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CLOSING
DOWN PUBLIC DEBATE ON THE HOMOSEXUAL ISSUE
A Private Member's
Bill introduced by NDP MP Svend Robinson passed second reading in
the House of Commons on May 29, 2002, and was referred to the House
of Commons Justice Committee for review.
We believe
that this Bill will have grave, long-range implications for freedom
of religion and for pro-family and faith based organizations in
Canada.
Background
to the Bill
Bill C-415
was introduced by self-acknowledged homosexual Svend Robinson, NDP
MP for Burnaby-Douglas, on November 22, 2001. It was selected as
a votable Bill and it came up for second reading on May 29, 2002.
The Bill expands the identifiable groups in the Criminal Code protected
against genocide (Section 318) and hate propaganda (Section 319)
to include those identified by their sexual orientation. Currently,
the identifiable groups referred to in these sections of the public
are distinguished by colour, race, religion
or ethnic origin.
There are
no defences to protect anyone from prosecution under S.318 (genocide)
of the Criminal Code.
However, anyone
communicating statements alleged to be wilfully promoting hatred
against an identifiable group (S.319) may be protected from prosecution
on the basis of the following legal defenses:
1.
If the statements are true;
2.
If the statements communicated in good faith are made, by argument
and opinion, upon a religious subject;
3.
If the statements are relevant to any subject of public interest,
the discussion of which is for the public benefit; and
4.
If the statement is intended for the purpose of removal of matters
tending to produce feelings of hatred toward an identifiable group.
Proceedings
under S.318 (genocide) or S.319 (hate propaganda) of the Criminal
Code cannot be instituted without the consent of the Attorney General.
Concerns about Bill C-415
1.
All crimes of hate offend the ideals of freedom of expression
and freedom of speech.
It may be
difficult to argue, however, the unacceptability of this amendment
because that freedom of expression and speech is not an absolute
right. Most would agree that there should be some restrictions
on free speech, for example, such as those applying to paedophiles
and child pornographers. S.15 of the Charter of Rights already
provides protection against discrimination on the basis of sexual
orientation (which was "read into" that section by the
Supreme Court of Canada in 1995 in the Nesbit and Egan case).
The Federal Human Rights Act was also amended in 1996 to include
protection on the basis of sexual orientation.
That is,
homosexual activists have, step-by-step, gradually gained an increasing
range of rights by way of court challenges which have led to legislation,
such as the Federal Human Rights Act, and the former Bill C-23,
which provided for financial benefits for same-sex partners.
It is difficult,
therefore, from a political, although not from a moral perspective,
to argue against providing protection on the basis of sexual orientation
in regard to S.318 (genocide) and S.319 (hate propaganda). In
short, since sexual orientation is already a protected right in
S.15 of the Charter, because of the reading in of this right by
the Supreme Court of Canada, as well as, for example, the amendments
by Parliament to the legislation to include protection for sexual
orientation, it is now much more difficult to oppose Bill C-415.
2.
The genocide section of the Criminal Code (S.318) provides no
defence against prosecution on the basis of religious belief,
and this poses a problem for a number of common publications,
including the Bible. For example, the words in Leviticus have
already been successfully argued in the Saskatchewan Human Rights
case of Hugh Owens (now on appeal), that it endangers and causes
harm to homosexuals. (See Reality, September/October, 1999,
p.6.) Consequently, if this proposed amendment in Bill C-415 is
passed into law, individuals could be subject to costly prosecutions,
and religious publications could potentially be subject to censorship
or even prohibition.
3.
There is no doubt that the Charter protection of "freedom
of religion" is being shoved back and narrowed by the courts
so that freedom of religion may be only safely exercised within
the four walls of a church and its institutions, and only acceptable
in limited circumstances in the public square. Examples of such
court decisions, to this effect, include the case in Ontario of
Christian printer, Scott Brockie, who was held in violation of
the Ontario Human Rights Code for refusing to print materials
for a homosexual organization. On appeal, the Ontario Divisional
Court, stated in a confusing decision (see "Courts Mixed
Message to Christian Printer Brockie", p. 21),that Mr. Brockie
had the right to refuse to print material that infringes his conscience
or religion or that ridiculed his religious beliefs. However,
the court noted that he could not refuse a request to print letterhead,
business cards or a directory of goods and services of interest
to the gay and lesbian community, since the latter was considered
only peripheral to or on the fringes of his religious freedoms
since the material did not go to the "core" of his religious
belief. This is a confused decision indeed.
Another
such example is that of London Mayor, Diane Haskett, who was found
in violation of the Ontario Human Rights Code in 1997 for her
refusal to declare a Gay Pride Day because of her Christian beliefs.
