Senator Bob Runciman ( Chair)
in the chair.
The Chair: Good afternoon and welcome
colleagues, invited guests and members of the general public who are following
todayís proceedings of the Standing Senate Committee on Legal and Constitutional
we continue our consideration of
, An Act to amend the Canadian Human
Rights Act and the Criminal Code, with this our last day of hearings on the
bill. We will move to clause-by-clause consideration tomorrow. Bill C-16
today for the first hour are
, Professor, Psychology
Department, University of Toronto; and from the D. Jared Brown Professional
Corporation, D. Jared Brown, Lead Counsel. Jordan B. Peterson
you, gentlemen, for being here. You both have up to five minutes for opening
statements. I believe you will lead off, professor. The floor is yours.
Jordan B. Peterson, Professor, Psychology Department, University
of Toronto, as an individual: I think the first thing
Iíd like to bring up is that itís not obvious, when considering a matter of this
sort, what level of analysis is appropriate. If youíre reading any given
document, you can look at the words or phrases or sentences or the complete
document, or you can look at the broader context within which it is likely to be
first encountered Bill C-16 and its surrounding policies, it seemed to me that
the appropriate level of analysis was to look at the context of interpretation
surrounding the bill, which is what I did when I scoured the
web pages and examined its policies. I did that because at
that point, the Department of Justice had clearly indicated on their website, in
a link that was later taken down, that Bill C-16 would be interpreted within the
policy precedents already established by the Ontario Human Rights Commission. So
when I looked on the website, I thought there were broader issues at stake here,
and I tried to outline some of those broader issues. Ontario Human
or may not know that I made some videos criticizing Bill C-16 and a number of
the policies surrounding it. I think the most egregious elements of the policies
are that it requires compelled speech. The Ontario Human Rights Commission
explicitly states that refusing to refer to a person by their self-identified
name and proper personal pronoun, which are the pronouns I was objecting to, can
be interpreted as harassment. Thatís explicitly defined in the relevant
policies. I think thatís appalling, first of all, because there hasnít been a
piece of legislation that requires Canadians to utter a particular form of
address that has particular ideological implications before, and I think itís a
line we shouldnít cross.
definition of identity thatís enshrined in the surrounding policies is
ill-defined, poorly thought through and also incorrect. Itís incorrect in that
identity is not and will never be something that people define subjectively
because your identity is something you actually have to act out in the world as
a set of procedural tools, which most people learn ó and Iím being technical
about this ó between the ages of two and four. Itís a fundamental human reality.
Itís well recognized by the relevant, say, developmental psychological
authorities. The idea that identity is something you define purely subjectively
is an idea without status as far as Iím concerned.
think itís unbelievably dangerous for us to move towards representing a social
constructionist view of identity in our legal system. The social constructionist
view insists that human identity is nothing but a consequence of socialization,
and thereís an inordinate amount of scientific evidence suggesting that that
happens to not be the case. So the reason that this is being instantiated into
law is because the people who are promoting that sort of perspective, or at
least in part because the people promoting that sort of perspective, know
perfectly well theyíve lost the battle completely on scientific grounds.
implicit in the policies of the Ontario Human Rights Commission that sexual
identity, biological sex, gender identity, gender expression, sexual proclivity
all vary independently, and thatís simply not the case. Itís not the case
scientifically. Itís not the case factually, and itís certainly not something
that should be increasingly taught to people in high schools, elementary schools
and junior high schools, which it is. It is being taught. I included this
cartoon character that I find particularly reprehensible, aimed obviously as it
is at children somewhere around the age of seven, that contains within it the
implicit claims, as a consequence of its graphic mode of expression, that these
elements of identity are, first, canonical and, second, independent. Neither of
those happen to be the case.
that the inclusion of gender expression in the bill is something extraordinarily
peculiar, given that gender expression is not a group and that, according to the
Ontario Human Rights Commission, it deals with things as mundane as behaviour
and outward appearance, such as dress, hair, makeup, body language and voice,
which now, as far as I can tell, open people to charges of hate crime under Bill
C-16 if they dare to criticize the manner of someoneís dress, which seems to me
to be an entirely voluntary issue.
that the Ontario Human Rights Commissionís attitude towards vicarious liability
is designed specifically to be punitive in that it makes employers responsible
for harassment or discrimination, including the failure to use preferred
The Chair: Please come to a conclusion.
Mr. Peterson: They have vicarious
liability for that, whether or not they know itís happening and whether or not
the harassment was intended or unintended. So Iíll stop with that.
The Chair: Thank you. Mr. Brown.
, Lead Counsel, D. Jared Brown Professional
Corporation: D. Jared Brown Iím a litigator in Toronto. I act in all
manner of commercial and employment disputes. Iím not an academic. I live with
my clients in the land of legal reality and how the law actually works.
two years ago, I began to see claims of discrimination included in every
employment-related court claim. My phone now rings weekly with Human Rights
Tribunal matters. It has become a reality for employers across Canada.
August of last year, I became aware of Dr. Jordan Peterson. He was discussing
what he saw as a problematic law, poorly written. Thatís when I observed the
oddest thing happening; lawyers, academic lawyers, important people, began to
say that he had the legal stuff wrong. ďNothing unusual about this bill.Ē They
also said, ďYou donít get to go to jail if you breach a Human Rights Tribunal
order.Ē What was happening is they werenít defending the law but downplaying its
practising lawyer, any time a lawyer, and particularly an academic, says, ďLook
away; thereís nothing to see here,Ē it gets my antenna way up. So I did some
research, which can be found in the brief that I filed in advance of today. It
sets out the path to prison on this. I knew, as a commercial litigator, that
anyone can end up in jail if you breach a tribunal order. It is a simple, civil,
contempt-of-court process. People go to jail for this.
about the freedom of expression issue? Itís a foundational issue. We all know
that section 2(b) of the Charter sets out that everybody has the fundamental
freedoms of thought, belief, opinion and expression. We all know that the
government has successfully restricted freedom of expression over the years. But
what if, rather than restricting what you canít say, the government actually
mandated what you must say? In other words, instead of legislating that you
cannot defame someone, for instance, the government says, ďWhen you speak about
a particular subject, letís say gender, you must use this government-approved
set of words and theories.Ē
American jurisprudence clearly defines this as unconstitutional compelled
speech. In Canada, the Supreme Court has enunciated the principle that anything
that forces someone to express opinions that are not their own is a penalty that
is totalitarian and, as such, alien to the tradition of free nations like
Bill C-16 get us to compelled speech? The Minister of Justice has summarized
Bill C-16 as: The enactment amends the Canadian Human Rights Act to add gender
identity and expression to the list of prohibited grounds of discrimination. The
Department of Justice website used to say that we must look to the Ontario Human
Rights Commission policies for definitions on these terms.
Ontarioís policies on gender identity and gender expression are set out in my
brief. They state that gender-based harassment can involve refusing to refer to
a person by their self-identified name and proper personal pronoun. Refusing to
refer to a trans person by their chosen name and a personal pronoun that matches
their gender identity will likely be discrimination. The law is otherwise
unsettled as to whether someone can insist on any one gender-neutral pronoun in
harasser didnít know or didnít intend to harass, itís still harassment. Why is
this important? In Ontario, the Human Rights Commission is a policy-development
creature of the legislature. It creates the policies that interpret the code.
But what is most important is that the tribunal must follow these policies. It
is bound by them. So the commission creates the law on pronouns. In Ontario, the
policies on pronouns were introduced into the legal framework after the law had
left the legislature.
Federally, the same process will be followed, as the Department of Justice had
said so. A similar guideline will be developed. As with the Ontario policies,
federal guidelines must be followed by the federal tribunal. The guidelines will
mandate pronouns. This will happen after the bill leaves the Senate. Mandating
use of pronouns requires one to use words that are not their own that imply a
belief in or agreement with a certain theory on gender. If you try to disavow
that theory, you can be brought before the Human Rights Commission for
misgendering or potentially find yourself guilty of a hate crime. To sum up, on
the subject of gender, weíre going to have government-mandated speech.
opining on the constitutionality of the proposed bill, the Department of Justice
said on its website, ďLook, thereís a variation of this bill that already exists
in most of the provinces.Ē I donít believe thatís a robust argument in favour of
constitutionality. I would refer you to the comments of the now Chief Justice
McLachlin of the Supreme Court in the decision of Taylor. Itís in my brief.
chilling effect of leaving over-broad provisions on the books cannot be ignored.
While the chilling effect of human rights legislation is likely to be less
significant than that of a criminal prohibition, the vagueness of the law means
it may well deter more conduct than can legitimately be targeted. As a lawyer on
the ground, I worry about poorly drafted law and its impact on my clients. As a
Canadian, I worry about Parliament tacitly authorizing compelled speech.
brief I provided to the committee contains a comprehensive legal opinion I
published back in December on Bill C-16. Thereís a table that shows how the
federal human rights regime mirrors the Ontario system in terms of enforcement
of policies and guidelines.
The Chair: You'll have to wrap up, sir.
Mr. Brown: Finally, it includes the
case law that underpins the opinion.
