Justice Committee on Oct. 30th, 2017

[H.E. Lionel Gendron]

I was not personally very aware of that. The staff of the Conference became aware of it. We have been working on this issue since May and we have prepared the brief. How can people in parishes become informed? I think the media will talk about our appearance here today, which will help them better understand what is going on.

Professor Buckingham said that hate crimes are on the rise in Canada for various reasons. By repealing section 176, what message would Parliament be sending to the public? There is surely an interest that I would describe as pedagogical in maintaining this section in the Criminal Code.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much.

Mr. Simpson, in your role as a solicitor for the Conference of Catholic Bishops and your work in the legal profession, would you agree that it's not only hatred that might motivate somebody to disrupt a religious service? There are those who may think it is some sort of comical effort, but it would be completely included in this.

Would you agree as well that the worry is that somehow the old wording of this is only restricted to male members of the Christian faith? Is it your experience with the law that generally the courts look at a larger context and expand the definitions?

[Bruce F. Simpson]

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.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Ehsassi.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you, Mr. Chair.

I'll ask Mr. Oliver a few questions.

Thank you ever so much for appearing before this committee, Mr. Oliver.

As you know, freedom of expression is closely derived from other freedoms, such as freedom of assembly and freedom of conscience. In your opinion, will the repeal of “blasphemous libel” strengthen and fortify those other freedoms?

[Greg Oliver]

Well, of course. Freedom of speech is essentially the best corrective we possess as a species for making progress in whatever realm it may be, technological, scientific, ethical, or philosophical. Some of the issues that religion tackles are some of the most important philosophical questions that face mankind. Where do we come from? Why are we here? What's the meaning of life?

The idea that certain ideas, because of the fact that they invoke the supernatural, would be off limits could potentially impede that progress.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you for that.

I know you've been very active on the issue of section 296. Are you aware of any group that has any objections to the removal of section 296?

[Greg Oliver]

I originally intended to speak mostly about section 296, but then I noticed that I couldn't find a single objection. That wasn't the case with section 176, so I decided to address that a little bit more. For section 296, as best I can tell, at least within the House of Commons, there appears to be unanimous support.

[Ali Ehsassi, Liberal, Willowdale, ON]

No, but you haven't heard it from any other stakeholders?

[Greg Oliver]

No, not religious groups or anything I could find with my research.

[Ali Ehsassi, Liberal, Willowdale, ON]

We've heard from other people here today their misgivings about the repeal of section 176. My colleague Mr. MacGregor spoke about how section 176 could undermine section 15, the equality rights of the charter.

What is your opinion on that specific issue?

[Greg Oliver]

That's interesting. Essentially, equality rights are the mandate of our organization. We want to seek equal rights for all religious groups and non-religious people as well.

So yes, as I outlined in my opening remarks, subsection 176(1) is worded in a way that implies there's a bias toward one side, and the point I mentioned about the potential chill on free speech with subsections 176(2) and 176(3) are unequal because, granted, it is limited in scope, but you're providing protection to religious dogma or orthodoxy in certain situations. So, by definition, that is a violation of equality rights.

[Ali Ehsassi, Liberal, Willowdale, ON]

Mr. Simpson, could you also talk about the intersection of section 176 and section 15 of the charter?

[Bruce F. Simpson]

Section 15 of the charter is an equality section. Section 176 does not, in my view, in any way violate anybody's equality, and I don't see how it affects freedom of speech. We're talking about religious services. Churches and synagogues and all the other kinds of religious places of worship are usually open. They want everybody to come. A lot of meetings are safe. They're inside buildings and so on.

Not being allowed to disrupt the service doesn't mean you're not allowed to express opinions about the religion. It's just where and when you do it. Imagine, for example, if the religious service happens to be someone's funeral or wedding. People are gathered there. It might just be Christmas midnight mass, but that has a lot of special meaning for a lot of people. There are times and places for everything, and the place for protest is not inside a place of worship when people are there to attend service. I just think that's wrong, and I think that's why we need subsections 176(2) and 176(3) particularly. It doesn't take away anybody's equality. Nobody's trying to prevent anybody from expressing opinions, just not disrupting the religious services.

[Ali Ehsassi, Liberal, Willowdale, ON]

Bishop Gendron, I understand you'd like to comment.

[H.E. Lionel Gendron]

In my presentation, I insisted that those in charge of communities are not any different from other people. This is for the good of the community that wants to come together in prayer.

It goes even further. We talk about a moral, social and benevolent purpose. It is important to ensure that all groups that are pursuing a goal are not disrupted. It is not that clergy members are different from anyone else. It's really for the good of the faith community.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Mr. MacGregor.

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

Thank you, Chair.

Mr. Oliver, I want to continue with the subject that Mr. Ehsassi brought up from the previous round of witnesses we had, concerning section 15, the equality rights of the charter.

I was making the point to the witnesses that for people who aren't religious but may belong to an identifiable group, if they are going to a meeting and the person who is the leader of that meeting is obstructed from attending, are they not suffering the same amount of harm, and are they being excluded, because section 176 for the most part makes specific reference only to religion, but not to other groups?

Their reply to me was that it's saved by subsection 176(2). It says, “Every one who wilfully disturbs or interrupts an assemblage of persons met for religious worship or for a moral, social or benevolent purpose is guilty of an offence...”.

In your opinion, is this entire section saved by subsection 176(2), given that it does make an effort to cover other groups?

[Greg Oliver]

With respect to equality, it definitely is better, as I mentioned in my opening remarks. Weddings and funerals, for example.... Obviously, a non-religious funeral should get the same protection as a religious funeral and presumably both fall under that category. With the religious worship, I guess it is a little trickier because you are arguably prioritizing sincerely held views simply because there's an invocation of the supernatural.

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

Mr. Gendron, in your remarks you made reference to the fact that section 176 of the Criminal Code is a deterrent. I don't think many Canadians were well aware that this section even existed before this bill came forward. I would like you to expand on your remarks. Do you really think that specific sections of the Criminal Code are a deterrent by themselves or is it more a matter of how the law is applied through case law and so on? In your opinion, what acts as more of a deterrent and what would be more effective?

[H.E. Lionel Gendron]

I hope I have understood the question.

You are probably familiar with Dr. Viktor Frankl, who wrote the book Man's Search for Meaning.

Meaning is very different for every person. For some, there's meaning in faith, while for others, there is none. Those people have the right to say that it is their truth, to safeguard it and to share it. That is why I think social morality is important. Our meetings may be about religious freedom, but also about freedom of conscience and of belief. It is important to protect it.

There is probably a way to do things differently, but section 176 stresses the importance of that freedom. In the current context of increased hate crimes, this section makes sense. That's why we really need to keep it. Others are saying the same thing.

I have been given a note. In a few days, the Conference will be signing a letter. It is an ecumenical and interreligious letter that will be signed by Jews, Muslims and Christians, asking that section 176 be retained.

Have I answered your question?

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

Mr. Simpson, as you're the legal counsel, I want to ask you this question.

Bishop Gendron argued that the other sections of the Criminal Code are incapable of providing the same level of protections. I'm going over the specific section because, as you know, at the latter end of the Criminal Code, section 718.2, under the sentencing principles, judges are given a lot of leeway to either increase or decrease a sentence, if the offence was motivated by bias, prejudice, or hate, based on a variety of factors. Since we can't look at the Criminal Code just as it's written, but we also have to look at how it's been interpreted in use in case law, why in your opinion, do those sections not work as well as section 176? I just want to hear your legal opinion on that.

[Bruce F. Simpson]

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.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We'll go to Ms. Khalid.