(para. 65).The court hypothesized that people may “withdraw or not engage in public
with no opportunity to protect their reputation” (para. 65). Given the “serious
reputational harm” accusations of hate speech might inflict, the court determined that
the chambers judge erred in overlooking the “collateral effect that preventing
Mr. Neufeld from defending himself from such serious accusations could have on other
individuals’ willingness to express themselves on issues of public interest in [the]
future” (para. 68).
[74]
This reasoning runs counter to precedent, and is not “tethered to the text of
[the relevant provision]” (Pointes, at para. 80). To begin, s. 4(2)(b) defines “the public
interest in continuing the proceeding” with reference to “the harm likely to have been
or to be suffered by the respondent as a result of the applicant’s expression”. The harm
relevant to the public interest weighing exercise is harm to Mr. Neufeld caused by
Mr. Hansman’s statements, not by his inability to sue. The loss of a right to sue is a
possible outcome of the public interest weighing exercise, not an input.
[75]
The “chilling effect” identified by the Court of Appeal does not constitute
a “harm” suffered by Mr. Neufeld for the purpose of the weighing exercise. The concept
of a chilling effect has a clear meaning in Canadian freedom of expression law. A
chilling effect occurs where uncertainty surrounding the scope or application of a law
limiting or prohibiting expression creates a risk that people will not speak for fear of
violating the relevant law (see, e.g., Saskatchewan (Human Rights Commission) v.
2023 SCC 14 (CanLII)
debate for fear of being inveighed with negative labels and accusations of hate speech
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents