In Canada, our law protects an individual’s reputation and good name. If you slander someone, they may sue you. While most of us can go about our day without worrying about defamation or libel lawsuits, they do feature in our collective consciousness more than you might think. Defamation cases sometimes dominate the international news cycle. Last year, you couldn’t avoid news of Amber Heard’s defamation suit against her ex-husband, Johnny Depp. The Duke and Duchess of Sussex also live a life laden with libel litigation.

These types of cases happen in Canada too – they just create smaller headlines. For example, a judge in Alberta ruled last month that five environmental groups were allowed to sue former Premier Jason Kenney because he claimed on social media that they were part of a “foreign-funded misinformation campaign”.

Also last month, the Supreme Court of Canada released its decision in a massively important defamation case called Hansman v Neufeld. Barry Neufeld was a public school board trustee in Chilliwack, BC who made Facebook posts criticizing the province’s SOGI123 program that supposedly equips educators to instruct students about gender identity and sexual orientation. As you might have guessed, SOGI123 does a lot more than just equip educators. Here’s how ARPAdescribed the program in 2018 soon after BC introduced it: “[i]t teaches a humanist understanding of sexuality as a subjective identity, divorced from biology, determined individually, and to be celebrated unconditionally.” Neufeld put things a bit more bluntly, calling SOGI123, a “weapon of propaganda” that teaches a “biologically absurd theory.”

Almost immediately after he made the posts in 2017, Mr. Neufeld made local news. Neufeld was heavily criticized both offline and online. One of his loudest detractors was Glen Hansman who, at the time, was president of the British Columbia Teachers’ Federation (BCTF). Hansman called Neufeld’s views bigoted, transphobic, and hateful. When approached for comment by reporters, he said that Neufeld undermined “safety and inclusivity” for “transgender and other 2SLGBTQ+ students” and that Neufeld had “tiptoed into hate speech.”

In response, Neufeld sued Hansman for defamation some eight days before the 2018 school board elections. Neufeld went on to win the school board seat that he held since 1993 with the second-highest vote total in the election. When Neufeld filed his lawsuit, Hansman used BC’s anti-SLAPP law to have the case thrown out. SLAPP stands for “strategic lawsuit against public participation,” i.e., suing someone to stop them from talking about something important. Anti-SLAPP laws help courts to filter out such lawsuits. Ontario, B.C., and Quebec have anti-SLAPP laws.

Hansman succeeded in the lower court in having the case thrown out. Neufeld succeeded in the Court of Appeal in having his defamation suit reinstated. The majority Supreme Court of Canada (SCC), however, upheld the lower court decision and dismissed Neufeld’s case. Of course, a good argument could be made that Neufeld, as an elected school board member and public figure, has no business suing his critics. However, the Supreme Court’s conclusion is less troubling than the reasons it used to get to that conclusion. This article focuses on three unsettling themes that emerge from the decision.

The Supreme Court endorses Gender Theory

It is always hard for something to be declared a fact in a courtroom. However, once it happens, it is very difficult to disprove that fact in later court cases because it has become an established precedent. Justice Karakatsanis, writing for the majority, established the following as social facts:

• There is such a thing as “sex assigned at birth”, which is different from one’s “gender identity;”
• Being transgender is often wrongly conflated with mental illness; and
• The Canadian public thinks transgender people are diseased.

The truth of these “facts” is still hotly debated worldwide. But the Supreme Court has told us all where it stands. Now every court and tribunal in Canada can quote the Supreme Court in other cases where they want to assert the truth of these so-called facts.

The Supreme Court endorses Critical Theory

You’ve probably seen news coverage of pro-LGBT marches or demonstrations. You may have seen signs with slogans such as “Our humanity is not up for debate.” At first blush, it seems nonsensical—is anyone saying that gay people or transgender people are a non-human species? Obviously not. But that is not what the activists are really saying. What they really mean is, “I have a human right to gratify my sexual desires. Anything short of full support for my sexual conduct excludes me from a human right.”

Since when did being human mean you can do whatever you want sexually? This use of language is anchored in a philosophical movement known as Critical Theory. Critical Theory is a system of philosophy championed by a group of intellectuals who studied the cultural effects of Marxism in the 1930s. Its main goal is human emancipation. Critical Theory focuses on organizing social research to liberate the downtrodden.

In the 1960s, building on Critical Theory, Jürgen Habermas theorized that how language is used enslaves certain groups because it can “encode, produce, and reproduce relations of power and domination.” Habermas felt that a practical use of his analysis is to reform how language is used and, thus to reform society’s institutions. The activities that you see at a protest are an elementary form of Habermas’ ideas: reforming the way language is used in order to disrupt power.

In Hansman v Neufeld, the Supreme Court adopts this liquid approach to language. The Court says that transgendered people are “especially vulnerable to expression that reduces their worth and dignity in the eyes of society and questions their very identity.” Elsewhere, the Court expresses itself in similar, yet more forceful language, saying, “[T]ransgender people often find their very existence the subject of public debate and condemnation.” The Supreme Court is simply repackaging the slogan “our humanity is not up for debate.” To frame SOGI issues as a contest between people who “want to exist” and others who “don’t want them to exist” is to make the result of the debate a foregone conclusion. 

Supreme Court dirties the concept of equality

Finally, the majority of the Supreme Court says Hansman’s opinions are better than Neufeld’s, or at least do more to “promote equality.” This is a strange take from the Court. Anti-SLAPP laws have nothing to do with promoting equality and everything to do with protecting freedom of expression. So why does the majority bother to opine that Hansman’s speech promotes equality and is good for democracy? It is hard to avoid the conclusion that this is an offering at the altar of progressivism. The issue for the Court to decide was whether or not Neufeld’s defamation suit had sufficient merit to proceed to trial. The Supreme Court judges had no pressing need to comment on whether they thought Neufeld’s statements on sexual orientation and gender issues were good or bad. The lone dissenting judge put it aptly: “[T]he promotion of equality is in no way a factor tethered to the text of [BC’s anti-SLAPP law].” No judge should use means-end reasoning simply because they want a certain outcome. Hansman v Neufeld is not just a bad case because the judges kowtow to modern groupthink. It’s a bad decision because the judges fail to do basic legal analysis. This is what happens when you are so focused on being on the right side of history – you lose sight of how to do your job. We must demand much more of the highest Court in our land.