House of Commons
No business to report.
C-16 – Transgender Rights
On the Order:
Resuming debate on the motion of the Honourable Senator Mitchell, seconded by the Honourable Senator Gagné, for the third reading of Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code.
Hon. Donald Neil Plett: Honourable senators, I rise today to speak at third reading to Bill C-16.
Since I last rose to speak on this topic, we have had an in depth study of this legislation at committee. Witnesses gave impassioned pleas to the committee and made substantive contributions.
This legislation was not studied in the House of Commons, so I would like to start my speech by saying that I am proud of the thorough work that the Senate has done on this legislation to date. If I had to sum up the witness testimony in a few short sentences it could be characterized by the following: Trans people face discrimination and marginalization in Canadian society; this legislation could have a disproportionate impact on women; and, third, the interpretation of this bill and its surrounding policies will likely constitute the most egregious infringement on freedom of speech in Canadian history.
My speech today will focus on this last issue because, colleagues, this cannot be swept under the rug.
I raised this concern — the issue of compelled speech — at second reading, and it was expanded upon in great detail by several witnesses at committee, including litigators, law professors, constitutional experts and a free speech advocate from the transgender community.
Some proponents of the bill have tried to get around this point by stating that there is nothing written in the bill that compels speech. After all, the bill simply adds two grounds — gender identity and gender expression — to the Canadian Human Rights Act and to the Criminal Code.
As the same proponents know, the problem is when we leave the interpretation of these new grounds to the Canadian Human Rights Commission.
Most of us have worked with legislation for long enough to know that the appropriate level of analysis is not the words written on a page. The analysis we must provide, at a most basic level, as legislators, includes how the bill will likely be interpreted and how it will impact Canadians.
As Senator Jaffer stated earlier this week, the minister herself denied the infringement upon freedom of speech by referring to the hate speech provisions in the Criminal Code.
None of the arguments that have been made with respect to the compelling of speech have anything to do with the Criminal Code amendments, despite senators at the table disingenuously claiming that this bill is only about genocide.
One senator, who I respect immensely, was furious at two witnesses who testified about the infringement upon freedom of speech, implying that they were okay with inciting genocide of trans people. This was truly appalling, and I received letters from both witnesses afterwards, one of whom is a trans woman, about the treatment that they received from this senator and the insinuations he had made. The two were just there to talk about the impact this legislation would have on freedom of expression.
I cannot believe that I would even need to say this, but let me be perfectly clear: Opponents of the legislation, including myself and witnesses who appeared at committee, do not believe in discrimination against transgender people and do not believe in the promotion of genocide of transgender people. The insinuation is absurd and insulting.
However, as I said, it is clear that the minister does not even understand the “compelled speech” concern raised repeatedly by legal experts at committee as she responded by making reference to the hate speech provisions in the Criminal Code.
For Canadians who are paying attention and who still have questions about how the words on the page in front of us get us to compelled speech, let me explain. The origins of Bill C-16 can be found in the same legislation at the provincial level, including the Ontario Human Rights Code. When a new ground of protection is added to the Canadian Human Rights Act, like the Ontario Human Rights Code, the respective commissions are tasked with setting the surrounding policies and guidelines.
There is a long documented history of the federal policies mirroring those found at the provincial level when interpreted by the commission. With respect to this particular bill, the government’s intention was made expressly clear through a Department of Justice review of Bill C-16 published on their website. The review includes a question and answer section in which the government states:
Definitions of the terms “gender identity” and “gender expression” have already been given by the Ontario Human Rights Commission, for example. 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.
Colleagues, this statement of intent is perfectly clear. The Ontario Human Rights Commission has produced a policy on gender identity and expression and what constitutes harassment and discrimination, including refusing to refer to a person by their self-identified name and personal pronoun.
With the passage of Bill C-16 in its current form, if one encounters a person in a sphere of activity covered by the federal code and addresses that person by a pronoun that is not the chosen personal or preferred pronoun of that person, your action can constitute discrimination.
As Jared Brown stated in his legal analysis, “In the event that your personal or religious beliefs do not recognize genders beyond simply male and female (for example, your beliefs do not recognize non-binary, gender neutral or other identifies), you must still utilize the non-binary, gender neutral or other pronouns required by non-binary or gender neutral persons, lest you be found to be discriminatory.”
The pronouns I am referring to include words like “zi,” “zir,” “they,” et cetera, but the list is truly infinite as the pronouns accompany the 70-plus genders that exist to date. Any such pronouns are at the sole discretion of the non-binary or gender non-conforming individual.
These are words that are not yet even in the dictionary. Nevertheless, this is effectively changing language by statute, which means that language is now in the purview of the state.
Honourable senators, this is so wrong in a free country. When Jared Brown testified before committee on freedom of expression issues, he stated:
It’s 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 can’t 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, “When you speak about a particular subject, let’s say gender, you must use this government-approved set of words and theories.”
The American jurisprudence clearly defines this as unconstitutional compelled speech. In Canada, honourable senators, 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 Canada.
Some proponents have claimed this issue to be a red herring, stating things like “Professor Jordan Peterson would never actually find himself before the courts for his stance on the gender spectrum or for failing to use a gender neutral pronoun.”
With respect, this is simply incorrect. First, Professor Peterson made his initial video stating he would not use the zie or zir pronouns, language that he regards as part of an ideological linguistic vanguard.
The University of Toronto’s legal department — not an administrator — sent him two letters ordering him to cease and desist in his public utterances because they believed he was not only violating the university’s standards of conduct but was also violating the relevant provisions of the Ontario Human Rights Commission.
As Professor Peterson said in committee:
. . . 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.
Second, as Professor Peterson publicly criticized the Ontario policy, the OHRC clarified its policy with respect to pronoun use and went even further by setting out the following:
. . . 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.
So what is the big deal? What happens to an individual who is found to be discriminatory by the Human Rights Tribunal? There are a number of possible sanctions the tribunal can order, including both monetary and non-monetary orders. Non-monetary orders can include forced apologies, gag orders, publication bans and orders to undertake sensitivity and anti-bias training.
If you, as an intellectual dissenter, fail to complete one of these reprehensible and backward court orders, the likely consequence is prison time. In fact, failure to comply has led to jail time at both provincial and federal levels. This is truly outrageous. It is particularly appalling when it comes to an issue like this, when we are talking about a new ground that is not based on immutable characteristics but on a social science theory about social construction and a spectrum of gender.
