Thank you for the invitation to address the committee with regard to Bill . In particular, I'm going to be speaking to the provisions that are intended to remove various provisions from the Criminal Code, as well as various reverse onus portions of them.
I am in favour of this bill, but I'd like to explain that support by situating this bill within the broader endeavour of which it should be seen as only a small part.
I'd like to begin with a quote from a minister of justice:
|| I believe that the time has come to undertake a fundamental review of the Criminal Code. The code has become unwieldy, very difficult to follow and outdated in many of its provisions.
That's not a quote from the current . That's a quote from Senator Jacques Flynn when he was the minister of justice in 1979. It's nearly 40 years since it was recognized that our code has been fundamentally flawed for a long time. Piecemeal reform since then has made the situation worse.
That's why I want to urge the committee to have a broader vision than just the proposals in this bill. Obviously this is the matter that's before you, and these are in themselves worthwhile, but to look at the task as only this is to ignore fundamental problems which have existed for decades. The last time there was a fundamental review of our Criminal Code was before I was born.
Let me make a statement that's going to sound like hyperbole, but it isn't. Canada doesn't have a criminal code. A code is a statute that sets out all the relevant law on a particular topic, and our Criminal Code, since it was first created in 1892, has never even pretended to do that.
Given the limits of time, I'm going to focus on only one particular issue there. There are many, in fact, but I'm going to focus just on one. It is that a code ought to tell us the elements that the crown needs to prove in order to prove someone guilty of an offence. Looked at another way, it ought to clearly tell people what behaviour is against the law, so that they are able to not break the law.
Our code doesn't do that. It has never tried to do that. In fact, the way it is currently drafted makes it more difficult, not less, to determine the elements of many offences. This is the direct cause of ambiguity, which is inconsistent with the rule of law.
Because of the limits on time, I'm going to focus only on one particular issue, the lack of what is referred to as a general part in our Criminal Code. Now, a general part is a common feature of criminal codes around the world. Among other things, it sets out the mental states that are required before a person can be found guilty of a crime. The notion that crime requires a guilty act and a guilty mind is very well known. As a general practice, our Criminal Code doesn't tell us what the guilty mind requirements of offences are. It doesn't have anything similar, for example, to section 15 of the German criminal code, which says that unless the law expressly provides for criminal liability based on negligence, only intentional conduct shall attract criminal liability. The failure of our code to take this basic and obvious step has very real consequences.
I'm going to take section 176 as an example, simply because it's the section that other people are here to talk about. From my perspective, it is a random section which is not particularly worse or better than any other. It is simply illustrative of the kinds of issues that arise.
Here's a very basic question. It's about offences related to clergymen in the language of the section. For an accused to be guilty of one of those offences, does the crown have to prove the accused knew that her actions were directed toward a clergyman? In paragraph 176(1)(b), the answer is clearly yes. That subsection says, “knowing that a clergyman”, so it tells us that knowledge is required. On the other hand, paragraph 176(1)(a) just refers to obstructing a clergyman, without talking about whether knowledge is required or not.
Is it sufficient that the person obstructed was in fact a clergyman, or does the crown have to prove that the accused knew that? On the one hand, we might say that one section talks about knowledge and the other doesn't, so that's an obvious difference between the two. The trouble is that the Supreme Court of Canada has told us to assume that every section of the Criminal Code requires knowledge, so that leads to the conclusion that both of them require knowledge. But if both of them require knowledge, then why did one of them bother to say that knowledge was required when we were going to assume that knowledge was required even if it hadn't said that?
No matter how the section is looked at, there's going to be some inconsistency there, making it impossible to be sure in advance what the section means. Exacerbating the problem that most of the time the code doesn't tell us mental states is that sometimes it does, but when it does, it uses inconsistent and contradictory language to do so.
Another part of section 176 talks about “wilfully” disturbing religious worship. As someone who has closely studied the Criminal Code for 30 years, I say with confidence I have no idea what that means. Sometimes when the Criminal Code uses the word “wilfully”, it means that the person's act was intentional. Sometimes it means that it wasn't the act that was intentional, but the consequence of that act that was intentional. Sometimes it means that whether the act was intentional or not, or whether the consequence was intentional or not, the accused was reckless with regard to that, and then sometimes the word “wilfully” means that the accused didn't think about something when it would have been appropriate to think about something.
The code itself uses exactly the same word to mean at least five different things, depending on which section of the code you're looking at, and that, from my perspective, illustrates the insidious nature of the problem. If you simply read section 176, on the face of it there's nothing wrong with it. This problem isn't obvious in looking at section 176; it's a problem that becomes apparent only when you look at the code as a whole and see the inconsistencies in the way in which things are done.
Now, as I say, I picked section 176 largely at random. It's an obscure provision and obviously doesn't have a huge impact on the day-to-day workings of the criminal justice system, but this problem and similar problems arise virtually throughout the code, and they arise for such routine and common offences as assault and theft, which, between the two of them, make up about 20% of the business of the criminal justice system. These problems have a very real impact.
Here's another example of problems caused by the absence of a general part. Let's say a person is asked to help smuggle cigarettes into the country without paying duty, which is a relatively minor offence, but in fact unknowingly assists in smuggling cocaine into the country, which is a much more serious offence. Which one should that person be guilty of? The offence they actually committed, or the less serious offence that they thought they were committing?
Well, again, whether you think it should be the more serious or the less serious offence, it would at least be nice to know what the law in Canada is. Now, the German Criminal Code, in subsection 16(2), says the person is only guilty of the less serious offence. In Canada...? Well, in 1965 the Yukon Territory's Court of Appeal seemed to suggest that the person would be guilty of the more serious one. In 1971, the British Columbia Court of Appeal seemed to suggest that the person would be guilty of only the less serious one.
In 1976, the Supreme Court of Canada had a chance to settle the issue, but actually didn't settle the issue, so we just don't know. There is no answer to that question in Canadian law. It comes up, and you just have to guess.
The Supreme Court of Canada has said:
||If an accused must wait “until a court decides what the contours and parameters of the offence are then the accused is being treated unfairly and contrary to the principles of fundamental justice”....
The fact is, however, that most of the time the Criminal Code does not set out the contours and parameters of the offences and we have to wait for a court to do it. This is just a blind spot; we just all struggle along, pretending that this isn't true.
This is why I say that a much larger task than simply removing some particular sections from the code is necessary. The major systemic problems we face cannot be solved by tinkering.
Yes, it's worth removing these sections, but doing that is going to have only a minor impact on bringing our code up to date. It is now literally impossible to add any new provision to this code in a way that does not contradict and create inconsistencies with some other part of the Criminal Code.
Only a large-scale review, including the inclusion of a general part, can solve that problem.
I'll be using prepared remarks that were circulated with the Canadian Council of Churches at the top, and speaking especially to clause 14 and the removal of section 176.
Thank you for the invitation to appear as a witness in this committee. We appreciate your outreach, and applaud the committee for connecting with representative organizations whose membership is affected by this legislation.
We would like to begin by acknowledging that the land on which we gather today is the traditional unceded territory of the Algonquin people. Further, nearly each and every community in Canada is home to communities of the Christian faith who belong to a member denomination of the Canadian Council of Churches, so we also acknowledge that the Canadian Council of Churches and its members live, work, and worship on the territories of first nations, Métis, and Inuit peoples of the land.
The Canadian Council of Churches (CCC) is the broadest and most inclusive ecumenical body in the world, now representing 25 denominations of Anglican; Evangelical; Free Church; Eastern Orthodox and Oriental Orthodox; Protestant; and Catholic traditions. Together the CCC is comprised of 85% of the Christians in Canada who profess adherence to a church.
The Canadian Council of Churches was founded in 1944.
The Canadian Council of Churches also participates in the Canadian Interfaith Conversation, whose charter vision states that “deep in the life of Canada and Canadians is the identity and practice of religion” and so “represents the desire to advocate for religion in a pluralistic society and in Canadian public life.” Together, its members “want to promote harmony and religious insight among religions and religious communities in Canada, strengthen our society’s moral foundations, and work for greater realization of the fundamental freedom of conscience and religion for the sake of the common good and an engaged citizenship.”
