For over a decade, supporters of free expression have been calling for the repeal of section 296 of Canada’s Criminal Code. This section is colloquially called Canada’s blasphemy law as it prohibits “blasphemous libel”. While no one has been charged under the section in eighty years, it remains a symbol that theocratic regimes can point to justify their own punishments.

Last year, over 7400 freethinkers across Canada signed a petition calling on the government to repeal this section. And recently the federal government has introduced a bill to repeal this section.

Bill C-51 also repeals a number of other outdated sections of the Criminal Code and makes a few other amendments. The majority of these changes are uncontroversial as they merely codify existing judicial precedent. But Hansard records of the first debate on the bill reveal one surprisingly contentious issue among some Conservative MPs.

Specifically, they are concerned that the bill would repeal section 176 of the Criminal Code. This section criminalizes obstructing a “clergyman or minister from celebrating divine service” and disturbing religious worship. What follows is a look at what the courts have said about this law and some analysis on whether Humanists should be in favour or opposed to its repeal. The full text is copied at the end of this article.

Case law

A review of Canadian case law suggests this section, while rarely used, is hardly dormant. A quick search of CanLII, the Canadian legal database, doesn’t turn up any cases under the first section (obstructing clergy) but there are a handful of cases under the disturbing religious worship section.

Joseph Reed

Interestingly, at least five separate cases dealt with charges against a Metro Vancouver resident, Joseph Reed. Reed describes himself as a “dissident” Jehovah’s Witness and between 1983 and 1999 was repeatedly arrested for protesting outside Kingdom Halls or other gatherings of Jehovah’s Witnesses. Typically he would place himself outside the doors to a Hall while wearing placards with phrases like “Jehovah of the Watchtower is Satan the Devil” and would make “sarcastic comments” at people as they entered for their weekly service. On some earlier occasions, he would bring a bullhorn to amplify his message to attendees. Congregants described feeling offended by Reed’s message and in some cases entered the Hall through a rear entrance to avoid a confrontation.

Reed often represented himself at trial and even made his own submissions to the BC Court of Appeal. His appeals failed in 1984, 1985, 1994 and 1999. He was also convicted of violating a probation order in 1995 and lost on appeal. He also lost two appeals in 1998, in the first he bizarrely attempted to win the right to have a police officer escort him to sit in a Jehovah’s Witness ceremony in Delta and in the second he sought to bring charges of mischief against Jehovah’s Witnesses who blocked his entry to a service. His only judicial victory seems to be an appeal on a charge of causing a disturbance in 1992 at a Jehovah’s Witnesses convention at the PNE.

While Reed tried repeatedly to argue that section 176 violated his right to freedom of religion, expression and assembly under the Charter, the courts rejected it, typically with minimal analysis. For example, the 1985 BC Court of Appeal ruling declared that the section “meets those competing interests in a balanced way.” Similarly, in the 1994 ruling, the Court of Appeal said “section 176(3) protects the freedom of religion of persons ‘met for religious worship’. In my view, which is consistent with the decision in Big M, interfering with that freedom is not protected under ss. 2(a) or (b) of the Charter.”

Stoke-Graham v The Queen

The more significant test of the constitutionality of the section came from a separate case in Nova Scotia that made its way to the Supreme Court of Canada in 1985. In this case, six people were charged with disturbing religious worship in a Catholic Church. Essentially, their church changed how congregants were expected to take communion. Instead of kneeling, they were to stand to receive it. These individuals opposed the change and when it came time to take communion they knelt before the priest. He told them to stand if they wanted to receive it. Instead, after a short delay, they returned to their seats without communion. They were convicted at trial and that conviction was upheld twice on appeal.

When the case reached the Supreme Court of Canada, the court unanimously overturned the convictions. The majority declared that acts that are “brief, essentially passive in nature and are voluntarily desisted from, upon request” don’t rise to the level of disturbance envisioned by the law. In other words, a short, peaceful protest is hardly a criminal act. The minority opinion instead said the definition of the word “anything” in the provision was not meant to include peaceful protests.

In either case, having dismissed the charges on the grounds that the parishioners actions didn’t constitute a crime, the Court chose to remain silent on the fundamental constitutionality of the section.

Other charges

A more recent charge was decided at the Alberta Provincial Court in 2005. In this case a group of LGBTQ-rights protesters interrupted a Concerned Christian’s Canada private dinner where they were discussing pending hate crimes legislation. The Court found one of the protesters guilty as the event was considered to be held for “a moral” and “social” purpose.

Finally, earlier this month, an Ottawa woman was charged after she entered a church and “began to scream and caused damages to a religious statue.” Her trial is still ongoing. She had previously been charged with mischief for actions at the same church.

Analysis

Nevertheless, in none of these cases has there been a full consideration of the conflicting rights. While secularists have put significant, and deserved, attention on the blasphemy law, the defence of section 176 by multiple MPs suggests it’s worth closer inspection.

Supporting s 176

Where the lower courts have looked at the constitutionality of the section, they have argued that it’s a necessary or reasonable tool to protect religious freedom. By criminalizing disruptions and efforts to obstruct clergy from doing their spiritual duty (as it were), we can create space for religious groups to freely practice their faith.

This is echoed by MPs who argue that such protections support religious minorities, such as Muslim and Jewish congregations, who face increased persecution in the present political climate.

