Justice Committee on Oct. 30th, 2017

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you, Chair.

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?

[Dr. Janet Buckingham]

Thank you.

First of all, I think it's important to recognize that section 2(a) of the charter protects religious freedom, and I would wonder how Parliament would be protecting the freedom to worship without this section there.

Second, it may be that the general public isn't aware of this section, but churches are aware of this section, and I am aware of churches that have been able to stop people from causing a disturbance or to limit what they can do by saying, you know, it is against the criminal law of Canada for you to come in and disturb this worship. You may stand outside; you may have a sign; you can't use a bullhorn; you can do this and this, but you can't do that and that. So churches have used it, short of calling the police, in order to deter people from disturbing a service of worship.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Mr. Simpson.

[Bruce F. Simpson]

The professor has put it quite well, and this also enables the police to come. Even if a charge isn't laid, the police can at least come and tell them they're committing a crime and they have to get out of there right now. This has real value.

I would add that part of the purpose of the Criminal Code is to correct, and that's why even though charges may not be laid, if some kind of restorative justice is done, if the person gets the psychiatric assistance he needs, that may also be of benefit, because part of the Criminal Code is to correct when there has been a breach.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you.

Ms. Buckingham, you said in your remarks that you had some recommendations with respect to section 176. Would you like briefly to talk about them?

[Dr. Janet Buckingham]

Certainly, and it really is just changing the term “clergyman” or “minister” to “religious official”, which is the terminology the Supreme Court of Canada has used in these situations. I think “religious” is a little more inclusive than “divine service”. We could also change “him” to “him or her” because we know there are female religious leaders, so it is better to have inclusive language there as well. It's not really a large change, but it may send a good inclusive and diverse message.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you.

I want to share that a few months ago I was having an interfaith dialogue with a group of clergymen, the broader definition of that term, and we were interrupted by a number of people who wanted to express themselves. They barged in and called them a bunch of dirty so-and-sos, and I wonder now if this section would have applied in that instance. No charges were laid.

Those are all the questions I have.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Ms. Khalid.

Colleagues, we're already past the end time for this panel. Does anybody have any short important questions they want to ask?

If not, I want to welcome Mr. Falk back to our committee. It has not been the same without you, and we're thrilled to have you back.

[Ted Falk, Conservative, Provencher, MB]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Let me thank all of the witnesses from this panel. You were very helpful. Your testimony was very thought-provoking and I want to thank each and every one of you for your evidence.

Now we're going to take a short break and move to our next panel.

[The Chair, Liberal, Anthony Housefather]

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 C-51. 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.

[Brian Herman, Director, Government Relations, B'nai Brith Canada]

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 C-51'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 Minister of Justice 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.

[The Chair, Liberal, Anthony Housefather]

Thank you.

[David Matas, Senior Legal Counsel, B'nai Brith Canada]

Thank you very much.

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 Minister of Justice 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.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We will move to the Association for Reformed Political Action.

[André Schutten, Legal Counsel and Director of Law and Policy, Association for Reformed Political Action Canada]

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 C-51. 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 simply 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.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Schutten.

We will now move to the Canadian Civil Liberties Association.

The floor is yours, Ms. Zwibel.

[Cara Zwibel, Acting General Counsel, Canadian Civil Liberties Association]

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 C-51, 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 C-51.

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 C-51 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 Minister of Justice 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.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Ms. Zwibel.

We'll now move to the Church Council on Justice and Corrections.

[Dr. Rebecca Bromwich, President, Church Council on Justice and Corrections]

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 C-51.

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 C-51 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 C-51, we also support and are in agreement with the justice minister 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 justice minister that it is appropriate for that provision to be removed.

Finally, we applaud the provision in C-51 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.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Colleagues, I am going to hold you to six minutes because we have the vote tonight. I want to make sure we get there on time.

On the Conservative side, is it Mr. Kmiec who is asking the questions?

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Mr. Chair, I'm going to split my time with Mr. Falk, so just interrupt me once my time is done.

[The Chair, Liberal, Anthony Housefather]

Okay, go ahead.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Tomorrow is the anniversary of Martin Luther nailing his theses to the door and kicking off the great Reformation. I don't think section 176 would apply to him anyway, because he just wrote a document and nailed it to the door. He didn't interrupt a Catholic mass. To the best of my knowledge, he didn't proceed to go inside and yell at people or stop people from entering the church.

I have a few questions for ARPA. I read your seven-page document, and I thought I understood some of the implications of getting rid of section 176, keeping it, or amending it. Those are the three options on the table. You talk on page six about borderline instances. You ask how the removal of section 176 would impact borderline instances. Can you explain what you mean by borderline instances?

[André Schutten]

We're referring to the ones that are not clearly outside of section 176 and would be covered by other things. For example, we wanted to know how this would apply if a religious official was assaulted with a weapon and a higher more serious assault provision kicked in, or if there was something under section 175 such as a disturbance down the street in a park. We want to know how to deal with, say, a disgruntled individual yelling as a religious service starts, or painted signs outside a mosque.

What we're getting at is that you have to consider context, what's happening, the intentions of the person disturbing religious worship. Is it motivated by hate? In that case, hate speech laws might kick in, but that's a different section altogether. We've had religious officials contact our office in the last couple of years with concerns about political demonstrations. A pastor I know presented to a municipal council meeting where they were discussing some amendments to bylaws. It was a particularly contentious meeting, and he was concerned that there might be political demonstrations at his church on Sunday—not motivated by hate but by politics. I think those kinds of borderline instances are where section 176 applies.