Debates of June 6th, 2003

Criminal Code

[Réal Ménard, Bloc, Hochelaga—Maisonneuve, QC]

Mr. Speaker, I am pleased to speak to Bill C-250 on this fine sunny Friday afternoon, and I would like to congratulate the member for Burnaby—Douglas on his admirable persistence.

I do not agree with the comments made by the previous speaker about the member for Burnaby—Douglas. We all know that the latter is an enlightened person who believes in freedom of expression and he has demonstrated this on numerous occasions.

When this bill was studied in committee, I was extremely surprised, as a Quebecker, to see a number of arguments raised by other members of the House that seemed in many respects far-fetched. However, I would like to agree with my colleague, the member for Provencher, on one point.

In order to understand the bill introduced by the member for Burnaby—Douglas, one has to have read the Supreme Court decision in the Keegstra case, which was rendered in 1990. It is interesting, because in reading this decision, it becomes clear just how sensitive the issue of hate propaganda really is, and also how deeply rooted this issue is in Quebec law.

Former minister Guy Favreau, whose name has become famous because of a building named after him near the Place des Arts in Montreal—but people may be surprised to learn that he was also a former Minister of Justice—established a working group that presented a report in 1966. This was the first group to consider the whole issue of hate propaganda. In fact, in the 1960s and 1970s, certain neo-Nazi groups or groups that had questionable views on freedom of expression posed a threat to national security.

When this working group was struck, it contained such well-known people as the Rev. Gérard Dion, professor Shane MacKay of the University of Toronto, the father of the current Minister of Intergovernmental Affairs, and also the former Prime Minister of Canada, Pierre Elliott Trudeau. This working group released its report in 1966 in which it recommended that the Criminal Code be amended to make a clear reference to fomenting trouble to disrupt law and order and threaten public order. It also contained a recommendation regarding genocide.

The hon. member for Burnaby—Douglas is putting before us today a bill to amend the Criminal Code by adding sexual orientation to subsection 381(4).

Just to make it clear, our colleague's bill concerns hate propaganda and amends section 318(4) of the Criminal Code to include sexual orientation in the definition of identifiable group.

At present, in the Criminal Code, identifiable group includes people who are distinguished—that is, groups that are currently part of Canadian society—by colour, race, religion or ethnic origin, and the hon. member for Burnaby—Douglas is proposing to add sexual orientation.

The first question we must ask ourselves, as lawmakers, is: do we believe that, in Canadian society, there are individuals who might be subject to hate propaganda on the basis of distinguishing characteristics such as sexual orientation, colour, race, as I just mentioned? Anyone who answers yes to this question obviously has no reason not to support the bill introduced by the hon. member for Burnaby—Douglas.

I was pretty amazed, however, when in committee, they would have had us believe—I must say this was a campaign led mainly by the Canadian Alliance with some of our Liberal colleagues—that if, as lawmakers, we voted in favour of this amendment to subsection 381(4) of the Criminal Code, thereby recognizing that there are groups in Canadian society who may be subject to hate propaganda because they can be distinguished by their race, colour or sexual orientation—if we agree to add it—this would somehow jeopardize freedom of religious expression.

I hope that there is not, in any of the religious writings one might have faith in, whether one is Catholic, Muslim or any other religious denomination, anything that would make us comfortable with the fact that it might be used for purposes of incitement to hate propaganda. I hope that no member of this House will put freedom of religion on the same footing as using that freedom for purposes of hate propaganda. Hate propaganda, whatever its motives, means or examples, is unacceptable.

What surprised me was the lack of rigour. I was even more surprised because the hon. member for Provencher is a former crown attorney. Thus, he is someone who knows the law, who has pleaded cases and who has given instructions for prosecutions.

Canada has no state religion. In the Canadian Constitution and the charter of 1982, there is no state religion. A person cannot say that because he or she is Christian, Muslim, Catholic or Hindu, it is right for his or her world view—since religion is a world view—or one of the many other religious beliefs to receive more weight in the legislative texts than any other.

Now, freedom of religious expression is a guidepost. A long time ago, the Supreme Court made several rulings to define freedom of religious expression. Obviously, no one can prevent people from quoting the Bible, the Koran or any other religious work. That is not the objective of the bill introduced by the hon. member for Burnaby—Douglas.