While I knew why I would be reluctant to undergo court-mandated sensitivity training, I asked Dr. Peterson to elaborate why someone like him who dissents as an intellectual and as a practitioner would have an objection to taking such training. His answer was rather enlightening:
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 that’s associated with the perception is by no means settled . . . .
He later continued:
Where’s the evidence that anti unconscious bias training works? There’s no evidence, and what little evidence there is suggests it actually has the opposite effect because people don’t like being brought in front of a re-education committee and having their fundamental perceptions . . . altered by collective fiat.
Honourable senators, language evolves as we use it and as it becomes relevant in a modern society. Think of the word “Ms.” The term was born out of a need to fix a clear problem. Many women didn’t want their marital status unnecessarily disclosed, and wanted the option to not define themselves based on their marital status. This was a natural societal evolution, and the language evolved organically. It did not evolve by legal force.
Some senators tried to call into question the certainty of these policies by highlighting other segments of the incoherent Ontario Human Rights Code that were less specific than the clauses I read out. The fact that the policy is full of internal contradictions does not make for a strong argument, especially considering that the most detailed guidance was clarified after Jordan Peterson rose to public consciousness.
On this point, University of Toronto Professor Brenda Cossman, a proponent of the bill and a witness at committee, has said this regarding Bill C-16:
. . . pronoun misuse may become actionable, through Human Rights Tribunals and courts.
Another supporter of the bill, Law Professor Kyle Kirkup, answered a question about a person who wants a non-traditional pronoun used, and whether that person would have a case before the Human Rights Commission. Kirkup replied with this:
So we haven’t seen cases on that at this point, but I would say absolutely . . .
Honourable senators, there is another concept that came up a lot at committee, and that is the notion of respect. We do not legislate respect, honourable senators. Respect is earned. It is ludicrous to suggest that it is harassment to refuse to refer to an individual by a made-up word that they have chosen for themselves.
On this point, constitutional expert Jay Cameron weighed in:
In our society, which is a free and just society, we do not compel respect. It is not the government’s 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. I’m a lawyer. I don’t require people to speak to me as “esquire” or “Mr. Cameron” or “barrister and solicitor.” 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.
Professor Peterson also weighed in on the question of respect:
I would say that the very idea that calling someone a term that they didn’t 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.
Personal or intellectual dissenters of the gender spectrum theory or the social constructionist viewpoint would not be afforded any special accommodation. Even though the science is overwhelmingly in favour to the point where the social constructionist theory has been all but disproven, the law would not accommodate this perspective. The law and its future interpretation will only accommodate proponents of the flawed and self-contradictory social science theory of the infinite gender spectrum.
This is the same theory that is predicated on the notion that sex, sexual orientation and gender identity all vary independently of one another and, thus, that one has no influence on the other.
There are lots of valid reasons to not want to use ideologically driven gender-neutral language, and none of them have to do with a regressive, backward or ignorant perspective.
Evolutionary biology professor Dr. Gad Saad told the committee that the tenets of evolutionary biology — namely, the scientifically proven distinctions between men and women — are already viewed as micro-aggressions and as systemic violence on some university campuses.
From a scientific and academic perspective, he has grave concerns with being forced to use gender-neutral language that implies a passive endorsement of this theory.
Likewise, Theryn Meyer told the committee:
As a trans woman myself, I take advantage of the freedom of speech that this amazing country has granted me to argue for tolerance and understanding for my fellow man, and to explore how best to negotiate integration of my transgender brothers and sisters into society.
Meyer later stated:
The reason I am here is because I have witnessed first-hand the unprecedented ideological motivations behind the terms being used, the way they’re used and the way they are defined.
The question that we need to consider is whether the benefits of this legislation outweigh the drawbacks. In my opinion, given that the Canadian Human Rights Commission has already stated that trans people are protected in Canadian human rights law, and given the impending outrageous infringement on freedom of expression, the answer is clear.
However, I know that there are members of the trans community who feel that the passage of this legislation will be the final piece of the puzzle in Canada’s multi-jurisdictional human rights regime. Many also feel that the symbolic gesture of this legislation means that Canada is recognizing the legitimacy of transgender people as equal under the law.
Honourable as those goals may be, they do not detract from the problem that we have before us. We do not have the wherewithal to define the surrounding policies and guidelines in this place, but we can make Parliament’s intent clear. As Senator Baker has pointed out a number of times, the courts constantly make reference to the Senate when determining Parliament’s intent. In this case, we have an obligation to make our intention clear, or make no mistake, we will have compelled speech at the federal level upon the passage of this bill.
Witnesses pleaded with us to make an amendment. The minister herself said this legislation is not intended to compel speech. For that reason, the government should have no problem accepting an amendment in this regard and, in fact, should welcome it.
In committee, Senator Pratte stated to Queen’s law professor Bruce Pardy:
. . . there is nothing in the legislation that mandates pronouns or nouns. There is nothing in the legislation that says that.
Professor Purdy responded with this:
It sounds like you interpret the statute as though it does not require speech and should not require speech. I agree with you. All I’m 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.
Let’s make our intention clear.
Before I conclude, I need to make reference to a couple of issues that tremendously disappointed me at committee.
I already spoke of the one incident in which a senator angrily replied that the witnesses were okay with the incitement of genocide of transgender people. But later, I wanted to append an observation stating the following:
The committee heard from witnesses who raised serious concerns regarding interpretations of this legislation by the Canadian Human Rights Commission, specifically with respect to the compelling of gender-neutral speech from persons who may or may not subscribe to this particular theory of gender.
I felt that it would be a gross mistake on the part of the committee to not include a note about the very serious concerns raised about compelled speech.
The arguments put forward by some esteemed members of the committee were that we did not want to imply that there was any credibility or validity to the arguments raised by the six experts who raised these concerns.
I found this fascinating. The senator who raised this point was not even present for the meeting on compelled speech, and it was even more surprising that not one senator could come up with a single argument to dispute these claims. That is very telling.
Senator Joyal’s argument against this observation was not that there were not valid concerns, but that if we were putting in observations every time we have serious concerns, we would have too many observations. And Senator Mitchell’s objection was that we would be giving credence to these concerns without giving similar credence to the proponents of the bill.
As I stated then, the committee’s passing of the bill without amendments was a fairly good indicator that the proponents’ testimony was heard. This bizarre attempt to pull the wool over the eyes of Canadians on this issue is disturbing, to say the least.
I asked Senator Harder last week about why the Department of Justice web page linking Bill C-16 to the reprehensible Ontario policies disappeared mysteriously after Peterson’s concerns gained traction. I am looking forward to receiving that answer as to why, and at whose direction, the page was removed. As one witness pointed out, this page was really the smoking gun.
