It was a pleasure to join Greg Musselman on Closer to the Fire, the Voice of the Martyrs Canada podcast, to discuss the public health orders and the Church in Canada in light of Pastor James Coates’ detention in Alberta.
(40 minutes)
When Covid Constraints Come to Church
Originally published at Convivium on March 4, 2021.
Don Hutchinson considers the complementary roles of Church and State vis-à-vis the pandemic and public health.
Governments have reacted, some say overreacted, to a declared pandemic by moving beyond giving advice for the good of our health to legislating behavioural constraints. Those restrictions have come to church, generating contradictory responses.
Wash your hands, wear a mask, and social distancing are good advice. Most of us have heard ‘wash your hands’ since childhood. A friend who taught in Japan commented many there wear a mask in public at the first sign of illness, to protect others from getting what they’ve got. Most of us have kept our distance from someone who had noticeable signs of illness.
Wash your hands, wear a mask, and social distancing are advice, until they’re compulsory.
Resistance arose swiftly to standardized medically-informed action taken by governments on the political left and political right from coast to coast to coast.
The summer of 2020 featured public demonstrations that laid waste COVID rules. Subsequent COVID fatigue, a.k.a. the pandemic wall, primed more Canadians for civil disobedience when governments again moved from official advice to enforced constraint.
Protesters gathered outside city halls and in front of legislatures to oppose COVID constrictions.
Divisive tensions experienced in culture have also shown up in church.
Several organizers of public protests expressed that their Christian faith compelled their action. Most, in turn, attend churches that are disputing government limitations on religious gatherings.
A year ago, the vast majority of pastors shifted to accommodate government orders, employing internet conduits and reduced attendance church assembly with social distancing, masks, and hand sanitizer. A small number insisted on gathering without observing stipulated parameters, and consider love for neighbour extends to demonstrably championing neighbours’ economic and business interests. Community-minded elements in both groups continued ministries such as food banks, small group AA gatherings, cold weather emergency shelters, etc.
How can there be such incongruity within the Body of Christ, people who read a common Book and embrace a shared desire to follow Jesus and love our neighbours?
Two key ingredients distinguish conformers from dissenters: differing interpretations of constitutionally guaranteed religious freedom; and, differing interpretations of Scripture. Constitution first.
A long history of religious freedom is summarily stated in section 2 of the Canadian Charter or Rights and Freedoms (the Charter).
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion
Section 1, however, clarifies that freedom of religion is not absolute.
1. 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.
Dissenters dispute that the medically recommended and politically sanctioned COVID-pandemic policies are demonstrably justified. Legal counsel for this group note the Charter also guarantees freedom of assembly and freedom of expression; exercised in places of worship as well as in public spaces outside city halls and legislatures.
Decisions of the Supreme Court of Canada outline principles that merit consideration.
First, it’s irrelevant to the law that dissenters may be in the minority in their understanding of Scripture. The Court’s decision in Amselem (2004) concluded that religious freedom includes practices connected with sincerely held religious beliefs, regardless of whether those beliefs align with expert theological opinions or the majority in the religious community.
Second, government is required to be neutral, neither favouring nor hindering a particular religious belief, or non-belief as it were, through government policy (see Loyola High School (2015)). Dissenters contest whether current health regulations are neutral in regard to places of worship.
Third, in 2009 the Court decided the Government of Alberta was justified in requiring photographs on all drivers’ licenses because of national security concerns, even though the requirement violated the religious freedom of the Hutterian Brethren of Wilson Colony, Christians who believe being photographed violates the second commandment against making images or likenesses of anything in Heaven or on earth (Exodus 20:4). We’re in a declared emergency.
Now, the Bible. Accepted in both camps as the Word of God, there is disagreement about analysis and application.
A starting-point verse for divergence is Hebrews 10:25. Hebrews 10:23-25 in the Amplified Version reads:
23 Let us seize and hold tightly the confession of our hope without wavering, for He who promised is reliable and trustworthy and faithful [to His word]; 24 and let us consider [thoughtfully] how we may encourage one another to love and to do good deeds, 25 not forsaking our meeting together [as believers for worship and instruction], as is the habit of some, but encouraging one another; and all the more [faithfully] as you see the day [of Christ’s return] approaching.
A minority interpret verse 25 to command consistent face-to-face meeting of Christians, extending that application to Sunday church services unencumbered by COVID constraints. The majority consider the passage a plea to encourage those trying to live as stand-alone Christians to accept the accountability that comes with fellowship and discipleship.
Other key Scripture passages are found in the writings of Paul (Romans 13:1-7 and Titus 3:1-2) and Peter (1 Peter 2:13-17). Written in the setting of the first-century Roman Empire, within decades of Jesus’ crucifixion, most accept the instruction in Paul’s and Peter’s words in these passages to require submission by Christians to government authority. Paul wrote in Philippians that Jesus submitted, looking to the interests of others even unto his own death (Philippians 2:4-8).
