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Summary of Objections to Bill C250 Catholic Civil Rights League 1) Existing law is sufficient to stop people from advocating violence against homosexually inclined or active, just as it is sufficient to stop people from advocating violence against reporters or teachers. There is no need to include the term sexual orientation in current hate crimes legislation for that purpose. (Appendix “A”) 2) Crimes of violence or crimes against property committed against people with homosexual inclinations should be prosecuted, just as they are prosecuted in any other case. The law already provides this protection, with provision for more severe sentences when the crime is motivated by hatred. (Appendix “B”) 3) The operative term in Bill C250 is not homosexuality, but the undefined notion of sexual orientation. The addition of sexual orientation to the list of identifiable groups actually means the extension of the law not just to the homosexually inclined or active, but to many more groups, such as paedophiles and child pornographers. (Appendix “D”, para. 10-13) 4) The elastic term sexual orientation appears to assume that both sexual inclinations and corresponding sexual actions are defining characteristics of the human person, and that moral deprecation of the inclinations and actions is tantamount to inculcating hatred of the person. In that case, those who assert that certain sexual acts are immoral will be liable to prosecution for inciting hatred even if they also insist that those who engage in them must be treated with respect and compassion. (Appendix “D”, para. 14-15) 5) Even now, anyone who argues that homosexual inclinations are disordered and that homosexual conduct is immoral is likely to be accused of inciting hatred. Citizens are already being penalized for publicly making such statements. Bill C250 will be used to criminalize and suppress opposition to homosexual conduct and lifestyles, as Svend Robinson himself has demonstrated. This is an illiberal and illegitimate use of the criminal law. (Appendix “D”, para. 17-20) 6) Given the present wording of Section 319(1), the passage of Bill C250 will invite criminal conviction on the basis of prejudiced speculation about a breach of the peace that might occur some time in the future. (Appendix “D”, para. 24-28) 7) The passage of Bill C250 would result in some biblical passages being defined as hate propaganda, effectively prohibiting their use in religious instruction, and would probably lead at least to the threat of criminal prosecution for inciting hatred under Section 319(1) of the Criminal Code. Other canonical religious texts may be similarly affected. (Appendix “E”) 8) Criminalizing opposition to different kinds of sexual conduct under the rubric of orientation will cripple free public discourse about sexual morality and bring into question Canadas commitment to freedom of expression and religion. The introduction of such a law at this time is particularly objectionable because of its potential to interfere with ongoing public discussion about the nature of marriage. 9) The proposed law will increasingly alienate a significant part of the population, especially objecting parents, who may be threatened with criminal prosecution for opposing efforts to have their children accept and even experiment with what they consider to be an immoral way of life. This will undermine public support for institutions attempting to impose the new order, notably government, the justice system and public education. Thomas Langan, President APPENDIX A 1. It is illegal to advocate violence against anyone in Canada. Section 22 of the Criminal Code makes it an offence to counsel, procure, solicit or incite people to commit assaults or other offences, whether or not the offences are actually committed. Moreover, under Section 810 of the Criminal Code or common law authority to exercise preventive justice, a judge can require someone who incites others to commit assaults or property damage to enter into a recognizance with conditions that will put an end to the counselling activity. Those who refuse to sign such a recognizance can be jailed, and if they violate the conditions imposed by the judge they can be arrested and charged. Commentary re: Bill C250 2. In a discussion on The Current (CBC Radio) on 11 August, 2003, a representative of a homosexual lobby group attempted to justify Bill C250. He claimed that it is illegal to advocate violence against ethnic groups in Canada, but not against the law to advocate violence against people with homosexual inclinations. The statement is false. 3. Existing law is sufficient to stop people from advocating violence against homosexually inclined or active, just as it is sufficient to stop people from advocating violence against reporters or teachers. There is no need to include the term sexual orientation in current hate crimes legislation for that purpose. [Top] APPENDIX B 1. The law provides that more onerous punishments should be imposed for crimes against persons or property that are motivated by bias, prejudice or hatred based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or any similar factor (Section 718.2 Criminal Code). The section is essentially a codification (a writing into the statute) of guidelines that judges were already using. The addition of the term sexual orientation in1995 was politically appealing but legally insignificant. In all likelihood, judges would have treated an attack motivated by hatred of homosexually active or inclined persons as a crime deserving a more severe sentence, even without the amendment. 