The Chair: Thank you both. Weíll begin
questions, beginning with
. Deputy Chair Senator Baker
Senator Baker: Thank you to the
witnesses for their presentations.
witnesses know, nine provinces in Canada have the provision in their laws,
including Ontario. Also, the word ďexpression,Ē as I recall, appears in four or
five provinces. So what you are arguing is against what we already have in law.
your reference to the criminality, to the sections of the Criminal Code, at our
last meeting, Senator Joyal correctly pointed out that sections 318 and 319
start off with genocide, under the heading ďgenocide.Ē The next heading is
ďpublic incitement likely to lead to a breach of the peace.Ē You know what a
breach of the peace is, Mr. Brown ó willful promotion of hatred.
there are defences listed, as you know, in that Criminal Code provision. There
are several defences, such as if you honestly believe in what you said. The
defences are extensive in the Criminal Code. They work well for Canada.
you have to say about the facts of whatís presently in the Criminal Code and
your reflection that somehow ó the genocide heading, the heading on public
incitement, on wilful promotion of hatred ó these provisions should not be
included under those headings?
Mr. Brown: I think I have to be clear.
My presentation relates to the amendment to the human rights code.
Senator Baker: And not to the Criminal
Mr. Brown: That is, in fact, how one
like Dr. Peterson may in fact find themselves on the wrong side of jail. If
youíve reviewed the publication and the opinion, I say that simply by breaching
the proposed amendment to the Human Rights Act, and particularly with somebody
who is deliberately doing so, for instance, somebody saying, ďIím not going to
use those words,Ē that person, if they are dragged before the tribunal ó
Senator Baker: The Ontario tribunal.
Mr. Brown: Or the federal tribunal.
Iíve indicated to you already that the Department of Justice has said theyíre
going to pass the same guideline on pronouns. What Iím suggesting to you is that
if somebody says, ďIím not going to use those words,Ē and is brought before the
federal tribunal, and the tribunal then delivers an order for a payment of a
fine, and, alternatively, a non-monetary remedy, such as a cease and desist
order or an order to compel them to do something, and that person who is brought
before the tribunal says, ďIím not doing that,Ē they will find themselves in
contempt of court, and prison is the likely outcome of that process until they
purge the contempt. Thatís what Iím suggesting. Iím not advocating genocide, I
guess letís just say that. My presentation here is restricted to what I see as
the pronoun policy issue and the compelled speech issue.
Senator Baker: So it covers the
provincial legislation that you strongly disagree with, that weíve had in place
in the provinces for decades, in some cases?
Mr. Brown: It is the policies that were
enacted after it left the legislature and which will be enacted after this bill
leaves this committee.
Mr. Peterson: I would like to add to
that the fact that once I made the video stating that I wouldnít use the zie and
zir pronouns, for example, which I regard as part of an ideological linguistic
vanguard, the university lawyers, after carefully considering what I said, sent
me two letters to cease and desist in my public utterances because they believed
that not only was I violating the universityís standards of conduct but also
violating the relevant provisions of the Ontario Human Rights Commission.
Therefore, as far I could tell, that vindicated the statement I made when I made
the video to begin with, that the act of making the video itself was probably
already illegal. And they didnít do that lightly.
Senator Baker: Under provincial law.
Mr. Peterson: Yes.
: Senator Plett Thank you, gentlemen,
both of you, for being here.
two questions, one for Dr. Peterson right at the get-go and then one for the two
of you. Hopefully, the chair will indulge me.
deliberations of this bill, we keep hearing the term ďrespectĒ thrown around.
Respect is indeed critical in debates of legislation as sensitive as this, and
there are a lot of people here who need to be reminded that respect works both
ways, including people at this committee. Senator Baker has already referred to
comments as genocide. I donít think anybody here is promoting genocide.
Dr. Peterson, can you comment on the notion of respect where some of your
critics ask why you cannot just respect your students and use the gender-neutral
pronouns? How do you respond to that?
Mr. Peterson: First, I would have to be
convinced that doing so would do more good than harm, and I donít believe that.
I think Iím actually in a reasonable position to justify my claim. I think the
danger intrinsic to the law far outweighs whatever potential benefit it might
produce, especially given that thereís no hard evidence whatsoever for any
also like to point out that the people who are promoting this legislation claim
to be acting on behalf, say, of the transgendered community, but they were not
elected nor appointed to act as such representatives and are doing it on their
own say-so. Iíve received many letters, at least 30 now, from transgendered
individuals indicating they are not in accordance with the claims of these
so-called representatives to be representing or with the intent of the
legislation, which has actually made them more visible rather than less visible,
and the less visible is what they had preferred.
regard to respect, you donít meet people, generally speaking, in a mutual
display of respect. You generally meet people in a mutual display of alert
neutrality, which is the appropriate way to begin an interaction with someone,
because respect is something you earn as a consequence of reciprocal
interactions that are dependent on something like reputation, which is also a
consequence of repeated interactions.
the notion that addressing someone by their self-defined self-identity is
necessarily an indication of basic human respect for them is an entirely
spurious argument, especially given thereís no evidence that moving the language
in a compelled manner in this direction will have any beneficial effect. Weíre
supposed to assume that just because, hypothetically, the intent is positive,
that the outcome will be positive, and any social scientist worth his or her
salt knows perfectly well that thatís rarely the case.
Senator Plett: Dr. Brown, youíve talked
about non-monetary orders that could include sanctions, like orders to undertake
sensitivity and anti-bias training. I would like one or both of you to comment
on whether you could explain why an individual may have a strong objection to
undertaking such training. Mr. Brown, could you let the committee know how
serious the sanction could be, if you refuse to undertake such an order,
specifically at the federal level? Why would people have an objection to taking
Mr. Brown: I will let Dr. Peterson
answer why he or someone like him might have an objection to undertaking that
kind of training, and then Iíll deal, obviously, once again with the severity of
that decision if it gets before the tribunal.
Mr. Peterson: I have a profound
objection to undergoing such training. In fact, I would flatly refuse under all
conditions to undergo it, and there are multiple reasons for that. The first
reason is that the science surrounding the so-called charge of implicit bias
thatís associated with the perception is by no means settled, to such a degree
that one of the three people who designed the most commonly used measure, which
is the implicit association test, has detached himself from the other two
researchers on the grounds that the use of the test has far transcended its
scientific reliability and validity. Itís nowhere near valid or reliable enough
to be used in the manner it is. Even the more pro-IAT researchers who developed
the test have admitted to that publicly, even though they havenít stressed it
nearly to the degree they should.
all, the science is not settled and is being used absolutely inappropriately,
and I can say that as a clinician and as a psychometrician. I know the criteria
for using a test for essentially diagnostic purposes, and the IAT doesnít come
close to whatís necessary.
issue is: Whereís the evidence that anti unconscious bias training works?
Thereís no evidence, and what little evidence there is suggests it actually has
the opposite effect because people donít like being brought in front of a
re-education committee and having their fundamental perceptions ó not even their
thoughts but perceptions themselves ó altered by collective fiat. It's an
The Chair: We have a very engaged
committee. Concise questions and concise responses would be helpful.
: Senator Pratte Thank you for being
here. I want to quote briefly from a document from the Ontario Human Rights
Commission. It says:
. . .
Some people may not know how to determine what pronoun to use. Others may feel
uncomfortable using gender-neutral pronouns. Generally, when in doubt, ask a
person how they wish to be addressed. Use ďtheyĒ if you donít know which pronoun
is preferred. Simply referring to the person by their chosen name is always a
can use a pronoun, or you can use their chosen name.
someone chooses to change his name from Paul to Peter, surely you would use
Peter because itís a matter of simple politeness and respect. If the same person
chooses to change their name from Paul to Paula, why wouldnít you use the name
Paula simply as a matter of respect? Whatís the difference here?
Mr. Brown: Iíll speak about the legal
issue there, which is youíre now introducing the full force of the law behind
the requirement to use ó and Iím dealing, obviously, with the pronoun issue. In
terms of not addressing somebody by their legally registered name, for instance,
I donít think thatís where weíre running into trouble here. I think the issue
becomes that if you donít address somebody by the pronoun that they
self-identify by, as Iíve read out to you, the fact that the full force of the
law will be behind that person, thatís what Iím finding is troubling in the
Senator Pratte: But the Ontario Human
Rights Commission gives people the alternative not to use pronouns and use the
personís chosen name, which is always a respectful approach, so pronouns are not
necessary or not mandatory. You can always choose the personís chosen name as a
respectful approach. Therefore, I argue ó
Mr. Brown: Iím not aware that there is
a piece of legislation that compels you to use my proper name. In other words,
once again, itís the fact that the full force of the law will be behind it when
weíre dealing with the group being identified in the legislation. So for
instance, if I were not to call you by your chosen name, Iím not sure you would
enjoy the full force of the law behind you as a result of that. Thatís what Iím
suggesting to you is the difference here.
Senator Pratte: Iím arguing, sir, that
you always base whatever you say on what the Ontario Human Rights Commission is
saying. Iím quoting from the Ontario Human Rights Commission document. They are
saying theyíre not mandating pronouns. You can always use the personís chosen
name as a respectful approach.
Mr. Brown: I respectfully disagree.