That's the introduction. Now I will speak a bit on the context and relevance.
Tomorrow is Reformation Day. It will be 500 years since Martin Luther disrupted the Christian church in Europe, was obstructed and prevented from celebrating divine service, and was arrested on his way to or from the performance of his duties. This year, the Roman Catholic and Lutheran churches are making history celebrating services under the theme “Conflict to Communion”.
In more recent years, Martin Luther King embodied and led a civil rights movement that was rooted in his and his community's religious practices. He and his community—an assemblage of persons meeting for a moral, social and benevolent purpose—was repeatedly disturbed and interrupted.
Here in Turtle Island, Canada, Dan Cranmer held a potlatch on the coast of British Columbia at the village of 'Mimkwamlis, during Christmas of 1921, and was arrested. Colonialism is an obstruction to religious freedom. For the period 2010 to 2013, StatsCan reports an average of 67 incidents per year of mischief motivated by hate in relation to religious property, as reported by police.
Religious expression is a central part of the identity and values of all people of faith in Canada. In faith traditions around the world, the religious leader is indispensable to the celebration or performance of religious ceremonies or rites. When they are unlawfully prevented or obstructed from serving or performing any other function in connection to their calling, then a whole religious community experiences harm. Given this ongoing significance of faith and religious leadership in the lives of a significant number of people in Canada, we respectfully submit that section 176 of the Criminal Code is not redundant or obsolete.
Mr. Chair and committee members, here are our recommendations.
The members of the Canadian Council of Churches are not of one mind regarding whether or not to retain section 176 of the Criminal Code. Frankly, many of our members had not been alerted in a timely fashion to the relevance and impending actions contained in the bill before you today.
However, members of the Canadian Council of Churches are of one mind regarding both the duty of the Government of Canada to respect and protect the fundamental freedom of conscience and religion, thought, belief, opinion and expression, and also, to ensure that there is no preference in the Criminal Code for a specific religion, but instead to favour a recognition of open and robust pluralism in Canadian society.
Should the Government of Canada retain section 176 of the Criminal Code, then we recommend that the reference to “clergyman or minister” be updated to be inclusive of all religious traditions, either via an inserted definition that refers to religious and spiritual officials from all religious traditions, including indigenous spiritualities, or to replace “clergyman or minister” with the phrase “religious or spiritual officials or leaders”. We further recommend consultation with religious leaders, including indigenous spiritual leaders, on how best to define an inclusive understanding of religious and spiritual leaders or officials in the law. Second, the gender-specific masculine language should be changed to refer to men or women religious or spiritual officials or to be gender non-specific.
In addition, we would like to reiterate our long-standing encouragement to the Government of Canada to establish regular working relationships with religious leaders in Canada either through the establishment of a religious leaders round table or a working relationship with representative bodies like the Canadian Interfaith Conversation, the Canadian Council of Churches, the Evangelical Fellowship of Canada, and other representative bodies. Of course, in an era of reconciliation, such dialogue must certainly include indigenous elders and spiritual leaders. Faith that is focused on the good of all is an important element of public dialogue in the diverse reality of contemporary Canada.
To conclude, the key overriding concern of the Canadian Council of Churches is the right to freedom of religion and the freedom of worship of religious communities, including gatherings for a moral, social, or benevolent purpose. This is not about privileging Christianity, but ensuring peaceful coexistence in a pluralistic society.
We are not advocating for a position of privilege or dominance for religious communities or leaders, but instead we want to ensure the freedom of everyone to gather for their religious celebrations.
Thank you. Merci. Meegwetch.
Section 176 is not redundant. The existing case law pertaining to this section shows us that the nature of the disruption matters. Paragraph 175(1)(a), on causing a disturbance, for example, requires loud or offensive noises, screaming, shouting, swearing, or obscene language, but not all disruptions of religious gatherings will engage section 175. There are disruptions that are profoundly disturbing, upsetting, and even frightening to worshippers that don't involve physical contact or loud or offensive noise, and in these cases, subsections 176(2) and 176(3) offer needed protection and reassurance.
We see this illustrated in the B.C. court decisions regarding Joseph Reed, who has many times disrupted services of Jehovah's Witnesses. Initially, Mr. Reed used a megaphone when he disrupted the gatherings. He was charged and convicted in those instances under section 175. He went on to deliberately disturb and interrupt meetings of Jehovah's Witnesses several more times but without making excessive noise.
He's been charged with other offensives, such as assault, because his disruptions have included a range of behaviours and tactics, but he has also been charged and convicted of disrupting a worship service. The charges laid under section 176 reflect both the nature of the disturbance, and, importantly, the intent of his actions, which were calculated in each instance to willfully disrupt the worship services.
A 1985 decision of the B.C. Court of Appeal said:
|| There is no allegation that Mr. Reed was shouting or screaming or causing an undue amount of noise. However, that is not a condition precedent to the operation of s. 172(2). It is an offence simply to disturb or interrupt an assemblage of persons met for religious worship, regardless of the motive.
In a 1994 B.C. Court of Appeal decision, Madam Justice Proudfoot stated:
|| Section 175(1)(a) makes it an offence to cause a disturbance in or near a public place. Section 176 makes it an offence to wilfully disturb or interrupt an assemblage of persons met for religious worship, or to wilfully do anything that disturbs the order or solemnity of such a meeting. In my view, the sections are quite different. Section 176 specifically targets interference with religious services or worship, but s. 175 deals with a variety of problems.
It is our submission that subsections 176(2) and 176(3) provide unique and specific protection for religious gatherings from disruption that is not offered by other sections of the Criminal Code, and should therefore be retained.
Section 176 also gives unique protection for religious services in public places. Subsections 176(2) and 176(3) provide unique protection for things like a religious procession on a street, a Jewish ritual enclosure in a public place, or a service in a park, particularly in cases where the criteria in paragraph 175(1)(a) are not met. To remove this section would unnecessarily strip away explicit protection for religious gatherings and officials and would undermine the assurance of religious practitioners that they may gather safely.
Second, removal of section 176 will diminish protection for religious freedom. In her statements before this committee, the said that removal of this provision would in no way affect people's religious freedom. While we respect that this may not be the intention, we do believe the removal of this provision will have this effect.
As the B.C. Court of Appeal found in 1994, “Section 176(3) protects the freedom of religion of persons 'met for religious worship'”.
An earlier B.C. Court of Appeal decision stated, “Such things as freedom of assembly and freedom of association, which are also in the Charter, could be meaningless without some such protection as s. 172(2).” This is now subsection 176(2).
Further, this move seems inconsistent with other government efforts to increase protection for religious communities and address hatred and discrimination, such as Bill C-305 and motion M-103. To remove the specific protection for religious officials and gatherings from the Criminal Code then sends a confusing and contradictory message to faith communities in Canada, many of whom feel particularly and increasingly vulnerable.
The meetings of religious communities are a fundamental expression of belief and practice and an outworking of religious freedom. Section 176 specifically protects the rights of individuals to freely practise this essential element of their religious belief and practice together.
Finally, and significantly for many faith communities in Canada, the removal of section 176 would communicate a lack of understanding and appreciation for the value and uniqueness of religious gatherings. Religious gatherings are distinct in character and purpose. They're not just like any other public gatherings or assemblies of persons, and an attack on a religious official or religious gathering is also distinct in nature and purpose.
We submit therefore that it's not only valid but an important objective for Parliament and the Criminal Code to continue to treat them as such. As the “Rapporteur's Digest on the Freedom of Religion and Belief” notes, “members of religious communities or communities of belief, whenever they find themselves in places of worship, are in a situation of special vulnerability given the nature of their activity.”
