2016/12/02: Thank you, Lord Black - really - but you're wrong

Earlier today, Conrad Black wrote an article in Canada's National Post, and the article was called "Jordan Peterson speaks for those of us who refused to follow the great liberal death wish." Now, for those of you who don't know who Conrad Black is, I'll read you a little bit from his Wikipedia profile. Conrad Moffitt Black, Baron Black of Cross Harbour, was born on the 25th of August, 1944. He's a Canadian-born British former newspaper publisher and author. He's a non-affiliated life peer. Black controlled Hollinger International, once the world's third largest English-language newspaper empire, which published the Daily Telegraph in the UK, the Chicago Sun-Times in the US, the Jerusalem Post in Israel, as well as the National Post, the newspaper that he published this article in in Canada, and hundreds of community newspapers in North America.

I'd like to start this by thanking Lord Black for his support, but I would also like to point out that despite his supportive stance, there are things that are important that he didn't get right, and I think it's reasonable to draw people's attention to them. So, the first thing I'm going to do is just read what he wrote and then I'm going to comment on it a little bit, and I'm going to do so in a manner that I hope does indicate that I do appreciate his support and I'm not trying to be frivolously critical in any sense. And then I want to read a response that a lawyer has prepared as well, just so that you understand, all of you who are listening, understand this a little bit more clearly.

Conrad Black writes, "I have just endured the sobering experience of watching the always very intelligent and professional Steve Paikin chair a panel about the transgender controversy that centers on University of Toronto professor Dr. Jordan Peterson." That was the I had an appearance on TV; I was on The Agenda with Steve Paikin a couple of weeks ago where the pronoun issue was discussed. Black states, "I followed the story as it percolated up in the press, much of the fraud things in which must usually be taken lightly. It was, I fear, a piercing glimpse into what great and venerable statesmen of my youth, such as Winston Churchill, Dwight Eisenhower, Harry Truman, and Louis A. Law called days that I shall not see. I did not until now grasp the fine balance between gratitude and wistfulness in their invocation of that phrase. As a young person, I thought at the license of the great to engage in histrionics, and I now claim it as the right of lesser yet aging people such as myself."

Black states, "For those who have sagely ducked or otherwise been spared exposure to this controversy, Dr. Peterson rejects the right of his students to require him to address them if they are trans people, i.e., in some state of flux between the male and female poles of gender identification. Not their orientation, whether they are homosexual, heterosexual, bisexual, or asexual has nothing to do with it other than in a way that consigns them to the claustrophobic confines of being male or female." Now see, this is one of the things that's interesting about Mr. Black's column. He obviously considers this issue of sufficient importance to address it, but there's an element that he can't eliminate completely from his mind: this supposition that this is absurd. And it is absurd in many ways, but here's the mistake: just because something is absurd doesn't mean it's trivial.

And I think this is where Mr. Black makes an error in his column. Yes, it's absurd—that's why he says that people have sagely ducked it or otherwise been spared exposure to it because it's been a ridiculous controversy. And I think there's no question about that; it's surreal. I found the whole thing surreal. But you know, back in the 1930s when the Nazis first made their appearance on the scene, everyone thought they were absurd and concluded that that meant that they were trivial, and they were not trivial despite their absurdity. And this is not trivial despite its absurdity. In fact, its absurdity, I think, in some sense points precisely to the fact that it is anything but trivial.

Because something that is on the surface of it so absurd is being defined and so much as being made of it. It's being classified; the refusal to use pronouns, for example, is being classified as a hate crime. That's not trivial, although it is absurd. Now, "he" for "he" and "she" and "xer" in place of "his" or "him" are the sticking points. But what is accumulating behind these imbecilic distinctions is quite sinister. The tape Steve Paikin ran of Dr. Peterson being reviled and shouted down and physically intimidated at the University of Toronto was distressing. We may be on the edge of a defining moment in our jolly and progressive Canadian civilization.