The minority soften the submit-to-government directive, emphasizing verses in Romans 13 that describe the role of government as to do good. A contingent insist that government must submit to God. In Romans 13, Paul also writes that government is not a source of fear for people of good behaviour. The dissenters consider current government orders an example of government not doing good, not submitting to God, and punishing what they consider to be their good behaviour.
The minority also appeal to Biblically chronicled situations of civil disobedience. Consider two from the Old Testament, and a New Testament incident involving the same Peter who wrote “submit yourselves to [the authority of] every human institution for the sake of the Lord [to honor His name], whether it is to a king as one in a position of power, or to governors” (1 Peter 2:13-14 Amplified).
Two Old Testament examples are found in the Book of Daniel.
King Nebuchadnezzar commanded all to worship a statue of his image. The penalty for disobedience was to be thrown into a cremation-hot fiery furnace. Three Jewish men refused to comply. On sentencing they declared, “Our God whom we serve is able to rescue us from the furnace of blazing fire… But even if He does not, let it be known to you, O king, that we are not going to serve your gods or worship the golden image that you have set up!” (Daniel 3:17-18). They were prepared to accept the consequences of their religious obedience and their civil disobedience.
Health orders do not command worship of any god or person.
We read in Daniel 6 that Nebuchadnezzar’s successor, King Darius, issued a loyalty decree that no petition was to be made to any god or man except himself for 30 days. Daniel prayed to God three times each day before the edict, and continued to do so during the 30 days. Daniel knew this could mean being imprisoned overnight in a den of lions. He was.
There has been no prohibition on prayer, private or public.
A frequently cited New Testament example is the arrest of Peter, jailed for preaching the Gospel in the name of Jesus. Miraculously set free in the night, then arrested again the next day, in his defence Peter said, “We must obey God rather than men” (Acts 5:29). The authorities had him beaten and released. Peter knew the risk of preaching in the forbidden name.
Governments have not decreed that Christians stop sharing the Gospel, or the name of Jesus.
A small number of religious gatherings have contributed to COVID spread in British Columbia, Alberta, Ontario and Newfoundland. Let us not mistake regulation or prosecution for persecution. Let petitions continue to governments, and to God.
Fines issued for public health order violations and the imprisonment of a dissident Alberta pastor are before the courts, of law and public opinion. It is conceivable these cases will influence future understanding of religious freedom in Canada. For all our sakes, those Christians need the best legal representation available.
Christians who have submitted to government requirements, and petitioned for change rather than disobey, will have a different influence, likely less visible to the culture at large.
Christians petitioning God may open prison doors, and possibly change government policies without uttering a word in public.
The question of whether pandemic policies have gone too far will be settled in the courts, and at the ballot box.
The question of how our neighbours perceive the church’s response will be determined in a different way. “We are ambassadors for Christ, as though God were making His appeal through us” (2 Corinthians 5:20).
Bills C-6 and C-7: just new laws or new unjust laws?
Presentation for the National House of Prayer, January 20, 2021.
Thank you for praying for our nation. And, thank you for inviting me to share briefly today about the possible implications that would result from passage of Bills C-6 and C-7.
I’ll begin by talking about context and the importance of the context in which both bills arise.
A Martin Luther King, Jr. quote that circulated widely this past MLK Day reads:
How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law.
This inspirational quote is often used to inspire the challenge of any law deemed by the user of the quote as unjust. It is most often quoted without context and out of context. King was committed to peaceful protest against segregationist laws. He was prepared to accept the consequences for his peaceful protest, whether or not the law was changed as a result. King wrote these sentences in his Letter from a Birmingham Jail where he was in custody on 16 April 1963. He would be dead within five years, without seeing the change he was seeking.
Why start there in a brief talk about two bills currently before Canada’s Parliament?
Because context is important.
Let’s turn our thoughts to the context in which Bills C-6 and C-7 exist.
First, we live in a free and democratic society. Please do not mistake claims that religious freedom is or may be limited as a targeted assault on the Church. Please do not mistake the imposition of a political agenda that differs from yours as the end of our democracy.
Christians in Canada’s free and democratic society have rights and freedoms that exceed those found in many countries around the world. The challenge is to use our freedom wisely.
Second, the culture in which we live has been moving away from Judeo-Christian influence for well over half a century. Following the Second World War people left the Church disillusioned with a God who allowed two world wars and a depression during their lifetimes. They also succumbed to the developing distractions of 1) the automobile, with the allure of a Sunday drive at the end of a six day workweek, and 2) the television, which offered remote church in the morning and The Wonderful World of Disney in technicolour at 6:00 p.m.