The concern is not hypothetical, as some have tried to suggest. It is very real. As we know, many proponents are acknowledging this is precisely how the legislation will be interpreted. They just somehow manage to believe that giving language control over to the state is a good idea. It is happening currently at the provincial level, and based on the statement of intent from the government and the usual course of federal human rights policies mirroring their provincial equivalents, we have absolutely every reason to suspect a similar interpretation at the federal level.
All we have to do is make our intention clear.
When Senator Joyal asked Professor Bruce Pardy about letting the courts decide whether there is an infringement on freedom of speech rather than introducing a clarifying amendment, Professor Pardy responded:
But it’s even not clear what it is you’re trying to do. Is the bill intended to force speech or not? People are saying, “No, no, it doesn’t do that.” If that’s what you mean, then say so. If you do mean that, then let’s say that. Why would you want the courts to be making the law in the country? You’re the legislature. Legislate.
Colleagues, Canadians are watching. There is a reason that thousands of people tuned into the particular committee hearing on compelled speech live, and over 400,000 people have watched the hearing on YouTube since. Canadians are concerned, engaged and paying attention. They are listening today. In fact, in my eight years in the Senate, I have never seen such a strong and engaged response from Canadians of all political stripes who are concerned about this infringement on their freedom of speech and the general precedent this represents. If you believe in sending a strong message to the Canadian Human Rights Commission that Canadians should be free from having to mouth opinions and ideologies that are not their own, while enshrining explicit protection for trans people under the law, I look forward to your support on the following amendment.
I will leave you with one final comment from Professor Pardy at committee:
. . . 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 not agree.
Hon. Donald Neil Plett: Therefore, honourable senators, in amendment, I move:
That Bill C-16 be not now read a third time, but that it be amended on page 2, by adding the following after line 3:
“2.1 The Act is amended by adding the following after section 4:
4.1 For greater certainty, nothing in this Act requires the use of a particular word or expression that corresponds to the gender identity or expression of any person.”.
Hon. Chantal Petitclerc: Would the honourable senator take a question?
Senator Plett: Yes, certainly.
Senator Petitclerc: Thank you very much, Senator Plett. I feel I have to ask this question because your speech resonates strongly with me.
As someone who has been in a wheelchair for 35 years, I have been called many things. I have been called a person with a disability, handicapped, crippled. When I used to go to France, we were called “invalid.” Now when I go to France I’m called “less valid,” which I guarantee I don’t like, but I can assure you that I never took anyone to court because I knew that the intent was never to be hurtful or discriminatory.
The best answer to that was from my friend Rick Hansen. We had this discussion, and at one point he said, “Why don’t people just call us Rick or Chantal?”
Why are we trying to complicate something that is quite simple, when we will continue to have the freedom to choose to call someone just by their name?
Senator Plett: Thank you very much, Senator Petitclerc.
Let me say I agree 100 per cent with your observation. The bill, however, according to the Ontario Human Rights Commission, will compel me to call people certain things that I don’t agree with.
I’m fine that I shouldn’t call you something that you don’t want to be called. My argument is this bill will require me — not in your case, but in the case of transgender people — to call them by what they tell me to call them. It won’t just be “he” or “she.”
I’m fine if the bill would say that if someone identifies as a woman to call them “Miss.” I have always called Theryn “Theryn.” Theryn is a transgender woman, and we had a perfectly good relationship. I called her Theryn, and I think that’s perfectly acceptable. Senator Pratte brought this up a few times.
But this bill will compel me to call a person “zi” or “zir,” if that’s what they want to be called. That is what I object to.
This is not taking away freedom of speech; this is compelling speech. This is the opposite.
Senator Petitclerc, I agree with you entirely. If you want to be called “Senator Petitclerc,” I should respect you and call you exactly that.
The Hon. the Speaker: Senator Mitchell, on debate on the amendment.
Hon. Grant Mitchell: Thank you very much. I would like to address a couple of points that Senator Plett has used to build his case for an amendment, which I’m in profound disagreement.
He bases his arguments largely on the testimony three witnesses: a lawyer, Brown; a lawyer, Pardy; and a psychology professor, Jordan Peterson. They stated the case that Senator Plett is trying to make, but in each case, they didn’t give us a single example of where their concern has ever been realized, in real time in the real world. Even though this provision has existed in 12 jurisdictions across this country, it has never come to the level of anything beyond the hypothetical.
In the case of Mr. Peterson, who has made a great deal of his concern that he might lose his job, that he might be forced to say “zi” or “zir,” and I have read the letters he received. There was no threat to his job. There was a suggestion that he be careful about the respect with which he treats his students. Not only has he not lost his classroom, he still has his classroom. It sounds like a significant forum for free speech. The University of Toronto gave him another room where Dr. Cossman was able to debate him. That sounds like a significant place where you can have freedom of speech. In fact, he was invited to the Senate of Canada, one of the most public places in the country, to say whatever he wanted to. That sounds like he has very little prohibition on his freedom of speech.
He has never said that he was forced by any of his students to say “zi” or “zir,” but I would say as a father of children, who have been to university, and a student, as all of us have been, would a professor not want to create a respectful and accommodating environment to his or her students? He said that if they ask in a respectful way, he might use those pronouns.
The second point I want to make is this idea that somehow we are changing or compelling speech. I will get into that in more detail, but I’m struck by the fact that about 45 per cent of the members of this Senate are women, because almost 100 years ago there was a very powerful case where the courts ultimately compelled speech. They said that when you say “person,” you don’t just mean men; you mean men and women. Isn’t it ironic that 40 per cent or so of the people in this very room are here because of exactly that kind of legislative and rights initiative?
Senator Plett talks about social construct. It’s very difficult to understand any of the arguments that any of the witnesses made when they used the term “social construct.” But I will say about social construct arguments is that each of them were trying to dismiss the case for this bill by saying that somehow it was premised upon a social construct, and what are social constructs? They are not real.
Well, if someone out there buys into the social construct that they don’t like trans people, and they discriminate against them or beat them up or harass or bully them, then that social construct is entirely real. That’s exactly what this bill deals with. It gives protections and rights and some sense of equality and accommodation that people like Brown, Pardy and Peterson, and like each of us accept almost every day of our lives without question. When we fight it, we fight it for other people.
This bill is about fighting for the rights of other people, and in doing so, the great and wonderful irony is that we enhance and strengthen the rights of all people. That’s how human rights work. They are not a zero-sum game. There are trans people in this country who fundamentally need our help, our embrace and the protections we can extend with this bill.
I fundamentally disagree with what Senator Plett’s amendment attempts to do, and I say that Bill C-16 in no way compels speech or the use of any words, including pronouns. It simply requires us all to refrain from behaving in a way that discriminates against or harasses a person on any of the specified grounds in certain environments like workplaces and provisions of public services.
Words matter. It is widely understood. Every one of us absolutely and fundamentally knows that even the most benign words, when used inappropriately or perniciously, can hurt, harm and rise to the level of harassment. The most benign words can do damage if they are not used in a respectful way. If words like “sweetheart” or “dear” are used in a workplace to demean or patronize anyone, we all know that is absolutely unacceptable. If someone wanted to demean a trans person, one very effective and particularly damaging way of doing that would be to continuously misgender them, calling a woman “he” or “him” continuously against their will would be harassment whether that person were trans or not.
If, on the other hand, somebody feels unable to refer to a woman as “her” because it is somehow inconsistent with their values, this can be resolved simply by calling them by their first name. How in our society, known for its respect, decency and acceptance, could the very remote possibility — hypothetical possibility — of being asked to use a person’s first name ever be a reason to oppose protections so desperately needed by one the most vulnerable, alienated, bullied and harassed groups in our society?
To include this special amendment or this special provision that Senator Plett is providing to the two new grounds that are being brought forward in Bill C-16, would, in fact, be to invoke a technique that is not used for any of the other grounds specified in the human rights codes or Criminal Code.
For example, we do not include a list clarifying what religious leaders might be able to say. We don’t do that because the specifications of their religious freedoms absolutely suffice. We have a sophisticated legal and rights system in this country with institutions, courts and tribunals that are expert in determining the parameters of the grounds protected in our legislation and in meshing and managing when rights bump up against each other. These courts and tribunals do not do it in the abstract of debate in places like this. They do it with specific cases, contexts and facts and with specific discussion about those facts, contexts and cases. They have done it many times across this country for many decades, and they have done it with great success. That is one of the reasons we have the remarkable human rights record and human rights privileges in this country today.
I want to make and emphasize a fact. The Canadian Human Rights Act is a human rights law which evolves with society. It is a remedial law, not a punitive one. Its goal is to address discrimination, not to punish anyone.
For those who raise a concern about freedom of speech, each of us already has significant protections in the law for our freedom of speech. Speech, of course, is a form of expression. Yet, opposing Bill C-16 denies trans people protections for their freedom of gender expression. On the one hand, when somebody denies or opposes Bill C-16 on this basis, they are really saying: “Well, I want my protections for the freedom of my form of expression, but I don’t want that person over there to have protections for the freedom of their form of expression.”
The real beauty of our human rights experience in Canada is it is simply not a zero-sum game and we do not prioritize one person’s freedom of expression over someone else’s. We work it out respectfully and politely. There will be exactly the same process invoked by the application of these provisions of Bill C-16. There is simply no need for this amendment. Our rights experiences in general and the two specific codes that Bill C-16 strengthens have served Canadians well, and they have enhanced our quality of community, respect and life immensely, for every single one of us.
Today, with this bill, we extend more of that to more people, and, in doing so, we strengthen the rights of everyone in this country. We can be leaders in the world of doing that.
Some Hon. Senators: Hear, hear.
Senator Plett: Would Senator Mitchell take a question?
Well, Senator Mitchell, you spent 10 minutes arguing my argument for me. You are arguing for freedom of speech, and I didn’t argue against freedom of speech. I support that. In my answer to Senator Petitclerc, I 100 per cent supported freedom of speech.
This is not about freedom of speech; it is about compelling speech. You used the analogy of our being called “persons.” I don’t think there is any law for me to call you a person. I think I can call you a man; I can call Senator Petitclerc a woman, a lady. I’m not compelled to call you a person. I’m not sure where this argument is. I would like you to explain how that even equates to this particular bill.
You talk about calling people by their first name. I agree with you entirely. I said in my remarks that I had a good relationship with Theryn Meyer, and I’m happy to call Theryn Meyer “her.” She identifies as a woman, and my argument isn’t against that.
My argument is against my being compelled to use names and pronouns that are not even in the dictionary. Somebody can simply make up a word, and I’m supposed to call them that. You talk about just calling them by their first name. I agree with that, but the bill doesn’t say that.
So, Senator Mitchell, I’m not sure why you wouldn’t support the amendment because I’m not arguing against the rights of transgenders and having protection under the law.
I am asking you, Senator Mitchell, where in my speech do I suggest we should not be respectful? Where does using the term “person” have anything at all to do with what I said? It’s not a compelled term.
I’ll leave it there for now. I might ask another question, but please.
Senator Mitchell: It seems to me, Senator Plett, although I’m sure this is wrong, that you are not aware of the Persons Case. It’s the Persons Case I was referring to. It is because the Persons Case was won, interestingly enough, by the grandfather of Senator Nancy Ruth, that she was allowed to sit in this very chamber. The implication was that prior to the Persons Case, “persons,” when you used that term in that context, and, of course, all terms are used in a context, meant only men. After that, we were compelled to say when we use the word “person” in that context that it meant men and women. This is not particularly new. In fact, it’s intrinsic to who we are and what we are as an institution.
There is another assumption that you make, which I find hypothetical and a “sky is falling” default to disaster kind of assumption. It might be. I have been working closely with the trans community and trans people for probably five years now, and I have never once heard of anyone asking anyone else to use the words “ze” or “zir.” I expect that almost all of us will live our entire lives never being asked to use “ze” or “zir” by anyone.
But in the event that someone actually did that, the Ontario human rights group, which you refer to frequently, has said that if you don’t want to use that, you can use “they,” and if you don’t want to use “they,” simply use their first name. I might say tongue in cheek, to lighten things for a moment, that, of course, in the Senate this is no problem whatsoever because if you can’t remember a senator’s first name you just call him or her “senator.”
If it got to the point where somebody wanted to be called “ze” or “zir,” which, again, is fundamentally hypothetical, why is it that you assume the tribunal would rule in their favour and against the other party? Again, it’s just a purely hypothetical assumption. When I consider the damage and the harm and the hurt that is done to trans people every day —
The Hon. the Speaker: Excuse me, Senator Mitchell, your time has expired. I know there are a couple of other senators who want to ask a question. Are you asking for more time?
Senator Mitchell: Sure.
The Hon. the Speaker: Five more minutes?
Hon. Senators: Agreed.
