Bruce Pardy: B.C. courts asking for ‘correct pronouns’ is state-mandated identity politics

Bruce Pardy: B.C. courts asking for ‘correct pronouns’ is state-mandated identity politics

Author of the article:Bruce Pardy, Special to National PostPublishing date:Feb 09, 2021  •  2 hours ago  •  4 minute read

On December 16, the B.C. Supreme Court issued a practice direction that directs parties and counsel to provide their “correct pronouns” to be used in the proceeding. Photo by Arlen Redekop /PNG
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When courts issue practice directions, usually only litigation lawyers pay attention. No one else needs to know when counsel should wear gowns or how commissioners should be identified on affidavits. But recently, the British Columbia Supreme Court issued a direction like no other. Practice Direction 59, released on December 16, advises parties and their lawyers, when introducing themselves in court, to provide their “correct pronouns” to be used in the proceeding. People look to courts to protect their fundamental freedoms, but in B.C., the courts themselves now encroach upon freedom of speech by expecting litigants to use pronouns that their opponents prescribe.

The previous month, a judge of the Court gave a preview of the implications. The Court was hearing the case of a 17-year-old who wanted to transition from female to male. The father and provincial authorities supported a plan to have an operation to remove both of the teen’s breasts, but the mother had brought an action trying to prevent it. The mother regarded the teen as a girl, and it was the transition to male that was the very issue before the court. Yet the judge challenged the right of the mother and the mother’s counsel to refer to the teen as “her”. According to the transcript, the judge said, “there has been a request that counsel refer to (the youth) as he or him … are you refusing to do that?” Translation: You may be arguing that your client’s daughter should remain a girl, but please acknowledge that he is a boy.

The practice direction, along with an almost identical notice applicable to B.C. provincial courts, was the product of consultation with the Sexual Orientation and Gender Identity Community (SOGIC) of the Canadian Bar Association (B.C. chapter). One of its purposes, according to announcements, is to improve experiences within the legal system for gender diverse parties and lawyers. The direction does not merely clarify that parties and their counsel may advise the court of their pronouns — litigants were free to do that before the direction was issued — but that they may require other parties to comply. By making declared pronouns “correct”, the direction makes other pronouns, by default, incorrect.

Under the direction, correct pronouns are “to be used” in the courtroom. Even identifying your own pronouns is compulsory. Any parties or lawyers who decline to do so will be prompted by a court clerk. While practice directions do not constitute the law in the same sense as statutory enactments and regulations, they do reflect the Court’s expectations on practice and process. Besides, the last thing litigants wish to do is irritate their judge. For practical purposes, the practice direction is the law inside the courtrooms of British Columbia.

People are apt to believe that the law will protect them from the irrationality of mobs. They may think that courts are in the business of assessing evidence and applying laws to facts, and that they will be neutral in every dispute, insulated from the influence of politics. Instead, B.C. courts are insisting that litigants say things they may not believe. They validate subjective identities of parties by legitimizing the proposition that everyone must declare their own pronoun that other people must use.

When Jordan Peterson objected to the proposal to add “gender identity or expression” to the Canadian Human Rights Act in 2017 on the grounds that people could be required to use prescribed pronouns, he was ridiculed for scaremongering. Only a handful of lawyers agreed with him, or at least few said so publicly. We were derisively told that this and similar provisions in provincial human rights codes would have no effect upon free speech, notwithstanding the advice of the Ontario Human Rights Commission that “refusing to refer to a trans person by … a personal pronoun that matches their gender identity … will likely be discrimination” in employment, accommodation, and education. Now prescribed pronouns have become compulsory in British Columbia courts too.

Proponents of the practice direction argue that using a person’s personal pronoun is merely to treat that person with respect, and that doing so should be regarded as part of a lawyer’s professional responsibility to be civil in the courtroom. However, when courts enforce prescribed pronouns, they are not merely requiring civility but taking sides in a legal, political, and philosophical dispute. To compel pronouns is to insist that people can own and control how others regard them, and to force them to reflect a particular view of reality.

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The agenda is to force social change by making dissent illegitimate. Last week, when Canadian Lawyer Magazine published an opinion piece by B.C. lawyer Shahdin Farsai critical of the direction, an enraged mob of social justice lawyers descended, threatening over social media to boycott the magazine and demanding retraction. The editors obliged, removing the article and pleading that it “did not reflect the views” of the magazine, as though that has ever been the criterion for publishing op-eds. Such is the present state of open debate on these issues within B.C.’s legal community.

