Sexual identity, orientation school policy defamation case dismissed

Defence relied on past Fraser Valley case where Supreme Court of Canada expanded fair comment

A Chilliwack school trustee’s defamation case against a former B.C. Teachers’ Federation president over B.C.’s sexual orientation education policies has been dismissed in the interests of promoting public debate.

“The defence of fair comment is valid,” Justice Alan Ross said.

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The case brought by trustee Barry Neufeld against BCTF former president Glen Hansman is the first case heard under B.C.’s new Protection of Public Participation Act. It’s designed to foster public interest discussion without fear of so-called Strategic Lawsuits against Public Participation, or “SLAPP” suits.

“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,” Ross said in his Nov. 26 ruling.

The B.C. Supreme Court case involved statements Hansman made in response to Neufeld’s Facebook comments about provincial sexual orientation and gender identity policy.

“The materials were drafted with the stated goal of having age-appropriate tools for teaching about sexual orientation and gender identity [SOGI] available for teachers of children in Kindergarten through Grade 12,” Ross said.

On Oct. 17, 2017, Neufeld said on Facebook that SOGI was “a weapon of propaganda to infuse every subject matter from K-12 with the latest fad:  Gender theory. “

He said the program instructs children gender is not biologically determined, but, rather, a social construct.

“At the risk of being labeled a bigoted homophobe, I have to say that I support traditional family values and I agree with the College of paediatricians (sic) that allowing little children choose to change gender is nothing short of child abuse. But now the B.C. Ministry of Education had embraced the LGBTQ lobby and is forcing this biologically absurd theory on children in our schools. Children are being taught that heterosexual marriages is no longer the norm. Teachers must not refer to “boys and girls”; they are merely students. They cannot refer to mothers and fathers either.”

The SOGI debate continued into the 2018 election, where Neufeld was re-elected as a trustee.

The post received widespread media coverage, with Hansman, a gay man, offering comment as BCTF president.

Glen Hansman
Former BCTF president Glen Hansman - File photo, Dan Toulgoet

The ruling said Hansman said Neufeld should step down or be removed, that some educators promote hatred, that Neufeld’s comments were bigoted or transphobic and “tip-toed quite far into hate speech” and that Neufeld shouldn’t be “anywhere near students.”

Neufeld said Hansman suggested he was allowing his religious views to affect his role as an elected official in a secular school system, the ruling said.

On Oct. 25, 2017, Neufeld issued a press release saying, “I want to apologize to those who felt hurt by my opinion, including members of the Chilliwack Board of Education … I am critical of an educational resource, not individuals.”

A month later, he spoke at a rally organized by a group called Culture Guard, a Fraser Valley Group operated by social conservative activist Kari Simpson opposed to any positive portrayal of a gay lifestyle. The group has organized other anti-SOGI events.

B.C. Supreme Court in 2004 dismissed a defamation act by Simpson against radio host Rafe Mair. The Supreme Court of Canada upheld a finding for Mair and expanded the definition of fair comment.

That court said Mair compared the implications of Simpson’s speech to that of Hitler against the Jews, or Governor George Wallace against the integration of schools.

Ross said the cases were similar.

“The nature of the public debate, the allegations of defamatory meaning, the employment of the defence of fair comment and the discussion of malice are very similar to the allegations in this case,” Ross said.

And, he said, Neufeld presented no evidence arguing against a fair-comment defence.

Controversy around Neufeld continued. In January 2018, the Chilliwack School Board and Ministry of Education requested he resign. He did not.

The teachers’ federation soon filed a human rights complaint against Neufeld.

Neufeld began to claim there was a smear campaign against him, citing involvement by transgender activist Morgane Oger and current Minister of Education Rob Fleming.

Hansman admitted some of his statements could be defamatory. But, he argued, Neufeld had been re-elected and that the trustee had failed to provide evidence of damage.

Neufeld claimed hearing the case under the new act would have the effect of sweeping an issue of public debate under the rug.

Ross disagreed.

“The purpose of his action should be the restoration of his reputation and the quest for damages from the defendant,” Ross said. “He should not be seeking further publicity or public debate by way of this action when he alleges that his reputation has been damaged by the defendant’s statements. “

Ross also noted defamation action shifts the onus in a case. The plaintiff does not have to prove harm alleged. Rather, the defendant has to prove the words were based on truth.

And, Hansman argued the points Canada’s top court found in the Mair-Simpson case: comments must be on a matter of public interest; be based on fact; must be recognisable as comment; must be an honest expression on proved facts and must be absent of malice.

Indeed, Ross said, “The plaintiff himself noted that, by posting his opinion, he risked being ‘labeled a bigoted homophobe.’ Hence, it is difficult, if not impossible, for him to argue that there was no factual basis for Mr. Hansman’s comments. The same reasoning also applies to the requirement that any person could honestly express the same opinion.”

jhainsworth@glaciermedia.ca

@jhainswo

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