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 Minister of Justice 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.