I would like to quote from what is undoubtedly the most important Supreme Court ruling on religious freedom. I am speaking of Regina v. Big M Drugmart, a case all first-year law students study. This decision defines freedom of religion. The definition of freedom of religion therein does not withstand the Alliance's arguments. It says:

Freedom must surely be founded in respect for the inherent dignity and the inviolable rights of the human person.

It continues by defining the human person. It talks of freedom—and this is the most important part:

Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.

That is how the courts defined freedom of religion; in other words, no one is to be forced to act in a way contrary to his beliefs or his conscience.

Please explain the link between recognizing that people who are homosexual can be subject to hate propaganda and that they should be protected as a group under the Criminal Code, and the right to religion, as it was defined by the Supreme Court a decade ago.

That is where the Canadian Alliance gets completely carried away. They would have us believe that if members of this House granted additional protection to homosexuals by making them an identified group, as is the case in the Criminal Code, then people who quote the Bible, the Koran or any other religious text would feel that their rights have been eroded.

I respectfully submit that the member for Provencher's argument is intellectually dishonest. What he is trying to do is deny that there are people who are homosexual.

Canadian Alliance members have voted against conferring rights on homosexuals at every opportunity in this House. It would have been much more honest for the member of Provencher to stand up and call a spade a spade. That is his true intention.

[The Deputy Speaker]

Before I give the floor to the right hon. member for Calgary Centre, I want to advise the House that the hour will be concluded at 2:50 p.m.

[Joe Clark, Progressive Conservative, Calgary Centre, AB]

Mr. Speaker, I wish to congratulate the member for Burnaby—Douglas and other members of the House who worked so steadfastly with him to bring the bill forward and ensure that a principle which is fundamental to our Canadian society is enshrined and reflected in our law. This private member's bill has my strong support.

As on all private member's bills, individual members of my party will vote freely with their conscience. However, it is worth noting how deep is the tradition in my Progressive Conservative Party of protecting human rights. It has of course been expressed by my leader, the member of Parliament for Pictou—Antigonish—Guysborough. The bill would also bring the Criminal Code of Canada into line with the interpretation by the courts of the Canadian Bill of Rights which was introduced in Parliament more than 40 years ago by the government of the right hon. John Diefenbaker.

Canada's courts have held that discrimination based on sexual orientation is among the discriminations prohibited by Mr. Diefenbaker's Bill of Rights. This legislation would complete the protection against discrimination in the Criminal Code which was such a hallmark, such a life work of the late Mr. Diefenbaker.

As the House knows, sections 318 and 319 of the Criminal Code contain Canada's most powerful sanctions against hate propaganda. The provisions would prohibit the advocacy or promotion of genocide, the incitement of hatred against any identifiable group, and the wilful promotion of hatred against any identifiable group.

Until this bill becomes law, identifiable group is defined as applying to any section of the public distinguished by colour, race, religion or ethnic origin. The bill would extend that prohibition to apply to sexual orientation.

Let there be no doubt about the harm that is done now by hate propaganda targeted on the basis of sexual orientation. The member for Burnaby—Douglas and others have cited cases in the House. All of us who live in constituencies anywhere in the country and operate with our eyes open know that this kind of discrimination exists. It is always difficult; it is sometimes fatal. It is a threat to individuals and a blot on our society. The bill would extend protection to fellow citizens who are under attack.

The absence of legislation to protect minorities also sends signals to members of those minorities that they would become second class citizens and not entitled to equal protection from the law.

As the debate has shown, and as the volumes of correspondence coming to many members of Parliament have shown, there is an apparent concern about the impact on freedom of religion in this legislation. I believe, as other members who have taken part in the debate, that concern to be falsely based. I will not burden the House with all of the correspondence I received. However, yesterday I received a letter from the Anglican Bishop of Calgary, Rt. Rev. Barry Hollowell, who wrote:

I have been in receipt of material urging rejection of Bill C-250...which has included such comments as the following:

“...it may result in parts of the Bible being criminalized.” This strikes me as...a smoke screen that is attempting to cloud an issue of justice.

He went on:

It goes without saying that the “freedom to express moral views” is a freedom which must not be undermined in a free society. But, the freedom to live without fear or presence of hate harassment targeting individuals and minorities is also a freedom that must not be compromised. I believe that hate propaganda targeting gay and lesbian people must be stopped. ...these individuals remain the target of many hate-motivated crimes--including the tragic murder of Aaron Webster. It is not fair or just to protect some minorities from hate propaganda, but to deny that same protection to gay and lesbian people.

Bishop Hollowell concluded:

I wish to add my voice to those in support of Bill C-250...It is a matter of justice.

The first amendment that has been proposed today, while not legally necessary, would go some distance to adding to that assurance. We would be supporting that amendment.

As the House knows, the Criminal Code expressly protects the freedom of religion on its own.

I could quote references by bar associations, police chief organizations and others. This comes down to a personal sense as to how we see our society and how we value the freedoms that we so celebrate in our society.

Freedom essentially means the right to be who we are and not to be faced with the kind of propaganda and pressures that unfortunately have blighted the lives of too many of our fellow citizens simply because of their sexual orientation. We have extended that protection to categories of Canadians who are also themselves subject to that kind of hatred, subject to that kind of attack.

It is right and just, and past time, that we now extend the prohibited grounds to include sexual orientation and I am pleased and proud to stand and support the initiative by the member for Burnaby--Douglas on that matter.

[Tom Wappel, Liberal, Scarborough Southwest, ON]

Mr. Speaker, I realize that there are very passionate views about this issue. I intend to speak to this issue to the extent that I can on the basis of the law and of what I consider to be the legalities of the issue.

This amendment is a very short one. It is very direct, very to the point. I just want people who are watching to understand what it is. It seeks to add to subsection 318(4) of the Criminal Code the words “sexual orientation”. That is it. What it seeks to do is add in subsection (4) those words so that it would read:

In this section, “identifiable group” means any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation.

That section deals solely with genocide, absolutely nothing else. It deals with attempting to incite killing the members of a group and inflicting on the group conditions of life calculated to bring about its physical destruction in its entirety.

The difficulty from a legal point of view is that definition, which deals solely with genocide, is then brought into section 319 of the Criminal Code by the definition section, which is subsection (7), which says that “identifiable group” has the same meaning as in section 318. That is why we heard some hon. members talking about how this amendment, albeit it is only to section 318, also impacts on sections 319 and 320.

I only have 10 minutes so I am going to have to make my comments brief.

In my view there has been absolutely no justification whatsoever brought forward either at committee or here that requires this amendment to this particular section.

Tragic cases such as murder because someone was a homosexual, or gay bashing because someone was a homosexual are totally unacceptable in Canadian society. They are against the law. It is called murder. It is called assault. It is called whatever one wants to call it. The Criminal Code already punishes people who commit those crimes, as the Criminal Code should punish those people who commit those crimes. But it goes further.

Section 718.2 of the Criminal Code says “A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased” if there is evidence that the offence was motivated by bias or the person's sexual orientation. I am of course abbreviating the section.

The Criminal Code already provides that people can get an increased sentence if their motivation in beating someone up or killing them was because the person was a homosexual. In addition to the fact that the Criminal Code already provides penalties, it also provides increased penalties.

This particular amendment is not needed for any of the examples that the member for Burnaby—Douglas has given with respect to acts that pertain to criminal acts.

There are a lot of problems with this bill. The law of unintended consequences is what I would like to talk about.

People read things and I want to read an e-mail that I received, which is talking about Bill C-250:

If this legislation had been passed, we might have been able to throw Elsie Wayne in jail for promoting hatred against gays.

It's time to silence the gay bashers once and for all. Too many people hide behind religion and “family values” when all they are really doing is promoting hatred. It's not the gays that should “shut up,” but the hate mongers like Elsie. There must be limits on free speech when it is against gays and other identifiable groups.

It's time to put hate mongers like Elsie Wayne behind bars. Vote for Bill C-250!

Now, that is a fringe element, but it is out there. If we have private prosecutions for this kind of section, that is the kind of person who would lay a charge under the Criminal Code.

That is why the hon. member for Provencher has asked for an amendment so that only the attorney general of the appropriate province can authorize a prosecution. That amendment makes sense.

We cannot have people saying that we have to limit free speech if it is against gays or other identifiable minorities.

I want to close by saying there is no point reinventing the wheel. I want to read some of the comments of Lorne Gunter which appeared in the Edmonton Journal on June 5. He stated:

Technically, his bill amends only Section 318 of the Criminal Code, the clause which forbids anyone to advocate or promote genocide against “an identifiable group.” Pretty basic and non-controversial, it would seem.

