NO LAW NECESSARY

WHY BILL C-415 IS ILL-ADVISED
2002 October 16
by Graham A.D. Scott, B.A., B.D., Dr.Sc.Rel.

It is a private member’s bill that would add the term "sexual orientation" to Subsection 318(4) of the Criminal Code (hate propaganda).

The House of Commons Summary of the bill says that it would expand ‘the definition of "identifiable group" relating to the area of hate propaganda in the Criminal Code to include any section of the public distinguished by sexual orientation.’

Section 318 concerns advocacy or promotion of genocide. Section 319 concerns hate propaganda more generally. Section 319(7) states that ‘"identifiable group" has the same meaning as in section 318.’ This bill would therefore effectively amend two sections of the Criminal Code.

The bill has passed two readings in the House of Commons. Despite the proroguing of Parliament, Bill C-415 is not effectively dead, because new Standing Orders permit a private member to reintroduce a private member’s bill in the House at the same status as it had attained previously. Therefore Mr Svend Robinson has only to choose to reintroduce this bill and it goes automatically to the Justice Committee and from there to a third and final reading and vote in the House of Commons.

If the third reading results in a vote passing the bill, it goes to the Senate for three readings. If it passes the Senate, then it goes to the Governor General for royal assent and becomes law.

This is an important question. The term is not defined in law or in judicial decisions.

The then Justice Minister Jean Chretien told the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada in 1981: "It is because of the problem of the definition of those words (sexual orientation) that we do not think they should be in the constitution. Do not ask me today to tell you what it is, because those concepts are difficult to interpret, to define and that is why we do not want them in the constitution."

Over twenty years later the term "sexual orientation" is still not defined, although it has been read into law by unelected judges. But if an undefined term should not be in the constitution, why should it appear in any law at all?

The parliamentary summary of Bill C-415 states that the bill includes "any section of the public distinguished by sexual orientation." A definition of "sexual orientation" is important, since "any section of the public distinguished by sexual orientation" is included. Any section?

It is reported that an Ontario Member of Parliament has stated that sexual orientation includes all forms of sexual behaviour: sodomy, bestiality, paedophilia, homosexuality, bisexuality, transsexuality, polygamy and even sado-masochism. Are these behaviours to be protected by Bill C-415?

In the year 2000 SafeHaven Foundation Press published David L. Riegel’s book, Understanding Loved Boys and Boylovers. This book is for sale by the popular Amazon.com bookseller. Riegel says this in his book: "Men who sexually pursue young boys are not monsters, but sincere, concerned, loving human beings who simply have a sexual orientation that is neither understood nor accepted by most others."

Riegel is not alone in condoning "intergenerational sex." In 1998 Bruce Rind and Philip Tromovitch published their permissive views in the American Psychological Association’s Psychological Bulletin, saying that sex with children isn’t necessarily abuse. The U.S. Congress condemned the study and the APA itself repudiated it, but the University of Minnesota published Judith Levine’s book, Harmful to Minors: The Perils of Protecting Children from Sex, which cited Rind and Tromovitch in support of her views. It should be clear that strong voices have been raised in support of adults having sex with children and that such behaviour is described as a sexual orientation.

Would Bill C-415 lead to legalization of paederasty, paedophilia and/or ephebophilia? These pathologies are regarded by Riegel and others as sexual orientations. They would argue that sexual orientation includes their behaviours and that they should be protected under the terms of Bill C-415 if enacted into law.

It could also be argued that polygamy is a sexual orientation. Are polygamists to be protected from criticism by Bill C-415? The Department of Citizenship and Immigration gave permanent Canadian residency to the three wives of polygamist Winston Blackmore from the United States in 1994. Mr Blackmore is reported to have 30 wives (National Post, Oct. 8, 2002). Polygamy is illegal in Canada today but some commentators think that it could withstand successful prosecution on grounds of the Charter of Freedoms. It could be argued that criticizing polygamy is a hate crime.

The question of defining "sexual orientation" is as relevant today as it was in 1981. Without definition, the term is like a blank cheque. Parliament should not sign blank cheques.

Sections 318 and 319 would protect sections of the public distinguished by colour, race, religion, or ethnic origin. What has sexual orientation in common with these distinctions?

