Christian ministers don't require their own special section in the Criminal Code

The elimination of outdated, so-called “zombie” laws is just one of the many changes to the Criminal Code that our federal government has recently tabled. 

A number of zombie laws, arguably ripe for eradication, have been identified in Bill C-51. This bill is currently working its way through the House of Commons. 

Justice Minister Jody Wilson-Raybould has said that repealing these redundant and unconstitutional laws is in line with principles of fundamental justice, such as consistency and clarity.  She wants to bring the Criminal Code up-to-date and do away with any unnecessary or unlawful sections that remain. 

This seems like a rational, and even uncontroversial, goal.

But one section in particular, which has been selected for repeal, has drawn ire from some community members. 

Section 176 criminalizes assaulting, threatening or obstructing a “clergyman or minister” from “celebrating divine service or performing any other function in connection with his calling”.  It also makes it a crime to disturb an assembly “of persons met for religious worship”.

Some people have argued that eradicating this section of theCode will create concerns for peaceful, public worship. They are worried that their religious liberties will be jeopardized and that members of their religious organizations will not be properly protected under our laws. They are concerned that their religious freedoms are being undermined by our government.

While these arguments may gain some traction in a tumultuous sociopolitical environment wherein terrorism has become an all too familiar occurrence, there is little merit to them at the end of the day. 

Section 176 is superfluous and its wording is inconsistent with multicultural values such as inclusivity and equality.

The offences contemplated in section 176 can be properly addressed with other sections of more general application in the Criminal Code, such as assault, mischief, uttering threats, and—in extreme cases—provisions related to terrorism. 

These sections apply uniformly to every member of the public, without prejudice. They are the sections that we see most often to address abhorrent behaviour. They are used far more frequently than section 176, which has effectively caused this part of the Criminal Code to fall by the wayside in any event. 

Moreover, each of these offences of a more general application come with potentially hefty penalties, including the imposition of a criminal record and even jail time. 

It is also important to consider that, upon an accused being convicted, sentencing judges have a wide range of discretion. They can consider a number of factors in order to tailor an appropriate sentence for the crime. For instance, they can consider the circumstances of the offence and any motivations behind it. 

Offences committed out of religious intolerance, or with the intention of violating religious freedoms, will be treated more seriously by our courts. In law, we call this an aggravating factor. It means that a person who paints a swastika on a synagogue can expect to receive a harsher sentence than someone who paints their name on an abandoned city wall. 

These principles are built into our legal system to ensure that penalties are appropriately created to correspond with the circumstances of the offence and the offender. They are also there to vigorously denounce particularly egregious and abhorrent behaviour.

So long as offences of general application are still available, and sentencing principles are properly applied, there is simply no practical need for section 176 to exist in our criminal law. 

Moreover, its wording is too narrow in extending its protection to clergymen and ministers. Rabbis, imams, sardars and senseis, for example, are not contemplated. The law therefore grounds itself in Christianity to the omission of all other religious doctrines. 

Although the courts have historically interpreted the language in this section in a broader manner than it is written, there is still no guarantee that all religious leaders or institutions will be treated alike. 

Affording explicit and guaranteed legal protections to members of one religious faith over others is inconsistent with basic, Canadian values. Furthermore, the way that our laws are worded and subsequently applied shape societal values and our overall understanding of our community.

Criminalizing threats made to a minister, for example, without explicitly extending the same protection to senseis, codifies a value system that prioritizes respect for one religion over another. 

While it would be possible for Bill C-51 to amend the wording in section 176 to something more inclusive, like “religious leaders”, rather than repeal it altogether, it would still not cure its extraneous nature. 

After all, religious freedoms are protected by our Canadian Charter of Rights and Freedoms. 

The right to freely practise a religion of one’s choosing, without fear of persecution or harm, is one that is taken seriously in this country. Religious freedoms are well protected in Canada without the need for an outdated and seldomly applied provision under the Criminal Code

At the end of the day, those who commit crimes against religious leaders, motivated by intolerance and hate, will be forcefully prosecuted under our remaining criminal laws. 

The controversy around repealing section 176 is much ado about nothing. 

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Criminal LawSarah Leamon