Pluralitas non est ponenda sine neccesitate

All things being equal, the simplest solution tends to be the best one – William of Ockham

Jordan Peterson and Jared Brown’s alarmist assertions [1] someone could face jail for using the wrong pronouns for somebody has a far simpler answer thanks to Ockham’s razor and our laws:

Just let the employee go.

William of Ockham was a 14th century philosopher whose central principle was simplicity. Now known as “Ockham’s Razor”,  it urges us to eliminate unnecessary hypotheses when searching for the truth:

Entities should not be multiplied unnecessarily

(… the simplest of competing theories should be preferred)

This is in striking contrast to the overly complex idea running through the veins of some conservative circles lately and illustrated in a recent blog by DORÉ BAK‘s conclusion that bill C-16, a bill that added explicit protection on the basis of gender identity or expression to Canadian law, will cause people to risk prison for saying the wrong thing, on purpose or accidentally, in a somehow special and dangerous way.

This is wrong, especially in the case of Jordan Peterson who refuses to participate in the training his employer the University of Toronto demands he attend.

The simpler truth recognizes that in the case of

  1. a service made available to the public,
  2. tenancy, or
  3. employment,

employers, service providers, and landlords are required to adhere to the requirements set out by human rights law. In fact, the bigger the entity, the greater the expectation that they comply.  To be clear, this does not apply to the general public except in some cases when discriminatory material is published.

The alarmist concern stems from a claim made by Jordan Peterson in 2017 that one would refuse to participate in training mandated by his employer, and further claims by Jared Brown that contempt of court can send people to prison.

The Razor

In fact, the truth follows Ockham’s razor quite well. The outcome for an employee who refuses to adhere to the standards set out by their employer would be so much simpler than Jordan claims: he would be fired.

And I would applaud.

Misconceptions about human rights law are so profound within some under-informed conservative circles that at the 2018 Conservative Party of Canada convention in Halifax, the party’s riding associations of Hamilton-Mountain and Hamilton West Ancaster-Dundas proposed a handily-defeated resolution to roll back human rights laws on the basis of their misunderstanding of the law itself that human rights law dictates speech.

It does not. That it took intervention from MP Karen Vecchio to set the record straight is a bad sign…

Ontario Tory MP Karen Vecchio asks delegates to reconsider bid to campaign on revokin trans rights protection at 2018 National Convention

In a recent and fairly long blog entry, DORÉ BAK attempts to reason through the question of whether the recently added human rights protection of gender identity or expression can cause people to be sent to jail for rejecting what Jordan Peterson calls “compelled speech“, a rule or law that whose outcome would be to force people to utter words they would not otherwise say. Unfortunately, Bak chooses not to take into account that every hypothetical situation he explores also applies to statements made on the basis of any other explicitly prohibited discrimination such as calling people names on the basis of their race, religion, or disability. In fact, these protections have been in place for decades.

Believe what you will: Actions matter, not beliefs.

The focus of Bak’s blog is on the fear of being found in contempt of court for refusing to comply with a court’s order to participate in sensitivity training, something Jordan Peterson has said he would refuse to do if his employer the University of Toronto demanded he do. He claims to fear being forced to “believe” that transgender people exist and that we are a reflection of diversity. He fears that somebody who might believe other races or faiths to be inferior or “wrong”, or that anyone who believes I am mentally ill, a liar, or inferior over my gender identity or expression, would be “compelled” to recognize me as a woman.

In fact, people are entirely free to hold any set of beliefs. What we can not do is express those beliefs at work in violation of our terms of employment. We remain free to refuse to adhere to social expectations as framed in our laws and to NOT acknowledge that other races, faiths, or other identities are as valid as our own.  The actual constraint we face is to NOT make statements that violate our laws, as doing so is a violation of many of our terms of employment.

For example, not claim in passing that racialized persons are lesser or undesirable; not claim that his Catholic Faith is the One True Faith and all who disobey it face perdition; not insist on calling me Mr Oger; not insist all women are to be called “Miss” unless complying with his compulsory monogamy Fantasy-of-the-day.

Staying outside of prohibitions is actually quite simple – and an existing requirement of our society.

The BC Civil Liberties Association recently published a post for Kinder Morgan pipeline protesters that explains Contempt of Court, in the context of the ongoing Trans Mountain Pipeline protests in BC:

Civil contempt is where a person or corporation breaches a court order, and the nature of the conduct interferes with the interests of another private party. Criminal contempt is where a court order is breached, but the nature of the conduct interferes with the public’s interest in the “proper administration of justice”.[1] Conduct that is determined to interfere with the proper administration of justice is criminal contempt.[2]

Bak’s post focuses not on the legal consequence of ignoring ANY legal judgement but examines the surprising claims made by Ontario commercial and employment law litigator Jared Brown that Bill C-16 would criminalize speech, initially made when he testified before the Senate of Canada on the matter.

The title of Bak’s piece, “Jordan Peterson Was Wrong: No Jail Time for Refusal to Pay Fine, but for Refusal to Attend Sensitivity Training” indicates a certain misunderstanding of how the law works. Like Bak, I am not a lawyer either. I do have, however, some experience in British Columbia as both complainant and respondent in commercial law and human rights law and wrote last year about Peterson’s case in my piece “Peterson’s Petulance Problem

Jordan Peterson testifies before Senate of Canada in May 2017 that bill C-16 would compel speech.

Jordan Peterson would not face imprisonment or any criminal liability for refusing sensitivity training as an employee of University of Toronto because the responsible party is the university and not the staff.

It is the university that is held responsible before students for his actions as an employee, not Peterson himself.

Jordan Peterson’s punishment would be (and should be) getting fired, a simple matter of contract law in which either side of a contract is free to terminate it for cause (such as refusing to live up to the employer’s code of conduct or a refusal to participate in mandatory training).

This is in stark contrast to May 2017 evidence provided in testimony by Jordan Peterson and Jared Brown as evidence to the standing senate Committee on legal and constitutional affairs:

Peterson: You may or may not know that I made some videos criticizing Bill C-16 and a number of the policies surrounding it. I think the most egregious elements of the policies are that it requires compelled speech.

Brown: How does Bill C-16 get us to compelled speech? The Minister of Justice has summarized Bill C-16 as: The enactment amends the Canadian Human Rights Act to add gender identity and expression to the list of prohibited grounds of discrimination.

The chilling effect of leaving over-broad provisions on the books cannot be ignored. While the chilling effect of human rights legislation is likely to be less significant than that of a criminal prohibition, the vagueness of the law means it may well deter more conduct than can legitimately be targeted. As a lawyer on the ground, I worry about poorly drafted law and its impact on my clients. As a Canadian, I worry about Parliament tacitly authorizing compelled speech.

Baseless claims? So far, yes

I can find no other lawyer who supports this analysis that Bill C-16 in of itself is related to these claims. If there is support for this analysis, even better if there is case law supporting it, I urge people to send it to me.

Brown’s views came up again in a panel on Bill C-16 with Barbara Kay and ex-Teaching-Assistant Lindsay Shepherd who is now suing Wilfred Laurier University for millions over a related controversy she created when she refused to take the advice of her management leadership (yes, I feel she should have been fired too).

In this panel, Brown renewed his warning:

“You see the intention of the bill was to compel speech all along,” he said. “The supporters of the bill intend to control the linguistic territory, they want to force you to use their words and opinions.”

Based on Brown and Peterson’s claims, Bak concludes in their piece that:

It is clear to me that Dr. Peterson is 99% accurate in saying he might get jail time for non-compliance with preferred pronoun usage. Jail time though is not for refusal to pay a tribunal fine, but for refusal to participate in court ordered sensitivity training or other non-monetary remedy.

Contempt of Court is a serious offence.

It is an undisputed fact that there are obvious and escalating consequences to ignoring a court’s ruling in Canada. Criminal Contempt or Civil Contempt are serious offences that can result in any judicial process in which a person ignores a court decision.

