• Hate & Racism

Updated: August 24, 2023

An important question this case presents is whether the BC Human Rights Tribunal (BCHRT) has jurisdiction to hear a complaint about alleged hate speech published online or if the BCHRT cannot hear the complaint because internet content is within exclusive federal jurisdiction over internet content. It is about where alleged online hate crime victims can turn to for a hearing of their human rights complaint.

Another important question that may arise in this case is how to apply the legal test for hate speech when the speech targets people who are transgender or non-binary.

The Commissioner was granted leave to make arguments on both these issues.  

The case stems in part from a series of Facebook posts made by then-Chilliwack School Board Trustee Barry Neufeld, who said that allowing children to “choose to change gender is nothing short of child abuse.”1

The BC Teacher’s Federation (BCTF) filed a complaint with the BCHRT alleging, among other things, that Mr. Neufeld engaged in speech that is likely to expose people to hatred or contempt on the basis of their gender identity or expression and sexual orientation.

Mr. Neufeld applied to have the case dismissed by the BCHRT without a full hearing but the BCHRT declined to dismiss the complaint at that stage. Mr. Neufeld filed for judicial review of BCHRT’s decision declining to dismiss the case. The Commissioner intervened in the judicial review.

The review was heard in B.C. Supreme Court on June 19–20, 2023. Shortly before the hearing began, Mr. Neufeld abandoned the jurisdictional issue described above. While the Commissioner’s written submission (linked under “Documents” below) still included her arguments on the jurisdictional issue due to the timing of the change in the case, her oral submission did not address these points since the Court was no longer considering them. The Commissioner looks forward to making these arguments in the future so this important point of law can be clarified. For this judicial review, however, the Commissioner’s submission focused exclusively on how hate speech-related law should consider the unique stereotypes and forms of hate directed at transgender and non-binary people and communities. Those arguments are summarized in paragraphs 72–76 and 78 of the written submissions.

On August 22, 2023, the B.C. Supreme Court released reasons dismissing Mr. Neufeld’s petition for judicial review (see the court documents tab below). The Court found that the petition was premature because it was brought before proceedings at the Tribunal fully concluded, which can only be done under exceptional circumstances. The Court acknowledged recent Supreme Court of Canada caselaw that suggests that transgender individuals may experience unique forms of hate speech and that, in all likelihood, this caselaw will be considered by the Tribunal at a full hearing into the present complaint. 

[1] Cathy Kearney. “Chilliwack school trustee: Allowing children to ‘change gender is nothing short of child abuse,’” CBC News, 23 October, 2017.

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About interventions

The Commissioner can apply to intervene in court and can intervene as a matter of right in B.C. Human Rights Tribunal cases with the potential to make a significant impact on human rights across the province. Interventions can impact how the law evolves, making them an important tool in systemic work to promote and protect human rights.

If the Commissioner’s request to intervene is approved by a court, BCOHRC provides submissions (also called legal arguments) to the judge in the case in question. These submissions are usually about how to interpret a narrow point of the law. Intervenors do not represent either side in a case; their submissions must be different from the arguments being made by the parties to the case, and submissions must not advocate for either side to win or lose.