake in the case by focusing instead on a summary of the type of comments at issue. But one claim by the Court of Appeal was positively bizarre, noting that the chambers judge failed to weigh “the potential chilling effect on future expression” with respect to the plaintiff as a result of Hansman’s counter-speech. This flips the entire purpose of anti-SLAPP laws on its head!

Thankfully, a majority of the Supreme Court (with Justice Côté dissenting) reversed the Court of Appeal and ended the case. However, there remain a couple of other troubling elements here worth commenting on, both in Côté’s dissent and in the majority’s reasons.

One of Côté’s objections to the majority’s holding is that it is not clear that Hansman can avail himself of a fair comment defence for all of his statements (a prerequisite for dismissing the suit under the anti-SLAPP law). In short, Côté suggests that it is possible that Hansman’s opinion that Neufeld promoted hatred, and “tip toed quite far into hate speech” could be construed as statements of fact rather than as a comment or criticism (at paras. 150-153). She concludes that “Both of these statements carry the defamatory sting that Mr. Neufeld engaged in hate speech.” (at para. 154), an assertion that “is quite different from expressing a judgment or making a remark incapable of proof.” (at para. 155).

Côté analogizes the accusation of hate speech with allegations of fraud, theft, or other criminal conduct. The problem with Côté’s assessment is that it presumes when ordinary people accuse others of “hate speech” that they are making a legal claim (like accusing someone of fraud or theft) when in fact they are making an assertion of hateful speech. It is well established that people can engage in racist, transphobic, or otherwise discriminatory speech without falling afoul of Canada’s hate speech laws. The label for such speech is still, in plain rather than legal meaning, “hate speech”. Côté herself notes that “Our law requires an onerous and objective standard to be met for speech to constitute hate speech.” (at para. 154). And the legal standard is not what the typical individual is referring to (or what the typical reader/listener necessarily thinks about) when noting that someone is being hateful or transphobic or engaging in hate speech.

The majority notes that the accusations in other cases (like of fraud) “suggested concrete knowledge of past wrongdoings” whereas an accusation of hate speech (in response to, well, hateful speech) does not, and Côté does not have much of a response other than to suggest the comments here also amount to attributing “wrongdoing.” But again, surely it is fair comment to suggest someone has engaged in moral wrongdoing.

Although the majority landed on the correct outcome, and correctly rebukes the Court of Appeal for some of its reasoning, there is an element of its reasons that are less than ideal from a perspective of free expression principles.

In assessing the “public interest in protecting the defendant’s expression” the majority spends considerable energy expounding on the value of Hansman’s pro-equality expression and its defense of equality rights (specifically citing section 15 of the Charter). The majority writes “As our Constitution recognizes, not all expression is created equal, and 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 (see Pointes, at paras. 74, 76 and 120)”. The reasons proceed to elaborate on how Hansman’s counter-expression sought to renounce anti-2SLGBTQ+ speech and the nature of the transgender community as marginalized.

This portion of the Court’s reasoning received accolades from commentators on Twitter, etc. Morally, they are certainly a resounding and positive repudiation of the idea that Hansman should be subject to civil liability for calling out the transphobic statements made by a school trustee. On that score the praise is deserving.

But from the perspective of the free expression principles the Court is meant to protect, this passage of the decision is actually a problem: it explicitly states that some speech is more ‘valuable’ than others. Yet a rigorous free expression principle would recognize that this is precisely what the state - including courts - should not get to decide.

The majority judgment even speaks out of both sides of its mouth when it pauses to write that “Mr. Neufeld’s right to express himself is not in doubt, nor is it for this Court to assess the value of his expression.” (at para. 90). But that is precisely what it is doing!

In the context of this particular defamation suit, perhaps this is all well and good. The discussion only underscores the extent to which Hansman’s speech was fair comment and that Neufeld’s lawsuit against him should have been tossed. But when we consider the state of defamation law generally, and of free expression more broadly, we should be wary of privileging particular modes of expression on the basis of their relationship to other rights and values. Expression that generally receives broad public and state support isn’t the expression that always needs protecting.

More narrowly, if a public school trustee opined that Ontario should end separate funding for Catholic schools and someone called them an anti-Catholic bigot, a defamation suit should be no more countenanced in that context either! Just because Catholics are not an oppressed group like trans people does not mean someone loses their right to spout off about what they perceive as an injustice (even if we might disagree with them). Indeed, despite the presence of anti-SLAPP laws in Ontario and BC, our defamation law generally remains far too permissive of censorious actions. Defending oneself against defamation claims, even with the benefit of anti-SLAPP statutes, remains absurdly expensive, and not everyone is willing to take the risk that they might not win a costs award in defending themselves. Petulant claims over what amounts to name-calling shouldn’t have to be appealed all the way to the Supreme Court of Canada.

As a broader matter, the Court has routinely privileged certain values over others when assessing free expression, including in Charter cases. This is something that leading s. 2(b) scholars like Jamie Cameron and Richard Moon have discussed and rightly pointed to as a problem in the jurisprudence. The question should not be whether particular speech acts are deemed meritorious by a court but whether there is good reason for the state - or, in the civil context, the courts - to sanction them (i.e. the harms they cause).

In short, we still have some very real progress to make in different areas of law when it comes to expressive freedom.