Dr. Peterson sees it as a matter of freedom of expression and believes that others do not have the authority to require him to address them in a newly hatched vocabulary devised to oppress the "gender binary." Conventional practice, while his opponents profess to believe that in refusing to do so he is committing a hate crime punishable by Human Rights commissions or tribunals—these hoary-headed monsters—Black is referring to the human rights tribunals whose egregious trespasses on freedom of expression in the name of despotic political correctness have been heroically contested by my friends Mark Steyn and Ezra Levant and others.

Does not prescribe imprisonment under the Articles invoked by Dr. Peterson's assailants, but a fine is possible. Yes, and we might also point out that it's a very large fine that is possible. In New York State, for example, failure to use the requisite pronouns brings with it a maximum fine of two hundred and fifty thousand dollars. In any case, Conrad goes on to say, "as if to assure the least possibility of a quiet end to this preposterous issue, Dr. Peterson has declared that he will not pay a fine, and if imprisoned for not paying, would embark on a hunger strike."

Now, this is another place where Black confuses absurdity with triviality. He believes that my response to this is an overreaction, and that's part of my refusal to bring this preposterous issue to a quiet end. He's suggesting that I'm exaggerating and that as a consequence, he's implying that I'm at least in part responsible for blowing up something that's merely absurd into something—I'm blowing up the importance of something that's merely absurd.

Anyways, he says, "While my sympathies are with Dr. Peterson, this is an unjustified hypothetical escalation." Remember that he says this: "This is an unjustified hypothetical escalation." If it came to that, the authorities would attach his bank account or his income and collect the fine in that manner rather than imprisoning him and provoking a hunger strike. Yes, well, we'll see about that.

Okay, so the first thing that I want to tell you listeners is here's the powers of the social justice tribunals. I pulled this from their own statement about their power. So this is 1.6, this is Section 1.6—powers of the social justice tribunals in the relevant Ontario legislative document. 1.6: You have to listen to this very carefully. The tribunal will determine how a matter will be dealt with—that's a matter brought before them, say, a matter of discrimination or harassment defined by their policies, their appalling policies—and may use procedures other than traditional adjudicative or adversarial procedures. Okay, so I'm going to repeat that: the tribunal will determine how a matter will be dealt with and may use procedures other than traditional adjudicative or adversarial procedures.

Okay, that's 1.6. 1.7: "In order to provide for the fair, just, and expeditious resolution of any matter before it, the tribunal may…" and I’m going to skip to take any other action that the tribunal determines is appropriate. Now, you've got that. They've actually written a clause into the policy documents that describe their powers that states they can take any other action they determine as appropriate. Well then, I would say that that's gone beyond absurd; or I would say that's still absurd, but it's by no means trivial.

And my sense that this is extraordinarily dangerous legislation is correct, whereas Dr. Black’s insistence that I'm exaggerating the seriousness of the situation is incorrect. Here's 3.13 from the same document: "Where a party has been notified of a fair hearing and fails to attend, the tribunal may take any other action it considers appropriate." So, that's a duplication of the previous statement, roughly speaking, where the Human Rights Tribunal takes to itself the power to do whatever it wants fundamentally.

Now, there are some other things to consider. Notice that these tribunals—including the Ontario Human Rights Tribunals—there are eight different tribunals. They're called social justice tribunals. Now that's not an accident; consider what that means. The term "social justice" is a code for political correctness and equity-oriented political philosophy. People know that; this is why the radical left activists are parodied as social justice warriors. Now, the social justice tribunal is operating in Ontario as quasi-judicial instantiations of the politically correct authoritarian creed, and they're designed by their designers to operate outside of the normal parameters of the law.

This is why they attribute to themselves the powers to use "procedures other than traditional adjudicative or adversarial procedures." Think about that; it means that the standard British common law approach to the issues brought before the tribunal can be suspended. Now, why would they do that? Well, it's rooted in politically correct, the underlying politically correct Marxist and postmodernist philosophy. Oh, you can consider it this way: if the fundamental presupposition is that Canadian civilization, as well as Western civilization in general, is a corrupt patriarchy, then what's the problem with suspending its rules of procedure when you're pursuing a justice that's higher than anything that's represented inside that tradition?

