Marginalized citizens gain protection

On May 19, Canada’s Supreme Court resolved an important defamation case with six of seven judges finding against former Chilliwack school trustee Barry Neufeld. Doing so, the court further defined boundaries of fair public comment and strengthened provincial laws discouraging Strategic Lawsuits against Public Participation or “SLAPP” suits.

In 2017, the British Columbia Ministry of Education had published tools and resources relating to sexual orientation and gender identity (“SOGI 123”). The aim was to promote inclusive environments, policies, and procedures in respect of sexual orientation and gender identity.

Using Facebook in 2017, Neufeld objected to the program, saying it amounted to child abuse. His comment included this reaction to SOGI 123:

If this represents the values of Canadian society, count me out!  I belong in a country like Russia, or Paraguay, which recently had the guts to stand up to these radical cultural nihilists.

Neufeld was widely criticized. Acting as BCTF President, Glen Hansman commented on Neufeld’s outspoken views. The school trustee accused Hansman of defamation and began a legal action.

Ruling in chambers, BC Supreme Court Justice Alan Ross tossed Neufeld’s action. In his reasons, Justice Ross gave background, which I provide in much condensed form:

[14]         In 2016, the Human Rights Code, R.S.B.C. 1996, c. 210 [HRC] was amended to include “gender identity or expression” as a prohibited ground of discrimination. Sexual orientation has been a protected ground under the HRC since 1992.

[15]         Shortly after the 2016 amendment, the Ministry of Education issued an updated Ministerial Order, requiring that school boards include reference to “gender identity and expression” in their codes of conduct, in addition to the already required references to other prohibited grounds under the HRC. That update was announced by the Ministry on September 7, 2016.

[16]         A group of organizations collaborated to prepare the SOGI 123 resources... The materials were drafted with the stated goal of having age-appropriate tools for teaching about sexual orientation and gender identity available for teachers of children in Kindergarten through Grade 12.

In dismissing Neufeld’s action, the judge stated:

The plaintiff has an interest in claiming damages and clearing his good name. However, the public has an interest in protecting expressions that relate to public debate. In balancing those interests, I find that the interest in public debate outweighs the interest in continuing the proceeding on these facts.

Neufeld turned to the BC Court of Appeal and it overturned the lower court decision, saying in the summary of reasons:

The chambers judge erred in assessing whether there was likely a valid defence of fair comment . . . When weighing the interest in allowing the action to proceed, the subject matter of the expressions must be distinguished from the expressions themselves. Finally, the weighing exercise must consider not only the harm to the plaintiff but the public interest in continuing the proceeding. The judge failed to consider the chilling effect the respondent’s expression could have on public discourse.

Hansman appealed to the Supreme Court of Canada and in 2023, BC’s Court of Appeal added another case to its long list of slam-dunk reversals by Canada’s highest court. Among the high court findings:

The chambers judge did not err in concluding that the public interest weighing exercise mandated dismissal of the underlying action or that N failed to adequately challenge the validity of H’s fair comment defence. Accordingly, his order dismissing the defamation action should be restored . . .

Section 4 of the PPPA [Protection of Public Participation Act] creates a pretrial screening mechanism that instructs a judge to dismiss an action arising from expression on a matter of public interest unless the plaintiff can satisfy the judge that their action has substantial merit; the defendant has no valid defence in the proceeding; and the harm to the plaintiff as a result of the defendant’s expression is serious enough to outweigh the public interest in protecting that expression . . .

In the instant case, the Court of Appeal’s consideration of a chilling effect flowing from a plaintiff’s inability to pursue a defamation claim turns the concept on its head. The Court’s freedom of expression jurisprudence addresses the concern that the possible imposition of a legal penalty would cause speakers to refrain from commenting on matters of public interest. Instead, the Court of Appeal held that the inability to inflict a legal penalty on H would chill N’s expression and those of others who wish to express unpopular views. There is no chilling effect in barring potential plaintiffs from silencing their critics and collecting damages through a defamation suit . . .

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.

In the instant case, H’s expression is counter‑speech motivated by a desire to promote tolerance and respect for a marginalized group in society. H spoke out to counter expression he perceived to be untrue, prejudicial towards transgender and other 2SLGBTQ+ individuals, and potentially damaging to transgender youth. The transgender community is undeniably a marginalized group in Canadian society. The history of transgender individuals in Canada has been marked by discrimination and disadvantage . . .