Mr. Peterson: I would say thatís
actually an indication of just how poorly the policy documents are written
because I can quote this one, which is also from the Ontario Human Rights
Commission website that says ďrefusing to refer to a person by their
self-identified name and proper personal pronounĒ constitutes gender-based
the policies were written in a coherent manner and there werenít internal
contradictions, then your statement would be a reasonable objection. But since
itís not written that way ó and I do believe, firmly, thatís a testament to the
degree to which it is a poorly written set of policies ó itís full of internal
contradictions that will be worked out very painfully within the confines of
peopleís private lives.
: Senator Batters Thanks very much both
of you for being here.
all, Dr. Peterson, I want to go back to the issue of personal pronouns. Could
you please tell our committee more about this issue? Itís something I was not at
all familiar with prior to this bill being introduced, and in particular about
the gender-neutral pronouns and your experience in pushing back against being
forced to use those gender-neutral pronouns.
Mr. Peterson: I donít think the people
who initiated this legislation ever expected that there would be an absolute
explosion of identities, first of all, and also of so-called personal pronouns,
as there has been. I think Facebook now recognizes something like 71 separate
gender identity categories, each of which in principle is associated with its
own set of pronouns. So linguistically, it has become a parody. It has become
linguistically unmanageable. Words canít be introduced into the language by
fiat. I canít think of a time when that actually worked. We are not sure how
words enter the common parlance, but itís certainly not that way.So the
legislation devolves into a kind of absurdity, as far as I can tell.
the people that I discussed this with claimed that the way that you kept track
of someoneís personal pronouns was to use your cellphone as an adjunct to your
communication. You wouldnít say anything like that if you knew anything about
common human nature, letís say, and the manner in which people communicate with
Senator Batters: The types of pronouns
youíre talking about, so everyone is clear, because I donít think these are
common parlance, are ze and zir, and what other gender-neutral pronouns are we
Mr. Peterson: I have a bad memory for
that sort of thing. If you are interested, you can rapidly find lists of them on
the Web. They have been produced by people whose essential desire is to gain
linguistic control. Thatís as simply as I can put it; itís to gain linguistic
control. They are not used popularly. That seems to me to be a real problem as a
consequence, that you make the failure to make their use something that could
carry a criminal penalty. So I just donít understand that. I donít understand
how the government can justify imposing a criminal penalty on the use of words
that no one either knows or uses. It just seems preposterous to me, but there it
Senator Batters: Could you please tell
us more about your personal experience in pushing back against this? Many are
familiar with your story, but not everyone. I just wanted to give you a little
more opportunity to talk about that.
Mr. Peterson: I made three videos.
Weíll talk about one of them. I made one criticizing Bill C-16 for the reasons I
already described, because I went and read the policies. They made my hair stand
on end, the surrounding policies. So I made a video stating essentially that and
detailed out my reasons.
been following the battle of ideologies on campus for a long period of time. I
suppose I have some expertise in that. There is an ideological war that is
ripping the campuses apart. Itís essentially between an ideological variant that
is rooted in what has come to be known as post-modernism, with a neo-Marxist
base, and modernism, I would say. Thatís accounting for all the turmoil on the
campuses. I see this as an extension of this campus turmoil into the broader
world. I really believe that is the proper level of analysis. I truly believe
that I believe that this is a vanguard issue in a kind of ideological war and
that Iím not going to participate on the side of the people whose ideological
stance I find unforgivable and reprehensible, especially the Marxist element of
it. I announced that I wasnít going to use these words because I don't believe
they are instantiated to protect anyoneís rights. I believe the ideologues who
are pushing this movement are using unsuspecting and sometimes complicit members
of the so-called transgender community to push their ideological vanguard
forward. I firmly believe that so Iím not participating in that.
that itís potentially illegal for me not to participate in that is something
that I think is absolutely dreadful. It puts a shudder in my heart as a Canadian
that we could even possibly be in a situation like that. You know, if the
identity claims that are instantiated in the policy surrounding this legislation
are applied, itís going to be hell for the psychiatrists ó excuse my language ó
and it will be very difficult for the biologists and the psychiatrists next. I
think weíll see that happening very soon.
: Senator Gold Thank you for being here.
Iíve never been a practising lawyer; I was a constitutional law professor. And
Iím a free speech guy, so I appreciate the importance of the issues that are
being raised. I think respectfully, they were answered. The free speech issues
were answered compellingly by my former colleague Brenda Cossman in testimony
before this committee. I wanted to make three points.
Peterson, there are questions buried in these points. I think I heard you say
that you thought that the harm to this legislation outweighs the good. But the
trans community suffers harm regularly when they are discriminated against.
Whatever else one might say and worry about human rights tribunals and the like,
this bill addresses and would take a major step forward towards reducing harm
that a particularly vulnerable community experiences.
letís see if we can zero in on where we might agree, that there is nothing in
the law that criminalizes or creates an offence to criticize the notion that
identity is a social construct, which you do, to criticize the way in which
words come into the language. Although, modern Hebrew is an example of words
coming in by fiat, and the LíAcadťmie franÁaise does it as well. Shakespeare
gave us so much of our language. But there is nothing in this bill that stands
in the way of your taking a principle position against all aspects of this,
including your criticisms of the activist.
issue is the pronoun. Unless I am reading it wrong, as Senator Pratte pointed
out, the Ontario Human Rights Commission policy does not say that refusing to
use a personís self-identified name or personal pronoun does constitute
gender-based harassment. I may be wrong, but I believe it said that it could. I
think thatís a real difference. If I turn to you and say, look, please call me
ďtheyĒ because thatís how I see myself now, because itís hurtful for you to call
me ďsirĒ or ďmissĒ or whatever it would be, but you refuse. I say, ďOkay, if
youíre uncomfortable with that because youíre not comfortable with that, call me
Marc.Ē And you refuse. Were you to continue to call me by the name that Iím
telling you is hurtful to me, is that not something that the law can properly
address? You are knowingly hurting me.
respect, our courts are ultimately capable of striking a proper balance between
people who slip up for whatever reason but just canít get the words out of their
mouth and those who persist in intentionally causing harm. Would you agree with
my characterization of free speech as it applies to these issues?
Mr. Brown: Let me jump in just on a
legal point. After Dr. Peterson posted his videos and after he rose to public
consciousness, the Ontario Human Rights Commission deemed it fit to release a
new policy document called ďquestions and answers about gender identity and
pronouns.Ē In so doing, they said that refusing to refer to a trans person by
their chosen name and a personal pronoun that matches their gender identity or
purposely misgendering will likely be discrimination. I think itís a little more
certain than what you may have indicated in your comment.
again, that policy was put out after Dr. Peterson began to speak on the issue. I
think thatís very telling that it was a response, if you will, to this issue
that Dr. Peterson raised. I will obviously allow Dr. Peterson to go ahead with
the other element of your question.
Mr. Peterson: I would say that the very
idea that calling someone a term that they didnít choose causes them such
irreparable harm that legal remedies should be sought, rather than regarding it
as a form of impoliteness, that legal remedies should be sought, including
potential violation of the hate speech codes, is an indication of just how
deeply the culture of victimization has sunk into our society.
: Senator Frum Same topic, Mr. Brown.
When the Minister of Justice was before this committee, she said the following:
nothing within Bill C-16 that would compel somebody to have to call somebody by
the pronoun ďheĒ or ďsheĒ or otherwise.
comment on her position?
Mr. Brown: I would agree with that;
there is nothing in the bill. But the problem is that on the Government of
Canada Department of Justice website, in their questions and answers section,
which was pulled down in December ó itís at Tab 5 of my brief ó it makes it very
clear that the definitions of the terms ďgender identityĒ and ďgender
expressionĒ have already been given by the Ontario Human Rights Commission. The
commission has provided helpful discussion and examples that can offer good
practical guidance. The Canadian Human Rights Commission will provide similar
guidance on the meaning of these terms in the Canadian Human Rights Act.
take that to be legislative intent. Iíll agree with you that the bill itself on
its face does not seem to imply any manner of compelled speech, but when weíre
tying it so deliberately with this expectation, thatís where I think you get
into some trouble.
Senator Frum: You spoke about the
chilling effects of overly broad legislation. I am wondering if you consider the
terms ďgender identityĒ and ďgender expressionĒ to be equally broad, or do you
consider one broader than the other?
Mr. Brown: I think they are overly
broad definitions, and I think the only thing I can offer as a lawyer and a
litigator is that the courts donít like over-broad terms. I would refer you to
the decision of Lund v. Boisson of the Alberta Court of Appeal. In that
case, the Court of Appeal said:
objective of statutory interpretation is to discern the legislative intent from
the language of the legislation, if possible, and to give effect to such intent.
This objective becomes difficult to attain when there is conflict, imprecision,
or a lack of clarity in the legislation. Of particular concern in the area of
human rights law is that a lack of clarity will cast a chill on the exercise of
the fundamental freedoms, such as freedom of expression and religion.
I personally believe that the terms are not properly or clearly defined and
somewhat ambiguous, the courts donít like that type of legislation either.