Well, that's exactly what they've written into the laws, attributing to themselves powers. So you can think for yourself and decide just exactly how dangerous that is. Now, back to Black: Dr. Peterson's approach is so inflexible and so entirely righteous without much using the powerful weapon of ridicule that is available to him, he may not have tracked the full range of support the virtue of his arguments and his personal courage deserve. It's a funny sentence because I can't tell exactly; I get that the terminology—that my approach is so inflexible that I may not attract the full range of support the virtue of my arguments, my personal courage deserve. I don't really think that I'm being inflexible; I'm merely refusing to use the language that's made up by politically correct radical left-wing authoritarians.

And that's not inflexible; it's reasonable. Why would I use that language? I don't agree with the philosophy. I think the principles upon which it's predicated are not only factually incorrect, scientifically incorrect, but malevolently motivated and extraordinarily dangerous. That doesn't make me inflexible, and so the terminology there is wrong. It makes me committed to not using that language. But on the substance of the issue, Black continues: "He is, of course, correct; we must always be wary of the majoritarian tyranny which has preoccupied many civil libertarians, including the principal authors of the Constitution of the United States, especially James Madison and Alexander Hamilton, who agreed on little else."

"But the transgender community is less than 1% of the population. As I have written many times in many contexts over many years, rights do not exist only for the numerous, and a litmus test of legitimacy of a society is its observance of the rights of minorities, including especially minorities of one. The jurisprudence of all great democratic nations is replete with famous cases to this effect: Captain Dreyfus, Dr. Samuel Mudd, who was prosecuted for treating the assassin of Abraham Lincoln, though there was no evidence that he was involved in the plot, and even the British Archery Affair made famous in the drama The Winslow Boy."

"The Peterson affair is threatening to cross the double white line. All people must be treated with respect equally, but there are only two genders, two sexes, or species, and all other mammals are gender binary." Well, I would like to point out to Mr. Black that that's now illegal under Bill C-16 and its associated sister legislation, and that might be observed, as I mentioned before, but it's not trivial. Idiocy written into the law unfolds into the idiocy of enforcement and obedience, and that's not trivial.

And as we will soon find out, Black continues: "All people may state their sex, and if that is contra physical appearances, that remains their right. But no individual or group has the right to invent a new vocabulary and a new co-equal gender because of a state of ambivalence or confusion about which sex they are." Yes, Mr. Black, they do have that right, and that's precisely what Bill C-16 instantiates, and it's already written into the human rights codes of the majority of Canadian provinces.

It's also an act of hate speech to dispute it, so individuals and groups have precisely the right to invent new vocabularies and not one, but many co-equal genders—up to 70, in New York State, for example. Black continues, "Every legally competent individual has a perfect and absolute right to declare their sex, but not to create a new legal status and legally require the use of a new vocabulary for those in flux between the only two sexes we have, mercilessly binary."

Well, the same argument applies there; they do have the right to create a new legal status, or many new legal statuses, and to legally require the use of a new vocabulary written into the law. They have that right, and I would say as well that Conrad Black's comments on that are also now illegal. The individuals in that condition may change their registered sex each day if they wish, but not treating anyone who declines to address them in terms that debunk the gender binary world as guilty of a hate crime, punishable by imposable fines.

About six months ago, I wrote a column in this space about the acceptance by the Supreme Court of Canada to hear an appeal of judgments from well-reasoned local courts, a request from a British Columbia band of native people numbering 900 who claimed that 25 years of consultation was constitutionally inadequate over a proposed ski area, that an elder of their band was supernaturally advised and after a lapse of some years told his people would drive off the spirit of the grizzly bear that was central to the religion of that band.

I concluded the column with the shabby polemical device that I only rarely employ: a rhetorical question. In this case, are we all mad? Of course, we are not, and we still live in a country where people can self-identify as they wish, even if it diverges from apparent realities. But we were almost at the point where people who declined to be legally forced to acknowledge the more implausible applications of this right are subject to persecution by social justice warriors and quite conceivably the government.

