Friday, July 26, 2019

Once again - restrictions on religious discrimination is not religious persecution

The essay below first appeared in the August edition of the Centre for Inquiry Canada's newsletter, Critical Links.

Secularism can be defined in several ways. The definition that I subscribe to (along with the Canadian Secular Alliance and the Centre for Inquiry Canada) is government neutrality in matters of religion, whereby the government neither supports nor suppresses religious expression for its citizens.

Quebec's functional definition of secularism seems to be removing all religious symbolism from the public square. It recently passed Bill 21, which forbids new government employees (including civil servants and teachers) from displaying any religious paraphernalia on the job, including crucifixes, turbans, yarmulkes, and hijabs.

The Quebec government was clearly concerned this almost certainly violated section 2 a) of the Canadian Charter of Rights and Freedoms (guaranteeing religious freedom), because it preemptively invoked the Charter's section 33 (commonly referred to as the "notwithstanding clause"), shielding the legislation from most legal challenges.

Therefore I was interested to read an op-ed piece in the Globe and Mail on July 11 entitled, "Religious expression is under attack in Canada – and not just in Quebec". I was unaware of other attacks on religious expression, and wanted to see how Canada was violating secular principles elsewhere in the country.

It turns out the piece is half precisely right, and half entirely wrong.

I agree entirely with the sentiment in the first part of the essay: It is worrying that Quebec behaves as though "Even the most benign expressions of religious conviction must be kept out of the public service, and accommodation will only be afforded to employees who are non-religious or who agree to give that appearance. This should alarm believers and non-believers alike, regardless of whether they are directly affected by this law."

But from this solid foundation, the article quickly loses its way. It makes sweeping claims, such as Canadians increasingly believe "religion should not be accommodated if it makes others feel uncomfortable" and "decision-makers are increasingly upholding religious-rights violations with little, if any, discussion of the important interests protected by religious freedom", that are wholly unsupported by the remainder of the piece.

The article cites only two examples of how religious expression in Canada is under attack beyond Bill 21. Both cases are presented in misleading manner. They involve not a suppression of religious expression, but the protection of rights from religious discrimination. The difference is crucial.

The authors decry the Supreme Court's decision on Trinity Western University's(TWU) proposed law school, describing it as having "denied graduates of Trinity Western University’s proposed law school equal admission to the practice of law based on the university’s faith-based code of conduct". I have written extensively on the TWU decision; in essence, the Supreme Court ruled that freedom of religion does not grant to right to discriminate against others. TWU demanded from all students that sexual intimacy be restricted to between a married man and woman; homosexuals (married or not) are welcome, but must commit to celibacy while a student at TWU. Violators are subject to academic discipline up to and including expulsion. Blatant discrimination against the LGBT community is not moral or acceptable solely because some interpretations of scripture attempt to justify it.

The other case is that Ontario physicians "can be forced to help facilitate procedures that violate their ethical judgment" and "religious convictions". The College of Physicians and Surgeons of Ontario created a policy whereby a medical practitioner cannot prevent a patient from seeking an assisted death, in accordance with Canadian law. Individual physicians may recuse themselves, but "must not impede access to medical assistance in dying, even if it conflicts with their conscience or religious beliefs." They must provide an "effective referral". Again, this is not an attack on the faithful; it is protecting the rights of Canadians from those who seek to deprive patients of medical procedures to which they are entitled.

Religious freedom allows for the maximum autonomy for individual religious expression, subject to reasonable limits in a free and democratic society; it does not include a protected right to coerce others to behave according to the tenets of a particular faith. Quebec's Bill 21 is a travesty that is justifiably opposed by almost all religious and civil rights organizations, including the Centre for Inquiry Canada and the Canadian Secular Alliance; if religious expression is under attack elsewhere in Canada, Mr. Ross and Mr. Kinsinger have failed to provide a single legitimate example.

Tuesday, July 16, 2019

The Justice Committee publishes its report on online hate

A couple months ago I participated as a witness before the House of Commons Standing Committee on Justice and Human Rights, testifying on behalf of the Canadian Secular Alliance. The Committee has now published its report, "Taking Action to End Online Hate". (You may read or listen to my testimony. A Q&A session is transcribed at the latter link.)

This is the first such government report I have read, so I do not know how it compares with others. I found it dry, equivocating, lacking insight, and rather unhelpful into developing any understanding into the issues surrounding the intersection of hate speech, free speech, and online interactions.

Report Recommendations


The first five formal recommendations of the report are about information collection and dissemination. These are reasonable, if somewhat obvious, steps to take. One cannot address online hate unless one has good data about its prevalence, where and how it takes place, and effective means of countering it.

Though the report is about online hatred, hate speech is never defined in the report. The sixth recommendation is for the Government of Canada to "formulate a definition of what constitutes ‘hate’ or ‘hatred’ that is consistent with Supreme Court of Canada jurisprudence" without any guidance or insight into what this definition should be (except by noting that it must acknowledge at least seven types of groups are "disproportionately targeted"). This makes it impossible to understand whether the many witnesses, who are quoted and referenced extensively throughout the document, are using the term in the same (or even a similar) way.

The seventh recommendation is for a "a civil remedy for those who assert that their human rights have been violated under the Canadian Human Rights Act", suggesting a reinstatement of the former section 13 of the Canadian Human Rights Act (conveniently reproduced in an Appendix), updated to account for social media. Why the Committee saw fit to make this recommendation is unclear, as there was no consensus among the witnesses on this issue. As page 32 states, "One the one hand, some witnesses [...] argued that former section 13 of the CHRA [Canadian Human Rights Act] or any similar provision should not be re-instated." This section consisted of quotations from three organizations, including the Canadian Secular Alliance and the Canadian Civil Liberties Association. On page 33, the report continues, "On the other hand, some witnesses expressed that the repeal of section 13 of the CHRA left a gap in the legal tool box to counter online hate." After quoting from testimony arguing for section 13 restoration, the report moves onto an entirely other topic without addressing or resolving the contradictory opinions from different witnesses.

Why and how the Committee recommends reinstating the former section 13 of the CHRA is left to the imagination of the reader. This is not the only case where the document describes the different (and at times incompatible) recommendations of various witnesses, but undertakes no analysis to determine which of various possible policy options would be effective.