2. There has been some criticism of these sentencing guidelines on the grounds that they appear to make certain groups of people more valuable than others. Critics have argued that attacks on all citizens should be considered equally serious, and that imposing more severe sentences for an assault on a particular ethnic group, for example, offends against the equality of all citizens. 3. Courts have sometimes justified differential sentencing in these cases on the grounds that crimes motivated by hatred are more socially disruptive than other kinds of crime.1 Whether or not one accepts this explanation, differential sentencing may also be justified if a crime is motivated by malice. For example, spray painting buildings is a common form of vandalism. But most people would agree that spray painting “Christians are scum” on the outside wall of a church is much more malicious than painting inane graffiti like “John was here.” It is not unreasonable to take this malice into account when sentencing an offender. 4. The motivation of the offence is something that must be proved beyond reasonable doubt. There must be clear evidence that (a) the offender knew that the victim was homosexually inclined or active, and (b) that the offence was committed for that reason. For example, an assault on an avowed lesbian because of a quarrel about ownership of a car would not be considered a hate motivated crime, even if the offender knew that the woman identified herself as a lesbian. Commentary re: Bill C250 5. The sentencing guidelines in Section 718.2 do not create new offences. One must first be convicted in the ordinary way of an ordinary offence like assault or damage to property. Only then can the issue of hatred of sexual orientation arise, and only if that hatred clearly motivated the offence. Religious believers who reject violence and accept the notion that wrongful conduct can be aggravated by malice need not be concerned that the sentencing guidelines in Section 718.2 may threaten freedom of expression. 6. However, the failure to define sexual orientation in this section is problematic for other reasons, which will be discussed within the context of Sections 319 and 320. [Top] APPENDIX C 1. Genocide means (i.e., is only) attempting to destroy and “identifiable group”, in whole or in part, by killing members of the group, or subjecting them to conditions calculated to cause death. “Identifiable group” means (i.e., is only) a group distinguished by colour, race, religion or ethnic origin. Commentary re: Bill C250 2. Since genocide is precisely defined as the killing of an identifiable group, it is inconceivable that the addition of any group of persons to this section could give rise to objections from Christians. [Top] APPENDIX D 1. Section 319 of the Criminal Code prohibits the communication of certain kinds of statements about identifiable groups (Defined in Section 318: see Appendix B). 2. “Communicating statements” includes (i.e., includes at least, and may include more than) transmission or display of gestures, symbols, or any form of verbal, written or pictorial representation. 3. There are two offences under this section, both of which concern “hatred”. This key term is not defined in the statute, but has been interpreted to mean an intense and extreme emotion associated to vilification and detestation. It implies that members of the identifiable group should be despised, scorned, denied respect and subjected to ill-treatment.2 Hatred is extreme ill will towards another that allows for “no redeeming qualities” in the person at whom it is directed.3 Public incitement of hatred 5. A public place includes “any place to which the public have access as of right or by invitation, express or implied.” This would extend to places of worship of any religious denomination that permits or welcomes attendance by non-members, so the law can be applied to statements from the pulpit in a Catholic church. 6. A “breach of the peace” is conduct like threats, assault or disturbance that involves some danger to a person or property.5 It is not clear whether the breach of the peace contemplated refers to a breach at the time and place the statements are made, or at some time in the future. The former would be more consistent with the history of the law and a number of court rulings, but the latter possibility cannot be excluded. 