An offence against people at worship reverberates through the community and touches every member. An offence against one faith at worship has an impact on all religious adherents. The Special Rapporteur on Freedom of Religion and Belief also notes “attacks or other forms of restriction on places of worship or other religious sites and shrines in many cases violate the right not only of a single individual, but the rights of a group of individuals forming the community that is attached to the place in question.” Our faith and every other faith expresses a specific vision of how life should be lived. For many, it is the ultimate commitment to a divine being or force that provides personal and communal direction to life. For many believers, part of living out that faith includes gathering corporately with like-minded believers for reflection, contemplation, communion, teaching, and worship. This matters.
The specific protection offered by section 176 recognizes that there is something different, distinct, and valuable about religious practice. It recognizes that there is a good that is worthy of specific and explicit protection. To remove this protection would erode that recognition and undermine the value and place of religious belief and practice in Canada. The minister has expressed concern that the language of subsection 176(1) is specific to the Christian faith or Christian clergy. We believe it should be made clear that this protection is extended to all faith communities. We have two recommendations to the committee.
The first is that Bill be amended to retain section 176, and the second is that the language of paragraphs 176(1)(a) and 176(1)(b) be amended to make it clear that this specific protection is extended to leaders of all faith communities. Hence, the words “clergyman or minister” could be replaced with a term such as religious official or religious leader.
Section 176 is not redundant. It provides unique protection and a unique form of expression. We urge you to amend Bill , to fulfill the charter's guarantee of religious freedom, and to maintain the protection of the integrity and security of religious worship in Canada.
I'd like to start off my line of questioning with the Evangelical Fellowship.
I have to admit that when this bill was introduced, section 176 was just a little line item saying it's being repealed. In the great scope of the bill, it's something that is overlooked quite easily. My office, and I'm sure many MPs in the House of Commons, started receiving a lot of correspondence from people who are concerned with it. I am still wrestling with section 176.
I have a great respect for our Constitution and the Charter of Rights, and I understand that the fundamental freedoms, the freedom of belief and so on, are very important to protect everything we do. But what is not often talked about in this context is section 15of the charter, the equality rights. That's where it says that every Canadian is free from discrimination “based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”.
Not every Canadian is religious or spiritual, but many identify very strongly with these groups, probably as much as someone who's religious. They are a part of their community. It may be a race-based community. This is an area where they find comfort, people they can identify with. We know that people with different sexual orientations sometimes need these communities as a safe haven. But there is no specific section in the Criminal Code that deals with someone disrupting one of their meetings.
We're talking about equality rights and the fact that many of these offences are covered in other areas of the Criminal Code. A judge is free, for example, to hand down stiffer sentences if something is based on hatred. I would like to have your comment on section 15, equality rights, and on how we make the Criminal Code apply equally based on all of those different factors.
I note that it's not 100% correct to say that religion is given special protection. Actually, section 2(a) of the charter guarantees freedom of conscience and religion, so as Mr. MacGregor points out, conscience is there just as much as religion.
I know the argument is that there are things captured by this that are not captured by other sections. As I understood the argument, it was only that there might be things that didn't meet the definition of “disturbance” in causing a disturbance, but meet the definition here. Again, this is an illustration of my point about the fact that our code just doesn't keep up to date. Actually, the Supreme Court of Canada, in 1985, in a case called Skoke-Graham v. the Queen, as I read it, seemed to say that you needed the same standard of behaviour for being a disturbance, whether it's causing a disturbance or disturbing a religious assembly. That one narrow gap that might have been there isn't there, in my reading, but it's not a topic I've devoted a lot of time to.
Even if that narrow gap were there, it strikes me that the question the committee ought to be asking itself is not if it can find some way not to remove this, but rather what must be there in a proper approach to a Criminal Code. What's serious enough that we can't do without it, that causes such harm that it ought to be in the Criminal Code, and that cannot be solved by any method other than criminalization?
I think that's actually the orientation to take—not just toward section 176, and not just toward the other provisions that are being removed by this bill, but to the entire thing. What things do you have to have? Those are the things you should keep. That's the way to ask the question.
Thank you very much. I appreciate everybody's testimony today.
I grew up in Morinville, Alberta, and at the time the Catholic church was the big dominant presence. I was an altar boy and I even played the organ up in the top of the church because the organ I had at home only had one pedal, one octave of pedals, not two. I had a distinguished member of the clergy come and see me about section 176 this summer. It started our doing some research. I don't come at this from a legal perspective. I come at this from the perspective of the task set before us, which is to clean up the Criminal Code.
My overarching question for all of you is, what is lost? How does this actually affect clergy women and men and all people practising faith, leading their congregation, if we remove section 176? From my reading of the code, this is covered. The acts in section 176 are covered not just by section 2(a) in the charter, which gives broad interpretation to justices about any issues it might bring forward. If we take a look at the code, we see that section 175, disturbances; all forms of assault, sections 265 to 268; uttering threats, section 264.1; and Canada's hate crimes further prohibit conduct that incites hatred against identifiable groups, including those distinguished by religion, which are sections 318 and 319. Then there's also mischief provisions which you alluded to earlier.
I'm a fan of the data. We asked the Library of Parliament to look at the data. They pulled all the available data on section 176 from 2001 to 2014-15. There were 30 court cases in the whole country involving section 176. In 25 of those cases, the charges were staid or withdrawn. Only three led to a conviction. The most recent one here in Ottawa will likely not go forward because the person who was to be charged had a mental illness, and the priest at Saint Patrick said, “That's not fair. We're not going to go there”.
What would put your people at risk if section 176 is removed, given all the broad protection you have in the Criminal Code and in the charter?
Sure. Realistically, that mostly doesn't go specifically to section 176, and this varies from province to province.
In seven provinces and, I believe, all three territories, the charging decision isn't made by a crown prosecutor at all; it's made by a police officer. A police officer decides which charge to lay. Indeed, one of the things the Supreme Court of Canada has frequently said is that we don't want criminal law to be within the discretion of the police as to whether something is against the law or not. When you leave wide discretion, you create disparity in how the law is enforced, which is why we want the laws to be as clear as possible. It's only in three out of 10 provinces that it's actually the crown prosecutor who would be deciding.
If I remember the Statistics Canada figures correctly on this, about 70% of all charges that are laid are really for just 10 related offences, such as assault or assault causing bodily harm. There are 10 families of them that account for 70% of it. It's rare that a police officer is trying to decide, “Gee, what charge am I going to lay here?” Most of the time they already know. It's one of the familiar ones.
When they have to look around—that's the rare case—they actually just flip through the code, trying to work out what it is. One of the provisions that's being removed in this bill is pretending to practise witchcraft. It probably hadn't been prosecuted for 30 or 40 years, and about six months ago, some police officer in Toronto laid that charge. At some level, there's an element of randomness as to when the lesser-known offences come up. It's somebody looking at the index, doing a search online, and trying to find it. It's possible that the crown can then look at it and say, “You know what? That's the wrong one.”
Our theory is that crown prosecutors ought to be doing that after police have made the initial decisions. Mostly it does happen, but it depends on crown to crown.
First of all, thank you very much to the committee for inviting me. I think this is a very important topic, and I'm very pleased to participate.
I'm a university professor with a research specialization in religious freedom. I have to admit that when I first saw clause 14 of Bill , I thought it made sense and that section 176 isn't really needed that much in Canadian society. However, I just came from a meeting at the other end of the hall, with the heritage committee, where they're considering private member's motion M-103. That resulted from six men being murdered after Friday prayers at a mosque in Quebec City in January of this year. This incident provoked widespread shock and concern, particularly because it was at a religious service.
This section of the Criminal Code was not used in that particular case, because obviously the crime was much more egregious than disrupting a religious service. The point is, down the hall, a committee is considering what recommendations to make for a national strategy to combat systemic racism and religious discrimination, while this committee is considering dismantling a part of the Canadian law that might be a part of that strategy.
When someone wants to target religion, he or she does not spray-paint anti-Jewish comments on a bridge but on a synagogue. This happened in the city of Ottawa just last year. A mosque and a United Church were also targeted. The church was particularly targeted because its pastor is black, so it was an issue of racism in that case. If someone wants to target a religious group, it is the house of worship, be it a synagogue, a mosque, a church, or a temple.
Let me be clear. The freedom to worship is protected by section 2(a) of the charter, guarantee for religious freedom, and it is important to protect sacred spaces. If there are people or groups who seek to protest a religious group, they will demonstrate or protest near a house of worship, potentially disrupting a religious service. Do worshippers and sacred spaces not deserve protection?
We have seen a rise in hate crimes on the basis of religion in Canada. The most recently reported hate crimes on the basis of religion are from 2015. Those against Muslims increased by 60%, an increase from 99 to 159. Catholics also experienced an almost 60% increase, from 25 to 55. However, the number of police-reported hate crimes motivated by religion remains highest for Jews in Canada. With close to 500 reported hate crimes on the basis of religion, why would Parliament remove protection for religious services? It does not make sense.
I also note the new legislation in Quebec, Bill 62, that bans Muslim religious practice. Women who wear a niqab, a face veil, will not be able to access public services, including riding on public transit. In the face of government intolerance toward a particular religion, it is particularly incumbent on this government to maintain protection for religious services.
I note that this section of the Criminal Code faced a charter challenge in a case decided in 1985. The challenge was on the basis that this section violates freedom of expression and freedom of religion. Joseph Reed disrupted a Jehovah's Witness service and was charged under this section. He claimed a violation of his freedom of conscience and religion and freedom of expression. The British Columbia Court of Appeal said, “ In my opinion, recognizing as it does the competing nature of the demands for religious freedom, freedom of conscience and freedom of expression, s. 172(2)”—as it was then; it's been renumbered since—“meets those competing interests in a balanced way and I am not persuaded that it is unconstitutional or that it should not apply to Mr. Reed in the circumstances of this case.”
The appeared before this committee a couple of weeks ago and argued that this section is outdated because it refers to Christians. I do not see any reference to Christianity or churches in this section, and I further humbly suggest that it is within the power of Parliament to amend outdated wording. There is no need to remove the section in its entirety because the language is antiquated. There are many sections of legislation that use outdated language. It is a worthwhile project to amend these sections, but I urge you not to repeal all legislative provisions that use outdated, non-inclusive language.
The courts seem to have been able to broaden Christian language without difficulty. In 1993, the Supreme Court of Canada addressed an issue that involved what was called priest-penitent privilege. The Supreme Court used the terminology “religious communication” throughout the ruling. The court had no difficulty in adapting rules developed for the Roman Catholic confessional to a different religious context.
In its IT bulletin regarding the clergy residence deduction, the Canada Revenue Agency includes priests, pastors, ministers, rabbis, imams, and others formally recognized for religious leadership in its definition of clergy.
This section has not been struck down by the courts as offending the charter. It is still in use. There are reported cases from 1999 and 2005, and you've already heard about the current charge in Ottawa earlier this year. It is still relevant. It is still needed. I would urge you to consider an amendment to this legislation to remove clause 14. I also have some recommended language should you choose to recommend that section 176 of the Criminal Code be amended.
Thank you very much. Good afternoon.
I am pleased to be with you. I serve as the Archbishop of Toronto. Toronto is home to 225 Catholic churches and two million Catholics, and mass is celebrated weekly in more than 35 languages. Toronto is also home to hundreds of churches, mosques, temples, and synagogues.
I appear today with Bishop Gendron, the president of the Canadian Conference of Catholic Bishops, to convey our grave concerns that Parliament is suggesting that section 176 of the Criminal Code is no longer required. I would respectfully submit the opposite. More than ever, we need to legislate protection for religious communities and the services conducted every day across Canada.
This is the only section of the Criminal Code that explicitly references protection of religious communities. Some have suggested that the definition of clergyman may be too restrictive, perhaps implying that only Christian communities would be protected. We submit that the term “clergyman” is wide enough to include all faith leaders.
In a specific way, section 176, especially subsections 176(2) and 176(3), captures conduct that is not otherwise clearly reflected in the Criminal Code. We must recognize that there are ways to willfully disturb a religious service without screaming and shouting. A silent protest, unfurling a banner, blocking a procession, etc., can all prevent communal prayer and worship from taking place.
Section 176, especially subsections 176(2) and 176(3), adds clear and direct protection to the integrity of religious worship services. Section 176 is a unique part of the code, and removing it would leave religious communities vulnerable.
We accept the right of people to peacefully demonstrate and protest in public spaces. However, Parliament has drawn the line at conduct that willfully—not recklessly or accidentally, but intentionally—disturbs the solemnity of a religious service. Congregations across the country have a right to gather without being impeded in their assembly and their worship.
This section has been referenced in court cases in the past where judges have recognized that freedom of assembly and freedom of association, rights protected by the charter, could be rendered meaningless without the protection of section 176, especially subsections 176(2) and 176(3).
Places of worship should be sanctuaries of peace, prayer, and community. The bishops of Canada gathered just a few weeks ago in Ottawa to celebrate the 150th anniversary of Confederation, among other milestones. The service at the cathedral was disrupted by a protest, something we see happening with greater regularity. Anytime our churches are targets of protest, we see an arrest as a last resort. We always endeavour to de-escalate the situation. However, to foster a safe environment for the faithful, those who disrupt services should be subject to the Criminal Code if they refuse to cease and desist.
Moreover, the removal of such protection would send a disturbing message from Parliament to faith communities. Divine worship services of all denominations, as well as the important contributions of faith communities, should hold a special place in our heritage and our laws.
Canada's faith communities make vital contributions to strengthening our nation. We don't expect or demand that every Canadian practise a particular religion. However, we do expect that our religious celebrations will be protected, now and always.
The Catholic Bishops are troubled by clause 14 of Bill , which proposes to repeal section 176 of the Criminal Code. What gives rise to this concern? As mentioned in our submission, we believe attacks on religion are not like other attacks against public safety. They are not only more grave but threaten the essence of democracy itself.
This is because religious freedom is the cornerstone of human rights. We all ask questions about the meaning and purpose of life. Sometimes this includes questions about God or the divine. In all cases, we want to know the truth and, when we believe we have found it, we want to hold on to it and even to speak about it. The human person understood as a seeker of truth is the basis, thus, for religious freedom, for freedom of conscience, and indeed for freedom of speech. Where religious freedom abounds, democracy flourishes.
While religious freedom has special protection in Canada thanks to the Canadian Charter of Rights and Freedoms, section 176 of the Criminal Code is a deterrent and educator concerning particular threats with which faith communities can be faced. If the recent rise of hate crimes and prejudice against religious believers in Canada is any indication of the dangers that lie ahead, the removal of this clear and unequivocal section of the Criminal Code will make it harder to protect millions of Canadians who are active members of their faith communities.
Section 176 emphasizes and reinforces our shared belief in and respect for the freedom of religion and maintains an indispensable link between the Criminal Code and the protection of fundamental human rights.
Are other sections of the Criminal Code capable of providing the protections that section 176 extends? I would answer no. Even section 175, which prohibits causing a disturbance in a public place, fails to do so adequately. The very specific items named in that section actually exclude a whole range of conceivable acts that could constitute the disruption of a religious service.
Furthermore, as regards ministers of religion, to protect them from being obstructed in the performance of their duties or from assault is not to protect some ostensible elite status; it is to protect the community of faith by ensuring that the exercise of religious freedom is not impeded by acts of violence or threats that are directed against its faith leaders.
In Canada, people of many different faiths can live together and gather for worship without threat, hindrance, or intimidation. In order to preserve this kind of society, the Canadian Conference of Catholic Bishops urges Parliament to amend Bill so as to retain section 176 of the Criminal Code.
I am not a lawyer, but Bruce Simpson is here with me today, and he is a criminal lawyer who can shed a lot of light on all those points.
My name is Greg Oliver and I'm here on behalf of the Canadian Secular Alliance. Thank you so much for the opportunity to speak today.