The one point of consensus among witnesses is that the problem of online hate speech requires government leadership and regulation. No one was content to leave policing content to the social media corporations, which makes the report's eighth recommendation all the more baffling. The report suggests "online platforms and Internet service providers [...] monitor and address incidents of hate speech, and [...] remove all posts that would constitute online hatred in a timely manner". This recommendation, if implemented into law, would be problematic on several levels:

  • Internet Service Providers would be required to spy on their customers. I don't want my ISP keeping logs of all of my online activity. Anyone with the slightest concern for privacy should be concerned about this provision.
  • Censorship would become a competitive advantage for big online corporate entities. It is very expensive to monitor every online interaction; only the largest companies can afford to create (inaccurate) algorithms to determine what constitutes hate speech or pay for (tens of) thousands of people to manually read all flagged content to see if it runs afoul of Canada's (as yet undefined) hate speech provisions. 
  • There are no provisions to restore content erroneously removed. Companies will default to a position that exposes them to the least liability. If they are given an obligation to remove all "hate speech", online platforms will likely take the simplest approach, as they have in the past: in addition to removing hate speech, they will also delete reports describing how individuals have suffered from hate speech, posts decrying the hate speech of others, articles about how to effectively combat hate speech, and more. Innocent bystanders, mostly likely disproportionately those groups that hate speech laws are intended to protect, will be caught in the hate speech dragnet and will have no recourse. 
The final recommendation is worth quoting in full: "That online platforms be encouraged to provide optional mechanisms to authenticate contributors and digitally sign content, and couple this with visual indicators signifying that given user or content is authenticated, and provide users options for filtering non-signed or non-authenticated content." This is an intriguing idea, worthy of exploration to determine if its implications would achieve its aims. Where it comes from, I do not know - it is not referenced anywhere else in the report.

Appendices


The Conservative and NDP members of the Committee each wrote their own response in an appendix.

The 1.5 page Conservative "Dissenting Report" was disappointing. Over half of it was partisan bickering (attacking the Liberals and Prime Minister Trudeau while bolstering the Conservatives and its leader Scheer). The content of its report relevant to hate speech was slight, but what little was there was reasonable.

The NDP's 5 page "Supplementary Report" highlighted a key weakness of the Committee's report, stating "it is essential that the government standardize the definition of hate speech and its interpretation by law enforcement". The NDP's five recommendations track closely to the first seven recommendations of the overall report. The NDP suggests increased funding for media literacy and several community groups, ensuring "that law enforcement at every level [...] reflect Canada's diversity", and reinstating "an updated version of section 13". The NDP supplementary report makes no mention of striking a balance between curbing hate speech and protecting freedom of expression.

Observations


Police reported 2,073 hate crimes in 2017 (many witnesses expressed dissatisfaction that our best information comes from police reports, and recommended a more rigourous and systematic way of tracking such statistics). There were 349 hate crimes against Muslims in 2017, or 16.8% of the total. There is clearly strong anti-Muslim bigotry in Canada, as Muslims represent 3.2% of the Canadian population according to Statistics Canada. What I found surprising, however, is that Antisemitism is an even larger problem in this nation. The are less than one third the number of Jews in Canada as Muslims, but were the target of more than 2.5 times the number of hate crimes. 

I was pleased to see that the Canadian Secular Alliance's recommendation to repeal section 319(3)(b) of the Criminal Code (which exempts “a person who would otherwise be subject to an indictable offence, if their hate speech is ʽbased on a belief in a religious textʼ”) made it into the report, quoting its position that this section “is a clear violation of the principle of state neutrality in matters of religion.” This suggestion, however, was not among the nine recommendations made by the Committee.

My largest disappointment is that the central issue - how "to protect freedom of expression and to avoid censorship" - is stated as a priority, but left completely unresolved. Near the end of the first chapter, the report clearly states that, "None of the recommendations presented in this report derogates from an individual’s constitutional right to freedom of expression protected under section 2b) of the Canadian Charter of Rights and Freedoms." But there is no way around the fact that regulating, deterring, restricting and/or deleting hate speech is an encroachment on free expression. Are such curbs justifiable in Canada, which purports to be a free and democratic country? How can the government curb hate speech while not also banning merely unpopular opinions? The report is utterly silent on these matters, which makes its ultimate utility on this important topic marginal.

Saturday, June 01, 2019

House Committee on Justice and Human Rights Q&A with the CSA

In May, I testified before the House of Commons Standing Committee on Justice and Human Rights as part of their investigation into hate speech on behalf of the Canadian Secular Alliance. You may read my testimony here, but if you prefer to hear how I sounded, below is an audio recording.



After the testimony of the Canadian Secular Alliance, the Cardus Institute, and an assistant professor from the University of Prince Edward Island, the Members of Parliament on the committee had the opportunity to ask questions of us. I have excerpted the audio that includes all of the questions directed to the CSA below (it also includes some responses from Andrew Bennett of the Cardus Institute).



The text of the questions directed to and the responses from myself and Greg Oliver, President of the Canadian Secular Alliance, are included below. The full text of all questions, answers, and comments made by MPs and witnesses can be found here.


Mr. Michael Barrett:
    Instead of confusing a motion for action—and picking up where you had closed, Mr. Rosenblood—and understanding that at this stage of this Parliament we're unlikely to effect legislative change, what would you see as important recommendations that could come out of this committee?

Mr. Leslie Rosenblood:
    There needs to be recognition of how the way Canadians communicate with each other has changed. I think it is appropriate to take a look at a considered approach on how existing legislation might be amended to reflect that. Our concern is that we take a look at the alarming trends, and rather than take a well-thought-out approach that we feel, based on evidence and research, is likely to have the greatest impact to mitigate these harms, we instead take a knee-jerk reaction, an instinctive approach, that will most likely have little to no effect and could very possibly exacerbate the harms we are attempting to reduce or eliminate.

Mr. Colin Fraser (West Nova, Lib.): 
    Thank you to the witnesses for being here and giving your points of view on this. I would like to start with Mr. Rosenblood and Mr. Oliver.
    Can I understand the position of your organization with regard to online speech or online content as it is now on Facebook and on other social media platforms? Do you think there is a problem?

Mr. Greg Oliver (President, Canadian Secular Alliance):
     Absolutely. In particular harassment, things like doxing, and misinformation campaigns are real problems that we're facing.

Mr. Colin Fraser:
     What do you mean by doxing?

Mr. Greg Oliver:
    That would be the revealing of personal information like addresses and phone numbers to the public against the intended target's permission.

Mr. Colin Fraser:
    Do you think, sir, that there are minority groups who are specifically being targeted and treated unfairly on social media platforms?

Mr. Greg Oliver:
    One of our own members was a victim of this when he was promoting the idea of removing public prayers from his city council in Saskatchewan.

Mr. Colin Fraser:
    Do you think there is a role for government to play in combatting what seems to be agreed upon as a rise of intolerance on social media platforms?

Mr. Greg Oliver:
    Yes, we do. We just urge caution that any measures taken are done cautiously and judicially, and there's no overreach.