7. One can be convicted of this offence even if the statements are made in good faith to support opinions on a religious subject, even if the statements made are true, and even if they are relevant to any subject of public interest, made for public benefit, and reasonably believed to be true by the person who makes them. Wilful promotion of hatred 9. Moreover, one cannot be convicted of this offence if the statements are made in good faith to support religious opinions, if the statements are true, or if the accused reasonably believes them to be true and they are relevant to discussion of a subject of public interest. Commentary re: Bill C250 Sexual orientation 11. It is clear from activist literature that it includes not only homosexual inclinations, but bisexual interests and those who desire sex change operations. The usual acronyms used to describe alternative orientation are variations on “GLBT” – gay, lesbian, bisexual and transgendered. 7 12. Even these, however, hardly exhaust the list of those who could classify their inclinations as forms of sexual orientation. Exponents of paedophilia and pederasty would argue that nothing but prejudice precludes this.8 Claims by homosexual activists which have been recognized by the Ontario Superior Court of Justice can also be made by paedophiles,9 and can be extended to other groups. It has recently been argued, for example, that paedophilia, exhibitionism, fetishism, transvestism, voyeurism and sadomasochism should be removed from the Diagnostic and Statistical Manual of Mental Disorders, just as homosexuality was removed several years ago.10 13. The first point to note, then, is that the addition of sexual orientation to the list of identifiable groups actually means the extension of the law to many more groups than just the homosexually inclined or active. Hateful statements are certainly wrong and should be discouraged, but not all hateful statements should be penalized by law. For example, sexual assault victims and their families should not be threatened with criminal prosecution should they vent their feelings about paedophiles, peeping toms or child pornographers.11 14. The second point concerns Catholic teaching (shared by many people of other faiths) that homosexual inclinations are objectively disordered, that homosexual conduct is always gravely wrong, but that homosexual persons must be treated with respect and compassion.12 This teaching acknowledges the critical distinction between the moral nature of a desire or act and the respect due to the person. This distinction – often expressed as “hate the sin and love the sinner” – is the basis for the Churchs response to accusations that it incites hatred against persons identified as homosexual. 15. However, the elastic term sexual orientation appears to assume that both sexual inclinations and corresponding sexual actions are defining characteristics of the human person, and that moral deprecation of the inclinations and actions is tantamount to inculcating hatred of the person. In that case, those who assert that homosexual acts are immoral will be liable to prosecution for inciting hatred even if they also insist that those who engage in them must be treated with respect and compassion. Hatred 17. Even now, quite literally from sea to shining sea, anyone who argues that homosexual inclinations are disordered and that homosexual conduct is immoral is likely to be accused of inciting hatred. 18. In British Columbia, teacher Chris Kempling is appealing a conviction for “conduct unbecoming” a teacher. His offence was writing some letters to the editor and elected officials that were critical of homosexual conduct and lifestyles. According to the BC College of Teachers, all of these were “hateful”. The College imposed a one month suspension, a sentence more severe than it has imposed for theft, uttering threats, and sexually inappropriate conduct towards a student.13 19. The Telegram, Newfoundlands only province-wide daily newspaper, recently refused to print a letter to the editor signed by ten individuals. The letter contested widely publicized statements made by a local Catholic priest who, speaking from the pulpit, contradicted Catholic teaching by expressing support for homosexual conduct. The only direct comment on homosexuality in the letter was a brief reference to Catholic teaching. Yet The Telegram refused to print the letter because of legal advice that the letter “might be actionable under Canadian hate literature legislation.”14 20. All of this, before the passage of Bill C250. 21. Crimes of violence or crimes against property committed against people with homosexual inclinations should be prosecuted, just as they are prosecuted in any other case. The law already provides this protection, with provision for more severe sentences when the crime is motivated by hatred. (Appendix “B”) 22. Bill C250 will be used to criminalize and suppress opposition to homosexual conduct and lifestyles, as Svend Robinson himself has demonstrated. 