Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 4 - Evidence for March 17, 2004
OTTAWA, Wednesday, March 17, 2004
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-16, respecting the registration of information relating to sex offenders, to amend the Criminal Code and to make consequential amendments to other acts; and Bill C-250, to amend the Criminal Code (hate propaganda), met this day at 3:40 p.m. to give consideration to the bills.
Senator George J. Furey (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, before proceeding to our deliberations this afternoon, there are two issues that I would like to discuss briefly.
The first concerns the point of order/privilege raised by Senator Tkachuk at the last meeting. Neither Senator Tkachuk nor Mr. Robinson is here this week. With the committee's permission, I would like to put off discussion of that matter until next week. Honourable senators, are there any objections to that?
Senator Cools: I have no objection. I would like to say that it is Senator Tkachuk's point of order, so only he has to be present.
The Chairman: That is correct, but he may want Mr. Robinson to respond to points that he raises.
Senator Cools: That is different. That would be having Mr. Robinson as a witness.
There is another issue related to the same testimony that I would like to raise. Perhaps I will raise it, because it is related. I will hold mine till then. It is either a point of order or a question of privilege, I am not sure which.
The Chairman: You will hold that.
Senator Cools: Yes, because it is related to Mr. Robinson's testimony.
The Chairman: The second issue, honourable senators, concerns a slight modification to the agenda. I spoke to senators before bringing the meeting to order.
We were scheduled to go to clause-by-clause consideration today on Bill C-16, but Senator Nolin is away. There is the possibility of hearing from one or two other witnesses — namely, from the Canadian Bar Association and/or the Quebec bar, so we will defer to Senator Nolin's request in that regard. With the committee's approval, we will postpone the clause-by-clause hearing until after we have heard from either the Canadian Bar Association and/or the Quebec bar. Could I have your approval for that, colleagues?
Hon. Senators: Agreed.
Senator Cools: Could you tell us at what point we will have a discussion among committee members on future witnesses on Bill C-250 and on how the study of Bill C-250 will be proceeding? I think we should all know.
The Chairman: We will be hearing from two panels today. After our hearings today, if colleagues could remain for a few minutes we could discuss that point in camera.
Senator Beaudoin: Are there witnesses in addition to the round table?
The Chairman: We will discuss that possibility, yes.
Honourable senators, we will proceed with our discussions on deliberations on Bill C-250. Our first panel of witnesses includes representatives from four national organizations. This panel will be followed by the testimony of four individual witnesses appearing to express their viewpoints to the committee.
The panel of witnesses, honourable senators, is made up of Ms. Gwendolyn Landolt, from REAL Women of Canada, Mr. Derek Rogusky, Focus on the Family, Canada, Ms. Janet Epp Buckingham from the Evangelical Fellowship of Canada, and Andre Lafrance from the Canadian Family Action Coalition.
Witnesses will have five minutes to make their presentations. That will be followed by questions and discussions with honourable senators.
Senator Stratton: When the witnesses are making their presentations, I should like to ask them to tell us a bit about the organizations that they are representing should, they be representing one. That would be nice to know. Thank you.
The Chairman: Thank you, Senator Stratton. Ms. Landolt, please proceed.
Ms. Gwendolyn Landolt, National Vice-President, REAL Women of Canada: REAL Women of Canada is national women's organization that was incorporated in 1983. Our purpose is in our name. R is for realistic; E is for equal; A is for active; and L is for life. We believe the traditional family is the foundation of society because the future of the country depends upon the family.
We have taken a great interest in Bill C-250, as it would appear to us that it will have a chilling effect on two of our basic freedoms in the Charter: freedom of expression and freedom of religion.
Madam Justice McLachlin, who wrote the dissent in the seminal case in this the subject, the Keegstra case, in 1990, described the whole of the hate crime provision in the Criminal Code as being as a chilling effect on freedom of expression. We would agree very much with her dissent. The decision was three to four. We find that it is a very subjective definition of ``hate.''
``Hate'' and ``sexual orientation'' are not defined in Bill C-250, so we already have a problem with the issue of the hate propaganda section, which was never found to be acceptable by many outspoken libertarians and well-known and renowned professors of law when it was passed in 1970. When it went to the Supreme Court of Canada, it had a very strong dissent, saying that ``hate'' should not be in the Criminal Code.
We are concerned that ``sexual orientation'' could include all sorts of deviations from heterosexual sex. In particular — because it is not defined — it could also include, unfortunately, the issue of pedophilia. You may think that is a surprise, but it is not. In 1988, at a sexuality conference in Guelph, Ontario, Dr. Sharon Satterfield said that pedophilia is not a deviation but an orientation. Social research from December 2002 includes papers about sexual behaviour that state that attraction to children should not be regarded as a deviation.
If anyone is concerned about this, we should know that in May 2003, the American Psychiatric Association debated whether or not we should include sexual orientation as a mental illness. They decided that at this time they would leave it in because they were concerned that, if they removed it from the mental illness section, it would stop research. It is very close that ``sexual orientation'' will include pedophilia, for example. This is a great serious problem.
The other problem is that there are no statistics available to prove that there is any need for this legislation. On March 11, the homosexual lobby group Egale admitted that there is only anecdotal information on the issue of whether or not there is a need. There are no statistics and Egale itself admitted there are no statistics. Also, last week you heard from Inspector Jones from the Vancouver police, who also said there are no statistics. The only things that are available to back this up are something quite different: ``hate-motivated crimes.'' That is what the police forces in Vancouver, Winnipeg, Edmonton and Ottawa have. However, that is not what we are talking about. The hate propaganda section of the Criminal Code deals with hate-mongering, whereas the local police divisions across the country are talking about hate-motivated crimes, which would be murder or burglary, or something that would be motivated by hate.
In Toronto — which is home to the largest homosexual community in Canada — the number of hate-motivated crimes decreased 35 per cent in 2002 and 32 per cent in 2003. Those figures would indicate that there are, at most, 11 homosexuals who may be hurt or harmed in some way because of sexual orientation. Those are hate-motivated crimes, but there are provisions already in the Criminal Code. If you murder or steal from someone, there are already protections. It is across the board for any offence in the Criminal Code. Hate-motivated crimes are already protected. It has nothing to do with what we are talking about. There simply is no way to substantiate the fact that there is a need for this legislation.
Bill C-250 will prohibit thought. In other words, it will require us to think certain thoughts. It is enforcing us to think in a certain way and not to express an opinion. Nothing is more controversial in Canada today on the social issue than same-sex marriage. Yet, anyone who speaks out against it could be charged under the Criminal Code with an offence.
I would bring to your attention how dangerous the situation is. A young woman, Donna Murphy — I hope you have copies of the document — was simply circulating a petition against same sex marriage in the Chrysler plant in Windsor, Ontario. She was accused of harassment and lost her job because she was speaking out against homosexuality.
We are finding that homosexuals regard anyone who speaks against their agenda as being hateful. I could give you many examples. We have plenty of examples of matters that Mr. Robinson, the sponsor of the bill in the other house calls ``hateful.'' For example, he called as hateful the Leader of the Opposition, who said his picture could be seen in other places, and he made him apologize, but in fact Mr. Robinson's face was the Internet, and he was stark naked, covered with shells, and that is what he was referring to. He insisted that he apologize to him publicly. In 1994, another liberal MP spoke out on Christian values with regard to homosexuality, and Mr. Robinson insisted that she be removed from the caucus. A Catholic priest always pickets outside Parliament, and his sign only had Catholic teachings on homosexuality. Mr. Robinson grabbed the sign, said it was hateful, broke it up and threw it away. He calls all those things hateful, and that is the major problem.
Anyone who may object to the homosexual agenda will be regarded as hateful. You could lose your job, like Mrs. Murphy. Anything could happen to anyone. We are deeply concerned that this is a great intrusion on public debate and public discussion, and certainly any of the so-called offences in section 319 of the Criminal Code are merely illusory. They will not protect ordinary people who want to speak out against homosexuality in public meetings or in the newspaper. It will have a chilling effect, for example, on people writing letters to the editor. Already people say to me, ``I do not want to write a letter on homosexuality because I will be in trouble.''
Those are the main concerns we have. It is an infringement on the rights of others to speak on moral issues dealing with homosexuality.
Mr. Derek Rogusky, Vice-President, Family Policy and Community Impact, Focus on the Family (Canada): Focus on the Family (Canada) is an organization that is based on Christian values and principles. We seek to encourage, support and strengthen Canadian families, and we do that from coast-to-coast.
Before joining Focus on the Family, I also worked in the Alberta Liberal caucus as a research analyst, drafting private members' legislation, so I do have some familiarity with that process. We used to always ask three questions, and I would like to pose those three questions and then try to answer them when we are dealing with legislation.
First, is the legislation needed? Does it address a significant and important concern of Canadians? As Ms. Landolt has pointed out, I do not think that is the case. I will give reasons why.
Mr. Donald Piragoff, who is with the Department of Justice, told the House committee regarding this bill on February 25, 2003, that:
Justifying a limitation on freedom of expression imposes an evidentiary burden on government. The legal tests for justifying a limitation on a Charter right requires that the government demonstrate that the objective of the legislation is pressing and substantial; that the limit on freedom of expression is rationally connected to the objective; that the provision minimally impairs freedom of expression; and that the negative effects on expression do not outweigh the positive affects achieved by the provision.
In my opinion, this legislation does not meet this evidentiary burden. As Ms. Landolt had pointed out, most of the evidence you have heard has been anecdotal, or it has been actual acts of violence, not hate propaganda. As has been pointed out, acts of violence are in fact already covered under the Criminal Code.
It seems the only potential example of hate propaganda directed at homosexuals that the bill's sponsor seems to present is an American citizen named Fred Phelps, who has not been in Canada for a number years and has been denounced by our organization and many others. In fact, we have been the subject of several of his verbal attacks. Interestingly, though, this bill, if passed, would not protect us in any means from those types of attacks.
Given that current laws prohibit actual acts of violence against homosexuals, and given the lack of substantial evidence that hate propaganda targeting homosexuals exists in Canada, it would be improper to enact legislation that has the potential to seriously restrict freedom of speech.
The second question: Are the terms of legislation clear and well-defined?
I think Ms. Landolt has pointed out some of those, but ``hate'' in particular is a term that really causes us some concern, simply because it is a very subjective term. I should like to read from Justice McLachlin at that time, now Chief Justice McLachlin, in her minority decision in the Keegstra decision. Here she states:
The first difficulty lies in the different interpretations which may be placed on the word ``hatred''. The Shorter Oxford English Dictionary defines ``hatred'' as: ``The condition or states of relations in which one person hates another; the emotion of hate; active dislike, detestation; enmity, ill-will, malevolence.'' The wide range of diverse emotions which the word ``hatred'' is capable of denoting is evident from this definition. Those who defend its use in s. 319(2) of the Criminal Code emphasize one end of this range — hatred, they say, indicates the most powerful of virulent emotions lying beyond the bounds of human decency and limiting s. 319(2) to extreme materials. Those who object to its use point to the other end of the range, insisting that ``active dislike'' is not an emotion for the promotion of which a person should be convicted as a criminal. To state the arguments is to make the case; ``hatred'' is a broad term capable of catching a wide variety of emotion.
Clearly we need to look carefully at how we define ``hatred'' because, as I will point out, it puts a chilling effect on legitimate discussion when people do not wish to brush up against the criminal system. Most Canadians would rather avoid that if at all possible. As a result, we have a situation where, if you do not know what the term ``hatred'' really means, you tend to take extra precautions to the point where we are actually eliminating or at least restricting regular, decent conversation on a variety of issues.
Another area is the term ``religious subject.'' Most faiths, and Christianity in particular, teach that a person's faith should impact all aspects of his or her life. Therefore, if an individual expresses strong concerns about homosexual behaviour that is motivated by his or her faith but is expressed in a medical or sociological terms, is the religious freedom defence still available? The answer to that question is, at best, unclear.
When it comes to restricting a fundamental human right such as freedom of expression, it is imperative that Parliament ensure that the limits are clearly defined, and unfortunately Bill C-250 leaves too many terms within the bill and the sections of the Criminal Code it impacts undefined or ambiguous.
The final question is, what are the potential, unintended consequences of the legislation? Who might be negatively impacted by the legislation, and how? Are there ways to limit these negative consequences?
Again, I would like to read from Keegstra. Here we have in the summary of Justice McLachlin's comments:
However, the rational connection between s. 319(2) and its goals is tenuous as there is not a strong and evident connection between the criminalization of hate propaganda and its suppression. Section 319(2) may in fact detract from the objectives it is designed to promote by deterring legitimate expression. Law-abiding citizens, who do not wish to run afoul of the law, could decide not to take the chance in a doubtful case. Creativity and the beneficial exchange of ideas could be adversely affected. At the same time, it is unclear that s. 319(2) provides an effective way of curbing hate-mongers. Not only does the criminal process attract extensive media coverage and confer on the accused publicity for his dubious causes, it may even bring him sympathy.
In closing, it is our position that the committee recommend that Parliament should not enact Bill C-250, for three main reasons. There is little or no empirical evidence at this time to suggest the need for Bill C-250. Bill C-250 and the sections of the Criminal Code it amends contain terms that are ambiguous and unclear, thus putting Canadians in the position of not knowing with certainty what restrictions, if any, are being placed on their freedom of expression and religious freedom.
Bill C-250 poses a real risk to the religious freedom and freedom of expression that Canadians enjoy. The defences against prosecution and/or conviction are rather limited. It would be important, given that the House committee only spent a couple of days dealing with this, to hear from Canadians on this issue. It would be incumbent upon this committee to gather as many witnesses as possible to hear from a wide range of Canadians. I believe that you would find that most people are truly concerned with the chill on freedom of expression and freedom of religion that this bill might cause.
