Hansman v Neufeld: Counter-Speech and Trans Rights

Overview

In 2023, the Supreme Court of Canada in Hansman v Neufeld considered the public value of counter-speech regarding a public figure’s transphobic and homophobic comments. The majority’s decision emphasized the importance of counter-speech in public debate, but also crucially recognized that the trans community is a marginalized group that deserves the full protection of the law.

Legal Landscape

Hansman is litigated under s. 4 of British Columbia’s Protection of Public Participation Act (the “PPPA”). Section 4 of the PPPA is intended to combat strategic lawsuits against public participation (“SLAPP”).[1]

Provincial legislatures began enacting anti-SLAPP legislation in response to a trend of plaintiffs using the courts as a tool to enact their own agenda and suppress others’ free speech. Plaintiffs would bring defamation suits based not on actual harm to reputation, but to deter individuals with differing viewpoints from participating in public affairs.[2] Anti-SLAPP legislation, working properly, protects freedom of expression and encourages the public debate necessary for a functioning democracy.

Under s. 4(1) of the PPPA, the defendant to the alleged SLAPP action must first prove that the action arises from expression that relates to a matter of “public interest”. The onus then shifts to the plaintiff under s. 4(2)(a) to establish that the alleged SLAPP action has substantial merit and that the defendant has no valid defences. The plaintiff must also satisfy the court under s. 4(2)(b) that the harm they are likely to suffer due to the defendant’s expression outweighs the public interest in protecting that expression. The court must dismiss the proceeding as a SLAPP action if the plaintiff does not meet its onus under either s. 4(2)(a) or 4(2)(b).[3]

Anti-SLAPP legislation must balance freedom of expression under s. 2(b) of the Charter with individuals’ right to protect their reputation from slander. This balancing act becomes more difficult wherein the comments at question are political or targeted towards a vulnerable group. Hansman addresses explicitly political comments related to the rights of 2SLGBTQ+ individuals, especially trans individuals.

Prior to Hansman, the Supreme Court of Canada had not given judicial notice on how trans people in Canada can use the law to legally protect their rights. Historically, 2SLGBTQ+ people in Canada have used s. 15(1) of the Charter to challenge discriminatory common law and legislation.[4] The Supreme Court found sexual orientation to be an analogous and protected ground under s. 15(1) in 1995[5], but the Court had not yet considered whether gender identity was an analogous ground.