Honourable Senators,
My name is Laurie Arron and I am the Director of Advocacy of Egale Canada. Egale is Canada’s national group working for equality and justice for lesbian, gay, bisexual and trans-identified people and their families.
This issue is really very simple.
Lesbian, gay and bisexual people are one of the chief targets of hate propaganda in Canada. The Criminal Code protects certain minority groups, but this protection is not currently extended to gay and lesbian people. The question is not whether we should add
“sexual orientation”, the question is how can we not add it?
There is no good answer, but there has been a lot of MIS-information, in particular about the reach of the Criminal Code. I’d like to turn to my colleague, Mr. Trevor Fenton, to address this. Trevor has extensively researched the legal implications of Bill C-250.
Trevor:
‘Thank you Laurie and thank you, Honourable Senators for inviting us to speak today.
As Mr. Robinson told you yesterday, section 319 of the Criminal Code already provides robust protection for freedom of religion. This is most obvious in reading subsection 319(3)(b), which unequivocally tells the courts that the Bible and other scriptures are NOT hate literature and are completely off limits to prosecutors.
Still, some people argue that the Bible is at stake. As proof, they refer to the decision in Owens v. Saskatchewan (Human Rights Commission). With respect, I submit that this case is simply not relevant to the bill before you. Using a human rights case like Owens to discredit a Criminal Code provision betrays a considerable misunderstanding of how our legal system works. Here’s why:
First, to violate the Human Rights Act one must merely “expose” an identifiable group to hatred or ridicule. Under the Criminal Code, the accused must promote hatred. According to the Supreme Court in Keegstra, this means direct and active stimulation, not mere encouragement or advancement.
Second, a violation of the Human Rights Act does not require any mental element. Instead, the focus is only on the effects of the acts in question. Under the Criminal Code the promotion of hatred must be wilful, which means both intentional and purposeful. This wilfulness, like every other element of the offence, must be proved beyond a reasonable doubt.
Third, under the Human Rights Code “good faith” is irrelevant. The Criminal Code provides a truth defence and 3 distinct “good faith” defences, including a full defence for expressing religious beliefs or beliefs based on a religious text.
In summary, s. 319 is designed to make it extraordinarily difficult to obtain a conviction; and let me be clear: this is exactly as it should be. It reserves the power of the criminal law for only the most extreme cases of promoting hatred while explicitly exempting religious expression from its reach.
Laurie:
Thanks Trevor!
I’d like to add that Egale supports religious freedom and freedom of expression, and we oppose censorship. We do not believe that people who say that homosexuality is against God’s wishes are wilfully promoting hatred. Hatred is not the end they seek.
It is hatemongers who violate the Criminal Code’s hate propaganda provisions – people who seek to de-humanize whole groups of people on the basis of a single characteristic, like race, religion or sexual orientation.
Egale believes that most Canadians want to live in a society that promotes mutual respect, equality and tolerance. We don’t want to live in a society where unpopular minorities are demonized or dehumanized.
Hate propaganda hurts us all.
Of course, the ones it hurts most are members of the targeted group. Not just particular individuals, but the whole group. The Supreme Court has recognized this. It has said that hate propaganda hurts people’s sense of safety and causes them to hide their identity. For gays and lesbians, the harm that comes from hiding who we are is well documented. It lowers our self-esteem and leads to feelings of shame, guilt and self-hatred. This is particularly difficult for young people.
Yesterday, when you were hearing about Bill C-16, you heard how vulnerable young people are. How in need of protection they are. Well, gay and lesbian youth are no different. They need protection. Studies show gay and lesbian youth are anywhere from 3 – 16 times more likely to attempt suicide than their heterosexual counterparts. This is a tragic loss of life. This bill, Honourable Senators, will help protect them.
Yesterday there were questions about the link between hate crimes and hate propaganda. The link is clear. Hate propaganda plants the seeds for hate crimes. Before you can have a hate crime, you must have hatred. Take away the hatred and you prevent the hate crime.
Gay, lesbian and bisexual people are one of the biggest victims of hate. Unfortunately, no national statistics are currently collected by the RCMP. They should be. However, statistics from Vancouver, from Toronto, from Calgary, from New Brunswick and from Nova Scotia all say the same thing – that a shockingly high proportion of lesbian, gay and bisexual people are the victims of hate crimes.
Time constraints don’t permit me to tell you about the actual hate propaganda that’s out there that’s directed at gays and lesbians, but I’m sure you can all imagine the things that are said.
– an internet game that children can download called “Shoot the Fags!”
– graffiti at Ryerson University calling for “Death to Homos!”
– a website that says Queers should be trampled into peat bogs, like the ancient Celts used to do? – that one was on a neo-Nazi hate line called “Liberty Net”.
– at Egale’s office, we’ve received threatening phone calls from a group calling itself the “Army of God”.
– Fred Phelps, whose website GodHatesFags.com says that, as of today, gay-bashing victim Matthew Shepard has been in hell for 1978 days. It also proudly announces Phelps’ intention to erect a monument in Casper, Wyoming saying that Matt Shepard entered hell on October 12, 1998 at age 21 in defiance of God’s warning.
So where are we? Well, we have a list of groups protected by hate propaganda, and this list leaves out one of the most targeted groups. Bill C-250 will fix that problem.
The problem is not only one that we HOPE you want to fix. It is one that our Charter of Rights and Freedoms says you HAVE TO fix. The Supreme Court set out this principle in the Vriend case, where it ruled that it is unjustifiable discrimination for a government to deny lesbian, gay and bisexual people the protection it accords to other disadvantaged groups, where our need for protection is clear.
The Court went on to say that the exclusion sends a message that it is permissible, and perhaps even acceptable, to do to gays and lesbians what is not permitted to be done to the protected minorities. In this case, the message says that Parliament believes it’s inappropriate to promote hatred against people on the basis of their race or their religion, but that people persecuted because of their sexual orientation are not sufficiently worthy of protection – instead they are fair game for hatemongers. If you reject this bill, that is the clear message you will be sending.
I should add at this point that even after Bill C-250 becomes law, there are other groups that will still not be protected, like disabled people, women, and transgendered and transsexual people. Trans people are desperately in need of protection, both in hate propaganda laws and in human rights legislation generally. The solution is to add the terms “gender identity” and “gender expression” to these laws.
Today, however, you are not being asked which groups to protect. You are only being asked whether or not to protect lesbian, gay and bisexual people. We call on you to pass Bill C-250 in the same form as was passed by the House of Commons, and without delay.
Thank you, Honourable Senators, for listening to Egale’s presentation.