Mr. Colin Fraser:
    When we're dealing with impressionable young people who are using social media platforms and, in their growing into adults, informing themselves about different world views, about different religious philosophies and about different ways to interact with other individuals, do you think there's a role for government to play in order to limit to a certain extent the abilities of individuals who are trying to exploit impressionable young people into certain hateful ideologies?
    Do you think there's a role for government to play in order to try to curb that, or do you think it should be unlimited and up to the individuals...?

Mr. Greg Oliver:
    No, we lean towards more of a civil libertarian position with respect to free speech, but we certainly acknowledge that there are limits. This is a great debate to have as to where that red line is. We don't object to government action when needed, if that's your question, and certainly there are a lot of ugly ideologies out there. Also, it's a brand new platform, the Internet. There are all sorts of complexities to this issue that I think we're all grappling with.

Mr. Colin Fraser:
    If a certain religion is being targeted.... I totally understand the point and agree that you can attack a person's ideas, but you can't attack the individual's dignity or character or their right to hold those different views. Do you see that it can be a blurry area between calling into question a person's ideas and ideology, and attacking their character and demonizing that individual?

Mr. Greg Oliver:
    Would you like to comment on that specifically?

Mr. Leslie Rosenblood:
    I think there is a world of difference between attacking an idea and attacking a person. One can attack Christianity without demonizing Christians. Similarly, you could insert Judaism and Jews or Islam and Muslims.
    One can take a look at the sacred scroll of your choice and say, "This is why I believe this to be holy" or "This is why I believe this text to be vile”. This does not mean that people who follow the words of that text are necessarily more noble or inherently evil for having genuine beliefs about that scroll.

Mr. Colin Fraser:
    On demonizing individuals, do you believe there's a role for government to play in combatting that type of demonization?

Mr. Leslie Rosenblood:
    The government already does have laws against the demonization of individuals, whether through slander, libel, defamation and so on. These are existing laws on the books, and we, as a secular alliance, do not object to the existence of these sections of the Criminal Code.

Mr. Colin Fraser:
    Demonizing an individual because of their beliefs, would you think that's a problem?

Mr. Leslie Rosenblood:
    It becomes a personal attack and not one on the ideas of the faith, if it's about the individual, and then you have to take a look at the specific context of what is being is said. Saying, "I do not like you, sir” is not hate speech, but calling for violence against someone would be.

Mr. Colin Fraser:
    Do you think that these sorts of attacks that can happen online to individuals based on their beliefs can lead some to perhaps see them as less than equal humans?

Mr. Leslie Rosenblood:
     There are a lot of hypotheticals in there. I find it hard to draw a connection with an attack on a belief leading directly to demonization of an individual. If you are already directly attacking an individual and it happens to be because of their faith, then it's the attack on the individual that matters and not the criticism of the underlying faith.

Mr. Randall Garrison:
I want to go back to Mr. Rosenblood. He was very careful to say that when ideas relate to individuals, he accepts that there has to be a limit.
    In my community just last week, we had the rental of a public facility to a group and to a speaker who attack transgender people as threats to all women and threats to children. While in that speech that takes place, there's no identifying of individuals, it does promote hatred against a group. Since you focused on individuals last time, I'd like to ask whether you accept that there is a limit and that there should be criminal sanctions against promotion of hatred against a group and not just individuals.

Mr. Leslie Rosenblood:
    Yes, criminal sanctions should not simply be against identified, named individuals. Saying that Leslie Rosenblood should be attacked because he's Leslie would be, or should be in our opinion, equally an offence under the law as saying that all members of the Canadian Secular Alliance, of which I happen to be one, should be attacked. Whether the group in question is one of voluntary membership as in the Canadian Secular Alliance, one of religious affiliation of any sort, or a member of, for example, the LGBT community, calling for attacks or violence against unspecified members of an identifiable group should be subject to criminal sanction to an equal extent as a named individual.

Mr. Randall Garrison:
    It's not a federal jurisdictional question, but it's about the use of public facilities for promotion of hatred against groups. Do you believe public entities, whether it's a municipality or even, say, the House of Commons, should have policies in place that would prevent the use of public facilities for the promotion of hatred?

Mr. Leslie Rosenblood:
     There are a number of complexities in there. Whether the public facility is open to the public or whether it's reserved for certain specific purposes would have a bearing. Assuming, for the sake of this discussion, it's open to the public, there is no implied approval or endorsement by a municipal, provincial or federal government of the ideology or background of whoever is renting the facility, simply because they're using the facility.
    If illegal acts are being conducted as a result of that, they must be prosecuted accordingly. However, should you fall short of that and they simply have highly distasteful or objectionable goals, the government should neither endorse nor condemn speech from people who rent those facilities. The government must remain neutral, again assuming that the facility is open to the public and that no criminal incitement is happening as a result of that transaction.

Mr. Ali Ehsassi (Willowdale, Lib.):
    Thank you, Mr. Chair.
    To all the witnesses, thank you for your testimony.
    My first question is for Mr. Rosenblood and Mr. Oliver.
    Having heard your testimony, I understand you're saying we should be amending existing legislation. I also understand you're very much concerned about the overreach of the law. That said, you delved into paragraph 319(3)(b). I understand you're in favour of repealing it. Do you think any such action would restrict freedom of religion?

Mr. Greg Oliver:
    Essentially, we don't. We strongly believe in freedom of religion, and of course, the freedom to hold no religion. We think all citizens ought to be treated equally under the law, and that should also include criminal proceedings. If one commits a hate crime, just simply being able to be exempted from prosecution due to the citing of a religious text is inappropriate.
    It is not really going to have any impact on religious belief, but it would strengthen equality rights under section 15 of the charter. We think it would be beneficial.
    I'll give you a tangible example, since we've been talking a bit about LGBT issues here. Let's say person A calls for violence against male homosexuals, and person B does the same but invokes Leviticus or passages from Hadith. In our eyes, both ought to be prosecuted equally. We think this is a moral principle that ought to be reflected in the Criminal Code.

Mr. Ali Ehsassi:
    Speaking of hate speech, which is exempt from prosecution if it's derived from a religious text, do you think this constitutes a violation of equality rights?

Mr. Greg Oliver:
    Do you mean as the law currently stands?

Mr. Ali Ehsassi:
    Correct.

Mr. Greg Oliver:
    Yes, we do.