The Canadian Secular Alliance is a non-partisan and registered not-for-profit organization whose objective is to promote the separation of religion and state in Canada. We strongly believe that to maintain equality between citizens in a pluralistic society like ours requires government neutrality in matters of religion, not favouring one religion over another, or religion over no religion, or vice versa. This is one of the core principles of all liberal democracies. Fortunately, Canada has done a much better job of this than most countries in the world, but there's still room for improvement.
In June of last year, I initiated the now-certified petition E-382, calling on the government to repeal section 296, prohibiting blasphemous libel, from the Criminal Code. There are several reasons why we feel this is necessary.
First of all, freedom of speech is a core principle of every liberal democracy and a cherished right here in Canada. All ideas should be subject to debate, criticism, or even ridicule. Exempting religious ideas substantially erodes this principle.
Also, section 296 is no longer relevant to Canadian society. Its repeal would have strong support across the Canadian political spectrum. It hasn't resulted in a successful prosecution in over 80 years, and no charges have been laid in over 35 years. Though I'm no legal expert, it is widely believed that it would be ruled unconstitutional under the charter. If a law has not been used in decades or is most likely unconstitutional, it ought to be repealed in our opinion.
Another consideration is global affairs. Blasphemy is still illegal in 71 countries and punishable by death in at Ieast six. Blasphemy laws are disproportionately used to persecute religious minorities and government critics. There have been a variety of high-profile blasphemy cases recently: Asia Bibi in Pakistan; in Indonesia, former Jakarta governor Ahok; Nahed Hattar in Jordan; Pussy Riot and others in Russia; Raif Badawi in Saudi Arabia, and countless others who have not received international press coverage.
Each of these cases constitutes grave human rights violations by liberal democratic standards. There may come a time when the elected representatives of this country wish to condemn cases like these. As long as we have blasphemy laws of our own, it significantly erodes our moral credibility when doing so. Our passive blasphemy law adds credibility to active and sometimes lethal blasphemy laws worldwide.
We also support the proposal to repeal section 176. Subsection 176(1) prohibits obstructing or violence to or arrest of clergymen. The wording here, as has been noted, appears to apply only to male Christian officiants. This privileges men over women, and Christians over those from other religions or the non-religious community. Also, harassment and assault laws already exist. To our knowledge, Canada is not burdened with a unique set of circumstances in which male or Christian officiants require additional protection from harm.
Subsections 176(2) and 176(3) are concerned with disruptions to meetings for religious worship, or for a moral, social, or benevolent purpose. Some types of meetings, such as weddings or funerals, can plausibly be interpreted in a religiously neutral manner, but we remain concerned about a chilling effect on freedom of expression at meetings for religious worship.
There have been several cases invoking these subsections since the 1980s. One of the cases that caught our eye was Skoke-Graham v. The Queen, from 1985. In this case, a Nova Scotia Catholic church changed how congregants were expected to take communion. Instead of kneeling, they would now stand to receive it. Six congregants dissented from this decision and continued to kneel when it came time to receive communion. Eventually, when presented with an ultimatum to stand, they refused to take communion and returned to their seats. They were convicted under section 176 and it was upheld twice on appeal, but the charges were overturned at the Supreme Court.
In this case, the short and passive nature of the protest exonerated the accused, albeit in the highest court in the country, but it highlights our concern that section 176 protects religious dogma or orthodoxy from criticism or civil protest. There are a myriad of religious ideas or practices that some may find objectionable. This is relevant within religious communities as well as outside of them. We remain unconvinced that these meetings are always an inappropriate venue for expressing differences that arouse controversy and therefore require more protection under the law.
Having said that, of course we acknowledge the benefit to society of protecting against certain disruptive acts at these meetings, but as the minister and several others have already articulated, the Criminal Code already criminalizes causing a disturbance, uttering threats, intimidation, and incitement of hatred toward identifiable groups. Sentencing is typically more severe when the offence is motivated by hate toward religious communities, and hate crime laws are potentially applicable as well. In our view, these protections make section 176 unnecessary.
I'll start with the second part first, if you don't mind.
I don't see how you can really interpret “clergyman” as meaning anything other than a religious leader, regardless of their gender and regardless of their religion. It's important to note that the courts have said over and over again that when interpreting legislation, you should try.... You can't bend the words all out of shape, but if there is a reasonable interpretation consistent with the charter, that's the interpretation to go with.
If “clergyman” only means “a male Christian”, this can't stand constitutional muster, but the Supreme Court of Canada and the British Columbia Court of Appeal have said that it does. Now, admittedly, they weren't dealing with that particular issue, but it would have hit them in the.... Anybody can read it, so I really think that's the thing.
The other point here that I think is important about hate crimes is that you can disrupt a religious service motivated by what isn't really hate. I think my friend Mr. Oliver makes a good point in one way. There is a difference between expressing strong feelings against, say, a religious doctrine, and strong feelings against members of the congregation. My understanding is that one is legal and probably should be, and the other is not and shouldn't be.
But it doesn't matter what the motivation is. If you're disrupting a religious service, you're causing a great deal of emotional turmoil to a large number of people. I don't think it matters why they're doing it. They're doing it.
Somebody made the point that a lot of these cases get diverted. That's because, when there is mental illness, often courts decide to divert if the person will get the treatment they need, and the crown is involved in that, but without the charge being laid, there is often no mechanism for that. The same is true for things like restorative justice, which a lot of churches are very much onside with, but often you need the charge to get that process in motion.
I would point out, if you look at subsections 176(2) and 176(3), they're not covered by section 175. There are lots of ways to disrupt a religious service without violating section 175.
I think there are a couple of reasons. The main section you would use is section 175, causing a disturbance, but if you read it.... One thing you could do is to make subsections 176(2) and 176(3) part of section 175. But section 176 is about creating a disturbance in a public place, and you have to do it by doing certain things. It is entirely possible to seriously disrupt a religious service or one of these meetings without creating a disturbance as it's defined in section 176.
For a long time, perhaps we didn't have a lot of charges laid under this section. I grew up in Canada, and people had differences of opinion on religion, but religious intolerance just seemed almost to not exist. I think we went through several decades where arguably Canada was the most tolerant place in the world for different religious opinions. Unfortunately things sometimes change, and although I think the overwhelming majority of Canadians are religiously tolerant, we've had a lot of hate lately. Muslims, of course, are the primary objects of late, but as the professor pointed out, Catholics and of course Jewish people remain targets of hatred. I don't pretend to understand why, but it's so.
I think it's important to say that we view as important the right of people to go to their place of worship and to be free from being interfered with while they're there. I don't think you'll find anybody who actually thinks you ought to disrupt these things, but I don't think the protections are there.
With regard to the assaults, there are ways to deal with those; there's no question. It's less significant, although we have a section.... For example, if a policeman is assaulted because he's at a hockey game and he gets into an argument or something, he's not treated any differently from a plumber. But if he's in the course of his duties, he is, and I think there's good reason for that. I think there's a lot of good reason to protect clerics when they're in the course of their duties, because they can be, and I think of late they appear to be, special targets, so there's something to be said. Just because people don't know about the particular section.... I do think most people know that it's illegal to disrupt a religious service, and if you take it out, maybe people will find out it's not.
Thank you, lady and gentlemen, for your testimony today. It's greatly appreciated.
We've heard, specifically with respect to section 176, varying opinions about what the role of the Criminal Code is, whether this section is applicable in this day and age or not, and whether similar protections are offered in other sections of the code.
One argument I find to be quite fascinating—and I'd like to get your opinion on this, Ms. Buckingham and Mr. Simpson—is that the Criminal Code's objective is to deter members of the community from carrying out certain acts that are disruptive, unlawful, and so on. We hear that this section needs to stay in the Criminal Code because we don't want to send a wrong message. We've also heard that there are other sections in the Criminal Code that would apply.
I'm kind of grappling with this concept. The Criminal Code's objective is to deter, to prevent, and to keep the peace within our society, but does it also carry a value of policy, of proactive deterrence, by having such a section in here, to let people know that even though there have been only 30 charges under this section, that this is not acceptable?
Ms. Buckingham, would you like to go first?
We are reconvening with our third panel of the day. I would like to thank the witnesses for coming forward.
