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.
6:25 p.m.
Liberal
6:25 p.m.
NDP
Alistair MacGregor NDP Cowichan—Malahat—Langford, BC
Thank you, Chair.
Mr. Schutten, you made a comment that you wanted to tighten up section 176 by removing subsection (2). Did I hear you correctly on that?
6:25 p.m.
Legal Counsel and Director of Law and Policy, Association for Reformed Political Action Canada
No, just one phrase from subsection 176(2).
6:25 p.m.
Legal Counsel and Director of Law and Policy, Association for Reformed Political Action Canada
That's the phrase “or for moral, social or benevolent purpose”.
6:25 p.m.
NDP
Alistair MacGregor NDP Cowichan—Malahat—Langford, BC
In my previous line of questioning with previous witnesses, the answer was given that people who are not religious but may belong to certain identifiable groups, if the person who's organizing them is prevented from officiating the meeting, that's their safe place and it may hold as much personal value to them as religion does to a religious person. Some witnesses made the arguments that the equality clause under section 15 of the charter is encompassed in subsection (2), so if we are removing the language “moral, social or benevolent purpose”, does that not make the argument for keeping section 176 a bit weaker? Is it not better to keep that language as is?
6:25 p.m.
Legal Counsel and Director of Law and Policy, Association for Reformed Political Action Canada
If it would make you keep section 176 and vote in that direction, I'm happy for you to keep it in. It's a suggestion, because I do think that subsection 176(1) is about religious officials and subsections 176(2) and 176(3) are about religious worship. I think that where we add that extra phrase about “moral, social or benevolent purpose”, it makes it so broad as to no longer be that special protection for religious worship.
I'm not tied to that at all. If this committee deems that they want to keep that in there, by all means, and I certainly don't think it changes the thrust of this section enough for me to strenuously object, that's for sure.
6:25 p.m.
NDP
Alistair MacGregor NDP Cowichan—Malahat—Langford, BC
With respect, I do want to challenge you on your assertion that if we were to remove this it would bring a religious service down to the level of “a university lecture”. Do you honestly think that if we were to remove section 176 and an offence was committed in a place of worship, a judge presiding over that case would view that on the same level as a disturbance at a university lecture?
We have to look not just at the way the law is written but at how it's interpreted, and I think any judge in his or her right mind would place the two occurrences on vastly different planes as to what the outcome was and what the offence was for the people who were involved.
6:30 p.m.
Legal Counsel and Director of Law and Policy, Association for Reformed Political Action Canada
You're at the tail end of the criminal justice system, right? Criminal justice starts where the disturbance happens and we engage the police. The police are of course concerned about things like freedom of expression. They don't want to infringe on people's ability to object, to dissent, and to share opinions that are different from those of other people.
If the House of Commons sends a signal by saying, look, we're going to remove section 176 because religious worship doesn't deserve this special protection, then I submit that it certainly signals to police and so on that they're going to have to tolerate dissent within religious services, whether that's loud and boisterous shouting and chanting or a silent protest in the middle of a worship service with posters or flags or what have you. They're going to have to sit by and allow some time to lapse, like they do with the university lectures. It's not that long ago that I was in university myself, where I've seen that kind of thing happen.
6:30 p.m.
NDP
Alistair MacGregor NDP Cowichan—Malahat—Langford, BC
While section 176 may not be used that frequently in our criminal justice system, I got the sense from witnesses before now and currently that it's the symbol of removing it and the message that it sends, more than actually keeping it in the Criminal Code, because I think that before this bill came about, not many people were aware of it. If Parliament were to remove it, would you agree that it's the signal it sends that is more problematic?
6:30 p.m.
Legal Counsel and Director of Law and Policy, Association for Reformed Political Action Canada
I'd say it's both/and. I would submit that most Canadians don't know what's in most of the Criminal Code. We're not going to toss out most of the Criminal Code just because people don't know about it.
I have been advising pastors who have called me about this. It doesn't happen often, but just in the last year I've had probably two or three call with concerns about people protesting their worship service, and I've pointed them to section 176. Even though they don't know the Criminal Code, there are lawyers who do, and they can assist in that way.