23. Mr. Robinson objected to a sign held by a peaceful protestor on Parliament Hill: “Homosexuality – objective disorder tending to deviant acts.” When Mr. Robinson threatened to have the Sergeant-at-Arms remove it, the protestor did so himself. The sign was later replaced with one that read, “Sexual orientation. Defeat of reason. Protecting disorder.” Mr. Robinson seized that sign and threw it over a wall when the protestor declined to remove it. It was later reported that the RCMP were investigating the legality of the signs. Likely to lead to a breach of the peace 25. It is submitted that the immediate concern of this section is the preservation of public order, and that this accounts for its strict approach. It is further submitted that the limitation imposed on freedom of expression by this section is justifiable only if the contemplated breach of the peace is likely to occur at the time the statements are made or immediately thereafter, if the breach is a consequence of the making of the statements, and if the breach is not a reprisal against the speaker or his supporters provoked by the statements themselves.15 26. These submissions are in accord with our legal and political traditions that protect both public order and freedom of expression, but they are also practical from an evidentiary viewpoint. The direct observations of witnesses can be used to connect statements to the immediate likelihood of a breach of the peace, and their testimony can be tested in cross-examination. On the other hand, it is highly improbable that similar evidence could be adduced to prove that a statement made today is likely to lead to a breach of the peace some time next week. It would be dangerous to permit a criminal conviction to be entered on the basis of such speculation, which is as likely to be prejudiced as informed. 27. Nonetheless, the Attorney General of British Columbia, through counsel, favours this kind of speculation. A complaint was made against a public servant who had joined a discussion of the issue of homosexual conduct in the local papers letters to the editor column. The complaint asserted that the public servant was “perpetuating hate and violence.” In an unsuccessful attempt to keep the letter of complaint secret, counsel for the Attorney General made the following claims: The [Ministry] submits that the evidence demonstrates that any attempt by [the public servant] to stir up16 anti-homosexual sentiment in the community . . . (i.e. by writing more letters to the newspaper) could result in other individuals harassing, threatening or assaulting homosexual members of the community.17 Gay and lesbian individuals have been the victims of assault and/or harassment in [location] in the past because of their sexual orientation . . . If the Applicant were to stir up more homophobic sentiment in [location] by publicly speaking out on such issues (which he has done before) then individuals who have [sic] are capable of assaulting or harassing gays and lesbians as a result of their sexual orientation are likely to take notice of the fact that it is [a public servant] who is adopting a public anti-gay and lesbian attitude. There is a risk that such individuals will see the views of a [public servant] as validating their own anti-gay and lesbian attitudes, which in turn will heighten the already prevalent risk that such people will assault or harass gays and lesbians in the community.18 28. In this case, counsel for the Attorney General adopted the claims of the complainants, who wanted the public servant silenced. Yet the evidence cited consisted of a couple of unsubstantiated anecdotes from a single newspaper article. No evidence was provided from the local police service or the provincial Hate Crimes Unit to show that people identified as homosexuals in the community suffered disproportionately from assault or harassment arising from their sexual preference (as distinct from other causes), or that there was any factual relationship between public discussion and violence or threats directed at them. 29. If Bill C250 is not defeated, it must be amended to ensure that the phrase likely to lead to a breach of the peace cannot be interpreted in the highly speculative and prejudiced manner favoured by counsel for the Attorney General of British Columbia. [Top] APPENDIX E 1. Hate propaganda is any writing, sign or visible representation that promotes genocide, or that, if communicated, would incite or promote hatred of an identifiable group. Note that this definition does not include audio recordings, but would include historically significant material which might be kept for scholarly or educational purposes. Mein Kampf, for example, may be found on the shelves of people staunchly opposed to Hitlers ideology. 2. Possession of hate propaganda is not an offence, but a judge can issue a warrant for its seizure. At a subsequent hearing at which the owner or author may be represented, the judge will determine whether or not the material is hate propaganda. Nothing in the section requires the judge to consider the purpose for which the material is kept, so it is not clear that a distinction will be made between possession for the purpose of spreading hatred and possession for legitimate purposes. In any case, what the judge considers to be hate propaganda will be forfeited to the Crown. Commentary re: Bill C250 3. Leviticus calls homosexual practices “detestable”(18:22) and prescribes the death penalty for them (20:13). Romans 1:26 enumerates “every kind of wickedness, evil, greed and depravity” and much more besides as the consequences of “shameful lusts”like homosexual conduct, calling them the “due penalty for perversion”. Corinthians 6:9-10 warns that the kingdom of God will not be inherited by “the wicked” – including those guilty of sexual immorality, like homosexuals and male prostitutes. 