Ms. Janet Epp Buckingham, Director, Law and Public Policy, General Legal Counsel, Evangelical Fellowship of Canada: Honourable senators, thank you for the opportunity to address this committee. The Evangelical Fellowship of Canada is a national association of Evangelical Christian organizations, including 39 denominations, 100 religious organizations and about 1200 churches. Our affiliated denominations include Baptists, Mennonites, Christian Reform, Pentecostal and Salvation Army.
Among our affiliates are several organizations that distribute Bibles, such as the Gideon's and the Bible League. Distribution of Bibles and Christian literature are an important aspect of Evangelical Christians' religious practices. I am the Director of Law and Public Policy. I am a lawyer by training and will be raising issues of concern in the legal interpretation of Bill C-250.
As a background principle, I need to stress that our organization neither condones nor supports the promotion of hatred or acts of violence toward any person, nor do we condone speech that incites people to violent acts.
I wish to make three points today and the first is in relation to sacred texts; the second point concerns the interpretation of religious freedom versus the interpretation of freedom from discrimination on the basis of sexual orientation; and the third point addresses concerns about the interpretation of section 319 of the Criminal Code.
Looking first at sacred texts, I wish to point out — and this seems obvious — that the Bible is a sacred text, as is the Koran and the Torah. Believers accept these texts as the Word of God. It is immutable, meaning that we are not at liberty to change the text. I need to state this clearly because at least one senator has stated that if the Bible has material that is negative to gays and lesbians, we ought to remove it. We cannot remove it. That is why it is called ``sacred'' — the meaning of the term.
My understanding is that sacred texts fall under the protection of religious freedom in section 2 of the Charter. However, I urge honourable senators not to simply leave it to the courts to protect religious freedom. As legislators, senators have a role to play in protecting religious freedom.
My second point concerns the difference in interpretation of religious freedom and freedom from discrimination on the basis of sexual orientation. In the 2001 decision in the case of Trinity Western University v. British Columbia College of Teachers, the Supreme Court of Canada ruled that the freedom to believe is broader than the freedom to act on those beliefs. This creates a distinction between beliefs and practices and gives a broader protection to beliefs. However, in the same decision, Justice L'Heureux-Dubé, albeit in dissent, also referred to other cases that refer to this, clearly states that gays' and lesbians' sexual behaviour is protected as part and parcel of the protection for sexual orientation under section 15 of the Charter.
This seems to indicate that sexual orientation has broad protection for both orientation and practice. In addition, if the behaviour and identity are fused, then a moral critique of behaviour is interpreted as a moral critique of the person. This is unlike any of the other protected grounds listed in section 318. While the court in the Trinity Western University case clearly stated that there is no hierarchy of rights, the protection for sexual orientation will be broader because of the way it has been interpreted. This gives religious groups no comfort when they are considering the approach the courts might take to interpreting Bill C-250.
This brings me to my last point on the interpretation of section 319 of the Criminal Code. Senators have heard about the Keegstra case, which is the only case from the Supreme Court of Canada considering section 319 of the Criminal Code. Chief Justice McLachlin wrote a strong dissent in that case and would have struck down this section. She indicated that the defences were not really effective in narrowing the ambit of section 319. One of her main concerns was the lack of a definition of ``hatred.'' This leaves the section too broad and would put a chill on legitimate expression.
The Ontario Court of Appeal ruled specifically on section 319(3) — religious defence — in the 2001 case R. v. Harding, in which the defendant was convicted although he claimed that he did not intend to promote hatred. The judge applied a much lower, wilfully blind standard of proof, than the wilful promotion of hatred, which Chief Justice Dickson relied on in finding section 319 constitutional in the Keegstra case.
Taken together with Chief Justice Dickson's declaration in Keegstra that only rarely will one who intends to promote hatred be acting in good faith or upon honest belief, it is easy to see why religious believers have concerns about the true effectiveness of the religious defence in section 319(3).
I wish to mention briefly in closing that Christians are further concerned by the 2002 Owens case decided under the Saskatchewan Human Rights Code. Mr. Justice Barclay of the Saskatchewan Court of Queen's Bench ruled, ``In other words, the Biblical passage which suggests that if a man lies with a man they must be put to death exposes homosexuals to hatred.'' This case was decided under the provisions of a human rights code that prohibited the promotion of hatred rather than under the Criminal Code. A court could issue a similar ruling under this proposed legislation of Bill C-250.
Dr. Andre Lafrance, Canada Family Action Coalition: Honourable senators, I am here on behalf of the Canada Family Action Coalition, a national organization concerned with any issue dealing with the well-being of the family.
I am grateful to members of this committee for allowing me to make a presentation on an aspect of Bill C-250 that, to the best of my knowledge, has been overlooked or at least not addressed by your committee. As a physician, I am very much concerned about this aspect of the bill. It was dealt with in an editorial of the Ottawa Citizen on September 22, 2003. It would have been difficult for me to express in a clearer or more succinct way my views on this matter. I quote the editorial:
If we read Bill C-250 rightly, those who draw on these texts to express their views on homosexuality will be safe from hate-crime prosecution. But what about those who don't rely on faith or holy books to form their views about homosexuality? Is an atheist going to be treated differently under the law than a Christian or Muslim? Will a devout Christian or Jew be able to denounce homosexuality as a sin, but someone who employs a scientific hypothesis in objecting to homosexuality be charged with promoting hatred? ... Bill C-250 might make it possible to prosecute a scientist for promoting hatred of gays in an article in a scientific journal, while a clergyman who denounces homosexuality from the pulpit will be safe from the courts...
Bill C-250 could end up protecting freedom of religious expression while putting a chill on the freedom of non- religious speech. Senators should send this bill back to the Commons for reconsideration.
That was sound advice.
My first comment is that there is already a chill being felt by those who dare express views on homosexual behaviours that are based on non-religious considerations. In this regard, I would like to recall what happened to Dr. Grant Hill when, in 1996, during the debate on what was then Bill C-33, he simply stated that the homosexual lifestyle was unhealthy. That is all he said. All hell broke loose. Mr. Svend Robinson demanded a public retraction. Following a complaint by three physicians from Toronto, Dr. Hill had to appear before the College of Physicians and Surgeons of Alberta.
While the media widely reported that he had been asked to appear before the college, not a single media outlet to my knowledge reported the verdict of the college a few months later — namely, that Dr. Hill's comment was ``factually correct.''
Indeed, he was correct. Actually, Dr. Hill put it mildly because homosexual disease is very — and I want to insist on the word very — unhealthy. In fact, male homosexual behaviour is a major risk factor for a fatal and incurable disease that has already killed thousands of Canadians. The latest statistics that I came across are from December 2001. At that time, Health Canada reported a cumulative total of 18,026 AIDS cases. Of the 16,047 adult male AIDS cases, 77.9 per cent were attributed to men who have sex with men — that is their language for homosexual men. An additional 5 per cent was attributed to a group of men who were both men who have sex with men and intravenous drug users.
This incurable disease means that for its present day victims — most of whom are now spared the quick death that was the rule in the early years of the AIDS epidemic — must live a life that a recent newspaper article referred to as ``a living hell.'' It is also a disease that imposes a huge financial burden on Canada's health care system.
I recently came across an article in the Canadian Medical Association Journal entitled, ``The changing direct costs of medical care for patients with HIV/AIDS, 1995-2001.'' The cost per month was $1,036 in 1997. It has remained practically unchanged since then. There are at least 50,000 people living with HIV/AIDS at the present time. Make the calculation. At the end of the year, it is an impressive amount.
Some of the other serious medical problems associated with the male homosexual behaviour include an increased incidence of sexually transmitted disease of all sorts and of the two most prevalent types of hepatitis, ``B'' and ``C''. At this point I might mention that I am a dermatologist. I am a specialist in skin disease, but people do not know that dermatologists also see many sexually transmitted diseases. There is a good reason for that. Many sexually transmitted diseases have their main manifestation, and often the earliest manifestation, in the skin. As it is easy for people to see their skin, they come to us. Apart from general practitioners, dermatologists are probably the ones who see the most cases of sexually transmitted diseases.
Senator Lynch-Staunton: What does that have to do with the bill?
Dr. Lafrance: So I happen to know what I am talking about when I talk about sexually transmitted diseases. I do not deal with disease as an abstraction.
Senator Lynch-Staunton: Deal with the bill.
Dr. Lafrance: I deal with diseases as they affect people.
Senator Cools: You are making them uncomfortable.
Dr. Lafrance: I can see that.
I will be quite happy to answer this gentleman's arguments at any time during the question period.
Actually, if you want more, I will say that in 1997, I wrote a study which showed that the risk for a homosexual male to become infected with the HIV virus — take my word — was 1,000 times — not 1,000 per cent but 1,000 times, which is 100,000 per cent — higher than for a heterosexual person. You can laugh.
Senator Lynch-Staunton: I am not.
Dr. Lafrance: These are not anecdotes; they are facts. I challenge anyone here in this room — including any member of the media — to find an infectious disease specialist, a public health official to discuss with me my study publicly on television.
The Chairman: Dr. Lafrance, the time for your presentation is up, unless you need —
Dr. Lafrance: I would have liked to talk about the bill.
Senator Lynch-Staunton: Me, too.
The Chairman: I am sure, Dr. Lafrance, there will be questions. Did you want to take a minute to wind up?
Dr. Lafrance: I would like to wind up.
The Chairman: I will give you one minute to wind up your presentation and then we will move to questions.
Dr. Lafrance: All I want to say is that it will be a sad day if a law is passed which will make physicians who have a responsibility for the well-being of the public hesitant or reluctant to tell the facts as they are.
That is all I want to say.
The Chairman: Thank you, Dr. Lafrance.
Senator Beaudoin: My question concerns the Vriend case that was decided by the Supreme Court of Canada. The court came to the conclusion that the words ``sexual orientation'' should be considered as being written into the law. My question is addressed to Ms. Landolt. Do you agree or disagree with that decision of the court? As you know, a judgment of the Supreme Court on the interpretation of a word in a statute is the Constitution itself after the ruling of the court.
One or two of you referred to the opinions of Chief Justice Dickson and of Chief Justice McLachlin. They disagree, of course. I believe, Ms. Buckingham, that is what you said. To me it is obvious that they do not agree. In a way, those decisions are not unanimous. However, the fact is that, legally, when the judgment is rendered, the majority decision becomes the law of the land.
Do you agree with this; or are you criticizing directly or indirectly what the Supreme Court has said thus far on this matter? Freedom of expression has always been very generously defined by the court. It is one of the bases of our democracy.
Ms. Landolt: With regard to the Vriend decision, I would suggest that it was a very poor decision but not for the reason you would think. It is because the Supreme Court was reading in words that were not there. In this procedure where the courts read in and read out legislation they are determining public policy. I object to that.
Senator Beaudoin: You do not accept the ruling of the majority of the court?
Ms. Landolt: No, not when they read in and read out. They rewrote the Alberta legislation. That is improper. The court should not do that. Their role is not to make policy.
Second, the words ``sexual orientation'' have not been defined in Canada. They are in the human rights legislation federally and provincially. The difficulty is that time has moved on. We now have the American psychiatric association including it as pedophilia. We have all sorts of examples that are happening. As you know, if the court can decide a definition of marriage, which has been around since time immemorial, and change it we are only one case away from deciding what sexual orientation will be.
It seems that members of the legislature, such as yourselves, should be defining what should be in legislation and not the courts. It is a poor situation when you have — I hate to use the expression — nine unaccountable, appointed individuals making public policy. The trouble is that they do not have the input from the public that the legislatures have. They make decisions based on the limited facts before them. It seems that legislatures have a much broader mandate. That is why I find it very offensive.
Senator Beaudoin: I have one correction, if I may use that expression. I agree with you that the legislative branch of the state should define. The fact is that sometimes we do not have the courage to do that. I have said that again and again. We criticize the court afterward, but we do not have the courage to define things that must be defined in the statute itself.
The fact is that the court did it in the Vriend case. I would like to hear Ms. Buckingham on this.
Ms. Buckingham: It is helpful to raise the question: Why is it that we all keep talking about the Keegstra decision and the two different judgments? We raise it because the dissent was written by the current Chief Justice. Therefore, the question is whether, if this type of case came before the court at this time, would this section be struck down?
The Supreme Court has raised some very significant concerns about the restrictions on freedom of expression that this section exposes. Is this a time to be expanding the ambit of the section, or should legislators rather be looking at whether this section is needed at all?
In Vriend, the court said if you protect one group in legislation, you need to protect the whole range of groups in society. That would require a further expansion beyond Bill C-250. Currently, section 318 has a limited list of groups that are protected. It does not have the full range of groups. Some people have suggested to get rid of the list and protect all groups in society from hate propaganda. There may be some merit in looking at those kinds of things. Right now, you are looking at adding one group but not the other groups in the list. From what you are saying about Vriend, the Supreme Court of Canada is saying that if you protect one group, you have to protect the full range of groups. That is not what is happening here.
The Chairman: Before going to the next question, Ms. Landolt, I just wanted to follow up on a point Senator Beaudoin was making.
Are you expressing a concern that prohibition against sexual discrimination will affect crimes such as pedophilia, which is set out in the Criminal Code?
Ms. Landolt: Bill C-250 puts into the hate propaganda section of the Criminal Code, sections 318 and 319, the term ``sexual orientation,'' but there is no definition of the term. We do not know what it means. With what has been going on in social sciences and psychiatric fields, they are broadening the term. They are saying, for example, in Haig and Birch, in the Ontario Court of Appeal, Mr. Justice Krever said that ``sexual orientation'' means sexual preference. Well, some people prefer children. Some prefer same-sex. That is so broad and sweeping.
The Chairman: Do you agree that, irrespective of how any member or group in society defines something such as sexual orientation, that opinion does not impact on the fact that a particular activity is a criminal offence? The Criminal Code defines that. Pedophilia is set out clearly in the Criminal Code.