Senator Mitchell: The pain those people feel is so significant and profound it is almost — and I don’t want to be aggressive about this — embarrassing that we are in any way, shape or form suggesting that Canadians, who we know to be fundamentally, respectful, wonderful, accommodating, embracing people, would ever get to a point over something like zi and zir, where they would be called before a tribunal. It seems to me to be almost a sky-is-falling argument that really and truly doesn’t behoove this level of debate and does not make the case against this bill.
You make one other point, and Senator Baker makes this point all the time. The courts often refer to us and quote us, but it is not necessarily that they have to refer to an amendment or quote an amendment. It’s not as though your words and arguments aren’t on the record, and it’s not as though the Supreme Court and other courts don’t go through the record. That’s what they quote. Yes, that’s another way to make your point, but it can have unintended consequences and is not good law because we don’t use it anywhere else. In fact, it would be intrinsic discrimination to use this kind of provision to further clarify a grounds when, in the particular case of trans people and gender, no other grounds are clarified in these two codes in that same way.
The Hon. the Speaker: Honourable senators, I know there are a couple other senators who want to ask questions, but if you want to ask a question, please ask a question. If you want to make a statement, enter the debate and take your full 15 minutes. If you are asking a question, get to your point, please.
Hon. George Baker: Is it correct that in every province in Canada and every territory except one, this same change to the Human Rights Act in every single other jurisdiction is in effect and has been in effect for a decade in some provinces, with no problems that arise? Is it not correct that some of the witnesses before the committee actually were complaining about the provincial legislation, about matters that had not arisen in the past decade, when that legislation has already been taken into account?
Senator Mitchell: Yes, in fact there are 12 jurisdictions. Nine, almost ten, actually have both gender expression and identity, and three have gender identity. There have been no examples of this problem.
Senator Plett mentioned Gad Saad who was quite perturbed about this legislation having an effect on him in his classroom, no t realizing that since 2010, Quebec has had gender identity and gender expression in their provincial legislation, which covers his classroom. He has never once confronted the problem that he thinks he is going to confront when this passes, even though it doesn’t have any jurisdiction over his classroom or that particular feature of his life at all. It was vacuous and irrelevant testimony.
The Hon. the Speaker: On debate on the amendment.
Hon. Marilou McPhedran: May I ask a question of Senator Plett?
Some Hon. Senators: No.
The Hon. the Speaker: Sorry, it’s too late for that, Senator McPhedran.
Senator McPhedran: May I respond?
The Hon. the Speaker: Are you entering the debate on the amendment?
Senator McPhedran: Yes, thank you, on the amendment.
I would like to speak to this from a particular perspective and slice of my life. I’m a former Chief Commissioner of Human Rights in a province, and I’m a former member of the Canadian Human Rights Tribunal, having responsibility for interpreting the Canadian Human Rights Act. I’d like to comment on the proposed amendment with a number of observations.
My first observation is that beginning in 2013, surveys of Canadians of what is the strongest symbol of being Canadian, the Charter and the flag match up almost equally at the top of the list.
The whole concept of a Charter of Rights and Freedoms in this country that is aligned at the provincial and territorial level, with similar codes, with protections for the people who live in this country, is core to who we are.
I want to take a moment to reflect on some of the decisions that have occurred across this country, because they have recurring themes directly pertinent to the point being made in this amendment.
But I also need to observe that thus far, to the best of my knowledge, those who have spoken in support of versions of this amendment, those mentioned by Senator Plett in moving the amendment, are each and every one in a level of both privilege and power in our society that makes this a highly relevant aspect of the amendment.
The amendment is being made, spoken to and proposed from the perspective of a man of privilege and power. The examples given to us to support and to persuade us on the amendment are based also all on men, all in positions of privilege and power; a tenured professor, an editor at a major news outlet, lawyers, a senator.
There is a huge difference between what is being termed “compelled speech” and speech that is questioned because of its context and its impact.
These are very important elements of the jurisprudence in this country that deals with so-called hate speech. If you have a friend who is Black, a co-worker who is Chinese or Korean, or you are socializing with people who are not the same race as you, and you choose to call them a horrible name like nigger, like kike, et cetera, you are exercising your freedom of speech. While there may be social consequences for what you have chosen to do in such a hurtful and disrespectful and discriminatory way, it is highly unlikely that you will be able to successfully argue that your speech has been compelled in some way. It is also very unlikely that even if you were challenged regarding those particular comments that you would be held to be in any way censured.
It is also ridiculous in the references in support of this amendment that somehow people end up going to jail because they don’t use a particular pronoun.
When the jurisprudence in this country at the provincial level, the territorial level and the national level has examined the concept of hate speech, it has required looking at impact, the effects, the results and the context.
Just turn the lens slightly away from these privileged, powerful men who don’t want to anyone to question how they get to use language. Ask a question about impact; put it in context.
Where there have been findings of hate speech with any kinds of censure, any kind of consequences attached to those, we have in this country jurisprudence that demonstrates that there must be proof of damage done and that the nature of the challenge is such that someone forgetting to use a proper pronoun doesn’t meet the standard of any of the decisions where there has been any level of censure in this country.
This is an amendment built out of a perception of privilege and power in our society to say whatever those who hold those positions of power and privilege wish to say. It is a fabrication in terms of any kind of actual legal cases that have evolved in this country based on the existing hate speech that used to operate in the Canadian Human Rights Act and still does operate at the provincial level.
So I would simply ask colleagues in the chamber to think very carefully about the significant difference between personal inclinations and responsibility not to inflict harm on others through the use of language, particularly for those of us who hold positions of power and privilege.
I would therefore invite all of us to decline to support this particular manifestation of power and privilege.
Some Hon. Senators: Hear, hear!
Senator Plett: Would you accept a question, senator?
Senator McPhedran: Of course, senator.
Senator Plett: Thank you. I clearly understand, senator, how you feel about privileged men; that was quite evident in your comments at the beginning.
Would you put Theryn Meyer, a transgender woman, into that same category? She was also one of the people who came and testified and supported Dr. Gad Saad, Dr. Peterson, the lawyer that we had here, and other professors. Is Theryn Meyer in the same category as the rest of them?
Senator McPhedran: Let me clarify that I was responding, senator, to the examples that you chose to use in your arguments in support of your amendment. Therefore, I observed the men have power privilege, but I would include anyone in a position of power and privilege who would feel that he or she or they could use any language they wish as a result of their position of power and privilege.