Certainly, I think this hearing on Bill C-51 has raised awareness about the reality of section 176, so now the question is, because so many people and so many religious leaders do know about it, what is the signal going to be if this committee deems not to amend section 176?
6:30 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
Thank you, Mr. Chair. I'll be sharing my time with Mr. McKinnon.
I have one quick question for the Canadian Civil Liberties Association. Most of the discussion today is about section 176 of the Criminal Code, but of course I'd appreciate your comments with regard to other provisions in Bill C-51, including the sexual assault provisions and changing the process for a records hearing.
I want to challenge you on something, though. You said that the obligation on the accused would now require disclosure made in advance of actually hearing the crown's case. I don't know where you get that from. I've heard similar arguments from other witnesses who were before this committee.
As far as I can tell, proposed subsection 278.93(4), where it deals with that section, indicates that there would need to be seven days advance notice or a “shorter interval” if the judge deems it necessary, but in no way would that cause the accused to not be able to hear the crown's case before being able to decide to make such an application.
Maybe you can help me understand why you have indicated that.
6:30 p.m.
Acting General Counsel, Canadian Civil Liberties Association
I'm just looking at my version of the bill to see if I can pinpoint that.
Can you repeat the subsection that you referred to?
6:30 p.m.
Acting General Counsel, Canadian Civil Liberties Association
I believe that subsection is talking about the holding of the hearing, not when the application has to be made. I'm not sure if it's just in relation to section 276. There was one provision that expanded the period of time before which...and that might be section 276.
6:30 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
Right.
I had challenged other witnesses on this, so perhaps you can think about it and in the interests of time, submit an answer following this that we can consider. Subsection 278.3(5) talks about a 60-day notice period, but that has to do with an application for production of records. Those are records that are not in the possession of the accused. That's completely different from subsection 278.93(4), which deals with the specific hearing, where if the accused has documents in his possession, that he would have to make an application. It doesn't prevent him from waiting until after the crown's case.
Anyway, I just throw that out there because I'd heard that misstated by other witnesses that we'd had before our committee and I think it's an important point.
6:35 p.m.
Acting General Counsel, Canadian Civil Liberties Association
I will take you up on the opportunity to take a look and clarify that after.
I will say that, even if that 60-day requirement is not what we're talking about here, with the records in the accused's own possession, in the ebb and flow of a criminal trial, there may actually be, even with this shorter period, a requirement that the seven days may have to occur before the crown has completed its case.
6:35 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
It doesn't say that anywhere. I guess that's the point. I'd like to hear your thoughts on that if you can take a closer look.
6:35 p.m.
Acting General Counsel, Canadian Civil Liberties Association
If the goal is to ensure that an accused does not have to engage in this process until the crown has completed its case, I certainly think that a clarifying amendment could and should be made.
6:35 p.m.
Liberal
6:35 p.m.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
Thank you, Chair.
I'll start with Ms. Bromwich. One of the things that's provided by subsection 176(1) is the protection of religious leaders on their way to or in performing various functions related to their role. It's not just about meetings. Subsections 176(2) and 176(3) are more about assemblies and meetings. For example, consider a priest on his way to perform last rites in a hospital. If you were to prevent him from doing that, it would be a violation of this. Would you see that as protected elsewhere in the Criminal Code?
6:35 p.m.
President, Church Council on Justice and Corrections
Yes, I would see that as protected elsewhere, as for example, in the provisions between 265 and 268, which deal with assault. It would depend on the manner in which an individual is seeking to prevent the priest from administering those rights. If it's a physical blocking of the path or if there is any unwanted touching, that would be an assault. If there is a disruptive event that happens in a hospital hallway, that would be dealt with under section 175 of the Criminal Code. There are numerous provisions in the Criminal Code that would afford and offer that protection to an individual seeking to provide last rites.
If an individual was seeking to engage in some sort of sacred ceremony and they're not determined to be somebody who's an officiant under this provision, then they are not protected. One of the concerns is that the provision is simply under-inclusive. As was suggested, we would not be opposed to a provision that protects people engaged in religious acts and religious practices, but to protect specific individuals forces the court into a fact-finding expedition that requires minority religious practices to endlessly engage in an exercise of determining whether or not they count. What I would suggest that would be appropriate is a provision that allows for the fact that they already count.
