Don Hutchinson

Gleanings from the mind of a Christian Leader and Lawyer

Bills C-6 and C-7: just new laws or new unjust laws?

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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

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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

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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.

Ontario – Bill 213 – Submission re: Canada Christian College

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Tomorrow the Ontario Legislative Assembly’s Standing Committee on General Government will complete a clause by clause review of Bill 213, the Better for People, Smarter for Business Act, 2020. Following is the text of my submission made last week on Schedule 2 which proposes amendments to the Canada Christian College and School of Graduate Theological Studies Act, 1999.

Schedule 2 of Bill 213 is a proposal to amend the 1999 Act Respecting Canada Christian College and School of Graduate Theological Studies, including renaming the school, granting it university status, and approving the conferring of B.A. and B.Sc. degrees, in addition to fourteen degrees previously authorized.

If Canada Christian College meets the impartial education-related requirements for the granting of B.A. and B.Sc. degrees, Schedule 2 should receive Royal Assent.

Introduction

In October 2020 the Government of Ontario introduced Bill 213, the Better for People, Smarter for Business Act, 2020. The bill comprises a series of schedules proposing amendments to various pieces of existing legislation. The amendments are intended to come into force as provided in each schedule.

Among Bill 213’s proposals are amendments for name changes and additional degree granting privileges for three post-secondary education institutions: Redeemer Reformed Christian College to Redeemer University (Schedule 25); Tyndale University College & Seminary to Tyndale University (Schedule 29); and, Canada Christian College and School of Graduate Theological Studies to Canada University and School of Graduate Theological Studies (Schedule 2).

While all three of these are private religious institutions, theologically identified with evangelical Christianity, the latter has attracted aggressive, negative comments from opposition parties and some members of the media. The public denunciation is unrelated to the qualifications of the school to deliver the degree programs proposed, instead expressing disapproval toward its president because of his personal participation in the political arena and debates about matters of public policy.

NDP and Liberal Party MPPs have referred to Dr. Charles McVety in terms best described as ad hominem attacks on his person – bigot, homophobe, transphobe – intended to marginalize him by subjecting Dr. McVety to detestation or vilification, and by association to disqualify Canada Christian College, and Schedule 2, from proper consideration.

The matter before the legislature is not political or media opinions concerning Dr. McVety’s public policy pronouncements or his personal participation in the political sphere, which involvement is not uncommon for college and university professors, staff or administrators.

At issue in regard to Schedule 2 of Bill 213 is the ability of Canada Christian College to meet established requirements to provide the degree programs proposed. If and when Canada Christian College is recommended by the Postsecondary Education Quality Assessment Board as having satisfied those requirements, Schedule 2 should receive Royal Assent.

Because NDP and Liberal MPPs have been insistent and persistent in making public allegations against Dr. McVety, intending those allegations to discredit the school, I will comment briefly on the allegations under the heading The McVety Factor and then on the matter properly to be considered by this committee under the heading The Education Factor before summarizing with a Conclusion.

The McVety Factor

Canada Christian College was founded as Richmond College, a Christian arts college, in Canada’s centennial year, 1967, under the leadership of Dr. Elmer McVety. Seven years later it added a theology program under the name Canada Christian College. Over time the school moved to different locations as it expanded faculty, courses, and degree offerings. Elmer McVety died unexpectedly in 1993. His son Charles was selected to succeed him.

Under the leadership of Dr. Charles McVety, the school continued to expand and move to progressively larger campuses until arriving at its current location in 2018. Canada Christian College and School of Graduate Theological Studies has graduated more than 6,500 students and currently offers 14 degree programs including bachelors, masters and doctoral degrees.

In addition to Christian post-secondary education, Charles McVety has a demonstrated interest in politics and public policy. As noted in my book Under Siege: Religious Freedom and the Church in Canada at 150 (1867 – 2017), McVety adopted a style of political participation that aligned with that of the late twentieth century Moral Majority in the USA. Although his political engagement has been criticized by some for its form of expression, McVety has consistently presented a reasoned, biblically-exegeted understanding for his positions on policy matters. Those positions have found alignment with leaders in other religious communities on a variety of issues. Unquestionably, some of his more quoted remarks have been provocative.

I will touch briefly on some of the issues raised by the opposition parties.

Same-Sex Marriage – In June 1999 the federal Liberal government overwhelmingly supported maintaining the traditional definition of marriage as the union between one man and one woman in a House of Commons vote of 216-55. A pitched public policy debate followed in legislatures, in the courts, and in public. Eventually, Prime Minister Paul Martin found himself in the position of having to whip the vote of cabinet members, and encourage Liberal MPs who objected to changing the definition to not attend the vote, in order to ensure passage of the Civil Marriage Act in 2005 by a vote of 158-133. In the definition changing legislation, the government paid heed to the caution given to the federal and provincial governments by the Supreme Court of Canada in its 2004 decision in Reference re Same-Sex Marriage. The Act states in its preamble:

WHEREAS nothing in this Act affects the guarantee of freedom of conscience and religion and, in particular, the freedom of members of religious groups to hold and declare their religious beliefs and the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs;

WHEREAS it is not against the public interest to hold and publicly express diverse views on marriage…

The Act further states in sections 3 and 3.1:

3. It is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs.

3.1. For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom.

Martin lost the ensuing election in which one of the commitments made by his challenger, and successor as Prime Minister, Stephen Harper, was to hold a free vote on whether or not to reopen the debate on same-sex marriage.

Throughout the public debates, McVety took a position endorsing the traditional definition of marriage.

LGBT+ activities and activists – Dr. McVety has presented the historic theologically conservative understanding of the Catholic, Orthodox and Protestant parts of the Christian Church on matters of sexual behaviour.

Remarks on the nature of Pride parades (there is no other event where public nudity and simulated sexual acts are permitted) and changes made to Ontario’s sex-ed curriculum did not endorse or encourage hateful behaviour or result in any reported incidents of hate speech.

The Supreme Court of Canada identified the difference between “hurt feelings” and “hate speech” in its 2013 decision in Saskatchewan (Human Rights Commission) v. Whatcott. The Court stated that hate speech is speech intended to expose an identifiable individual or group to detestation or vilification based on one or more prohibited grounds of discrimination.

In Whatcott, the Court also concluded it is not the place of courts or governments to “be drawn into the business of attempting to authoritatively interpret sacred texts such as the Bible.”

Quoted in a November 2010 feature story by Charles Lewis in the National Post, I am on record as stating that Dr. McVety’s “theological position is at one end of the spectrum of Canadian evangelicalism and his American perspective draws attention and stirs up conversation.”

There may be difference in exegesis. There may be difference in presentation. There may be difference in opinion on public policy. But Charles McVety has not advocated hatred as some MPPs have alluded or alleged. And, in any event, such allegations are not the matter for consideration before this committee.

The Education Factor

As noted, Canada Christian College has continued to upgrade its faculty and facilities over the last half century and has graduated more than 6,500 students.

The McVety Factor means Canada Christian College is a school that teaches academic and practical theology; service to church and community as participatory good citizens.

I have personally benefited from part-time studies at Canada Christian College, beginning in the 1990s. The experience has had a positive influence on my professional practice and writing. My instructors have had an interesting variety of life experiences and come from a diversity of ethnic backgrounds, some speaking with accents aligned with their country of birth in Africa, the Caribbean, Great Britain or Europe. My classmates similarly had a variety of ethnic origins in Africa, Asia, South Asia, South America, Europe and North America.

Canada Christian College initiated distance learning by correspondence decades ago, and adjusted that to online interactive virtual education well before the current pandemic-driven rush by other colleges and universities to do so. I have been a beneficiary of this foresight.

In terms of meeting academic requirements to provide instruction for B.A. and B.Sc. degrees, that assessment is for the Postsecondary Education Quality Assessment Board.

In my experience, Canada Christian College and School of Graduate Theological Studies is:

  • Biblically-based;
  • Mission-focused;
  • Pursuing a standard of academic excellence; and,
  • Fully committed to foundational evangelical Christian principles.

In 2001, in the case Trinity Western University v. British Columbia College of Teachers, the Supreme Court of Canada stated, “For better or worse, tolerance of divergent beliefs is a hallmark of democratic society.” The Court’s conclusion in that case was that while “TWU is not for everybody; it is designed to address the needs of people who share a number of religious convictions.” Ultimately, because TWU’s school of education met provincial academic requirements there was no bar to its operation, and the school’s religious nature was to be respected.

Again from the Court in that case, “The diversity of Canadian society is partly reflected in the multiple religious organizations that mark the societal landscape and this diversity of views should be respected.”

I will quickly address the Supreme Court of Canada’s 2018 twinned decisions in regard to TWU’s proposal to open a law school, Law Society of British Columbia v. Trinity Western University and Trinity Western University v. Law Society of Upper Canada. The Court did not deal with or overturn its 2001 decision in Trinity Western University v. British Columbia College of Teachers, which means that decision remains good and applicable law. Instead, the Court distinguished law school education from other education because of the unique nature of public interest considerations in the regulation of legal professionals. In deciding the case, the majority of the Court did not rely on constitutional or legal principles but on the concept of a Charter value of “diversity.” As Justices Côté and Brown noted in dissent,

First, Charter “values” — unlike Charter rights, which are the product of constitutional settlement — are unsourced. They are, therefore, entirely the product of the idiosyncrasies of the judicial mind that pronounces them to be so. … What is troubling, however, is the imposition of judicially preferred “values” to limit constitutionally protected rights, including the right to hold other values.

