top of page

Supreme Court of Canada recognizes importance of counter-speech supporting trans people

Updated: Nov 27, 2023

Case Summary

Hansman v. Neufeld, 2023 SCC 14

On May 19, 2023, the Supreme Court of Canada released its much-anticipated decision in Hansman v. Neufeld, 2023 SCC 14, an appeal from a decision of the British Columbia Court of Appeal on an anti-SLAPP motion.


The Hansman decision includes recognition from Canada's highest court of the unique vulnerability and marginalization of trans people, and the need to protect "counter-speech" in opposition to those who make comments that malign or are perceived to unfairly target such communities.


Background


"SLAPP" is an acronym that means "strategic litigation against public participation". An anti-SLAPP motion is a motion designed to protect free expression on matters of public interest. This type of motion can be brought by a defendant in a defamation suit. In an anti-SLAPP motion hearing, a court can dismiss the plaintiff's case if it determines that the expression or statement complained of in the lawsuit relates to a matter of public interest sufficient to outweigh the harm to the plaintiff. In Ontario, an anti-SLAPP motion can be brought under section 137.1 of the Courts of Justice Act, which outlines the relevant legal test that the court applies. The B.C. legislation is very similar, which the Supreme Court acknowledged in its reasons.


In the current case, Neufeld, a public school board trustee in B.C., had made social media posts criticizing provincial government policy that was designed to equip teachers to instruct students about sexual orientation and gender identity. Many considered Neufeld's comments to be derogatory of 2SLGBTQIA+ students, and trans students in particular.


Hansman was a teacher and a former president of a teachers' union. He made public comments, including comments reported in the media, in which he called Neufeld's views bigoted, transphobic, and hateful. He also accused Neufeld of undermining the safety of trans students, and questioned whether Neufeld was fit to hold his elected office as a trustee.


Neufeld sued Hansman for defamation. Hansman successfully had the lawsuit thrown out under B.C.'s anti-SLAPP law. Neufeld appealed, and the B.C. Court of Appeal reversed the lower court's decision.


On May 19, 2023, a majority of the Supreme Court of Canada reversed the B.C. Court of Appeal, restoring the decision of the motions judge to dismiss the defamation suit.


The Court's Recognition of Trans Community's Circumstances


Writing for the majority, Karakatsanis J. affirmed the importance of "counter-speech" in Canada's freedom of expression jurisprudence, as it reflects the idea that the open exchange of ideas unlocks the value of free expression. She went on to write that counter-speech motivated by the defence of a vulnerable or marginalized group in society engages the values at the core of the Charter right to equality, specifically:


[82] Counter-speech motivated by the defence of a vulnerable or marginalized group in society also engages the values at the core of s. 15(1); namely, the equal worth and dignity of every individual[.] Targets of degrading expression belonging to a vulnerable group in society may lack the ability or authority to effectively combat the harmful speech themselves[.] Discourse can then take on an uneven quality, making protective counter-speech by the group or individual’s more powerful advocates all the more influential and important[.] (citations omitted)


The majority accepted that Hansman spoke out against Neufeld to counter expression he perceived to be untrue, prejudicial, and potentially damaging towards transgender and other 2SLGBTQIA+ individuals and youth. The decision then described the circumstances of transgender individuals, in the following terms:


[84] The transgender community is undeniably a marginalized group in Canadian society. The history of transgender individuals in our country has been marked by discrimination and disadvantage. Although being transgender “implies no impairment in judgment, stability, reliability, or general social or vocational capabilities”[,] transgender and other gender non-conforming individuals were largely viewed with suspicion and prejudice until the latter half of the 20th century.


[85] Indeed, transgender people occupy a unique position of disadvantage in our society, given the long history in psychiatry “of conflating [transgender and other 2SLGBTQ+] identities with mental illness” and even resorting to harmful “conversion therapy” to “resolve” gender dysphoria, and “recondition” the individual to reduce “cross-gender behavior”[.] As the British Columbia Human Rights Tribunal has recognized, “[u]nlike other groups . . ., transgender people often find their very existence the subject of public debate and condemnation”[.] They are stereotyped as diseased or confused simply because they identify as transgender[.]


[86] Transgender people have faced discrimination in many facets of Canadian society. Statistics Canada has concluded that they are at increased risk of violence, and report higher rates of poor mental health, suicidal ideation, and substance abuse as a means to cope with abuse or violence they have experienced[.] Studies have concluded that they are disadvantaged relative to the general public in housing, employment, and healthcare[.] And despite encountering a higher incidence of justiciable legal problems, studies have also found that transgender people have traditionally faced greater access to justice barriers than the broader population, in part due to a lack of explicit human rights protections[.]


[87] Significant legal advancements in transgender rights have only come in the last 35 years, with most change taking place in the last decade[.] Once forced to advance claims of discrimination on the ground of "physical disability"[,] gender identity and/or expression are now prohibited grounds of discrimination in human rights codes across the country and included within the prohibition against hate speech under the Criminal Code[.]


[88] In the wake of this legislative progress, judicial recognition of the plight of transgender individuals in Canada is growing[.] And in 2021, the Superior Court of Quebec held that “[g]ender identity is analogous to the grounds listed at s. 15(1) of the Canadian Charter” because “[g]ender identity is an immutable personal characteristic”[.]


[89] Yet individual courts and tribunals have also recognized that, “despite some gains, transgender people remain among the most marginalized in our society”[,] and continue to live their lives facing “disadvantage, prejudice, stereotyping, and vulnerability”[.] (citations omitted)


This a landmark decision in the Canada's relatively-young anti-SLAPP jurisprudence, and certainly one which ought to empower those who engage in strong critiques of attacks on marginalized groups, including 2SLGBTQIA+ people.


Judson Howie LLP practices in civil litigation, including defamation, anti-SLAPP law, and litigation concerning 2SLGBTQIA+ issues. Contact us at info@judsonhowie.ca.










103 views0 comments

Comments


bottom of page