Will Bill C-51 permit protests in church services?

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26 Jun 2017 Will Bill C-51 permit protests in church services?

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churchDid you know that Canada’s Criminal Code (section 176) prohibits obstructing a “clergyman or minister” from “celebrating divine service or performing any other function in connection with his calling” or disturbing “an assemblage of persons met for religious worship”?

That prohibition might not be there for long. A new government bill, Bill C-51 (which has passed its second reading and has been referred to committee), would delete these prohibitions from the Code. Would that mean removing legal protection for churches or ministers? Not exactly.

What is Bill C-51?

Bill C-51 is meant to clean up the Criminal Code – not make any big changes. The idea is that anyone should be able to read the Code and know what is illegal. With that aim, this bill removes unconstitutional provisions, cleans up the wording of others, and removes outdated provisions such as prohibitions on dueling, pretending to practice witchcraft, and setting off a stink bomb.

Where Bill C-51 does make substantive change is around sexual assault offences particularly around the requirement for consent.

However, tucked away in clause 14, this bill removes section 176 of the Criminal Code.

What is Section 176?

First, section 176 prohibits obstructing a minister who is performing a religious ceremony. Second, it prohibits disturbing an assembly (whether the purpose of the assembly is religious, moral, or social). Finally, it prohibits disturbing the order or solemnity of a meeting (again whether the purpose of the meeting is religious, moral or social).

For example, in the 1990s a disfellowshipped Jehovah Witness came to a service with protest signs, talked to congregants as they arrived (causing one elderly woman to leave), and knocking at the doors during the service (R. v. Reed, [1999] B.C.J. No. 2868). His sentence was 3 years probation.

It was used also in 2005 when a dinner put on by a Christian group was interrupted by protesters. The speaker had to leave the podium and the event could not continue until police arrived (R v Geoghegan, 2005 ABPC 255). The protester was ordered to pay a $500 fine.

Most recently, charges were laid on June 9th of this year against a woman who is alleged to have entered an Ottawa church screaming and causing damage to a religious statue.

Why remove Section 176?

So, why remove section 176? The answer to that question is unclear.

When asked during an exchange in the House of Commons, Liberal MP Marco Mendicino (Parliamentary Secretary to the Minister of Justice) asserted that each provision Bill C-51 proposes to remove is either unconstitutional, redundant, or obsolete.

However, there has been no court ruling that section 176 is unconstitutional, nor does it appear to be obsolete given that it has been used just this month.

That leaves the argument that it is redundant.

Is Section 176 redundant?

There are a couple of Criminal Code prohibitions that may capture the same activity as section 176.

Specifically, section 175 prohibits causing a disturbance in a public place by screaming, swearing, or singing, among other things. “Public place” here means any place open to the public and would include churches. The main question is what constitutes a disturbance. The Supreme Court has said a disturbance is “something more than mere emotional upset or annoyance…[and] must cause an externally manifested disturbance of the public peace” (R. v. Lohnes, [1992] 1 S.C.R. 167).

Disturbance has the same meaning under section 176. There might have been a time when section 176 captured more specific acts than section 175, whether it be shouting idolatry during a service (Girt v. Fillingham, 1901) or singing loudly while a minister is speaking (Matthews v. King, [1934] 1 K.B. 505). However, there are not any recent examples that would clearly distinguish the application of sections 175 (causing a disturbance in a public place) and 176.

Other redundancies would depend on the severity and type of conduct. More serious conduct might constitute causing mischief by interfering with use of property (section 430) or assault (section 265). Less serious conduct, such as trespass or nuisance, might fall under provincial or municipal laws.

Should we be worried?

Removing this provision does not create open season for disrupting churches or any other place of worship. There is other protection afforded by the Code. The removal of this provision will not allow assaults on ministers or violent protests in temples, but the question is how it will impact borderline instances. What about the disgruntled individual yelling as the service starts? What about the protesters who bring offensive signs outside a mosque? When do these activities cross a line into becoming disturbances? Section 176 directs a judge to consider the context: did the alleged disturbance take place in an assembly with a religious, moral, or social purpose? Bill C-51 would remove the explicit direction to judges to take the particular setting into account.

As it is now, under both sections 175 and 176, what constitutes a disturbance is a very fact specific analysis with reference to the context. Swearing or yelling on a street corner will likely not be a disturbance, but the same conduct in another setting might be. The benefit of having section 176 is that it makes clear that protection of assemblies (rather than just the general public) is beneficial. It sends a message that communities should be able to gather for religious, social or moral purposes without fear of disruption either from individuals or disagreeing communities.

Furthermore, while we enjoy relative peace between religious groups in Canada, that has not always been the case, nor should we assume that it will continue. The tension between Roman Catholics and Protestants in Canada’s early years might well have justified section 176. As Canada welcomes more people of diverse faiths and conversations around controversial cultural issues increases tension, it is likely that we will have greater need for section 176, not less, in the coming decades.

While section 176 might be more symbolic than substantive in the government’s view, ARPA Canada sees much value in keeping section 176. In a climate where it seems like hostility to religious groups is growing, it is preferable to have explicit protections and to keep section 176 in the Criminal Code.


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If you agree with our assessment, send your Member of Parliament a note of concern, urging amendment to Bill C-51. While the rest of the bill is commendable, we recommend removing clause 14 so as to preserve section 176 of the Criminal Code. You can use the EasyMail below, which will Cc the Minister of Justice as well as the members of the Standing Committee of Justice which is studying the bill over the summer and into the fall.

Concerns with Bill C-51

As always, edit it as you like, and please be respectful. Thank you!

1Comment
  • Derek Boivin
    Posted at 13:32h, 18 July

    What are the implications of a church’s legal defense, or any other legal action, on the basis of a “public place”. For example, are there activities and/or speech that is allowed in a religious ceremony or service that is prohibited in a public space?

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