That anyone would be surprised by this or would claim this is a unique consequence to bill C-16 seems either deeply myopic and troublingly obsessed with not applying basic systemic protection on the basis of gender identity that we apply to all other explicit protections.

What is NOT a fact, however, is that it has anything specific to do with bill C-16 or that adding gender identity or expression to the list of enumerated protections from discrimination and to the criminal code does anything that Brown, Peterson, and Bak claim it does.

It anyone’s right to refer to any person as “him” or  “her” or “it” unless they are under a community agreement to be respectful such as in an employment situation, on an online platform, or a rental situation.

What is not a right?  To be employed while being offensive

After all, Jordan Peterson, Lindsay Shepherd, or any one else who needs to do so is free to choose to act like a racist or transphobic person, or can insist on calling every unmarried woman “Miss” if they chooses to.

Their decision to swim at cross-current to our community standards merely cause them to risk doing so without employment that puts them in contact with others. If they feel so strongly they can not act in a way consistent with society’s expectations, somebody by the appropriate pronouns or by a well chosen abstract version such as they/them, they are perfectly free to choose an employment option unrelated to people such as night watch in an automated factory for example…

The misguided who choose to can elect to face fines or imprisonment for ignoring an order from a judge over ANY order – be it jaywalking, public urination, playing their radio too loud, or appearing somewhere at an appointment.

Do your job or get fired

An order from a court is unlikely to apply for a non-compliant employee. This would be a simple employment dispute with a well-established remedy.

In Jordan Peterson’s case, what is at issue is not not his refusal to recognize transgender and non-binary people as who we are.  It is his statement he will actively refuse to fulfil his employer’s expectations that he treats his students and coworkers with the respect, professionalism, and courtesy prescribed in the University of Toronto’s employment standards – on which his continued employment depends.

This is also the issue at play with Lindsay Sheppherd’s situation: that she deliver the educational product as a teaching assistant that Wilfred Laurier University is entrusted and contracted to provide.

For them both, the failures of their employers to ensure the environment they cultivate for students and staff is a safe and welcoming one for everyone is disappointing. This error to set clear guidelines and to enforce boundaries leaves both of these institutions open to complaints. Disciplinary procedures are an opportunity to address this. It is of course that this has happened, explaining why neither of these people are currently in a situation in which their error can be repeated.

Be seen to be fair – even if the wolves howl

Although both universities discretely removed both Peterson and Shepherd from teaching positions, they seem to have caved in to pressure by not openly setting a boundary in the light of public pressure.

It is my understanding that Jordan Peterson is not currently teaching classes at U of T, possibly a sign that the university chose to quietly move him aside rather than face the ire of his peers if they did fire him. In a way, this cowardice seems regrettable. Then again, a quiet correction gets the job done. I have previously urged U of T to dispose of him and repeat that call.

The timidity of both University of Toronto and Wilfred Laurier University has caused a blur about the expected comportment of student-facing staff. Are Peterson and Shepherd heroes of free speech or are they employees who forgot their place? Should they be celebrated as is happening in the alt-right universes or condemned as they are in the circles where I spend much time?

It would have been helpful to Canada if the two employers had stood up and acted with clarity rather than quietly wilt in the face of criticism only to let uncertainty reign.

Peterson teaching students again would be a terrible idea

If Peterson HAD continued to work at U of T as a lecturer instead of circling the planet, a student might have complained and exposed the university to a human rights tribunal’s ruling that they had allowed one of their staff members to violate the requirement we place on all our institutions that they maintain a safe and welcoming environment free of discrimination. The tribunal on such a decision might have ordered that all teaching staff receive the sensitivity training that Peterson so far refuses to receive.

A tribunal might also have looked very grimly at the fact U of T knew of this problem and did nothing.

So far everything has already mended itself WITHOUT the jail time Peterson has been promising for so long. Of course, the troubadour will one day stop touring and is likely to return to test U of T’s will as he does not strike me as somebody likely to give in.

By all appearances U of T merely succeeded in kicking the problem down the street.

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