Mr. Peterson: To add two things, with
regard to the chill, itís already the case ó and I have seen this among my own
students when they are teaching personality, which is what I teach, which also
involves assessment of gender differences between men and women ó that the
proclivity now is for advanced Ph.D. students to avoid any such discussions in
their classrooms because the potential cost of transgressing against an unknown
norm, letís say, is so high that itís just easier to teach other things. So I
have seen that clearly and with multiple people.
also say that itís no trivial matter that the Department of Justiceís link to
the Ontario Human Rights Commission and their statements about how this
legislation was going to be interpreted mysteriously disappeared in the middle
of December. Of all the things that have happened in relationship to this and
that Iíve been studying, I think that was the most chilling. It was the smoking
pistol, because the issue is what is the right level of analysis? Are you just
supposed to look at the legislation? Well, since the justice department said,
ďNo, youíre supposed to look at the surrounding policies,Ē thatís what I did,
and thatís what I based my case on. Then all of a sudden the link tying those
two things together just vanished and people had to go into the Internet
archives to fish it back out so that it could remain part of the public record.
I think thatís absolutely scandalous.
Senator Plett: Hear, hear.
: Senator Omidvar Thank you both for
being here. I was trying to take notes, but I think I got this right, Mr.
Peterson, that you talked about this bill as being an expression of the vanguard
of ideology. Am right in my understanding?
Mr. Peterson: I was thinking more about
the policies that surrounded it, but yes.
Senator Omidvar: So Iím trying to
square what you as a party of one are saying with published documents from the
Canadian Psychological Association, the American Psychological Association, the
Canadian Medical Association, the American Psychiatric Association, the Canadian
Psychiatric Association and the United Nations human rights experts. These are
not parties of one; they are associated. They are all, I imagine, lots of
psychologists, being members of the Canadian Psychological Association and the
Canadian Psychiatric Association.
we to square what youíre saying, which is your opinion, something you are
absolutely entitled to, with what everyone is saying, plus the feelings and
testimonies of the people who have suffered for over 30 years, who have been
taking issues to court, these people whom we have listened to? How are we to
Mr. Peterson: With regard to your
second point, if the people you are listening to arenít randomly selected from
the population, then their opinions are worthless from the perspective of
testimony because you donít know if youíre dealing with a biased sample. Thatís
a big problem with the public consultation process that underlies this bill. You
may not appreciate that, if you would like, but itís standard practice in any
polling institution or any body that is attempting to extract a genuine opinion
out of a so-called community of people. If that isnít followed, then you canít
tell if the information that youíre receiving is biased.
regard to your first point, what exactly are all those people who arenít
thinking the same way as me saying? You said that there are a bunch of them and
a bunch of groups, but you never said what they are saying precisely.
Senator Omidvar: I think our chair
would rule me out of order if I proceed ó
The Chair: No, youíre fine.
Senator Omidvar: ó to read out what
they are all saying. In general, they oppose discrimination and harassment
because of gender identity and gender expression. Then there are three pages
that I can share with you.
Mr. Peterson: I oppose discrimination
against gender identity and gender expression. Thatís not the point. The point
is the specifics of the legislation that surrounds it and the insistence that
people will have to use compelled speech. Thatís what Iím objecting to.
dealt with all sorts of people in my life, people who donít fit in in all sorts
of different ways. Iím not a discriminatory person. There are 500 hours of me
teaching my classrooms on tape on YouTube, and nobody has found a smoking
pistol. Iím not a discriminatory individual, but I think this legislation is
reprehensible, and I do not believe for a moment that it will do what it intends
donít think that my opinion deviates substantially from the bodies that you are
describing because you havenít provided any evidence that they say anything
other than discrimination is a bad thing. I think that unreasonable
discrimination is a bad thing. Itís unreasonable when people are judged for any
reason other than the specific competence they bring to a given position. Itís
not in anyoneís best interest that that occurs.
donít think that youíve demonstrated in the least that the opinions Iím putting
forward exist in opposition to the standard practices of my particular
Senator Omidvar: Could you repeat one
more time your response to Senators Gold and Pratte, that the Ontario Human
Rights Commission has provided what I would say reasonable alternatives to your
objection of using pronouns?
Mr. Peterson: Well, I think it has been
made clear in the presentation so far that it depends on which part of the
Ontario Human Rights Commissionís policies you read. Thatís a big problem. One
of the reasons I criticized this to begin with was because when I went through
the policies, I could see that they were absolutely incoherent.
give you another example. Thereís an insistence in the Ontario Human Rights
Commission that sexual preference is an immutable phenomenon, which indicates,
at least in principle, that itís biologically grounded. By the same token, in
exactly the same policies, they presume that sexual identity, gender identity
and gender expression are entirely independent. Itís like, ďSorry, guys, you
canít have both of those, because one is A and one is not A, and you canít put
are endless numbers of places in the policy surrounding Bill C-16 that are
characterized by that kind of logical incoherency. What will it do to people who
are transgendered who make the claim they were born that way at birth, which is
a strong, biological claim? It indicates thereís a direct causal connection
between some biological phenomenon and the expression of a particular identity.
Itís actually the strongest defence that people who have non-standard sexual or
gender identities have to defend their claims.
: Senator Boisvenu Thank you for being
with us today. My question is for Professor Peterson. I am still finding my way
through this bill and I am a bit confused by the positive and negative arguments
raised by everyone. Some say that not having this bill could lead to suicide or
depression among people who are transgendered. I am stunned by this extreme
Professor Peterson, you work in the field of human behaviour. To your knowledge,
are there studies or statistics regarding the life-saving potential of this
bill? Is it as much of a life saver as is claimed?
Mr. Peterson: In principle, we would
have that information if the policies that have already been introduced by the
provincial governments were assessed properly. But as far as I know, thereís
been no studies indicating that the introduction of this legislation
specifically has done anything to modify the unfortunate rates of suicide,
depression and anxiety that are characteristic ó well, you could say often of
marginalized groups, but thatís a bit of an overstatement.
was part of my original claim is that thereís no evidence that this sort of
legal redress, letís say, will produce any of the positive consequences
intended. I believe by making the issue painfully visible, thatís one way of
thinking about it, it has actually had the opposite effect.
very common, and this is something thatís well known in the relevant social
sciences, that just because you intend something to happen when you make a
large-scale transformation doesnít indicate in any manner that that will be the
outcome. It would be lovely if things were that simple. The best social
scientists always insist you build an outcome analysis into any broad-scale ó
what would you call it? ó social intervention, because thereís a high chance it
presupposition, and itís based, at least in part, on the notion that the
transgender community is a community and that there are voices that speak for
them homogeneously and that this is what they all want and that it will work as
intended. To me, looking at this from the social science perspective, thereís
nothing about it thatís credible. I also donít buy the intent.
: Senator Dupuis I have another question
for Professor Peterson, and then I may have a question for Mr. Brown.
Professor Peterson, I am trying to understand your position. Do you see a
difference between the opinions you are stating today on this issue ó during a
public consultation by the Senate ó and the actions that you take as a
university professor, that is, in a position of authority and power over a group
Mr. Peterson: First of all, I donít
necessarily consider myself in a position of authority and power; I consider
myself in a position of responsibility. Those arenít the same things. I donít
agree with the way the question is formulated. I donít understand what that has
to do with my stance, if I believe that the legislation is going to do more harm
than good, and if I also firmly believe, which I do, that it is more in the
issue of an ideological move than something thatís designed to address the
concerns that it purports to address.
also like to point out briefly that what should have happened when I made that
video ó and this is relevant to the question ó maybe people paid attention to it
for 10 minutes and maybe it got a newspaper article and then it disappeared. But
I put my finger on something; thatís what I thought. The fact this issue hasnít
gone away in nine months ó quite the contrary, it has exploded, not only in
Canada but in all parts of the world ó means to me that I have some evidence
that my choice of level of analysis was correct, and that thereís far more going
on here, so to speak, than the mere surface issue that weíre purporting to
exception to the notion that Iím somehow abandoning my personal responsibility
to my students, which is something I believe is in fact driving what Iím doing.
I believe my obligation to my students constantly is to tell them what I think
and to make that as informed and careful an opinion as I can possibly master,
and thatís what I do.
Senator Dupuis: I think you understand
that, if you appear before a Senate committee, regardless of what you think of
the merit of the questions, it is not up to you to ask the questions. Are we
agreed on that?
make a distinction between what you believe, your opinion of a bill, and the
fact that the university ó which pays you to teach, unless I am mistaken ó
considers you to be under its legal responsibility in your dealings with your
students, and thus in a position of authority over them, in other words, you can
give them an A for excellent or an E for poor?
The Chair: Senator, I encourage you to
focus on the components of the legislation. I think thatís relevant. Iím going
to move on.
: Senator MacDonald Dr. Peterson, the
thing that concerns me most in this legislation is compelled speech; thatís very
committee has heard from Meghan Murphy, who told us her opposition to this
concept of gender fluidity, because she believes gender is a social
construction. Dr. Gad Saad is also opposed to this legislation because of his
belief in evolutionary biology.
this shows is that with Bill C-16, we are prematurely shutting down a discussion
on gender and sex that appears to be far from settled. In my opinion, when we
look to the provincial definition as set out by the commissions, we are
enshrining the theory of a gender spectrum into the law. Could you comment on
Mr. Peterson: Thatís exactly what weíre
doing. That might even be more dangerous, in my opinion, than the compelled
speech issue, because the social constructionist view of gender isnít another
opinion; itís just wrong. Iíll take one minute to tell you why.
Senator MacDonald: Please.