Ms. Landolt: That is my whole problem, Mr. Chairman. What today is a criminal offence will not be tomorrow. Again, I use the example of marriage. What marriage is today and what it has been since time immemorial is something quite different according to two courts in Ontario and B.C. There is no way we can know. Something must be done.
The legislature should be doing this and not leaving things wide open to the courts. Sexual orientation may mean being a cross-dresser or being bisexual. Is that included, too? If that were my sexual preference, would I therefore be protected? It is so wide and sweeping. The whole situation changes from day to day. What sexual orientation meant to us yesterday — which was homosexual or lesbian — will not mean the same tomorrow. Even if pedophilia, or whatever, is a criminal offence today, it will not be tomorrow necessarily. The courts can do anything.
They used to say when I was going to law school that the courts could do everything except change a man into a woman or a woman into a man. Now I am beginning to wonder if they are not going to go that way, too — transgendered or something.
Senator Cools: Welcome, witnesses. Do not think you are special. I always begin my queries by saying welcome to the witnesses. I am always impressed by the work and the effort that volunteers put in to appear before these committees. Thank you for that.
I would also thank the doctor. As a medical man, you see a lot. I thought it would be useful if this committee could have the benefit of science. My mind is open enough to hear just about anything. Obviously the witnesses have read the testimony thus far. The testimony is clear, both from Mr. Robinson and the other witnesses to date that this bill is largely unnecessary.
Mr. Robinson said, in his words, ``This bill is largely symbolic. I would be the first person to concede that.'' Mr. Jones also said that, as did another witness whose name I have forgotten. I asked them directly and they said that the current provisions of the Criminal Code are adequate for all the police work that is needed, for prosecutions of any would-be crimes. Mr. Jones went on to say that the bill is really required because of social recognition for homosexual people.
I am not a lawyer and I do suffer discrimination from many lawyers, but I have read a lot on the development of the Criminal Code in 1892 and on its primary draftsman, Mr. Stephen. Anyone who has read that glorious and massive literature understands very quickly that one is supposed to make a criminal law very slowly and only with profound and good reason. Social recognition is not one of them.
Would Dr. Lafrance tell us about the medical consequences to individuals who involve themselves in activities such as ``rimming,'' if you know the word, sado-masochism and so on?
Senator Lynch-Staunton: Out of order.
Senator Cools: No, no, this is relevant. I am sorry, Mr. Chairman, this is very relevant. The fact of the matter is, honourable senators, that we discourage children from smoking cigarettes because tobacco is harmful. I would submit that we are talking about some sexual activities that are dangerous and life-threatening. The committee should have the moral courage to hear something of it. I have lost a lot of beloved friends to a variety of these conditions. I have made it my business to instruct myself. That is the first question. You can think about that.
Ms. Landolt, your concern that the term ``sexual orientation'' is so wide as to involve a wide range of sexual behaviours is well founded. I would like to put on the record here for this committee a document called the Journal of Homosexuality, particularly, volume 20 in 1990. The subject of the entire volume is pedophilia and male intergenerational intimacy, historical, social, psychological and legal perspectives. If you were to open up this text, the foreword is the debate on pedophilia, and the second article is ``Man-Boy Relationships: Different Concepts for a Diversity of Phenomena.'' It continues with ``Pederasty Among Primitives and Institutionalized Initiation.''
The Chairman: Senator Cools, I will ask you to get to the question because we have Dr. Lafrance waiting to answer as well as Ms. Landolt, and there is a list of senators who wish to intervene.
Senator Cools: I would like the witnesses, if they have read the recent article by the Kinsey thinkers, Dr. Moser and Dr. Kleinpatz, in respect of a speech to other doctors about depathologizing the paraphilias. It is a big debate now. Maybe you have not read it. Maybe you are not abreast of the literature.
The interesting things in this debate, both on this and on marriage, is that we talk about human sexuality without ever touching sexuality because it is glossed over.
Dr. Lafrance: I am not an expert on the consequences of sexual deviancies in general. I cannot tell you much. All I know about sado-masochism is what I read in Time magazine a few weeks ago. It is not a subject that particularly interests me. I am interested in the medical consequences of homosexual behaviour and that has been the focus of my studies. All I can tell you is that I had made allusion to some of the consequences — and I was interrupted at one point. I would like to continue because the list is long.
I mentioned the risk of sexually transmitted disease, and the two most prevalent types of hepatitis, B and C, which are extremely serious diseases. More alarming is the resurgence of two old medical scourges — syphilis and tuberculosis — which have disappeared from North America, but they are prevalent in some other parts of the world. I saw my last case of syphilis in the late 1970s. I did not see any more cases until two years ago, when I saw two cases up at the so-called secondary stages, which is where the skin manifestations — which are characteristic — are most recognizable by dermatologists of my generation can recognize. I am not sure of younger dermatologists because they have not seen cases of syphilis. I spotted two of the about 18 cases that have been reported in the Ottawa-Carleton region, and, guess what, both cases were in homosexual men.
The resurgence of these two diseases, which are two killers — take my word — have been mainly among the homosexual population in large metropolitan and urban centres in North America such as Philadelphia, Chicago, Los Angeles — places where homosexual men congregate. It is no coincidence.
Another detail even more alarming: I read in Time magazine recently that homosexual men have become big users of Viagra. I do not need to explain to you what Viagra does. Apparently, it permits homosexual men — who are notoriously promiscuous to start with — to have even more encounters in a given unit of time, with the result — guess what — a high incidence of tuberculosis and syphilis among homosexual men.
You also know, I hope, that homosexual men are the only group who are not allowed to give blood, but there is one group, and only one group, which is not allowed to give blood. They are refused by the Canadian Blood Services, which is the successor to the Red Cross, to give blood, and it is men who have sex with men — and why? Because allowing them to give blood would carry an extremely high risk of the transmission of a disease, which can kill people.
This decision of the Canadian Blood Services has been challenged by homosexual groups in two provinces. The challenge has not been to the court; it has been to the Human Rights Commission. In two provinces, in Quebec and in B.C., and in both cases — we all know how human rights commissions are very eager to pursue anything that smells of discrimination — they were dismissed because the Human Rights Commission knew very well that this is sound medical practice to refuse people who can be carriers of a deadly disease.
The Chairman: Dr. Lafrance, I will cut in.
Dr. Lafrance: I can continue for hours.
The Chairman: I will ask colleagues and our witnesses to try to keep the focus of our questions and our responses on the substance of the bill. I do not need to explain to colleagues or to the witness what the substance of the bill is.
Ms. Landolt, you had the second question from Senator Cools.
Ms. Landolt: I believe the senator asked me about a paper published by Dr. Charles Moser. In December 2002, in the issue of the prestigious journal, Archives of Sexual Behaviour, Dr. Charles Moser of San Francisco's Institute for Advanced Study of Human Sexuality argued that society should not discriminate against adults who are attracted to children.
That is the point that I was suggesting, Mr. Chairman, that it is coming this way, and all I am saying is we hope that you as legislators would take responsibility for the legislation and prevent some of the problems that may occur as a result.
The Chairman: Thank you very much.
Senator Lynch-Staunton: Thank you, chair. I must say that this is not exactly the tone of the discussion I expected on this bill. I do not know what the medical consequences of sexual behaviour have to do with this discussion. I resent the attack on anyone's sexual behaviour. I am probably one of the few in this room who was adamantly opposed to Mr. Trudeau's policies, except one, which is when he said the state has no business in the bedrooms of the nation.
To have one group with a certain sexual behaviour or tendency condemned so adamantly, viciously and terribly as we have heard today is mean-spirited and distracts from the purpose of this bill, which is to give protection — if that protection is needed — in an amendment to the Criminal Code.
I agree with Senator Cools and others that this bill — I was not aware that Mr. Robinson also agreed — is not needed, that that protection exists elsewhere. However, since it is before us, we have to deal with it. I would have no problem if this bill were defeated in good conscience because I know from what I have heard here and what I read and studied elsewhere that the protection is available elsewhere, which is the same as far as it goes for colour, race, religion and ethnic origin. It is all protected elsewhere, but it seems to be politically correct or of some political advantage to include those words here.
We hear today that the only way we can define sexual orientation is by bringing in homosexuality. I would have thought sexual orientation was broader than that. It is heterosexuality, too. Why do we pinpoint one group in particular? I think I have the answer to my own question, and I will leave it at that.
I will give my answer by asking all of you the same question: Had the initiator of this bill been other than an acknowledged homosexual, would your adamant opposition to it have been the same as it is today?
Ms. Landolt: I would like to say one thing. With respect, your reaction to Dr. Lafrance is pertinent to Bill C-250, because he was a physician speaking out on a medical matter. It is not socially acceptable to say there are medical consequences to sexual activity, whatever. You took offence to that, and that would be an example, senator, of how difficult it is for anyone who wants to speak out on this issue; they will be prohibited.
For example, our organization spoke out against same-sex marriages. What happened? I looked on the Web site of ``Equal Marriage'' and it claimed we are hateful and are hate-mongering simply because we supported the traditional definition of marriage. We are saying that this is an infringement of views.
Dr. Lafrance was speaking as a physician and you found it offensive, but if he had been speaking about the effect of syphilis on heterosexuals, I do not think you would have reacted so quickly.
Senator Lynch-Staunton: My objection to his statistics was not on the validity of them; it was on what they had to do with this bill. I am sure I could throw out statistics on how heterosexual relationships lead to certain diseases, too, but what has that got to do with this?
Ms. Landolt: He was saying these are the consequences of it and he is not allowed to say that publicly because people take offence. You took offence. Therefore, if you put this into law, it makes it even more prohibitive and more of a chilling effect on public debate. We will not be allowed to speak out.
Your reaction was very humane and sensitive, but it means that a physician will not be able to speak out, as Mr. Grant Hill could not speak out. It is the same thing with our group when we spoke out against same-sex marriage. We were attacked as being hateful, when all we do is speak of traditional values. We are afraid that freedom of expression will not be allowed on this issue, and that is what is so troubling about this legislation. When, as ordinary Canadians, we want to have a public debate on something, our rights are infringed because it is not socially acceptable to speak out. This will just cement it into a criminal offence. I could be charged.
I come from Toronto. If I wanted to speak out on traditional marriage and say why I do not want homosexuality and same-sex marriages, I could get into serious trouble. That is my concern. For all of us ordinary Canadians, this is too broad and sweeping and it is an incursion on public debate.
The Chairman: May I interject, Senator Lynch-Staunton, for a point of clarification?
Ms. Landolt, do you not think that section 319(3)(c), which deals with statements in the public interest, would protect any medical or scientific person who wished to raise an issue that was in the public interest?
Ms. Landolt: I only wish that were case, but we know it no longer is a protection. I can give you many examples. Even though homosexuality is a matter of public debate, that is not a defence that we are allowed to use any more. We were called hateful and people who have an opinion. It is a chilling effect upon people. We are afraid that it will be a tool used by activists to diminish our freedom of expression even more. It is illusory because it will not protect us.
The Chairman: I agree with your point that there is public debate, but that public debate, that public disagreement on either side of this issue does not result in anyone being told that they are not allowed to say anything publicly or being charged publicly.
Ms. Landolt: That is the problem. We are all afraid of the fact that we are going to be prohibited by threat of a criminal offence if we speak out. Who knows what is hateful? What I think is hateful, Ms. Buckingham does not think is hateful. It is not defined. What the homosexual community regards as hateful is not what I would regard as such. All of us are afraid that, if this is put into the Criminal Code of Canada, we will always be subject to a charge being laid against us. A criminal offence is very serious.
Senator Lynch-Staunton: We are at odds and I hope we respect each other's opinion. I guess my background is such that I am more understanding or more ready to accept behaviours that are not those that I would share, as long as they do not intrude on my lifestyle and behaviour. I just wonder why some of you, or all of you, are so adamantly opposed to a particular behaviour, to a point where you are so strongly opposed to a bill that I do not think is that offensive.
There have been very few actions taken out under the current section. I doubt whether adding these words will initiate a rush of action one way or the other.
I am trying to put myself in your mind, with all due respect, and ask where the strong feeling comes from. I respect it, but I do not share it. It is quite revealing to me to see the great commitment you have, which, in a sense, leads to a very narrow view of a society that should be maybe a little more understanding, and of which I think I am a part.
Ms. Buckingham: You need to recognize that we are four different organizations, with different perspectives. Our concerns with the legislation arise not from who introduced it or how it was introduced, but from recent court cases. There have been a number of cases, and I mentioned several of them, and there is another recent one out of British Columbia, where different pieces of legislation have been used to limit primarily religious expression on sexual morality that includes public expression about homosexual behaviour. Quite a bit of the expression was fairly mild, but people have lost their jobs over this; people have faced human rights complaints over this.
Our concern is, if there is a criminal provision, people will then face criminal action on it. While there have not been many prosecutions under this section, up to this point it has not included sexual orientation, and there is a huge public debate about sexual orientation and same-sex marriage in our society. We are concerned that this section will actually be used much more than it has been previously. Therefore, we have concerns for freedom of expression and particularly, from our perspective, freedom of religious expression, on issues of sexual morality.
While I would hope you are right, that if this legislation passed there would not be many prosecutions, but what if there are? As legislators, criminalizing expression is always something that should be taken very seriously and with a great deal of thought and concern, because freedom of expression is protected in our Charter of Rights and Freedoms and should be given the broadest possible protection.
Senator Smith: My first question is to Dr. Lafrance.
I heard you read the statistics. I certainly am happy to hear what all of you have to say on anything. I have no problems with freedom of speech.
Quite frankly, it almost sounded to me as if you were making the case that consensual homosexual acts between persons of consenting age should be made an offence. Are you suggesting that?
Dr. Lafrance: No.
Senator Smith: What was it you were advocating?
