Religious freedom is not more important than other freedoms

[caption id="attachment_252" align="alignright" width="299" caption="Shamelessly stolen (yet not hotlinked) from slapupsidethehead.com"][/caption]Ok. So back during the last Canadian General Election campaign, David Popescu confirmed in a telephone interview what he had said at a candidates' forum held at a Sudbury high school:

"A young man asked me what I think of homosexual marriages and I said I think homosexuals should be executed," he said. "My whole reason for running is the Bible and the Bible couldn't be more clear on that point" (via Sudbury Star). 

Fantastic. Now, months later, Popescu is being charged under CCC §319(2), Wilful Promotion of Hatred.It isn't exactly clear to me why it has taken 6 months to decide whether someone who publicly claims that 

homosexuals should be executed

counts as someone 

who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group (CCC §319(2)). 

CCC §318(4) clearly defines "identifiable group" as 'any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation.'Perhaps the Crown's reticence in laying a charge was due to the positive defences for the charge. I presume that Popescu's defence will be predicated on CCC §319(3)(b):

(3) No person shall be convicted of an offence under subsection (2)

(b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;

Issues with biblical exegesis on the point notwithstanding, it certainly looks like Popescu is going to skate on this one. The good faith aspect of the defence is easily shown is he has advocated the deaths of homosexuals on religious grounds in the past. he clearly means for the Bible to stand as justification for his view.However, it certainly raises a few questions about the function of the hate propaganda statue. Consider the full list of positive defences for §319(2):

(3) No person shall be convicted of an offence under subsection (2)

(a) if he establishes that the statements communicated were true;

(b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;

(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or

(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

It seems patently clear that (a) and (d) do not apply. The statement was a normative one and was asserted for effect rather than as a mere example of what should be avoided. It certainly seems that (b) is operable here: Popescu clearly means for the Bible to justify his claim. I further suppose that (c) could get some traction here: it would require a long argument to establish that homosexuality in general was a matter of public interest. Nevertheless, it sure looks like Popescu will skate.On the other hand, perhaps the delay in laying the charge wasn't due to weighing whether the positive defences were likely to hold here, but in deciding whether to lay charges under subsection (1) or (2). CCC §319(1) states

Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

Please note that the positive defences in subsection (3) do not apply here. I think that it is likely that the Crown interprets 'likely to lead to a breach of the peace' as an imminent threat to members of the identifiable group. I tend to agree: it seems very unlikely that anyone in that particular audience was likely to march out and 'lynch a queer' because Popescu had them all wound up.We could ask, though, how many teenagers in that high school audience who were gay interpreted this claim as a direct call for 'god-fearing' straight people to come and kill them? Should this claim—that gays should be executed—by someone running for public office be permitted just because some religious text seems to support such an interpretation? Our friend at Slap Upside the Head certainly does not think so:

Reporting a death threat is not oppression or intolerance; investigating a death threat is not oppression or intolerance; charging and prosecuting those who utter death threats is not oppression or intolerance. I will not accept that threatening an entire group of people with death is OK because one interprets their religious texts as such (via Slap Upside The Head).

I tend to agree. Now I can hear the objections now: 'it's an infringement of my religious rights!!' I agree wholeheartedly. Section 2(a) of the Charter of Rights and Freedoms clearly guarantees 'freedom of conscience and religion'. However, all of our rights are filtered through section 1 of the charter:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

R. v. Oakes [1986] 1 S.C.R. 103 sets out the test as to whether a violation of the Charter can be so justified. If a statute violates any portion of the Charter, the values of a 'free and democratic society' must be kept in mind, i.e.,

respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.

The first step of the test requires that the violation of the Charter must be 'an objective relate to concerns which are pressing and substantial in a free and democratic society', and the second it must be shown 'that the means chosen are reasonable and demonstrably justified'.So, how exactly has the Court justified the clear violation of the Charter that CCC §319(2) represents?

Section 319(2) of the Code constitutes a reasonable limit upon freedom of expression.  Parliament's objective of preventing the harm caused by hate propaganda is of sufficient importance to warrant overriding a constitutional freedom.  Parliament has recognized the substantial harm that can flow from hate propaganda and, in trying to prevent the pain suffered by target group members and to reduce racial, ethnic and religious tension and perhaps even violence in Canada, has decided to suppress the wilful promotion of hatred against identifiable groups (R. v. Keegstra, [1990] 3 S.C.R. 697, my emphasis).

Basically, there is 'substantial harm' and 'pain suffered by target groups' and an attempt to 'reduce [...] perhaps even violence' and this justifies a limit on freedom of expression. Clearly, claiming in public that homosexuals should be executed is promoting hatred. Clearly, claiming in public that homosexuals should be executed 'creates 'substantial harm' in the fear that is created. Clearly, claiming in public that homosexuals should be executed creates 'pain suffered by target group members.' Clearly, claiming in public that homosexuals should be executed increases the probability of violence in Canada against homosexuals. If §319(2) expresses a justifiable limit upon freedom of expression, why does it not express a justifiable limit on freedom of religion? After all, the sub-paragraphs of §2 of the Charter are not ordered in such a way as to see one as more important than another. Why should we see religious beliefs as more important than any other kind of belief? I submit that we should not. Hateful, spiteful ideas that promote hatred towards an identifiable group that cause substantial harm, pain, suffering, and tend to lead to violence should be opposed everywhere and all the time. 

In fact, I don’t believe that resistance to any of the harmful, hateful messages often repeated by those shielding themselves behind religious texts is oppression or intolerance. Tolerance has never meant submission into being treated as inferior and unworthy of human dignities (via Slap Upside The Head).

That these hateful, spiteful ideas are contained within some document considered 'holy' by some should not be an excuse for promulgating them. Perhaps the more important lesson to be learned here is that such a document, interpreted by some in a hateful and spiteful way, isn't deserving the description 'holy'.