This article on ‘Standing up for Freedom of Speech in Canada: All You Need to Know‘ is written by an intern at Legal Upanishad.
Abtract
Over millennia, human beings have evolved into a rights and duties based society where the freedom to discuss ideas and share thoughts to came to become a bedrock principle. The right to freedom of speech in Canada functions as a crucial tool for a country to innovate conducts democratic function, and developing culture. When the leaders of 173 countries came together to enter into an international covenant, it became internationally recognized that everyone shall have the right to hold opinions without interference.[1] While being reckless with your speech can have consequences as seen in the 2020 US presidential elections, the limitations around speech should be minimized as it could lead to harsh crackdowns such as banning discussion of contentious issues.
Introduction
In Canada Freedom of expression is protected in section 2(b)[2], making it among the central provisions in the Canadian charter of rights and freedoms. This also means it has been through the courts and the 2010 case R. v. MacKinnon[3] the Canadian Apex Court at Otario, protected the invaluable right of the citizen to criticize the government. While this is essential, hate speech is an exception and in the criminal code under Section 319[4] a statement promoting hatred against a person is an offence punishable by up to 2 years in prison. The glaring issue is that the power of defining hate speech is left with the government who are not keen on taking criticism.
A federal law that revealed itself to be anti freedom of speech in Canada brought clinical psychologist and Professor Jordan Peterson into the public stage. The bill was brought to the table considering the Tobys Act (Right to be Free from Discrimination and Harassment Because of Gender Identity or Gender Expression)2012[5]and the supreme court decision which upheld imposing limitation on freedom of speech in Canada through Section 319(2)willful promotion of hatred in Rv Keegstra[6] .The Bill C -16[7] passed on 19th June 2017, and implemented gender expression and identity into:
1. The Canadian Human Rights Act including protections for people with different Gender identity or Expression which can include transgender people.
2. The Criminal Code Section against hate propaganda would increase in scope as Gender Identity or Expression is a now protected class under advocating genocide or public incitement of hatred.
3. The Sentencing for hate crimes can constitute an aggravated offence if there is prejudice or hate.
Analysis of Freedom of Speech in Canada
The federal authorities relied on OHRC (Ontario Human Rights Commission) guidelines from 2004[8] for executing the amendment. Providing transitioning people the courtesy of affirming their gender by mandating usage their preferred pronouns, is part of the guidelines. The effect being, the government punishes anyone with the opinion men and women are inherently different or argue that gender and sex are not separate. The differences in the biology of men and women due to hormones is scientific truth, however the psychological differences due to social roles is a field still under exploration. Over In the Criminal Code Section 319(3) (a)[9] protects against conviction if the statements made were true. Implementing the guidelines would mean biologically male person by who identifies as a female would be referred to by female pronouns and given access to female spaces.
In his hearing before the senate on 17/5/2017, Peterson clarified that his main issue with the law was that it was prescribing speech
1) Which the government of Canada had never attempted before.
2) based on the guideline that espouse that gender is purely societal construct and gender categories are not fixed which ignores the fact that an overwhelming majority of population are gender conforming.
Incidentally in Scandinavian countries where gender differences were most equalized, career choices of men and women, become more and more stereotypical and polarized suggesting biological differences playing a factor[10].A transgender person had to be referred to by their choice gender pronouns, where gender is a product of socialization and completely disconnected from sex. The terms “man” or “woman” were used as social constructions rather than fixed biological categories.[11]Due to this logical disagreement he plans to not pay the fines imposed on him focusing incorrect pronouns. However willfully disobeying the courts orders would bring him in contempt of court and hence land him in jail.
The case of Robert Hoagland, a British Columbia native captured the public when he was confined to court for disagreeing with court ordered gender change procedures for his daughter. The man vehemently denied transitioning his child using testosterone. But instances of him referring to his daughter as “daughter” and using female pronouns were used as grounds for taking away his parental rights and freedom of speech in Canada.[12].The bill has resulted in forcing one group to respect or agree with things they don’t necessarily believe is true.
Non discrimination on the basis of gender identity means the right to be identified as your chosen gender. Not referring to a person by their self identified name and personal pronoun would constitute gender harassment[13]This is actionable through the human rights tribunals and courts and indeed have proved petersons fears correct. The Ontario Human Rights Tribunal (OHRT) decided the case of Browne v Sudbury Integrated Nickel Operations[14]in 2016.A man in defiance with his employers policy regarding keeping a beard said he was being discriminated on the basis of his gender expression. The Court held that he couldn’t use that ground of discrimination as he was not a gender non conforming person.