Dr. Lafrance: I am advocating the right for physicians to proclaim the risks associated with certain behaviour, whether it is smoking or drunk driving. There are many behaviours that society and/or the medical profession actively and vigorously discourage. Pretending that the risk for a heterosexual man for getting HIV is the same as it is for a homosexual man is a lie that is conveyed by our own medical association and by the medical establishment. That is a lie, as I say, and I am willing to defend that publicly against anyone: the risk is a thousand times. It is true when they say that everyone is at risk, but it is a half-truth and a half-truth is a half-lie. As a physician, I am more at risk than you are from getting HIV/AIDS because I can stick a needle in my hand after giving a local anaesthesia. However, it will not be the result of my sexual behaviour, it is the result of carelessness in my practice. If I get a blood transfusion, the risk is very small compared to what it was at the time of the tainted blood epidemic. There is a possibility of about one case in 250,000 of the virus being transmitted. I can explain why, but it would get technical.
Senator Smith: I accept what you have said about what you believed in good faith. Do you have a legal opinion that says that, were you to express the views you have just expressed, you would have committed an offence under the law if this law were to pass?
Mr. Lafrance: I think I am not paranoid, but I can see that. A few weeks ago, a complaint was lodged against me to the College of Physicians of Ontario because I had a brochure in my office called, ``The Deadly Con Game,'' which deals with the silent epidemic of sexually transmitted diseases. It does not deal with HIV/AIDS; it deals with herpes and with genital warts, which are true epidemics. No one has an idea about the extent of this epidemic. I retain the right to proclaim that there is an epidemic and that the solutions being advocated to deal with that epidemic are the wrong ones. I want the right to say that and I do not want a law that will scare me into silence.
Senator Smith: Okay. My question was have you obtained a legal opinion — in writing, I would hope, if you have one — for you to say what you just said — namely, that if this law is passed you would have committed an offence?
Mr. Lafrance: With the courts the way they are, you can expect anything nowadays, actually. I do not feel safe at all, I can tell you that.
Senator Smith: I accept that. I think what you are saying is that you do not have a written legal opinion on that?
Mr. Lafrance: No. After seeing what happened to Dr. Hill, however, when there was no such law as the one being contemplated now, I am concerned. The right of a physician is to protect the health of his patients and the health of the public in general. I not only have the right to say that but I also have a duty to do so.
Senator Smith: Ms. Buckingham, I have great respect for your views. I am trying to get a handle on something that I have coped with for a long time. I come from an evangelical background. I have two brothers who are preachers and both my father and my grandfather were preachers. I am the black sheep. I know that the larger Protestant denominations do not have a problem with this bill as far as I am aware.
Do you have a concept of separation of church and state? In other words, if I lived in Iran, I would not want what I could or could not do to be dictated to me by the big Ayatollah. Where you have a democratic society, the laws that are put in place are there because elected people with a mandate have decided to do it rather than someone's view of what is sin and what automatically falls under the category of sin in one person's belief. Do you feel that must be enshrined in the law for everyone else, regardless of religious conviction? How do you cope with the bigger question of separation of church and state — if that is not too philosophical? Is that a fair question?
Ms. Buckingham: Well, I have a Mennonite name, so, of course I have a concept of separation of church and state.
Muslims and Catholics have expressed some concern about this bill, largely to do with concern about sacred texts. The Catholics have some concerns about papal statements, for example. In Ireland last year, when there was a papal statement on sexual orientation, the Irish Civil Liberties Association raised concern about that statement being read in church as promotion of hatred under the Irish Criminal Code provision. I actually want to turn this on its head and say that I am not talking about imposing an evangelical view of sexual morality. I am talking about gay and lesbian people imposing their views on me and telling me that I cannot make public statements about my sexual morality because it would be spreading hatred.
I was on a television program last week where someone from the gay media told me that, ``your religious views on sexual morality is what causes violence against gays and lesbians.'' I have not had someone say that to me publicly. However, if that is the view of the gay community, then I have a lot of concerns about whether I can publicly state religious beliefs. I do not want to impose them on people, but I do not want to be silenced from ever being able to make a public statement on these issues, particularly when my views are based on religious beliefs based on religious texts.
Senator Smith: I am tempted to get into same-sex marriage here but I suppose you do not want me to do that, chair.
Senator Stratton: My question is addressed to Ms. Buckingham. I made a speech previously in the Senate with respect to the need for the bill. I am a bit of a libertarian in that if we have already covered this in other aspects the Criminal Code, then why would we need this bill? My understanding is that we are adding to an already existing list. You have stated that that list should either be expanded to include all or be deleted in its entirety. I still feel that the bill is not needed. It may be needed in a social sense, however, out of respect to those individuals who do suffer. I think there have been enough cases across the country, at least in my province, where that is the case.
Would you not argue the bill on the facts that it is not needed and that, if you do anything, it should be to delete the list? To go to the degree that you are under threat, while it may be true, it is a matter of opinion. I would rather hear a legal argument as to why the bill should not be put in place because it exists in other parts. Is there another way of dealing with the social issue other than this bill?
Ms. Buckingham: I would argue that there are always mechanisms short of criminal law that should be used before the full weight of the criminal law should be used in a particular setting. When you look at Mr. Robinson's testimony, he was talking about speech on the playground. I had some real concerns about that. Are you going to criminalize schoolyard conversation? That is so clearly an area where education is appropriate and sensitizing children to other children's needs is appropriate. When you look at what groups are targeted by hateful expression in our society, probably those suffering from mental and physical handicaps would be among those who would be targeted by expression.
At what point is it criminal hatred? I would agree with you that there is no evidence that there is hate propaganda out there that is resulting in hate crimes against gays and lesbians in our society. I do not know what kind of testimony you heard about hate propaganda at all in our society, or whether it is even currently seen as a problem in our society. I would have no problem in seeing this section removed from the Criminal Code altogether. It is used more to silence people's legitimate expression by threats of criminal action than it actually is against those who are having real, criminal expression against others. We live in a free and democratic society where we should be able to tolerate some public discussion about significant issues.
Senator Stratton: That answers my question with respect to the bill. To my understanding, the bill is not introduced simply to add to the list but, as has been said, for social reasons. If you do not want this bill to go through, then how would you address the issue of violence against gays? It is a real issue. There are examples, as I said, in the city I come from where this has taken place. People have been murdered. You have not addressed that issue. I think it needs to be addressed by you, because it is real.
Ms. Buckingham: There are serious issues of violence against gays and lesbians. However, I have not seen any evidence that there is any body of literature or expression behind the kind of violence that I think you are talking about against gays and lesbians.
My concern is that when I hear people saying, ``It is your religious views that are causing that violence.'' That is not Christian teaching. However, if that is the perception of the gay community, then they will be targeting religious expression. I do not think there in any link between those two.
We do have laws in place against violence. We have laws specifically in place against hate crimes, including on the basis of sexual orientation. I think those laws should be enforced. There is no indication that any of this violence is coming from religious communities or that there is a body of hate propaganda against gays and lesbians that needs to be eliminated in our society.
Senator Stratton: I do not think you have answered my question. I will move on.
Ms. Landolt: I can quote from Egale, which is a lobby group for homosexuals, who appeared before you last Thursday. They said that currently, much of the information about the prevalence of hate propaganda and hate crimes in Canada comes only from firsthand stories and experiences. It is very limited and local in scope. In other words, there is no proof.
We know that if someone is assaulted because they are homosexual, you would bring an action against them for assault, but there is nothing to show that hate propaganda has caused that. There is no link where you can say, ``Well, because you are religious, you caused me to be beat up,'' or ``you caused me to be robbed.'' You cannot link them. There are no data to show that there is a link with hate propaganda because there is no hate propaganda proof. There is no proof that there is hate propaganda against homosexuals. They said so themselves.
You are suggesting that we cannot let people say bad things, but people say bad things about me, and I do not think there is any legislation protecting me. All of us have had bad things said about us. Somebody wears glasses. You cannot protect that. Hate propaganda is a criminal offence that is so forceful and mighty a thing to protect someone from bad words or bad thoughts. None of us are protected from bad thoughts. I would be more than happy to remove all those listed in section 319 and simply say everybody in Canada is protected. Why is it only some people are protected? Why can we not say everybody is protected and remove the list? If someone is blind, they would be as protected as someone who wears glasses, or somebody who is overweight, or somebody who is the wrong colour.
Senator Stratton: One final thing: There is a social issue out there of concern for these people. We really need to address it in some form or another, if not this way. I was hoping for some kind of answer to that.
The Chairman: I wanted to follow up, Ms. Buckingham, on Senator Stratton's point on the 1996 Federal Court case of McAleer. Are you familiar with that? They upheld the Canadian Human Rights decision that, in fact, there was promotion of hatred against a group based on sexual orientation.
Ms. Buckingham: I am afraid I am not familiar with that case, sorry.
Senator Beaudoin: Which case?
The Chairman: McAleer, 1996.
Senator Pearson: I was much impressed by Ms. Buckingham's comments right from the beginning that she does not condone speech that promotes hatred or hateful acts. That is all we are really dealing with, in my view. This bill is only dealing with promoting hatred or hateful acts. There is a long way between expressing an opinion and promoting hatred.
I do not feel particularly concerned that it would be overused. I do feel the symbolic value is important. I agree with Senator Stratton. We know about some of the cases. It does not come out of nowhere that these kinds of crimes against gays and lesbians and others take place — namely, the beating up of people in parks and so on. It comes from somewhere. There is no proof, but there are connections with a culture that somewhere along the line seems to allow people to think that hatred is possible.
From my view, this bill is only saying that the expression of hatred against this group, as well as the other groups that are listed here, is something that we as a society do not wish.
My view as a Christian is that the major message of the Christian religion is compassion and respect for everybody — absolutely everybody. That is what I would like to see. I think it is important for people to know that we as Canadians feel that hatred against this particular group is not acceptable. That is really what I think this bill is about.
Dr. Lafrance, in my experience with working with young people, the issue of sexually transmitted diseases is very largely in the young population. Education is extremely important. I do not see this bill in any way stopping the increase of education to young people about what is going on and what these diseases are. Many of them do not seem to be aware of what these diseases are or how they are transmitted. I cannot imagine that there would be any way in which this small addition to an existing section of the Criminal Code would impede greater education to particularly young people about what is going on and what needs to be dealt with.
Those are really more comments than questions.
Senator Andreychuk: Most Canadians would agree that we do not want hate to be used as a method of injuring anyone else. My views should not lead to anyone else using violence against a person.
The difficulty I have with the way the debate has gone on Bill C-250 is that I am not concerned in Canadian society that any religion, based on its own text, would be defended in our courts. That is clear. The difficulty may arise in that area whereby someone could perpetrate violence in the name of religion because of their misunderstanding of the religion or as part of a splinter group.
We have gathered a significant amount of information after the terrorist activities as to whether our definition of ``terrorist activities'' should have included religion — in the name of one or two, or a group or whether we are talking 200 or 2,000. In face, we have questioned some religious motives. Is that where you are coming from? Someone could misconstrue the messages and take up arms in the name of a religion, thereby making it legitimate. Is there a crossing over from peaceful teachings to the use of violence?
Ms. Buckingham: My concern stems from the fact that already people have used religious texts in a way that has promoted hatred. I am thinking particularly of the Hugh Owens case in Saskatchewan that was brought under the Saskatchewan Human Rights Code. Unfortunately, when the court made its decision, it did not nuance things that way. The decision simply talked about Biblical texts promoting hatred against gays and lesbians. That is the precedent stating that these Biblical texts promote hatred against gays and lesbians. We then wonder what kind of protection we can have for the Bible now that such a precedent exists.
I do not think anyone likes to hear that their activities are a sin, no matter what those activities are. We do not like to hear that. Naturally, then, there will be those in the gay and lesbian community that do not like to hear from the Christian community that that is one of their core beliefs.
When you have broad legal precedents you can use them to silence what might be legitimate religious expression about sexual behaviour or sexual morality. That is where our concern stems from — these broad court decisions. Hard cases make bad law. I am concerned that there is some bad law out there that might be used as a bad precedent to silence legitimate religious expression.
Senator Andreychuk: Would you say that that kind of unease has led to not putting good faith in this proposed legislation to do the things Canadians normally have done under criminal law?
Ms. Buckingham: Yes.
Senator Andreychuk: Perhaps the Owens case explains why so much of my e-mail and so many of my letters come from Saskatchewan.
Ms. Buckingham: That case did have a high profile. People said afterwards that the Bible had been labelled ``hate literature.'' I do not think that was ever the intention of the court. However, when you read the decision on its face, it looks like that was the intention. There has been more concern expressed in Saskatchewan because of that decision.
Senator Andreychuk: I hope that while we obtain the facts and figures, I respect everyone's right to put issues on the table and speak according to their experiences. However, the overwhelming information is that HIV is not a homosexual concern. In Africa, it is more prevalent in women. It is a heterosexual concern, a children's concern, an orphan's concern, and a worldwide concern.
We should attack it as a medical issue. The incident numbers go up and down in all of our communities according to the amount of education we apply to the issue. When particularly vulnerable groups are educated, the behaviour patterns of that group seem to change to protect themselves against HIV/AIDS. When the education ends, the numbers rise again. Young people experiment and that is one dilemma. In war, one takes risks that one does not otherwise take.
I would hope that we would be cautious with our facts when we put them out. I respect that Dr. Lafrance did clarify that his concern is the ramification of disease, the cost to communities and the preventive needs. However, I hope that we are more cautious with our facts on a global basis.
Senator Banks: My colleagues will know that I bring to this issue and this debate the clarity of vision that derives from naïveté and challenge. I do not have difficulty making a distinction between the crimes of violence, for which sanctions already exist, and this question, which is: Should it be an offence to incite hatred against an identifiable group of persons? I approach the issue from that standpoint.
To add to Senator Andreychuk's comments, Dr. Lafrance, I also appreciate what you were getting at. However, when one is advancing scientific opinions, one must be careful that they are correct. You said, among other things, that there is only one group of persons who are not permitted to give blood and that is not true. I am not permitted to give blood for reasons other than the ones that you have put. We must be careful when we are putting scientific arguments. I am not permitted to give blood because I take medication for high blood pressure and so they do not want my blood.
