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  • Good afternoon and welcome colleagues invited guests, members of the general public following today's proceedings of these standing Senate Committee on Legal and Constitutional Affairs.

  • Today we continue our consideration of bills, see 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 Jordan be Peterson, Professor, Psychology Department, University of Toronto and from the Degenerate Brown Professional Corporation de Jered Brown, Lead counsel.

  • Thank you, gentlemen, for being here.

  • You both have up to five minutes for opening statements.

  • And Mr Peterson, I I believe you're gonna lead up, Professor.

  • So 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 the phrases or the sentences or the complete document, or you can look at the broader context within which it is likely to be interpreted.

  • And when I first encountered Bill see 16 and its surrounding policies It seemed to me that the appropriate level of analysis was to look at the context of interpretations surrounding the bill, which is what I did when I went and scoured on Terry 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 see, 16 would be interpreted in within the president's policy president's already established by the on terror Human Rights Commission.

  • So when I looked on the website, I thought while there's broader issues at stake here and I tried to outline some of those broader issues in the initial, you may or may not know, I made some videos criticizing Bill See 16 and it's and a number of its of the policies that surrounding it.

  • And I think the most egregious elements of the policies are that it requires compelled speech.

  • The, uh, the on terror Human Rights Commission explicitly states that refusing to refer to a person by their self identified name and proper personal pronoun, which is the pronounce that I was objecting to, uh, can be, can be interpreted as harassment, and so that's that's explicitly defined in the relevant policies.

  • So I think that's appalling.

  • First of all, because there hasn't been a piece of legislation that requires Canadians to utter ah, particular form of address that has particular ideological implications before.

  • And I think that it's a line that we shouldn't cross.

  • Um, then I think that the the definition of identity that's enshrined in the surrounding policies is ill defined and 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 that 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.

  • And so the idea that identity is something that you defined purely subjectively is on idea without status.

  • As far as I'm concerned, I also think it's unbelievably dangerous for us to move towards representing a social constructionists view of identity in our legal system, the social constructionists view insists that human identity is nothing but a consequence of socialization, which is which.

  • Andi, There's an inordinate amount of scientific evidence suggesting that that happens to not be the case.

  • And so the reason that this is being in Stan she aided in tow law is because the people who are promoting that sort of perspective, or at least in part because the people who are promoting that sort of perspective know perfectly well that they 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 very 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 talk to people in high schools, elementary schools and junior high schools, which it is, and it is being taught.

  • I included this, uh, cartoon character that I find particularly reprehensible, aimed obviously at it, as it is at Children somewhere around the age of seven, that contains within it the implicit the implicit claims as a consequence of its graphic motive expression that thes elements of identity, our first economical and second independent, and 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 on Terry Human Rights Commission, it deals with things as mundane as how behavior and outward appearance such a dress, hair, makeup, body, language and voice, which now, as far as I can tell, open people to charges of hate crime under Bill See 16 if they dare to criticize the manner of someone's dress, which seems to me to be an entirely voluntary issue.

  • So I think that the on Terry human right commissions 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 preferred pronouns.

  • They have vicariously ability for that, whether or not they know it's happening, whether or not the harassment was and whether or not the harassment was intended or unintended.

  • Eso all stop with that.

  • Thank you, Mr Brown.

  • 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, illegal 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 Pearson.

  • 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.

  • And they also said, You don't get to go to jail if you breach of human rights tribunal order.

  • What was happening is they weren't defending the law.

  • But downplaying its effects now is a practicing lawyer.

  • Any time a lawyer and particularly in academic says, look away, there's nothing to see here.

  • It gets my intent a way up.

  • So I did some research which could be found in the brief that I filed in advance of today.

  • It sets out the past, the prison, on this I knew is 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 to be.

  • The charter sets out that everybody has the fundamental freedoms of thought, belief, opinion and expression, and we all know that the government is 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 is 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 it's totalitarian and as such alien to the tradition of free nations like Canada, how to see 16 get us to compelled speech, the minister of justice is summarized will see 16 as the enactment amends the Canadian Human Rights Act to a gender identity and gender expression to the list of prohibited grounds of discrimination.

  • The Department of Justice website used to say that we must look to the interior Human Rights Commission policies for definitions on these terms, materials, policies on gender identity and gender expression, or set out my brief.

  • They state that gender based harassment can evolve, refusing to refer to a person by their self identified name and proper personal pronoun.

  • Refusing to refer to a trans person by the 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 anyone gender neutral pronoun in particular.

  • If the harasser didn't know or didn't intend to rest, it's still harassment.

  • Now, why is this important?

  • Well, in Ontario, the Human Rights Commission is a policy development creature of the legislature.