Hon. Linda Frum: Honourable senators, I rise today to speak to Senator Plett’s amendment to Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code by adding the words “gender identity” and “gender expression” as prohibited grounds of discrimination.
Regardless of whether one supports or opposes this legislation, I know that there is a unanimous view in this chamber that hostility and discrimination against transgendered persons is completely unacceptable and must not be tolerated in a just and caring society like our own.
The intent of this legislation is to protect the rights of transgender and gender nonconforming persons. I believe that this is a virtuous intent because there should be no person in our country who feels unsafe due to their gender or their sexual identity.
Although there is a lack of consensus among transgendered individuals, the gay and lesbian community, and the feminist community on the value and efficacy of this legislation, there are a large number of people who do believe that this legislation is required to protect their rights.
It is for this reason that I voted to support this legislation at the clause-by-clause stage in committee.
To those who believe that Bill C-16 will make them safer and more protected against bigotry and hatred, it is my sincere hope that it succeeds in doing so. However, we would be fooling ourselves to believe that this legislation is any kind of panacea to end the extremely elevated depression and suicide rates among transgendered people. It does not have the power to stop bullying in schools nor on social media. It will not end transphobia.
Those are issues that need to be dealt with on a societal and educational level. Unfortunately, every social ill cannot be remedied through well-meaning legislation.
This has been our experience provincially, where the Ontario Human Rights Commission’s addition of gender identity and gender expression has not had an impact on the suicide, depression or discrimination rate.
My support for this bill does not mean that I have no reservations about it. I remain concerned that due to its overly broad language and the Justice Minister’s failure to provide definitions for the vague terms “gender identity” and “gender expression,” there is reason to be worried that this bill will have a chilling effect on the right to freedom of speech.
The compelled use of pronouns, a potential consequence of Bill C-16 — and I think we heard just now the argument that Bill C-16 will not compel speech but that it is okay if it does — that is what I heard — because benign words can do damage and misgendering is harassment. Compelling pronouns may seem harmless to some, but for those of us who cherish the supreme ideal of free speech, the slippery slope is obvious and alarming.
Our committee heard testimony to this effect from a number of academics, including Professor Bruce Pardy from the Queen’s University law school who said:
Any speech that is compelled is, by definition, unreasonable. If you had a statute, for example, that compelled people to say ‘hello’ and ‘please’ and ‘thank you,’ 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.
Because I wholeheartedly agree with this sentiment, I support Senator Plett’s amendment that makes it clear that the purpose of this legislation is not to compel speech but, rather, to protect individuals against workplace and other forms of discrimination.
The text reads:
4.1 For greater certainty, nothing in this Act requires the use of a particular word or expression that corresponds to the gender identity or expression of any person.”.
This simple sentence makes clear Parliament’s intent: This bill is designed to combat prejudice and discrimination, not to infringe on the freedom of speech.
Colleagues, most Canadians are not concerned with this bill’s intent. Rather, many Canadians have legitimate concerns about the effects Bill C-16 will have on their right to speak freely. We have the opportunity to alleviate those concerns without hindering the intent of this legislation.
If we pass the amendment before us today, we will ensure a clear-minded focus on what this debate should be about: protecting transgender and gender non-conforming persons.
I applaud Senator Plett for bringing this amendment forward and urge all honourable senators to support me in supporting it.
Hon. Frances Lankin: Will you take a question, Senator Frum?
Senator Frum: Yes.
Senator Lankin: Thank you very much. I am in agreement with you with respect to support for the bill and the intolerance we should show to discrimination against the transgender community.
I am having a hard time following the argument — I wanted to ask Senator Plett, but time went on — that this is compelled speech somehow.
I have listened to what others have said. You just made a comment that the senator who said continuous misgendering is harassment. That is not compelled speech. It restricts you from misgendering someone.
Everyone has said that if you are uncomfortable using pronouns that are not within our historical speech, you can always call a person by their first time. You can even always say, “Hey, you.”
There is nothing that compels you to use a particular word. There is a restriction in a context, as Senator McPhedran said, from being hurtful, harmful, harassment in workplaces and situations such as that.
Please tell me how this actually compels, as Senator Plett and you are concerned about. I understand your concern, but how does this legislation actually do that?
Senator Frum: We are muddying the intent in this debate. We are opening up the possibility that it is all about being labelled by the right pronoun, that the legislation is there to protect people against potential misgendering.
What we know is that while heretofore most of us are accustomed to the idea that there are two genders, what we now know, in modern parlance, is that is there could be up to 72 different forms of gender.
When you say people will not be compelled to use either “he” or “she,” but an individual may decide that in order to be properly recognized and properly gendered, they do need to be called some word and we can’t even imagine what that word is right now. And if that individual is not called by that label or by that term, that can be deemed a form of harassment. I think the possibility is there.
It is a real possibility and I think I have also heard in the debates on this floor that that is, in fact, what this chamber would like to see happen.
The Hon. the Speaker: Senator Lankin, are you going to ask a question or enter the debate?
Senator Lankin: I have a question.
You haven’t said how the legislation compels the use of speech.
If I were to call you “him” and you objected to that, and I did it consistently and you found that very objectionable or if I, for some reason, didn’t want to use the word “she” or “her,” which is how you wanted to be referred to, I could call you “senator” or “Linda.” I have options. I am not compelled to use the term that you want me to.
By the way, when I was a minister of the Crown, MPP Ruprecht consistently asked me questions and called me Mr. Minister. It was very bizarre. I didn’t take an affront because of the MPP that it was coming from and how he used speech, but if I found that objectionable, I suppose he could have used said “minister of health” and not be compelled to call me Madam Minister.
Senator Frum: I think we are thinking about this largely in the context of academia. It is easy to imagine a situation where a professor stands at the fronts of the room and says, “Can everyone please take his or her seat,” or, “Can everyone please pick up his or her or their” — and what if that doesn’t cover me?
But now you’re inhibiting my speech. I’m in the habit of saying pick up “his” or “her” or “their” and then I am told I am harassing an individual in the room. This is a real fear that people in the academic environment have, and there is a real reason they fear it.
Senator Plett: Senator Frum, Senator Lankin asked you a question about how this compels speech. The government has said that the Canadian Human Rights Commission will provide similar guidance on the meaning of terms in the Canadian Human Rights Act. They are referring, of course, to the Ontario Human Rights Code.
The Ontario Human Rights Commission has produced a policy on gender identity and gender expression and what constitutes harassment and discrimination, including refusing to refer to a person — it’s not free speech here, compelling — by their self-identified name and proper personal pronoun.
Would you call that compelling speech?