Dr. Lafrance: You are an individual and I said, ``group.''
Senator Banks: I am just as much a member of an identifiable group as anyone else. Homosexuals are not, in the normal sense of the word, an identifiable group. You cannot say that man is or that girl is.
One of the objections raised was that it is difficult to define ``hate.'' Section 319 addresses the matter of incitement of hatred and section 318 the matter of genocide. If we removed the idea of hate from the existing Criminal Code, with what would it be substituted? If we were to do that, should we simply do away with section 319 entirely? I am assuming that it is not okay to do or to say certain things that would be offensive in the eyes of a religion or a colour or an ethnic group. We all, I think, agree on that.
If the word ``hatred'' were not the one we use, what would we use? Absent that, should we just do away with it and say there is no criminal sanction against preaching — or whatever we call it — against people because of their colour, race, ethnic origin, derivation or religion? How would we handle that?
Ms. Buckingham: My understanding of the history of this section of the Criminal Code is that it comes from the Second World War. It became part of the Criminal Code later than the Second World War but that was the origin because of the large body of literature against the Jews. We do not want that to happen again
Senator Banks: — and blacks, Irish and Poles.
Senator Cools: Black people did not have much to say in this.
Ms. Buckingham: We are concerned about violence and inciting violence against another group in society.
Senator Banks: That is not —
Ms. Buckingham: That is not what the section says but you are wondering what we would use if we removed ``hatred.'' We would accept violence and incitement of violence.
Senator Banks: Is it all right to incite hatred if no violence follows from it, in your view?
Ms. Buckingham: We have to draw a line in protecting our freedom of expression in society. You are wrestling with the question of where that line falls.
My concern is that hatred is a very difficult thing to define. It may be that I feel hatred is incited against me when somebody calls me a bigot. If someone calls me a bigot, is that hatred against me? How do we define it? Do we define it objectively or subjectively? Inciting violence is much easier to define. Clearly, it is criminal. Inciting hatred is much closer to the line and to call that ``criminal'' is a serious thing.
Senator Banks: Do you think, for example, that we ought not to have criminal sanctions against people who incite hatred against religions? Would that be okay with you?
Ms. Buckingham: I would not be averse to removing that. I do not like people doing that, but for it to be a criminal offence —
Senator Banks: Would it be okay for you if it were not a criminal offence to incite hatred against people because of their religion or because of their colour?
Ms. Buckingham: As a Criminal Code offence.
Senator Banks: Thank you. You are worried that people will be charged under the provisions of the bill, were it to become law, for things which they now say and which are not now susceptible of a criminal offence.
Do you take any comfort from clause 2 of the bill? This does not address Mr. Lafrance's point — which I thought was very interesting — that the bill sort of takes care of allowing people to say things for reasons that are religiously derived and not otherwise. However, your objections are based on religious beliefs. I am wondering whether you would take comfort from clause 2 of the proposed legislation. I am not referring to the Criminal Code but clause 2 of Bill C- 250.
Ms. Buckingham: The concern I have is that that amendment is to the defences. My understanding of how the courts have interpreted this is to say, ``If we find that you are wilfully promoting hatred, it cannot constitute a good faith expression on a religious subject.''
Senator Banks: What precedent is there that says that?
Ms. Buckingham: I am looking at the Harding case in which a pastor in Toronto published a number of pamphlets dealing with Muslims in that city. First, the court said that wilful blindness could constitute ``wilful,'' therefore it did not matter that he did not intend to promote hatred against Muslims. Also, while he was expressing his opinion on a religious subject, he could not hide behind his religious expression to promote hatred.
Senator Banks: I agree.
Ms. Buckingham: Unfortunately, what we end up with is a situation where the defences do not really help you very much. If you are found to have been promoting hatred, the courts will say, ``There is no religion that allows you to promote hatred. Therefore, it cannot be a good faith expression on a religious subject, even if it is based on a religious text.''
Senator Banks: Do you take any comfort from the fact that in order to protect against all prosecutions under the Criminal Code, one must convince an attorney general that the bringing of a charge is likely to result in a conviction and that absent that, the kinds of frivolous things that you are talking about would not likely obtain? Does that give you any comfort from your reservations about the bill?
Ms. Buckingham: It helps not to have frivolous prosecutions. However, it certainly did not help Reverend Harding in his case. He still had the case brought against him and it did result in a conviction.
I am more concerned about what constitutes hatred. If gays and lesbians feel that Christians saying homosexual behaviour is a sin and promotes hatred —
Senator Pearson: Some Christians.
Ms. Buckingham: — some evangelical Christians and some Catholic Christians will say that, that could be considered to be promoting hatred, whether the Attorney General agrees with it or not, and could result in a conviction.
Senator Banks: Not if the attorney general does not agree that it is likely to result in a conviction.
Ms. Buckingham: No, but what if it does result in conviction?
Senator Banks: Then the attorney general would have been convinced that it was going to in the first place and that there was some substance to the case.
Ms. Buckingham: That is right. It is a severe limitation on freedom of religion and freedom of expression.
Senator Banks: We have restrictions placed upon us. We live in a society. It is necessary, you will agree, that in a society we have restrictions placed upon us and there are restrictions on our freedoms. I mean, to be absurd, I cannot drive 70 miles an hour through a school zone. No matter how much I want to and no matter how much I believe I ought to be able to, I cannot do that. If we are going to live together, our freedoms are not in any sense, in any arena, absolute; they are restricted, by definition, in a society.
Senator Joyal: Ms. Buckingham, you referred on different occasions in your answers to Madam Justice McLachlin. Did you read the speech she gave at McGill University on the occasion of a conference on pluralism, religion and public policy on November 18, 2002? She clearly delineated the realm of freedom of belief and the rule of law in our society where freedom of belief does not trump the rule of law. That seems to be in conflict with your own reading of the separation between the church and the state, as my colleague Senator Smith has put it.
According to the law of the land, freedom of religion is not absolute. The freedom of expression of some religious beliefs is not absolute. If, in a society, under religious belief you promote, for instance, to kill a group of people in society, you cannot cloak yourself under freedom of religion to be free from charges. There are limits to freedom of belief expressed publicly. You might, as a private individual, believe this is wrong.
Let us take another example. For instance, the Roman Catholic Church has the sacrament of marriage. It has pronounced that divorcees live in sin. As you know, the church refuses the sacrament to divorcees. If someone were to say in public, ``Let's kill all divorcees because they live in sin and they will die in sin,'' I think you cross over the limits of the rule of law in society. The rule of law in society is that the dignity of the human being commands that everyone has the right to life and physical integrity.
If your religious belief endangers the right to physical integrity, then the law somewhere must place some limits on the expression of those beliefs publicly and the consequences that you might want to draw for yourself in terms of public action.
I draw your attention to the speech of Madam Justice McLachlin because I think she succeeded in delineating very well the realm of religious belief and religious expression and the realm of the rule of law whereby each individual is entitled to his or her integrity.
Section 319(1) of the Criminal Code states:
Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of...
Thus, there is a qualification to hatred. Hatred per se is not prohibited in the Criminal Code. It is hatred when the incitement is likely to lead to a breach of the peace. That qualification is very clearly stated in the Criminal Code. I think the Criminal Code balances one's belief against the act of inciting people to break the peace, to threaten someone's physical integrity. That is what we mean by breach of the peace.
Did you pay any attention to that aspect of section 319(1) as it relates to the Charter and to the various interpretations of the courts as reviewed by Madam Justice McLachlin in her lecture?
Ms. Buckingham: Section 319(2) actually causes me more concern than section 319(1). Section 319(2) does not have that qualification about leading to a breach of the peace or inciting violence. You have raised the very point I made earlier. Crossing the line is when someone is advocating violence or a breach of the peace, but this is more like the first situation where the Catholic Church may refuse to give the sacraments to divorced people. The rule of law now says that you cannot discriminate as a church. That would be an infringement on freedom of religion with which the Church would have a problem.
Without the extra qualification of violence or breach of the peace, that is where this section goes. This section does go toward saying: Your religious beliefs are no longer in accordance with the rule of law because you have discriminatory beliefs on the basis of morality. Whether on divorce or sexual orientation, I do not think the state properly belongs in that realm of religion to tell religious groups what they can and cannot believe, or what they can and cannot promote within their communities.
Senator Joyal: There is no problem. No one has ever seen a case in the Canadian jurisprudence whereby the beliefs or doctrines of a church — for instance, those prohibiting divorce or behaviours — have been sanctioned by the court as being contrary to human rights. When you cross over from belief and you bring it to a public stage and you target a group of people and you promote hatred and violence toward those people, the state intervenes there to protect people.
Freedom of religion, as I say, is not absolute. Religious beliefs do not trump the rule of law in my opinion and in the opinion of the Canadian courts. The rule of law is based on an essential group of values. Among that essential group of values are physical integrity and human dignity. Those are core values of society. Those values might be interpreted differently in a church or through a body of doctrine. Different doctrines hold different perceptions on various behaviours.
We must ask ourselves whether this bill clearly delineates between a doctrinal belief about a certain behaviour versus the need to protect the rule of law in society. That is what we are trying to understand with this bill. When you say that your group is indifferent to the promotion of hatred, I say, well, that is a belief and I respect that.
Ms. Buckingham: If I had said that, I would certainly agree with you, but I actually started out by saying we do not condone that, nor do we promote it. It is not a Christian belief to promote hatred.
Senator Joyal: That is what I thought, too, but I do not want to have a discussion on this. In my own faith, I thought that the first commandment is to love others. That is the first and only commandment. To me, it is the most important one. That is what I am told: If you follow this one, you will be safe.
You may say there are a lot of scales and a lot of sins that have been pronounced under that, and I would agree with that. We are not wrestling with the content of the various beliefs, we are looking at the line whereby religious belief can not go behind the line of maintaining public peace and maintaining human dignity. That is essentially where we are at with this bill. That is how I understand we are trying to see the various implications.
Ms. Buckingham: If this committee is inclined to recommend passage of this legislation — that certainly is not clear at this point — I would encourage you to consider including something that would specifically protect religious texts and make it clear that those will not be targeted by this legislation.
Ms. Landolt: Senator Joyal has put his finger on the problem with this bill. He asked if this bill clearly delineated hate propaganda that would cause harm versus people who merely speak badly of someone else. That really is it. That is the problem with the bill; it does not delineate.
Certainly my organization has been accused of hate. We have been told, ``As soon as this bill is passed, are we ever going to get charges against you to shut you up because what you say is `hateful.''' This bill does not delineate or protect anyone from charges. The examples given by Senator Joyal are valid; we do not want to protect any religious group that insists in going against the rule of law — obviously not.
This bill does not do that. This bill is not protecting ordinary, everyday people, whether religious or non-religious. This bill can be used as a tool to ``shut us up'' as it were, in our freedom of expression and freedom of religion because the bill is not clear. We know that activists will go against us for speaking what we believe to be perfectly normal debate. That is the problem with this bill; it is too vague. What is hate? No one knows. These are the problems of the bill.
Someone mentioned that the Attorney General would stop that. We know that attorneys general are simply political officials. They are part of a political party and are simply doing what is politically correct. They are not upholding the law; they are promoting party policy. We have no guarantee that the attorneys general will protect us. That is why this bill is so dangerous. It frightens us because we will not have any freedom to speak what we believe.
The Chairman: I thank the panellists for the informative discussions and the very informative interactions. You certainly have given us food for thought in our deliberations.
I welcome our next witnesses. They are all individuals who have come to share their thoughts and opinions on Bill C-250.
Mr. Gerald Chipeur, Lawyer, Chipeur Advocates, As an individual: I have been invited to speak to this committee on the subject of the Bill C-250. My comments are offered as a lawyer who practices in the area of constitutional law. However, I must confess my political bias. I am a confirmed libertarian. I do not believe there are many problems that are amenable to solution by government. Government usually moves too slowly to achieve its objective of making life better for citizens. However, the greater concern that I have with this legislation is that once government starts to move, it cannot be stopped or nuanced to account for exceptions. That means that the innocent are often hurt when the government tries to go after the guilty. I am afraid that Section 318 of the Criminal Code could become a living example of my concerns.
Let me be clear: I oppose the very existence of sections 318 and 319 of the Criminal Code. It should not be expanded. It should not be amended. It should be repealed.
I do not say this because I favour discrimination on any of the grounds that are currently listed or any other grounds. That is not Canada's tradition. In fact, it has been for centuries Canada's great honour to be a safe harbour for those who face discrimination.
The history of my family is a case in point. My heritage includes Polish Roman Catholics who fled persecution in 1858. My ancestors were not able to keep their faith or their language when Prussia ruled a certain area of Poland in which they lived. Therefore, they moved to Wilno, Ontario, which was at the end of the rail line in 1858. Wilno is just a few hours northwest of Ottawa, and its cemetery is the resting place of my great-great-great-grandfather, who was the patriarch of those first immigrants. I have tried to maintain the tradition of advancing religious liberty and have done so many times in our Supreme Court and before committees such as this.
However, sections 318 and 319 of the Criminal Code do not advance the cause of non-discrimination. Instead, unfortunately, they provide and will provide an occasion for discrimination. As a person from a family whose faith and ethnic origin have been attacked in the past, I do not want the kind of protection offered by sections 318 and 319. Let me briefly tell you why.
The first reason is the potential for abuse. Individuals who commit crimes deserve society's condemnation for their actions, and they deserve the penalty prescribed. However, when society is allowed to seek additional penalties because the views of the criminal relate to race, colour, religion, ethnic origin or sexual orientation, the lawmakers cross the line from prohibiting bad conduct into fanning the flames of tribalism and anger, which human rights statutes were created to manage and reduce. In other words, the answer to one of the questions asked earlier today is that the proper response to this kind of problem in our society is a civil response. It is a human rights response; it is not a criminal response.
