Justice Committee on Oct. 30th, 2017

[Tabitha Ewert, Articling Fellow]

To add to that, the term “disturbance” is defined in the case law as a factual, specific analysis. Every time a judge considers whether something makes a disturbance, in section 175 or 176, they're going to take into account everything that goes on. With respect to the borderline instances, pointing to the fact that religious services are different is instructive in the court process, at the police level and the judicial level as well.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Mr. Matas, you referred to the refutation of the nine reasons the Minister of Justice gave for dropping section 176. You went into some detail.

I want to ask you an interpretation question. Section 176(2) says, “Every one who wilfully disturbs or interrupts an assemblage of persons met for religious worship or for a moral, social or benevolent purpose...”.

In your opinion, what can be counted into that? What is counted as a “moral, social or benevolent purpose”? There were some witnesses who spoke before about this. I have a B.C. Humanist Association blog here, and I used it in some of my arguments during the debate in the House I had with Mr. Mendicino on this bill. They said it could potentially protect humanist associations and their benevolent meetings. The Kiwanis Club came to me and asked if this would protect them as well.

[The Chair, Liberal, Anthony Housefather]

I'm sorry, but I have to interrupt you. You have had four minutes and you want Mr. Falk to get a question in.

Mr. Matas.

[David Matas]

Briefly, this is kind of older language, but it would be a charitable purpose, anything encompassed within that. It's definitely secular, because it's opposed to religious....

[The Chair, Liberal, Anthony Housefather]

Mr. Falk.

[Ted Falk, Conservative, Provencher, MB]

Thank you, Mr. Chairman.

I'll start with Ms. Bromwich.

Would you support an expanded version of section 176?

[Dr. Rebecca Bromwich]

Yes, I would. We would support an expanded version provided the expansion was significant and not just a cosmetic change to language, but rather a change to protect sacred ceremony using language that is not exclusionary and does not make exception or give priority to any particular dominant religion.

[Ted Falk, Conservative, Provencher, MB]

I agree with my colleague Mr. Kmiec that your analogy of what Martin Luther did is not compatible at all to what section 176 of the Criminal Code is talking about. There was no assault. There was no disturbance other than the posting of his 95-page thesis on the chapel door that he chose.

[Dr. Rebecca Bromwich]

If I may respond to that, Martin Luther, of course, did that one thing on that one day on October 31. However, there was a period of several years during which he was engaged in lively debate within the context of sacred spaces. I would argue that there were certainly times during his life when he was in hiding when he was very much disruptive. It may be that—

[Ted Falk, Conservative, Provencher, MB]

Not of an actual service. Regardless, I would like to move on.

This is an issue that my constituents have spoken really clearly to me about. It comes broadly from across my constituency. I've received a lot of correspondence from outside of my constituency as well on this issue. Folks are just not happy with repealing this particular section of the Criminal Code. They believe it's the one explicit protection that all faiths have under our Criminal Code, that all clergyman or ministers of a faith have.

I would just like to ask Mr. Schutten something briefly.

I know you support section 176. You would like to see it excluded from Bill C-51 moving forward. Are there any amendments you would suggest?

[André Schutten]

Yes. We recommend a number of amendments in a line-by-line red line in the document that we provided to the committee.

I think we can drop language like “clergyman” and “minister“ and replace that with “religious official”. I think that subsections (2) and (3) cover some of the concerns about faiths like the Wiccan faith that does not have a religious official. They are covered under subsection (2) and subsection (3). I think it's still inclusive of those faiths as well.

Again, subsection (1), I think, can also be amended to make it gender neutral. Instead of “his”, “his” and “him”, we could put in “their”, “their” and “them”, and so on.

I think we can take out subparagraph (b)(ii), “arrests him on the civil process, or under the pretense of executing a civil process”. I think that can be removed as well.

I would disagree ever so slightly with B'nai Brith about broadening it for moral, social, and benevolent purposes. I'd entertain removing that section and making it more focused on religious service. Again, as I said in my comments, it's the religious service that is different in kind from, for example, a cookie fundraiser to raise money for the local whatever, food bank. It's different in kind than an actual religious service. I would tighten it up that way.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Boissonnault.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thanks very much, Mr. Chair.

