This enactment amends the Canadian Human Rights Act to add gender identity and gender expression to the list of prohibited grounds of discrimination.
The enactment also amends the Criminal Code 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 or expression constitutes an aggravating circumstance that a court must take into consideration when it imposes a sentence.
Public incitement of hatred
319 (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
Wilful promotion of hatred
(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
From all of this, the question now becomes whether or not there have been decisions made, or legal precedent set that applies this law to cover the misuse of pronouns. I have yet to find any cases of the application of Bill C-16 to criminalize the misuse of pronouns; however, there was a piece that the CBC put out which asked some of these questions. Some excerpts of note are as follows:
“The misuse of gender pronouns, without more, cannot rise to the level of a crime,” she says. “It cannot rise to the level of advocating genocide, inciting hatred, hate speech or hate crimes … (it) simply cannot meet the threshold.”
The Canadian Human Rights Act does not mention pronouns either. The act protects certain groups from discrimination.
“Would it cover the accidental misuse of a pronoun? I would say it’s very unlikely,” Cossman says. “Would it cover a situation where an individual repeatedly, consistently refuses to use a person’s chosen pronoun? It might.”
If someone refused to use a preferred pronoun — and it was determined to constitute discrimination or harassment — could that potentially result in jail time?
It is possible, Brown says, through a process that would start with a complaint and progress to a proceeding before a human rights tribunal. If the tribunal rules that harassment or discrimination took place, there would typically be an order for monetary and non-monetary remedies. A non-monetary remedy may include sensitivity training, issuing an apology, or even a publication ban, he says.
If the person refused to comply with the tribunal’s order, this would result in a contempt proceeding being sent to the Divisional or Federal Court, Brown says. The court could then potentially send a person to jail “until they purge the contempt,” he says.
“It could happen,” Brown says. “Is it likely to happen? I don’t think so. But, my opinion on whether or not that’s likely has a lot to do with the particular case that you’re looking at.”
All of this being said, this was just looking at it from a Federal perspective – the provinces, themselves, are a completely different story. For example, British Columbia’s Human Rights Code includes “sex, sexual orientation, gender identity or expression” in its protections from discrimination, and, in Ontario’s Human Rights Code, they also include “sexual orientation, gender identity, gender expression” in their list of protections from discrimination. There is a large body of precedent that I can find which ends in a successful lawsuit for misuse of pronouns. Just to name a few:
For the sake of accuracy:
As was passed in Bill C-16:
And, as specifcied in the Canadian Criminal Code:
From all of this, the question now becomes whether or not there have been decisions made, or legal precedent set that applies this law to cover the misuse of pronouns. I have yet to find any cases of the application of Bill C-16 to criminalize the misuse of pronouns; however, there was a piece that the CBC put out which asked some of these questions. Some excerpts of note are as follows:
All of this being said, this was just looking at it from a Federal perspective – the provinces, themselves, are a completely different story. For example, British Columbia’s Human Rights Code includes “sex, sexual orientation, gender identity or expression” in its protections from discrimination, and, in Ontario’s Human Rights Code, they also include “sexual orientation, gender identity, gender expression” in their list of protections from discrimination. There is a large body of precedent that I can find which ends in a successful lawsuit for misuse of pronouns. Just to name a few: