ARPA’s Director of Law and Policy, André Schutten, appeared before Parliament’s Justice Committee last week, arguing against a change to the Criminal Code.

As part of a new law called Bill C-51, the government wants to remove a section of the Criminal Code that expressly prohibits anyone from interfering with a religious service that’s in progress, and also protects members of the clergy from being harassed or interfered with on their way to or from a religious service.  The government argues that this kind of behaviour is already forbidden in other sections of the Code -the sections prohibiting mischief and harassment, for example – and that disrupting a religious service is really no different than a protest against a public rally at a park. But in his appearance before the Committee, André Schutten argued that disrupting a religious service is substantially different “in kind” from other kinds of protests. An example, he said, would be if someone were to suggest other amendments to the Criminal Code, like simplifying the law against assault.  “We already have assaults prohibited in Section 265; (why don’t we) get rid of sexual assault (as) prohibited in Sections 271, 272, and 273?”  Schutten said he expected the Committee would disagree with that because there’s “something different ‘in kind’ with sexual assault… therefore we need both provisions to be in the Criminal Code, because we’re deterring two different things.”  While he acknowledged his hypothetical situation wasn’t a perfect analogy, he insisted the example is analogous to the notion that disruptions to “religious services are different ‘in kind’ from (disruptions to) a university lecture or a rally in a public park.”

The Committee is considering whether to take that section out of Bill C-51 this week; you can send your MP and Committee members an EasyMail on this subject at this link.

A Calgary MP has launched an official House of Commons e-Petition on Bill C-51. That’s the law we told you about earlier this summer on Lighthouse News. It would specifically repeal Section 176 of the Criminal Code, which makes it a crime to disrupt any worship service, or to assault or prevent anyone from conducting such a service.

Conservative MP Tom Kmiec isn’t buying the various arguments the government is using to defend the new law. The government says the issue is already covered in prohibitions against causing a disturbance, uttering threats or intimidation, or inciting hatred. Kmiec says he has a problem with the logic behind that thinking. “Why would you want to do something four different ways when you can do it just one way, which is Section 176?” He also discounts government arguments that the section is obsolete, citing a recent case in Ottawa where a woman was charged in a case where a Catholic church service was disrupted and a statue of the virgin Mary was vandalized.

Kmiec says the change also doesn’t make sense in a context where Parliament has just passed another law toughening penalties specifically for mischief against religious properties if that mischief is motivated by hatred. In fact, he says, Statistics Canada data shows that more than a third of reported hate crimes in Canada were motivated by hatred of a religion, and repealing Section 176 would remove valuable protection for faith leaders and assemblies.

The petition would need a minimum of 500 signatures to be formally introduced into the House of Commons; the petition almost hit that threshold within the first week of being posted. Kmiec is hoping for a minimum of 7,400 signatures to at least match the numbers of a campaign from the BC Humanist Society, which is seeking to remove laws against blasphemy from the books. Kmiec says it is critical that “people of different faiths (show that they) take their faith and the disruption of their ceremonies very seriously.”

You can sign the petition at www.keep176.ca.

As we told you a few months ago on Lighthouse News, the federal government is making a move to eliminate so-called “zombie laws”. These are essentially old laws which are no longer in effect. The most common reason for their obsolescence is that they’ve been struck down by the court. While those laws are technically still on the books, they have become unenforceable, so they need to be removed to reflect that reality. But earlier this month, the federal Liberals introduced a second bill to eliminate some other old laws, and one of those eliminations could have an impact on every single pastor, and every single church, mosque, synagogue, or Sikh temple in the country. This is a completely separate bill from the one we discussed back in March. On the feature today, ARPA’s Law and Policy Director, André Schutten, on what the government is doing with this latest bill.

LN: Andre, let’s start with some background on the difference between these two bills.

AS: So they have a zombie law [Bill C-39] already and that one targets all these old Criminal Code provisions that were ruled unconstitutional, right? And so, I’m not really sure what the government’s up to. It might be that they’re trying to pass other stuff through this one and they use that description as cover. So C-39, which is also that – unconstitutional provisions, right – it’s “An Act to amend the Criminal Code (unconstitutional provisions) and to make consequential amendments to other Acts” from the Minister of Justice. So that one is the zombie law one. So I don’t know what else they’re trying to do with C-51, but I imagine that what they’re trying to do is they’ve got this cover going on, and they’re saying “Look! All we’re doing is cleaning up the Code again, and we’re just taking care of anything that’s probably unconstitutional.” But what they’re doing with that is they’re also taking out sections that aren’t unconstitutional; that are actually good sections (but) they just don’t feel like debating them.

LN: And that brings us to the central issue here. Right now, the Criminal Code says you can’t harass or assault a clergyman or minister in connection with him performing his duties, on the way to or from a worship service for example. And… you can’t disturb or interrupt a worship service while it’s underway. That is specifically addressed in the Criminal Code. But section 14 of the new zombie law, Bill C-51, specifically moves to eliminate that part of the Criminal Code.

