Supreme Court Of Canada Affirms Protection Of Public Participation Act In Landmark Decision Balancing Freedom Of Expression And Public Interest

• Jurisdiction: Canada
• Law Firm: Alexander Holburn Beaudin + Lang LLP
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Discrimination, Disability & Sexual Harassment, Libel & Defamation, Social Media
• Author: Mr David McKnight and Naomi Krueger
• Published date: 08 June 2023

The Supreme Court of Canada (SCC) ruled on the proper application of section 4 of BC's Protection of Public Participation Act, SBC 2019, c. 3 (PPPA) for the first time in Hansman v. Neufeld, 2023 SCC 14. In the decision, the SCC provides guidance to lower courts on how to weigh the competing values of freedom of expression and protection of reputation in situations where the expression relates to an issue of public interest. The SCC affirmed the lower court's decision and acknowledged there is a paramount public interest in protecting counter-speech that seeks to promote tolerance and respect for a marginalized group in society. The SCC emphasized that the subject matter of Mr. Hansman's speech (commenting on the need for safety and inclusion in schools, the value of a government initiative, and the fitness of a candidate for public office), the form it was expressed (solicited by the media to present a counter-perspective within an ongoing debate), and the motivation behind the speech (to combat discrimination and to protect transgender youth in schools) are all deserving of significant protection.

BACKGROUND

In 2016, BC amended the Human Rights Code, RSBC 1996, c. 210 to include a prohibition against discrimination based on gender identity or expression. Subsequently, the Ministry of Education helped develop Sexual Orientation and Gender Identity 123 (SOGI 123), an initiative that aimed to guide educators on instruction about sexual orientation and gender identity and to foster inclusion for students of all sexual orientations and gender identities.

Mr. Neufeld, an elected Chilliwack school board trustee, began publicly criticizing SOGI 123 on his Facebook page. In a Facebook post, Mr. Neufeld called SOGI 123 a "weapon of propaganda" that teaches the "biologically absurd theory" that "gender is not biologically determined but is a social construct" among other similar comments.

This Facebook post garnered significant media attention and criticism, one of the most notable critics being Mr. Hansman, the President of the British Columbia Teachers' Federation. In several media interviews, Mr. Hansman stated Mr. Neufeld's views are "intolerant" and "bigoted" and opined that Mr. Neufeld should resign because he violated his obligations as a school board trustee to ensure that students have a safe and inclusive environment for learning.

A month after his initial comments, Mr. Neufeld delivered a speech at a rally where he said that SOGI 123 coddled and...