Gavin Howe
In 2016, University of Toronto professor Jordan Peterson argued that amendments to the Canadian Human Rights Act and the Criminal Code would require compelled speech. The amendments added gender identity and expression as protected grounds to the Canadian Human Rights Act and the Criminal Code provisions dealing with hate propaganda, incitement to genocide, and sentencing aggravating factors. Critics voiced concerns that the law would penalize citizens who do not use specific pronouns when referring to gender-diverse people. However, legal experts challenged Peterson's view, arguing that the bill would not criminalize the use of incorrect gender pronouns and that it provided necessary protections for transgender people. This debate sparked a larger conversation in Canada about gender, pronoun use, freedom of speech, and the rights of transgender and gender-diverse individuals.
| Characteristics | Values |
|---|---|
| Year of passing | 2017 |
| Bill number | C-16 |
| Purpose | To add the words "gender identity or expression" to the Canadian Human Rights Act and the Criminal Code |
| Criticism | Critics voiced concerns that the law will penalize citizens who do not use specific pronouns when referring to gender-diverse people |
| Support | The Canadian Bar Association supported the passage of the bill, arguing that it would provide necessary protections for transgender people and not pose any risk to freedom of expression |
| Precedents | The Supreme Court of Canada has interpreted the right to freedom of expression as including "the right to say nothing or the right not to say certain things." |
| Examples of compelled speech | Mandatory university fees that support groups with which students disagree, mandatory fees on agricultural products to support advertising, saluting the flag or reciting the Pledge of Allegiance |
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What You'll Learn
The Canadian government's stance on free speech
The Canadian Charter of Rights and Freedoms upholds freedom of expression as a fundamental freedom under Section 2. The Supreme Court of Canada has interpreted this right as encompassing "the right to say nothing or the right not to say certain things". This interpretation underscores the Canadian government's recognition of freedom of speech as a fundamental right.
However, there have been instances where compelled speech, or mandated expression, has been a subject of debate in Canada. In 2016, amendments to the Canadian Human Rights Act and the Criminal Code added gender expression and gender identity as protected grounds. This sparked a national conversation about the potential conflict between freedom of speech and compelled speech. University of Toronto professor Jordan Peterson argued that these amendments could result in legal repercussions for individuals who refuse to use a person's preferred gender pronouns. Critics shared similar concerns, suggesting that the law would penalise citizens who do not use specific pronouns when referring to gender-diverse individuals.
Legal experts and organisations, such as the Canadian Bar Association, challenged Peterson's perspective. They asserted that the bill did not criminalise the misuse of gender pronouns and that it provided necessary protections for transgender individuals. Brenda Cossman, a law professor at the University of Toronto, clarified that the misuse of pronouns alone would not constitute a criminal act and that it would not rise to the level of hate speech or inciting hatred.
The Canadian government has also grappled with questions of censorship and free speech, particularly with the emergence of the internet as a major platform for media distribution. While the government has participated in the securitisation of the internet, it has also emphasised the importance of respecting individuals' freedom of expression. The law encourages the media to publish with caution, balancing the need to avoid libel and uphold the freedom of expression.
Additionally, the Canadian government has addressed the complexities of free speech on government-owned property and platforms. The analysis considers factors such as the historical function of the space, the nature of the expression, and whether open public expression is compatible with the purpose of the space. The government recognises that denying access to a platform can substantially interfere with freedom of expression, and thus approaches these situations with careful consideration.
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The right to say nothing
In 2016, Jordan Peterson, a psychology professor at the University of Toronto, argued that amendments to the Canadian Human Rights Act and the Criminal Code would require compelled speech. The changes added "gender identity or expression" to the Canadian Human Rights Act and the Criminal Code provisions dealing with hate propaganda, incitement to genocide, and sentencing aggravating factors. Peterson claimed that the law would allow him to be fined or imprisoned if he refused to refer to students by their preferred gender pronouns.