One manifestation of rejecting the Church’s influence was the sexual revolution, which churns its wheels forward to this day. Slogans of the sexual revolution apply to sexual preferences, abortion, and more recently end-of-life decisions. “My body. My choice.”
Another manifestation was the shift in the language of human rights. Long before 1982’s Canadian Charter of Rights and Freedoms, the 1947 United Nations’ Universal Declaration of Human Rights and the increasing influence of American media were pushing Canadians culturally toward the pursuit of personal gratification and away from considerations of societal responsibility.
The Canadian Church has been wrestling with its place in society and its understanding, misunderstanding, and revised understanding, of the Bible since the 1960s.
Which brings me to my third point. The Bible.
Despite its devaluation by the broader culture, the Bible remains true from Genesis 1:1 to Revelation 22:21. God has not changed. God’s Word has not changed.
All 27 books of the New Testament were written in the context of a Church experiencing persecution. The persecution started with people in culture rejecting Christians because of their claim that Jesus of Nazareth was the Messiah. The persecution extended to government action because of cultural influence and because of the Christian claim that Jesus was the only King to whom they would bow.
We cannot disregard that history or the experience of persecuted Christians in nations around the world today. Canadian Christians cannot confine select passages of Scripture to the first-century and import others we like better into the twenty-first. Jesus said,
Blessed are the peacemakers, for they will be called children of God. Blessed are those who are persecuted because of righteousness, for theirs is the kingdom of heaven.
Blessed are you when people insult you, persecute you and falsely say all kinds of evil against you because of me. Rejoice and be glad, because great is your reward in heaven, for in the same way they persecuted the prophets who were before you. (Matthew 5:9-11 NIV)
Jesus also said,
Behold, I am sending you out as sheep in the midst of wolves, so be wise as serpents and innocent as doves. Beware of men, for they will deliver you over to courts… and you will be dragged before governors and kings for my sake, to bear witness. (Matthew 10:16-18, ESV)
Let’s consider Bills C-6 and C-7 in the context of democratic rights, claims to personal autonomy, and the Bible.
In our democracy every Canadian is equally placed to pursue the development, amendment or elimination of laws through elected legislatures and through the courts.
Bill C-7, medical assistance in dying, is the result of people pursuing their understanding of constitutional rights in the courts. Existing law was upheld in 1993[1] then overturned in 2015,[2] and Parliament decided to accept the direction of the courts.
Parliament has the constitutional authority to reject such decisions by the courts but has not.
The decision of the Supreme Court of Canada in the Carter case in 2015 cut against established Biblical, traditional, and legal understandings of the sanctity of human life and murder. But, the decision was accepted by the government as the direction of and for culture. The law shifted.
In 2016, Bill C-14 presented a legally conservative interpretation of the court’s direction.
The Trudeau Government’s decision not to appeal the overturning of C-14 in the 2019 Truchon[3] decision of a single judge of the Quebec Superior Court was puzzling. I don’t recall another instance where a government passed a law and the same government did not fight for that law to be upheld when it was challenged in court.
As citizens, we are constitutionally empowered to intercede on Bill C-7 through submissions to Parliament, in this instance the Senate where the bill is now being studied, and in the public square. The wise as serpents and innocent as doves personal presentations are perhaps best made by those whose lives and livelihoods may be most directly altered by the proposed changes to the law: those living with disabilities, and people employed in palliative care such as doctors, nurses and other caregivers. For those who submit to the governing authorities as directed by Paul in Romans 13:1-7[4] and by Peter in 1 Peter 2:13-17[5], public rallies are effectively proscribed due to pandemic regulations.
As Christians, we take our right to intercede a step further because as citizens of heaven we are called to pray. That’s the directive Paul gave in 1 Timothy 2,[6] to pray for our leaders that we might live in peace.
If C-7 becomes law with its current scope, and because healthcare is constitutionally provincial jurisdiction,[7] if provincial governments and medical associations do not step in with action supportive of freedom of conscience and religion to exempt the unwilling from compulsory involvement in acts they consider unconscionable, we can anticipate:
- Costly court challenges;
- Public hospitals will offer MAiD before palliative care, as some are already doing;
- Palliative care facilities and practitioners will step away from their practices; and,
- Capable, intelligent students will choose careers other than medicine if the taking of human life becomes a mandatory part of their training.
Bill C-6 is said to be intended to address the issue of involuntary conversion therapy. The concern behind the bill arises out of sometimes torturous practices, in which some members of the Church participated. Good intentions are not deliberated when practices used are demonstrably harmful.