AS: Yeah, so this one clause – Clause 14 – is key to that. Clause 14 is the one that removes protections for worship services. Whether that’s Christian worship services or Islamic or Jewish or Hindu or Sikh worship services; it’s written very broadly and says that anyone who disrupts these worship services is “guilty of a criminal offence.” And that’s a good provision to have, and yet they’re removing it, for no apparent good reason anyway.

LN: ‘I’m looking at that clause and I looked at it initially and I went: “Wow. This is really big.” And then I got to thinking about it and in the government’s defense – and I’m not defending the government, but just to play devil’s advocate for a minute – what’s the last time this provision was ever used? I mean, this is an ancient law that said you’re not allowed to disrupt a church service. Could the argument be made that being a multicultural, pluralistic society, church services aren’t special enough to require a specific clause in the Criminal Code to protect the conduct there?

AS: So, in reviewing some of the transcripts from the House of Commons on debate on this, Mr. Tom Kmiec – he’s a Member of Parliament from Alberta – he pointed out that this section has actually just been used a couple of weeks ago right here in Ottawa, where somebody has been charged under this provision. So in that sense, it is still a “live” section of the Criminal Code; it is being used.

And I think what’s driving the desire to remove this section from the Criminal Code is an attitude that a religious service is no different than a university lecture for example. And why should we give special protection to religious ceremonies if we don’t give it to, you know, a university lecture? And you can imagine, right, it’s been in the news; professor Jordan Peterson for example tried to give a lecture at McMaster University, the University of Toronto, (and) elsewhere, (and) he gets shouted down by protestors, right?

And so some people might say, “Well why – if we’re not gonna give criminal law protection to Jordan Peterson to give his lecture – why would we give it to a minister to give his sermon?” And I’d say that fundamentally the two are very, very different. A university lecture is one thing, but a religious service is something at a much different level. It’s something much more profound going on. And whether you’re Christian or not, I would say that protection ought to be there for a Muslim service – like a prayer service as a mosque – or it should be there for a Jewish service at a synagogue, or at a Christian service at a church. And I think that the government should not be afraid that this section is in any way unconstitutional; it certainly never has been ruled unconstitutional. So we should keep it.

And we need it in today’s society. Again, thinking of the Jordan Petersons of this country that get shouted down (while) giving a lecture, it’s not that hard to imagine that we might one day see people disrupting – in big ways – Christian services where orthodox teaching is being preached from the pulpit.

LN: Is this a fundamental shift in Canadian society? I mean, here we have on the one hand a government that pushes through (Bill) C-16, (that) says you have to use whatever pronouns somebody says they want to be described as, and on the other hand they’re removing this historical context of protection for religious services. It seems to me that there’s a fundamental reshaping of society going on here.

AS: Yeah, I think so. Absolutely. It seems to me there’s this fear of our Christian heritage. There’s this fear of our Christian past. And while I would say it’s absolutely true that the history of this particular section does have to do with Christianity and the Christian faith and protecting church services, that doesn’t mean that it has no value today. Even though we are definitely not a Christian nation anymore, we definitely should be protecting (the) Christian faith but also, again, other faiths should be protected in this respect as well.

And the counter-argument might be made that “Well, you know, we took out those sections but don’t worry; there’s still a section about criminal trespass,” right? So people can be charged under criminal trespass. But that, again, shows a total ignorance of what a worship service is. Now I can’t speak for the Jewish faith or the Muslim faith or the Sikh faith, but certainly for the Christian faith, our worship services are public events. It’s a public worship service. So, you know, we can’t exactly criminally charge protestors who come to a church service if we’re so public about our worship. Our worship is open to the public; we want other people to be able to come. They’re welcome in our church buildings. We want them to hear the Gospel. We want them to get to know Jesus Christ. But yeah, if they’re going to be disruptive and so on then we want to be able to also have the criminal law protection to make sure that that doesn’t happen. So we see ignorance of the Christian faith here, we see the ignorance of our history here. We see ignorance of the possible risks to not just the Christian faith but to all faiths with the approach being taken here. And I think that’s problematic all around.

LN: Is there anything we can do stop C-51? I mean, how do you mount a legal challenge on something that takes something away? It’s kind of a complicated piece.

AS: Indeed. We can’t exactly make a claim that – I don’t think – that we have a constitutional right to this provision. At the same time, we can make the argument that there is no constitutional reason to remove this provision. And so, certainly we are going to apply to the Standing Committee on Justice and Human Rights – that’s where this bill is now – so that’s the Committee stage in the House of Commons, and we’re going to lobby to get that Clause 14 removed. We haven’t looked at the rest of the bill yet, so there might be good parts in the rest of the bill, I’m not going to condemn the entire bill, but this one clause – clause 14, which removes protection for our pastors and our worship services – definitely has to be cut out of that bill.