The controversy surrounding Bill C-16, which became law in June 2017, centred on the concept of compelled speech and the right to say nothing. Critics argued that the law would penalize citizens who did not use specific pronouns when referring to gender-diverse people, effectively mandating the content of voluntary speech. However, legal experts countered that the bill would not criminalize the use of incorrect gender pronouns, and the Canadian Bar Association supported its passage. They asserted that it provided necessary protections for transgender people and did not pose any risk to freedom of expression.
The Supreme Court of Canada has interpreted the right to freedom of expression under Section 2 of the Canadian Charter of Rights and Freedoms as including "the right to say nothing or the right not to say certain things." This interpretation suggests that compelled speech, or mandated expression, can be seen as a restriction of freedom of expression. In the case of RJR-MacDonald Inc v Canada (AG), tobacco companies successfully challenged legislation requiring them to include unattributed health warnings on packaging, demonstrating the court's support for the right to refrain from compelled speech.
While the debate around Bill C-16 focused on privacy and safety concerns, it also brought attention to the concept of 'misgendering' as a form of violence. The law's opponents argued that referring to someone by a pronoun other than their preferred one would be considered hate speech. However, supporters of the bill highlighted that it merely brought federal laws in line with existing provincial human rights codes protecting transgender and gender-diverse Canadians.
In conclusion, the right to say nothing, or refrain from compelled speech, is a fundamental aspect of freedom of expression in Canada. While Bill C-16 sparked a national debate about the role of compelled speech in relation to gender identity and expression, the law's impact on an individual's right to say nothing remains a complex and evolving topic within the broader context of freedom of expression.
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Gender identity and freedom of speech
In 2016, Jordan Peterson, a psychology professor at the University of Toronto, argued that amendments to the Canadian Human Rights Act and the Criminal Code would require compelled speech. The amendments added gender expression and gender identity as protected grounds to the Canadian Human Rights Act and to the Criminal Code provisions dealing with hate propaganda, incitement to genocide, and aggravating factors in sentencing. Peterson's argument was based on the idea that the law would allow him to be fined or imprisoned if he refused to refer to students by their preferred gender pronouns. This sparked a national debate in Canada about gender identity, pronoun use, freedom of speech, and the rights of transgender and gender-diverse Canadians.
Bill C-16, which was passed in June 2017, added the words "gender identity or expression" to the Canadian Human Rights Act and the Criminal Code. This change brought federal laws in line with already-established provincial human rights codes that protected transgender and gender-diverse Canadians. Critics of the bill, including Peterson, voiced concerns that it would penalize citizens who do not use specific pronouns when referring to gender-diverse people. However, legal experts, including Brenda Cossman, a law professor at the University of Toronto, and the Canadian Bar Association, disagreed with this interpretation of the bill. They argued that the bill would provide necessary protections for transgender people, make explicit the protections for transgender people already contained in the prohibition on discrimination based on sexual orientation, and would not pose any risk to freedom of expression.
The interpretation of freedom of speech in the context of gender identity is a complex issue. While some argue that being forced to use specific pronouns infringes on their freedom of expression, others argue that not using an individual's preferred pronouns is a form of discrimination and harassment. This conflict between compelled speech and freedom of expression has led to a divisive debate, with no clear resolution as of yet.
In the United States, the concept of freedom of speech is deeply rooted in American culture, and it is protected by the First Amendment. However, this freedom is not absolute, and there are exceptions, such as in the case of West Virginia State Board of Education v. Barnette, where the Supreme Court ruled that requiring students to salute the flag or recite the Pledge of Allegiance violated their freedom of speech. The emergence of the "gender identity" ideology and the concept of "preferred pronouns" have challenged traditional notions of free speech. While some argue that referring to an individual by their preferred pronouns is a sign of respect, others see it as a limitation on their freedom of expression.
The right to freedom of expression, as outlined in Article 10 of the Convention, should be enjoyed by everyone without discrimination based on sexual orientation or gender identity. This includes the freedom to receive and impart information on subjects dealing with sexual orientation or gender identity. Additionally, member states should ensure that law enforcement authorities take appropriate measures to protect participants in peaceful demonstrations in favor of the human rights of lesbian, gay, bisexual, and transgender individuals.
