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.
4:20 p.m.
Liberal
The Chair Liberal Anthony Housefather
We have some time for smaller questions for members of the panel.
We have Mr. Kmiec and then Mr. Boissonnault.
4:20 p.m.
Conservative
Tom Kmiec Conservative Calgary Shepard, AB
Thank you, Mr. Chair.
It's 500 years from the great Reformation tomorrow, and here we are talking about religious dissent and religious rights. I just feel like it's perfect timing for all of this.
Section 176 has been a big issue in my riding. I have an e-petition, which has over 2,600 signatures on it. In my area, people have come to me to talk about it, and I've gone to others to talk about it. I'm not an expert. I'm not a lawyer. That wasn't my profession before I got into politics. I am an expert on Yiddish proverbs, though, as the chair knows, “To every answer you can find a new question.” I'm hoping I don't keep going with new questions on this.
4:20 p.m.
Voices
Oh, oh!
4:20 p.m.
Conservative
Tom Kmiec Conservative Calgary Shepard, AB
One of the things I often hear is that this section is not used very often. What I've been told by churches is that they don't want to be embroiled in a lawsuit or a legal case because it's a poor reflection on the services they provide. When I went to a gurdwara to speak to an assembly there, and to the president about this, they said the same thing. They said that they don't want to be embroiled in it, but that they do have problems.
For both of you, how often do you hear this from the different churches that are members of your associations? When the cops are called and show up, do they say that they don't want to proceed with it, that they just don't want to get involved in the criminal justice system? How often does this under-reporting and unwillingness to participate in the judicial system happen?
4:20 p.m.
Acting General Secretary, Canadian Council of Churches
You can go first, Bruce and Julia.
4:20 p.m.
Director, Public Policy, Evangelical Fellowship of Canada
I can't answer that with any official.... My sense is that in all likelihood it is very under-reported within the evangelical community, and we've talked about this a bit in terms of hate crimes reporting generally. Bruce was just saying that we turn the other cheek. This is what we do. The idea is that if someone comes in and they are disturbed and are causing a disturbance, you're probably right that the instinct is often to not go that route and—
4:20 p.m.
Conservative
Tom Kmiec Conservative Calgary Shepard, AB
This is Canada, after all, and most people are pretty reasonable. They practice self-restraint. I think that instinctively a lot of people know that it's wrong to go into a gurdwara, say, and interrupt the music and the service or into a Catholic church and interrupt the mass. That's my observation, at least; most people are pretty reasonable and they won't do it. These cases are exceedingly rare where someone would have to be punished with the full force of the law and a Criminal Code conviction.
4:25 p.m.
President, Evangelical Fellowship of Canada
Maybe we could put it this way. Many of the religious leaders I know would be very reluctant to move as far as the Criminal Code and prosecution; they would rather see if the issue could be resolved in a way that did not require criminal sanctions. Their effort would be to try to mediate: to try to understand the rationale behind the disturbance and to try to mediate through that process before wanting to invoke a Criminal Code.
There also could be reluctance to call the police because they would rather deal with it, and not necessarily because they're afraid of publicity, but because they're saying, “Here's someone who is angry enough, for whatever reason, to disturb a worship service, and why?”
Have we done something to offend them? Is there something that causes them to do this? How do we resolve that? How do we understand that within a religious community before turning to Criminal Code sanctions? I think there may be a reluctance to report in the sense of just trying to see if there are other ways to resolve the issue.
4:25 p.m.
Acting General Secretary, Canadian Council of Churches
Yes, just briefly. I think it depends also on the religious tradition or the severity of the concern. If you talk with the Coptic Orthodox community, for example, who have been targets especially in their home country on a variety of issues like that, they are quite alert, aware, and ready to take action when it's necessary, even though they, too, of course, would prefer to stay under the radar.
It also depends on the severity of the situation. We're not a religious community. We're an organization. If someone came with a disturbance to the floor where our offices are, we might try to work that out, but when we got a call that was a death threat, then of course we took it much more seriously and made the call to the police.
4:25 p.m.
Liberal
Randy Boissonnault Liberal Edmonton Centre, AB
Thank you very much. I appreciate everybody's testimony today.
I grew up in Morinville, Alberta, and at the time the Catholic church was the big dominant presence. I was an altar boy and I even played the organ up in the top of the church because the organ I had at home only had one pedal, one octave of pedals, not two. I had a distinguished member of the clergy come and see me about section 176 this summer. It started our doing some research. I don't come at this from a legal perspective. I come at this from the perspective of the task set before us, which is to clean up the Criminal Code.
My overarching question for all of you is, what is lost? How does this actually affect clergy women and men and all people practising faith, leading their congregation, if we remove section 176? From my reading of the code, this is covered. The acts in section 176 are covered not just by section 2(a) in the charter, which gives broad interpretation to justices about any issues it might bring forward. If we take a look at the code, we see that section 175, disturbances; all forms of assault, sections 265 to 268; uttering threats, section 264.1; and Canada's hate crimes further prohibit conduct that incites hatred against identifiable groups, including those distinguished by religion, which are sections 318 and 319. Then there's also mischief provisions which you alluded to earlier.