Mr. Peterson: The proposition that is
instantiated in this visual, which is a good representation of the philosophy of
the policies, is that thereís no causal relationship between these four
dimensions of identity, and thatís palpably absurd. I mean, 99.7 per cent of
people who inhabit a body with a given biological sex identify with that
biological sex. Theyíre incredibly tightly linked.
canít attribute causality to a link thatís that tight, you have to dispense with
the notion of causality altogether. Of the people who identify as male or female
who are also biologically male or female, the vast majority of them have the
sexual preference that would go along with that and the gender identity and the
levels of analysis are unbelievably tightly linked, and the evidence that
biological factors play a role in determining gender identity is, in a word,
overwhelming. There isnít a serious scientist alive who would dispute that. You
get disputes about it, but they always stem, essentially, from the humanities.
As far as Iím concerned ó Iíve looked at it very carefully ó those arguments are
entirely ideologically driven. Itís a tenet of the ideology that identity is
socially constructed, and thatís partly why itís been instantiated into law,
because thereís no way they can win the argument but they can certainly win the
propaganda war, especially by foisting this sort of reprehensible advertising
information on children. Thatís part of the expressed intent.
Mr. Brown: I would add that trans
complainants have been covered under the existing grounds of sex before the
tribunals across Canada. As the Minister of Justice said, they are bringing this
legislation in as a symbolic gesture. I leave it to you to question what that
gesture may be, but this community has been protected under the existing grounds
found in most of the human rights codes across Canada on the grounds of sex.
: Senator Joyal Mr. Brown or Mr.
Peterson, Justice Wagner from the Supreme Court, in a seminar at the University
of Ottawa in early March of this year, which is a couple of months ago, stated
the following. He was not giving a decision from the bench, but he was
expressing his views. If you allow me, I will quote him. Itís short:
court eventually faces a question touching on transgender identity, these two
propositions will provide essential frames of reference: that identity is not
fixed, but changing, and that identity is not innate, but contextual.
that, and I tried to understand the implication of those two binary kinds of
elements. He says ďthe courtĒ, so I bet that he might have spoken to colleagues
or the profession, generally.
you have a quarrel with that kind of approach to the definition of transgender
reality or do you think that itís a proper way of approaching the issues
legally? As you forcefully explained, someone, one day, might challenge the
proposal, the policies and all that could stem from the enactment of such
legislation. Weíll find ourselves in court one day and we will have to analyze
and argue the case, at least taking into account those references that Justice
Wagner mentioned not long ago. How would you react to that way of perception?
Mr. Peterson: I want to make sure I
understand your question properly. When the justice said this, was he implying
that the identity is not fixed but it is changing and that identity wasnít
innate and it was contextual, or was he outlining the arena within which this
debate might take place?
Senator Joyal: It was not a speech on
this. Essentially, it was more, if I can use an expression that Mr. Brown will
understand, it was rather an obiter in a conference. The conference was
about identity, but, of course, since identity is a topic of common debate in
Canada, he felt that it would be helpful to put his grain of salt in the public
debate by establishing how he thinks transgender identity should be defined and
establish some parameters.
Mr. Peterson: Letís assume that it is
changing and contextual. Then why is conversion therapy a problem? You see, the
thing is that when I started opposing this bill, people immediately assumed that
I was transphobic and racist and all these other epithets that theyíre perfectly
willing to trot forth at a momentís notice. Thereís been a tremendous attempt to
make conversion therapy for people who are gay illegal. The proposition is
predicated on the idea that the sexual preference identity is not changing, nor
contextual. Itís fundamental and really, what that means is that itís grounded
in something like biology. Okay, fine, letís scrap that. Now it will be changing
and contextual. Then why canít it be changed with context?This is part of the
problem with the policies, is theyíre so incoherent that they will work against
the people that theyíre designed to protect. Now, people have a hard time
believing I care about that, but the fact that Iíve been called things doesnít
mean thatís what I am.
lot of people who have a non-standard identity, if we can call it that, the
tightest argument they have for public acceptance of that identity is that itís
powerfully constrained by biological processes that are beyond their voluntary
control. So instantiate this social constructionist view of humanity and you can
wave those claims goodbye because they are at complete odds with the social
constructionist viewpoint. I think thatís a big mistake. I really do believe
that that will backfire hard against the people who this legislation is designed
to protect. If itís mutable, changeable, only subjective and transformable on a
whim, then why should anyone have any respect for it?
The Chair: Gentlemen, I will have to
intervene. The hour has flown by. We all very much appreciate your appearance
here today and your testimony as well. Thank you.
us for our second hour: Bruce Pardy, Professor, Faculty of Law, Queenís
University; from the Justice Centre for Constitutional Freedoms, Jay Cameron,
Barrister and Solicitor; from the Quťbec Womenís Rights Association, MichŤle
Sirois, President; Diane Guilbault, Vice-President; and Lyne Jubinville,
Treasurer and Webmaster. I hope Iíve pronounced those names correctly.
Spokespersons have up to five minutes for an opening presentation. I believe we
will begin with Ms. Sirois. The floor is yours, madam.
MichŤle Sirois, President, Quťbec Womenís Rights Association:
Honourable Senators, thank you for inviting us to
appear with regard to Bill C-16. As citizens and feminists, we strongly believe
that we must combat discrimination, but Bill C-16 does nothing to protect the
rights of transgendered persons. The bill will, however, eliminate or weaken
womenís rights, which is unacceptable for a society that has formally committed
to defending those rights.
why we are calling for a gender-based analysis before this bill is passed.
First, we wish to clarify what the words ďgenderĒ and ďsexĒ mean. It is
essential that this distinction be made in a bill that refers to gender
identity. Sex refers to the biological characteristics that differentiate men
and women, as is highlighted by Status of Women Canada and all organizations
with responsibilities relating to equality between men and women. It is agreed
that there are two sexes.
refers to attributes that are considered female or male socially, culturally and
historically. So it is a social construct, and this is what gender stereotypes
refer to. In light of these definitions, we can ask what clever trick has been
used so that a change in gender is now equated with a sex change, which is
what way does C-16 jeopardize the rights that women have fought so hard for over
the past half century? Let me give you a few examples.
first is in the field of sport. In March 2017, a male weight lifter won the
Womenís International Weightlifting Championship, unseating the gold medallist
from Rio. Until last year, he had competed against men. This year, he declared
himself to be transgender and was thus allowed to compete against women.
International Olympic Committeeís new standards that were very quietly adopted
in 2016 allow men who identify as transgender to compete against women athletes
if their testosterone level does not exceed 10 nanomoles per liter of blood,
which is three to four times higher than a womanís testosterone level, not to
mention the muscle mass of male transgender athletes, which gives them an unfair
advantage over women. Does that mean that, from now on, the acceptable
testosterone level in women could be tripled, with the encouragement to doping
that is associated with that? The growing participation of men who identify as
transgender in womenís sport is jeopardizing the chances for young girls and
women to win sports events, at all levels of competition. Women therefore have
every reason to contest the arrival of male athletes in their competition. It
will be difficult to contest this with Bill C-16, since womenís teams would be
subject to lawsuits. Is this fair to women who have fought for decades to be
involved in sports and take part in the Olympics?
regard to prisons, everyone remembers Colonel Russell Williams, who was found
guilty on 92 charges, including murdering two women and numerous sexual
assaults. Colonel Williams liked to take pictures of himself in his victimsí
underwear after committing his crimes. Why might he not decide that he would be
better off in a womenís prison?
Moreover, the British association of gender identity specialists has warned the
British government to be very careful with such transfer requests based on
gender identity because they maintain, with evidence to back this up, that a
growing number of sexual predators are claiming their gender identity, whether
known or not, in order to request a transfer to a womenís prison. If there is
nothing to back up that gender identity, on what grounds can penitentiary
officials refuse such a transfer? Yet Bill C-16 does not set out any criteria in
regard to children, by making it commonplace to change gender identity, Bill
C-16 opens the door to the worst kind of abuse. We are witnessing an explosion
in gender change requests from children who do not fit gender stereotypes, such
as little boys who like princess dresses or teenagers who are uncomfortable with
their breasts. The studies clearly show, however, that than 80% of children with
gender dysphoria become comfortable in their bodies as adults. There is a lot of
homophobia underlying this desire to treat children, many of whom are probably
gay, among the people around them would rather say they were born in the wrong
body. Mutilation such as mastectomies performed on teenagers, blocking puberty
and taking hormones for life will result in sterilization, mutilation and
chemical castration. How could that be in the fundamental interests of children?
The Chair: We will now move to Mr.
Jay Cameron, Barrister and Solicitor, Justice Centre for
Constitutional Freedoms: Honourable senators, thank
you for the opportunity to address this committee. We live in a free society
that places a high value on personal autonomy and individual rights. In the
context of free speech for all, I will illustrate what this means.
free society, if I wish, and my grades are good enough, I may go to medical
school and I can earn the prestigious title of doctor, but I cannot compel
people to refer to me as ďdoctorĒ, and neither can the government. This is so
despite the fact that I may strongly identify as a doctor. It might even be the
driving force behind my identity.