Mr. Arif Virani:
    Thank you, Mr. Ehsassi.
    Let's continue on this theme.
    I'll confess to you that I found a bit puzzling, Mr. Rosenblood, your opening submissions about paragraph 319(3)(b), first because the preamble of the Constitution talks about the supremacy of God and the rule of law, and second because it's well known in law that we carve out accommodation or exemptions for religious or conscience beliefs, most recently in the one issue that I think all of us will remember for our entire parliamentary careers—medical assistance in dying—wherein you had a direct conflict within people who felt, pursuant to their conscience, that they didn't want to be compelled to perform a certain type of medical procedure. That was enunciated in the penultimate paragraph of the Carter decision, since you're citing Supreme Court case law. It's also entrenched in Bill C-14.
    I just put that forth as a talking point.
    You also mentioned, Mr. Rosenblood, that you're cautioning us not to act quickly. I would actually say to you, if you were listening to the people earlier, that there's a real need to act quickly. I think the need to act quickly is that people are being radicalized towards violence online in Canada—that's part of the court record in the Bissonnette sentencing hearing—and around the planet. I think it is incumbent upon us to act quickly.
    I was also a bit puzzled by your citation of a dissenting decision in Keegstra, rather than the unanimous decision of the Supreme Court in more recent jurisprudence, which is Whatcott, in which Rothstein, writing for the entire court, upheld section 13 of the Canadian Human Rights Act as striking the appropriate balance.
    There's no doubt that balance needs to be struck. The question I have for you, then, is this: Is section 13 of the CHRA, whose analogue was upheld in Whatcott in a unanimous 6-0 decision by the Supreme Court, the right balance? If it isn't, what's needed? Is what is needed what would effectively be a redundant but perhaps necessary political paragraph that simply says, “Nothing in the aforementioned passages derogates from the constitutionally held right to freedom of expression held by all individuals within Canada under section 2(b)”?

Mr. Leslie Rosenblood:
    It is because we feel that this issue is important that the Canadian Secular Alliance feels it is more important the government act correctly, over quickly.
    Acting quickly may not achieve the goals we are trying to reach. That's why we believe that, because it's new and is unfamiliar territory for the vast majority of Canadians and parliamentarians, we need to consider what needs to be done properly and not simply do something for the sake of doing something.
    As for your direct question on the repealed section 13 of the Canadian Human Rights Act, we feel that the current law strikes a reasonable balance in terms of restrictions on free speech. We feel that existing provisions can be enforced more rigorously and more consistently across Canada and that the larger problem we face is not a lack of legislation addressing hatred in all of its forms but a lack of enforcement of existing provisions.

Friday, May 10, 2019

Canadian Secular Alliance Presentation to the House of Commons Standing Committee on Justice and Human Rights

Yesterday morning I testified before the House of Commons Standing Committee on Justice and Human Rights. In April, the Committee invited Canadians to participate in its study of online hate, and asked the Canadian Secular Alliance to provide its perspective. Below is the statement I made to the Committee.


Good morning. My name is Leslie Rosenblood and my colleague is Greg Oliver. We are here on behalf of the Canadian Secular Alliance. We greatly appreciate the opportunity to speak before you today.

The Canadian Secular Alliance is a non-partisan and registered not-for-profit organization whose mandate is to promote the separation of religion and state in Canada.

Our goal today is to provide a robust defense of three core principles that a central to all liberal democracies: government neutrality in matters of religion; equality for all under the law, and free expression.

Government Neutrality


People deserve protection from harm; ideas do not warrant protection from criticism. This distinction is crucial to today's discussion and it is imperative that these are not conflated. Assaults on religious people must be deterred, prevented, and prosecuted. But just as Canada’s political parties can (and do!) vigorously attack each other’s platforms and proposals, criticism of religious tenets, no matter how vitriolic, must be fully permissible.

Religious beliefs are ideas, and should not be treated any differently than other philosophical doctrine – political, economic, philosophical, or otherwise. Attacking the ideas in a book should never be considered equivalent to an attack on the people who revere those words.

Equal Protection under the Law


It would be ludicrous to for the law to treat two, say, burglars differently based on which party they voted for in the previous election. Yet our Criminal Code today does something analogous where the willful promotion of hatred is concerned. Religious individuals are given preferential treatment under the law. Section 319(3)(b) of the Criminal Code exempts a person, who would otherwise be subject to an indictable offense, if their hate speech is "based on a belief in a religious text". This is a clear violation of the principle of state neutrality in matters of religion. The harm suffered by vulnerable persons and groups is identical whatever inspired the hate monger. The Canadian Secular Alliance recommends that Canada repeal Section 319, subsection 3(b) of the Criminal Code.

The majority opinion of the Supreme Court of Canada wrote last year that “Accommodating diverse beliefs and values is a precondition to the secularism and the pluralism that are needed to protect and promote the Charter rights of all Canadians. State neutrality requires that the state neither favour nor hinder any particular belief, and the same holds true for non‑belief. Either way, state neutrality must prevail.” Our legislature also recognizes that treating religious ideas as a form of thought warranting special treatment is detrimental to society and obsolete, as demonstrated by the repeal of Canada’s blasphemous libel law last year. This action was a significant step forward. Our country should not retreat from its commitment to humanitarian values that apply equally to all Canadians.

Free Speech


While legitimate constraints to unfettered speech exist - including libel, impersonation, threats and incitement to violence - any exceptions must be limited, well-defined, and serve the public interest. Any proposal that seeks to further limit free expression must pass a high burden of proof in order to counter legitimate concerns about overreach, ambiguity, and selective enforcement.

Therefore the goal of hate speech laws must be to protect individuals from physical harm. However, they rarely achieve this aim. After studying the issue in many countries, Human Rights Watch stated "there is little connection in practice between draconian hate speech laws and the lessening of ethnic and racial violence or tension." The same conclusion was reached by the European Parliament and the UN High Commissioner for Human Rights.

The key problem with hate speech laws is that hate speech is impossible to define in such a way as to meet the twin goals of targeting a significant portion of unacceptable expression while respecting the principle of free speech. If its scope is very narrow and specific, any new law will have minimal impact on Canadian public discourse. But a broadly worded Act would necessarily encompass much speech protected by section 2(b) of the Canadian Charter of Rights and Freedoms. Additionally, in many countries (including established democracies) hate speech laws have often been disproportionately enforced against members of the very minority groups they were designed to protect.

Overly broad hate speech laws also have a non-trivial chilling effect on all public criticism. The Supreme Court has described "hatred" as speech "that is likely to expose" people to "hatred or contempt": "unusually strong and deep-felt emotions of detestation, calumny and vilification"; and "enmity and extreme ill-will [...] which goes beyond mere disdain or dislike." How can a person know whether their strong negative opinion of a person or group will be considered "disdain" - permissible - or "detestation" - punishable? In a dissenting opinion on the Keegstra case, Supreme Court Justice McLachlin wrote, the "sanction of the criminal law may pose little deterrent to a convinced hate-monger who may welcome the publicity it brings; it may, however, deter the ordinary individual."