Senator Frum: Thank you for the question. Yes, I would.
Senator Plett: Thank you.
Hon. Marc Gold: I’d like to begin by thanking Senator Plett for raising this issue. I know words like that are often greeted with some skepticism, as in “Thank you for your question” after you have been skewered by somebody.
But I mean it sincerely. I started my academic career as a law professor writing about equality. I wrote about the Canadian Bill of Rights, because I am old, and later the Charter. But I was always mindful of the importance of other rights and freedoms and, in particular, I attach enormous importance to freedom of thought, freedom of speech, opinion and expression. These are fundamental — I would say foundational — to our constitutional democracy. I take very seriously the argument that Bill C-16 ” might infringe freedom of speech by forcing someone to say something that they object to, the issue of compelled speech. It is a serious question and one that we should not ignore.
Let me confess that I have struggled with this issue, and I know I am not the only one. We have all struggled with this issue.
I do thank you sincerely for raising this. It has forced me to think about it, and think about it long and hard. I have thought about it and I can’t support the amendment, and I want to tell you why.
I don’t agree with your characterization that this is actually an issue of forced speech. And, furthermore, I can’t support the amendment because, in my judgment, it’s not desirable from a human rights perspective and frankly, it’s not necessary in order to protect freedom of expression as we constitutionally understand it and as it is constitutionally protected.
It’s not desirable from a human rights perspective because there are certain circumstances in how we speak to each other and, yes, even the pronouns we may use that may well amount to harassment and, therefore, a discriminatory practice under the Canadian Human Rights Act, but would constitute, in my opinion, a reasonable limit on our freedom of expression.
Second, the amendment is not necessary because our current human rights processes and our court system are both well designed to strike the appropriate balance between competing constitutional rights and freedoms and thereby ensuring that our constitutional right to speak freely will not be unjustifiably compromised by the provisions of a bill like Bill C-16.
Honourable senators, let’s begin by placing this issue in its full context. First, it’s clear to all of us that the issue of pronoun use is not at the core of what Bill C-16 is all about. The focus of the bill and therefore most of the complaints — if not all — that will be brought under it will be in relation to alleged discrimination against trans and non-binary persons in relation to denials of employment, housing, services and so on. Truth be told, the pronouns that we may use with one another lie somewhat at the margins of this bill.
Second, as several senators have mentioned during this debate, nobody is obligated to use a specific pronoun. One can always choose to address others by their last name.
Simply put, this really isn’t a case of forced speech.
Third, we must be very clear about what is really an issue in this case and what isn’t. Bill C-16 will not prevent an individual, such as Professor Petersen, from expressing his objection to using gender-neutral pronouns.
Here is what Justice Rothstein of the Supreme Court said about hate speech in the 2013 Whatcott decision:
Hate speech legislation is not aimed at discouraging repugnant or offensive ideas. It does not, for example, prohibit expression which debates the merits of reducing the rights of vulnerable groups in society. It only restricts the use of expression exposing them to hatred as a part of that debate.
Professor Peterson, as an intellectual, remains free to criticize the social science underlying the notion that gender is more fluid than we all grew up believing or understanding. He is free to criticize this bill and the use of pronouns. That is not at issue here. I think we need to be clear — and happily so — that is not at issue here.
Let’s concede that everything I have just said, and much of what has been said in this debate, does not fully address the concerns of those who say that the bill would still nonetheless expose someone who failed to use the pronoun of choice to liability under the under the Canadian Human Rights Act.
Let’s concede further — and it has been noted here today — that there are some circumstances that might amount to harassment and, therefore, a discriminatory practice under the act. The question remains when? When are those circumstances? When would the failure to use the appropriate pronoun amount to discrimination under the act?
Much has been made of the policy statements issued by the Ontario Human Rights Commission and this is understandable. Let’s be clear: These are statements of policy; they are not statements of law. They don’t bind the Ontario Human Rights Commission. They certainly don’t bind the Canadian Human Rights Commission, but they are important. They signal an orientation. They are worthy of serious consideration, so I take them seriously, and we should.
We have heard already what the Ontario Human Rights Commission said about its policy on gender-neutral pronouns in its April 14, 2014 release, and I won’t repeat it. Senator Plett stated it on two occasions, and that is correct. But let me add what it also said about what harassment is, because the Human Rights Act of Ontario and the Canadian Human Rights Act are about harassment as a discriminatory practice. So what do we mean by harassment? The Ontario Human Rights Commission defined harassment as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”
During a committee meeting examining the bill, I asked the following question of a witness:
. . . If I turn to you and say, look, please call me “they” because that’s how I see myself now, because it’s hurtful for you to call me “sir” or “miss” or whatever it would be, but you refuse. I say, “Okay. If you’re uncomfortable with that because you’re not comfortable with that, call me Marc.” And you refuse. Were you to continue to call me by the name that I’m telling you is hurtful to me —
it isn’t who I am —
is that not something that the law can properly address?
— dare I say should properly address?
Honourable senators, is that example so different than continuing to call an African-Canadian man “boy,” knowing that the intent is to hurt and diminish him? Is it so different from continuing to call a female employee “sweetheart” after she tells you, as if you didn’t know already, that she finds this demeaning?
In my opinion, the repeated and intentional misgendering of a person — that is, using a term for them that they have told you does not reflect who they are and is hurtful to them, especially in an environment like the workplace or some other public environment — would likely amount to harassment and, therefore, constitute an offence under the act; and, in my judgment, it would be considered a reasonable limit on our freedom to say whatever we want to say, just as are the laws of libel and slander.
You notice I didn’t mention hate speech, because I have trouble with the hate speech provisions. A lot of my friends in my community don’t like when I say that. I have called myself a free speech guy — I got a nasty email after I said that at a committee meeting, but I stand by it. They have been held to be constitutional, but that doesn’t mean they’re great laws. We are entitled to differences of opinion.
But the laws of libel and slander . . . We are not allowed to say things that cause damage to others. It is as simple as that. It all depends on the context on the intent.
Let us agree that the way we speak in some contexts and circumstances can amount to harassment and, therefore, discrimination, even if it falls short of hate speech under the Criminal Code. Let’s further agree that this raises a free speech issue but one that is not — and, again, I must insist — one of forced speech. But it is a free speech issue nonetheless.
Honourable senators, if this is a relatively clear case, others will be more difficult. Let’s acknowledge that as well.
Now, what if the person had no ill intentions, but simply had a personal problem using the desired pronoun?
Some words don’t trip off the tongue, that’s for sure.