I can be
a teacher at a university and be called professor, but I cannot be charged under
human rights or criminal legislation if I refuse to call someone ďprofessorĒ,
even if she is one. I can be a pastor or a priest or a rabbi and minister to my
communities for 50 years, and yet I cannot compel society to address me as
ďreverendĒ or ďfatherĒ or ďrabbiĒ. And neither can the government. Her royal
majesty may make me a knight, but I cannot be charged under human rights or
criminal legislation for refusing to call a knight ďsirĒ.
free society, I am free to refer to myself as anything I want. I can refer to
myself as a man or a woman, or anything in between or something new entirely,
but I cannot compel someone to refer to me as such or make them use my chosen
identifier or pronoun. Neither can the government.
before you, Bill C-16, is a vague and defective piece of legislation because it
lacks certainty. Its uncertainty allows for it to be interpreted as compelling
the speech of Canadians, such as the forced use of gender-neutral pronouns. It
is unprecedented to have human rights or criminal legislation require speech of
its citizens. Prohibit speech perhaps in limited circumstances, but require it,
never. Not in the civil context.
contrary to the jurisprudence to have the power of the state compel the tongue
of the citizen. The Supreme Court of Canada stated in National Bank of Canada
v. Retail Clerksí International Union that anything that forces someone to
express opinions that are not their own is a penalty that is totalitarian and,
as such, alien to the tradition of free nations like Canada, even for the
repression of the most serious crimes.
Justice McLachlin in R. v. Sharpe made it clear that the fundamental
freedom of expression possessed by Canadians makes possible our liberty, our
creativity, our democracy. It does this by protecting not only good and popular
expression, but also unpopular and even offensive expression. I would note that
offensive is a subjective thing. What one finds offensive, another may not find
offensive and, to a certain extent, I must choose to be offended by what I hear.
everyone appreciates freedom of expression as they should. There can be little
doubt that the Canadian Human Rights Commission, based on existing human rights
jurisprudence, will compel service providers, employers and employees to refer
to transgender people by their self-chosen pronoun, with legal consequences for
those who refuse to use such language. This is already occurring and it should
Ontario Human Rights Commission explained that refusing to refer to a trans
person by their chosen name and a personal pronoun that matches their gender
identity or purposefully misgendering will likely be discrimination when it
takes place in a social area covered by the code, including employment, housing
and services like education.
supporters of Bill C-16, such as University of Toronto law professor Brenda
Cossman, admits that pronoun misuse can constitute a violation of human rights
legislation. By not using someoneís preferred pronoun, one could be subjected to
fines, damages, termination of employment, ideological re-education in the form
of sensitivity training and other so-called remedies. The fact is that if C-16
is passed, it will result in the government forcing people to say and not say
certain things under the threat of penalty.
Honourable senators, I ask you to think carefully about what kind of a nation
you want to create today. Shall we have a Canada where the halls are full of
tattletales over pronouns and the easily offended make still greater attempts to
use the power of a supposedly neutral state to advance their own agenda? At what
point does reason intrude in this conversation? At what point do the principles
of a free society and the right to speak prevent state overreach? Do we really
want a Canada where people walk on eggshells, afraid to speak, afraid not to
speak? I do not. But I am afraid that you will not hear me for the clamour of
those who do not realize what they are asking for.
support this bill innocent of the repercussions on their own liberty, if it
passes, but the fact is this: There are elements who support this bill that are
hostile to the freedom that Canadians currently enjoy, not because they love a
free society but because they believe there is too much freedom in society.
The Chair: Please wrap up.
Mr. Cameron: These persons say it must
be curtailed further. Parliament has an obligation to only enact legislation
that is constitutional. In my respectful submission, this law in its current
form offends the Charter of Rights under section 2(b). You should want to amend
the draft legislation ó
The Chair: We have to move on.
Professor Pardy, the floor is yours.
Bruce Pardy, Professor, Faculty of Law, Queenís University, as an
individual: Thank you for having me. I urge you not to
pass Bill C-16 in its present form because of the threat that it poses to
freedom of speech. I would like to make four points.
one, forced speech is the most egregious infringement of freedom of speech, and
freedom of speech may be the most important freedom that we have. Compelled
speech puts words in the mouths of citizens and threatens to punish them if they
do not comply. When speech is merely restricted, you can at least keep your
thoughts to yourself. Forced speech makes people say things with which they do
two, I am speaking here of the first part of Bill C-16, the part that amends the
Human Rights Act. That amendment may well require people to use non-gendered
speech against their will. That is a form of forced speech. The amendment, as
has been pointed out, does not refer to speech specifically. So how do we know
that that is, in fact, the case?
been mentioned, you must look to what the human rights commissions say about it
because it is those commissions ó both the Canadian version and the provincial
versions for their provincial codes ó that have the primary task of interpreting
and applying those provisions. It is not the courts first and foremost; it is
not the government that controls the meaning. Once the statute is passed, its
interpretation and application are largely controlled by the commission and then
also by the tribunal. The courts will provide these bodies with a very high
degree of deference, and it will be their call. The statute will mean what the
commission and tribunal say that it means.
do these bodies say that it means? You have heard these words before. I am going
to read them again, because the point is important. The Ontario Human Rights
Commission believes that the equivalent provisions in the Ontario code mean, or
may very likely mean, that people must use pronouns against their will:
ďRefusing to refer to a trans person by their chosen name and a personal pronoun
that matches their gender identity or purposely misgendering will likely be
three, if the government does not intend for Bill C-16 to force speech, then it
would be a simple matter to say so in the bill. It is not complicated. That
indication would foreclose that interpretation by both the commission and the
four, the honourable Minister of Justice appeared before this committee on May
4. I understood her to state that she did not believe that Bill C-16 would
require people to use pronouns against their will and it was not the intent of
the government to make them do so. My point is this: If that indeed is the case,
then putting that intent in the legislation is as simple as pie. It has so far
declined to do so, and if that in fact is their intent, I cannot understand that
Iíll leave it there, Mr. Chair.
The Chair: Thank you. Weíll move to
questions, beginning with Senator Plett.
Senator Plett: Thank you to all our
witnesses. I have a couple of questions.
Professor Pardy, you started very clearly talking about the issue that I wanted
to question you on, but I will pose the question in any event. You said here and
you mentioned in your written submission that if the government does not intend
for Bill C-16 to force speech, it could easily make its intent clear, and you
have confirmed that here. You are absolutely right with what you said you heard
the minister say. I heard the minister say the same thing. I was sitting beside
you believe the government has not included this intent, if that is their
intent? And in your opinion, what could the government have done to make
Parliamentís intention clear for future interpretation of this legislation?
There are those here who are continually saying that it does not compel speech,
and then there are those like yourself and others and I believe that it does.
What could we do to make it explicitly clear that it would not compel speech?
Mr. Pardy: Thank you for the question.
I have included in my written submission a very simple proposed amendment that
would in fact put that government intent in place. It does not interfere in any
way with the rest of the bill; it simply indicates that the bill is not intended
to mean that the use of male and female pronouns to refer to any person would
constitute a discriminatory practice.Now, there are probably various ways to
word that kind of amendment, but the point is that the amendment is very simple.
Itís not legally difficult to do.
the other question about why the government has declined to do so, I am not the
government so I could only speculate. Perhaps they would like to leave this
question in the hands of the commission and the tribunal and have not actually
determined which outcome they prefer, or perhaps they prefer the outcome that it
looks like the commission and tribunal would come to. But that is pure
speculation on my part. I really cannot understand why, given the intent that
the minister suggested, that simple step would not be taken.
Senator Plett: We all like to speculate
on why the government does certain things, so we will continue.
Cameron, we have constitutional experts, even right here at this table ó maybe
not on this side of the table but certainly on the other, with people like
Senator Joyal and Senator Baker, who isnít here right now ó who are arguing in
favour of this bill, yet you have used the Supreme Court. I will just read one
passage here, a ruling that the Supreme Court made in National Bank of Canada
v. Retail Clerksí International Union et al. Anything that forces someone to
express opinions that are not their own is a ďpenalty [that] is totalitarian and
as such alien to the tradition of free nations like Canada, even for the
repression of the most serious crimes.Ē
that ruling by the Supreme Court ó again, you talked about the constitutionality
ó why do you believe this is not constitutional when other constitutional
experts say right on the face of that that it doesnít really matter, itís still
Mr. Cameron: There are two reasons
really, I would say. The first is that the evidence that weíre having around
this gathering right now, and there have been other panels as well who have been
here, the fact that weíre debating whether or not it would compel speech or it
wouldnít ó and there are so many people who view it as being compulsory of
unwanted speech ó shows that there is a problem with the legislation. Criminal
legislation can be struck down because it is vague or because it is uncertain or
because it overreaches, and in my respectful submission, this legislation does
all of those things.
second reason is that in the history of Canada, as far as Iím aware, there has
never been a circumstance where the government passes a law to require the
citizen to speak in a certain way. That is a gross state overreach, and it
offends section 2(b) of the Charter on its face. This body has an obligation to
pass only constitutional laws. If you donít, the courts will fix it for you, so
you should want to fix it here and now.
Senator Plett: If there is a second
round, chair, I have a question for the ladies at the table. Thank you.
Senator Pratte: I donít think the
courts will find anything because they wonít find anything in the law that
imposes any pronoun or any noun.
