steven wu
steven wu
Sep 9, 2018 · 5 min read

https://litigationguy.wordpress.com/2016/12/24/bill-c-16-whats-the-big-deal/

“The Canada Department of Justice published a review of the proposed Bill C-16legislation (linked to an archived version as the original link was deactivated recently) and in doing so has confirmed that:

Q and A on Gender Identity and Gender Expression

  1. Will “gender identity” and “gender expression” be defined in the Bill?
  2. In order to ensure that the law would be as inclusive as possible, the terms “gender identity” and “gender expression” are not defined in the Bill. With very few exceptions, grounds of discrimination are not defined in legislation but are left to courts, tribunals, and commissions to interpret and explain, based on their detailed experience with particular cases.

Definitions of the terms “gender identity” and “gender expression” have already been given by the Ontario Human Rights Commission, for example. The Commission has provided helpful discussion and examples that can offer good practical guidance. The Canadian Human Rights Commission will provide similar guidance on the meaning of these terms in the Canadian Human Rights Act.

And with that statement of intent from the Department of Justice we see that the federal Human Rights regime will mirror that found at the provincial level including the policies.

The OHRC has produced a policy on gender identity and expression and what constitutes harassment and discrimination, including “refusing to refer to a person by their self-identified name and proper personal pronoun”.

Thereafter, the OHRC clarified its policy by creating a Question and Answer on gender identity and gender expression which seeks to define these terms, and to set out that the refusal of a person to use the chosen/personal/preferred pronoun, or deliberately misgendering, will likely be discrimination.

What this means is that if you encounter a person in a sphere of human activity covered by the Code, and you address that person by a pronoun that is not the chosen/personal/or preferred pronoun of that person, that your action can constitute discrimination.

Further, in the event that your personal or religious beliefs do not recognize genders beyond simply male and female (ie. does not recognize non-binary, gender neutral, or other identities), you must still utilize the non-binary, gender neutral, or other pronouns required by non-binary or gender neutral persons, lest you be found to be discriminatory.

It is the OHRC policy requirement that persons must use the pronouns required by the portion of transgendered individuals making that demand that constitutes compelled speech.

Persons not wishing to use those pronouns (or any pronouns for that matter), or not able to use those pronouns as offending their deeply held beliefs, or their faith and religion, are afforded no ability to abstain. In short, the OHRC requires that you use the words required by the proponents of Bill C-16.

WHAT’S THE BIG DEAL? — WHAT IF I DON’T USE THE PRONOUNS?

Some might perceive the compelled speech requirements inherent in the Code, and Bill C-16 as minor, particularly given the widely held opinion that a failure to follow the compelled speech stipulations will not result in serious criminal sanction.

This opinion may very well be correct, but not because the legislation lacks the ability to bring forward serious criminal sanction. In fact, breaches of Human Rights Tribunal orders can and have (at the federal level) resulted in imprisonment. Further, the Hate Speech provisions of the Criminal Code can result in increased sentences for those found guilty.

Focusing on the Human Rights Tribunals, and particularly the OHRT, the path to prison is quite straight-forward.

The OHRT can issue both monetary and non-monetary orders. Monetary orders are generally restricted to general damages to a complainant. Non-monetary orders can be anything determined by the OHRT as appropriate in the circumstances including public interest remedies.

Examples of non-monetary orders, include, but are not limited to:

– requirements to communicate or publish an apology or a publication of the facts of the case and the resulting order;

-non-defamation or gag orders (to refrain from making further offending statements);

-non-defamation publication bans (to refrain from printing further offending statements);

– orders to undertake sensitivity or anti-bias training.

While monetary orders can result in imprisonment, the path is somewhat less direct and generally related to a failure to abide by some other court process in the context of a complainant’s efforts to enforce a monetary award (contempt of a garnishment, examination in aid of execution, or writ of execution process).

With respect to non-monetary orders the path to prison is considerably more straight-forward and generally as follows:

Section 19 of the Statutory Powers Procedure Act (Ontario) (SPPA) states that an order of the OHRT is in fact an order of the Superior Court.

Section 13 of the SPPA states that the OHRT can pursue a breach of its own orders by pursuing an order for contempt before the Divisional Court (Superior Court).

Rule 60.11(5) of the Rules of Civil Procedure (Ontario) confirms that where the court finds a person in contempt, they can order imprisonment for an indefinite period, in addition to fines and other remedies. Further a judge can issue a warrant for the arrest of any person against whom a contempt order is sought.

The Superior Court does resort to imprisonment to compel compliance with non-monetary orders. There are numerous cases where contempt of a non-monetary order resulted in imprisonment with many as recent as 2013.

The same mechanisms and procedures can be found at the federal level and they have in fact resulted in the imprisonment of persons who breached the orders of Human Rights Tribunals in other provinces and federally.

Now most persons faced with this ominous path to prison would likely comply with the orders to avoid prison. However, if an individual deliberately chose not to use the mandated pronouns and then elects to breach a resulting non-monetary order of the OHRT, that person could find themself in prison for that position.

The likelihood that contempt of a Tribunal order will result in imprisonment, remains extremely low. The risk of this outcome is dependent to a large extent on the benevolence of the public servants that staff the Human Rights Commissions and Tribunals, as well as the disposition of the justices of the Divisional Court (or the Federal Court). If the Commissions and Tribunals wish to pursue the policies and the requirement for compelled speech, and the Divisional Court/Federal Court find a clear case of contempt of the underlying Tribunal order, an order for committal could result.

There is no legal or procedural barrier to a prison term, and in fact, the law and procedures are written in such a way as to make this entirely possible.”

ROFL what is that again? you lie about there being any so called protections for free speech — instead you believe that merely HOPING your beloved judge would respect free speech is somehow in itself a barrier or protection? such dishonesty

    steven wu

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    steven wu

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