It is argued that sexual orientation is innate and that it is not chosen. If this is true, then sexual orientation would have that much in common with colour, race or ethnic origin, for one is born with a particular colour and as part of a particular race or ethnic origin. There is no choice in colour, race or ethnic origin. Is there any choice in sexual orientation? Is one born homosexual or heterosexual or whatever?

Attempts to find a gene for homosexual behaviour have proved unsuccessful. A hundred zeroes still add up to zero. No one is born homosexual. Masters and Johnson’s conclusion in 1986 still stands: "In summary, we should point out again that there is no firm agreement about what ‘causes’ homosexuality or heterosexuality" (Wm.H. Masters, V.E. Johnson, R.C. Kolodny, Masters and Johnson on Sex and Human Loving, p. 353),

John McKellar, National Director of Homosexuals Opposed to Pride Extremism, correctly notes, "First of all, there is an element of choice in all behaviour." One could argue that every human being is born with a tendency to engage in violent behaviour. The tendency does not excuse the behaviour. Behaviour is a choice. We may feel like murdering some one, but most of us choose not to do so. Similarly one may at times feel same-sex sexual attractions, but one can choose not to engage in homosexual behaviour.

There is moreover increasing evidence that homosexual orientation has been changed. There is no evidence that anyone’s colour, race or ethnic origin has been changed. Ex-gays and ex-lesbians are numbered in the thousands. Persons who lived homosexual lifestyles have changed to live heterosexual lifestyles, specifically to live in monogamous marriage. The change is seldom easy or quick, but it has happened in thousands of cases. See Exodus International North America, P.O. Box 540119, Orlanda, FL 32854 (www.exodusnorthamerica.org).

To add sexual orientation to the list of colour, race or ethnic origin is to add a distinction that has little if anything in common with colour, race or ethnic origin. Adding sexual orientation to Sections 318 and 319 of the Criminal Code is therefore inappropriate as far as protecting innate distinctions from hate is concerned.

What has sexual orientation in common with religion? Despite the tendency of persons born into a religious group to stay in that group, it is possible to choose to leave the group. Since it is possible to choose to leave a homosexual orientation, sexual orientation has that much in common with the distinction of religion. One can leave it.

But religion as practised by the major religions of the world has certain ethical standards such as the Ten Commandments in Judaism and Christianity. C.S. Lewis drew up a list of many moral precepts held in common by most religions of the world in the appendix to his short book, The Abolition of Man (London: Geoffrey Bles, 1943, 1946). The eight pages of this appendix covered the law of general beneficence (e.g., do not murder; give alms); the law of special beneficence (e.g., love your wife); duties to parents, elders, ancestors; duties to children and posterity; the law of justice (e.g., do not commit adultery; do not steal; do not bear false witness); the law of good faith and veracity (e.g., don’t lie); the law of mercy (e.g., take care of widows, orphans, old people); the law of magnanimity. In general these standards are common to religion.

What has homosexuality in common with these standards? The promiscuity that is common to the majority of homosexuals (see A.P. Bell & M.S. Weinberg, Homosexualities, 1978) is in conflict with religious standards. There is no reasonable comparison of homosexuality with religion. To include sexual orientation in a list that specifies religion is not only inappropriate but also a trivialization of religion.

Even lifelong, caring homosexual relationships occur only in ten percent of the homosexual population, according to Bell and Weinberg, and many of these minority relationships permit other liaisons as a matter of course. Again there is no reasonable comparison of homosexuality with religion, and its inclusion in Sections 318 and 319 of the Criminal Code is inappropriate.

No. Not even Communist China bans the Bible.

Yes. Those portions of the Bible which condemn homosexual behaviour might indeed result in prosecution if quoted in an advertisement or speech or website. The evidence is clear that the publication of portions of the Bible has already resulted in prosecution.

For example, Hugh Owens published an advertisement in a local newspaper that included quotations from Leviticus, the third book of the Bible, against homosexual behaviour. Owens was convicted of discrimination against homosexuals by the Saskatchewan Human Rights Commission. The case is under appeal. Whether his appeal is upheld or not, the point is that Mr Owens has been subjected to prosecution and onerous legal costs for quoting from the Bible.

The same people who launched the complaint against Owens’ advertisement before the Saskatchewan Human Rights Commission could petition for prosecuting him under Canada’s hate law if Bill C-415 is passed.

Prosecution under Canada’s hate law requires the permission of the provincial Attorney General to proceed. But provincial attorneys general have already shown considerable deference to homosexual activists. Ontario’s Attorney General failed to support the common-law definition of marriage in the Ontario same-sex marriage challenge in November 2001. He also failed to stop his own department from dropping charges of nudity against certain Gay Pride parade participants in the summer of 2002; the charges were dropped by the Crown on the absurd grounds that the nude men in the parade had been wearing shoes. The Alberta Attorney General withdrew from the legal challenge by a lesbian couple who wanted to adopt a child. Svend Robinson says that he has strong support for his bill from the provincial attorneys ts of homosexual behaviour would not be prosecuted. The provision that hate crimes prosecution requires the consent of the provincial attorney general is no guarantee that Bible-quoting opponents of homosexual behaviour would not be prosecuted.

The Reverend Roy Hamel has suggested that Bill C-415 would make it a criminal offence to preach, teach, or publish negative commentary about homosexuality. In a radio interview on CKNW in August of 2002 Mr Svend Robinson said that Hamel’s concern was "complete nonsense" and that the existing hate crimes section "specifically...exempts any religious discussion."

But Robinson targeted an American, Pastor Fred Phelps of Wesboro Baptist Church, as the kind of hate propagandist who would be liable to prosecution. Now Fred Phelps bases his opinion that God hates fags on religious grounds. Phelps’s interpretation of Holy Scripture is wrong, of course. God loves the world (John 3:16), including homosexuals. What God condemns is homosexual behaviour, not homosexuals. God invites all, including homosexuals, to repent and live (Ezekiel 18:23, 30-32).

Nonetheless Robinson makes it crystal clear that, although "any religious discussion" is specifically exempted, the discussion of Fred Phelps would not qualify if Bill C415 is passed into law. Robinson cannot have it both ways. If he shuts down Phelps who argues on religious grounds, then he cannot say that "any religious discussion" is exempted. Hamel’s concern that Bill C-415 would impact negatively on Christian freedom to teach Biblical morality is reasonable and calls out for C-415's defeat.

In 1997 Sylvia MacEachern, editor of the Roman Catholic journal, The Orator, was interviewed on an Ottawa radio station. She said that she subscribed to the assertion in the Catechism of the Catholic Church that homosexual acts are intrinsically disordered and depraved. The hate-crimes unit of the Ottawa-Carleton Police placed MacEachern under investigation. The accusations against her were eventually dismissed because the hate propaganda provisions of the Criminal Code did not apply to sexually active homosexuals (Rory Leishman, London Free Press, June 18, 2002). But Bill C-415 would permit her to be prosecuted by the hate-crimes unit of the Ottawa-Carleton Police. Her crime? Affirming the morality of the Roman Catholic Church as stated in its official catechism.

Bill C-415 therefore would do nothing to ensure that "any religious discussion" would not result in hate crime prosecution. On the contrary, it would guarantee prosecution of those holding historical Christian morality. Churches and pastors as well as editors will be liable to prosecution permitted by gay-friendly and gay-influenced attorneys general responding to complaints by militant homosexual activists. Churches and pastors will therefore be burdened by costly legal defence even if they are found not guilty. No congregation or pastor has the financial resources to afford this kind of defence. Bill C-415 as it stands is an invitation to homosexual activists to shut down criticism by the threat of court costs and, if the critic is convicted, of imprisonment for two years.

Yes, if gay-bashing means assault and murder. Toronto lawyer Dani Shaw says, "If violence against gays and lesbians is the concern, it is worth noting that murder is already illegal in Canada, and so is assault" (ChristianWeek, Sept. 17, 2002). There is therefore no reason for Bill C-415 if threats to the life or physical integrity of homosexuals is the concern.

Shaw noted, "It seems the real problem is that gay and lesbian advocates are concerned about attitudes that can lead to violence against them, and are therefore attempting to criminalize the fostering of such attitudes."

The question is whether the basic thrust of Christian morality fosters attitudes that can lead to violence against gays and lesbians. The answer is found in Jesus Christ’s summary of the Old Testament laws: to love God with all you’ve got and to love your neighbour as yourself (Mark 12:29-31). St Paul also said that all the commandments are "summed up in this saying, namely, ‘You shall love your neighbour as yourself’" (Romans 13:9). One would think that homosexuals concerned about hateful attitudes would side with Christians and advocate love and caring rather than lobbying for repressive laws and the narrowing of freedom of religion to one’s closet.