I donít think itís a matter of compelled speech. I think itís again a matter of
pure respect. In a civilized society, there are simply things that you cannot
say, and laws protect people against discriminatory or hateful language. Some
people may think that Blacks should not be referred to by their name, that they
should all be addressed, ďHey, nigger.Ē But you donít address them as, ďHey,
nigger;Ē you call them by their names because that is what you do. The same
thing would apply to transgender people; you donít call them by a name they
donít think they should be called by. You call them by the name and/or the
pronoun of their choosing because that is the respectful thing to do, isnít it?
Mr. Cameron: Were you addressing that
question to me, sir?
Senator Pratte: To you or to Mr. Pardy.
Mr. Cameron: Iím happy to address the
question, sir. Thank you very much.
society, which is a free and just society, we do not compel respect. It is not
the governmentís role to compel us to respect each other. There is no case law
that says I must respect any person or that they must respect me. Iím a lawyer.
I donít require people to speak to me as ďesquireĒ or ďMr. CameronĒ or
ďbarrister and solicitor.Ē If they refuse to address me as such, I would have no
legal recourse against them. Neither does a doctor, neither does a professor,
neither does a knight, neither does a senator.
Mr. Pardy: Two quick points: First, the
question about compelled speech is not whether or not the speech that is being
compelled is reasonable speech. Any speech that is compelled is, by definition,
unreasonable. If you had a statute, for example, that compelled people to say
ďhelloĒ and ďpleaseĒ and ďthank you,Ē all of which are perfectly reasonable
things to say, the statute would be totalitarian because it puts words in the
mouths of citizens. In a free country, people decide for themselves what to say,
and as soon as you take that right away from them, you cannot claim to be living
in a free society any longer.
point: You cannot legislate respect. Respect is an emotional and intellectual
response to something and somebody. It is earned and developed over time. All
you have done is take the force of the state to create the pretense of respect,
and that is a sad facsimile.
Senator Pratte: You can certainly
legislate to prevent lack of respect. Again, with respect, there is nothing in
the legislation that mandates pronouns or nouns. There is nothing in the
legislation that says that.
Mr. Pardy: I agree that it does not
refer to speech. In fact, I hope that we would agree. It sounds like you
interpret the statute as though it does not require speech and should not
require speech. I agree with you. All Iím saying is it does leave open that
possibility because of the control the commission has, and there is an easy way
to make sure that your objective and mine are met, and that is to insert a very
simple amendment saying what you just said.
Senator Boisvenu: My question is for
Mr. Cameron. Many observers have argued that the bill is poorly drafted,
especially since there is no definition of the terms ďgender identityĒ and
ďgender expressionĒ. I have two questions in this regard.
all, could you give us your thoughts on the risks associated with there being no
clear definition of these two terms? Since these terms are not defined, is there
not a risk that the number of charges against citizens could increase?
Mr. Cameron: In response to the first
question, there are risks with regard to uncertainty. One of the problems with
this legislation is that it introduces the thorny subject of gender identity
into a realm that is filled with relatively stable and certain categories.
question of gender identity has a level of subjectivity that some of the other
categories of the human rights legislation does not have. They are not
subjective. For example, if I have a religious belief, it is my belief and itís
personal, but if I am a woman or a man, it is something that is objective. But
there is a level of subjectivity that is in disagreement in the scientific,
psychological and sociological communities with regard to gender identity.
disagree on what it means. This side of the table disagrees. This side of the
table disagrees. The whole room disagrees. Because there is disagreement, when
you have something that says that there is a prohibition against doing something
towards a specific category, because there is uncertainty with regard to this
term, there is vagueness and that leads to risks.
be somebodyís perception on one side ó somebody in a hallway, a professor, an
employee, a boss or a judge ó that what was said is an insult to gender
identity. Other people may not see it the same way and that is because that term
remains undefined. Thatís a substantial problem, and it renders the legislation
Senator Boisvenu: My second question is
as follows: does the fact that there is no clear definition pose a risk that the
number of charges could increase?
Mr. Cameron: Certainly. Different
people who support this legislation have different agendas. Some people want
this because they feel that without it, the trans community will not be treated
fairly. Some people think that there is too much freedom of speech to be
disrespectful in society, and so we need to curtail the level of freedom in
irrespective, because of the uncertainty, accusations with regard to what is or
is not an insult or inciting hatred towards gender identity will absolutely
increase because of peopleís perception of what it is or may not be. Then you
have unfortunate people hauled in front of tribunals and courts to answer for
something that is innocuous and is in accordance with their right as Canadians
for free speech under section 2(b) anyway, so it will create confusion, which is
Senator Omidvar: Professor Pardy, I
note with some interest that in January of this year, you debated Professor
Jordan Peterson, who was our witness earlier, on the compelled use of pronounces
in Bill C-16. You debated in favour of Bill C-16. I wonder if you can recall
your arguments in favour of Bill C-16 and compelled pronouns.
Mr. Pardy: Certainly. I should give
context to that debate. It occurred in the following way: Dr. Peterson was
coming in to do the debate and, on my faculty, the hosts of the debate went
round to all the various faculty who were of a different opinion than Dr.
Peterson to invite them to debate him, and they declined. And so they came to
me, even though they knew I agreed with him, and asked me to play devilís
advocate, which I did do.
my arguments was that I said there is no such thing as free speech. We have
restrictions all over the place. We have defamation. We have negligence. We have
counselling crimes. To say that there is freedom of speech is just disingenuous.
Of course, that argument is not correct. We do have freedom of speech, and those
infringements are exceptions, and all those exceptions are restrictions on
infringement of freedom of speech is categorically different because it, as I
said before, puts words in the mouths of citizens, which those other
restrictions do not do. In order to avoid liability in defamation, all you have
to do is keep your opinions to yourself. Iím not endorsing those other instances
of infringement of freedom of speech, but I am saying that they are less severe
than the one we are talking about today.
Senator MacDonald: I have a question
for you, Mr. Pardy. In all the discussion surrounding this bill, we keep hearing
its objective, personal and identity-based. People say that religion is
personal, subjective and identity-based, so what is the big deal? Iím asking
you: How do you respond to that?
Mr. Pardy: I respond this way: I think
those two kinds of interests are given different status. If you have the freedom
of religion, then it gives you the freedom to determine your own beliefs, and
thatís appropriate.Trans people and non-gendered people should also have the
freedom to determine how they want to portray themselves to the world. Those are
the equivalents. But here is the one thing that people who claim freedom of
religion do not have: They do not have the right to demand that other people
agree. The freedom of religion is only the freedom not to be interfered with.
be the first one to suggest that trans people and non-gendered people have the
freedom to do the same. They have the freedom to decide for themselves how to
portray themselves in the world. But the rest of us also have the freedom to
come to our own opinions about things, including religion and including
transgendered matters. In a free country, all of us have the freedom to come to
our own conclusions. I think that is the distinction between these two grounds
that you spoke of.
Senator MacDonald: Thank you. You make
the distinction very well.
Senator Joyal: My colleague Senator
Plett has invited me to join the debate, and I will accept that invitation,
senator. Thank you.
know, the Charter contains a list of rights, and the Supreme Court has clearly
recognized that there is no one right superior to the others. They are all
rights that exist simultaneously in any one personís capacity to intervene in
public debates. For instance, in the case that you raised, that it would be an
infringement on section 2(b), which is, you know, freedom of thought, freedom of
discussion and freedom of debate, would be in conflict with section 15, the
equality clause, to the benefit of the law.
course, all those rights, whatever they are, are subjected to reasonable limits
in a free and democratic society. The court has established clearly the test to
impose to conclude if the democratic society or reasonableness is met with the
hold the conclusion very strongly that this bill is an infringement on the
Charter, instead of building into it an exception, why should we not consider
referring the bill to the court so that the Supreme Court would pronounce
whether this bill is constitutional? It would put an end to the debate, and
everybody in Canada would recognize the wisdom of the Supreme Court in relation
to the interpretation of the alleged violation of section 2.
to me that there is a way around the argument that this bill is an infringement,
and we would know, considering the fact that, I think, our colleague Senator
Baker has been listing the provinces ó almost 10 provinces ó in which there is
provincial legislation of a similar nature. Then, we would have a law in the
land that would be final, and everybody would abide by it and adjust to it. So
is that not a less expensive, more efficient way to address the constitutional
doubt that you have with the bill, instead of trying to amend it?
Mr. Cameron: From my perspective, the
contention with regard to this bill is a red flag with regard to the bill, so
the proper thing to do is to address the contention, not necessarily to refer
the contention to a court comprising individuals who will have their own
contention, perhaps. Youíve heard from lots of witnesses why theyíre concerned
about this bill, people who are versed in the criminal law and people who are
versed in the Charter. So it seems to me that, if you want to uphold the
principles of a free society, the proper thing to do is to put an amendment into
the bill to address the concerns that a lot of people have, but, of course, itís
open to the Senate to refer the bill to the Supreme Court of Canada and obtain a
Senator Joyal: We could amend the bill
saying that the bill will not be enacted pending reference to the Supreme Court.
Itís a possibility to do that. Of course, itís not the way you propose; you
prefer that the legislation be amended and then challenged in court. One way or
the other, as we heard from the previous witnesses, that kind of proposal is
susceptible to court challenge.
Mr. Pardy: But itís even not clear what
it is youíre trying to do. Is the bill intended to force speech or not? People
are saying, ďNo, no, it doesnít do that.Ē If thatís what you mean, then say so.