We're not almost at the point, Mr. Black; it's already written into law. We were terribly reluctant to impose normal rules of free discourse over the agitations of people who are using an imagined unlimited latitude on sexual self-description to gag, dictate to and prosecute reasonable people exercising the rights to free expression. It is another manifestation—parentheses of which the hyper-hypocritically respectful lamentations about the Stalinist despot Fidel Castro or another—end parentheses, of what my late friend Malcolm Muggeridge called the great liberal death wish. The great majority do not want to go along for that ride, and this time, the great majority must be heard and obeyed.

All right, so I told you what I thought about Mr. Black's comments, and now I'm going to read a legal opinion about them. "Mr. Black, I regularly read your articles with interest. I have interest in many of the subjects that you seem to devote attention to, including US history and presidential politics and behavior. I further enjoyed your recent appearances on CNN. With respect to the Trump phenomenon, I was motivated to write to you in this instance with respect to your article in the National Post today mentioned in the subject line of this email. A right not to detract from your main thesis regarding Mr. Peterson and those aligned against him, but rather to identify a potentially missed point of importance in your article.

"You call into question the volume of Mr. Peterson's rhetoric (my words, not yours) as being disproportionate by identifying that imprisonment is not the punishment that he faces by disregarding the gender-neutral ideology and any resultant orders from a human rights tribunal. Well, you may be—and hopefully are—correct that imprisonment is not in Mr. Peterson's future. The path to prison remains clear, the key point being that the human rights tribunals can and regularly do order non-monetary remedies in addition to the typical and well-known monetary awards.

"Failure to pay a financial penalty can result in imprisonment. It is admittedly a long and winding road, not entirely related to the unpaid penalty itself. That being said, if a tribunal were to issue its standard order, it would necessarily include some variation of the following: Number one, a declaratory order requiring Mr. Peterson not to misgender someone again or use the wrong pronouns; number two, a gag order requiring him to refrain from discussing the subject in public—possible given his academic status; number three, a publication ban requiring him to refrain from publishing on these subjects—possible given his media presence; and number four, to take mandatory sensitivity or anti-bias training.

"If Mr. Peterson were to breach these orders—for example, by refusing to participate in the training—and guess what? I would do the typical recourse of the tribunal, which is to pursue a contempt of court, which inevitably results in prison. Section 19 of the Statutory Powers Procedures Act Ontario states that an order of the tribunal is an order of the Superior Court. Section 13 of the Statutory Powers Procedures Act says the tribunal can pursue a breach of its own order by bringing an application to the Divisional Court—Superior Court. On that application, the Divisional Court employs Rule 60.1, one of the rules of civil procedure, but states that when faced with contempt of a non-monetary order of the Superior Court, the court can order imprisonment for an indefinite period and fines.

"The civil courts send people to prison for breaches of non-monetary injunctions and non-defamation orders with some regularity. Furthermore, human rights tribunals have a history of imprisoning persons for breaches of non-monetary tribunal orders. This happened most notoriously under the recently repealed Section 13 hate speech provisions of the Canadian Human Rights Code, of which Mr. Levant and Mr. Steyn quietly performed yeoman service for all Canadian citizens in having repealed. Well, the likelihood of prison remains highly contingent and remote, it does depend to a great extent on the benevolence of the public servants that staff the tribunal and the courts.

"Keep up the good work, D. Jarrod Brown, lead counsel, D. Jared Brown Proportionate Professional Corporation, Toronto, Ontario, wwe law dot CA." Well, so there you have it. That's the pathway to imprisonment for failure to use the proper pronouns. And so let's not be confusing absurdity with triviality. I appreciate your support, Mr. Black, but I'm afraid that you're treating this issue in some regard as if it's beneath contempt and that it's being blown out of proportion.

And I'd like to say as clearly as I possibly can, this is not being blown out of proportion. This is the current state of Canadian law.