Re: Bill C-250

“The term ‘hatred’ in s. 319(2) is capable of denoting a wide range of diverse emotions and is highly subjective, making it difficult to ensure that only cases meriting prosecution are pursued and that only those whose conduct is calculated to dissolve the social bonds of society are convicted.”

Bill C- 250 is the private member’s bill introduced by the homosexual Member of Parliament Svend Robinson which calls for adding “sexual orientation” to the Hate Crimes Act. After being approved by the Liberals, NDP and Bloc Québecois in the House of Commons, it “died” together with a dozen other bills in the Senate when outgoing Prime Minister Jean Chrétien prorogued Parliament. But will it be resurrected by the Martin government? -- Editor

The Propaganda War

In their now-famous “homosexual manifesto”, After the Ball: How America Will Conquer Its Fear and Hatred of Gays in the 90s (1989), Harvard professors Marshall Kirk and Hunter Madsen (both homosexuals) proposed a “propaganda war” against “straight America”. They proposed “dismissing the movement’s outworn techniques in favour of carefully calculated public relations propaganda, … laying groundwork for the next stage of the gay revolution, and its ultimate victory over bigotry.” Their “blueprint” unashamedly called for the use of marketing techniques that all but the most naive would call manipulative, deceptive, and “brainwashing.”

At one point they suggest that the focus of the propaganda should be on the “ambivalent skeptics”, the “conversion” of whom will then help neutralize the “intransigents”:

“Some intransigents....feel compelled to adhere rigidly to an authoritarian belief structure (e.g. an orthodox religion) that condemns homosexuality. Our primary objective regarding diehard homo-haters of this sort is to cow and silence them as far as possible, not to convert or even desensitize them. … The ambivalent skeptics are our most promising target. If we can win them over, produce a major realignment solidly in favour of gay rights, the intransigents (like the racists of twenty years ago) will eventually be effectively silenced by both law and polite society” (p. 176).

Bill C-250

Svend Robinson’s recent success in getting his private member’s bill, Bill C-250, through the House of Commons, and on to the Senate for final consideration (see C.I., November 2003 p. 21), is perhaps a bellweather sign, both of the faithfulness of Canadian gay rights activists in following the blueprint of Kirk and Madsen, and of the persecution to come for faithful Roman Catholics who continue to resist the social and political agenda of the homosexualist movement.

To review: Bill C-250 effectively amends the Hate Propaganda sections of the Criminal Code (sections 318 and 319) by adding “sexual orientation” to the definition of “identifiable group”, so that it reads: …”identifiable group means any section of the public distinguished by colour, race, religion, ethnic origin, or sexual orientation.”

Everyone wants to know: will it be applied fairly to those who oppose, in good faith, the homosexualist agenda? Svend Robinson’s assurances to the contrary, in this writer’s opinion, the proclamation of this Bill will be a dark day in Canada’s history.

Section 319 (1)

Section 319 is divided into two separate offences [subsections (1) and (2)]. The first offence is the crime of “inciting hatred against any identifiable group” by “communicating statements in any public place”, “whereby such incitement is likely to lead to a breach of the peace.” It is important to note that, unlike the case with the second offence, there are no prescribed defences available to persons accused of this offence. It is difficult to predict how this offence would be interpreted by the courts if Bill C-250 is eventually proclaimed because, to this writer’s knowledge, there are no reported cases on subsection 319(1) as it is currently written. Nevertheless, at the risk of stating the obvious, if homosexuals are added as an “identifiable group” for the purposes of this offence, this will have a further “chilling effect” on the willingness of opponents of the homosexualist agenda to speak publicly against it.

Meaning of Hatred

What does “hatred” mean? If I speak at a church, warning the congregation that the push for granting the rights of marriage to same-sex couples is part of a larger, deliberate agenda to destroy “marriage” as we know it and more generally eradicate the influence of Christianity in the Western world, quoting the words of leading and influential gay rights activists from around the world to support my allegation, will I have committed this offence?

In the context of section 319(2), the Supreme Court of Canada has said (in Keegstra ) that the word “hatred” “must be construed as encompassing only the most severe and deeply felt form of opprobrium.” Am I supposed to assume that the provincial attorneys-general, local crown attorneys and the courts would similarly narrowly construe “hatred” in the context of section 319(1)? When Svend Robinson and other Canadian activists attach the label of “hatred” to simple and sincere statements of faith in support of keeping traditional marriage on a pedestal, above all other kinds of relationships, by such people as Bishop Henry of Calgary, Archbishop Exner of Vancouver, and even Pope John Paul II, am I supposed to suspend my good judgment, and trust the assurances expressed by a majority of the Justices of the Supreme Court who happened to be around in 1990 when their judgment in Keegstra was released? To the contrary, I think it would be more prudent to heed the warnings of the dissenting Justices in that case, who said:

“The term ‘hatred’ in s. 319(2) is capable of denoting a wide range of diverse emotions and is highly subjective, making it difficult to ensure that only cases meriting prosecution are pursued and that only those whose conduct is calculated to dissolve the social bonds of society are convicted.”

Moreover, to be convicted of a section 319(1) offence, there is no requirement, as there is in section 319(2), that the “incitement” be proven to have been “wilful”: i.e., that the speaker’s deliberate intention was to “incite hatred”. Finally, if it is my misfortune, as a speaker, to have the local gay activist group learn of my talk in advance, and show up to demonstrate outside the church and/or damage property and assault parishioners, would that result, ipso facto, be accepted by the court as proof that my “incitement” was “likely to lead to a breach of the peace”? Is the test objective, subjective, or part objective and part subjective? Who knows?

Section 319 (2): Wilfully Promoting Hatred

The second offence in section 319, set out in subsection (2), is the offence that has generated much more discussion of late, particularly because of the prescribed defences set out in subsection (3). This is the offence of “wilfully promoting hatred” against “any identifiable group” “by communicating statements, other than in private conversation”.

Because the Supreme Court of Canada has already definitively ruled, in Keegstra, that sections 319(2) and (3) are constitutional, there is no point rehashing here whether or not these provisions, as amended by Bill C-250, would trample on the Charter rights of opponents of the homosexualist agenda. Moreover, we have a better idea of what the courts will say these provisions mean if a future case comes to trial. However, there still remain a few interesting unanswered questions that will arise because the law will be applied in a new context if Bill C-250 is proclaimed into law.

On the meaning of the phrase “wilful promotion”, the majority of the Supreme Court in Keegstra had this to say:

“The word ‘wilfully’ imports into the offence a stringent standard of mens rea which significantly restricts the reach of s. 319(2) by necessitating the proof of either an intent to promote hatred or knowledge of the substantial certainty of such a consequence.”

The majority then goes on to state the assurance, previously quoted, that “hatred” has a narrow meaning. It further acknowledges a danger arising from its conclusion that the test for establishing that hatred was “wilfully promoted” should be “subjective”, but then dismisses the concern:

“It was also argued on appeal ... that regardless of the definition given ‘hatred’ by the courts, the trier of fact must make a subjective decision in deciding whether ‘hatred’ is indeed what the accused intended to promote. To determine if the promotion of hatred was intended, the trier will usually make an inference as to the necessary mens rea based upon the statements made. The subjective nature of this inferential exercise is said to create a danger that hatred of the type required by s. 319(2) will be found, though unjustifiably, in every instance where the trier dislikes or finds offensive the content of the accused’s statements.

The danger that a trier will improperly infer hatred from statements he or she personally finds offensive cannot be dismissed lightly, yet I do not think that the subjectivity inherent in determining whether the accused intended to promote hatred, as opposed to an emotion involving a lesser degree of antipathy, represents an unbridled license to extend the scope of the offence” [p. 45 - emphasis added].

Given that the Supreme Court of Canada has accepted the assertion, without credible supporting sociological evidence, that “gay bashing” is a real problem in Canada, and other evidence of clear pro-gay bias, opponents of the homosexualist agenda, at the very least, have reason to fear that the courts will also make the next leap of logic, and find that pro-marriage speakers “must know” that the statements they typically make at public events will promote hatred of homosexuals. The “danger” that the Supreme Court admits is inherent in s. 319 is very, very real in the context of speech related to the homosexualist agenda.

The Right to Disapprove

It is true that the Supreme Court of Canada has not definitively ruled that Canadians do not have a constitutional right to morally disapprove of homosexual conduct and relationships. Many individual judges apparently recognize that to rule so would be a grave violation of the freedoms of expression, conscience and religion. For example, in the latest gay rights case to reach the court, Chamberlain v. Surrey School District No. 36, Justice Gonthier, speaking in dissent, said:

“ … [N]othing in Vriend v. Alberta, [1998] 1 S.C.R. 493, or the existing s. 15 case law speaks to a constitutionally enforced inability of Canadian citizens to morally disapprove of homosexual behaviour or relationships: it is a feeble notion of pluralism that transforms ‘tolerance’ into ‘mandated approval or acceptance’. In my view, the inherent dignity of the individual not only survives such moral disapproval, but to insist on the alternative risks treating another person in a manner inconsistent with their human dignity: there is a potential for a collision of dignities. Surely a person’s s. 2(a) or s. 2(b) Charter right to hold beliefs which disapprove of the conduct of others cannot be obliterated by another person’s s. 15 rights, just as a person’s s. 15 rights cannot be trumped by s. 2(a) or 2(b) rights”[para. 132]

Notwithstanding the above comment, the reader who might otherwise be buoyed by Justice Gonthier’s comment should recognize the following:

In the context of my hypothetical case, therefore, readers of Catholic Insight have every reason to fear that a speech given to urge people to oppose a political agenda sought by homosexualist activists would be subjectively judged by the court to be motivated by a “mean-spirited animus” against homosexuals as an “identifiable group”, simply because the court dislikes the statements made by the speaker. From there, it is a short step to conclude that his or her statements constitute the “wilful promotion of hatred” against homosexuals.

A Scary Ruling: What is Truth?

Let’s now turn our attention to the specific defences outlined in section 319(3) of the Criminal Code.

First of all, no person is to be convicted of an offence under s. 319(2) if he establishes that the statements communicated were true. On this point, the majority’s judgment in Keegstra is downright scary. The majority disputed the efficacy of, but grudgingly accepted, the government’s policy decision to protect from criminal censure persons who intentionally use “truthful” statements to achieve “harmful” ends. Therefore, the defence of “truth” will only apply if the accused’s statements are of the kind that are susceptible to a true/false categorization. The majority said:

It is rightly pointed out that many (if not most) of the communications coming within s. 319(2) are not susceptible to a true/false categorization, existing instead as ideas or opinions in the mind of the communicator. The accused could therefore sincerely believe in the worth of his or her viewpoint and yet be unable to utilize the s. 319(3)(a) defence.... Finally, one might wonder if the courts are not on dangerous ground in attempting to distinguish between truthfulness and falsehood. The potential for bias in making such a determination, be it intentional or subconscious, is a danger frequently noted in freedom of expression theory (this potential is equally evident in s. 319(3)(c), insofar as ideas are assessed in light of ‘reasonableness’ and ‘public benefit’)” [p. 47].

The court’s attitude to these concerns? So what. In the context of the debate over whether the homosexualist agenda is good for the family and society, opponents are therefore left in a precarious position. In my hypothetical case, I could of course prove that certain homosexual leaders made the statements that I quote, but is that really what a court would be interested in? The bottom line statement of my speech would be that those pushing the homosexualist agenda have the same nefarious goals as the activists quoted, and therefore all persons pushing it should be distrusted and opposed. This is the “statement” that I might have to prove is “true.” Again, is such a statement really capable of such an assessment? Probably not.

Other pro-family speakers are likely to continue to make statements arguing that extending the rights and privileges of the married to homosexual unions will harm traditional marriage and undermine society in general. Of course, no society in the modern era has to date tried extending the concept of “marriage” in this way! The courts have turned Canada into a giant sociological experiment! The best we can do is point to historical analysis of the downfall of ancient societies, as well as sociological analysis of the effect of easy, unilateral divorce, and giving marriage-like rights to “common law” unions on the institution of marriage, and extrapolate from the conclusions reached after such analyses. In many cases, therefore, the availability of the defence of “truth” may turn on whether your “statements” are capable of being assessed in terms of truth or falsity. In Keegstra, the Supreme Court of Canada sent a clear signal that it will not be enough to show that your historical or sociological analysis is sound and that your conclusions based on that analysis are rational and reasonable. If you cannot prove they are “true”, you will be convicted.

Another defence in section 319(3) says that there is to be no conviction if “in good faith” the accused “expressed or attempted to establish by argument an opinion on a religious subject” [s. 319(3)(b)]. The Supreme Court did not analyze this defence in Keegstra, as it was not relevant to the facts of that case. It seems to me that this defence will of course be of no assistance to agnostics or atheists who nevertheless oppose, on sociological or medical or purely scientific grounds, the homosexualist agenda. Consider also whether “religious” speakers will be able to rely on this defence if in the course of their presentations they use only secular arguments to support statements against the homosexualist agenda that come within s. 319(2).

Finally, section 319(3)(c) provides that there is to be no conviction 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.” As the majority in Keegstra noted, the same problems that will arise under the “truth” defence will arise under this defence as well. A prediction that “gay marriage” will be harmful to the institution of marriage generally is an opinion, not a statement capable of being found “true” or “false”. Therefore, in the case of a speaker making such a statement, the defence will not be available [all three elements of the defence must be proved to succeed].

How the Activists Shaped the Discussion

In “Selling Homosexuality to America”, author Paul E. Rondeau, a doctoral student in communications studies with a focus in rhetoric and persuasion, explores how gay rights activists use rhetoric, psychology, social psychology, and the media — all the elements of modern marketing— to position homosexuality in order to frame what is discussed in the public arena and how it is discussed. He says:

In essence, when it comes to homosexuality, activists want to shape “what everyone knows” and “what everyone takes for granted” even if everyone does not really know and even if it should not be taken for granted.

He also discusses the “propaganda war” proposed by Marshall Kirk and Hunter Madsen in After the Ball: How America Will Conquer Its Fear and Hatred of Gays in the 90s (1989). Rondeau says:

“The war goal was to force acceptance of homosexual culture into the mainstream, to silence opposition, and ultimately to convert American society. This “stunningly systematic and controversial blueprint … of carefully calculated public relations propaganda” [at cover] has value as a template to guide discussion of how the homosexual movement hopes to achieve social power and codify homosexual behaviour as a right. Warfare-type tactics are espoused to counter such evils as “homohatred” from being induced in children at an early age, even children who later turn out to be homosexual. People who dissent based on faith are defined as religious homohaters.”

In marketing and psychological warfare circles, the kind of warfare [name-calling, shouting down] of which Rondeau speaks is often referred to as “jamming”. Sadly, “jamming” is something pro-family advocates have long had to endure from homosexualist “warriors”. Ladies and gentlemen, with the expected eventual proclamation of Bill C-250, many of us will be able to say that we have been “jammed” by the homosexualist activists and “silenced” by our own government.

Pray for Canada.
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Updated: Jan 27th, 2004 - 20:45:36