Free people make their own choices. Women are at liberty to have their breasts removed and identify themselves as men if that is what they want. But true freedom is universal and reciprocal, and other people are not bound to go along. They may express their reactions in their own words and refer to others as “him” or “her” as they see fit. No one should be obligated to affirm someone else’s self-image.

Reciprocal freedom is not now what we have. Today’s “human rights” put words in the mouths of some for the benefit of others. The Supreme Court’s practice direction represents state-mandated identity politics on the road to perdition. Social justice activism has captured the courts of British Columbia.

Bruce Pardy is professor of law at Queen’s University

Captain Airhead Strikes Again!

THE CANADIAN RED ENSIGN

The Canadian Red Ensign

SATURDAY, JUNE 24, 2017

 

Captain Airhead Strikes Again!

It has been almost two years since a gullible Canadian electorate was duped into giving the Liberal Party a majority government in the last Dominion election. This means that that government, headed by Captain Airhead, is approaching the half-way point in its four year mandate. It has recently been reported that the Grits have passed less than half the legislation in that time than the previous Conservative government had. This is not surprising. The Prime Minister has been far too busy flying around the world, handing out money, and looking for photo-ops, all at the taxpayers’ expense, to actually do the job of governing the country. John Ibbitson, writing in the Globe and Mailmade the observation that “the amount of legislation a Parliament creates matters less than the quality of that legislation.” As true as that is, the quality of the bills the Trudeau Grits have passed is enough to make one wish that they had, the moment they were sworn in, called a term-length recess of Parliament and sent every member on a four-year paid Caribbean vacation.

One example of this is Bill C-16, which passed its third-reading in the Senate on Thursday, June 15th and which was signed into law by the Governor-General on Monday, June 19th. Bill C-16 is a bill which amends both the Canadian Human Rights Act and the Criminal Code. To the former it adds “gender identity or expression” to the list of grounds of discrimination prohibited by the Act. To the latter it adds the same to Section 318, the “hate propaganda” clause of the Code. The Canadian Human Rights Act and Section 318 of the Criminal Code were both inflicted upon us by the present premier’s father in his long reign of terror and it would have been better had the present Parliament passed legislation striking both out of existence rather than amending them to increase the number of ways in which they can be used to persecute Canadians. When, a century and a half ago, the Fathers of Confederation put together the British North America Act which, coming into effect on July 1, 1867, established the Dominion of Canada as a new nation within what would soon develop into the British Commonwealth of Nations, their intention was to create a free country, whose citizens, English and French, as subjects of the Crown, would possess all the freedoms and the protection of all the rights that had accumulated to such in over a thousand years of legal evolution. The CHRA and Section 318 do not belong in such a country – they are more appropriate to totalitarian regimes like the former Soviet Union, Maoist China, and the Third Reich.

The CHRA, which Parliament passed in 1977 during the premiership of Pierre Trudeau, prohibits discrimination on a variety of grounds including race, religion, sex, and country of origin. It applies in a number of different areas with the provision of goods and services, facilities and accommodations, and employment being chief among them. Those charged with enforcing this legislation have generally operated according to an unwritten rule that it is only discrimination when whites, Christians, and males are the perpetrators rather than the victims, but even if that were not the case, the very idea of a law of this sort runs contrary to the basic principles of our traditional freedoms and system of justice. It dictates to employers, landlords, and several other people, what they can and cannot be thinking when conducting the everyday affairs of their business. It establishes a special police force and court – the Canadian Human Rights Commission and Tribunal respectively – to investigate and sit in judgement upon those private thoughts and prejudices. Those charged do not have the protection of the presumption of innocence because the CHRA is classified as civil rather than criminal law.

There are more protections for defendants under Section 318 because it is part of the Criminal Code but it is still a bad law. Incitement of criminal violence was already against the law long before Section 318 was added. It is not, therefore, the incitement of criminal violence per se that Section 318 was introduced to combat, for the existing laws were sufficient, but the thinking and verbal expression of thoughts that the Liberal Party has decided Canadians ought not to think and speak.

Bill C-16 takes these bad laws and makes them even worse. By adding “gender identity and expression” to the prohibited grounds of discrimination the Liberals are adding people who think and say that they belong to a gender that does not match up with their biological birth sex to the groups protected from discrimination. Now, ordinarily when people think they are something they are not, like, for example, the man who thinks he is Julius Caesar, we, if we are decent people, would say that this is grounds for pity and compassion, but we would not think of compelling others to go along with the delusion. Imagine a law that says that we have to regard a man who thinks he is Julius Caesar as actually being the Roman general! Such a law would be crazier than the man himself!

