Gavel resting on top of rainbow flag

June 6, 2023

On May 19th, 2023, the Supreme Court of Canada (SCC) handed down its decision in Hansman v. Neufeld (2023 SCC 14). The case concerned a defamation suit brought by Barry Neufeld, a former school board trustee in Chilliwack, British Columbia, against the then-president of the British Columbia Teachers’ Federation, Glen Hansman. In this case, the SCC considered the right to freedom of expression as protected by the Canadian Charter of Rights and Freedoms (Charter). Specifically, the SCC decision centered around the question of whether defamation lawsuits challenging public countering of hate – in this case, anti-2SLGBTQI and especially anti-trans hate – should be allowed to move forward.

In a victory for trans people and for advocates for 2SLGBTQI rights, the SCC’s judgment recognized that trans people are a systematically equity-denied group in Canada and that it is in the public interest to ensure that people can counter hate speech without having to fear being sued for defamation.

Background and Outcome

In 2017, when he was a school board trustee, Neufeld made a hateful Facebook post about BC’s curriculum on sexual orientation and gender identity in which he made a series of homophobic and transphobic claims. He also spoke at a rally dedicated to similar anti-2SLGBTQI views. In response, Hansman publicly commented, among other things, that Neufeld should be removed from his job and not be near students, that he had “tip-toed quite far into hate speech,” and that he held bigoted and transphobic views. In 2018, Neufeld sued Hansman for defamation based on those comments, which had been made throughout 2017 and 2018.

Hansman responded by applying to have the lawsuit dismissed on the basis of BC’s “anti-SLAPP” law.  A SLAPP is a Strategic Lawsuit Against Public Participation — a lawsuit where one party sues the other to prevent or discourage them from, among other things, adding their voice to a public conversation.  In the past decade, some Canadian jurisdictions have passed anti-SLAPP legislation that allow people who are sued for defamation to have the cases against them dismissed, if the legislative criteria are met.

The first level court, the Supreme Court of British Columbia, granted Hansman’s application to dismiss Neufeld’s defamation suit in 2019, meaning it would have thrown out the suit. The Court of Appeal for British Columbia overturned this decision in 2021, meaning it would have allowed the case to proceed to trial. Hansman appealed to the SCC to restore the first decision and have the case dismissed. Hansman won this appeal, meaning the lawsuit against him was dismissed and won’t proceed to trial.

Egale’s Role and Submissions 

Egale Canada acted as an intervener in the case, providing the court with expertise on the vulnerability of trans people in Canada and proposals on how anti-hate speech (called “counter-speech”) should be treated in the context of defamation law. Our main submissions were:

  1. The Charter protects the dignity and equality interests of trans individuals;
  2. protective counter-speech, by its nature, almost always counts as a “fair comment” that can’t be the object of a successful defamation lawsuit; and
  3. because counter-speech promotes the Charter values of dignity and equality, there is a strong public interest in protecting it. Egale was represented by McCarthy Tétrault LLP in this intervention.

The Decision: Trans Rights and Protective Counter-Speech

Egale’s intervention was successful. For the first time ever, the SCC has recognized the historic and continued oppression of trans people in Canada, stating that they are “undeniably a marginalized community”. The SCC adopted Egale’s framing of Hansman’s ideas as protective counter-speech, as well as the argument that counter-speech is deserving of greater protection given in public interest and often political implications.

The SCC cited a range of sources, including lower court findings, reports, and academic articles, to establish that trans people are systematically denied dignity and equity. Specifically, the SCC quoted the Superior Court of Quebec’s holding that gender identity, though not mentioned specifically in the Charter, is a characteristic protected by the Charter’s equality guarantee – something that has been recognized for sexual orientation since the 1990s. Egale participated as an intervener in the cited Quebec case (Centre for Gender Advocacy v. Attorney General of Quebec) and in the cases that established sexual orientation as a protected ground under the Charter (Egan v. Canada and Vriend v. Alberta). The recognition of the right to equality without discrimination based on gender identity will be crucial in future cases involving the rights of trans people in Canada.

Though successful, Hansman is just the beginning. The SCC acknowledged but did not rule on whether trans individuals are entitled to the Charter equality protections that prevent discriminations on race, sex, sexual orientation, etc. As mentioned above, the SCC quoted the Superior Court of Quebec’s holding that gender identity is a protected characteristic. The SCC appears to have declined to rule on the issue, saving it for another day and potentially for another court. Preventing discrimination based on gender identity is a crucial milestone for the trans community to secure the equality guarantees to which all people in Canada are entitled.

Building off the recognition of trans people’s particular marginalization, the SCC considered the public interest in protecting expression – like Hansman’s – that counters transphobic speech. Put differently, allowing Neufeld’s defamation lawsuit to continue would leave Hansman tangled in a legal battle for even longer. Other people who want to forcefully counter transphobic (and other forms of) hate might then decide not speak up out of fear of being sued for defamation. But the SCC concluded that the public interest, meaning what’s best for people in Canada as a whole, calls for ensuring that people feel free and empowered to defend the rights of equity-denied people.

Further Reading 

For the more technical details of the decision, please see: