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Time to Challenge and ComplyTime to Challenge and Comply

Time to Challenge and Comply

When it comes to Canada’s recently passed ban on “conversion therapy," Don Hutchinson argues that it’s bad legislation, not good faith religious counselling, that should be put on trial.

Don Hutchinson
5 minute read

The provisions of Bill C-4, An Act to amend the Criminal Code (conversion therapy), will be incorporated into the Criminal Code as law effective January 7, 2022. It may be poorly drafted legislation, improperly passed through both chambers of Canada’s parliament, but it will still be the law.

A question many are asking is, what can we do about it?

The short answer is twofold: challenge and comply. 

C-4 was introduced as a successor to two previous government bills, which failed to pass in the 43rd Parliament. (Details in my article, The Need for A Stable Influence.) But C-4 contains new and different language from its predecessors, a distinction important to how the bill may be challenged.

First, Parliament passed the bill improperly.

The Minister of Justice was silent as C-4 proceeded through the House of Commons and Senate in violation of section 4.2 of the Department of Justice Act. It was Minister Lametti’s responsibility to provide Parliament with “a statement that sets out potential effects of the Bill on the rights and freedoms that are guaranteed by the Canadian Charter of Rights and Freedoms” before it could legally proceed beyond first reading in the House. Section 4.2 was put in place by a Trudeau Government amendment to the Department of Justice Act in 2018.

The Department of Justice reports the required CharterStatement was filed in the House of Commons on Sunday, December 6 (a date on which the House was empty) and became publicly available―accessible to members of parliament and senators for the first time―on December 8, the day C-4 was granted royal assent by Governor-General Mary Simon.

Customarily, the opposition would demand a minister’s resignation for such dereliction of duty. But on this file, the opposition was complicit.

Secondly, the premise and preamble of the legislation are deeply flawed.

Minister Lametti and proponents of the bill publicly referred to the bill’s intent as targeting involuntary and torturous practices linked by personal testimony with historic incidents of conversion therapy. Lametti publicly assured that good faith conversations would not be captured. But that’s not how the preamble or text of C-4 reads.

The preamble in legislation is important. It is used in the courts to assist with interpreting legislation’s purpose and provisions.

The preamble for this law describes as “myth,” “stereotype,” and “harmful” the idea that a Canadian might consider heterosexuality, in conformity with gender expression as defined by sex assigned at birth, as preferred. The reference to the mythical nature of such misguided belief has been argued to be provocatively directed at religious beliefs, held in several faith communities, that differ from the government’s assertions.

André Pratte noted in a recent article on Quebec’s Bill 21 law on laicité that Quebec elites consider religion to be “founded on mythical stories and dogmas.” The religion-is-myth theme hinted at in C-4 was the crux of two recent cases at the Supreme Court of Canada (SCoC), both concerning Quebec education curriculum that mandated teaching contemporary religion as being equivalent to ancient myths.

In Loyola High School v. Quebec (2015) the SCoC reinforced the importance of state neutrality in regard to religion. The concept is an echo of the Court’s first Charter decision dealing with religious freedom in R. v. Big M Drug Mart (1985) when it struck down the federal Lord’s Day Act, intended to provide a nationwide common day of rest, for not being neutral toward religion in its expressed purpose. The state neutrality idea as applied in Reference re Same-Sex Marriage (2004) shaped a decision that acknowledged the federal government had the constitutional authority to change the definition of marriage for civil purposes, and also responsibility to ensure freedom for those who held to the historic one-woman-with-one-man definition for religious reasons.

In S.L. v. Commission scolaire (2012) the SCoC endorsed state neutrality while also offering comment on the concept of harm. As the Court earlier noted in Big M Drug Mart, it is not sufficient to assert something is harmful; establishing harm requires evidence.

The preamble is loaded with imprudent language.

Thirdly, a Charter challenge could easily rest on several prospective Charter infringements identified in the Department of Justice (DoJ) Charter Statement for C-4. Most would have been addressed by including the kind of definition for conversion therapy recommended by religious individuals and organizations, as well as by therapists and representatives from the LGBT+ community, in the hundreds of written and verbal submissions in response to C-4’s predecessor, Bill C-6 from the previous Parliament.

From the DoJ Charter Statement (adding Charter section wording in “[ ]”):

A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative.

Because the prohibition on causing another person to undergo conversion therapy may affect the ability of individuals to engage in practices that have a connection with their own sincerely held religious beliefs, it has the potential to engage the freedom of religion. [s. 2 Everyone has the following fundamental freedoms: (a) freedom of conscience and religion]

Because the offence of providing conversion therapy would prohibit discussions between providers and recipients of conversion therapy, it engages section 2(b). [s. 2(b) freedom of thought, belief, opinion and expression]

To the extent that the offence would prevent individuals who are capable of making their own treatment decisions and who wish to obtain conversion therapy from doing so, it potentially engages the right to security of the person and the broader right to liberty. [s.7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.]

Interventions that support an individual’s exploration and development of their own identity would not be prohibited, provided that they are not based on an assumption that a particular sexual orientation, gender identity or gender expression is to be preferred over another.

In response, faith leaders are encouraged not to rely solely on government prosecutors to respect good faith conversation, or on Canadian courts either to strike down the legislation based on its overly broad nature or to interpret it narrowly to exclude good faith conversation.

While the process of legal challenge is underway, Canadians need to comply with the law or be prepared to contend with its potential consequences. 

What does it mean for the church to comply?

Continue being the church, i.e. persist in sincerely held beliefs and the practices connected with those beliefs. Both are safeguarded by religious freedom as understood before and after Charter recognition. 

Scripture has not changed. Its teaching supports living a life, individually and in community, that follows the teaching and person of Jesus―the Way, the Truth, and the Life (John 14:6). 

Bill C-4 is intended to have a chilling effect. Be not afraid. Be faithful. Be consistent. Be compassionate. Be warm against the chill. Be wise. “The fruit of the Spirit is love, joy, peace, patience, kindness, goodness, faithfulness, gentleness, and self-control” (Galatians 5:22, 23).

Should a pastor, teacher, counsellor, or parent end up before the courts for good faith preaching, teaching or conversation, faithful consistency and compassion will be a witness for Christ and to the court. On trial instead may well be the public commitments made by Minister Lametti, and the poorly drafted legislation put forward by his government.

Photo by Daniel Tseng on Unsplash.com

Convivium publishes texts that do not necessarily reflect the views held by Cardus, the Convivium team, or its editors. In the spirit of discussion, dialogue, and debate, we ask readers to bear in mind that publication does not equal endorsement. Thanks for reading. Join the conversation!

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