  • It creates the policies which interpret the code, but what is most important, the tribunal must follow these policies is bound by them, so the commission creates the law on pronounce 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 followers, the Department of Justice had said, so a similar guideline will be developed.

  • Rise with the interior 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 pronounced requires one to use words that are not their own, which imply a belief in orde agreement with a certain theory on gender.

  • If you try to disavow that theory can be brought before the Human Rights Commission for Miss Jen during, or potentially find yourself guilty of a hate crime to sum up on the subject agenda, we're gonna have government mandated speech now in appointing on the constitutionality of proposed bill, the Department of Justice said on its website.

  • Look, there's a variation of this bill that already exist in most of the provinces.

  • I don't believe that's a robust argument in favor of constitutionality.

  • I would refer you to the comments of the now chief Justice McLaughlin of the Supreme Court and the decision Taylor.

  • It's in my brief the chilling effect of leaving overbroad 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 determine conduct than can legitimately be targeted.

  • As a lawyer on the ground, I worry about poorly drafted, a poorly drafted law and its impact on my clients.

  • As a Canadian.

  • I worry about Parliament tacitly authorizing compelled speech.

  • The brief I provided to the committee contains a comprehensive legal opinion that I published back in December on C 16.

  • There's a table that shows how the federal human rights regime mirrors the Ontario system in terms of enforcement, policies and guided have to wrap up, sir.

  • And finally, it includes the case law that underpins the opinion.

  • Thank you.

  • Okay.

  • Thank you both.

  • We'll begin the questions beginning with the deputy chair.

  • Senator Baker.

  • Thank you.

  • Thank you, Mr Chairman.

  • Thank you to be witnesses for their presentation as the witnesses.

  • No, the nine provinces in Canada.

  • I have the provisions in their laws, including Ontario.

  • And also the words expression, as I recall, appears in four or five provinces.

  • Um so what you are arguing is against what we already have in law.

  • You're reference to the criminality to the sections of the criminal code.

  • At our last meeting, Senators ueo correctly pointed out that section's 3 18 3 19 starts off by Genesis under the heading Genocide.

  • The next heading is public incitement likely to lead to a breach of the peace.

  • And you know what a breach of the peace is, Mr Brown.

  • Willful promotion of hatred, These things air.

  • And then there are defense is listed.

  • As you know, in that criminal code provision, there's several defense, if you honestly believe in what you said is if if you you know the defense's air extensive in the criminal code, they've worked well for Canada.

  • So what do you have to say about the facts of what's presently in the criminal code and your reflection that somehow all right, the genocide heading the heading on public incitement on willful promotion of hatred somehow that these provisions should not be included under those headings?

  • I think I have to be clear.

  • My presentation relates to the amendments of the Human Rights Code, not the criminal code.

  • And that is in fact, how one like Dr Peterson may in fact find themselves on the wrong side of jail.

  • And so, if you if you've reviewed the publication in the opinion, I say that, uh, simply by breaching the Terri proposed amendment to the to the Human Rights Act, Um and particularly with somebody who is deliberately doing so.

  • For instance, somebody was saying, I'm not going to use those words, that person, if they are dragged before the tribunal, the Ontario Tribute or the Federal Tribunal.

  • I've indicated to you already that the Department of Justice is said they're going to pass the same guideline on pro now.

  • And so what I'm suggesting to you is that if somebody says, I'm not going to use those words are brought before the tribunal.

  • The federal tribunal and the tribunal then delivers a kn order for a payment of a fine and, alternatively, a non monetary remedy.

  • I'II cease and desist order, uh, in order to do something to compel them to do something, and that person who's brought before the tribunal says I'm not doing that, they will find themselves in contempt of court and prison is the likely outcome of that process until they purged the contempt.

  • That's what I'm suggesting.

  • I'm not suggesting to you that that the amendments to the criminal Code Well, I'm not advocating genocide, I guess.

  • Let's just say that.

  • And my my presentation here is restricted to what I see is the pronoun policy issue in the compelled speech issue.

  • So it covers the provincial legislation that you did strongly disagree with.

  • That we've had in place in the provinces for decades, in some cases, is the policies that were enacted after it left the Legislature and which will be enacted after this bill leaves this the this committee the fact that once I made the video stating that I wouldn't use the Z and Tzar 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 believe that not only was I violating the university standards of conduct, but that I was also violating the relevant provisions of the Ontario Human Rights Commission.

  • Therefore, as far as I could tell, vindicating the statement that I made when I made the video to begin with, which was that the act of making the video itself was probably already illegal, and they didn't do that lightly on the provincial.

  • Yes, Senator.

  • Put, uh, thank you, chair.

  • And, uh, thank you, gentlemen, both of you for being here, uh, have 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, uh, deliberations of this bill.