Hate speech laws leave three options for those inclined to engage in hateful, discriminatory speech: taking the forbidden expression underground; couching their ideas in more subtle rhetoric to evade punishment; or leaving the message unchanged (or perhaps make it even more provocative) as the speakers seek the publicity that results from prosecution. Perhaps that is why Canada has so rarely invoked its existing hate speech law.

With the increasing prevalence of social media in the lives of Canadians, the CSA recognizes that the way we communicate and connect with each other has changed and new challenges have emerged. The CSA recognizes that these are serious issues that require attention, but they fall outside of our mandate so we will defer to other experts for appropriate remedies. We urge the Government to avoid the fallacious reasoning of, "We must do something. This is something - therefore we must do it."

We urge this committee to maintain its commitment to crucial Charter values of free speech and equality for all under the law. This can only be realized when government neither supports nor suppresses religious expression, but remains neutral. Thank you.

Friday, January 11, 2019

How to change a law in six easy (?) steps

Below is a lightly edited article I wrote for the January 2019 edition of Critical Links, the monthly newsletter of the Centre for Inquiry Canada.

It boggles the mind that Canada had, until late last year, a law prohibiting "blasphemous libel", punishable by up to two years in prison. Though it had not been invoked in decades, I believed this to be an unjustifiable restriction on freedom of expression, and played a minor role in ensuring no one will ever again be charged with blasphemy in Canada.

I am not a professional lobbyist. Though I try to stay informed about current events, I am not particularly politically active, nor have I ever been a member of any political party. My priorities in life are raising my four young children and doing well in my job. So how does a "nobody" like me go about repealing an obsolete law that no one seems to care about?

Here's my advice for those outside government seeking to improve the world through legislative change.
  1. Wait for an opportune time. The road to repealing Canada's blasphemy law started in September 2016 when an Alberta judge cited a section of the Criminal Code that the Supreme Court had declared to be unconstitutional in 1990. In response to this embarrassment, Justice Minister Jody Wilson-Raybould announced she had ordered a review of Criminal Code provisions found to be unconstitutional. This was clearly the time to take action. 
  2. Build a coalition. Politicians answer to Canadians writ large. Bureaucrats answer to politicians. If you are speaking just for yourself, no one in power will want to speak with you. But when representatives from three of Canada's leading non-religious organizations - Centre for Inquiry Canada, Canadian Secular Alliance, and Humanist Canada, each of which had established institutional credibility over the years - presented a joint request, we were granted a meeting with the Senior Policy Advisor in charge of the Criminal Code at the Justice Department. 
  3. Marshall your arguments. Ensure you know your material. You will want to leave a positive impression with whomever you're speaking with, so do not waste even a minute of their time. CFI, CSA, and HC met in advance to agree on major talking points and the more detailed rationales for each position. Because everyone from the three organizations was familiar with everything we wanted to convey, there was neither repetition nor contradiction when any of us spoke. 
  4. Do your research. Stating a reasonable sounding philosophical position is a good start, but is not enough. If the benefits or harms are merely theoretical, it may make for an interesting chat, but it will not drive change. Ensure your carefully constructed arguments are externally validated - backed by evidence, references, and (especially with politicians!) media pieces. You needn't cite every article in conversation, but be sure to have them at the ready if asked or challenged, and offer to leave a full package behind before you leave. 
  5. Tailor your presentation to your audience. As much as possible, learn in advance about whom you will be speaking with and what they might want from you. This doesn't involve spying or any form of skulduggery. Simply by looking up someone's profile on LinkedIn and understanding where they fit in their organization's hierarchy, you can gain valuable insights into what might motivate them. You should be familiar enough with what you want to communicate that you can alter the planned order or emphasis based on the flow of the conversation. Our meeting in December 2016 was with a lawyer with impeccable credentials - so we ensured we demonstrated knowledge on the topic of blasphemy without claiming to have legal expertise. We tied our goal - repealing Canada's blasphemous libel law - to the (very public) review commissioned by the Justice Minister a couple months previously. While we acknowledged that it had never been tested by the courts, we argued Canada's blasphemy law almost certainly violates the right to freedom of expression enshrined in section 2 of the Canadian Charter of Rights and Freedoms - which made it within scope of the review. The government could avoid a potential future embarrassment by removing a law before a judge referred to it in a conviction, only subsequently to have both the conviction overturned and the law struck down. 
  6. Be patient. The wheels of government (in fact, of any large organization) turn slowly. We met with representatives of the Justice Department on December 16, 2016. On March 8, 2017, the government introduced Bill C-39, which would remove from the Criminal Code only those sections previously struck down by the courts. After an initial bout of disappointment, we took heart from Minister Wilson-Raybould's statement that this was only a "first step". Sure enough, three months later, on June 6 2017, Bill C-51 was brought before the House of Commons. It was an omnibus bill that, in addition to repealing Canada's blasphemy law, removed sections related to (among other things) challenging someone to a duel, fraudulently pretending to practise witchcraft, and impersonating someone during a university exam. But the main changes in the bill were updating provisions related to consent and admissibility of evidence in sexual assault trials. For this reason, it was carefully studied by both the House of Commons and the Senate, taking over 18 months before it received Royal Assent on December 13, 2018 - nearly two years after CFI, CSA, and HC met with the Justice Department to press our case. 
If someone like me - no one in particular, with zero public profile, no insider connections, and no experience trying to influence the legislative process - can play even a small part in repealing a manifestly unjust law, so - with appropriate prioritization and persistence - can you.

Saturday, July 21, 2018

The Supreme Court rules: Discrimination is not a protected religious right

On June 15, 2018 the Supreme Court of Canada published its decisions about the Law Society of British Columbia (LSBC) and the Law Society of Upper Canada (LSUC) refusing to recognize graduates of Trinity Western University's (TWU) proposed law school. Graduates from TWU would not be able to practice law in those provinces. (See my previous essays on TWU's Community Covenant, the Ontario Court of Appeal TWU ruling, an analysis of the issues raised by the case prior to the Supreme Court hearing, and a summary of the arguments made at the Supreme Court.)

Summary of the Rulings

The structure and arguments in both the Law Society of British Columbia (LSBC) v. TWU and TWU v. the Law Society of Upper Canada (LSUC) rulings were substantially the same, though some of the details varied. Together the judgments run to over 250 pages, so any synopsis will inevitably leave out some important details.

In essence, the Court considered the following (P# refers to the paragraph number of the relevant decision):
  1. Under the relevant provincial legislation, were the law societies permitted to consider TWU's Covenant when deciding whether to grant accreditation to its graduates? If not, the law societies must recognize TWU graduates as no other reasons were given to deny accreditation.