4. The Saskatchewan Court of Queens Bench has already ruled that these passages, especially Leviticus, “expose[s] homosexuals to hatred“,19 so it is likely that the addition of sexual orientation to the list of identifiable groups would criminalize these biblical passages as hate propaganda. They might, like Mein Kampf, continue to be used as reference materials for the study of comparative religion, history or literature or in analogous contexts. But to use these passages to affirm Christian teaching that homosexual conduct is immoral would invite the seizure of the material. Further, an expansive interpretation of the phrase likely to cause of breach of the peace, like that favoured by the Attorney General of British Columbia (See Appendix C) would lead at least to the threat of criminal prosecution for inciting hatred under Section 319(1) of the Criminal Code. [Top] 1. R v. Lelas (1990), 58 CCC (3d) 568, 74 O.R. (2d) 552 (C.A.); R v. Ingram and Grimsdale (1977) 35 CCC (2d) 376 (Ont. C.A.) [Back] 2. R v. Keegstra (1990), 61 C.C.C. (3d), [1991] 2 W.W.R. 1, 1 CR (4th) 129, (S.C.C.) [Back] 3. Canada (Human Rights Commission) v. Taylor [1990] 3 S.C.R.(S.C.C.). 4. R. v. Dionne (1987), 38 C.C.C. (3d) 171 (N.B.C.A.); (1990), 107 N.B.R. (2d) 38 (N.B.C.A.), cited in Industry Canada, Overview of Applicable Law on Hate Propaganda. http://strategis.ic.gc.ca/epic/internet/insmt-gst.nsf/vwGeneratedInterE/sf02998e.html#E11E3. Accessed 7 September, 2003. [Back] 5. Glanville Williams, Arrest for Breach of the Peace. [1954] Crim. L.R. 578. Williams argues that English courts would restrict the meaning of the term to conduct involving some kind of danger to the person, while observing that American authorities would extend it to include threats against land or goods. The leading Canadian case identifies a breach of the peace as conduct that amounts to more than mere annoyance or insult to an individual that stops short of personal violence, or conduct that causes public alarm and excitement, which would presumably involve some danger to property or persons. See Frey vs. Fedoruk, 97 C.C.C. 3 (S.C.C.) [Back] 6. R v. Keegstra, supra. [Back] 7. For example, “Peer counselling programs need to include training in glbt issues and support strategies.” Creating a Safe School- A Model For Ending Homophobia In Your School (Handout at Gay and Lesbian Educators of BC workshop, 10 December, 1996, Powell River, B.C.) [Back] 8. “NAMBLA’s goal is to end the extreme oppression of men and boys in mutually consensual relationships by building understanding and support for such relationships; educating the general public on the benevolent nature of man/boy love; cooperating with lesbian, gay, feminist, and other liberation movements; supporting the liberation of persons of all ages from sexual prejudice and oppression.” (http://www.nambla1.de/welcome.htm. Accessed 9 July, 2003) NAMBLA is the North American Man Boy Love Association. [Back] 9. For example: “There continues to be heavy pressure on homosexuals to conceal their identity to avoid experiencing discrimination; they modify their behaviour to avoid the impact of prejudice; concealment of their sexuality has had deleterious psychological and emotional effects on homosexuals.” Ontario Human Rights Commission v. Scott Brockie, Ont. Superior Court of Justice, Divisional Court (2002) O.J. No. 2375, Court File No. 179/00 [17 June, 2002], para. 14. [Back] 10. Charles Moser & Peggy Kleinplatz, DSM-IV-TR and the Paraphilias: An Argument for Removal. Presented at the American Psychiatric Association convention, 19 May, 2003, in San Francisco. Quoted in Lawrence Morahan, “Psychiatric Association Debates Reclassifying Pedophilia”. CNSNews.com, 11 June, 2003 [Back] 11. Advocating violence is another matter; see Appendix “A”. [Back] 12. Catechism of the Catholic Church, 2357-2358 [Back] 13. Articles on the Kempling case are available on the League website at http://ccrl.ca. [Back] 14. Private communication to the CCRL dated 5 September, 2003. [Back] 15. Frey vs. Fedoruk, supra [Back] 16. Note that “stir up” is one of the judicially defined meanings of “incite”, the word used in Section 319(1). [Back] 17. In the Matter of the Inquiry between an Applicant and the Ministry of Attorney General (Public Body) and Third Parties. Initial Submissions of the Public Body, 28 April, 2000, Para. 4.29 [Back] 18. Inquiry, supra, Initial Submissions of the Public Body, 28 April, 2000, Para. 4.30 [Back] 19. “In my view the Board was correct in concluding that the advertisement can objectively be seen as exposing homosexuals to hatred or ridicule. When the use of the circle and slash is combined with the passages of the Bible, it exposes homosexuals to detestation, vilification and disgrace. In other words, the Biblical passage which suggest that if a man lies with a man they must be put to death exposes homosexuals to hatred.” Owens vs. Saskatachewan Human Rights Commission. 2002 SKQB 506, Q.B.G. A.D. 2001 No. 1497 J.C. S., para. 22. [Back] |