A further example is the ruling by Madame Justice Saunders in
the BC Supreme Court, in the Surrey School Board case (see
Reality January/February 1999, p.5) where she concluded that
religious belief could not be applied by those holding public
office. This decision was overturned by the BC Court of Appeal
and was argued, on appeal, before the Supreme Court of Canada
on June 12, 2002. (The judgment has been reserved.) The Trinity
Western case ( Reality September/October, 2000, p.1, "Religious
Views Recognized") also gives cause for concern since the
Supreme Court of Canada held that freedom of religion in the Charter
is not an absolute right. In effect, it stated that one is entitled
to hold religious beliefs, but that one may not necessarily act
or speak about them (as in a classroom). In short, the Trinity
case appears to reinforce the notion that religious belief is
a private matter only, permitted within a church or the home,
but not in one's public actions or expressions.
4.
Bill C-415, if passed into law, will be a useful tool for organized
homosexual rights activists to intimidate their adversaries. An
article published on May 13, 2002 in the Quebec City newspaper,
Le Soleil, sets out the international objectives of homosexual
activists. The article states that the next step on the homosexual
agenda is to prevent individuals and churches from discriminating
against homosexuals by seeking refuge behind a screen of religious
principles. This very argument was placed before the court in
May by homosexual activists in regard to the complaint by Marc
Hall, a student in a Catholic high school in Oshawa, Ontario,
who was refused permission by the Catholic School Board to bring
his homosexual partner to the school prom.
Homosexual
activists jumped on the case to successfully argue that the beliefs
of a Catholic school - which has had a protected right to uphold
its religious beliefs under the Constitution since Confederation
- could not take precedence over homosexual rights. That is, the
Court concluded that homosexual rights take priority over religious
freedom in Canada.
Mr. Robinson's
Bill may well result in the closing down of full debate on the
homosexual issue because of the vulnerability it creates for pro-family
and religious organizations opposed to the promotion of homosexuality.
In fact, this may well be one of the main objectives of Mr. Robinson's
Bill. Although pro-family and religious organizations have available
to them the legal defences enumerated in S.319 of the Criminal
Code, on charges of promotion of hate, such groups, nonetheless,
will be required to undergo both costly court challenges and adverse
publicity in order to defend their statements against certain
homosexual lifestyle and practices.
5.
The requirement in S.318 (genocide) and S.319 (hate propaganda)
of the Code, that proceedings must be instigated with the consent
of the Attorneys General, will not necessarily provide protection
against prosecution. The provincial Attorneys General have already
indicated their reluctance to resist pressure from certain homosexual
rights activists. Examples include the Ontario Attorney General's
failure in the 1999 Supreme Court of Canada's case M and H
(Reality, May/June 1999, "A Tale of Judicial Prejudice",
p.1) to argue that there was no evidence of discrimination against
homosexuals and lesbians pursuant to S.15 of the Charter. Instead,
the Ontario Attorney General relied only on S.1 of the Charter,
arguing that the discrimination was a reasonable limit in a free
and democratic society. By doing so, the government, in effect,
tossed the case away. More recently, the Ontario Attorney General
failed to support the common-law definition of marriage in the
Ontario same-sex marriage challenge last November. Another example
is the Alberta Attorney General's withdrawal from the legal challenge
by a lesbian couple that wanted to adopt a child. In short, the
provincial Attorneys General appear to be remarkably vulnerable
to political pressure by homosexual activists and/or sympathetic
to their demands.
Even if
proceedings are not directly instigated against a pro-life/family
organization or a religious institution, it is clear that, inevitably,
if the proposed amendment becomes law, it will have a chilling
effect on public debate. In this regard, homosexual activists
regard any objections to their agenda as "hateful",
and this amendment will markedly reduce, for example, such activities
as letters to the editor by citizens. In fact, even without a
law, such as that proposed in Bill C-415, it appears that organizations
opposed to the promotion of homosexuality are already facing difficulties
in regard to freedom of expression. An excellent example of this
is the difficulty experienced by pro-family groups in regard to
the Royal Bank of Canada, which refused to permit the opening
of a bank account because of a group's opposition to the Gay Games
to be held in Montreal in 2006. (See Reality March/April
2002, "Royal Bank Officially Confirms its Policy of Discrimination",
p.1.) In that case, pro-family groups experienced discrimination
by the Royal Bank of Canada, even though there was no law in place,
such as that proposed by Bill C-415, to provide support for such
a position.
How Bill C-415 Passed Second Reading
It is widely
known that since Confederation, Private Members' Bills have seldom
passed second reading to become law. This has been especially true
since the Liberal government assumed power under Prime Minister
Chretién in 1993.
The Confusion in Parliament
Representatives
of REAL Women were present in the Members Gallery of the House of
Commons when Bill C-415 was debated on second reading on Wednesday,
May 29, 2002. We were dismayed to see, however, that within an hour
(even though three hours had been scheduled for debate), the Bill
was successfully whipped through to pass second reading, after which
it was referred to the Justice Committee for review.