The second reason is just as important. Sections 318 and 319 insult the victim's humanity. Crime should be punished because of its impact on the victim, not because of society's desire to socially engineer or reform the criminal. It is the victim's status as a human being, not membership in a class, which should be protected by the Criminal Code.
Let me conclude with reference to a recent decision by the United States Supreme Court that highlights the issue and where society's interests should be. That case is Virginia v. Black, decision of the United States Supreme Court, delivered April 7, 2003. In that case, Justice O'Connor addressed the question of whether cross burning should be banned as prima facie evidence of intimidation or the intent to intimidate. If you read that case, you will see that the approach taken by the United States Supreme Court is that when hate speech is in itself intended to intimidate — as opposed to having an impact on a third party and then leading that third party to act improperly — that is when society should have an interest and has an interest in making that action criminal. This is what she said. She struck down the legislation because there was not a requirement that the actual activity of cross burning, in this case, was intended to intimidate in order to be criminal. She said that the act of burning a cross may mean that a person is engaging in constitutionally proscribable — in other words, prohibited — intimidation, or it may mean that the person is simply engaged in core political speech. The prima facie evidence provision blurs the line between these two meanings, ignoring all of the contextual factors that are necessary to decide whether a particular cross burning is intended to intimidate.
There could be no clearer example of discrimination than cross burning, and what the United States Supreme Court says is that simply expressing hatred, which clearly cross burning does, only becomes a crime in the United States when there is an intent that that actual expression would intimidate and therefore lead someone not to act in a particular way. That is the kind of activity that the criminal law in that country provides is in fact illegal.
Under section 2(b) of the Canadian Charter of Rights and Freedoms, political speech ought not to be restricted unless that speech is in and of itself intended to have an impact on others. That should be the test. This constitutional imperative should be applicable even when we can say the speech — like the cross burning — is hateful in and of itself.
In his major thesis On Liberty, John Stuart Mill highlighted why this is an important principle for society to follow. He said that belief — even bad or immoral beliefs — should be allowed because otherwise we are turning our citizens into children. If we do not allow citizens to make decisions of a moral nature and then act upon them, then in fact we do not allow people to mature in their thinking and that limits the ability of society to ultimately develop and to come to new philosophies and ideas that may be better than the old ones.
Section 318 does not respect the guarantee of freedom of speech protected in section 2(b) of the Charter because section 318 could be applied to speech that is not meant to intimidate but merely to express a political opinion. To ensure that justice is done in Canada, this committee should not amend section 318(4) but instead should review sections 318 and section 319 of the Criminal Code with a view to a repeal of those sections.
The Chairman: Thank you very much, Mr. Chipeur. Before going to Ms. Stefanowicz, welcome to Rev. Richard Parkyn, one of our panellists this evening.
Ms. Dawn C. Stefanowicz, C.M.A., As an individual: Thank you for giving me this opportunity to speak. My name is Dawn Stefanowicz. I am married, with two children. I grew up in Toronto during the 1960s and 1970s with a homosexual father whom I deeply loved. My father and many of his partners have passed away from AIDS.
Due to my experiences growing up within the gay, lesbian, bisexual, transgender and transsexual subcultures — and from this point on I will use ``GLBT'' — I believe I have a valuable perspective to offer.
I lived with my homosexual father in a highly sexualized environment. My mother and my two brothers and myself lived in this state. I was exposed to sexually inappropriate experiences from a young age, including pornography, drugs, alcohol and indecent sexual acts. I was exposed to under-age male recruitment, voyeurism, exhibitionism, sadomasochism, fetishism and group sex — for example, my father with 12 men. I was exposed to sexually explicit language. When I was eight, two of my father's sexual partners committed suicide after my father betrayed them.
Chairman and senators, there was also domestic violence among my father and his sexual partners. I was constantly exposed to the intolerant, derogatory, aggressive and hostile language so commonly used by GLBT people in their GLBT subcultures. My father and his friends had numerous and anonymous sexual partners and were involved in many different kinds of sexual behaviour.
My life was typical of children in the GLBT subcultures. Such environments are not good for children. These experiences affected me deeply and robbed me of my innocence, my conscience, and the ability to exercise my voice. I could not express any opposition toward my homosexual father's lifestyle. None of us could.
I lived firsthand the secrecy, neglect, abandonment, manipulation, abuse and stress of growing up with a homosexual father whose sexual obsessions and imperative compulsions left my brothers and me unprotected.
Chairman and senators, stop Bill C-250. Bill C-250 will remove my right as a child who grew up in this situation to the freedom of speech and freedom of expression to state opposition to particular forms of sexual behaviours, sexual diversity and family diversity.
My concern is for this and future generations of children who are and will be exposed to GLBT sexual diversity and family diversity. All human beings are created equal, but not all sexual behaviours are equal. These kinds of sexual behaviours and lifestyles do not create healthy, safe and secure home environments for children. Should Bill C-250 pass, I would not be able to oppose the many dangerous, risky and unhealthy homosexual sexual practices like sodomy, oral-anal sex and sadomasochism and others, and their social consequences for society.
Should Bill C-250 pass, I fear I could be prosecuted for speaking about the damaging repercussions and severe ramifications of homosexual sexual practices. Therefore, I am opposed to Bill C-250.
Bill C-250 will rule out any moral objections, bias and prejudice on the basis of sexual orientation. Under the guise of the undefined term ``sexual orientation,'' this bill will protect persons who practise pansexuality from private and public criticism. Proponents of Bill C-250 will not define the term ``sexual orientation,'' claiming that it has been used undefined for years in Canadian law, which it has. By not defining it, we open it to include any and all sexual orientations. Sexual orientation is fluid, evolving, a slippery slope, and includes diverse legal or illegal pansexual practices exercised privately and publicly. On the other hand, we are legitimizing harmful and dangerous sexual behaviours. Social recognition for GLBT is not a good enough reason to add sexual orientation to the genocide sections of the Criminal Code. This will not reduce hate crimes.
I cannot find concrete and reliable Canadian statistics on hate motivated crimes that distinguish same-sex domestic violence from same-sex non-domestic violence, or physical assault from verbal assault, or true accusations from false ones.
Further, Bill C-250 will break down sexual barriers and foster sexually diverse family units that are not good for children.
Chairman and honourable senators, you should look to two Web sites — actually, they are attachments. One is for cruising locations in North America. The other one is the ``Petition to Amend Canada's Sex Laws to Get the Criminal Code Out of One's Sex Life,'' which is found on Xtra. Xtra is a very well respected and recognized gay and lesbian newspaper and Web site across Canada. It has papers in Ottawa, Toronto and Vancouver. It is highly respected, and on the front page it has this petition.
Finally, I welcome questions about further details of the personal impact on me growing up with a homosexual father within diverse subcultures.
Mr. Clair Schnupp, Psychologist, As an individual: Honourable senators, I want to thank you for this opportunity to share my views on Bill C-250. Before I proceed, I wish to state that Ms. Stefanowicz's presentation moved me very deeply, because my wife and I have worked with people that come out of the same background every week for the last 44 years. Your presentation moved me deeply. This is not part of my script. I just want to thank you for what you said.
The Chairman: Perhaps you would like to take a few minutes. We will move to Rev. Parkyn.
Reverend Richard L. Parkyn, As an individual: Honourable senators, before my time begins, I would like to thank Ottawa for providing me a great welcome.
Though I am an ordained minister with a certain organization in Canada, I come here representing no interest group or religious order in particular but the many Canadians who somehow feel disenfranchised by the move to extend rights and privileges to the few, meanwhile taking the rights and freedoms of the many away. I am here at your pleasure, but not at your expense. I am thankful for the privilege of addressing the committee as an individual.
I believe every individual is created in the image of God. I believe in the unfathomable worth of every soul and the inherent dignity of all individuals, as outlined in the Canadian Charter of rights. I believe that everyone possesses the freedom of conscience, religion and expression, with the accompanying freedom to espouse, communicate and live by certain fundamental beliefs. Everyone has the right to communicate these values in an attitude of only love and peace, I believe.
Being involved in non-profit organization where, in our order of business any person in a place of conflict would not involve themselves in certain discussions; they would absent themselves from those discussions, I am surprised to see that a member of Parliament would become involved in what I deem to be a conflict of interest. That is a personal opinion.
I give assent to the Criminal Code as it stands, which protects every person from the threat of genocide as laid out in section 318.1 of the Criminal Code. That, with all the other existing Canadian laws — including the libel laws, etcetera — gives adequate protection to every person in Canada. There is already provision section 718.2(a)(i) of the Criminal Code for tougher punishment for offences ``motivated by bias, prejudice or hate based on ... sexual orientation.'' Therefore, in my humble opinion, though I am a minister and I will not move into the area of the legal law, it is my opinion that Bill C-250 is actually redundant.
Adding ``sexual orientation'' to section 318(4) of the hate propaganda law raises the profile of certain individuals, and may increase the risk of harassment and abuse. I would ask you to consider that as a committee.
In my opinion, adding ``sexual orientation'' to this section opens the door to the protection of the pedophile, the predator, and the polygamist. I believe those are issues that are right on the horizon of Canada and law as we see it today.
I have a concern regarding freedom of speech and opinion. I have a concern that the day will come that word ``genocide'' will be applied to a person simply objecting to a certain sexual orientation on moral, religious or simply personal convictions.
As a concerned clergyman, I am concerned that right now the B.C. Liberal government is requiring all marriage commissioners who solemnize civil marriages to agree to solemnize same-sex marriages or resign by March 31 of this year. My concern is, if the marriage commissioners are now being targeted, will I be next is as a member the clergy? That may not be of great importance to you, but it is to me. If my right to marry a person, as a minister, is jeopardized, I would disagree with this extension of freedom to those who would choose another alternative life style.
Is this an example of the freedom of speech and expression that we as Canadians so cherish? Is this where we will go? Is it right that a person's livelihood is taken away because they do not agree with a certain sexual orientation? Is this where we wish to go? I doubt it.
I believe every person is to be valued, but not all of his or her actions can be validated. In the New Testament, Jesus showed compassion to the woman caught in adultery. May I make a side statement? I smile that a woman can be caught in adultery without a man. So, we see hypocrisy even in religion. I want you to note that Jesus, having compassion, instructed her to change her lifestyle. I believe this is appropriate.
This fall, the Regina Leader-Post contained an advertisement by the Regina police commission asking for people to volunteer on community committees. I love being involved in the community very much. I wanted to contribute to the needs of our community outside the walls of our church. I believe in taking the salt outside the saltshaker. In applying to join, I was asked, ``Are you Aboriginal?'' ``Are you a woman?'' ``Do you use the para-transit for the physically disabled?'' ``Are you a visible minority?'' I finally came to a question to which I could give a positive answer. Yes, I am 55 years old. I am white. I am a man of Anglo-Saxon descent and I am a Christian clergyman. So I can say yes that I am becoming a very visible minority. I was not accepted for the volunteer position. I did not meet the requirements.
I find it ironic, on another subject, that one of the typical profiles of a candidate for pedophilia in our universities is actually a 50-year-old white church-attending male. That is used as a profile. If you have studied this issue at all, that is the profile that is out there. This, apparently, is not a violation of my personal rights, as a white, close-to-50-year-old church-attending male. Personally, I do not object to that, because I believe that the rights of children must supersede my rights as an adult. I will hold that conviction to the end of my life.
My heart bleeds for the savagely abused woman; the degraded First Nation person; the ridiculed homosexual; the innocent, unborn child; the forgotten, lonely senior in an abusive situation, as documented by CBC television, who is now a candidate for euthanasia; the lonely immigrant who wants to go home but who cannot; the violated victim of the protected pedophile, whose pictures have been deemed to have literary value.
I am a grandfather. I have three grandchildren, ages 9, 7 and 5. I have pictures later if you would like to see them. I am greatly disturbed by the direction that the future of my grandchildren — and, it is part of my right to protect their future — could be jeopardized by rights extended to this kind of person. I am a Canadian. I expect no more and no less rights and freedom than anyone who has the privilege of living in this great land of Canada.
Members of the Standing Senate Committee on Legal and Constitutional Affairs, I ask you to have the integrity of heart to do the right thing for Canada, rather than follow party lines. I recommend that this bill be considered redundant in that there is adequate consideration and coverage and protection for every person in Canada. Let us enforce our existing laws and protect every person's dignity in this great dominion.
I believe that today I may be the only one from western Canada.
Senator Pearson: There are a number of senators.
Reverend Parkyn: Yes, my apologies. I was speaking of those giving presentations.
I have heard very moot expressions from somewhere in western Canada — not Saskatchewan, of course — regarding the possible redundancy of the Senate. I am of the opinion that you, as a committee, by standing for principle, can change for good the very direction of our great country of Canada. I believe you can have an effect. That is why I chose to come here at a moment's notice, with no expenses paid. It is a very small price to come and just say a few words and, I hope, to change the direction a little bit so that our country can avoid disaster in the future.
Thank you for the time. I hope I represented carefully and well the many who feel disenfranchised because the rights of the minority may be trampling on the rights of the majority. I believe we can live in harmony in Canada. I have travelled to many countries, overseeing missions across the world in humanitarian care for people. I am glad to come home to Canada every time.
Mr. Schnupp: I am a psychologist and family therapist living in Dryden, Ontario. My wife and I conduct mental health workshops and do many hours of personal and family therapy among Aboriginal peoples all across Canada, and have done so for over 30 years now, preparing them to help their own people. I am acquainted with scores of Inuit, church and community leaders who view heterosexuality as part of their cultural tradition and belief system. I am founder and chairman of Northern Youth Programs, a charitable youth organization that seeks to strengthen First Nations and Inuit families. We offer counselling, training and resources to thousands of Canadians.
In therapy work, we counsel many people who wanted help with their sexual orientation. They desired heterosexual relationships but could not experience these because of childhood trauma, abuse and neglect. I tell you this so that you will better understand whom this bill, if passed, can impact and the scope of my experience.