In a 2021 case in Vancouver, the British Columbia tribunal found pronoun usage to be a fundamental right[15]. A manager in question Mr Goebelle refused to use gender pronouns of a server and got served 30 thousand dollars in damages for repeated and incorrect use of pronouns. The context makes especially troublesome, as the small restaurant was struggling to stay open during the covid-pandemic. The hefty settlement came as a heavy blow to the restaurants hopes of staying open. The decision considered Client v. Spruce Hill Resort & Spa[16] which stated belonging to a group that has been disadvantaged, marginalized or stereotyped, creates a status of vulnerability and hence affords protection under the Human rights code Section 13[17] of the Canadian Human rights Code[18].
Conclusion
The C-16 bill captured the attention of free speech advocates across the world because of the attempt by the government to enforce the utterance of certain words. Right to debate controversial subject on online and public platforms have come under threat, in recent years due to legislations or hateful content policies by companies like twitter. Instances such as a Christian satire account being found to violate sensitivity guidelines for making comedic content criticizing twitters conduct policy point us to the sharp decline of the ideals of free speech online. We can draw such inferences from liberal western democracies like Canada including vague categories into the Hate Speech Laws, and creation of more protected identities, which would directly infringe upon the right of people to think and speak clearly. Jordans exposure of the Canadian government’s intention has drawn a parallel to the US constitution which clearly lays out the right to free speech. While transgender people represent a very vulnerable identity, legislation prohibiting discussion of an issue will not serve their needs and diminish scientific research and discussion regarding their condition. A liberal democracy must stick to liberal principles and Canada should maintain an open forum for even the most controversial ideas. The right to Freedom of speech in Canada is central because allow us to protect all other rights and these issues must be brought before courts. From here on forward, with developments such as Elon Musk’s purchase of twitter, the importance of free and open discussion on the internet and public forums has reentered the collective consciousness and will supplement our chances of a bright future for humanity.
[1] General Assembly resolution 2200A (XXI),Art 19,16/12/1966
[2] Constitution Act 1867-1982,Canadian Charter of Rights and Freedoms, §2
[3] R. v. MacKinnon, 2010 NSPC 31 (CanLII)
[4] Criminal Code§319 (R.S.C., 1985, c. C-46)
[5] Right to be Free from Discrimination and Harassment Because of Gender Identity or Gender Expression), 2012, S.O. 2012, c. 7 – Bill 33
[6] R v Keegstra, 1990 3 SCR 697
[7] BILL C-16 An Act to amend the Canadian Human Rights Act and the Criminal Code, May 17, 2016
[8] Policy on preventing discrimination based on gender identity and gender expression (January 31st 2014),Ontario Human Rights Commission.
[9] Criminal Code Section 319(3)(a)
[10] The Gender Scandal: Part One (Scandinavia) and Part Two (Canada) ,https://www.jordanbpeterson.com/political-correctness/the-gender-scandal-part-one-scandinavia-and-part-two-canada/
[11] Jordan B Peterson, ‘Canadian Gender-Neutral Pronoun Bill Is a Warning for Americans,’ The Hill (18 October 2016), online: Capitol Hill Publising <http://thehill.com/blogs/pundits-blog/civil-rights/301661-this-canadian-prof-defied-sjw-on-gender-pronouns-and-has-a>.
[12] Canadian Father Jailed for talking about Court ordered transgendering of his teenage daughter, https://thefederalist.com/2021/03/26/canadian-father-jailed-for-talking-about-court-ordered-transgendering-of-his-teenage-daughter/
[13] Bill C-16 – No, its Not about Criminalizing Pronoun Misuse — Mark S. Bonham Centre for Sexual Diversity Studies,http://sds.utoronto.ca/blog/bill-c-16-no-its-not-about-criminalizing-pronoun-misuse/
[14]Browne v. Sudbury Integrated Nickel Operations 2016 HRTO 62 (Hart)
[15] Jessie Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria, Michael J. Buono, Ryan Kingsberry, Brian Gobelle and Nova Melanson, 2021,BCHRT 1`37
[16] Client v. Spruce Hill Resort & Spa, 2021 BCHRT 104
[17] Canadian Human Rights Act (R.S.C., 1985, c. H-6)
[18]THE HUMAN RIGHTS CODE, RSBC 1996, c. 210