Following this argument, we can compare it to the decision in R v Spratt and R v Watson. In this case, the BC Court of Appeal upheld BC’s “bubble zone” law that ban protests around abortion clinics. In its unanimous decision, the Court found that the law was a reasonable restriction on freedom of speech as it ensured women could access healthcare without harassment. Section 176 could be seen in a similar light by protecting access to religious services.

We’ve also seen through Supreme Court of Canada decisions, notably MLQ v Saguenay, that Canadian courts are willing to interpret protections of freedom of religion to include freedom from religion. So in Ontario where Humanists are recognized as clergy for the purpose of the Ontario Marriage Act, their services (weddings, funerals, etc) would likely be equally protected from obstruction or disruption.

Similarly, subsection 2 of the provision also criminalizes disruption of meetings “for a moral, social or benevolent purpose.” This broad category could easily be read to include Humanist meetings. This provision therefore gives Humanist group organizers an extra tool to ensure the peaceful continuation of their meetings, particularly if faced by hostile protests.

Opposing s 176

That said, the section sits uncomfortably with me.

Perhaps the biggest reason is it criminalizes an individual who dissents or stands in protest of religious dogma. This can be seen in the first few cases examined. The civil and peaceful protest by Catholics who challenged a liturgical change was met with criminal prosecution, and they were only exonerated at Canada’s highest court. Similarly, despite Reed’s unpopular tactics, he sought to challenge the beliefs of Jehovah’s Witnesses.

The threat of prosecution can create a chill on expression and the willingness of individuals to raise objections to what’s declared orthodoxy or dogma. It’s not difficult to imagine an individual who seeks to challenge the segregation of men and women in a mosque, mandatory attire in a temple or even the existence of god prior to a sermon facing similar charges. These individuals may be doubters or atheists but it's as likely that they are as religious, or more, then their fellow congregants who are just happy to go along with their religious leaders. They just happen to take a different approach to their religion.

Under this line of argument, instead of protecting religious freedom, the law ends up protecting and enshrining religious authority.

Last year, the board of the BC Humanist Association agreed our definition of a secular society as one that affirms the right of every individual to practice any religion or none, free from coercion by the government, private institutions or their community; and that the state has a duty of religious neutrality, meaning it must neither endorse nor prohibit any belief or non-belief.

We specifically sought to include coercion by private institutions and communities in that definition to highlight the inequalities and power dynamics that face individuals within organized religious communities. Religious organizations hold immense power over their congregants and as Humanists we ought to work toward balancing these scales. Humanism has a long history of standing up for the rights of marginalized individuals. It’s through this recognition of the rights of the individual to believe or not believe that we can express our support for religious dissidents, reformers and apostates.

The International Coalition Against Blasphemy Laws, of which the BC Humanist Association is a part, calls for the complete abolition of laws which criminalize laws that “restrict questions, criticism or ridicule of religion or religious concepts.” Section 176 clearly acts as a restriction on these actions, albeit in specific circumstances, and as such could be considered another blasphemy law.

Section 176 therefore conflicts with the BCHA’s view on secularism as the state is actively intervening to protect the religious rights of the majority and those in power over the individual in what are often ultimately internal disputes over matters of creed. The state’s duty of religious neutrality means it must remain an impartial adjudicator with respect to these disputes, and not automatically pick the side of the ruling order.

By repealing this section, we are able to further recognize the freedom of individuals to differ from their religious congregation and their freedom to express that difference. We also end the privileging of clergy over other occupations who are not protected from obstruction by similar provisions.

Finally, there will always be cases where protest or dissent escalate and there is a legitimate societal interest in criminalizing certain disruptive actions. In these cases our Criminal Code provides numerous other levers for law enforcement to turn to. For example, as Liberal MP Chris Bittle pointed out, section 175 covers causing a disturbance, 264 criminalizes uttering threats, 423 intimidation and 319 incitement of hatred. Beyond that, most religious services are held on private property and can pursue injunctions through civil, rather than criminal, litigation.

Conclusion

Ultimately, with the Liberal’s majority government, Bill C-51 will likely pass the House of Commons without amendment and face little resistance in the Senate. There will likely be more discussion over section 176, particularly from those wishing to protect religious privilege and authority. Given the threat it poses to religious minorities and non-conformists within those communities, it’s worth greater attention and discussion by Humanists and secularists.

In all the door knocking I have done in the past, whether for my nomination, during the election, and since then, I have never heard anyone say that section 176, that extra protection provided to clergymen, imams, members of all faiths, and funerals, should be removed, should not be there. Individuals have talked to me about the blasphemy laws in Canada, but not on this section. –Tom Kmiec, Calgary Shepard, CPC

Whether you agree with the above analysis or not, we should be ready to speak about this section.

Obstructing or violence to or arrest of officiating clergyman

176 (1) Every one who

(a) by threats or force, unlawfully obstructs or prevents or endeavours to obstruct or prevent a clergyman or minister from celebrating divine service or performing any other function in connection with his calling, or

(b) knowing that a clergyman or minister is about to perform, is on his way to perform or is returning from the performance of any of the duties or functions mentioned in paragraph (a)

(i) assaults or offers any violence to him, or

(ii) arrests him on a civil process, or under the pretence of executing a civil process,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

Disturbing religious worship or certain meetings

(2) Every one who wilfully disturbs or interrupts an assemblage of persons met for religious worship or for a moral, social or benevolent purpose is guilty of an offence punishable on summary conviction.

(3) Every one who, at or near a meeting referred to in subsection (2), wilfully does anything that disturbs the order or solemnity of the meeting is guilty of an offence punishable on summary conviction.

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