As drafted, C-6 is an insidious bill with unpredictable results. The current structure of the bill leaves it open to interpretation and application that goes beyond the stated purpose, potentially exposing voluntary, non-harmful counselling and spiritual guidance to risk of criminal prosecution. The failure of the Trudeau Government and the House of Commons’ Justice Committee to stipulate a precise definition for what is illegal implores us to continue to advocate and to pray for careful definition. If the definition of conversion therapy is not properly refined before the bill is passed, we can anticipate:
- Costly court challenges, inviting the courts to define or strike down the law. The Supreme Court of Canada has long held that “a law will be found unconstitutionally vague if it is so lacking in precision as not to give sufficient guidance for legal debate;”[8]
- Because of fear, a chill effect on the ability to find counsellors and even the seeking of voluntary counselling by those struggling with questions of sexual orientation, gender identity, and gender expression;
- A similar chill effect on availability of spiritual counselling and direction, negatively influencing religious freedom;
- Rumours and false stories about conversion therapy charges and imprisonments;
- Enforcement of the law that will likely be complaint driven, but will empower targeted complaints by extremist activists in the LGBT+ community; and,
- Perhaps most unpredictably, more municipalities and provinces will implement similarly vague prohibitions on conversion therapy because they lack the clarity of direction the federal government will have squandered the opportunity to provide.
For those who have a deep seated understanding of the sanctity of human life and a biblically informed appreciation for parents, children and sexuality, the proposals in C-6 and C-7 represent new unjust laws, out of harmony with the moral law of God.
But most Canadians have little interest in these bills. They are unconcerned about God and they do not perceive their personal rights or autonomy to be affected. For them, these are just new laws, being put in place to fit with the evolving cultural understanding of morality. C-7 mirrors the thought it is more humane to give a lethal injection to a dying pet than not to give one to a person who no longer desires to live. C-6 affirms that judging others’ sexual proclivities is no one else’s concern.
It took commitment, effort and time to convince Canadians to accept these ideas.
It will take commitment, effort, and time to influence the culture to believe otherwise.
[1] Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519.
[2] Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331.
[3] Truchon c. Procureur général du Canada, 2019 QCCS 3792.
[4] Let every person be subject to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God. 2 Therefore whoever resists the authorities resists what God has appointed, and those who resist will incur judgment. 3 For rulers are not a terror to good conduct, but to bad. Would you have no fear of the one who is in authority? Then do what is good, and you will receive his approval, 4 for he is God’s servant for your good. But if you do wrong, be afraid, for he does not bear the sword in vain. For he is the servant of God, an avenger who carries out God’s wrath on the wrongdoer. 5 Therefore one must be in subjection, not only to avoid God’s wrath but also for the sake of conscience. 6 For because of this you also pay taxes, for the authorities are ministers of God, attending to this very thing. 7 Pay to all what is owed to them: taxes to whom taxes are owed, revenue to whom revenue is owed, respect to whom respect is owed, honor to whom honor is owed. (Romans 13:1-7 ESV)
[5] Be subject for the Lord’s sake to every human institution, whether it be to the emperor as supreme, 14 or to governors as sent by him to punish those who do evil and to praise those who do good. 15 For this is the will of God, that by doing good you should put to silence the ignorance of foolish people. 16 Live as people who are free, not using your freedom as a cover-up for evil, but living as servants of God. 17 Honor everyone. Love the brotherhood. Fear God. Honor the emperor. (1 Peter 2:13-17 ESV)
[6] First of all, then, I urge that supplications, prayers, intercessions, and thanksgivings be made for all people, 2 for kings and all who are in high positions, that we may lead a peaceful and quiet life, godly and dignified in every way. 3 This is good, and it is pleasing in the sight of God our Savior. (1 Timothy 2:1-3 ESV)
[7] Constitution Act, 1867, section 92, subsection 7.
[8] R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031.
Confidential Communications under Canadian law
The case R. v. Gruenke, [1991] 3 SCR 263, is noted in the text of my submission to the Justice Committee on Bill C-6, An Act to amend the Criminal Code (conversion therapy). In the Gruenke case, the Supreme Court of Canada deals directly with the issue of clergy-parishioner confidentiality and establishes a basis for assessing confidential ‘religious communications’ and confidential communications generally. Following is Chapter Ten –“Shh, Don’t Tell Anyone”– from my book UNDER SIEGE: Religious Freedom and the Church in Canada at 150 (1867–2017). Footnotes are here omitted.
CHAPTER TEN
Shh, Don’t Tell Anyone
Bear one another’s burdens, and so fulfill the law of Christ. — Galatians 6:2
Therefore, confess your sins to one another and pray for one another, that you may be healed. The prayer of a righteous person has great power as it is working. Elijah was a man with a nature like ours, and he prayed fervently that it might not rain, and for three years and six months it did not rain on the earth. Then he prayed again, and heaven gave rain, and the earth bore its fruit. — James 5:16–18
But you are a chosen race, a royal priesthood, a holy nation, a people for his own possession, that you may proclaim the excellencies of him who called you out of darkness into his marvelous light. Once you were not a people, but now you are God’s people; once you had not received mercy, but now you have received mercy. — 1 Peter 2:9–10
The Church has long placed great value on the importance of confessing sin. It is the route to forgiveness.
The Roman Catholic Church has formalized the practice in a way that is known, at least somewhat, even outside its body of adherents. They have confessional booths where the confessor is heard by a priest. The priest has plausible deniability as to the confessor’s identity because priest and confessor have separate entrances into the booth, a wall divides them once inside, and the confession is heard through a screen that obscures facial features. Outside of the Roman Church, I’m not aware that such a feature exists in standard Christian practice. But the expectation of confession, and confidentiality in hearing it, remains.
There are few pastors who have not heard a confession that troubles them deeply but which they cannot share. Marty Duren wrote a summary that aligns with my experience and the thoughts shared with me by many in pastoral ministry:
One of the heaviest burdens of ministry is the burden of knowing: knowing who’s hurting, knowing whose marriage is about to implode, knowing whose kid is heading to rehab, knowing who really sent that anonymous note. The burden of knowing cannot be delegated. Nor can your pastor easily offload it when turning into the driveway each evening.
I was a pastor in three different congregations over the course of six years before finishing law school and establishing The Salvation Army’s Canadian legal department. During that time I heard a number of confessions, including one concerning a fairly serious criminal offence. I encouraged the confessor to go to the authorities, even offering to go with him, but he felt his conscience was sufficiently clear when the burden shifted to my shoulders. No one was hurt or at risk as a result of what took place, and I bear that confession still. I don’t even know if the confessor is still alive.
In the Bible, the expectation of confession and burden-bearing isn’t just for priests and pastors. It is for the Church. The Church is you and me, all of us Christ-followers together. There is no Church without us. Before the Charter, Glen How fought for legal acknowledgement that one did not have to be recognized as part of the clergy to benefit from the military service exemptions in place during WWII. The Jehovah’s Witnesses believe that the words of 1 Peter 2:9–10 mean that all men are considered part of the priesthood. It is also the case for some Protestant denominations that there is no clergy category, in the sense of priests and pastors with which most are familiar in the congregational setting.
So what does one do, whether one is recognized formally as clergy or associationally as a member of the priesthood of all believers, when confronted with a confession of criminal behaviour while face to face with the confessor who will not report themselves to civic (state) authorities?
First, if there is a reasonable apprehension that a child is at risk, there are provincial and territorial reporting requirements that obligate the person hearing the confession to report it to appropriate civic authorities. Most denominations also have a prescribed reporting process to notify clerical (church) authorities in such a situation.
Second, the Supreme Court of Canada spoke to the issue in its 1991 decision in a case called R. v. Gruenke.
Adele Gruenke provided care to an elderly father figure who had assisted her financially to start her own business and included her in his will. They had a platonic relationship, but over time he started asking for sexual favours in repayment for his financial generosity. On one such occasion, the elderly man became forceful and a tussle ensued. Ms. Gruenke’s boyfriend was watching from a distance and intervened. The elderly man was found dead in his car the next morning. Two days later, Ms. Gruenke met with her counsellor from the church she attended, confessing her role in “a murder.” The counsellor called the pastor for advice, and the conversation moved from the counsellor’s home to the pastor’s office at the church building.
On appeal from Manitoba, at issue before the Court was whether the testimony of the counsellor and/or the pastor was admissible in court or whether the conversations with them were to be considered inadmissible as confidential communications.
The Court distinguished two different kinds of privileged communications, i.e. confidential communications that are inadmissible in court. The first is communications that are excluded as a class for reasons of public policy. The second is communications assessed on a case-by-case basis.
The first category includes solicitor (lawyer) and client communications, which are excluded from the requirement for testifying before the court because their confidential nature is essential to the workings of the judicial system. There is no such provision in law for what was once known as priest-penitent communications to be excluded from the requirement to testify in court. The Court decided that these will be referred to in Canada as “religious communications.”
Earlier lower court decisions had recognized a case-by-case analysis standard for priest-penitent privilege. The Supreme Court affirmed that recognition for religious communications, noting “a case-by-case analysis will allow courts to determine whether, in the particular circumstances, the individual’s freedom of religion will be imperilled by the admission of the evidence.”
The Court recognized that a certain deference is to be given to religious communications in the case-by-case analysis, quoting from an earlier decision of Ontario’s Court of Appeal in Re Church of Scientology and The Queen (No. 6):
Chief Justice Dickson stated in R. v. Big M Drug Mart Ltd. … that the fundamental freedom of conscience and religion now enshrined in s. 2(a) of the Charter embraces not only the freedom of religious thought and belief but also “the right to manifest religious belief by worship and practice or by teaching and dissemination”. This protection will no doubt strengthen the argument in favour of recognition of a priest-and-penitent privilege. The restrictive common law interpretation of the privilege may have to be reassessed to bring it in conformity with the constitutional freedom.
In our view, however, while s. 2 of the Charter enhances the claim that communications made in confidence to a priest or ordained minister should be afforded a privilege, its applicability must be determined on a case-by-case basis. The freedom is not absolute.
The move from “priest-penitent” privilege to “religious communications” was explained as being informed by Section 27 of the Charter, which requires the Charter to be “interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.” Additional words from Big M show that a “truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct.” The result is that the assessment of the communications will begin “with a ‘non-denominational’ approach. The fact that the communications were not made to an ordained priest or minister or that they did not constitute a formal confession will not bar the possibility of the communications’ being excluded.”
The standard applied by the Court is referred to as the Wigmore Test. The Wigmore criteria are so named because they were set out in 1904 by American lawyer and law professor John Henry Wigmore (1863–1943) in his book Evidence in Trials at Common Law:
(1) The communications must originate in a confidence that they will not be disclosed.
(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.
(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.
In the case before him, Chief Justice Antonio Lamer found the circumstances did not indicate that the communications from Ms. Gruenke to her spiritual advisor and pastor were intended to be made with an expectation of confidentiality. Some of the reasons for this conclusion: there was no church policy outlining when communications were to be kept confidential, and there had been no expression during the course of the conversations that what was shared was to be kept in confidence.
This is instructive for the Church. Like the confessional booth, if confidentiality is expected:
- the expectation of confidentiality must be communicated and understood by both confessor and the person hearing the confession;
- confidentiality must be understood to be essential in the relationship between them (perhaps part of church policy);
- the community—undefined but generally regarded as “society,” although arguably the religious community—must be of the opinion that the confidentiality in the relationship is to be encouraged for a purpose that benefits the community, not just the confessor; and
- the injury (there’s that word again) that would result from disclosure must be greater than what the court would gain by having the evidence. This may be the most difficult hurdle as judges tend to think they, not Scripture, are the final decision-makers on this point.
These conditions do not require booth and collar. They can be established in a variety of settings, but the conditions must be established prior to the communications taking place, not assumed, and not after.
Canada – Bill C-6 (conversion therapy) – Submission to the Justice Committee
House of Commons Standing Committee on Justice and Human Rights
Bill C-6, An Act to amend the Criminal Code (conversion therapy)
Summary
This committee, the Parliament of Canada, and the government are encouraged to do what each says it does and desires to do. Listen to Canadians. Then, act accordingly within the constitutional authority of Parliament to provide leadership and good governance.
Canadians from a diversity of communities – including LGBT+, previously gender dysphoric, as well as religious and non-religious educators, lawyers, and parents – have expressed agreement with the stated objective for Bill C-6, to prohibit forced conversion therapy, and many have also requested that the bill be amended to clarify the scope of its declared intent.
The constitutional purpose of the federal Parliament is “to make laws for the Peace, Order, and good Government of Canada” (POGG).[1] This committee is encouraged to embrace that mandate on behalf of all citizens and recommend appropriate amendment to Bill C-6 that addresses the concerns expressed by a significant number of Canadians who discern that the legislation as currently worded engenders too wide a scope, easily interpreted by courts and culture to include conversations with parents, relatives, educators, counsellors, therapists, and healthcare professionals, as well as conversations with religious leaders about sincerely held beliefs and expectations conjoined with those beliefs.
Upon recommendation by this committee of a suitable amendment protecting good faith conversations, the government is urged to accept such amendment. Parliament, in turn, is encouraged to pass Bill C-6 only with the amendment included.
Introduction
Introduced for First Reading in the House of Commons in March 2020 as Bill C-8, An Act to amend the Criminal Code (conversion therapy), following prorogation of Parliament in August the bill was reintroduced as Bill C-6, An Act to amend the Criminal Code (conversion therapy) in October 2020. Bill C-6 proposes a series of Criminal Code offences concerning “conversion therapy,” defined in the bill as “a practice, treatment or service designed to change a person’s sexual orientation to heterosexual or gender identity to cisgender, or to repress or reduce non-heterosexual attraction or sexual behaviour.”
Commensurate with each of the March and October introductions Minister of Justice David Lametti held a press conference. At both and subsequent media availabilities, and in his appearance before this committee, Minister Lametti sought to assure Canadians the bill protects “good faith conversations.” Ongoing repetition of this statement would not be required were there not genuinely held anxiety about the wording of the bill. That anxiety has been expressed by a diverse range of Canadians with otherwise seemingly dissimilar interests.
People from a diversity of communities have expressed support that Bill C-6 makes a horrendous practice, which has become commonly referred to as conversion therapy, its own crime, defined more explicitly and separately from component parts already in the Criminal Code. Many have also expressed concern that the definition proposed captures voluntary, good faith and non-harmful counsel of children and adults. Among those voices are: people who are LGBT+ in sexual orientation, gender expression and gender identity; people who were previously gender dysphoric; and, religious and non-religious educators, counsellors, therapists, healthcare professionals, lawyers, parents, relatives, and religious leaders.
Bill C-6 is validation that the government has heard the concerns of an important segment of Canadian society, listened, and then acted on identified concerns. It is equally important that concerns expressed by other valued segments of society be heard, listened to, and acted upon.
Addressing the Issue not Addressed in C-6
Minister Lametti’s repeated assurances that Bill C-6 protects “good faith conversations” are not stated in C-6, and will bear little weight in a court of law or the court of public opinion.
Although the bill itself introduces new language to the Criminal Code intended to clarify a particular crime, the crime described might otherwise be prosecuted using other sections of the Code. In regard to potential amendment to the draft legislation, the minister stated before this committee that he is “not inclined to be open to amendments which are redundant,” i.e. clarification he considers as already addressed in the Criminal Code. To many this sounds an echo of U.S. President Ronald Reagan’s remark, “The nine most terrifying words in the English language are: I’m from the government and I’m here to help.”[2]
It is not redundant to provide clarity. Although the crime of conversion therapy might be prosecuted using other sections of the Criminal Code it is not redundant but complementary to add section 320.101 and other amendments to the Code.
Providing clarity in the definition that good faith conversations are exempted from the crime as defined would not be redundant but complementary to existing defences found in the Code, and would obviate the use of court time, prosecutorial resources and the legal expense likely to be otherwise incurred by citizens to explore application of such defences in court.
Clarity of definition would also be helpful in other ways, which I will turn to next.
Several provinces and one territory[3] have banned conversion therapy as a health care practice. A number of Canadian municipalities, among them Calgary and Edmonton in Alberta and Vancouver in British Columbia, have also enacted by-laws banning conversion therapy. Whether those by-laws are within or outside the legal and constitutional jurisdiction of municipalities is not the issue before this committee. However, the understanding and interpretation of conversion therapy by the public, municipal workers, healthcare licensing and regulatory bodies, and the courts is a matter deserving the consideration and response of this committee. The definition passed by Parliament will have substantial influence on the standard definition to be used for conversion therapy in these several settings.
Public opinion, provincial governments, municipal governments, and the courts will not look to deliberations in Hansard, statements made by the Minister of Justice at any number of press conferences, or even the report of this committee in order to interpret the meaning of conversion therapy once it has been defined in the Criminal Code. They will look to section 320.101 and the amendments to the Code proposed in Bill C-6.
If the concerns of parents, relatives, educators, counsellors, therapists, healthcare professionals, lawyers, and religious leaders are not addressed in the legislation there will be a presumption by the courts that there is a reason why parental, familial, counselling, medical and religious “good faith conversations” were not exempted. The presumption will be that they were not intended to be exempted. It is a presumption that has already held sway in opinions publicly expressed by a number of municipal, provincial and federal politicians, as well as individuals and organizations that lobbied the government for this legislation. The Government of Canada funded research report Conversion Therapy in Canada: The Roles and Responsibilities of Municipalities[4] is endorsed by a number of self-described activists and activist organizations. That report states “individual talk therapy,” “group therapy” and “spiritual prayer” are encompassed within the scope of the definition for conversion therapy.
The Constitution Act,1867, section 91, gives the federal government, with the advice and consent of Parliament, broad powers in regard to matters of national concern based on the provision to “make laws for the Peace, Order, and good Government of Canada” (POGG).
The governance concept of peace, order, and good government pre-dates our constitution, and is found in constitutions of former British colonies around the world (some with the alternative welfare in place of order). The POGG obligation has long been understood as vital for responsible government.
In his 1988 book Foolishness to the Greeks, Lesslie Newbigin, commenting on Augustine’s early fifth century A.D. Christian classic The City of God, summarizes thoughts about good government for a peaceful and ordered society:
But peace is only possible when there is order, and order depends on proper government; but government in which one is sub-ordinated to another is only right if the one who is called to govern does so for the sake of those he governs—as their servant.[5]
Good government requires providing sound structure to Canadian society, protection and support for individual Canadians and the institutions of society, and continual establishment of conditions for personal and societal flourishing. Wisdom and fairness are expected from our government and all parliamentarians, acting with regard for the well-being of all Canadians.
The 19th century organizers of the new Confederation recognized the necessity for the federal government to function in a unifying capacity that would facilitate the success of each province, and subsequently each new province and territory, as well as for each and all Canadians through proper exercise of the responsibility “to make Laws for the Peace, Order, and good Government of Canada.”