What if it wasn’t a behaviour pattern, but rather an isolated case?
Additionally, what about complaints filed in bad faith before the commissions, because unfortunately that does happen, with the sole purpose of getting back at the alleged aggressor?
What about those cases? Should we not be concerned about the repercussions those cases would have on freedom of expression?
This brings me to the second reason I oppose this amendment. It is simply not necessary to protect our rights to freedom of expression.
Honourable senators, we have to have some confidence in our administrative and legal processes, and in our legal system itself. Let’s remember that Bill C-16 didn’t invent out of whole cloth a new process for human rights inquiries for human rights adjudication. There is a system of law that is well established with rules and processes that are well-known.
The Human Rights Commission has experience assessing claims and selecting the complaints that warrant consideration and those that should be rejected. Furthermore, freedom of expression is just one of many rights and freedoms protected in legislation. These co-existing rights sometimes come into conflict with one another and require arbitration. In that respect, the commission and the tribunals have accumulated plenty of experience dealing with these conflicting situations, whether in relation to equality, religious freedom or other seemingly contradictory situations.
Third, and most important, the commission and the tribunals are bound by the Canadian Charter of Rights and Freedoms, and the protection for freedom of expression that it guarantees. This is a crucial point, and one that is often overlooked, frankly, in discussions of this nature: We tend to focus on the role of the courts in protecting our rights and freedoms, and striking the appropriate balance between competing rights — and understandably so.
But ensuring compliance with the Constitution and the Charter is not only the responsibility of the courts. We know that here in this chamber, because it’s our responsibility, too. Both the Human Rights Commission and the Human Rights Tribunal — federal and provincial — are required by the Constitution and by law to ensure that their actions and their acts are consistent with all rights and freedoms, including the freedom of expression guaranteed under the Canadian Charter. We have every right to expect that the commission will take this into account when it’s deciding whether or not to proceed with a complaint. We have every right to expect that a tribunal will take this into consideration when it decides a case before it.
At every stage of the human rights process, the question of the constitutional right to freedom of expression will be considered and has to be considered in assessing whether there has been discrimination under the act.
Of course, a decision of a tribunal may be appealed to the courts and, ultimately, to the Supreme Court of Canada.
This is and has long been our process under the Canadian Human Rights Act, and Bill C-16 doesn’t change that one bit. Of course, there will be hard cases, and of course things are not entirely always clear. Why should we be surprised? The law, like life, is complicated and messy. But we have a legal system, and a sophisticated one, that is hardwired to deal with these hard cases where rights may conflict. When hard cases arise, the courts will be there to sort them out.
Let’s return to the main objectives and the likely impacts of Bill C-16. It’s not on the free-speech rights of persons who refuse to respect people’s desire to be addressed as who they are.
The Hon. the Speaker: Senator Gold, I apologize for interrupting you, but your time has expired. Are you asking for more time?
Senator Gold: May I have five more minutes?
The Hon. the Speaker: Is leave granted, honourable senators?
Hon. Senators: Agreed.
Senator Gold: Thank you. The objective is to afford protection from the persistent and cruel discrimination that the trans community experiences on a regular basis. We have the tools to address the hard free-speech cases that arise. Let’s finally give ourselves the tools to help protect some of the most vulnerable members of our society.
Honourable senators, this amendment is not needed nor is it desirable. I’m going to vote against it. I encourage you to do the same.
Senator Plett: Would you take one question, Senator Gold?
Senator Gold: Of course.
Senator Plett: You thanked me for bringing this forward, and I thank you for making my argument for the last while. Clearly with the hand you received, everybody agrees with it.
You were speaking about freedom of speech, and I support freedom of speech. You were not talking about compelled speech; I was. You said it doesn’t compel speech; I say it does. Brenda Cossman, your former colleague, says it compels speech. The Ontario Human Rights Commission says it compels speech. If it doesn’t compel speech and if you believe in freedom of speech, what is the harm in simply saying “for greater certainty”? The minister said that, so what is the harm in saying that?
I’m not suggesting anything against the bill. I’m not changing the bill. “For greater certainty,” it does not do this. You say it doesn’t do that, so what is the harm in putting it “for greater certainty”?
Senator Gold: Thank you, Senator Plett, for your question. This is not a case of compelled speech, which I have tried to explain. I disagree with your characterization, and therefore, I do not think this amendment is necessary. Senator Mitchell and others have explained more eloquently than I can why it’s not necessary and why indeed it would be deleterious, and I’m content with that answer.
As a practical matter, I think the time has come, considering there is no need for this amendment, to pass this bill as it stands, and finally, after so many years and so many attempts, to put this behind us and allow us to move forward.
Hon. Joan Fraser: Would Senator Gold take another question?
Senator Gold: Indeed.
Senator Fraser: I was not part of the study of this bill, but I wonder if you could explain to me whether, if we adopt Senator Plett’s amendment, which basically refers only to gender identity or expression — in other words, if we’re inserting a particular protection in connection with gender identity and expression but not for all the other categories against which discrimination is prohibited, are we not setting up an imbalance in the law, which is generally considered to be undesirable?
Senator Gold: Thank you for your question, Senator Fraser. I think that is correct. It would certainly give rise to an argument that this in and of itself offends the Charter. How that would work its way through the system, I don’t know. It seems to me it would be an unfortunate waste of time and resources and introduce far greater uncertainty into the law than is necessary.
Hon. Yonah Martin (Deputy Leader of the Opposition): I have one question before I take adjournment in the name of Senator Tannas.
The Hon. the Speaker: Senator Gold has a minute left in his time, so your question will have to be quick.
Senator Martin: I’ll say something on debate instead, then, because of the time. So I’ll take adjournment in the name of Senator Tannas, who wishes to speak to this amendment.
Some Hon. Senators: Question!
The Hon. the Speaker: It was moved by the Honourable Senator Martin, seconded by the Honourable Senator Neufeld, that further debate be adjourned until the next sitting of the Senate.
Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Hon. the Speaker: All those in favour of the motion will please say “yea.”
Some Hon. Senators: Yea.
The Hon. the Speaker: All those opposed to the motion will please say “nay.”
Some Hon. Senators: Nay.
The Hon. the Speaker: In my opinion, the “nays” have it.
And two honourable senators having risen:
The Hon. the Speaker: I see two senators rising. Do we have an agreement for the time?
Senator Plett: One hour.
The Hon. the Speaker: One-hour bell. The vote will take place at 5:04. Call in the senators.
Motion agreed to and debate adjourned on the following division:
THE HONOURABLE SENATORS
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