While I agree that promoting hatred is wrong, this bill could well jeopardize the freedom of expression protected by Canada's Charter of Rights and Freedoms. Less than 100 years ago — in fact, in 1927 — my wife's parents of Mennonite church denomination, and grandparents, fled communist Russia and came to Canada seeking the religious freedom offered here to live according to their conscience and to teach the Bible to their families and churches. If this bill becomes law, we fear criminal prosecution for teaching what God has said in the Bible.
I am very concerned about the implications for my work of providing Biblical help and training for the effects of abuse, suicide, addictions, and family dysfunctions. I would like to address three concerns in the hope that the committee will recommend delay on this bill until these three conditions can be met.
The first condition is sufficient evidence of need. At present, we cannot find sufficient empirical evidence for this bill. In talking with many people in my travels, this proposed legislation does not seem to be significant to many Canadians. Given that current laws prohibit acts of violence against homosexuals, it would not be appropriate to enact legislation that has the potential to seriously restrict freedom of speech and limit or eliminate the much-needed Christian workers who help curb anxiety, depression, alcoholism and high suicide rates.
The second condition is clarity of terms. This legislation is not well defined. The term ``sexual orientation'' seems ambiguous and fluid. In discussions, some add bisexuals, people who commit incest, transsexuals, polygamists and pedophiles. Sexual abuse of children has caused adult victims to commit suicide, turn to alcohol, drugs, anxiety, depression, and to have broken marriages. My wife and I meet many adult victims of pedophiles every week of our work across Canada among the Aboriginal peoples.
Also, ``hate'' is ambiguous and does not have a consistent interpretation. If the terms for average Canadians are not clear and they do not understand them, then we face the risk of never being sure where our freedom of expression ends and criminal prosecution begins. Whenever the fundamental human right of freedom of expression is restricted, it is important that new legislation ensures that limits are clearly defined. This bill appears not to be in the best interests of the majority of Canadians.
The third condition is the clarification of the potential consequences of such legislation. It appears that this legislation will result in Canadians having restrictions placed on their freedom of expression, religious freedom and the freedom of offering Biblical healing and wellness. An example is the Catholic School Board's right to prohibit a student from bringing a same-sex partner to a school prom or the Scott Brockie case. It is not clear to us in the Northern Youth Program that if we teach healing and wellness from the Bible on homosexuality. It would not surprise us if our charitable status or our organizational charter were revoked by the government or some court. This is serious legislation.
Could this bill silence the voice of the First Nations and Inuit people and leaders who are upholding heterosexuality among their people? Heterosexuality is an integral part of their culture and heritage. When they teach against homosexuality, should this bill pass, will they be criminally prosecuted for upholding their cultural heritage and spiritual principles?
Canadians need clear protection. This bill fails to provide this protection for both religion and sexual orientation. There is a real risk of endangering freedoms of many Canadians, including the Aboriginal people, who are now a real asset to society.
With little empirical evidence that this bill is now needed, with the ambiguity surrounding the definitions of terms, and with the risk of endangering the religious freedoms and the freedom of expression guaranteed by the Charter, please delay this bill until further discussion and clarity can be undertaken.
Senator Beaudoin: I will begin by saying that we are concerned with criminal law. Obviously, the first thing we know is that, under the Charter, no right is absolute. The Supreme Court has said that often. I may have one small problem with section 28 of the Charter of Rights and Freedoms, which states, ``Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.'' Perhaps that is an absolute right but I would not enter into that discussion. We are not concerned with that matter for this proposed legislation.
The definition of ``identifiable group'' is not exhaustive. The purpose of this bill is to add sexual orientation. In the case of Vriend, the Supreme Court said that even if ``sexual orientation'' is not provided for, we say that it is as if it were included. Because I consider that the definition is not exhaustive and so the bill stands by itself when it mentions ``sexual orientation.''
My question is in respect of identifiable words or groups. It is difficult because we have been hearing about hate propaganda for at least half a century. We know that it happened during and after the Second World War and has since become an important expression. My question is addressed to Mr. Chipeur. You said that the important word, at least in the American case by Justice O'Connor, was ``intimidate.'' As far as I know, I did not see that in the proposed legislation, although it may be there. What do you mean by ``intimidate?''
Mr. Chipeur: Intimidation, as I understand it from the U.S. example, occurs when one intends to have an impact on another. A person intends his or her actions to make another feel bad. For example, I would do or say something that would make you feel bad about yourself so that you would want to stop doing something. In the case of the cross- burning, if my statement were, ``I believe in racial inequality,'' then that would not be a crime in the United States. If I were to say to a black neighbour, ``you should be intimidated by my cross-burning,'' so that the neighbour moves, then that would be intimidation.
In the example that we would be talking about in this instance, both sexual orientation and some of the other listed grounds would be included. If we were to add ``intimidation'' to the law — and perhaps that is an appropriate way to deal with my suggestion that we review this — and if my reason for making reference to a Biblical statement about homosexuality — after all, that is the issue on the table — how would we deal with some of these religious texts that make statements about certain behaviours? If my reason for doing that were to intimidate you into not living next to me, or intimidate you into not carrying out a perfectly legal practice, then that is where the line would be drawn. That would be illegal under the model that they have in the United States. However, if my reason for reading a Biblical text were simply to say, ``this is what I believe to be moral and this is what I believe everyone should believe is moral,'' such that it was simply an intellectual exercise in an attempt to convince you of a particular belief, then that would not be across the line.
That is where I believe the line is drawn. It is a similar line here in some cases. It is important because there is a significant constitutional difference in terms of expression between someone saying that your actions are innocent, but because they lead someone else to act in a way that is not innocent we will hold you culpable. The U.S. Supreme Court was saying that you have to be culpable yourself before you will be held criminally liable. That is the rub here. If we could find a way to apply this law only to people who have a criminal intent — they intend criminal action — then I think we would be on safe ground, constitutionally.
In my view, as in the example of the Harding case, it is possible to apply this to individuals who are simply trying to express a religious view and have stumbled over the line because individuals have taken what they do not believe to be inciteful and have found that reasonably this could incite someone to be harmful to the health or otherwise of an individual.
Senator Beaudoin: We must also take into account the question of the private debate and the public debate.
Mr. Chipeur: Yes.
Senator Beaudoin: Read sections 318 and 319 and you will note that it considers public action. If you were to have a private discussion, then that would be quite different.
One thing troubles me: the famous American case of 1896, which said that blacks and whites were ``separate but equal.'' Fifty years later they said exactly the opposite; they said that if they are separate then they are not equal. It was exactly the same thing. They arrived at precisely the opposite conclusion. This is why I say that the courts have tremendous power in that they may change, after a time, what an expression means. That happens in Canadian jurisprudence, if I am not mistaken, although we have no case exactly like the Chief Justice Warren's decision.
It is obvious that we have a certain evolution of the meaning of the words in this area of hate literature. What does ``hate propaganda'' mean? What does that mean, exactly? It may have meant one thing in 1945 but it may mean something different today.
What do you think about that? That worries me but I can do nothing except express my opinion.
Mr. Chipeur: There is a significant difference between human rights laws, which were the subject of the Vriend decision where we are talking about trying to have an educational impact on society and trying to focus on the principles upon which our democracy is based and going one step further to say that we will not allow any debate about those principles. That is the issue. Are we going to allow a debate about those underlying principles, if, in fact, society has the debate and then says that we want to promote a particular approach. That would be fine. The concern is that something could be criminalized in terms of some advocacy in public — if it were criminal to advocate a particular political or religious position, then we could not even have that debate. I think it is significant. You have talked about how we have an ever-expanding list of what is in and what is not.
Canada has participated in a number of international treaties. Under those treaties, there have been a number of international conferences on the subject of freedom of expression. Within the last 12 months there have been conferences where Canada's position with respect to hate laws has been used as an excuse by dictators to support laws that prevent people from promoting hatred of political leaders. Obviously, this is intended to suppress political expression. They say, ``Well, look at Canada. Canada bans hatred. We cannot allow people to promote hatred of my political party, or of my family, because I am the leader and I need to be respected within our society, and rule of law demands it.''
There is one place for this debate and that is at the human rights level, at the civil level. To use the Criminal Code to wade into the debate is to use a hammer. If we miss, we will hurt someone we do not intend to hurt. We will shut down debate we do not intend to shut down.
My appeal to this body is let us focus here. Someone said earlier, ``Do we not want to make a social policy comment? Do we not want to take the human rights issue and be true to the principles of our democracy?'' My position is that if we are talking about the Criminal Code, that is one thing, because the federal government has the jurisdiction to deal with criminal law. If you are talking about applying human rights principles in the provincial context, then all of a sudden you are outside the jurisdiction under sections 91 and 92.
I urge this committee not to pass this bill just because you want to feel good. That is beyond your jurisdiction. If you are convinced that these are crimes and that we should make it a crime to say something that is, perhaps, not intended to cause harm but which is interpreted by someone as urging them to cause harm, then I think you have a safe road to go down. I am not comfortable with that road. I think too many people will be hurt if we go down that road.
Senator Banks: As I understand it, at least part, if not the substance of your concern, is that the bill as presently drafted would not be sufficiently clear as to require proof of intent on the part of the person.
Senator Pearson: That is for the whole section.
Senator Banks: Yes, all sections.
I am working backward. It is still the case — I think we all agree — that the onus in a criminal prosecution is on the prosecution to show that a crime has been committed, rather than the reverse.
We can put away section 318 because it requires proof that one has incited genocide, and no one is talking seriously about that. Genocide is definable.
Section 319(1) states that a conviction can only occur if incitement to hatred is likely to lead to a breach of the peace. You mentioned the question of intent. Section 319(2) has in its first paragraph the word ``wilfully,'' which I think has a clear meaning in law.
Please explain to me why in those two cases the question of intent is not sufficiently addressed in the present bill.
Mr. Chipeur: You have asked two questions. You have sort of combined sections 318 and 319. Those sections go back and forth. There are some parts of 318 you have to reference in order to understand what section 319 means. Section 318 does not include an intent section.
As a lawyer, I would argue, if my client were being charged, that mens rea requirements would require the Crown to prove intent.
Senator Banks: We are talking here about something that would lead to genocide.
Mr. Chipeur: That is under section 318. The definitions in section 318 are referenced in section 319.
Senator Banks: The lists are the same, but the definitions are not.
Mr. Chipeur: I do not want to get too technical. It is my view that intent is not required in every aspect of section 318 and section 319. Just looking at those sections — and we could go through them in detail — my view is that it is not.
If you are satisfied that it is, then I do not have that concern. If the courts find that in every case I have to intend that someone else will in fact harm someone else, then I am okay with this. I do not read it that way. I read it that I can be, for example, ``wilfully blind'' — as the court ruled in the case of Pastor Harding — that, because it is not clear that I am intending, with the words that I am using, to harm someone else —
Senator Banks: Or inciting someone else to harm someone else.
Mr. Chipeur: Yes, that is right. I do not believe it is in every case in every example that one can pull out the fact.
If you read sections 318 and 319 and you are satisfied that there is no circumstance under which one could be convicted, unless one intended to incite harm, then I think that you do have exactly the same test as in the United States where it is intimidation that is the word.
This law has been applied to Mr. Keegstra. I happen to believe that the minority was correct and that this law is unconstitutional. My reading of the transcript in the Keegstra case leads me to believe that he did not intend anyone to harm another individual. He believed all these lunatic ideas, but he believed he was telling the truth about history. That was his belief and that was why he was doing it. It was a history exam for him. Someone else might have a religious reason for saying what he or she has to say. Another person might have a political reason for saying what they have to say.
It is my submission that if we can limit this section so that it only be used by the attorney general to charge someone that personally intends their statements to harm another person, and that they intend that harm, then I think we are going to be okay.
I do not believe that is the case right now. I do not believe that sections 318 and 319 are limited simply to cases where I am going out and intending to intimidate or to cause physical harm to someone else.
Senator Banks: In Keegstra — notwithstanding that we may or may not agree with that decision — the test of intent was applied by the court and the majority of the court found there was intent.
Mr. Chipeur: That is true — there was then intention to promote hatred. They went further and said, ``that is likely to cause...'' He did not have to personally believe that someone else would act on his words. All he had to do was promote hatred and then the test applied and it was just a likely word. The likely word is the problem. It then takes it from a subjective test into an objective test at that level of analysis.
I am not worried about sexual orientation per se. I am worried about this entire section. I think that in our democracy where freedom of speech is valued we should be concerned about the Keegstra standard being there for any of those in the list. That is contrary to what we want to promote, which is a free and open discussion, even from people who we think are morally, politically, and religiously wrong. We may even want to say, ``I hate what this person stands for.'' In fact, we have a situation where someone is saying, ``I think pedophilia is great.'' We may say, ``That makes me hate that person.'' That should be a legitimate response in our society. It may be an illegitimate response for me personally because I may say it is morally wrong for me to hate someone, but in our society we should not say we will not allow anyone to hate anyone else or to lead someone else to hate them unless we have that extra test.
That test is that my rights and your rights start and stop where we start hurting each other. That is the concern. If we can limit this section to individuals who are actually promoting harm to others, then my concerns about the Constitution fall by the wayside.
Senator Andreychuk: You have got me going on the courts, as you always do when you come before us. I very much believe in the freedom of expression. If you do not allow it in the open room, it goes underground and it is much more dangerous there.
You were talking about the phrase ``wilfully blind.'' There is one thing about having intent, saying, ``I did this for these reasons but someone else took it and did that.'' That is the grey area. ``Wilfully blind'' means that virtually anyone should have known their actions would have caused a reaction. I do not think we want a society where people can get off by saying, ``I did not intend'' or ``I did not know'' when in fact anyone should have known but was wilfully blind. It is almost that we do not quite believe the motives.
