Justice Committee on Oct. 30th, 2017

[Peter Noteboom]

The Canadian Council of Churches is a full consensus organization, so that means when the Canadian Council of Churches makes a public statement it needs to be agreed to by all the members of the council. Given the time available we weren't able to come to a conclusion or a consensus on where that would be. In the time that we did, it wasn't clear that folks went one way or the other.

There are definitely strong arguments among members of the council that would be broadly shared with the Evangelical Fellowship of Canada, and there are others who are wondering whether it would be good to do the research to see whether or not other provisions of the Criminal Code would cover what's already there, but not with sufficient time to do it.

That's why we didn't make a recommendation one way or the other, but should the government retain them, then there are a couple of recommendations for action.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

That's fair enough.

The Evangelical Fellowship, you have made a very strong case for keeping section 176. I'm going to argue the other side. Elsewhere in the criminal law we have provisions for assault and all kinds of things. Where motivation by hatred or religious bigotry and so forth are aggravating conditions, the penalties for them are potentially much more severe than are offered by this provision.

Would you not suggest that this might be a legitimate alternative to this provision?

[Bruce Clemenger]

A number of thoughts come to mind. Another witness will soon be before you—I just read their submission—and they would also point out that you referred to Criminal Code sanctions against assault, but there are also subcategories of different types of assault, which give different weights of punishment.

It's the same thing with disturbance. We think it's still appropriate to maintain separate provisions regarding disturbing either a religious official in the conducting of a religious service, or the religious services themselves. So it should be and it has been, and it's been found constitutional, and it's been used many times in the last 20 or 30 years. We think it should still be retained as it is understanding the unique nature of religion and religious services and what goes on in the religious context, unlike a hockey game or a meeting at a library, etc.

It's symbolic, but also giving precision and specific protection to what's going on, so we think that's where section 175 and other parts of the Criminal Code don't quite raise the threshold of section 176.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Those other meetings you speak of would not have these aggravating conditions applied to them, so the penalties might conceivably be less.

You mentioned that these are different from other meetings. Continuing in a devil's advocate role here, consider a wedding. A wedding officiated by a minister would be covered under this and presumably someone who disrupts that wedding would be charged under this provision. What about a wedding officiated by a justice of the peace? Should that not also have the same kind of protection?

[Julia Beazley]

Again, I think this gets back to the question of wilfully, but if the motivation is based....

I don't know that we would consider that a religious service per se. Sometimes in a church setting it's a very sacred thing and someone coming in there and disrupting a service in a church, this would apply under those circumstances.

If a wedding were happening somewhere with a justice of the peace, if it were religiously motivated, I don't know whether there would be an aggravating factor in those circumstances.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

I think with a justice of the peace—

[The Chair, Liberal, Anthony Housefather]

Sorry, you're well past your six minutes. We'll come back for some more questions afterwards.

Mr. MacGregor.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you, Chair.

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.

[Bruce Clemenger]

Let me go back to thought, belief, conscience, and so on. One could make the argument, I guess, that religious freedom could be protected under freedom of conscience, freedom of belief, assembly, and so on. But it's not. Religion was distinctively added, recognizing UN declarations and the charter.

We're saying that just as religion is distinctively identified as a guaranteed freedom it is also appropriate to have distinctive protection for religious worship, the expression of religious freedom in the Criminal Code.

To your second point about equality rights, consider subsections 176(2) and 176(3): “Every one who wilfully disturbs or interrupts an assemblage of persons met for religious worship or for a moral, social or benevolent purpose”. It's the same thing with subsection 176(3), which actually broadens it. If you have a meeting that is race-based or focused on a specific distinctive race, of whatever category, it may well be included in this. Rather than taking away from the protection of religious freedom, the onus would be on including more explicit protection, if it's not already here. But I think it's probably already here.

It's the same with Bill C-305, which created an initial offence for mischief against religious institutions and schools but also had institutions for benevolent, social, or moral purposes. The same thing is actually captured there.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Does the Canadian Council of Churches have any comment on the same line of questioning?

[Mike Hogeterp]

I would just say that specific protection of religion has merit, given the reality that communities of faith have been under threat pretty significantly in recent years. The Quebec mosque attack is one example among many. The other reality is that the celebration of religious rights tends to be done in a disposition of vulnerability. One expects a sense of safety. A person in a posture of prayer is expecting a sense of peace and an ability to express it, doing so in a way that is a full expression of their identity.

Protection of that through the Criminal Code in section 176 is an important means of recognizing the deep identity questions with respect to faith. Those same questions are certainly relevant to the kinds of communities you've pointed to. I think Mr. Clemenger's words are relevant in that respect.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

I know that hate-based crimes of a religious nature are on the rise for certain groups across Canada, and that's something we are all very concerned with. I'm just wondering if that is a problem that legislation by itself is going to solve. If the judge has section 176 at his or her disposal, or these other sections of the Criminal Code, the sentence is still going to end up being the same if someone is guilty of the crime.