Bill C-16 is exactly that kind of law. Don’t be fooled by those who claim otherwise. The discrimination that trans activists, the Trudeau Liberals and their noise machine, i.e., the Canadian media, and everyone else who supports this bill, all want to see banned, is not just the refusing of jobs or apartments to transgender people but the refusal to accept as real a “gender identity” that does not match up with biological sex. Dr. Jordan Peterson, a professor at the University of Toronto who has been fighting this sort of nonsense at the provincial level for years, and who testified against the Bill before the Senate committee that reviewed it, has warned that it could lead to someone being charged with a “hate crime” for using the pronoun – “he” or “she” – that lines up with a person’s birth sex, rather than some alternative pronoun made-up to designate that person’s “gender identity.” Supporters of the bill have mocked this assertion but we have seen this sort of thing before – progressives propose some sort of measure, someone points out that the measure will have this or that negative consequence, the progressives ridicule that person, and then, when the measure is passed and has precisely the negative consequences predicted, say that those negatively affected deserved it in the first place.

Indeed, progressive assurances that Peterson’s fears are unwarranted ring incredibly hollow when we consider that the Ontario Human Rights Commission has said that “refusing to refer to a trans person by their chosen name and a personal pronoun that matches their gender identity” would be considered discrimination under a similar clause in Ontario’s provincial Human Rights Code, if it were to take place in a context where discrimination in general is prohibited, such as the workplace. Bruce Pardy, Professor of Law at Queen’s University, writing in the National Post, explains that this new expansion of human rights legislation goes way beyond previous “hate speech” laws in its infringement upon freedom of speech. “When speech is merely restricted, you can at least keep your thoughts to yourself,” Pardy writes, but “Compelled speech makes people say things with which they disagree.”

It is too much, perhaps, to expect Captain Airhead to understand or care about this. Like his father before him – and indeed, every Liberal Prime Minister going back to and including Mackenzie King – he has little to no appreciation of either the traditional freedoms that are part of Canada’s British heritage or the safeguards of those freedoms bequeathed us by the Fathers of Confederation in our parliamentary government under the Crown. For a century, Liberal governments have whittled away at every parliamentary obstacle to the absolute power of a Prime Minister backed by a House majority. The powers of the Crown, Senate, and the Opposition in the House to hold the Prime Minister and his Cabinet accountable have all been dangerously eroded in this manner. Last year the present government attempted to strip Her Majesty’s Loyal Opposition of what few means it has left of delaying government legislation. The motion in question was withdrawn after the Prime Minister came under strong criticism for behaving like a spoiled, bullying, petty thug in the House but it revealed his character. These Opposition powers are a necessary safeguard against Prime Ministerial dictatorship but Captain Airhead, the son of an admirer of Stalin and Mao, regards them, like the freedoms they protect, as an unacceptable hindrance to his getting his way as fast as he possibly can. Years ago, George Grant wrote that the justices of the American Supreme Court in Roe v Wade had “used the language of North American liberalism to say yes to the very core of fascist thought – the triumph of the will.” This is also the modus operandi of Captain Airhead and the Liberal Party of Canada.

Canadians Could Face Jail Time for Criticizing ‘Gender Fluid’ Ideology

Canadians Could Face Jail Time for Criticizing ‘Gender Fluid’ Ideology

Oh Canada!

A new bill in Canada would redefine “hate speech” to include criticism of “gender fluid” ideology, which could be punishable for up to two years in jail. 

Spearheaded by left-of-left Canadian PM Justin Trudeau and Parliament’s Liberal Party, “the bill would redefine “hate speech” under the Canadian Criminal Code as well as the Canada Human Rights act, to include any speech that “promotes hatred towards a gender identity or expression,” reports Breitbart. 

Commemorating “International Day Against Homophobia, Transphobia, and Biphobia,” Trudeau declared that Canada has a responsibility to defend LGBTQ people of speech that may harm their fragile egos.

As a society, we have taken many important steps toward recognising and protecting the legal rights for the LGBTQ2 community – from enshrining equality rights in the Canadian Charter of Rights and Freedoms to the passage of the Civil Marriage Act.

There remains much to be done, though. Far too many people still face harassment, discrimination, and violence for being who they are. This is unacceptable.