Mr. Matas, you mentioned in your remarks a reference to chapter and verse. I want to make sure that we don't risk fire and brimstone if we don't get this right.

[David Matas]

Oh, okay.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Having heard from the Church Council on Justice and Corrections on all the other sections in the Criminal Code that provide protection, and given the fact that section 2(a) of the charter protects religious freedom, what specifically would put Jewish religious leaders or Jewish communities at risk if section 176, as it is now, were repealed as is proposed in Bill C-51?

[David Matas]

Of course, that depends on the assumption that it's redundant. We've heard from my colleagues beside me that it's not redundant because it penalizes some forms of protest.

Let's assume it is redundant, that you can get anything in the Criminal Code in some other way. I think there is a value in specifics, saying a general statement means specifically this. It's a warning. It's information. It's advice. It's guides behaviour.

As we heard before, religious services have used it as specific warning. You can't do this. There's always room for debate with generalities by repealing the provision. What you do is, you give an argument to the defence that the law has changed, which may be defeated in the end, but why give them the argument in the first place?

I would say that would be lost.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you.

Dr. Bromwich, I have two questions. The first is away from section 176, and then I'll come back.

Why particularly is your organization so strongly supportive of codifying “unconscious”? Is it a response to R. v. J.A. or are there other reasons for that convocation that you strongly support?

[Dr. Rebecca Bromwich]

Certainly our focus on compassion for every person as a human being as a member of the community leads us to a particular focus on the fact that a person must freely and fully give consent, and the notion of autonomy being codified and a positive obligation to seek consent are things that we'd strongly support in light of that foundational principle.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you.

You had a very clear briefing note, and you indicated in your testimony all the sections that your organization believes covers off section 176, should it be repealed. I'm interested in how your organization came to the conclusion that, with all the other provisions you mentioned, it's okay for Bill C-51 to take section 176 out of the Criminal Code.

[Dr. Rebecca Bromwich]

In our submission it's in a list of provisions. It's not alone. It's been the focus of a lot more discussion than some of these other provisions. But in all the provisions in which section 176 is included, there's an effort being made in this bill to rationalize the Criminal Code and to remove repetitive provisions. Section 176 has been drawn out in discussion, but it's largely consistent with the other efforts being made here to remove things like blasphemous libel under section 296, like challenging someone to a duel under section 71, like advertising a reward for the return of stolen property under section 143.

It is not our position or we don't agree that the removal of section 176 puts anybody under a significant threat, because section 175 and the other provisions I mentioned cover the ground. It is in the interests of Canada to have a succinct and rational Criminal Code.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

How did you conduct this analysis? Did you reach out to your member organizations? How did you come to this list and this determination on section 176?

[Dr. Rebecca Bromwich]

We consulted with our board, and we asked for input in advance of this presentation. We received no objection to the suggestion, which, yes, I did make, that section 176 should be included in this list.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Okay, thank you very much.

I have a question for ARPA.

What specifically are you hoping to hold onto in section 176 that either protects or enhances faith-based communities or religious officiants that, with clear testimony from other intervenors today, indicate is covered by the Criminal Code? How is it that your organization see this differently?

[André Schutten]

I think a good comparison would be where we see the removal of section 176 would equate religious services to be no different from a university lecture. I think it's common knowledge that in universities across the country today, there have been many examples of lectures or public demonstrations or big public speeches where people are shouted down because they disagree with the opinions being expressed. If we remove section 176, I submit that religious services will be treated the same way, where people who disagree with what's happening in that religious service are allowed to shout down what's happening there. We've seen that happen multiple times, particularly in the Roman Catholic faith, which I'm not a member of, but I've seen that happen in many cathedrals, where people disagree with the position of the church on political or equality grounds perhaps, or whatever, and so they feel they're entitled to disturb that religious worship. Without section 176 that would increase; it wouldn't decrease.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you very much.

Thank you, Mr. Chair.