If you do mean that, then letís say that. Why would you want the courts to be
making the law in the country? Youíre the legislature. Legislate.
Senator Joyal: We can legislate as long
as we want, but you contend that, if we legislate this bill, it would be
Mr. Pardy: Not if you put in the
Senator Joyal: On the basis of what it
is now. In other words, what you tell me is, if this bill is not amended, you
would be of the opinion that it could be challenged. And it would be challenged
Mr. Pardy: But, at this stage you donít
even know what it is that the court is going to be looking at because you
havenít had it interpreted by the commission yet. Itís a complete open book. Why
donít you decide what it is that you want the statute to actually say and put
that in place, and then, if it runs into constitutional trouble ó
The Chair: Weíll have to leave it
Senator Frum: Mr. Cameron, you got cut
off at the beginning when you were about to suggest an amendment, and I just
want to invite you to finish that thought.
Pardy, you said you had the suggestion for your amendment in your written
submission, which I donít have. Iím just wondering if you could also explain it
again. I want to give you each a chance to make your proposal.
Mr. Cameron: Iíll use Professor
Peterson as an example in regard to the amendment. Heís an academic. He wants to
write from an academic perspective in regard to this issue. He wants to consider
it from a scientific and sociological and psychological perspective, and he
wants to add to what really is a fledgling body of work at this point in time in
regard to scientific literature on this particular issue. Letís face it; letís
not ignore the reality. Thereís a lot of disagreement over gender identity in
the scientific community.
order to protect people like Professor Peterson, who, from my perspective, have
a right to study and then write about their findings without fear of running
afoul of section 319 of the Criminal Code, what should be done is that an
amendment should be drafted that says, ďFor ease of clarity, the failure or
disinclination to use gender-neutral pronouns or gender identifiers shall in no
way be construed to contravene this statute, either in regard to the criminal
context or the Human Rights Code.Ē I think Professor Pardy and I more or less
agree on that point, that that would be something that would go a long way to
showing what the government is trying to do and would show that they care about
the rights of Canadians who have a right to have an opinion on this issue and
Mr. Pardy: I will read it to you
quickly. Itís very short.This is to be added to the bill.
following section is added to the Canadian Human Rights Act:
Nothing in this Act shall require any person to use particular words or phrases
to refer to any other person:
greater certainty but not so as to affect the generality of subsection (a), the
use of male or female pronouns to refer to any person does not constitute a
Senator Frum: Okay, but, if you took
that last phrase, that does in fact conflict with gender expression. The
inclusion of the term ďgender expressionĒ in this bill is precisely so that
people can compel people to use pronouns that do not conform to male or female.
Mr. Pardy: But this is the question,
though, right? If gender expression is to mean that you must use certain
pronouns, then we do have forced speech. Thatís the question. That is not the
only possible interpretation of gender expression. What it also could mean is
that people are free to express their gender in the way they see fit, and
theyíre not allowed to be denied a job for that reason. That would be the
meaning that I would expect would be standard and most like the effect of the
other kinds of grounds that are now in the act.
Senator Dupuis: Mr. Pardy, I have a
question for you, one main question and a supplementary question. My main
question is as follows: in your proposed amendment, on page 7 of your
presentation, have you considered the possibility that this kind of amendment
could undermine the current theory whereby the rights granted by the Human
Rights Act are all equal and have no special status that can in some way exempt
them from the other rights? Do you not think this type of amendment draws
attention to one ground for discrimination? By adding a ground to the Bill C-16
as it is, does that not limit the protection of the other grounds for
Mr. Pardy: No, I donít think so. I
think thatís because this is a ground that has this difference. It is the only
one, really, that raises this question of language. The irony here is that, when
it comes to forced speech, we are in a situation where this ground and the
people within this group, if you can call it a group, will end up with more
rights than anybody else because they are the only people who are entitled to
require people to change their speech. I canít imagine any of the other grounds
having that effect. If you are looking at discrimination on the basis of sex or
age, thereís no language question in there. As Mr. Cameron has suggested, there
isnít anybody else in society who has the ability to demand being addressed by a
certain word. If you were to address me by a word that I donít like, thatís too
bad. The one exception will be this ground and this group.
Senator Dupuis: The other argument
raised by the group before us today pertains to the protection of womenís
rights. With regard to the ground of sex, as pertains to women, many men
consider it acceptable to call women any name they like. Yet, we have protected
the reason for which we decided to prohibit discrimination based on sex, as well
as harassment. That is precisely because people thought they could use any
language they liked. That does not mean that people cannot talk in Canada, but
it is prohibited to use terms beyond a certain limit established by
jurisprudence. At that point, does that not circumvent the equal protection
afforded on different grounds?
Mr. Pardy: I donít think so. I think
the key word in your question was ďprohibition.Ē When it comes to discrimination
that might be reflected in language, youíre suggesting there might be
prohibition on referring to people in a certain way. Maybe that is so. But it is
still a prohibition, not a requirement. In this case, weíre talking about being
required to take a certain pronoun identified by a certain person and that
person saying, ďYou will use this particular word to refer to me, or I will
report you to the Human Rights Commission.Ē That does not happen with any other
ground in the act.
Senator Batters: Thank you all for
If I can
address this to one of the women from the Quťbec Womenís Rights Association,
could you please tell us what you think the impact of this particular bill could
be on safe spaces for women?
Diane Guilbault, Vice-President, Quťbec Womenís Rights
Association: The recognition of gender identity allows
a man who identifies as a woman to enter spaces that were designated for women
based on their sex. Women have fought for a long time to obtain protections
based not on gender, but on sex. In this debate, these two terms are confused a
great deal, especially in English since the word ďgenderĒ is often used instead
of ďsexĒ. The term is used differently in French. We have used the terms as
officially used by the Government of Canada and by all organizations that work
to promote equality between the sexes.
rights are based on womenís sex and not their gender. It is not because women
wear shoes, dress a certain way or are submissive that they need separate
spaces. In the PowerPoint presentation, we provided statistics about violence
against women. Male violence does exist, unfortunately. Protections have been
provided for women, who are the main victims of such male violence. The figures
from Statistics Canada confirm this: violence against women is a real thing and
women have specific and established reasons for protecting their safety. Through
the Minister of Status of Women, the Government of Canada recently made a
commitment to preventing violence against women in its statement at the UN on
the concept of gender identity is not defined, as we saw earlier, and can be
very subjective and not verifiable, that means that any man can claim gender
identity to enter safe spaces for women, spaces that are based on their sex.
gender identity is recognized as being equal to sex, that eliminates protections
based on sex. This is a concern. We gave two examples relating to prisons and
sports, where physical differences are obvious, especially in sports. The great
tennis champion Serena Williams has even said that she could not beat the top
100 male tennis players. In competitive sports, differences based on sex are
important, and denying that they exist denies womenís rights.
the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
was signed in 1982, the government has been committed to fighting discrimination
against women and fighting for their equality. Yet their equality depends on the
protection of spaces designated for them based on their sex, and on the
protection of programs such as access to positions of power. Various programs in
the provinces across Canada are designed to increase the participation of women
in positions of power. There are also programs for change rooms and safe spaces
also a problem in prisons. In the case of male inmates convicted of sexual
assault against women, which is why they are in prison, there is nothing
stopping them from claiming gender identity to request a transfer to a womenís
prison. In Great Britain, during the study of a bill similar to Bill C-16, that
is exactly what the association of gender specialists stated after reviewing
inmate requests to be transferred to a womenís prison. They have nothing to
lose. They are in jail for 20, 25 or 30 years. There is nothing stopping such
inmates convinced of violence from requesting a transfer. That puts women in
concerned to see that, from the outset, womenís issues, especially during
debates in the House of Commons, have beenó
The Chair: Weíll have to leave it
there; Iím sorry.
final question from Senator Gold.
Senator Gold: I would like to follow up
on that last point. I understand and respect your concerns. Is the solution not
to eliminate the protection from discrimination against transgendered persons or
to recognize that there are situations, perhaps the two that you mentioned and
others, in which discrimination would be ďreasonableĒ, in view of the need to
protect women, physical differences or some other reason?
Ms. Guilbault: As early as 2013, the
Chief Commissioner of the Canadian Human Rights Commission stated that the
rights of transgendered persons were protected by the Charter and that the
Commission was already receiving and processing complaints involving
discrimination against transgendered persons. We completely agree with that. We
believe that we must protect persons who do not fit the gender stereotypes
associated with their birth sex. These people should not lose their job and be
subject to discrimination.
certain limits not be set though? If protection is based on sex, does gender
identity not automatically become synonymous with a sex change? It is possible
to change gender. Many people do that, but it is not biologically possible to
change sex. In certain cases, belonging to a sex, the female sex ó because that
is where the dangers arise ó-, must be respected. To be clear, we requested that
a gender-based analysis be conducted when the bill is passed by the government.
The Government of Canada has a commitment to ensure that, before the bill is
passed, it will not violate the rights of women and will potentially promote
womenís rights. Our main request, as the auditor general also pointed out in
2016, is that such a gender-based analysis be conducted. That would make it
possible to assess the sectors where it might be applied differently in order to
protect womenís rights, their right to safety in particular.
The Chair: Witnesses, thank you all for
being here today and assisting the committee in its consideration of Bill C-16.
Itís much appreciated.
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