The Supreme Court of Canada upheld an appeal filed by a teacher who sought defamation after publicly criticizing an opponent of sex and gender education. He argued that the harm was not proven to be of sufficient magnitude to restrict freedom of speech.
In 2016, British Columbia education authorities launched an initiative to empower teachers to teach sexual identity and gender identity to their students. The proposal was not without controversy, as it was opposed by various stakeholders, including a member of the public school system, who publicly criticized the initiative.
The man’s opposition generated great strife and much enmity against him, which many called for his resignation. In this context, a teacher from the LGBTI community accused him of being bigoted and transphobic, and of undermining the safety and inclusion of transgender students. After these words, the man gave the cause of the insult.
In his response, the teacher asked to reject the action under the Law for the Protection of Public Participation, considering the person “a strategic lawsuit against public participation” (SLAPPP, for its acronym in English), which seeks to “suppress silence and public debate.”
The court dismissed the protest as a matter of law, considering the differences of the parties, the more relevant to the defense of the public debate than the possible damage caused to the plaintiff. The decision is recalled in the second degree, when it is evaluated differently. The teacher appealed to the Supreme Court.
In its analysis of the merits, the Court observed that “(…) a factor to be considered in favor of the State continuing the proceeding is the probable injury to the plaintiff as a result of the defendant’s opinion. Although general damages are presumed in the law of defamation, the exercise of equivalence prescribed in the rule requires that the harm to the plaintiff be severe enough to to defend the preponderance of the public interest in the speech.Although the presumption of damages can establish the existence of damage, it cannot establish that the damage is serious.
He adds that “(…) in order to be successful in the comparative exercise, the plaintiff must provide evidence that allows the judge to infer the probability of damage of a magnitude sufficient to overcome the public interest in protecting the expression of the defendant. In addition, the legislation requires certain evidence that allows the judge to infer the cause of action between the expression of the defendant and the damage In the present case, the paucity of evidence regarding the alleged injury inflicted.
It shows that the teacher’s expressions are counter-motivated by the desire to promote tolerance and respect for the social groups of the society. He spoke out against the term, which he felt was false and harmful to transgender people, potentially harmful to this community, which was undoubtedly a marginalized group in Canadian society. He played a truthful role and, speaking, he tried to contradict the words that he and others perceived as undermining the equal dignity and dignity of the fringe groups of society.
In summary, the Court concludes that “(…) the plaintiff has not shown the reasons for believing that the teacher’s statements lacked a scientific basis. To constitute a fair comment, the scientific basis for declaring the contested statement must be explicitly or implicitly in the post itself or the facts must be so obvious that the audience already let them understand. Nevertheless, there is no necessity for the matter to support the commentary in the sense of confirming its truthfulness.”
Based on the foregoing, the Court decided to accept the appeal and recall the contested decision.