I'm a fan of the data. We asked the Library of Parliament to look at the data. They pulled all the available data on section 176 from 2001 to 2014-15. There were 30 court cases in the whole country involving section 176. In 25 of those cases, the charges were staid or withdrawn. Only three led to a conviction. The most recent one here in Ottawa will likely not go forward because the person who was to be charged had a mental illness, and the priest at Saint Patrick said, “That's not fair. We're not going to go there”.
What would put your people at risk if section 176 is removed, given all the broad protection you have in the Criminal Code and in the charter?
4:25 p.m.
Liberal
The Chair Liberal Anthony Housefather
I really believe that we need to be a little shorter. Try to make the answers not too long because I have to get a question in for Mr. MacGregor as well.
Let's start with the Evangelical Fellowship and then the Council of Churches. I think these are questions for these two groups and not really for the professor.
4:25 p.m.
President, Evangelical Fellowship of Canada
Again, we sought to explain through our analysis of the legal decisions previously, at least in B.C. and the courts, and actually in a concurring minority opinion. Chief Justice Wilson talked about this section saying “in substance it is an enactment to prevent breaches of the public peace and to enable citizens to conduct services of worship without fear of disturbance”.
I take from that again that there's something unique and distinctive that takes place in a religious service particularly when you're dealing with issues of a sacred space, sacred implements of rights. It's unique to any other public gathering. I think the legislation, in effect, and I think the spirit of section 176 takes that seriously and tries to provide additional explicit protection.
4:30 p.m.
Acting General Secretary, Canadian Council of Churches
Thank you so much for the question. That's almost precisely the question we asked ourselves on the video conference call on Friday to prepare for this meeting.
The most convincing response was that there is something distinctive about the religious experience. The world of religious leaders in many communities is an indispensable role. When harm is conducted in the performance of certain kinds of rights, that's a harm that affects the whole community. There's something distinctive and different about religious leaders and religious ceremonies that deserve special protection.
4:30 p.m.
NDP
Alistair MacGregor NDP Cowichan—Malahat—Langford, BC
Thanks, Chair.
Professor Coughlan, I have a quick question for you.
It's obvious that there is a segment of Canadian society for which section 176 does mean a great deal. I certainly know that from the correspondence I've received. As a professor of law, when a crime occurs where someone does obstruct a clergyman, can you provide some insight into how crown counsel would deal with such a case and how they ultimately decide which section of the Criminal Code to use?
We know that section 176 is not used that often. Is crown counsel more likely to use other sections of the law because they may have harsher punishments? Is leaving section 176 in there as is going to do much harm for them, or is there a way we can reword it to make crown counsel's job easier? Just provide some of your thoughts on that.
October 30th, 2017 / 4:30 p.m.
Steve Coughlan
Sure. Realistically, that mostly doesn't go specifically to section 176, and this varies from province to province.
In seven provinces and, I believe, all three territories, the charging decision isn't made by a crown prosecutor at all; it's made by a police officer. A police officer decides which charge to lay. Indeed, one of the things the Supreme Court of Canada has frequently said is that we don't want criminal law to be within the discretion of the police as to whether something is against the law or not. When you leave wide discretion, you create disparity in how the law is enforced, which is why we want the laws to be as clear as possible. It's only in three out of 10 provinces that it's actually the crown prosecutor who would be deciding.
If I remember the Statistics Canada figures correctly on this, about 70% of all charges that are laid are really for just 10 related offences, such as assault or assault causing bodily harm. There are 10 families of them that account for 70% of it. It's rare that a police officer is trying to decide, “Gee, what charge am I going to lay here?” Most of the time they already know. It's one of the familiar ones.
When they have to look around—that's the rare case—they actually just flip through the code, trying to work out what it is. One of the provisions that's being removed in this bill is pretending to practise witchcraft. It probably hadn't been prosecuted for 30 or 40 years, and about six months ago, some police officer in Toronto laid that charge. At some level, there's an element of randomness as to when the lesser-known offences come up. It's somebody looking at the index, doing a search online, and trying to find it. It's possible that the crown can then look at it and say, “You know what? That's the wrong one.”
Our theory is that crown prosecutors ought to be doing that after police have made the initial decisions. Mostly it does happen, but it depends on crown to crown.
4:30 p.m.
Liberal
The Chair Liberal Anthony Housefather
Thank you.
I have one short, last question before we go to the next panel. I'm going to direct it to the Evangelical Fellowship of Canada.
I just want to make sure that I have your testimony generally straight. As I understand it, there are two arguments. One of them is that there's a gap if we remove section 176. I would refer back to subparagraph 176(1)(b)(ii), where a clergyman on the way to perform a function cannot be arrested under the pretence of executing a civil process. I don't think that is found anywhere else in the Criminal Code. Presumably that would be a gap. You're also arguing that 176 is potentially a lesser threshold than 175, with respect to creating a disturbance. That may be an issue, and we'll review that.
You're also saying—and I think this is important—that symbolically, 176 is important because within 176 is the only place in the Criminal Code that you see mention of religious worship. You recognize yourselves and your members, whether or not the section is regularly used, and draw comfort from the fact that that recognition is there in the Criminal Code.
Would I be correct in expressing that?