Secondly, and relatedly, Charter “values”, as stated by the majority, are amorphous and, just as importantly, undefined.

Which is to say, the law school decisions are not pertinent to consideration of Bill 213, Schedule 2. However, consideration of other decisions pertaining to relevant rights and freedoms under the Canadian Charter of Rights and Freedoms, some of which are noted above, are germane to the legislature’s deliberations on Schedule 2.

Conclusion

Deliberation on Schedule 2 by this committee and the legislature is not a matter of interest in either the religious nature of the school or the public policy engagement of its’ president, but whether the proposal made by Canada Christian College and School of Graduate Theological Studies to the Postsecondary Education Quality Assessment Board meets the necessary requirements to provide suitable education for B.A. and B.Sc. degrees.

If Canada Christian College satisfies those requirements, Schedule 2 of Bill 213 should be passed by the Legislative Assembly of Ontario and receive Royal Assent.

Addendum – Bill 213, including Schedule 2, was passed by the Ontario Legislative Assembly on December 7, 2020. Canada Christian College awaits completion of the Postsecondary Education Quality Assessment Board’s review process.

Don’t Wanna Be a Christian Covidiot

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“What a difference a day makes, twenty-four little hours, brought the sun and the flowers, where there used to be rain,” or snow in the more recent context of the Great White North. I remember my Dad playing that 1959 Grammy winner sung by Dinah Washington. Use simple math to multiply that difference-making day by a week and we have the alarm encountered by hundreds of thousands of Canadians crossing the border to return home from March Break, or a snowbird winter, when informed at the border they are to go home, go directly home, and stay home.

Over the last week Canadians have been witnesses to the rise of a new statistical interest, a fresh constitutional question, and the coining of a new word, “covidiot.”

Covidiot. The first time I heard the word two other songs came immediately to mind. The first, Green Day’s 2004 hit American Idiot declares, “Don’t wanna be an American idiot.” The second, Weird Al Yankovich’s 2006 parody hit Canadian Idiot, which similarly asserts, “Don’t wanna be a Canadian idiot.”

The word covidiot stems from the behaviour of Americans and Canadians on the beaches of Florida after a “stay home” and “keep physical distance when in public” plea was made by government and medical authorities. Similar behaviour was repeated this recent warm and sunny weekend in Vancouver, and in Toronto with the release of a new video game.

Across the country federal and provincial leaders have requested, or ordered under authority of legal enforcement, that gatherings be constrained to below a selected number – starting at 250 and working down to fifty, twenty, ten, then five, all with minimal spacing of two metres between participants.

Many Christian leaders have adapted to this request by moving Sunday services and weekday gatherings (whether church, bible school, college or university) online, by holding parking lot or drive-through communion, setting up social media communication formats, and inviting congregants to support food banks and check-in on neighbours’ needs.

Other Christian leaders have defiantly stated they will not forsake the assembling together (Hebrews 10:25) of their flocks in person, stating they must obey God, rather than men (Acts 5:29).

Some Christian leaders are simply uncertain what to do in uncertain times.

And, that’s why I’m writing this. Some Christian leaders asked me for advice. Most particularly, they want to know whether the government can compromise our rights to freedom of religion (Canadian Charter of Rights and Freedoms, section 2(a)) and freedom of peaceful assembly (section 2 (c)).

The short answer is, “yes, the government can compromise those rights.” You will find more detail in my book Under Siege: Religious Freedom and the Church in Canada at 150 (1867–2017), but the key to that “yes” is found in section 1 of the Charter which reads, “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.”

I suspect few Canadians or Canadian judges would disagree that the circumstances of Covid-19’s rapid spread demonstrably justify government taking legal action to constrain peaceful assembly for the purpose of public safety, provided the law is equally applied by the government making it, i.e. there are not exceptions for either non-religious groups or religious groups.

On the matter of freedom of religion, there is no constraint against finding alternative ways to engage and share religious beliefs and practices, which, as noted above, many churches have done.

The statistics supporting the government’s claim for reasonable limits on peaceful assembly are staggering, and staggeringly simple to understand.