Before we begin, I want to advise members of the committee of our deadlines for amendments for Bill . I see that Mr. Nicholson is not here, so I will speak to him privately. The deadline for amendments will be Friday, November 3, at noon. Everybody will receive the amendments on Monday, and we'll do our clause-by-clause consideration next Wednesday.
I want everyone to know the deadlines. I'll repeat them at the end of the meeting. It's Friday by noon for amendments, distribution on Monday, and clause-by-clause study next Wednesday.
On the third panel of the day, I am very pleased to welcome, from B'nai Brith Canada, Mr. Brian Herman, the director of government relations; and Mr. David Matas, senior legal counsel.
We also have with us the Association for Reformed Political Action, represented by Mr. André Schutten, legal counsel and director of law and policy; and Ms. Tabitha Ewert, who is an articling fellow. Welcome.
By video conference we have the Canadian Civil Liberties Association, represented by Ms. Cara Zwibel, the acting general counsel; and Ms. Victoria Cichalewska.
Finally, we have the Church Council on Justice and Corrections, represented by Rebecca Bromwich, president; and Melanie Younger, coordinator. Welcome.
We're going to go in the order of the agenda, starting with B'nai Brith Canada.
Mr. Herman and Mr. Matas, the floor is yours.
Mr. Chairman, we thank the committee for inviting us to appear. My colleague David Matas, our senior legal counsel, will elaborate on some of our key points, particularly on the legal issues.
B’nai Brith Canada is this country’s oldest national Jewish organization, founded in 1875, with a proud history of defending the human rights of Canadian Jews and all Canadians across the country. We advocate for the interests of the grassroots Jewish community in Canada, and for their rights, such as freedom of conscience and freedom of religion.
I want to provide some context. On October 18, we testified before the Standing Committee on Canadian Heritage in its study of Motion M-103 on systemic racism and religious discrimination. We noted that since 1982, B’nai Brith Canada has published the “Annual Audit of Antisemitic Incidents” in Canada, copies of which I understand are available to the committee.
Over a five-year period, anti-Semitism has been on the rise. Statistics Canada has reported that in 2015, the most recent year with complete figures, Jews were the most targeted group in this country for hate crimes, a serious trend that has been ongoing for nine years. Our hope is that the committee will continue to bear in mind that Canada’s most targeted religious minority in terms of hate speech and hate crimes is the Jewish community.
We have followed closely the government’s initiative to modernize the Criminal Code, including its plans to deal with provisions that are considered out of date or redundant. Our focus has been, as you've heard this afternoon from other groups, on the intention to repeal section 176. We have received approaches from Jewish community members about this, and we seek to represent them. They have raised questions about this intended repeal of section 176 and whether it represents a weakening of provisions in the Criminal Code that protect faith leaders, religious gatherings, and places of worship.
Section 176, although not perfect in language, provides clear penalties for those who threaten or interfere with faith leaders during religious ceremonies, or who interrupt or disrupt religious gatherings. We have concerns over repeal of section 176, in the context of the signal that such a step would convey in today’s environment where anti-Semitism remains a serious challenge, and where Canadians have been witness to acts of intimidation directed at religious institutions and leaders, and not just those from the Jewish community.
We've had very productive exchanges with officials who have been working on Bill 's provisions. We have welcomed their assurances that there is no intention to decriminalize the behaviour set forth in section 176 of the Criminal Code. It has been explained to us carefully that there are other Criminal Code sections that would apply with equal penalties, and we have noted the assurances expressed carefully by the on this point. We acknowledge these assurances, but believe that, in today’s context, we must exercise great care in taking actions that can be misinterpreted, however well intentioned. In short, we believe it is in the interests of Canadians that there be no vacuum.
We believe that the protections and the penalties for actions captured in section 176 must remain clear and unequivocal, such that they meet the requirements of contemporary Canadian society. One option we believe could be considered is to retain section 176 with modernized language. There could also be examination of strengthening and amplifying the applicable sentencing guidelines. I believe Mr. MacGregor raised this in the last section.
My colleague David Matas will elaborate on our position, but I want to thank you, Mr. Chairman.
B’nai Brith Canada assures the committee members that we wish to contribute constructively as your work proceeds. Thank you.
Freedom of belief and assembly are essential to democracy. Intolerance attacks these freedoms by attempting to disrupt meetings of those who have come together to share and express their beliefs and to plan their realization. Right now there is a provision in the Criminal Code which defends Canadian democracy from this form of intolerance. The government now proposes to repeal this protection. Why it intends to do so is difficult to understand, both superficially and on closer examination.
When the appeared before this committee she gave nine different justifications for the repeal of the provision, and I will address as many of them as I can within the time that's left.
First, she talked about the sentencing guidelines, but I point out that the relevant sentencing guideline deals with motivation. It does not deal with acts. Section 176 of the code deals with specific acts, which may or may not have the relevant motivation.
She referred to the Canadian Charter of Right and Freedoms, but the charter prevents certain behaviour by governments. It doesn't regulate the behaviour of the private sector.
She referred to gender neutrality, but the provision could be amended to allow for gender neutrality.
She referred to religious neutrality, but as we heard from a previous presenter, the language could be amended to allow for religious neutrality. Indeed, subsection 176(2) and subsection 176(3) are religiously neutral, and even neutral between the religious and the secular. Subsection 176(1) could be amended to also be neutral between the religious and the secular.
She said that the law should be removed because of its flaws, but the law could be changed to remove the flaws.
She referred to redundancy, but the claim of redundancy is not obvious. I can give an example. At the time of the second Gaza war in 2014, protesters in Europe made repeated attempts to disrupt synagogue services. Police did not lay charges. The incidents, if committed in Canada, would have been, in my view, plainly prosecutable under Criminal Code section 176, but once that provision is gone, would such incidents be prosecuted under more general provisions? We're not so sure.
The minister referred to the fact that this section has not been used frequently, but that doesn't mean it has been ineffective. On the contrary, infrequency of use may indicate effectiveness, and it does have, as we've heard, the value of allowing institutions to give warnings.
She said she doesn't expect an increase in incidents as a result of repeal of the law, but I would suggest that the specifics of her purpose, even when they are encompassed within generalities, focus our intention on what is wrongful behaviour and tell us specifically, without any doubt, to not do that. The public is better instructed—if you'll forgive my metaphor—with chapter and verse. Specifics give status. There's good reason to single out the wrong and disrupting either religious or secular meetings with a public-interest purpose. The Supreme Court of Canada itself has said about this section that it serves a value because disrupting this sort of meeting is injurious to the public interest.
Last, the minister talked about the opinion of experts, but the law is not only an instrument for academics, prosecutors, officials, and judges. It's the voice of the public and speaks to the public. The public tells us through the Criminal Code what is considered wrong. The Criminal Code tells all of us what should not be done.
Let me say a word about recommendations. As a community, we have an interest that religious services and public interest meetings can go ahead unimpeded by those who disagree. The ability of members of the public to meet for the public interest or religious purposes without interruption from those who disagree, has a value worth asserting separately. It should not be buried under a pile of generalities.
There are two alternative ways of achieving this result. One is to amend the present provision to remove its sexist, denominational, and even its religious focus to make the language gender and spiritually neutral. The other is to amplify the sentencing guidelines. If Section 176 were to disappear entirely on the basis of redundancy, then the substance of its content should be included in the sentencing guidelines. The behaviour identified in Section 176 is serious enough that, if not specifically penalized, it should be considered an aggravating circumstance justifying an increased sentence when the general offence under which it falls is committed. We so recommend.
Thank you very much.
Good evening, everyone. Thank you so much for having us.
My name is André Schutten. I'm the director of law and policy with ARPA Canada. With me is Tabitha Ewert, my articling student.
It's a pleasure and a privilege to be able to speak to you this afternoon. I want to thank you, honourable members of the committee, for the hard work you do. It's very much appreciated by the community I represent.