    A majority ruled that the "public interest" provisions of the law societies' enabling statutes meant they acted within their mandate. (Two dissenting judges vehemently disagree with this conclusion.)
  2. Given this, were the decisions of the law societies reasonable and proportionate? If not, the Court could overturn them.

    The majority noted that "the law society’s interpretation of the public interest is owed deference" (LSBC, P38), meaning the bar was high to second guess the conclusions reached by the law societies. The Court found no egregious behaviour on the part of the law societies, both in terms of the procedure followed to reach their conclusions and in the quality of their deliberations.
  3. Were Charter rights of TWU students violated? If not, since the decisions of the law societies were reasonable, the case would end there.

    The Court found that the law societies' decisions not to accredit TWU were "a limitation on the right of TWU’s community members to enhance their spiritual development" (LSBC, P75), and thus their right to freedom of religion was infringed.
  4. Is the infringement in this case justifiable?

    The majority decided that yes, the infringement was justified, for the following reasons:

    "LSBC’s decision did not limit religious freedom to a significant extent." (LSBC, P85) 

    "Those who are able to sign the Covenant will be able to apply to 60 more law school seats per year, whereas those 60 seats remain effectively closed to most LGBTQ people." (LSBC, P95)

    In other words, the impact of the law societies' decision on TWU students' religious freedom is minimal, whereas the impact of accrediting TWU would be significant on LGBTQ individuals across the country. 

Analysis of the eight rulings

The decisions were not unanimous. In both cases, five Justices wrote the majority ruling, the Chief Justice provided her own reasons for a concurring opinion, as did Justice Malcolm Rowe. Two Justices wrote a dissenting opinion. Thus there were a total of eight rulings. The logic and arguments were very similar in both cases, however, so below I have merged the reasons for both.

Majority Ruling

The summary above reflects the findings of the five Justices. They determined that the infringement on freedom of religion was minimal because the "decision only interferes with TWU’s ability to operate a law school governed by the mandatory Covenant" and "attending a Christian law school is preferred, not necessary, for prospective TWU law students." (LSUC P38)

LSUC determined "that TWU’s community members cannot impose those religious beliefs on fellow law students" and that its obligation to protect the public interest "mandates access to law schools based on merit and diversity, rather than exclusionary religious practices." (LSUC P41)

The majority was quite concerned about protecting diversity in the legal profession, writing, "The LSBC was entitled to be concerned that inequitable barriers on entry to law schools would effectively impose inequitable barriers on entry to the profession and risk decreasing diversity within the bar." (LSBC P39) and "A diverse bar is a more competent bar." (LSBC P43)

One item I found potentially troubling in the majority ruling was, "It is unnecessary to determine whether TWU, as an institution, possesses rights under s. 2(a) of the Charter." (LSBC P61) While the Court did not accept TWU's argument that it, as an institution, has freedom of religion, it left the door open for such a finding in the future. I much prefer Rowe's interpretation of religious freedom (see below).

I was delighted to see the the majority explicitly endorsed a principle I have long held, but that is often publicly rejected by many, including several prominent politicians: "that freedom of religion includes freedom from religion." (LSBC P101). Accepting this premise leads inevitably to ruling in favour of the law societies, once the Court acknowledged that "The effect of the mandatory Covenant is to restrict the conduct of others." (LSBC P99)

Chief Justice

The Chief Justice found that, contrary to the majority opinion, the "negative impacts of the LSBC’s denial of accreditation on the religious, expressive and associational rights of the TWU community are not of minor significance." (LSBC, P145) She also found that "LGBTQ students who insist on equal treatment will have less access to law school and hence the practice of law than heterosexual students — heterosexual students can choose from all law schools without discrimination, while one law school, the TWU law school, would only be available to LGBTQ students willing to endure discrimination." (LSBC, P138)

The Law Society of British Columbia decided "the imperative of refusing to condone discrimination and unequal treatment on the basis of sexual orientation outweighed TWU’s claims to freedom of religion." (LSBC P146)

On balance, she "cannot conclude that the decision of the LSBC was unreasonable." (LSBC, P148)

Justice Malcolm Rowe

Justice Rowe, while concurring overall with the majority, differed in his reasons on several salient points. I found myself agreeing with almost everything in his opinions, and hope that his perspective becomes pervasive within the Court in the years to come.

There is an odd convention in our society that whereas most ideas are open to vigorous challenge, if one defends an otherwise ludicrous proposition with the statement, "This is a part of my religious tradition," it becomes an invalid topic for criticism. Thus I was very happy to read (LSBC, P160) that Rowe believes that "The fact that the Covenant is a statement of religious rules and principles does not insulate it from such scrutiny." As the Canadian Secular Alliance states in its policy position on Canada's blasphemy law: "People deserve protection from harm; ideas do not warrant protection from criticism."

Rowe gently chides his colleagues for finding Charter infringements too readily. Doing so "erodes the seriousness of finding Charter violations" and "distorts the proper relationship between the branches of government by unduly expanding the policy making role of the judiciary." (LSBC P192) He notes that "The decision of the LSBC does not interfere with the claimants’ freedom to believe that sexual intimacy outside heterosexual marriage “violates the sacredness of marriage between a man and a woman”" (LSBC P226) and "the LSBC does not interfere with the claimants’ ability to act in accordance with their beliefs about sexual intimacy." Thus he differs from the majority and finds "the alleged infringement does not fall within the scope of freedom of religion." (LSBC P210)

One of the most significant statements by Rowe (LSBC P219) is that "religious freedom is premised on the personal volition of individual believers. [...] I would decline to find that TWU, as an institution, possesses rights under s. 2(a)." "While s. 2(a) recognizes the communal aspects of religion, its protection remains predicated on the exercise of free will by individuals". (LSBC P220)

This is exactly the correct stance to take, and I am glad at least one Justice was willing to commit to it, despite the majority declining to comment.

The crux of Rowe's reasoning, however, is that "TWU, by virtue of its enabling statute, literally is for everyone" (LSBC P241) and therefore "its admissions policy [can]not be restricted to Christian students." (LSBC P240) But TWU students "seek the protection of s. 2(a) for their effort to ensure that all students attending TWU abide by these beliefs — regardless of whether they personally share them." (LSBC P237) But Rowe "can find no decision by this Court to the effect that s. 2(a) protects such a right to impose adherence to religious practices on those who do not voluntarily adhere thereto." (LSBC 242)

Rowe concludes that the Charter "does not protect measures by which an individual or a faith community seeks to impose adherence to their religious beliefs or practices on others who do not share their underlying faith." (LSBC P251) And he quotes the submission made by the Canadian Secular Alliance, writing "I agree that “a right designed to shield individuals from religious coercion cannot be used as a sword to coerce [conformity to] religious practice”". (LSBC P251) How flattering to have part of our submission incorporated into the published opinion of a Supreme Court Justice!

