Compelled speech is the new censorship

A few weeks back I was at a forum in Toronto dedicated to unmasking the perils of compelled speech. Specifically, the event looked at how Bill C-16, a piece of Canadian legislation adding gender identity to the Canadian Human Rights Act and Criminal Code, forces specific speech with regard to gender pronouns.

It was the law that catapulted Prof. Jordan Peterson to infamy. Though his crusade against C-16 didn’t stop the bill from passing, it did galvanize Canadians to understand the perils of state intervention on matters of so-called social justice.

Before the forum, I sat down with National Post columnist Barbara Kay to discuss the insidious nature of compelled speech, and why transgender politics have become so central to the broader discussions of free speech and censorship.

Canada’s human rights industry and the hierarchy of victims

Canada’s human rights commissions and tribunals have embraced identity politics to forge a grievance industry. This industry has now reached its inevitable standoff.

Two identity groups—each one protected by the government’s human rights code—see their purported rights as at odds with the other’s. Standing between them is the province of Ontario’s human rights regime.

A Toronto woman, Kristi Hanna, has filed a Human Rights Tribunal of Ontario complaint against a shelter for women struggling with addiction, after she was forced to share a room with a transgender woman.

Hanna, a sexual abuse survivor who describes herself as an “active ally in the LGBTQ community,” asked the Human Rights Legal Support Centre for help. She explained that she was forced to room with, in her words, a “man,” while grappling with her trauma.

The government-funded center, tasked with helping disenfranchised people navigate the human rights tribunal, defended the shelter and chided Hanna for taking issue with the situation.

Hanna had been staying at the shelter for seven months, but lasted only two nights after the transgender resident moved into the bed just five feet away from her, in July. Two nights of “constantly looking over to make sure her roommate was still in bed,” that is.

She’s been homeless ever since.

The Jean Tweed Centre, which operates the shelter, was adamant that it doesn’t discriminate against transgender residents and therefore “does not impose modifications with respect to accommodation.”

The transgender resident was presumably at the shelter for the same reason Hanna was—to get help. But only one could.

The Human Rights Tribunal of Ontario, an agency under “Social Justice Tribunals Ontario,” which exists to protect the disadvantaged—from women to racial minorities to those with differing gender identities—now must decide whose rights trump whose.

Should an abused woman have to shack up with someone sharing the biological sex of her abuser?

This case is the embodiment of the tense battle between two strains of feminism. But this isn’t an abstract gender studies debate—it’s real life.

The human rights industry’s worldview dictates that all must be accommodated, and that feeling unsafe means being unsafe. There is no right answer here.

If this isn’t an existential crisis-in-the-making for progressives, surely another Ontario case is.

In Windsor, Ont., the Mad Wax hair removal spa is facing a $50,000 human rights complaint for not booking a Brazilian wax appointment for a transgender woman. The spa isn’t equipped to do lower body waxes for men, the owner tried to explain. More pressingly, the only waxologist on duty was a devout Muslim woman, whose religion forbids physical contact with men other than her husband.

The Islamic view of gender identity hasn’t quite caught up with the Ontario Human Rights Code’s.

The spa owner, who prides himself as being pro-LGBT, had to choose between his desire for an open and inclusive business for his customers, and one for his employees.

Forcing the employee to wax male genitals surely would have brought its own human rights complaint. He tried explaining this to the transgender person, to no avail.

“Women have penises and women have balls, and if your staff is not comfortable, then they can look for another job,” the prospective client told him.

I’m pretty sure that’s the Ontario Human Rights Commission’s motto, actually.

The easy solution would be to allow private businesses and agencies to set their own boundaries, much like the American Supreme Court ruled they should earlier this summer. In Canada, human rights law bars those sorts of decisions.

Radical feminism versus intersectional feminism, and Islam versus transgender. Canada’s human rights commissions, which thrive on victimhood, now must recognize a hierarchy of victims.

These are the questions society never thought would need answers, but here they are.

I’ve been a long-time critic of the way the governments in Canada have industrialized so-called human rights but there’s no schadenfreude on my part with these cases. They should give lawmakers cause to recognize how farcical these human rights commissions and tribunals have become, but I don’t expect this reckoning.