Our concern lies with section 176 in clause 14 of Bill . Perhaps there is a bit of ignorance here, and I don't mean that in a derogatory sense; I mean it simply in the sense that there is a lack of familiarity with what happens in a religious service. Perhaps that's what's motivating the recommendation to remove this section from the Criminal Code.
What actually happens in a religious service, I submit, is that it's an encounter with the divine at a time of vulnerability, which sets it apart as being different in kind from any other public encounter or event, such as a university lecture, a rally in a public park, or, dare I say, even a hockey game here in Canada. A reading from Torah in the synagogue, a prayer service in a mosque, a song in a Sikh temple, or a worship service in a church—all are communal events that involve an encounter with the transcendent that sets these kinds of events as apart, as being different in kind from university lectures and so on.
Some have suggested that causing a disturbance is already covered by the Criminal Code. Section 175 has been brought up a few times already today. That causes me some concern. Surely the members of this honourable committee are familiar enough with the protests happening at university lectures across this country where a lecturer is shouted down because people disagree with the opinions he or she might be sharing in this lecture. Police or security will happily sit back and watch that protest disrupt the university lecturer for 10, 15, or 20 minutes, or perhaps for an hour or more. We submit that if that were to happen in a religious service, that would be a massive blow to religious freedom in this country. Certainly it would be a huge harm to religious worship across the board.
Perhaps it would be helpful to give you an analogy. It's not a perfect analogy, but it's one that I have found helpful. Imagine somebody came to this committee and said, “You know, we really do have to simplify the Criminal Code. It is a bit cumbersome. It's pretty long. Why don't we get rid of all of those other types of assaults in the Criminal Code? We already have assaults prohibited in section 265. Let's get rid of sexual assault law as prohibited in sections 271, 272, and 273. We don't need it. It's already covered under assault. Sexual assault is a type of assault. No biggie. Let's just clean up the code.”
Obviously, I think everyone here would right away agree with me that, no, there's something different in kind with sexual assault. Sexual assault is different in kind from assault simpliciter, and therefore we need both provisions to be in the Criminal Code. We're deterring two different things here.
It's not a perfect analogy, but I think it is analogous to what we're talking about here with section 176. Religious services are different in kind from a university lecture or a rally in a public park.
We've been talking with other faith communities across the board here in Canada. We've talked with Muslim leaders, Jewish leaders, Buddhist leaders, and Coptic, Catholic, and Protestant. We worked on drafting an open letter to the justice minister sharing our concerns. I respectfully request that we be able to table that letter with this committee, once we have sent it to the justice minister, if the committee would be willing to consider it as well.
We'll try to get it to you before noon on Friday, Mr. Chair, if that's okay. I can certainly forward that as soon as it's available.
I have two other points. One is that in the written submission we provided earlier to the clerk of the committee, we made some line-by-line recommendations for amending section 176 to address some of the concerns the justice minister raised when she was interviewed by this committee. I think the section can be cleaned up. We recommend cleaning it up and not keeping it as is. I'd be happy to entertain any questions from the members on our recommendations.
Finally, I want to address the question that came up today about equality in section 15 of the charter. The charter protects equality, obviously, but it does not mean that the law, that Parliament, needs to treat everybody exactly the same all of the time. That would be called “formal” equality, and that doctrine was rejected by the Supreme Court under a section 15 jurisprudence. Instead, section 15 protects something called “substantive” equality.
We have a case in our case law going back to the 1960s or 1970s in which a woman was denied unemployment benefits because she was pregnant. The Supreme Court at that time said, “Well, you're not being discriminated against; you got yourself pregnant and the law is actually even. As long as you're not pregnant you get the unemployment benefits.” The Supreme Court actually ruled against the pregnant woman. Post section 15 being implemented in 1985—actually, it was implemented a few years after the charter was passed in 1982—the Supreme Court rejected that idea. It said we need substantive equality, which is different from this formal equality.
If some people in Canada do not identify as religious, if they do not encounter the divine in religious celebrations and services, that's fine. But that does not mean that we have to delete section 176 so that they feel equal to the rest of us who do encounter the divine in religious worship. Instead, what we do is still protect those who have religious experiences in community through religious worship, and for those who don't use it, that's fine. If they don't need that kind of protection, then it's there for those who need it.
Subject to any questions from the committee, those are my submissions.
Thank you, Mr. Chair.
Good afternoon, Mr. Chair and members of the committee.
My name is Cara Zwibel, and I'm the acting general counsel of the Canadian Civil Liberties Association. My colleague Victoria Cichalewska is with me. She's our articling fellow.
On behalf of the CCLA, I would like to thank the committee for the opportunity to appear before you in relation to your study of Bill , a bill with a number of important ramifications for our justice system and in particular on rights and freedoms that are protected by the charter.
CCLA has recently put in written submissions to the committee, which will set out our position on a number of aspects of the bill, some of which I will not have the opportunity to address in detail today. I intend to focus the few minutes I have on two of the proposed changes to the sexual assault provisions of the Criminal Code and on the proposed change to the Department of Justice Act.
Before doing so, I want to acknowledge that CCLA is very supportive of the government's efforts to bring the Criminal Code up to date and to get rid of laws that are obsolete and archaic, particularly those that violate the rights and freedoms of Canadians and that have been struck down by our courts.
On this point, CCLA supports the bill's repeal of the blasphemous libel offence that submits that seditious libel and defamatory libel also give rise to significant freedom of expression concerns. Defamatory libel, in particular, has frequently been used to silence critics of police officers, correctional officers, judges, and lawyers. In our view, those offences should be added to the list of repealed provisions included in Bill .
Moving on to the sexual assault provisions, CCLA shares the government's concern for the treatment of sexual assault complainants and victims, and we understand that the purpose of these provisions, according to the government, is to ensure that victims of sexual assault and gender-based violence are treated with the utmost compassion and respect.
However, it is not at all clear, in our view, that amendments to the Criminal Code are the best way to achieve this goal. Indeed, there are limits on what the criminal law can be expected to do. In a criminal trial, it is the accused that faces a loss of liberty at the hands of the state, and the accused who must have the benefit of the presumption of innocence and the right to make full answer and defence. We cannot dilute those protections in the hopes of showing victims more compassion.
I first want to deal briefly with clause 21 of the bill, which would amend section 276 of the code, commonly known as the rape shield provisions, by expanding the definition of “sexual activity” to include “communication made for a sexual purpose or whose content is of a sexual nature.”
While we appreciate the rationale underlying this proposed expansion, we have some concerns about the breadth of the language and how a broad interpretation might infringe the accused's right to make full answer and defence, as well as require the accused to disclose significant pieces of the defence case and strategy in advance of the trial. That's addressed more fully in our written submission, but we propose that one helpful amendment would be to clarify that communications between the accused and the complainant regarding the sexual activity at issue in the case should be explicitly excluded from the rape shield provisions.
I want to deal with clause 25 of the bill in a bit more detail. This clause creates a new provision, proposed section 278.92, which would require the accused to apply to the court to adduce certain records relating to the complainant or a witness where those records are already in the accused's possession. This is an expansion of the existing third party records regime, which seeks to balance the accused's right to make full answer and defence with the rights of complainants and witnesses to privacy, personal security, and equality. In our view, the addition of records in the accused's own possession to this special evidentiary regime tips the balance too far and unreasonably limits the constitutionally entrenched rights of the accused.
This amendment clearly places disclosure obligations on the accused, a novel departure in the Criminal Code and one of which we should be very wary. The disclosure will have to be made in advance, before the defendant has heard the crown's case against him or her. In recognition of the right to silence, the presumption of innocence, and the fact that the crown bears the burden of proof in a criminal prosecution, there has never been reciprocal disclosure obligations on the accused in this way.
The government has suggested that this change would be upheld by our courts on the same basis as the third party records regime in R. v. Mills . In our view, this argument is fundamentally flawed. First, there's no seizure involved under section 8 when the records are already in the accused's possession. This is something that was considered significant in the Mills case. Second, the concern about using the third party regime to go on a fishing expedition into the private life of the complainant or witness does not arise.