Dissent

I found much of the dissenting rulings troubling. Referring to evangelical Christians, Justices Côté and Brown claim in their second paragraph that LSBC "has effectively denied that access to a segment of Canadian society". (LSUC P261) This is factually incorrect. Evangelical Christians can and do attend law schools across the country, and many (perhaps all) Canadian law schools have Christian student groups in which they can participate. The decision not to recognize TWU graduates in no way prevents an evangelical Christian from getting a legal education or pursuing a law career in Canada.

"The LSBC’s decision is a profound interference with religious freedom, and is contrary to the state’s duty of religious neutrality. It is substantively coercive in nature." (LSBC summary) It is disturbing to have Supreme Court Justices arguing that any action preventing or mitigating coercive practices is inherently coercive, even if it is a minority perspective. If we accept this premise, then (according to Côté and Brown) government neutrality in religious affairs mandates an acceptance of religious bigotry. I reject this view.

The dissenting judges are adamant that "The only proper purpose of a Law Society of Upper Canada (“LSUC”) accreditation decision is to ensure that individual applicants who are graduates of the applicant institution are fit for licensing." (LSUC P57) They state this premise, in various forms, many times across the two rulings:

  • "Law school accreditation, properly understood, only acts as a proxy for ascertaining whether graduates from that school are presumptively fit for licensing." (LSUC P67) 
  • "the only proper purpose of a law faculty approval decision is to ensure that individual graduates are fit to become members of the legal profession" (LSBC P267)
  • "the only proper purpose of an approval decision by the LSBC is to ensure that individual licensing applicants are fit for licensing." (LSBC P273)
  • "It is readily apparent that the approval of law faculties is tied to the purpose of assessing the fitness of an individual applicant for licensing." LSBC P280)
  • "The LSBC’s object, duties and powers are, in short, limited to regulating the legal profession, starting at (but not before) the licensing process" (LSBC P284) 
  • LSBC's "statutory mandate empowers it to control the doorway to the profession, not to decide who knocks on the door." (LSBC P290)
  • "justification in this case requires evidence of a detrimental impact in the form of the unfitness of future graduates of TWU’s proposed law school’s to practise law." (LSBC 321)
  • "the only proper purpose of a law faculty approval decision is to ensure the fitness of individual graduates" (LSBC 341)
  • "Whether or not law schools have themselves selected the “best of the best” has no bearing on the LSBC’s task of determining who is fit to practise law in British Columbia." (LSBC P289)

The other Justices are clear that the delineation of the law societies' authority rests, barring exceptional circumstances, with the law societies themselves: the majority writes "the LSBC’s determination of the manner in which its broad public interest mandate will best be furthered is entitled to deference" (LSBC P34), the Chief Justice states "Where legislatures delegate regulation of the legal profession to a law society, the law society’s interpretation of the public interest is owed deference." (LSBC P110), and Justice Rowe concurs that "As this Court has affirmed on numerous occasions, deference is called for when courts review the decisions of law societies as they self regulate in the public interest". (LSBC P155) Yet Côté and Brown flatly assert that "approving TWU’s proposed law school was not against the public interest", (LSBC P323) overruling LSBC and contradicting the other seven Justices and their cited precedents.

The implication is that pubic interest, according to Côté and Brown, is defined by competent graduates, with no weight given to diversity, excellence, or exclusion of non-favoured groups. Presumably, a religiously based law school that admitted only heterosexual Christian white men would be fine with these two Justices so long as each individual graduate was minimally capable at the practice of law.

There were aspects of the dissenting opinion that I agreed with. It succinctly and accurately states the secularist position in the LSBC summary: "State neutrality requires that the state neither favour nor hinder any particular belief, and the same holds true for non-belief." Côté and Brown also defend this premise: "state neutrality must prevail." They are correct in noting "secularism connotes pluralism and respect for diversity", "guarantees an inclusive public square by neither privileging nor silencing any single view", (LSBC 332), "the secular state is a neutral state" (LSBC 332) and reiterate that "state neutrality must prevail." (LSBC 333)

Yet within a single paragraph (LSUC P81), Côté and Brown take a reasonable premise - "the public interest in fostering a liberal, pluralist society is served by accommodating religious freedom" - and use it to leap to an untenable conclusion: "The unequal access resulting from the Covenant is a function not of condonation of discrimination, but of accommodating religious freedom, which freedom allows religious communities to flourish and thereby promotes diversity and pluralism in the public life of our communities." Côté and Brown use the rhetoric of secularism to arrive at distinctly anti-secular conclusions.

Côté and Brown employ a similar rhetorical device elsewhere: "Tolerance and accommodation of difference serve the public interest and foster pluralism. Acceptance by the LSBC of the unequal access effected by the Covenant would signify the accommodation of difference and of the TWU community’s right to religious freedom, and not condonation of discrimination against LGBTQ persons." (LSBC P269) This is exactly backwards - religious freedom is so important, imply the judges, that the impact on the LGBT students who are discriminated against is irrelevant. The majority considered, and rightly rejected, this argument.

The dissenting judges repeatedly use the language of secularism to condone discrimination (LSBC, P268): "The decision not to approve TWU’s proposed law faculty because of the restrictions contained in the Covenant [...] is a profound interference with religious freedom, and is contrary to the state’s duty of religious neutrality." Essentially, these Justices argue, any and all restrictions placed on LGBT students by TWU are fine in the service of defending the intolerance of evangelical Christians.

If this argument were to be found persuasive, a future religiously based law school could restrict access to right-handed people only, citing scripture (e.g., Genesis 48:13-18, Galatians 2:9). (Or, to follow TWU's operating model, left-handed people would be welcome to attend, so long as they performed all activities, on campus and off, in a right-handed manner.) The dissenting judges repeatedly invoke the concepts of neutrality, pluralism, and respect, which I support. These words clearly do not mean the same things to them as they do to me.

The two dissenting judges invert the intent the Canadian Secular Alliance's own metaphor (without a citation) to defend their position: "Equating recognition of a private actor as condonation of its beliefs turns the protective shield of the Charter into a sword." (LSUC P75) They use similar language in LSBC P338: "Equating approval to condonation turns the protective shield of the Charter into a sword by effectively imposing Charter obligations on private actors." I do not understand how Côté and Brown can observe TWU's blatantly discriminatory behaviour alongside LSBC's and LSUC's attempts to mitigate its impact, and conclude that the TWU community is the injured party.