The trouble is that many homosexuals so identify themselves with their sexual behaviour, that they see any opposition to their way of life as homophobic and hateful. Bill C-415 would give them the tools to silence their critics. Dani Shaw says, "The best response to such advocates is to remind them of the principles of liberal democracy–principles that include freedom of religion, freedom of expression and toleration of diverse viewpoints."

A recent conference on artificial reproductive technologies in Melbourne, Australia, included a paper that argued, "Democracy has nothing to do with morality; it is about respecting individual choice." Michael A. Casey counters that according to John Paul II, such a view is incompatible with genuine democracy. "‘A democracy without values easily turns into open or thinly disguised totalitarianism,’ and unless values ‘are grounded in the very nature of the human person’ they will serve merely as ‘the justification or legitimation of a system,’ rather than as ‘the safeguard of all that is human in any system’" ("How to Think About Globalization," in First Things, Oct. 2002, No. 126, p. 52).

Casey quotes George Weigel: "‘Democracy is a way of public life, a way of being a political community,’ and if it is going to work it requires a critical mass of people ‘who have made their own the values, the moral truths, that teach us to be civil, tolerant, respectful–in a word, democratic.’" Casey says, "As Leszek Kolakowski has pointed out, without truth, the freedom of democracy becomes a realm where anything is possible. This is not a triumph for the human spirit, but a profound defeat."

The importance of religion for human freedom is acknowledged by Casey is these words: "...far from being a critical obstacle, religion is in fact the critical ingredient in making freedom around the world possible" (p. 55).

It is no accident that the beginning of freedom, the Magna Carta of 1215, was championed by a Christian archbishop, Stephen Langton of Canterbury. Is it an accident that, of the fundamental freedoms mentioned in the Canadian Charter of Rights and Freedoms, the first is "freedom of conscience and religion"? A bill that would limit freedom of religion to private thought and practice in a closet has no place in Canada. Removing religious discussion from the public square would inevitably jeopardize the other freedoms that Canadians cherish. Bill C-415 should therefore be defeated.

Many homosexuals and at least one judge do not appreciate the Christian distinction between loving the sinner and hating the sin. In the recent case of high school student Marc Hall versus the Durham Catholic District School Board, Ontario Judge Robert MacKinnon concurred with lawyer David Corbett that it was nonsensical for Catholics to say "It’s all right to be gay as long as you don’t act gay." This is a loaded variation on the distinction between having an inclination toward homosexuality and acting on it (or, between loving the sinner and hating the sin).

Christian teaching does not condemn having an inclination or being tempted (Jesus was tempted in all points as we are, Hebrews 4:15), but it does condemn yielding to temptation and sinning--the condemnation intended to lead to repentance and life (Ezekiel 18:23, 30-32; 2 Corinthians 7:10). In any case Judge MacKinnon should think again, for if he cannot distinguish between loving the sinner but hating the sin, how can he expect a jury to accept his counsel that the person charged with a crime is innocent until proven guilty beyond all reasonable doubt?

Those of us who have lost a parent to cancer know perfectly well the distinction between loving one’s parent and hating the cancer that would kill that parent. Any sin has the potential for addicting a person and keeping him forever from the abundant life that Jesus died to provide for us. It is entirely reasonable to love the sinner (and we are all sinners) but hate the sin that would destroy us. Those Christians who oppose Bill C-415 on Christian grounds do not hate homosexuals. It is because we love our neighbours that we care enough bear witness to the truth that homosexuality and many other behaviours are not only unhealthy but destructive of one’s journey to the kingdom of God (1 Corinthians 6:9-11).

1. Sexual orientation is an undefined term open to including paederasty, polygamy and other illegal behaviours. An undefined term makes bad law.

2. Sexual orientation has nothing in common with the categories of colour, race, religion or ethnic origin. Including it in the genocide and hate propaganda laws would be inappropriate.

3. Bill C-415 would lead to prosecution of people quoting the Bible’s prohibitions against homosexuality or publicly stating Christian moral objections to homosexuality.

4. Gay-bashing is already a crime. Bill C-415 is not needed to make it a crime.

5. Bill C-415 would make criticism of and opposition to homosexual behaviour a crime. In other words, Bill C-415 would severely limit fundamental Charter freedoms, specifically: freedom of religion and freedom of expression.