  • And during deliberations of this bill, we keep hearing the term respect thrown around.

  • Respect is indeed critical in debates off 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.

  • Dr.

  • Baker, you are Senator Baker has already referred to comments as genocide.

  • I don't think anybody here is promoting genocide.

  • However, Dr Peterson, can you comment on the notion of respect where some of your critics say, Why can you not just respect your students?

  • Just use the gender neutral pronouns.

  • How do you respond to that?

  • Well, first of all, I'd have to be convinced that doing so would do more good than harm.

  • And I don't believe that.

  • And I think I'm actually in a reasonable position to to justify my claim.

  • I think that the danger that's intrinsic to the law far outweighs whatever potential benefit it might produce, especially given that there's no hard evidence whatsoever for any benefit.

  • I would also like to point out that the people who are promoting this legislation claim to be acting on the behalf behalf saying of the transgender community.

  • But they weren't not elected.

  • Norah pointed to act as such representatives, and they're doing it on their own.

  • Say so I've received many letters at least 30 now from transgendered individuals indicating that the they're 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, which is, and the less visible is what they had preferred with regards to respect is that you don't 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 that you earn as a consequence of reciprocal interactions with that are dependent on something like reputation, which is also a consequence of repeated interactions.

  • And so the notion that addressing someone by their self defined self identity is necessarily an indication of basic human respect for them, I think, is this entirely spurious argument, especially given that there's no evidence that moving the language in a compelled manner in this direction is going to have any beneficial effect.

  • We're 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 that's rarely the case.

  • So, Dr Brown, uh, you've talked about non monetary orders that could include sanctions like orders to undertake sensitivity and anti bias training.

  • I would like either one or both of you to comment on whether you could explain why an individual may have a strong objection to undertaking such a training.

  • And Mr Brown, could you let the committee know how serious the sanction could be?

  • And of course, you already did on that.

  • If you refuse to undertake such an order on specifically at the federal level.

  • But what would Why would people have an objection to taking a train?

  • I think I'm gonna let Dr Peterson answer why he or someone like him might have an objection to undertaking a type of training.

  • And then I'll deal obviously.

  • But once again with the severity of that decision, if it gets before the tribunal, well, I have a profound objection to to undergoing such training.

  • In fact, I would flatly refuse under all conditions to undergo it.

  • And the reason There's multiple reasons for that.

  • The first reason is that the science surrounding the so called charge of implicit bias that's associated with perception is by no means settled in 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 become has far transcended its scientific validity and reliability.

  • It's nowhere near valid or reliable enough to be used in the manner that it's been using, and even the more pro I 80 researchers who developed the test have admitted to that publicly, even though they haven't stressed nearly to the degree they showed up.

  • So first of all, the sciences is not settled and is being used absolutely inappropriately.

  • And I can say that is a clinician, because I know the Qur'an is a cycle nutrition.

  • I know the criteria for using a test for six, essentially diagnostic purposes and the eye.

  • It doesn't even come close to what's necessary, then the next issue is.

  • While where's the evidence that that anti unconscious bias training works?

  • There's no evidence, and what little evidence there is suggests that 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.

  • You see their perceptions not even their thoughts but their perceptions themselves altered by collective fiat.

  • It's an unbelievably where sir way have a vory engaged committee.

  • Concise questions and concise response is with the helpful Senator Pratt.

  • Thank you for being here.

  • I want to quote a brief.

  • A document from the entire Human Rights Commission says some people may not know how to determine what pronoun to use.

  • Others may feel uncomfortable using gender neutral pronouns generally went in doubt.

  • Ask a person how they wish to be addressed used?

  • A.

  • If you don't know which pronoun is preferred, simply referring to their person by their chosen name is always a respectful approach, so you can use the pronoun you can choose.

  • You can use their chosen name.

  • So if someone chooses to change his name from Paul to Peter, surely you would use Peter because it's a matter of simple politeness and respect.

  • If the same person person chooses to cheat to change your name from Paul to Paula, I won't use you use that name Polo simply as a matter of respect.

  • What's the difference here?

  • Well, I guess the issue and speak above the legal issue there is that you're now introducing the full force of the law behind the requirement to use.

  • And I'm dealing obviously with respect to the pronoun issue in terms of not addressing somebody by there by their legally registered name.

  • For instance, Um, I don't think that's where we're running into trouble here.

  • I think the issue becomes that if you don't address somebody by the pronoun that they self identified by as I've read out to you the fact that the full force of the law will be behind that person, that that's what I I'm finding his truck troubling in the legislation.

  • But the Interior Human Rights Commission gives people the alternative not to use, pronounce and use the person's chosen name, which