The biggest setback of 2017

2017 has been a pretty good year for Canadian atheism, but it wouldn’t be the same 2017 the rest of the world is experiencing if we didn’t experience a few setbacks.

When the Liberal government tabled Bill C-51 , it was more than we could have hoped for. What we wanted was a repeal of Criminal Code §296 – the blasphemy law. What we got was a bill intended to clean up long-outdated much from from the Criminal Code. That included §296, of course, but it also included a number of other stupid and archaic laws, such as:

And on top of all that, the bill had an additional purpose of fixing our badly-worded laws to specify that silence is not consent, and that an unconscious person can’t consent.

It was beautiful. And because it was a government bill and not a private member’s bill, we could expect that the Liberals would push it through with their majority. We had very good reason to believe that by the end of 2017, blasphemy would no longer be a crime in Canada.

(Side note for clarity: The bill I am talking about is C-51 tabled by Minister of Justice Jody Wilson-Raybould in the Liberal-majority 42nd Parliament, 1st session. This is not the same bill as the very problematic C-51 tabled by then-Minister of Public Safety Steven Blaney in the Conservative-majority 41st Parliament, 2nd session. That bill, also known as the “Anti-Terrorism Act”, has already been partially repealed by the current government, though numerous problematic portions remain in force.)

When it was tabled, it was hard to imagine a way for the opposition to object to it. After all, the provisions being repealed or updated were already either ruled unconstitutional by the courts, or were almost certainly likely to be, or were just plain obvious in 2017 (like, who seriously thinks an unconscious person can consent to sex?). But leave it to the Conservatives to ruin everything good for reasonable humanists; they found something they could make an issue of.

Their beef was with the repeal of §176, which currently reads:

Marginal note: 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.

Marginal note: 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.

The thrust of it is that it is illegal to assault a member of the clergy performing or on their way to perform a religious service, and it is illegal to disrupt a religious service.

Now you’re probably wondering what this section covers that isn’t covered by anything else in the Criminal Code. After all, our assault laws that don’t suddenly become toothless with the victim is clergy. And we have laws about causing a disturbance or being a public nuisance that surely cover any reasonably unlawful case of disrupting a religious service. Surely those laws cover every conceivable reasonable use of the three parts of §176.

So when has §176 ever actually been used that no other law might actually apply? Thankfully, Ian Bushfield of the British Columbia Humanist Association has already put in the legwork for us. He checked The Canadian Legal Information Institute (CanLII) database for cases involving §176, and he found a few… but only a few. (I found 19, including 5 dealing with §176 (1), but haven’t yet had time to review them, so I’ll be using Bushfield’s review.)

Bushfield didn’t find any cases involving §176 (1) – the part about assaulting or obstructing a member of the clergy. All of the cases he found involved disrupting religious services. Most were cases involving a single dude: Joseph Reed, an anti-Jehovah’s Witnesses activist who apparently made a nuisance of himself by harassing people trying to enter religious services, sometimes using a bullhorn, saying nonsense like: Jehovah of the Watchtower and Satan the Devil, Jehovah is Beelzebub, the Ruler of the Demons, the Watchtower is a snare and a racket, Jesus is Lord. He lost at least four cases, but won at least one – the latter didn’t involve §176, though. At a cursory review, all of Reed’s cases could be served by other parts of the Criminal Code, and some were.

The only really interesting case involving §176 that Bushfield found was Skoke-Graham v. The Queen. This was a Supreme Court case about a group of people who staged a protest objecting to a change in the rules of the Catholic Church. The old rule was that when you received the Communion wafer, you had to kneel; the change made it required for parishioners to stand. In protest, a half-dozen people went up to receive the wafer and knelt. They were told to stand if they wanted to get the wafer, but instead they just waited a few seconds, then wordlessly stood up and returned to their seats, never having received Communion. Clearly this wouldn’t be covered by nuisance laws, so §176 was applied under the logic that they were disturbing the solemnity of the service. They were convicted, but the convictions were ultimately overturned under the logic that there was no disorder caused, and: Where the impugned acts are brief, essentially passive in nature and are voluntarily desisted from, upon request, then there is no crime. In other words, unless it’s something that would be covered by other laws against causing a public disturbance, it wouldn’t count under §176.

So it sure looks like §176 is redundant and unnecessary.

So why did the Conservatives raise such a stink about repealing it?

Politics, mostly. Obviously. This is a great way to virtue signal to their religious base. Their argument was that §176 is the only provision in the Criminal Code that protects all religious communities and all religious officials. That’s a lie; every provision in the Criminal Code protects all religious communities and all religious officials. So they modified it slightly to say that §176 provides extra protection, and to use more cautious language specifying that §176 is the only provision that directly protects the rights of individuals to freely practise their religion (which is also technically false, if you want to be pedantic).

Unfortunately, they were very successful in stirring up the base. There was a massive campaign by religious folk to keep §176. There were also some factors beyond anyone’s control that happened to work in their favour – for example, the Texas church shooting was used to justify holding on to §176 (even though we clearly have other laws that would be better suited for a case like that).

And it worked. The Committee has sent C-51 back with amendments. The newly added section no longer repeals §176, but instead just modifies the language to be more inclusive.

Before:

(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.

After:

(a) by threats or force, unlawfully obstructs or prevents or endeavours to obstruct or prevent an officiant from celebrating a religious or spiritual service or performing any other function in connection with their calling, or
(b) knowing that an officiant is about to perform, is on their 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 them, or
(ii) arrests them 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.

Whoop-de-do.

Even with the amendments, C-51 is still a very good bill. (And to be clear, there were a few other amendments, but they were fairly minor, and all worthwhile. Removing the repeal of §176 is the only major change.) But it smarts that an unnecessary and redundant law was excused from a bill whose primary raison d’être is removing unnecessary and redundant laws solely because that law happens to mention religion. You can’t get much more privileged than that.

Theoretically, this isn’t over. It’s possible for the government to simply reject the Committee’s amendments and pass the bill as they originally wrote it, or accept certain amendments and reject others. But it’s hard to imagine the Liberal government will spend any political capital on protecting §176 – especially after the enormous wave of opposition by the religious lobby. And there are much more important things in C-51 that they shouldn’t want to risk in fighting for §176 – for example, the fixes to sexual assault laws.

We do win, overall. If C-51 passes as amended, we still get a country with no blasphemy law – and as a bonus, with fewer stupid laws for things like witchcraft, and better sexual assault laws. And even if §176 remains, it’s toothless – anything reasonable it might cover is covered by better laws, and anything it might cover that isn’t reasonable won’t hold up (and might even result in §176 being ruled unconstitutional!). All good.

It’s just… couldn’t we have just one fucking success without caveats? Couldn’t we win just one complete victory? As always, it’s two steps forward, one step back.

But that still adds up to a step forward. I take comfort in that.

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