Côté and Brown also engage in misdirection, which is worrying behaviour for Supreme Court Justices. They accurately state that LSBC's governing statute "does not grant the LSBC authority to regulate law schools." (LSBC P282). However, that's not what LSBC is doing. As the majority explicitly stated, "That the LSBC considered TWU’s admissions policies in deciding whether to approve its proposed law school does not amount to the LSBC regulating law schools".  (LSBC P45) It is unclear why Côté and Brown ignored their peers on this matter.

Like the majority ruling, the dissenting judges do not state whether institutions have religious rights: "it may not be necessary to determine whether TWU, qua institution, enjoys a right to religious freedom in its own right". (LSBC P315) They are clearly sympathetic to such a view, however - the section in which this sentence appears is entitled, "The LSBC Benchers’ Decision Is an Infringement of TWU’s Section 2(a) Charter Rights", which clearly implies it is the school, and not its current or prospective students, that have rights. They hint as this again in LSBC P324 when they condemn this "highly intrusive conduct by a state actor into the religious practices of the TWU community." I cannot determine whether, in this sentence, Côté and Brown are defending the rights of individuals, a community, or an institution.

In their opinion only "evidence of a detrimental impact in the form of the unfitness of future graduates of TWU’s proposed law school’s to practise law" (LSBC P321) could justify LSBC not accrediting TWU's law school, which is a very narrow view. But no one - not LSBC, nor LSUC, nor any of the 19 interveners - claimed that future graduates would be unfit to practise law. The Justices are surely aware of this, and thus are here making a token effort to appear reasonable by providing the grounds on which they might have ruled differently - knowing full well that no one is making such an argument. This strikes me as disingenuous - unbecoming behaviour from two Supreme Court judges.

The problem is that TWU's main argument - studying in an enforced evangelical Christian environment is simply an aspect of freedom of religion - is belied by the fact that TWU itself affirms that non-Christians are welcome to attend TWU and vociferously dispute any and all Christian theological, ethical, and religious precepts. That people experiencing sexual intimacy with their spouses in the privacy of their homes threatens the fragile fabric of the TWU Christian community, while a TWU student loudly proclaiming that Vishnu or Jehovah or Allah is a true Deity, and that Jesus is a myth, is entirely permissible, highlights to me that the Covenant is about enforcing parochial taboos and has little to do with religious rights.

Freedom of religion does not include the right to compel or forbid the actions of others.

What happens next?

TWU has decided to postpone the opening of its law school as it reviews the decision. As the objections of the two law societies focused on the mandatory nature of TWU's Community Covenant (which was upheld by all seven judges ruling in their favour), as I see it Trinity Western has three options from this point:

  1. Do not open a law school.
  2. Remove the clauses forbidding sexual intimacy between same-sex spouses from the Community Covenant.
  3. Make signing the Community Covenant optional instead of mandatory.

It is important to note that no one objected to the founding of a Christian law school per se. The issue is the dual claim of TWU being open to all comers - heterosexuals and homosexuals alike - while enforcing a mandatory Community Covenant that denies basic freedoms to gay married couples that are granted to straight married couples.

How Trinity Western proceeds from here is up to them. I will be watching the school in the months to come to see what decision they make, and why.

Monday, June 04, 2018

Canada is repealing its blasphemy law

I wrote a short article for the June 2018 edition of Critical Links, the newsletter of the Centre for Inquiry Canada. Enjoy.

Canada is repealing its blasphemy law

Governments sometimes pass laws that violate their country's constitution. One purpose of an independent judiciary is to identify and strike down such laws when they are challenged. Since Canada adopted the Charter of Rights and Freedoms in 1982, many previously valid laws have been found to be contrary to Canada's constitution. When the courts strike down a law, it has no longer has any legal force, but it remains on the books until such time as Parliament formally repeals it. Thus "zombie laws" accumulate in Canada's Criminal Code until a "cleanup" bill removes them.

In 2016, an Alberta judge, in his decision to convict a man of murder, "relied on section 230 of the Criminal Code, which was declared unconstitutional in 1990 case R. v. Martineau." This embarrassed the federal government, and in response Justice Minister Judy Wilson-Raybould released a statement she had instructed "officials in the Department of Justice to conduct a review of Criminal Code provisions found to be unconstitutional, with a view to updating the Criminal Code to reflect these decisions."

A broad mandate from the Justice Minister to update the Criminal Code presented a rare opportunity to make the case that section 296, Blasphemous Libel, should be removed as part of this modernization effort. Members of three prominent Canadian organizations dedicated to freedom of speech and conscience - Centre for Inquiry Canada, Canadian Secular Alliance, and Humanist Canada - took the opportunity to meet with the senior bureaucrats leading this review in December 2016.

We highlighted several reasons why Section 296 should be repealed. In short, we argued:
  • Canada's Blasphemous Libel law, while not tested by the courts, would almost certainly be found to be unconstitutional. 
  • Blasphemy laws are an indefensible infringement on freedom of speech in a modern democratic nation. 
  • The law is demonstrably obsolete, It was last invoked in 1980 in an attempt to prevent a cinema from showing Monty Python's "Life of Brian", and the last conviction was over eight decades ago. 
  • Authoritarian states use Canada's Section 296 as moral cover to defend their own blasphemy laws. 
  • Human rights activists around the world have called for Canada to repeal its blasphemy law to strengthen their campaigns for freedom of speech in their own countries. 

(The Canadian Secular Alliance has a brief policy position on blasphemy that makes a compelling case for its repeal.)

On June 6, 2017, the government introduced bill C-51, an omnibus bill that repeals 39 sections and subsections of the Criminal Code (including blasphemous libel), as well as modifying several sections pertaining to admissibility of evidence in sexual assault cases. In November 2017, Greg Oliver, President of the Canadian Secular Alliance, testified before the Standing Committee on Justice and Human Rights to affirm support for repealing Section 296.

Bill C-51 has passed all three readings in the House of Commons, and is currently (as of the end of May 2018) in committee with the Senate, having passed the first two readings there. Based on the speeches made at the second reading in the Senate, repealing Canada's blasphemous libel law is not contentious. Careful attention is being paid to updating evidence admissibility in sexual assault cases, which is entirely appropriate.

Though it cannot be known for certain whether blasphemous libel would have been included in bill C-51 without the intervention of Canada's foremost freethought organizations, I am confident that the meeting with Justice Department officials raised the profile of section 296 while they were crafting this legislation.

Though one cannot predict when a bill in committee will be presented to the Senate for a third reading, there is no reason to expect that bill C-51 will not become law in due course. When it receives royal assent, blasphemous libel will no longer be a crime in Canada.

Chill, but do not yet uncork, your favourite bottle of Champagne.