But the danger from altering Section 318 comes via what it does to Section 319. By adding “sexual orientation” to the protected categories enumerated in 318, Robinson's bill has the effect of altering the definition of “identifiable groups” in 319. And while 318 deals only with genocide, 319 makes it a federal offence to “communicate statements in any public place” that would “wilfully promote hatred against any identifiable group.”

Covered in Section 319 are all forms of hatred, not just the promotion of genocide. All forms of communication are covered, too, except “private conversation.” Broadcasting, publishing and advertising are all covered; so are postings on the Internet. Indeed, speaking out against homosexuality would be forbidden in all “audible or visible means” of communication. One day, even sermons delivered by priests, rabbis and imams could conceivably be forbidden to refer to homosexuality as sinful. Talking on the telephone could be covered, too, since telecommunications are federally regulated.

It is true that Robinson's C-250 will not instantly ban all opinions and--

[The Deputy Speaker]

Order. I just want to remind members of the general practice that we cannot do directly in terms of naming members by name we cannot do indirectly either. If we are speaking about either the member for Saint John, or the member for Burnaby--Douglas or the member for Scarborough Southwest, that is the proper way of identification in this chamber during our deliberations.

I caution members in reading or otherwise, they cannot do indirectly what they cannot do directly. I will just ask members to keep that in mind.

[Tom Wappel, Liberal, Scarborough Southwest, ON]

I take your point, Mr. Speaker. I was quoting directly but I will do the mental gymnastics if I come across the name again. In any event the article states:

But it will swiftly impose a hate-crimes “chill” on those who object to the gay agenda. Before too long, those who speak out in opposition to government--or court-imposed gay rights--may find themselves pulling their punches out of fear of prosecution for their beliefs.

The article goes on and on but it does say “It is hardly fantastical to worry that an activist judge, armed with the hon. member for Burnaby--Douglas' law, could rule at the national level that all opinions troubling to gays are hateful, and none are protected, no matter what the Criminal Code says”.

I am getting heckled by the hon. member. It is interesting. The hon. member preaches tolerance and practises intolerance. He cannot even tolerate being in the same room as I am in when I do not even open my mouth. So shame on the hon. member.

This is a place of debate where we listen to each other. I sat here. I listened to his speech. I have listened to other people's speeches who are in favour of this bill. That is democracy and I ask the same respect from the hon. member.

The only way the hon. member seems to be able to convince people is to shout them down and I will not have that in this House. This is a place of freedom of speech.

In any event, I support the amendment of the hon. member for Scarborough--Rouge River because it does specify, or tries to specify, that religious texts are protected. However I ask what about the atheist who does not believe in good conscience that homosexual acts should be promoted or accepted--it could be tolerated--but accepted or taught in school as an accepted alternate lifestyle? What about the atheist? Is that person going to be subject to these sections?

[Carol Skelton, Canadian Alliance, Saskatoon—Rosetown—Biggar, SK]

Mr. Speaker, I am pleased to rise today in support of the amendments introduced by the member for Provencher to Bill C-250.

Over the course of the past several months, my office has been flooded with mail from Canadians who are concerned that Bill C-250 will have negative consequences on their right to freedom of expression and freedom of religion.

While the Canadian Alliance rejects hatred directed at any group in Canada, it has consistently expressed concern about Bill C-250 on the basis that it raises serious concerns for fundamental freedoms.

While the bill has good intentions, good intentions often have unintended consequences, and when those intentions form part of our laws, the impact can significantly interfere with the ability of people to communicate or to adhere to essential matters of personal belief, religious or otherwise.

There are many court cases that the hon. member for Provencher brought forward. He talked about the Keegstra case in the Supreme Court and the Harding case in the Ontario Court of Appeal. The judges ruled that these defences would not significantly narrow the application of section 319(2).

The Harding case ruling significantly lowered the mens rea requirements by changing the standard from wilful promotion of hatred to wilful blindness. If a person failed to think about the possibility that his or her statements could promote hatred and a court decided that the works or writings did in fact promote hatred, that person would face conviction under this section.

It is for these reasons that the amendment presented by the member for Scarborough--Rouge River would only slightly amend the religious freedom defence as it applied to subsection (2) and it would not alleviate our concerns in any significant way.