Because of the government’s proposed definition in Bill C-6, this committee and Canada’s Parliament are now confronted with the responsibility to determine how to frame this legislation in a way that can be supported within the constitutional obligation for Parliament to provide good governance, peace and order for the benefit of all Canadians.
The differing definitions and actions of provincial, territorial and municipal governments signal that conversion therapy has become a matter of national concern. In criminalizing conversion therapy, Parliament, in order to provide peace, order and good government to all citizens, is to provide a balanced legislative definition to properly address that national concern. To establish that definition, this committee is encouraged to not only hear the witnesses who have presented before it but to listen to them, and act accordingly.
Witnesses before and submissions to this committee have raised concerns about being able to parent with confidence in the best interests of their children, and to provide supportive counselling and care to children. Pre-teen and teen years can be awkward times. The support of psychological, emotional, and/or spiritual counsellors has benefited many children and youths in sorting out sexual tensions and questions about sexual attraction that are common to adolescents.
Witnesses and submissions have also articulated concern about the impact of Bill C-6 on adults seeking counselling, and on the provision of spiritual guidance for those seeking to follow their religious beliefs.
In regard to children, the cardinal rule of POGG for parents and the state is the best interests of the child. Pertaining to adults, the Canadian Charter of Rights and Freedoms guarantees freedoms of conscience, religion, thought, belief, and opinion, all of which align with personal autonomy in seeking consultation or counsel, including clergy-parishioner and other confidential communications as endorsed by the Supreme Court of Canada in R. v. Gruenke. Section 320.101 as currently worded disregards these obligations to Canadians.
Reasonable proposals have been submitted to this committee that would provide greater certainty in the definition of the crime, and better direction to the courts and other levels of government legislating on the issue of conversion therapy within their respective constitutional or legislated jurisdictions. Implementation of a refined definition that reflects the statements that good faith conversations are not intended to be encompassed within the scope of the legislation will also alleviate the concerns of parents and others intimidated by the potential implications of the current wording, and the costs associated with legal defence should they be unfortunate enough to find themselves in a court of law seeking to prove the Minister’s statements to be true.
Submissions from the Coalition for Conscience and Expression, Christian Legal Fellowship, and Centre for Israel and Jewish Affairs, among others, provide suggested language that might be considered/refined by this committee for effective amendment of the legislation.
Conclusion
The government is commended for hearing Canadians who have suffered as a result of forced and abusive conversion therapy, listening to them, and acting to legislate a readily ascertainable national criminal standard to better prohibit further such abuse.
This committee, Parliament, and the government have heard from a diversity of Canadians who are concerned that the definition of conversion therapy proposed in Bill C-6 encompasses too wide a scope of activities. This committee, Parliament, and the government are encouraged to listen to the people and organizations that have expressed those concerns and act accordingly by amending the definition.
Parents, prospective parents, educators, counsellors, therapists, healthcare professionals, religious leaders, and lawyers have expressed concern the definition captures a variety of otherwise good faith conversations with children.
Adults have shared personal testimony expressing concern, and lawyers have noted similar concern, that the definition captures good faith conversations initiated by adults who want help to sort out their personal sexual desires because their choice is to live a cisgender heterosexual life. The reasons a person might make such a decision are theirs alone.
Other levels of government in Canada are enacting legislation with varying definitions of conversion therapy which will be influenced and potentially amended to align with the definition that is established in the Criminal Code. Some might eliminate their legislation once Criminal Code sanctions are in place.
In the interest of bringing peace of mind to those concerned about good faith conversations, order to the national understanding of what is and is not prohibited by the term conversion therapy, and good government that serves all Canadians by doing so, this committee, Parliament, and Canada’s government are urged to amend Bill C-6 to state what is not intended to be captured in the vast net structured by the current proposed definition. This is readily accomplished by exempting those categories stated in submissions and by the Minister of Justice: good faith conversations between children and parents, relatives, educators, counsellors, therapists, healthcare professionals and religious leaders; and, good faith conversations between adults.
[1] Constitution Act, 1867, section 91
[2] Ronald Reagan, The President’s News Conference, Chicago, Illinois, August 12, 1986, https://www.reaganfoundation.org/media/128648/newsconference2.pdf
[3] Manitoba, Nova Scotia, Ontario, Prince Edward Island, Yukon, legislation pending in Quebec
[4] Kristopher Wells, Conversion therapy in Canada: The roles and responsibilities of municipalities. (Edmonton, AB: MacEwan University, 2019).
[5] Lesslie Newbigin, Foolishness to the Greeks: the Gospel and Western Culture, (Grand Rapids, MI: Eerdmans, 1988), 103.
- « Previous Page
- 1
- 2
- 3
- 4
- 5
- 6
- …
- 16
- Next Page »