To do its part, the Government of Canada today will introduce legislation that will help ensure transgender and other gender-diverse people can live according to their gender identity, free from discrimination, and protected from hate propaganda and hate crimes.

The bill states: “This enactment amends the Canadian Human Rights Act to add gender identity and gender expression to the list of prohibited grounds of discrimination, which seeks to “extend the protection against hate propaganda set out in that Act to any section of the public that is distinguished by gender identity or expression and to clearly set out that evidence that an offence was motivated by bias, prejudice or hate based on gender identity.”

Canadian law already prohibits anti-gay “hate propaganda,” which would make the addition of transgenders an upgrade to laws already on the books banning free speech.

Canadian Association for Free Expression

Box 332,

Rexdale, Ontario, M9W 5L3

Ph: 905-56-4455; FAX: 905-566-4820

Paul Fromm, B.Ed, M.A. Director

 
Memo to the Senate of Canada: Please Protect Internet Free Speech — Pass Bill C-304
Last June, the House of Commons passed a private Member’s Bill, Bill C-304 which repealed Sec. 13 of the Canadian Human Rights Act.
Sec. 13 had been a vague and much abused form of Internet censorship, making an offence out of views expressed over the Internet that were not criminal. Truth was not a defence. Intent was not a defence. The wording was  vague — communicating views “likely to expose” designated or privileged groups to “hatred or contempt.” No harm had to be proven. In fact, it was not necessary to prove that anyone other than the complainant had ever even seen the post in question. “Contempt” would capture any negative criticism. For instance, if smokers wer a protected group, Internet comments stating smokers had bad breath and were damaging their skin and had higher incidents of lung cancer would be “likely” to expose them to “contempt” is not hatred. Truth would not matter.
Until the Marc Lemire decision in 2009, Sec. 13 had a 100% conviction rate. That alone should have set off alarm bells. People are frequently charged with murder or robbery or fraud and acquitted. However, there were virtually no defences under Sec. 13. Worse, most of the prosecutions were driven by a chronic complainer with an admitted political agenda. This man worked for the Canadian Human Rights Commission during some of the time he was filing complaints. He has now moved over to the Department of National Defence. He admitted in a talk to Anti-Racist Action, a Toronto group with a history of violence, that he was seeking to “shut down” through “maximum disruption” those with an ideology he opposed.
Most of the victims of Sec. 13 complaints were poor and obscure people, unable to afford a lawyer. On behalf of the Canadian Association for Free Expression, I acted as a “representative” for half a dozen of these people. I saw lives and reputations ruined. The long drawn-out proceedings were an abuse BY process.
The investigators and prosecutors for the Canadian Human Rights Commission acted more like a political police than officials steeped in our tradition of fairness. When the lead “hate” investigator was questioned during the Warman v. Marc Lemire Tribunal, he was asked what weight he gave to freedom of expression when he was examining a website: “None,” he responded, “freedom of expression is an American idea.” Oh, really?
In our submission, the House of Commons was wise to repeal Sec. 13. We understand that it is now in the process of second reading in the Red Chamber. We urge that it receive speedy consent.  It has now been eight months since it was passed in the House of Commons.
There is an urgency here. Canadians continue to suffer. Terry Tremaine, a former lecturer at the University of Saskatchewan, was charged under Sec. 13 and found guilty. He was then charged for much of the same material under Sec. 319 (“hate law”) of the Criminal Code. Last fall, a Regina judge dismissed the case. However, Mr. Tremaine had been hit with a lifetime “cease and desist” order by the Canadian Human Rights Tribunal forbidding him from posting the same or similar comments to the ones at issue at the Tribunal. But what is “similar”? Although he tried to tome down his language, he was eventually found guilty of “contempt of court” for not removing the original posts, although the Tribunal’s order, as worded, had not required this. Subject to an appeal, he may soon head off to jail for up to six months!
Jail for expressing non-violent opinions on a website in another country? Such repression and micro-managing of opinion are unacceptable in a free society.
The Canadian press and many MPs rightly criticize restrictions on free speech in other countries. The case of Chinese architect, artist and dissident Wei Wei comes to mind. The was jailed briefly and then stripped of his political rights — not allowed to talk to the foreign media — for a year. Many Canadians rightly voiced their concern. Yet, Sec. 13 puts its victims under a lifetime gag!
In passing Bill C-304, the House of Commons went a long way to securing Internet freedom in Canada.  We urge you to do likewise and pass this piece of legislation as expeditiously as possible.
Respectfully submitted.
Paul Fromm
Director

 

 

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