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 today’s proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.

Today, we continue our consideration of Bill C‑16, 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.

With us today for the first hour are Jordan B. Peterson, Professor, Psychology Department, University of Toronto; and from the D. Jared Brown Professional Corporation, D. Jared Brown, Lead Counsel.

Thank 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 I’d like to bring up is that it’s not obvious, when considering a matter of this sort, what level of analysis is appropriate. If you’re 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 interpreted.

When I 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 Ontario Human Rights Commission 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.

You may 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. That’s explicitly defined in the relevant policies. I think that’s appalling, first of all, because there hasn’t been a piece of legislation that requires Canadians to utter a particular form of address that has particular ideological implications before, and I think it’s a line we shouldn’t cross.

The definition of identity that’s enshrined in the surrounding policies is ill-defined, poorly thought through and also incorrect. It’s 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 – and I’m being technical about this – between the ages of two and four. It’s a fundamental human reality. It’s 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 I’m concerned.

I also think it’s 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 there’s 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 they’ve lost the battle completely on scientific grounds.

It’s 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 that’s simply not the case. It’s not the case scientifically. It’s not the case factually, and it’s 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.

I think 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 someone’s dress, which seems to me to be an entirely voluntary issue.

I think that the Ontario Human Rights Commission’s 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 pronouns.

The Chair: Please come to a conclusion.

Mr. Peterson: They have vicarious liability for that, whether or not they know it’s happening and whether or not the harassment was intended or unintended. So I’ll stop with that.

The Chair: Thank you. Mr. Brown.

D. Jared Brown, Lead Counsel, D. Jared Brown Professional Corporation:  I’m a litigator in Toronto. I act in all manner of commercial and employment disputes. I’m not an academic. I live with my clients in the land of legal reality and how the law actually works.

About 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.

In August of last year, I became aware of Dr. Jordan Peterson. He was discussing what he saw as a problematic law, poorly written. That’s when I observed the oddest thing happening; lawyers, academic lawyers, important people, began to say that he had the legal stuff wrong. “Nothing unusual about this bill.” They also said, “You don’t get to go to jail if you breach a Human Rights Tribunal order.” What was happening is they weren’t defending the law but downplaying its effects.

As a practising lawyer, any time a lawyer, and particularly an academic, says, “Look away; there’s nothing to see here,” 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.

But what about the freedom of expression issue? 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, 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.

How does 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.

Ontario’s 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 particular.

If the harasser didn’t know or didn’t intend to harass, it’s 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