We have a lot of underlying points in our criminal law. Our whole negligence system is built on the fact that we are supposed to take due diligence; we should be aware of the society we are in. You are wilfully blind if you knowingly give hate literature to children, for example. You must realize that a child is just forming and is likely to take it at face value, if it is not in an educational context. Would you allow for that kind of limitation on intent?
Mr. Chipeur: When you deal with the Criminal Code, you are dealing with the concept of beyond a reasonable doubt. I do not think we should sacrifice that principle here. There may be an individual is misleading children in the educational system or elsewhere. We may have an individual who, in a wrong-headed way, is actually going out and causing a problem within society in regard to respect for human rights. However, if that individual is not criminal in the sense that he or she does not actually have the mens rea that we usually associate with crime.
Senator Andreychuk: If I may interrupt, throughout the Criminal Code, mens rea has implications of common sense or awareness of society. You cannot just say, ``I did not know,'' in most cases. You have to prove beyond a reasonable doubt that the person was ``wilfully blind'' — in other words, the person did not take the kinds of exercise and due diligence expected of a normal person. The test to find wilful blindness, beyond a reasonable doubt, is very high.
It is almost like reckless disregard. The Criminal Code is riddled with all of that. Intent is not as pure as you say.
Mr. Chipeur: I hear you.
Senator Andreychuk: I like what you say, but it requires the same qualifiers as the rest of the Criminal Code.
Mr. Chipeur: In my submission, there is a difference in talking about pure expression, versus, for example, driving down the road when you must have known that you were going 90 in a school zone.
Senator Andreychuk: What about aiding and abetting?
Mr. Chipeur: Any time we are dealing with a crime like robbery or a property crime or killing, harming, assaulting someone, we know there is actual harm there. My concern here and my only concern is that we may draw into the net someone who, himself or herself, is not intending to intimidate nor cause harm to someone else. Around this table, we may say a person must know that promoting denial of the Holocaust will lead others to disbelieve other things from history about discrimination. The person could actually believe there was no Holocaust and could believe they are simply reporting history.
A judge may be required to form an opinion about the mind of an individual, for example, with first-degree murder versus manslaughter. Judges can make those distinctions. I suggest that where we have simply an expression of opinion — political religious or otherwise — or an expression of fact — political, religious or otherwise — and where we say objectively that such expression will cause someone else to act improperly, then it should not be a crime unless the individuals themselves intended the consequence of intimidation or harm by another. If we do not require that intent, then we do not have any bright line between expression and political repression. I do not know any other way to ensure that we do not start to say, ``If you are politically incorrect and if we do not agree with you, then we will use the Criminal Code to shut you down.''
Again, there are ways to deal with individuals who are causing harm to society unintentionally. Human rights laws do not require intent. We can step into the education system, into employment issues or any other area of the world where the government has jurisdiction and say we will use civil laws and injunctions. However, using the Criminal Code to stigmatize someone simply because they are saying what they really believe is, in my opinion, going too far.
Senator Andreychuk: Would you agree, though, if someone was found wanting before a human rights tribunal and then was charged, could that person still say, ``I have an honest belief and I can stick to it irrespective of the mounting evidence against me?''
Mr. Chipeur: My position is that if there is proof that the person intended to intimidate — to cause you to not act as you otherwise would — as a result of something he or she said about race, religion or sexual orientation, then the state has an interest in prohibiting that action. However if instead my intent in my action is simply to tell the world about my convictions, then the state has no interest in controlling that, because we are now talking about the state acting as parents and telling me, the child, that I really need to be better educated about something and that I am misled.
I do not think the state wants to get into that kind of business, at least not using the Criminal Code.
Senator Andreychuk: Is that your view only on freedom of expression or on all issues?
Mr. Chipeur: I am not sure what other things you reference, but certainly I am focusing on freedom of expression here.
Senator Andreychuk: There limitations in the Criminal Code limits on actions and you do not need to have that degree of subjective intent. There are more objective tests throughout the Criminal Code. Is the standard that you are setting because of freedom of expression?
Mr. Chipeur: It could be expression or religion or any of those under section 2 of the Charter, but it would not apply to the right to go out and exceed the speed limit. That is one example we heard. There is no Charter right to speed.
My entire submission is based on the fact that we are dealing with a Charter right. If we were not dealing with a Charter right of expression, there would be no basis for me as a lawyer to make a submission to you.
Senator Pearson: I would love to have had you defending Henry II who set off his knights to assassinate Sir Thomas Beckett, the Archbishop of Canterbury.
Mr. Chipeur: Lawyers are usually able to defend anyone. That is their job.
The Chairman: We will try to finish by seven. If honourable senators have questions, please indicate.
Senator Cools: I have a couple of questions, but I would like to begin with Mr. Chipeur. I especially want to thank Mr. Chipeur for his clear-minded analysis. I want to quote Professor Mewitt at the time of the passage of these two sections back in 1970. Sections 318 and 319 were based on the Maxwell Cohen report, and the sections came into existence as a response to the Holocaust, which, in those days, was not that far away. Professor Mewitt, who is now dead, said this about the proposals to create sections 318 and 319:
The report, in my opinion, represents everything that proposals for criminal legislative change should not be. It is attractive, superficially logical, factually quite accurate, and completely misses the real point of any criminal law legislation.
As you know, the professor was one of the fine minds of the criminal law. I have read the background to sections 318 and 319 quite extensively, and the celebrated civil libertarians of the day all opposed the creation of these sections. I think of people like Frank Scott and his work with the Seventh Day Adventists, and our own former Senator Dan Lang.
I have been terribly sad and agitated about the fact that all the witnesses for the proponents of the bill tell us that this bill is not necessary. It may not even be good law, but pass it anyway because it feels good. It looks good. I just want to thank you, Mr. Chipeur, for bringing your insights to the table.
I look to the United States of America, for example. When Black people came to ``fruition'' in terms of civil rights — the language was not human rights in those days; it was civil rights — it was an interesting thing. The struggle was not to go around and to brandish everyone else as hate-mongers or committing genocide but rather to find civil responses in terms of the law. In one of those famous cases you mentioned, the very same court adopted one position in the 1890s and the opposite position a hundred years later.
I am very struck because the term ``hate'' today does not mean what Maxwell Cohen intended in 1970. That is abundantly clear today. That was on the heels of the Nuremburg trials. This was on the heels of the Holocaust. I can tell you that Maxwell Cohen would be turning in his grave if he were to know that this is how sections 318 and 319 are being expanded.
I am trying to get to the bottom of your suggestion. You are basically saying that we should go back to the drawing board. In other words, rather than just amend these sections to expand them to include sexual orientation, we should go back to the drawing board and begin at the beginning and try to say what is it that we are trying to do.
I would like to speak to the other three witnesses in very humane ways. The terrible thing about this situation is that we are approaching this law in the way the divorce law was approached some years ago. If divorce is good for adults, it must be good for children. If the adults are unhappy, they will get a divorce, because if they are happy, of course, the children will be happy. We are discovering 30 years later that the emotional wreckage is phenomenal.
To you, Ms. Stefanowicz, I want to tell you how you are reacting is exactly how the children of divorce at your age are reacting. Studies now are showing that the children of divorce are reacting strongly against divorce and want to make a renewed commitment to marriage. They are not supporting libertine attitudes and they are not supporting divorce. I want to say to all three of you, I know your stories, and I have encountered a thousand stories like that. Dawn Stefanowicz, your story is not unique to me. I know this story, and I know the torture that young children have gone through with parents who are driven by these imperative compulsions. These little children do not understand and are quite often traumatized.
I wonder if the three of you could add to your comments with respect to the whole dialogue on homosexual marriage or on these provisions. I know what the bill is about, but I also feel I know a little bit about your subjects. I have spent years studying the subject matter.
The Chairman: Senator Cools, perhaps we can ask each of the three witnesses.
Senator Cools: I want to know about these children out there and the impact that this is having on them, and, in addition to that, all of these children who are being seduced at youthful ages and who are discovering what is happening to them two or three years later. I have done a lot of counselling. I would like to get a greater picture of the problems out there for children on these grounds, because this sexual orientation debate is going on here as though children do not exist.
The Chairman: By way of finishing, I can ask if each of the three witnesses to respond to Senator Cools' concern, and to make any further statement by way of summary, if they wish.
Ms. Stefanowicz: I am thinking of a book written by Jakii Edwards, Like Mother, Like Daughter. It is the only book I could find. It is, I believe, from a different cultural perspective as well. This woman, who is now in her sixties, grew up with a lesbian mother. I thought maybe my story is a little unique, but when I had read that story and found that it is not that unique, I was appalled at what this woman, who is now in her sixties, had lived as a child.
For children who grow up in the GLBT subcultures, sexual orientation includes everything and anything. We have a very broad understanding and perspective of sexuality — more than many adults. It takes us longer to work through this, because we are exposed to so much. You can use all sorts of arguments, be they moral, religious or secular. They are valid, but children are human beings first. We will all deal with our own sexuality as we are growing. Usually it is in the teen years this all will work out.
I have absolutely no hatred of any gay, lesbian, bisexual, transgendered or transsexual person. I was raised to be very open-minded, to be very accepting and tolerant of many different types of people — not exactly by my father's example, but by going through the painful process of listening to how people talk in their different subcultures and how they discriminate against each other. Yet you could say they are all gay, lesbian, bisexual, transsexual, transgendered, whatever term you want to use. They do not come to agreement on any of these issues either.
We will hear one perspective. It is a political perspective. It is a small group that will come together and organize. They are not speaking on behalf of the children and they are not speaking on behalf of all gays, lesbians and bisexual people.
I would say that most people who are exposed to these subcultures will see that ``sexual orientation'' is not needed because everybody does have a sexual orientation. What are you protecting? A gay person may speak a hateful word toward another gay person because he is a nudist or he is a bear; they do not get along. They have their own dress code: one group is very casual and has big bellies, and the other is into leather or whatever it is. They will not go to the same meeting places. They will be in disagreement with each other. There are many subcultures under the GLBT label. It is so diverse.
Senator Pearson: That is like all of us.
Ms. Stefanowicz: We are all diverse. If you fit into the GLBT, you will be very diverse as people. The most important thing is that we respect one another, we love one another, and we think first of the children. We think of these children that are being exposed to many different things. We think Bill C-250 will not bring any more protection to a gay, lesbian or bisexual person. It will not bring any more protection to a transgendered or transsexual person. It will not bring any protection to a child being raised in this environment. It will not bring any more protection to a heterosexual person.
This is not a bill that I want to see go through. I hope as senators that you will look at this matter.
Reverend Parkyn: Again, thank you for allowing me to come and share. I have several statements. I would hope that with all that is happening in the church world that the church can cleanse itself of all that we have done, cleanse our conscience, and address the victims, including children, the unborn child, the born child, and our seniors, and that we would qualify again to speak with some authority on the question of church and state separation. I believe we need one another.
The day that we separate church and state totally means that we walk in hypocrisy, separating our belief and our law structure. I hope that we can become, by this cleansing process, once again a voice in the nation that can bring unity, love and peace, and that we will never be again the perpetrator of violence and hurt, maiming children physically, psychologically and spiritually.
I pray that we can see that in a number of years, and that we can qualify again to sit at a table and speak to moral issues that need to be spoken to today.
Mr. Schnupp: In regard to the children, last year I wrote a 16-page booklet documenting about 20 cases of children who were just so devastated by these kinds of things in their parents or primary caregivers. I will be glad to give you a copy of that. Time does not permit me to go into it.
My wife and I go to bed some nights and just weep because of what some children go through, because of what adults believe and because of how they vindicate themselves. Courts take the child out of the community into foster homes rather than deal with the perpetrator, because the perpetrator has his rights or some political power. We can go on. These children grow up to recycle what they have had done to them, unless they come to some sense of healing and wholeness. I could go on about the children.
I will end by saying that our fear is that this bill will shut down people like us who are helping children and even helping the perpetrators to be rehabilitated. We could lose our charter. We could lose our status. We could be shut down.
I can talk further about the children, but I am more concerned that people like those in our organization are not closed down because of the way this proposed legislation will be used. As I see it, in light of the track record of the courts and the government agencies, it gives rise to concern. The courts have simply failed to protect religious freedom against claims based on sexual orientation.
I could go on listing case after case. I did list two of them where the courts went against what a person believed. One case involved a couple who had a bed and breakfast. Their religious belief was that couples who were not married could not sleep there. The court said that they have to let everybody sleep there, married or unmarried, or close down. They chose to close down and stand by their beliefs.
The record of the courts the last while shows they simply do not support religion, faith and what we believe. That is my big concern.
I also have a concern that was expressed by the Evangelical Fellowship of Canada, that the Bible could easily — and I think will — be classified as hate literature, at least sections of it. Then what do we have for healing as Christians?
If you do not mind me quoting at least what I read in the Saskatoon Star Phoenix, when you spoke to the REAL Women. I do not know what you said; I only know what was written. This is what concerns me deeply. Then we cannot help the children as volunteers. The native people will fear prosecution, too. They will not be able to help their people where sexual abuse and pedophiles are running rampant in some areas — not all, thank God. You warned that people of faith would be specifically targeted if Bill C-250 were to become law. It is an intent to create a section in the Criminal Code that would be used to cleanse many people of moral options.
Senator Cools: Opinions.
Mr. Schnupp: Opinions, sorry. With all the ambiguity and uncertainty of terms — referring to you again — once you put a power before authorities and then try to rely on goodness of the power not to be exercised, you are indeed naive. That will shut some of us agencies down that are helping the children. That is what we fear.
Senator Cools: Mr. Chairman, I think we should try to find out more about groups out there that are having their charitable status questioned. These things are going on.
The Chairman: On behalf of the committee, I would like to thank the witnesses for their very informative presentations and for their interaction with senators. Thank you very much for coming and being with us this evening and sharing your thoughts and views.
Honourable senators, before we adjourn, I will ask the clerk to contact members' offices to see if any senator would like to have other witnesses on either Bill C-16 or Bill C-250.
The committee adjourned.