The fair comment defence has five elements: the comment must be on a matter of public interest; be based on fact; be recognisable as a comment; satisfy an objective test (could any person honestly express that opinion on the proved facts?); and the speaker cannot be actuated by express malice. Consideration of the elements of the fair comment defence requires an assessment of the defamatory words used in the full context surrounding their use.

I find it difficult to follow the impaired logic of SOGI 123 opponents. In this case, Neufeld saw Russia as preferable to Canada, perhaps because the Eurasian nation was jailing, torturing, and killing gay people while Canada was trying to end prejudice based on sexual and gender preferences. Neufeld said that allowing children to express themselves differently was “child abuse.”

People of my age schooled in the 1960s will recall that non-conforming individuals were hidden from view. In my small town high school of about 500 students, not one person was known as gay. Various surveys now suggest the actual number was anywhere from five to ten percent.

We also know that the incidence of suicide among 2SLGBTQ+ is alarmingly high and the risks are highest among young people. I think facts demonstrate that not allowing children to express themselves in ways that do no harm to others is the real child abuse.

Officials in earlier days also believed there was no place in public schools for children with physical, emotional and intellectual disabilities, or spaces for children with Indigenous heritage.

A majority of Canadians would applaud the Supreme Court’s statement about promoting tolerance and respect for a marginalized group. But dinosaurs remain among us, stubbornly refusing to change their mind-set, and continuing to promote outdated and harmful concepts.

Those who spread hate should not be allowed to silence their critics by legal actions that most individuals could not afford to defend. BC’s PPPA helps establish protection and the high court decision strengthens the safeguard.

Categories: Justice

8 replies »

  1. I refer back to my Edwardian grandmother on the subject of being gay; “It is none of our business.”

    Therefore I have adhered to that simple phrase, one’s sexual orientation is none of my business and so should it be none of anyone’s else’s business.


  2. Every time I see a photo of Barry Neufeld I’m reminded of his resemblance to Charles Darwin. The resemblance is purely visual, but it does get me thinking about natural selection and how we’re wired to be wary of anyone who looks or acts differently from us.

    That wariness stood our distant ancestors in good stead. Trusting those from the other side of a mountain range or river, not to mention a never-before-seen critter, could get you killed. Your genes then would not get passed on, and neither would those of like minded individuals. Natural selection favoured wariness of those with different stripes.

    Most of civilized humanity has evolved beyond those basic survival instincts and can discriminate between true threat and mere non conformance. Those who have not evolved in that manner are prone to radical intolerance, and often seek positions of power or influence to act on that intolerance. They are sometimes called dinosaurs because of their antiquated thought.

    The evolution of dinosaurs was catastrophically truncated (through no fault of their own) and we are likely benefactors of their misfortune.

    Mr. Neufeld seems to be furthering the tradition of society benefitting from the misfortune of dinosaurs.


  3. I think the general effect of this case is positive; however, I don’t think the president of the BCTF can be seen as someone without fundamental power. He spoke, not just for himself, but on behalf of his union. I think the dissenting justice’s opinion in the case is also worthy of note and I believe this case could have been dealt with much sooner and more effectively without having spent months (and a lot of legal fees) into the bargain. We should want to see cases that actually resolve these kinds of questions – not between relative equals like Hansman and Neufeld (I think Justice Ross’s decision, in the first instance, should have been enough) but between a powerful entity and a powerless one.


    • As former BCTF President, Glen Hansman had resources, so you’re quite right that he had power not available to all citizens to pursue a case to Canada’s highest court. BCTF had consulted on implementation of SOGI 123 and has argued for safe schools and inclusivity for years. It was logical for the federation’s senior officer to criticize Neufeld’s positions publicly and for the organization to defend Hansman.

      The judge who stood alone in this 6-1 SCOC decision, Justice Suzanne Côté, has a reputation as a “great dissenter,” even writing unconventional dissents on the granting or refusals of leaves to appeal. Côté was appointed by Stephen Harper. According to Toronto lawyer Adam Goldenberg

      Towards the end of Stephen Harper’s time as prime minister, for example, some suggested that his Conservative government had gone further than previous administrations to put their ideological fellow travellers on the bench. . . No mainstream political movement in Canada has ever made it a priority to overturn a particular Supreme Court judgment by altering the ideological composition of the judiciary.

      Justice Côté’s appointment happened after Harper suspended the formal judicial appointments process, so her appointment was made without the involvement of an advisory committee. She was elevated to SCOC from private practice, not, as was common, from a Superior Court. Harper had said in the House of Commons that Conservatives intended that judges would be selected to ensure his party’s objectives were realized.

      Côté’s opinions seem inconsistent. While stating that Neufeld should be allowed to continue his effort to shut down and punish Hansman’s criticism, Côté wrote:

      Silencing contrary and unpopular views seems antithetical to our liberal, pluralistic and democratic society, which is committed to the free exchange of ideas in the pursuit of truth. Indeed, the marketplace of ideas welcomes vigorous debates on divisive issues. Such confrontation helps shape, strengthen or even change people’s perspectives.

      I believe the lone dissenting judge is thoroughly uncomfortable with the principle behind legislation that prevents Strategic Lawsuits Against Public Participation (SLAPPs). That law was debated and passed by British Columbia’s elected MLAs. Unelected Harper appointee Suzanne Côté ought to be more cautious about substituting her own personal views.


  4. Though I have little in common with Mr. Neufeld — other than living in Chilliwack and sharing the same first name — I was mistakenly introduced as “Mr. Neufeld” when I was teaching on-call in Hope a few years ago. My colleague with the slip-of-the-tongue also lives in Chilliwack and was getting inundated with ‘Neufeld news’ at the time. We still have a laugh about the gaffe!

    In the early days of the SOGI 123 wars, I was a TOC in a grade 2-3 class in Hope and their morning routine included making corrections to an error-filled sentence that was written on the board.

    It read something like: “mr. Smith red us a storey that she rote when she wuz in collage”

    One boy had started his day by sliding around the room on his back, propelled by his feet. All of a sudden, he stopped and sat up, wondering aloud as he pointed at the board, “Hey… how can SHE become a HE?”

    A girl with a very serious voice replied, “Oh… it can happen.”

    I think I did pretty well at containing my grin, while giving a hint that adding an ‘s’ would make the sentence make more sense. 🙂


  5. I read the whole case – I think Côté’s words can be read in a couple of ways – in fact, I’m less sanguine about the positive results of this case – relative to the issue of making schools safer for 2SLGBTQ+ – simply because of the attenuated period of time that has elapsed from when the comments which occasioned the suit in the first place were made – and the eventual resolution of the matter in the Supreme Court’s decision. Sometimes, justice delayed is far less effective than a decision at the Appellate level to simply throw Neufeld’s challenge out at that time. The really shocking thing to me, in the end, is the continuing habit of our BC Court of Appeal to render decisions that are far more wrong headed than anything Côté wrote on the subject. This case should NEVER have had to go to the SCC. All, of course, simply my opinion. I still wonder if, had Hansman not had the backing of his union (quite properly), an actual victim of Neufeld’s ‘speech’ would have been able to get redress in the courts. Cheers, as always.


  6. Never understood why people were so interested in who some one else was interested in or in love or lust with. As the first commenter noted it wasn’t any one’s business.

    Teaching children in school about LBTQ2 IS A GOOD THING. Parents aren’t likely to teach their kids that. Unfortunately that led to a lot of confused children. That is never a good thing.

    Although it might be argued the two people might be some what closely rated as being “equal” that isn’t the point. The point is that the ability to launch these suits makes people more and more hesitant to speak out or give their opinions. If you’re sued it costs money, it costs peace of mind, etc. Slap suits put a damper on people voicing opinions which they are entitled to have and voice. Slap shits, seem to have started in the U.S.A. to stop people from speaking out against corporations. The corporations would launch a number of law suits against citizens, who could not afford to fight back or if they did, it was at a high cost. Its best for the courts to send a message, you don’t get to do that in a democratic country,

    Yes, Harper made some “interesting and weird” appointments when it came to judges. Lets not forget he appointed Toews to a position of Judge. That boggled the mind, give some of Toews history. Harper wanted to control everything and wanted to force Canadians to adhere to his personal way of thinking. He passed 9 pieces of legislation, which he had been told were violations of the Constitution. When they were challenged in the Surpreme Court of Canada, all 9 were over turned by the Courts. Several of the cases were taken up by a Toronto lawyer. Now his protege wants to be P.M. and finish his “lord and masters” agenda.

    Well at least we have the Court’s decisions and we have the right to free speech on these matters.


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