Bill C-250: An Act to amend the Criminal Code (Hate propaganda)

Before looking at the arguments from each side, or even Bill C-250 itself, it must be understood what the legislation is actually targeting. Many people formed their opinions based on a newspaper article or two, and never even looked at the bill. In some articles, the author him or herself did not even know what the bill was about, which only compounds the confusion of the readers. By looking at ss. 318 and 319 of the Criminal Code of Canada, it can be determined who is really at risk of being caught by this legislation.

Currently, s. 318(1) of the Criminal Code makes it an indictable offence to advocate or promote genocide. Okay, so what's genocide?

s. 318(2) defines it as:

any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely,

(a) killing members of the group; or

(b) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.

So what does this mean? The legislation isn't here to catch actual harm to individuals; that's what assault laws are for. Rather, this legislation exists to stop a person or persons from advocating an attack on other individuals. But who are these "other individuals?"

s. 318(4): In this section, "identifiable group" means any section of the public distinguished by colour, race, religion or ethnic origin.

In other words, a person can't go around in public suggesting that all whites, blacks, Jews, Catholics, Muslims, etc. should be exterminated. Individuals that comprise these groups need to be protected against such genocidal statements, as the possibility of harm that stems from them is all too clear.

You now know why the legislation exists, who it protects, and what it protects against. Now, we get to the bill-in-question. On 17 Sep. 2003, the House of Commons passed Bill C-250. The bill reads as follows:

Bill C-250
An Act to amend the Criminal Code (hate propaganda)

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

1. Subsection 318(4) of the Criminal Code is replaced by the following:

(4) In this section, "identifiable group" means any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation.

2. Paragraph 319(3)(b) of the Act is replaced by the following:

(b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;

Looking at section 1 of the bill, you can see that the only alteration was the addition of "sexual orientation" to the list of what comprises an individual group. (Section 2 of the bill wasn't included by Mr. Robinson in First Reading, but was added in later.) So why all the fuss over the addition of two words? There are two primary reasons: (1) some argue that the vague term "sexual orientation" will cover groups such as paedophiles, and (2) many Canadians think that the new legislation will threaten freedom of religious expression.

The first point can be easily dealt with, as it has little ground to stand on. Simply put, child pornography is known to cause harm to children; it was established (among other cases) in R. v. Sharpe, [2001]. Section 319(3) of the CCC states that no person shall be convicted of an offence under this legislation if he establishes that the statements communicated were true. So, although doing so might be considered "beneath" the average Canadian, a defence could be made for anyone who publicly exclaims that all paedophiles should be castrated or killed.

As a further defence, s.318(3) provides that no one can be charged under this legislation without the consent of the Attourney-General of Canada. This is likely to prevent a spiteful lawsuit which defames an individual and ruins his or her career/public life. A latent function of this subsection is that by requiring any charges under this legislation to go through the Att.-Gen., only cases with reasonable merit can be expected to proceed.

This brings us to the second argument: that Bill C-250 threatens freedom of religious expression. There are many ways to attack this argument, but I'll stick to the most obvious one: s. 319(3)(b).

s. 319(3): No person shall be convicted of an offence under subsection (2)
...
(b) if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject.

In other words, if the argument is religious, and the arguer does not intend to promote hatred, he or she will not be caught under this legislation. So despite what many members of the media argue, freedom of religious expression is not at stake. If a person, through religious expression, intends to promote hatred against an identifiable group, he or she will be caught. I think it's safe to say that this is a good thing.

In fact, this bill goes one step further, and complements the religious defence clause. It adds to s. 319(3)(b), so it will now read "if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject or an opinion based on a belief in a religious text."

By adding in a defence of religious texts, scriptures such as The Bible will not be subject to scrutiny by this legislation. As a result, arguments such as those made by the Catholic Civil Rights League regarding threat to the Bible no longer hold any value.

Now that the threat to religious freedom has been eliminated, one question remains: What are these people afraid of? Are they posing (invalid, as we've seen) hypotheticals in the attempt to keep homosexuals "beneath" them? As Emile Durkheim would have argued, by keeping homosexuality deviant, heterosexuals can re-affirm the "rightness" of being straight.

Note: On 28 Apr. 2004, Bill C-250 was passed by the Senate. It will now go to the Crown for Royal Assent.

Critiques of Bill C-250:

By Geoff Ball