I doubt Hanna will win her case, as the Ontario Human Rights Commission has repeatedly said no business or institution can deny treatment in accordance with one’s preferred gender.

This was tested in 2014 when British blogger Avery Edison settled a human rights complaint against the Ontario government after being detained in a men’s jail, despite identifying as a woman.

Irrespective of vulnerability that led Hanna to the shelter in the first place, she’s a white woman—just a half notch beneath white men on the emerging hierarchy of marginalization.

How the religious freedom of Muslims stacks up against a transgender person’s right to get their genitals waxed, while more comedic, is sure to be a more interesting case.

A Brazilian wax wouldn’t be the average person’s hill to die on, but when the state insists no perceived injustice is too small for its intervention, this is the painful outcome—literally.

Think Canada needs more gun control? Think again

Anyone arguing Canada is in need of further gun control has clearly never attempted to buy a gun there.

Yet, in the wake of the tragic shooting last month on Toronto’s Danforth Ave., there’s a contingent pushing for exactly that. Toronto’s city council passed a motion calling on the federal and provincial governments to ban the sales of handguns and their ammunition, while Prime Minister Justin Trudeau isn’t ruling out such a proposal.

It was with great frustration that I read University of Toronto professor Jooyoung Lee’s op-ed in the New York Times urging Canada to “reflect on whether handguns ought to be banned.”

Prof. Lee cites a report that 62 per cent of gun-related homicides are committed with handguns, but omits the fact that the majority of guns used in crimes in Canada are illegally owned.

This includes the handgun used by Toronto shooter Faisal Hussain, whose older brother has ties to a street gang and was charged with several drug and weapons offences in 2015.

A handgun ban wouldn’t have stopped Hussain from getting or using his gun. Those who say otherwise don’t know how strict the rules already are.

There is no Canadian version of the second amendment; the government views gun ownership as a privilege, not a right.

Buying a typical rifle or shotgun requires a license granted by the government only to those who have gone through a number of steps, including passing the firearms safety course’s written and practical exams, clearing background and reference checks, and approval by the Chief Firearms Officer.

Mental health, job losses, divorces and bankruptcies are all factored into applications.

Owning a handgun, or other firearms classified as restricted (such as AR-15 models), requires a harder-to-get license that invites even more scrutiny and oversight from the government, including an assessment of why you want handguns. Generally, collecting and sport shooting are the only valid reasons.

As a collector, you can’t take your guns anywhere. As a sport shooter, your license can be revoked if you aren’t’ a member of a certified gun range.

Police run daily background checks on licensed owners, and can perform warrantless home inspections to ensure storage regulations are being followed.

You won’t find a loaded gun in the nightstands or glove compartments of Canada’s law-abiding gun owners.

At home, handguns must be locked, unloaded and secured separately from ammunition. When in transit, you must take the most direct route from home to the range or gunsmith or back. Even innocent slip-ups can mean criminal charges.

The only ones impacted by a handgun ban are those like me who work hard to stay within the laws—not the people who are actually committing crimes with guns.

American gun owners are likely in shock by this. Despite my frustration with several of the restrictions that don’t enhance public safety, I concede that the system is effective in weeding out those who pose a risk to themselves or others.

But as the Toronto shooting shows, this won’t stop someone hellbent on committing an act of violence from getting their hands on a weapon.

The calls to ban handguns ignore the lack of correlation between lawful gun ownership and gun crime.

Between 2004 and 2015, the number of legally owned restricted guns doubled, yet firearm-related homicides remained fairly constant—and even dropped, some years—in the same timeframe.

Toronto had a surge in shootings in 2005—mostly gang related. At the time, police said 70 per cent of guns used were smuggled from the United States. In the years since, the Canada Border Services Agency has reported increases in illegal weapons seizures.

Trudeau has pledged to look at how jurisdictions around the world have dealt with gun control. It’s important to look at all violent crimes, not just those which involve firearms.

In countries with incredibly strict gun control, like the United Kingdom and Australia, the results have hardly been as idyllic as advocates like to make out.

Knife crime in the UK has filled a void in the country’s cities. After firearms were effectively banned in 1997, homicides actually increased for five years, and only started to drop in 2002, mirroring an overall trend in Western nations that existed irrespective of gun control.