At that time,
MP Vic Toews, the Alliance Justice Critic, did speak to the Bill,
raising some objections to it. His objections, however, were not
based on the objective of the Bill, which is to include sexual orientation
as one of the identifiable groups protected in the Criminal Code
S.318 (genocide) and S.319 (hate propaganda). Instead, Mr. Toews
raised two other objections to the Bill. His first objection was
that the Bill did not go far enough. He recommended that it be expanded
to include other groups as set out in S.15 of the Charter of Rights,
including groups protected on the basis of age and mental and physical
handicap. Of course, the application of S.15 as he suggested, would
also include those who are protected because of their sexual orientation
as "read in" by the Supreme Court of Canada in 1995 in
the Nesbitt and Egan case. His other objection was that Mr. Robinson's
Bill should have included in S.318 (genocide) the defences as set
out in S.319 (hate propaganda). These defences regrettably, as stated
above, are illusionary rather than real.
At the end
of his speech, Mr. Toews, accompanied by MP Larry Spencer, (Regina-Lumsden-Lake
Centre) Alliance Family Critic, who was on House Duty that day,
left the Chamber. There were only two Alliance members remaining
in the Chamber when the vote on Bill C-415 was called. Those observing
the proceedings report that the two Alliance MPs did not vote against
the Bill.
The Conservative
party spokesman, MP John Herron (Fundy-Royal NB) stated that his
party supported the Bill. MP Serge Marcil, (Beauharnois - Salaberry),
Parliamentary Secretary to Minister of Industry, Allan Rock, then
stated that he believed the Bill had merit and should be referred
to Committee for discussion and review. He also stated that the
Bill had the support of the Minister of Justice.
During his
speech, Mr. Marcil made the interesting observation that adding
sexual orientation to the criteria used to define "identifiable
groups" would expand the usual meaning of genocide, which normally
applies to a race or a people.
Record in Hansard
What was not
reported in Hansard was that during the debate, Liberal House Leader,
Marlene Catterall (Ottawa West - Nepean) crossed the floor of the
House of Commons and had a private discussion with Mr. Robinson.
She then left the Chamber, but returned shortly to again confer
with Mr. Robinson. Ms. Catterall then returned to her side of the
House to confer with her Liberal colleagues. When the Speaker called
for a vote from the scanty number of MPs present in the House (no
more than 15 MPs), the Bill passed second reading with no dissent.
When the vote was over, Mr. Robinson crossed the floor to Ms. Catterall
and enthusiastically thanked her for her party's support of his
Bill.
It is likely
that the Liberals seized the opportunity to support this controversial
Bill (which they were obviously in agreement with anyway) in the
hope that the Alliance would oppose the Bill and, as a result come
under heavy media attack for its alleged "homophobic"
position. This would remove the media heat from the Liberals raging
because of alleged corruption charges and internal dissent caused
by the leadership rivalry between Paul Martin and PM Jean Chrétien.
Certainly, the Liberals are in support of the Bill, and were undoubtedly
delighted to have the NDP propose it, which lets the Liberals off
the hook should there be any political fallout arising from this
controversial Bill.
This may have
been the reason why the Alliance Justice Critic Toews decided against
objecting to the Bill on the basis of sexual orientation and the
further extension of rights to homosexuals, but chose instead to
object to it on other grounds in order to preserve the Alliance
from media attack. He, nonetheless, failed to object to the Bill
on the grounds that it gave special advantages and rights to homosexuals.
Confusing Parliamentary Procedure
What is very
clear to REAL Women is that very few individuals, MPs included,
have a firm understanding of the ever-changing rules of parliamentary
procedure. For example, Private Members' Bills were, up until recently,
deemed to be "votable bills" only on the approval of all
the parties, i.e. the political parties in the House of Commons
had a veto over which Private Members' Bills were to be deemed votable.
To REAL Women's surprise, however, somewhere along the line, this
rule was changed, and now apparently, only a "consensus"
among the parties is required to make a Private Member's Bill votable.
The federal Liberals, it should be noted, agreed in June, that in
the future, all Private Members' Bills will be regarded as votable
bills.
There is also
some discrepancy as to whether the Alliance MPs remaining in the
House of Commons at the time of a vote on second reading actually
opposed this Bill on May 29, 2002. According to Hansard, on that
date (p.11908), there were no objections raised to the Bill and
it was, therefore, passed into second reading without dissent. This
is verified by the REAL Women members observing the debate from
the Member Gallery. However, Alliance officials insist that the
Speaker was in error when she failed to acknowledge opposition to
the Bill. The Alliance claims that it did object to the Bill. Recognizing
that Hansard did not actually record this, the Alliance officials
claim they corrected the House of Commons Journal, which is essentially
the minutes of the House of Commons, to show there was opposition
to the Bill. (Hansard, being a transcript of what was actually said,
cannot be changed in order to correct an error in procedure) so
who knows?
