Evidence of meeting #73 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was 176.
A recording is available from Parliament.
4:35 p.m.
Liberal
The Chair Liberal Anthony Housefather
I want to thank you all for testifying. You were all very helpful.
I would like to ask the members of the next panel to come on up. We'll briefly recess as we change panels.
4:40 p.m.
Liberal
The Chair Liberal Anthony Housefather
We are reconvening this meeting of the Standing Committee on Justice and Human Rights to welcome our second group of witnesses who are testifying today.
It's a pleasure to welcome, as an individual, Janet Epp Buckingham, professor at Laurentian Leadership Centre, Trinity Western University. Welcome, Ms. Buckingham.
From the Canadian Conference of Catholic Bishops we welcome Cardinal Thomas Collins, Archbishop of Toronto, who is joining us by video conference. Welcome, Your Eminence.
We also welcome Bishop Lionel Gendron, president of the Canadian Conference of Catholic Bishops.
Welcome, Bishop Gendron.
4:40 p.m.
Liberal
The Chair Liberal Anthony Housefather
We also have Mr. Bruce F. Simpson, a specialized partner in criminal law at Barnes Sammon LLP. Welcome, Mr. Simpson.
4:40 p.m.
Bruce Simpson Specialized Partener in Criminal Law, Barnes Sammon LLP, Barnes Sammon LLP
Thank you.
4:40 p.m.
Liberal
The Chair Liberal Anthony Housefather
From the Canadian Secular Alliance we have Mr. Greg Oliver, who is the president. Welcome, Mr. Oliver.
We will go in the order that's on the agenda, so Professor Buckingham will start.
4:40 p.m.
Dr. Janet Buckingham Professor, Laurentian Leadership Centre, Trinity Western University, As an Individual
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 C-51, 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 Minister of Justice 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 clause14. I also have some recommended language should you choose to recommend that section 176 of the Criminal Code be amended.
Thank you.
4:50 p.m.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much.
We will now move to the Canadian Conference of Catholic Bishops, please.
The floor is yours.
4:50 p.m.
His Eminence Thomas Collins Archbishop of Toronto, Canadian Conference of Catholic Bishops
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.
Thank you.
4:50 p.m.
President, Canadian Conference of Catholic Bishops
Good afternoon.
The Catholic Bishops are troubled by clause 14 of Bill C-51, 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 C-51 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.
Thank you.
4:55 p.m.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much.
We're going to move now to the Canadian Secular Alliance.
Mr. Oliver.
4:55 p.m.
Greg Oliver President, Canadian Secular Alliance
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.
Thank you.
5:05 p.m.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much to all three groups for your testimony.
We'll now go to questions.
Mr. Nicholson.
5:05 p.m.
Conservative
Rob Nicholson Conservative Niagara Falls, ON
Thank you very much for your testimony here today.
Mr. Oliver, you said that your understanding of this section 176 is that it's for the protection of Christian males. You may be aware or maybe you're not aware that the interpretation by the courts and the government, Revenue Canada, National Defence, and everything, is that it includes all religious officials, regardless of their sex or their religion.
Were you aware of that?
5:05 p.m.
President, Canadian Secular Alliance
No, but that's a good argument for cleaning up the wording, if it were to be retained in any way, shape, or form. I would add, and perhaps you could answer this question for me, does it apply to secular humanist officiants as well?
5:05 p.m.
Conservative
5:05 p.m.
Voices
Oh, oh!
5:05 p.m.
Conservative
Rob Nicholson Conservative Niagara Falls, ON
As far as I know, but thank you for that. I'll take that under consideration.
5:05 p.m.
President, Canadian Secular Alliance
My primary concern, of course, is that it is religiously neutral.
5:05 p.m.
President, Canadian Secular Alliance
Under the current wording, it's certainly plausible that you would interpret it in a different way.
5:05 p.m.
Conservative
Rob Nicholson Conservative Niagara Falls, ON
It could be.
Thank you, Professor Buckingham. Your explanation of this was very well put together and your rationale actually coincides with my own thoughts on this.
One of the interesting things—and we've heard this before—is that if something hasn't been used very often, it should therefore be taken out of the Criminal Code. I was saying to some of my colleagues that I remember at law school we were talking about the treason sections of the Criminal Code, and some were saying they were not used very often. I hope that nobody would then make the conclusion that we'd better get rid of treason from the Criminal Code just because Canadians don't commit some of these offences. But thank you for that.
Your Excellency, to you and both our bishops who are here today, and Mr. Simpson, it's important to get the word out as to what's actually taking place. We've heard testimony, in fact just earlier today that you may have heard or seen, that this took a lot of people by surprise. Quite frankly, there wasn't much publicity for this. It just got dropped out in the summer. What can be done, what are you going to do to get this message out before this bill actually comes down to third reading here? Are you distributing it to parishes, letting them know? That seems to be an essential part of this, I think, to make sure everybody knows exactly what's going on.
Cardinal Collins.
5:05 p.m.
H.Em. Thomas Collins
I think this may very well be important. The very publication of this meeting makes people more aware of that. I think there may well be some plans on behalf of the Canadian Conference of Catholic Bishops. Bishop Gendron might have some insights into that, which covers this for the whole country.