Hon. Marc Gold: I'd like to begin by thanking Senator Plett for raising this issue. I know words like that are often greeted with some skepticism, as in "Thank you for your question" after you have been skewered by somebody.

But I mean it sincerely. I started my academic career as a law professor writing about equality. I wrote about the Canadian Bill of Rights, because I am old, and later the Charter. But I was always mindful of the importance of other rights and freedoms and, in particular, I attach enormous importance to freedom of thought, freedom of speech, opinion and expression. These are fundamental — I would say foundational — to our constitutional democracy. I take very seriously the argument that Bill C-16 " might infringe freedom of speech by forcing someone to say something that they object to, the issue of compelled speech. It is a serious question and one that we should not ignore.

Let me confess that I have struggled with this issue, and I know I am not the only one. We have all struggled with this issue.

I do thank you sincerely for raising this. It has forced me to think about it, and think about it long and hard. I have thought about it and I can't support the amendment, and I want to tell you why.

I don't agree with your characterization that this is actually an issue of forced speech. And, furthermore, I can't support the amendment because, in my judgment, it's not desirable from a human rights perspective and frankly, it's not necessary in order to protect freedom of expression as we constitutionally understand it and as it is constitutionally protected.

It's not desirable from a human rights perspective because there are certain circumstances in how we speak to each other and, yes, even the pronouns we may use that may well amount to harassment and, therefore, a discriminatory practice under the Canadian Human Rights Act, but would constitute, in my opinion, a reasonable limit on our freedom of expression.

Second, the amendment is not necessary because our current human rights processes and our court system are both well designed to strike the appropriate balance between competing constitutional rights and freedoms and thereby ensuring that our constitutional right to speak freely will not be unjustifiably compromised by the provisions of a bill like Bill C-16.

Honourable senators, let's begin by placing this issue in its full context. First, it's clear to all of us that the issue of pronoun use is not at the core of what Bill C-16 is all about. The focus of the bill and therefore most of the complaints — if not all — that will be brought under it will be in relation to alleged discrimination against trans and non-binary persons in relation to denials of employment, housing, services and so on. Truth be told, the pronouns that we may use with one another lie somewhat at the margins of this bill.

Second, as several senators have mentioned during this debate, nobody is obligated to use a specific pronoun. One can always choose to address others by their last name.

Simply put, this really isn't a case of forced speech.

Third, we must be very clear about what is really an issue in this case and what isn't. Bill C-16 will not prevent an individual, such as Professor Petersen, from expressing his objection to using gender-neutral pronouns.

Here is what Justice Rothstein of the Supreme Court said about hate speech in the 2013 Whatcott decision:

Hate speech legislation is not aimed at discouraging repugnant or offensive ideas. It does not, for example, prohibit expression which debates the merits of reducing the rights of vulnerable groups in society. It only restricts the use of expression exposing them to hatred as a part of that debate.

Professor Peterson, as an intellectual, remains free to criticize the social science underlying the notion that gender is more fluid than we all grew up believing or understanding. He is free to criticize this bill and the use of pronouns. That is not at issue here. I think we need to be clear — and happily so — that is not at issue here.

Let's concede that everything I have just said, and much of what has been said in this debate, does not fully address the concerns of those who say that the bill would still nonetheless expose someone who failed to use the pronoun of choice to liability under the under the Canadian Human Rights Act.

Let's concede further — and it has been noted here today — that there are some circumstances that might amount to harassment and, therefore, a discriminatory practice under the act. The question remains when? When are those circumstances? When would the failure to use the appropriate pronoun amount to discrimination under the act?

Much has been made of the policy statements issued by the Ontario Human Rights Commission and this is understandable. Let's be clear: These are statements of policy; they are not statements of law. They don't bind the Ontario Human Rights Commission. They certainly don't bind the Canadian Human Rights Commission, but they are important. They signal an orientation. They are worthy of serious consideration, so I take them seriously, and we should.

We have heard already what the Ontario Human Rights Commission said about its policy on gender-neutral pronouns in its April 14, 2014 release, and I won't repeat it. Senator Plett stated it on two occasions, and that is correct. But let me add what it also said about what harassment is, because the Human Rights Act of Ontario and the Canadian Human Rights Act are about harassment as a discriminatory practice. So what do we mean by harassment? The Ontario Human Rights Commission defined harassment as "engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome."

During a committee meeting examining the bill, I asked the following question of a witness:

. . . If I turn to you and say, look, please call me "they" because that's how I see myself now, because it's hurtful for you to call me "sir" or "miss" or whatever it would be, but you refuse. I say, "Okay. If you're uncomfortable with that because you're not comfortable with that, call me Marc." And you refuse. Were you to continue to call me by the name that I'm telling you is hurtful to me —

it isn't who I am —

is that not something that the law can properly address?

— dare I say should properly address?

