The right to accuse someone of promoting hatred against a vulnerable minority group deserves protection from defamation lawsuits, the Supreme Court ruled 6-1 on Friday.
Borrowing a term from First Amendment cases in the United States – “counterspeech” – the court stressed the value of expression that seeks to defend these groups from criticism.
The vulnerable minority in question was transgender people, whom the court described as “uniquely disadvantaged.”
The case featured, on one side, an elected school trustee, who had said in a social media post that British Columbia’s education policy would result in the teaching of the “biologically absurd theory” that gender is not determined at birth, and that heterosexual marriage is not the norm. On the other side, a gay union leader had labelled the trustee hateful and a homophobe, and accused him of creating an unsafe environment for transgender youth.
In short, objectionable speech (in the eyes of some) was up against cancel culture (in the eyes of others).
The lawsuit was brought in 2018 by the trustee, Barry Neufeld, of Chilliwack, B.C., against Glen Hansman, who at the time was president of the BC Teachers’ Federation. The question for the court was whether the suit should be allowed to proceed, or whether Mr. Hansman was protected from such legal action on free-speech grounds.
It is the type of question that has bedevilled courts since Ontario, British Columbia and Quebec passed laws over the past decade aimed at protecting free speech by blocking defamation suits intended to intimidate and silence critics. The laws are modelled on state laws in the United States, which take aim at lawsuits by powerful companies designed to muzzle their opponents.
Mr. Hansman sought to use the B.C. law (known as an anti-SLAPP law, for strategic lawsuit against public participation) to have Mr. Neufeld’s defamation suit thrown out before it could be heard.
Justice Alan Ross of the B.C. Supreme Court granted Mr. Hansman’s request in 2019, saying the need to protect public debate outweighed any harm to Mr. Neufeld’s reputation, which he had not proven anyway. Mr. Neufeld was re-elected trustee after Mr. Hansman made his comments. (He has since lost a subsequent bid for re-election.)
The B.C. Court of Appeal overturned the ruling 3-0 in 2021 and said people like Mr. Neufeld would face a “chilling” effect on their own speech if they could not sue others who had potentially defamed them.
The Supreme Court majority said Justice Ross got virtually everything right, and the appeal court got nearly everything wrong. For one thing, it said, anti-SLAPP laws and the case law on free speech in Canada deal with chilling effects on those being sued for defamation, not those bringing the suits.
But the court’s most important point was that not all speech is equal, or equally deserving of protection. Speech defending equal rights and “diversity in the forms of self-fulfilment and human flourishing” is closer to the “core values” of free expression than speech undermining them, the court said.
“Mr. Hansman’s expression is counterspeech motivated by a desire to promote tolerance and respect for a marginalized group in society. His expression is deserving of significant protection,” Justice Andromache Karakatsanis wrote for the majority, joined by Chief Justice Richard Wagner, Justice Malcolm Rowe, Justice Sheilah Martin, Justice Mahmud Jamal and Justice Michelle O’Bonsawin.
The court did not view Mr. Neufeld’s comments as hateful but said Mr. Hansman’s response was fair comment – a valid defence to an accusation of defamation.
In dissent, Justice Suzanne Côté cited the late U.S. Supreme Court judge Louis Brandeis, who said in 1927 that the answer to objectionable speech is “more speech, not enforced silence.”
Her point, though she did not use the term “cancel culture,” was that some counterspeech seeks to cancel, or silence, others.
“Counter‑speech aimed at completely removing the initial expression from the public sphere appears to be inconsistent with the search for truth,” Justice Côté wrote.
Paul Jaffe, a lawyer for Mr. Neufeld, said in an interview that the ruling turned anti-SLAPP law upside-down by siding with a powerful teachers’ union against an individual trustee who attempted to speak for the public that voted for him.
“I think it’s a terrible, terrible sign that freedom of speech is under attack by a judiciary that’s becoming politically and ideologically driven,” Mr. Jaffe said.
Access to the courts is the real issue, he said.
“The competing views on the underlying debate ought not to be a factor.”
Justin Safayeni, a lawyer for an intervenor group, the Centre for Free Expression, said it is in keeping with the purpose of anti-SLAPP laws to consider the defence of vulnerable or marginalized groups in deciding whether to dismiss a lawsuit. He said his comments reflect his own views.
Robyn Trask, a lawyer representing the BC Teachers’ Federation, said the ruling is important because it is the first from the Supreme Court to describe discrimination against transgender and non-binary people.
“I think this is a really important precedent for anyone who wants to speak out in defence of vulnerable communities and marginalized groups,” she added.