Rather than relying on the current defences, which have been significantly narrowed by judicial interpretation, religious freedom would be better protected by a clearer exemption for religious text and religious instruction. One of the rejected amendments from the member for Provencher had that exact intention. It reads:

Nothing in section 318, 319 or 320 prohibits or restricts:

(a) dissemination of religious scriptures or texts;

(b) religious instruction based on, or public or private expression concerning, religious scriptures or texts;

(c) providing professional advice, or expressing a professional opinion regarding sexual orientation, including advice or opinions on medical, psychological or other treatment; or

(d) anyone from expressing their opinion on teaching materials concerning sexual orientation.

It is unfortunate that this amendment was not deemed in order by the Speaker of the House, since many members, including myself, will not be able to support the bill without those protections and exemptions.

While the Canadian Alliance opposes advocating hatred directed against any group of people, an unamended Bill C-250 is clearly not an appropriate legislative response to prevent the expression of hatred. The constitutional rights and freedoms of one group of Canadians should not be bartered away through an ill-conceived proposal to advance the interests of another group. Without additional amendments to safeguard these freedoms, I cannot support the bill.

[Murray Calder, Liberal, Parliamentary Secretary to the Minister for International Trade]

Mr. Speaker, in my 10 years as a member of Parliament, I have never seen an issue that has led to so many letters, e-mails and phone calls from across Canada. I have heard from hundreds of constituents and close to 10,000 Canadians from across the country, almost all opposed. Letters supporting this bill can be counted on one hand.

Public opinion should not be our only guide in making Canadian laws. As parliamentarians, we must skilfully balance the demands of our constituents and our own careful assessment of the issues. However when a bill provokes this much concern in a constituency and across Canada, I would be failing to represent the people if I did not reflect that here in the House. Therefore I will be voting against this bill.

My opposition is not just a response to public opinion. It is based upon a deep respect for the basic freedoms we value as a nation, those contained in section 2 of the Charter of Rights and Freedoms: freedom of conscience and religion; and freedom of thought, belief, opinion and expression.

Such freedoms are not, of course, absolute. The charter makes them subject “to such reasonable limits prescribed by the law as can be demonstrably justified in a free and democratic society”.

Is Bill C-250 so necessary that it can justify an infringement on our most cherished democratic freedoms? That is the crux of this debate.

This bill would add “sexual orientation“ to the list of “identifiable groups” against which it is illegal to advocate genocide or to incite hatred.

If Bill C-250 only banned advocating genocide against homosexuals, I would have no hesitation in supporting it. Genocide is probably the worst and most serious crime against humanity, and no group should ever be subjected to genocide. To prohibit the advocacy of genocide against any group is a reasonable limit in a free society.

Likewise, I would support a bill that banned advocating violence against homosexuals or any other group.

My problem with this bill relate to the definitions of “sexual orientation“ as well as “inciting hatred”.

Is sexual orientation limited to homosexuals or does it include those who practise other forms of sexual deviance, such as pedophilia? Are those not also sexual orientations? Am I a criminal if I express hate for those adults who prey upon children?

Granted, section 319 requires the incitement of hatred to be “likely to lead to a breach of the peace”. The problem, of course, is how do we prove cause and effect. Is the mere expression of an opinion, even an extreme one, sufficient to cause a violent act?

Recently the member for Saint John expressed opinions in the House that were critical of the homosexual lifestyle. Many disagreed strongly with her opinions, while others agreed equally strongly. The right to agree or disagree is fundamental in a free society. We debate these issues and, over time, society reaches some kind of consensus or compromise and we move forward.

As my time is running out I want to say that free speech is not unlimited. Clearly there are good reasons for laws against death threats, fraud, libel and pornography, but this is different from banning honestly held opinions. Violence against homosexuals or anyone is already a crime, as it should be. Counselling someone to commit violence is also a crime, as it should be.

I would like to say again that because of what Bill C-250 would do, the infringements that I see with it right now, it is definitely a flawed piece of legislation and I cannot support it.

[The Deputy Speaker]

The time provided for the consideration of private members' business has now expired and the item is dropped to the bottom of the order of precedence on the Order Paper.

The House stands adjourned until Monday next at 11 a.m. pursuant to Standing Order 24(1).

(The House adjourned at 2:50 p.m.)