Is the general public in the religious community aware of section 176, or are they just aware of the fact that a crime has been committed and something in the Criminal Code will take care of it? Or is this more of a societal problem that we need to educate people on, to produce a more harmonious society? Leaving it in or taking it away, is that really going to have a huge difference? I don't think the average Canadian is very aware of the wording in the Criminal Code. I have a copy, and it's really thick, so it's quite a voluminous document to go through.

Do you have any comments on that?

[Mike Hogeterp]

I think you're correct in assuming that the awareness of the public with respect to section 176 is very weak. We'd argue with our colleagues at the Canadian Interfaith Conversation—which includes the Evangelical Fellowship—that robust religious dialogue in public is an important means to create that sense of safety that we've all been alluding to.

It was interesting that very soon after the Quebec City mosque incident, Premier Couillard came out very forcefully, publicly, and said that our “words matter”.

Respectful public discourse on faith and diversity is a really critical element of respect, freedom, and the protection for a multiplicity of religious and other identities. That kind of dialogue is something that's sorely lacking as xenophobia rears its ugly head. Public dialogue that's fully cognizant of religious and other identities, and respect of those identities, is a really critical thing.

[The Chair, Liberal, Anthony Housefather]

Please be very brief, Ms. Beazley.

[Julia Beazley]

Very briefly, I think it's both, and I agree with everything Mike has said. The awareness has been varied among religious communities, but I can tell you that I have been dialoguing and working with a large number of faith groups across Canada. The awareness is there now, if it wasn't before, so I think to remove this protection would send a detrimental message at this point.

[The Chair, Liberal, Anthony Housefather]

Thank you so much.

Go ahead, Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much, Mr. Chair.

Thank you all so much for your attendance and for your presentations.

Professor Coughlan, I will start with you. Most of the discussion here today is about section 176, although I appreciate your more holistic view of the Criminal Code. I'd like to hear from you if you think section 176 is redundant and covered by other sections in the Criminal Code, or if it is special and adds certain protections that wouldn't necessarily be covered in the code.

[Steve Coughlan]

Sure.

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.

[Colin Fraser, Liberal, West Nova, NS]

Paragraph 176(1)(a), in the first line, mentions “unlawfully obstructs”: “by threats or force, unlawfully obstructs or prevents or endeavours to obstruct or prevent a clergyman” and so on. The “unlawfully obstructs” strikes me as kind of unusual. It seems that it's adding something extra. There already has to be an unlawful act to get to the point where you are actually committing a different type of offence. Would you agree with that?

[Steve Coughlan]

No. I would agree that this is one of at least three things that it might mean. I was contemplating picking on “unlawfully” in that section as another illustration of the inconsistent way in which the code is drafted, which makes it difficult to know what it's saying.

There are sections in the Criminal Code where “unlawfully” means exactly what you are saying, like section 269, “unlawfully causing bodily harm”. In that sense, it does add that there must have been some other offence committed. In some sections, “unlawfully” seems to mean something like “without lawful excuse”. The trouble is that the code uses the phrase “without lawful excuse” dozens of times, so it's not as though the drafters didn't know that the phrase “without lawful excuse” is a good way to capture the meaning “without lawful excuse”. If that's what it means, why say “unlawfully”?

There are some sections of the Criminal Code where words like “unlawfully”, “corruptly”, or “dishonestly” actually just seem to be some kind of expression of opinion or disapprobation. There is the offence of a justice official “corruptly” accepting a bribe. As far as I can tell, the word “corruptly” actually isn't doing any work. What's the non-corrupt way to accept a bribe?

These are the kinds of things that have been just sort of randomly scattered in the code as a means of tripping us up and preventing us from being sure of what it means. Yes, “unlawfully” might mean what you said, but there are at least two other things it might mean as well.

[Colin Fraser, Liberal, West Nova, NS]

Thanks very much.

I'll now turn to the Evangelical Fellowship of Canada. I appreciated your presentations and your thoughtful comments about the extra protection granted by section 176, from your perspective. In my understanding of section 176, this is actually not a charge that is laid very often in Canada. I know there are examples—in fact, one here in Ottawa, where it was laid not that long ago, although I believe the person wasn't convicted of that.

In your estimation, is there a reason why this type of charge would not be laid more often? If there is, is it because there are other protections in the code already that are maybe easier to prove?

[Bruce Clemenger]

It could be a bit of both. It could be that not everyone is aware of section 176. Many of our churches had the same process as the Canadian Council of Churches. They became aware of section 176 through their conversations and dialogues. More and more have studied it, and, again, you begin getting letters. It could be that for those instances where section 176 could have been applied, maybe section 175 or other did satisfy.

We talk to faith leaders about it, and what we are finding is that there is a level of comfort. If they were not aware of section 176, when they come across it and see it in text, it actually gives additional comfort, because of the increase of hostility, as was mentioned before—the increase of hate-motivated crimes against people of faith.

The question is, in this environment, why are we now removing explicit protection rather than affirming and perhaps amending, where needed, to guarantee that explicit protection?

[Colin Fraser, Liberal, West Nova, NS]

Do I have more time?

[The Chair, Liberal, Anthony Housefather]

You've exceeded your time.

[Colin Fraser, Liberal, West Nova, NS]

That's fine.