Canada's Hate Crimes Legislation

Tim,

I have read with interest the criticisms of Bill C-250. My primary objection to adding “sexual orientation” to the list of protected groups is that it is in my view, erroneous to include a a lifestyle behaviour within this group. But that is only my opinion.

My second comment relates to Hate Propoganda and Public Incitement of Hatred, Canadian Criminal Code, sections 318 and 319, respectively. The hew and cry and the moment is that one or both of these sections make it dangerous for a pastor to preach God’s views on homosexuality. Some writer’s are quoting Owens v. Saskatchewan in support of this theory.

Firstly, the Owens case was a Saskatchewan Human Rights Appeal to the Saskatchewan Court of Queen’s Bench. Owens displayed a bumper sticker that biblically condemned homosexuality. This was found by the Sask. Human Rights Commission to be discriminatory. Owens appealed and the Court supported the HRC’s finding based on the HR Code. Human Rights legislation has a different purpose and intent. It is meant to stem discriminatory behaviour against a listed group of people, of which sexual orientation is one. Human Rights legislation will find “guilt” per se, but not criminal guilt. Thus, citing the Owens case is not supportive of a fear that pastors preaching God’s Word on homosexuality will result in criminal prosecution pursuant to the Criminal Code.

The more important aspect however is that the two sections causing most of the fear are not being properly analyzed in the press, secular and Christian alike. To be convicted of a s.318 (Hate Propoganda) the accused must have advocated or promoted genocide. “Genocide” means killing members of the group; or deliberately inflicting on the group conditions of life calculated to bring about its physical destruction. These acts must also be done with “intent to destroy in whole or in part any identifiable group”. The overarching test in any criminal matter is mens rea and actus reas (intent and act). Thus, if a pastor with intent necessary for this section, preaches that all homosexuals ought to be rounded up and murdered, for example, then that pastor is probably at risk of prosecution pur s.318.

The next section, s.319, has a lot of people nervous. They say that it will hinder freedom of speech. As an aside, the Criminal Code has to be interpreted in light of the Charter and its fundamental freedoms, freedom of expression and religious freedom being two of them. Don’t forget also, the preamble of the Charter which requires the Court to interpret the Charter having regard to what is reasonable in a just and democratic society. But, I digress.

Section 319 prohibits “Public Incitement of Hatred”. To be convicted of this, a person would have to communicate statements in a public place, which incite hatred against an identifiable group where such incitement IS LIKELY TO LEAD TO A BREACH OF THE PEACE. The next subsection states that anyone who by communicating statements not made in private, WILLFULLY PROMOTES HATRED against any identifiable group is guilty of an indictable offence, and so. There are defences for this section. This is critical to understand. S.319(3)(a)-(d) provide defences. In summary, those defences are: a) if statements are true; b)if, IN GOOD FAITH, person expressed or argued an opinion on a religious subject; c) if statements were relevant to ANY subject of public interest, the discussion of which was for the public benefit AND if on reasonable grounds the speaker believed them to be true; d)if, IN GOOD FAITH, the speaker intended to point out for the purpose of removal, matters producing or tending to produce feelings of hatred toward an indentifiable group in Canada.

Notice that in s.319 there is a multi-part test that the crown must prove beyond a reasonable doubt. They must prove in s.319(a) that statements incited hatred AND that the statements are likely to lead to a breach of the peace. In s.319(b), the speaker must be shown to have intended to have wilfully promoted hatred.

The fear that some writers are instilling is based on what they think these two sections will result in - repeat God’s Word and go to jail. That’s not the way I read those two sections, particularly s.319 which provides for defences.

My overall sense of this debate is that it is more inflammatory than it needs to be. In addition, not one article that I have read, quotes a Crown Attorney and what he or she thinks of these sections visa vie a pastor preaching God’s Word. The Crown Attorney afterall it the one person who decide whether a prosecution under any of these section will go forward.

To be honest, the courts are crowded enough. I do not believe that a pastor preaching on this subject in a balanced way, meaning that he/she also preaches God’s forgiveness and that our task is to pray for homosexuals while loving them, will be at risk here. But this is not legal advice and any pastor ought to consult a criminal defence lawyer if feeling uncomfortable by this section.