According to the World Health Organization and the U.S. Centres for Disease Control, the average person who gets the flu will infect 1.3 other people. Take this out to ten generations (1 x 1.3 x 1.3 x 1.3 x 1.3 x 1.3 x 1.3 x 1.3 x 1.3 x 1.3)* and that person will spread the flu to 14 people. The incubation period for the flu is one to four days, so you might infect people before experiencing symptoms yourself. The hospitalization rate for flu is 2% of those infected. This is statistically the number taken into account in the design of hospital intensive care units – about twenty people in every one thousand, spaced out over a period of five to six months. The death rate is under 0.1%.

The W.H.O. and CDC have identified the statistical average infection rate for Covid-19 as 2 to 2.5 people. So the ten generation infection rate is (1 x 2 x 2 x 2 x 2 x 2 x 2 x 2 x 2 x 2)* 1,024 to (1 x 2.5 x 2.5 x 2.5 x 2.5 x 2.5 x 2.5 x 2.5 x 2.5 x 2.5)* 9,537. That’s a significant range, and a dramatic difference from the flu. The incubation period for Covid-19 is one to fourteen days, so you might infect people for up to two weeks before experiencing symptoms yourself, hence the significant range in ten generation infection rates. The hospitalization rate for Covid-19 is 19% – that’s 195 to 1,812 all in a matter of weeks if everyone were to go about our lives as normal (as we pretty much do with the flu). This is an influx for which the Canadian medical system is unprepared – as were China’s and Italy’s. Hence the requests and orders to stay at home and observe spacial distancing. The mortality rate for Covid-19? 1% to 3.4%, dependent on medical intervention when required. You do the math.

There is a vaccine for the flu. None yet exists for Covid-19.

In addition to the broad numbers above, there are risks based on demographics. Let me break it down based on one household, my own. In a matter of weeks I will move from one demographic category to a higher risk demographic when I turn 60. Males are already experiencing a higher mortality rate per capita from Covid-19 than females. My wife is already in the higher age risk demographic, suffered kidney failure three years ago and has had more than one issue with lung weakness (e.g. pleurisy and other bronchial ailments) putting her in one of the highest risk categories for women. Our daughter, in her thirties, is in a higher risk category because she smokes. Our grandson has a compromised immune system.

Now, think of how many people you know who are over sixty. Seventy. Eighty. How many you know who smoke? How many may have compromised immune systems evidenced by asthma, allergies, past illnesses, multiple sclerosis, cancer… the list goes on.

Governments in Canada are not trying to stop the sharing of the Gospel. They’re trying to stop the sharing of Covid-19.

Jesus left us with three great commandments. Love the Lord our God with all our heart, mind, soul and strength (Matthew 22:37-40; Mark 12:29-31; Luke 10:27). Love one another, and by this the world will know we are his disciples (John 13:34-35; 15:12, 17). And, love our neighbours as we love ourselves (Matthew 22:37-40; Mark 12:29-31; Luke 10:27).  I explore how disciples might effectively live out these three concepts of love in my book Church in Society: First-Century Citizenship Lessons for Twenty-First-Century Christians, but here are a few thoughts for today.

Based on all of the above, here are two questions to ask in regard to gathering in a time when gathering is restricted. Is the Gospel being constrained by not gathering? Is it loving toward other disciples or toward our neighbours to gather?

Is this a time for Acts 5:29 defiance, like Peter and those with him in Jerusalem who were commanded by religious leaders to stop sharing the good news about Jesus Christ, or a time to heed the advice of Jesus and the apostles Paul and Peter concerning government?

Jesus told his followers to render unto Caesar (the government of Jesus’ day) the things that belong to Caesar (say, the government of our day), but not to give government the things that belong to God (Matthew 22:21; Mark 12:17).

The apostle Paul expressed, “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. Therefore whoever resists the authorities resists what God has appointed, and those who resist will incur judgment. For rulers are not a terror to good conduct, but to bad.” (Romans 13:1-3, ESV)

And the apostle Peter stated, “Be subject for the Lord’s sake to every human institution, whether it be to the emperor as supreme, or to governors as sent by him to punish those who do evil and to praise those who do good. For this is the will of God, that by doing good you should put to silence the ignorance of foolish people… Honour everyone. Love the brotherhood. Fear God. Honour the emperor.” (2 Peter 3:13-15, 17 ESV)

Rather than gather, this is a time to heed Paul’s advice to his protégé, Timothy:

First of all, then, I urge that supplications, prayers, intercessions, and thanksgivings be made for all people, for kings and all who are in high positions, that we may lead a peaceful and quiet life, godly and dignified in every way. (1 Timothy 2:1-2 ESV)

Pray for political and medical leaders who have accepted responsibility for all Canadians, including you and me. And, accept responsibility for yourself.

I don’t wanna be a Christian covidiot. I hope you don’t either.

*The math has been corrected. A friend pointed out that my first set of numbers did not include the 1 originating person with the flu or Covid-19.