The definition of records is broad, particularly as applied to both complainants and witnesses, and is likely to give rise to significant litigation. In our view, this addition to the evidentiary rules at play in sexual assault cases violates the accused's constitutional rights to silence and to make full answer and defence, in a manner that cannot be justified.
In our view, the government should be focusing on other ways of protecting and respecting complainants rather than amending what is already a progressive and protective law. The flaw may be in the application rather than in the text itself.
Finally, I would like to address clause 73 of the bill, which amends the Department of Justice Act. The CCLA has been involved in advocacy related to section 4.1 of the Department of Justice Act for several years, including through our intervention in the case of Edgar Schmidt v. The Attorney General of Canada at both the Federal Court and the Federal Court of Appeal.
We also undertook a substantial project to consider what new checks and balances could be introduced into our federal legislative process to raise the standard of charter compliance of bills tabled and passed in Parliament. In our written submissions, I've included a link to our full “Charter First” report, which sets out our recommendations in detail.
At present, section 4.1 of the Department of Justice Act requires the minister of justice to report to Parliament when he or she finds government legislation to be inconsistent with the charter. However, the current interpretation of that provision is that the minister need only report when there is no credible argument to support a bill's constitutionality. In practice, this has meant that not a single report relaying concerns about charter compliance has ever been made to Parliament.
Significantly, the government has sometimes used the provision as a shield during the legislative process, suggesting that the absence of a report by the minister indicates that a bill is charter compliant.
The proposal contained in Bill is that a new section 4.2 would be added to the act, requiring the minister to issue a charter statement in relation to all government bills tabled in Parliament. The statement would identify any charter rights and freedoms that might be engaged by a bill, briefly explain the nature of the engagement, and identify any potential justifications for any limits a bill may impose on charter rights and freedoms.
The CCLA has recommended that charter statements be tabled in Parliament. However, we've called for a much more detailed statement than is contemplated in this bill. In our view, the statement should set out the government's principled position that each new bill proposed is, on a balance of probabilities, in compliance with the purposes and provisions of the charter. The statement should include a discussion of the legal tests, factors, and reasonable alternatives that were considered to reach the conclusions drawn, and should include references to any relevant or contradictory precedents and norms.
Absent this kind of requirement, charter statements will amount to little more than public relations exercises for the government. While we appreciate that the current has issued charter statements in relation to a number of recent bills, with respect, these statements have lacked the rigour, detail, and depth of analysis required by members of Parliament and the public in order to meaningfully consider the constitutional implications of proposed legislation.
I will refer the committee to our “Charter First” report to see our other, more wide-reaching recommendations, including items that would touch on private members' bills and Senate public bills in addition to government bills. We continue to believe that significant reform on this issue is needed, and we would welcome the opportunity to continue to engage with the government and this committee on this issue.
While we do not believe that proposed section 4.2 is sufficient, it would be substantially improved if it were amended to ensure that charter statements are much more detailed, in order to truly assist Parliament and the public in assessing the constitutional implications of proposed legislation.
I look forward to answering your questions. Thank you again for the opportunity to appear.
My name is Rebecca Bromwich. I am appearing on behalf of the CCJC, the Church Council on Justice and Corrections. My colleague Melanie Younger is here with me.
I'd like to thank the honourable members of this committee for providing us the opportunity to appear this afternoon.
We have provided a written submission, which I will touch on in overview form, but I will not get to all aspects of it. Primarily, we are here to strongly support the changes to sexual assault law proposed by Bill .
We are an organization founded in 1972 by 11 Christian denominations, and we operate independently from any one of our bodies. We welcome multi-faith and secular-minded participation, and we are an ecumenical organization. It is our mandate to shine a light on restorative justice. It is our understanding that the job of justice is a community responsibility, and members of the community, including complainants, are important to be considered in the context of any criminal proceeding.
It is in this thematic trend that we strongly support changes that are put forth in Bill to amend the Criminal Code to clarify and codify what was rendered in the J.A. decision of the Supreme Court in 2011, that an unconscious person is incapable of consenting to sexual relations, and to clarify that the defence of mistaken belief in consent is unavailable in instances of mistake of law, and again, this properly codifies aspects of the Supreme Court's decision in Ewanchuk, decided in 1999. The expansion of rape shield provisions is something we also support. We also support the expanded rights to legal representation for the complainant in sexual assault proceedings.
Again, we feel it is of crucial importance that compassion for all members of Canadian society and community, including complainants, whether they be children, men, or women, is of value, and their interests and views need to be brought to the attention of the court. We contend or submit that this legislative proposal strikes the appropriate balance with the rights protection for accused persons who continue to have the presumption of innocence and the right to full answer in defence. We would submit that this is minimal impairment upon those rights that is very much justified in a free and democratic society under section 1 of the charter in the interests of fairness and compassion to complainants.
On the other provisions put forth in Bill , we also support and are in agreement with the that the articulated provisions are redundant or obsolete, including specifically—as I've heard mention in an earlier panel this afternoon—section 296, with respect to publishing blasphemous libel. We certainly support the removal of that provision.
In addition, and this is a position we take to some degree in dissent from some faith-based commentators who have spoken as witnesses this afternoon, we are in support of the removal of section 176 from the Criminal Code for essentially three reasons. Section 176 provides relief that is otherwise covered in the Criminal Code by section 175, which prohibits public mischief; sections 265 through 268, which are the assault provisions; and sections 318 and 319, which deal with hate speech.
It is a concern that, second, section 176 potentially criminalizes forms of dissent that fall short of mischief. I would submit that it would have, for example, criminalized the conduct of Martin Luther when he nailed his 95 theses to the wall 500 years ago tomorrow. So it is problematic that we continue to have a criminal prohibition that would criminalize forms of dissent within a religious context. Dissent is not necessarily anathema to religious practice.
Third, section 2(a) of the charter requires that the Christian paradigm not necessarily be the template for our protection of freedom of religion. For example, my colleague Melanie and I were discussing it in the context of other forms of faith-based practice, for example, indigenous celebrations or Wiccan celebrations or other forms of celebrations. Even among Quakers, for example, there isn't necessarily an officially designated officiant who has that ongoing job or role, so the protection in subsection 176(2) of an officiant is not necessarily applicable across the board.
Rather than amend a seriously flawed provision, we would submit that it is appropriate to protect religious communities and their services. An entirely new provision or, as has been submitted by Mr. Matas on behalf of B'nai Brith, provisions with respect to sentencing would be appropriate in this context. However, we do not believe that a provision so seriously flawed should be retained, and we agree with the that it is appropriate for that provision to be removed.
Finally, we applaud the provision in that would amend the Department of Justice Act to require the justice minister to table a charter statement. We would like to go beyond that. We would like the scrutiny that has been undertaken with respect to the Criminal Code in this bill to be formalized and regular rather than ad hoc. We submit that it would be appropriate to reinstitute a law reform commission in some form so that this process will continue.
I will have to amend my textbook when the provisions with respect to blasphemous libel and crime comics are taken out, but I'm happy to do that work. I would rather have our Criminal Code be right than to criticize it.
Yes. We recommend a number of amendments in a line-by-line red line in the document that we provided to the committee.
I think we can drop language like “clergyman” and “minister“ and replace that with “religious official”. I think that subsections (2) and (3) cover some of the concerns about faiths like the Wiccan faith that does not have a religious official. They are covered under subsection (2) and subsection (3). I think it's still inclusive of those faiths as well.
Again, subsection (1), I think, can also be amended to make it gender neutral. Instead of “his”, “his” and “him”, we could put in “their”, “their” and “them”, and so on.
I think we can take out subparagraph (b)(ii), “arrests him on the civil process, or under the pretense of executing a civil process”. I think that can be removed as well.
I would disagree ever so slightly with B'nai Brith about broadening it for moral, social, and benevolent purposes. I'd entertain removing that section and making it more focused on religious service. Again, as I said in my comments, it's the religious service that is different in kind from, for example, a cookie fundraiser to raise money for the local whatever, food bank. It's different in kind than an actual religious service. I would tighten it up that way.