Honourable senators, is that example so different than continuing to call an African-Canadian man "boy," knowing that the intent is to hurt and diminish him? Is it so different from continuing to call a female employee "sweetheart" after she tells you, as if you didn't know already, that she finds this demeaning?

In my opinion, the repeated and intentional misgendering of a person — that is, using a term for them that they have told you does not reflect who they are and is hurtful to them, especially in an environment like the workplace or some other public environment — would likely amount to harassment and, therefore, constitute an offence under the act; and, in my judgment, it would be considered a reasonable limit on our freedom to say whatever we want to say, just as are the laws of libel and slander.

You notice I didn't mention hate speech, because I have trouble with the hate speech provisions. A lot of my friends in my community don't like when I say that. I have called myself a free speech guy — I got a nasty email after I said that at a committee meeting, but I stand by it. They have been held to be constitutional, but that doesn't mean they're great laws. We are entitled to differences of opinion.

But the laws of libel and slander . . . We are not allowed to say things that cause damage to others. It is as simple as that. It all depends on the context on the intent.

Let us agree that the way we speak in some contexts and circumstances can amount to harassment and, therefore, discrimination, even if it falls short of hate speech under the Criminal Code. Let's further agree that this raises a free speech issue but one that is not — and, again, I must insist — one of forced speech. But it is a free speech issue nonetheless.

Honourable senators, if this is a relatively clear case, others will be more difficult. Let's acknowledge that as well.

Now, what if the person had no ill intentions, but simply had a personal problem using the desired pronoun?

Some words don't trip off the tongue, that's for sure.

What if it wasn't a behaviour pattern, but rather an isolated case?

Additionally, what about complaints filed in bad faith before the commissions, because unfortunately that does happen, with the sole purpose of getting back at the alleged aggressor?

What about those cases? Should we not be concerned about the repercussions those cases would have on freedom of expression?

This brings me to the second reason I oppose this amendment. It is simply not necessary to protect our rights to freedom of expression.

Honourable senators, we have to have some confidence in our administrative and legal processes, and in our legal system itself. Let's remember that Bill C-16 didn't invent out of whole cloth a new process for human rights inquiries for human rights adjudication. There is a system of law that is well established with rules and processes that are well-known.

The Human Rights Commission has experience assessing claims and selecting the complaints that warrant consideration and those that should be rejected. Furthermore, freedom of expression is just one of many rights and freedoms protected in legislation. These co-existing rights sometimes come into conflict with one another and require arbitration. In that respect, the commission and the tribunals have accumulated plenty of experience dealing with these conflicting situations, whether in relation to equality, religious freedom or other seemingly contradictory situations.

Third, and most important, the commission and the tribunals are bound by the Canadian Charter of Rights and Freedoms, and the protection for freedom of expression that it guarantees. This is a crucial point, and one that is often overlooked, frankly, in discussions of this nature: We tend to focus on the role of the courts in protecting our rights and freedoms, and striking the appropriate balance between competing rights — and understandably so.

But ensuring compliance with the Constitution and the Charter is not only the responsibility of the courts. We know that here in this chamber, because it's our responsibility, too. Both the Human Rights Commission and the Human Rights Tribunal — federal and provincial — are required by the Constitution and by law to ensure that their actions and their acts are consistent with all rights and freedoms, including the freedom of expression guaranteed under the Canadian Charter. We have every right to expect that the commission will take this into account when it's deciding whether or not to proceed with a complaint. We have every right to expect that a tribunal will take this into consideration when it decides a case before it.

At every stage of the human rights process, the question of the constitutional right to freedom of expression will be considered and has to be considered in assessing whether there has been discrimination under the act.

Of course, a decision of a tribunal may be appealed to the courts and, ultimately, to the Supreme Court of Canada.

This is and has long been our process under the Canadian Human Rights Act, and Bill C-16 doesn't change that one bit. Of course, there will be hard cases, and of course things are not entirely always clear. Why should we be surprised? The law, like life, is complicated and messy. But we have a legal system, and a sophisticated one, that is hardwired to deal with these hard cases where rights may conflict. When hard cases arise, the courts will be there to sort them out.

Let's return to the main objectives and the likely impacts of Bill C-16. It's not on the free-speech rights of persons who refuse to respect people's desire to be addressed as who they are.

The Hon. the Speaker: Senator Gold, I apologize for interrupting you, but your time has expired. Are you asking for more time?

Senator Gold: May I have five more minutes?

The Hon. the Speaker: Is leave granted, honourable senators?

Hon. Senators: Agreed.

Senator Gold: Thank you. The objective is to afford protection from the persistent and cruel discrimination that the trans community experiences on a regular basis. We have the tools to address the hard free-speech cases that arise. Let's finally give ourselves the tools to help protect some of the most vulnerable members of our society.

Honourable senators, this amendment is not needed nor is it desirable. I'm going to vote against it. I encourage you to do the same.