Compounding
the confusion and, obviously anxious to dispel any misunderstanding
among its supporters on whether it actually opposed the Bill, John
Reynolds, Alliance House Leader, on June 20, 2002, stated in the
House of Commons that the official "journals" of the House
of Commons had recorded the Alliance as agreeing to the Bill when
the party was opposed to the Bill.
Whatever the
case, REAL Women does believe that this Bill was inadequately dealt
with by the Alliance Party, which should have stopped it or at least
delayed it long before it reached the danger zone of second reading.
It is no accident, for example, that pro-life Private Members' Bills,
such as those of Alliance MP, Gary Breitkreuz (Yorkton-Melville),
die a startlingly quick and early death on the Order Paper and are
absolutely never deemed "votable". The Alliance could
also have delayed the vote on second reading by ensuring that there
were sufficient speakers in the Chamber to fill the three hours
allotted for debate. This would have put the vote on second reading
over to the fall session and, as a result, would have allowed family
and religious based organizations some breathing space to organize
resistance to the Bill.
To put Private
Members' Bills in perspective, there were 237 Private Members' Bills
introduced in this Parliament and only two of them made it to second
reading. That is, less than 1%. Why then, did this highly controversial
Bill by MP Svend Robinson, survive the parliamentary hoops to successfully
pass second reading?
On the other
hand, it is clear that the Liberal Party supports this Bill as the
Liberal votes led to its successful passing on second reading. The
Liberal Party holds the majority of seats in the House of Commons
and it could have blocked the Bill if it had wished to do so. The
Liberal Party should be severely criticized for its support of this
Bill. Similarly, the trendy "unconservative" party of
Joe Clark, which also supported this Bill, should be criticized
for such a stand.
What Happens
Now
Since both the Justice Committee and the House of Commons are dominated
by the Liberal Party, it would appear that the Liberals will allow
this Bill to pass into law when the House of Commons resumes sitting
in the fall. Even if Parliament should prorogue (end the session),
Bill C-415 will not die on the Order Paper. According to (yet again)
new Parliamentary rules (Standing Order [S.O.86.1]), a Private Member's
Bill, once in Committee, as is Bill C-415, at the time Parliament
prorogues, remains safely in Committee. As a result, when Parliament
resumes sitting in September, the Committee will continue its review
of the Bill unabated.
This is a very dangerous and troubling situation, and a tremendous
threat to religious belief and freedom of expression in Canada.
It is absolutely
imperative that individuals, churches and pro-family organizations
be made aware of this Bill. The media have remained suspiciously
silent about it. It is up to us to make the public aware of
it. The Bill cannot be allowed to stand as it is currently written,
but must be amended to protect religious rights and freedom of speech
and opinion in Canada.
The situation is dire. The reality of this Bill is too serious to
fail to respond to it. Therefore, we must urge everyone to take
action on this Bill. Please let your church and your friends know
about its implications.
Also, please
arrange to have letters inundate both the government and individual
MPs to let them know, in no uncertain terms, about your opposition
to Bill C-415. Please do whatever you can to ensure that individuals,
churches and others also appear as witnesses before the Justice
Committee to express their concern about the Bill. (All expenses
are covered.) The more witnesses who oppose this Bill, the more
likely it is that amendments will be made.
Please write
to:
The Rt. Hon.
Jean Chrétien, PC, MP
Prime Minister's Office
80 Wellington St., 2nd Floor
Ottawa, Ontario K1A 0A2
Tel. (613) 992-4211
Fax: (613) 941-6900
The Hon. Martin
Cauchon, PC, MP
Minister of Justice
Justice Building
284 Wellington St.
Ottawa, Ontario K1A 0H8
Tel: (613) 992-4621
Fax: (613) 990-7255
Mr. Stephen
Harper, CA, MP
Alliance Party Leader
Centre Block, Room 409S
111 Wellington Street
Ottawa, Ontario K1A 0A6
Tel: (613) 996-9740
Fax: (613) 947-0310
The Rt. Hon.
Joe Clark, MP
Conservative Party Leader
House of Commons
Ottawa, Ontario K1A 0A6
Tel: (613) 995-1561
Fax: 613) 995-1862
Mr. Vic Toews,
CA, MP
Alliance Justice Critic
House of Commons
Ottawa, Ontario K1A 0A6
Tel: (613) 996-6130
Fax: (613) 995-1049
Your MP
House of Commons
Ottawa, Ontario K1A 0A6
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