In conclusion, the debate surrounding gender identity and freedom of speech is complex and multifaceted. While some argue that compelled speech laws are necessary to protect the rights of transgender and gender-diverse individuals, others see them as a violation of their freedom of expression. This conflict between compelled speech and freedom of expression has led to a divisive debate, with strong arguments on both sides. As society continues to navigate the complexities of gender identity and freedom of speech, it is essential to strike a balance that respects the rights and freedoms of all individuals.
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Limits on speech in the criminal code
In 2016, Jordan Peterson, a psychology professor at the University of Toronto, argued that amendments to the Canadian Human Rights Act and the Criminal Code would require compelled speech. The amendments added gender identity and expression as protected grounds to the Canadian Human Rights Act and to the Criminal Code provisions dealing with hate propaganda, incitement to genocide, and sentencing aggravating factors. Peterson argued that the law would allow him to be fined or imprisoned if he refused to refer to students by their preferred gender pronouns.
Bill C-16, which was passed in June 2017, added the terms "gender identity or expression" to the Canadian Human Rights Act and the Criminal Code. Critics voiced concerns that the law would penalize citizens who did not use specific pronouns when referring to gender-diverse people. However, legal experts countered that the bill would not criminalize the use of incorrect gender pronouns. Brenda Cossman, a law professor at the University of Toronto, stated that misusing pronouns alone would not constitute a criminal act and would not rise to the level of hate speech or a hate crime.
The Canadian Charter of Rights and Freedoms establishes the right to freedom of expression, and the Supreme Court of Canada has interpreted this right broadly. However, the Charter also recognizes that reasonable limits can be placed on this right if they are prescribed by law and justifiable in a free and democratic society. The Supreme Court has held that this includes "the right to say nothing or the right not to say certain things."
Canada's Criminal Code specifies three distinct hatred-related offenses: advocating genocide, public incitement of hatred, and hate speech. The Supreme Court of Canada and the Canadian Human Rights Tribunal (CHRT) have upheld the constitutionality of the hate propaganda provisions in the Criminal Code, finding that they are reasonable and justifiable limits on the right to freedom of expression. The key court decision in this regard is R. v. Keegstra, which involved an Alberta high school teacher charged under the Code for communicating anti-Semitic statements to his students.
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The Supreme Court's interpretation of the right to free speech
The Supreme Court of Canada has interpreted the right to free speech as including "the right to say nothing or the right not to say certain things." This interpretation is based on Section 2 of the Canadian Charter of Rights and Freedoms, which guarantees freedom of expression as a fundamental freedom.
In RJR-MacDonald Inc v Canada (AG), the Supreme Court upheld the right of tobacco companies to not include unattributed health warnings on their packaging. Similarly, in Lavigne v Ontario Public Service Employees Union, the Court held that mandatory union membership and dues did not violate an individual's right to freedom of expression, even if some of the dues were used for purposes the member disagreed with.
In Lee v Ashers Baking Company Ltd, the Supreme Court of Northern Ireland considered whether a bakery had violated anti-discrimination laws by refusing to decorate a cake with a message supporting gay marriage, which contradicted the bakers' religious beliefs. The Court found that while the bakery may have discriminated based on political beliefs, the legislation had to be interpreted in a way that did not violate the defendants' right not to express a particular opinion.
In the United States, the First Amendment to the U.S. Constitution guarantees freedom of speech and freedom of the press. The Supreme Court has grappled with how far the government can go in restricting speech, often distinguishing between content-based and content-neutral laws. Content-based laws regulate speech based on its substance, while content-neutral laws control the time, place, and manner of speech. In recent years, the Supreme Court has also addressed the issue of free speech online, recognising that the government cannot control social media platforms in an effort to impose its own vision of online speech.
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Frequently asked questions
Yes, Canada passed Bill C-16 in June 2017.
Compelled speech is a transmission of expression required by law.
The bill added "gender identity or expression" to the Canadian Human Rights Act and the Criminal Code.
The bill was passed to provide necessary protections for transgender and gender-diverse Canadians.
Some critics argue that the bill restricts free speech by mandating the use of specific gender pronouns. However, legal experts have challenged this view, stating that the bill does not criminalize the misuse of gender pronouns.