Australia’s sweeping gun confiscation, enacted in the 1990s by former prime minister John Howard as a kneejerk reaction to a mass shooting a year earlier, hasn’t deterred a steady increase in gun crimes. In fact, firearm offences have gone up by 250 per cent since 2011.

The challenges would be all the greater for Canada, which shares with the United States the world’s longest unprotected border.

If Australia, a literal island thousands of miles from the United States, can’t stop the illegal importation of American guns, I can’t fathom a world where Canada fares much better.

Canadians know nothing about their activist Supreme Court. That’s dangerous.

First published in the National Post on July 16, 2018.

Frenzy overtook the United States when Supreme Court justice Anthony Kennedy announced his retirement last month. It was a far cry from when former Canadian chief justice Beverley McLachlin announced her retirement last year and Canadians breathed a collective “Who?”

This is among the starkest of differences between the political cultures and Canada and the United States.

In American politics, a Supreme Court vacancy means countless news cycles: weeks of speculation about potential nominees, followed by days of in-depth coverage about the nominee, capped off with weeks of confirmation hearings. This is because it’s significant. Putting the right justice on the bench can shape a president’s legacy in monumental ways.

In each of their eight years, Barack Obama and George W. Bush installed two Supreme Court justices. Donald Trump will accomplish the same with less than two years in office. If Trump wins a second term, he may well get another two vacancies to work with, with 85-year old Ruth Bader Ginsburg and 79-year old Stephen Breyer — both appointed by Bill Clinton — holding down the older side of the bench.

American politicians — and their voters, for that matter — understand the stakes of the court. Canadians couldn’t care less.

In Canada, there’s no drive to understand whether a potential justice is pro-life, or religious, or a strict constitutionalist. In the United States, these same people are lightning rods in the culture war over these very issues.

One could argue that having an expectation judges will rule along ideological lines based on who appointed them defeats the purpose of a supposedly apolitical judiciary. This is inevitable, however, when so much politics is dispensed from the judiciary. Our era is one of governance from the bench, meaning Canadians would do well to pay attention to what happens there.

American politicians — and their voters, for that matter — understand the stakes of the court. Canadians couldn’t care less

I asked a room full of politically-minded folks last week how many people could name a single Canadian Supreme Court justice (making sure to tell them McLachlin had retired.) I didn’t get a single response. This complacency undercuts our ability to be outraged — or even surprised — when the benchers make the wrong call.

The Trinity Western University ruling, for example. The majority of justices found that the Law Society of Upper Canada (now the Law Society of Ontario) infringed upon TWU’s Charter rights, but it was OK because the law society’s decision “represents a proportionate balance between the limitation on freedom of religion guaranteed by s. 2 (a) of the Charter and the statutory objectives that the LSUC sought to pursue.”

In other words, the court ruled that the constitution, instead of having the final say, must be “balanced” against a lesser administrative body’s mandate.

Admittedly, it may be difficult to find a strict constitutionalist in a country that lacks a strict constitution, but were Canadians more engaged in — or at least aware of — the process by which the Supreme Court is formed, judicial appointments would come with much more accountability.

From religious freedom to mandatory minimum sentences to something as seemingly trivial as driving beer across provincial boundaries, in all of these areas the Supreme Court has ruled against what most would describe as the conservative position. Even after 10 years of a Conservative government that appointed six of the nine current Supreme Court justices. Even Richard Wagner, the new Chief Justice, was appointed by Stephen Harper.

While Canadian Conservatives sound the alarm about Supreme Court rulings, they should actually be looking to the lawmakers who had a hand in shaping the court that made them. Like the Senate, the Supreme Court’s makeup and influence outlast the government of the day: justices in Canada are appointed until they turn 75. Not the lifetime appointment that exists on the bench in the United States, but still a term that can span decades.

While I’m sympathetic to the argument that America’s approach to the Supreme Court is far too polarized, I will take that over Canada’s ambivalence to it. The polarization is a byproduct of a country that is invested in its court in a way that Canada must be.

We wouldn’t stand for laws being passed by faceless agents in a back room, so we certainly shouldn’t be content with faceless judges interpreting them.