Obstructing worship and the Canadian Criminal Code

In this guest post, Alan Perry, Executive Archdeacon of Edmonton and a graduate of the Cardiff LLM course, explores one of the more unusual pitfalls of criminal law reform.

The Parliament of Canada is in the process of doing some clean-up and modernization of the Criminal Code. There was a particularly embarrassing situation about a year ago when a judge rendered a decision in a long and convoluted murder trial based on a provision of the Criminal Code that had been struck down a number of years ago by the Supreme Court but never formally repealed. The presence of a number of what were referred to colloquially as “zombie laws” in the Code, as well as some desire to make some other changes to the Code resulted in Bill C-51, “An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act”, which is currently before Parliament.

One of the provisions proposed for repeal, either on the ground of redundancy or of obsolescence, was section 176, which prohibits obstructing a cleric in the performance of his duties or disrupting worship. The section states:

“176 (1) Every one who

(a) by threats or force, unlawfully obstructs or prevents or endeavours to obstruct or prevent a clergyman or minister from celebrating divine service or performing any other function in connection with his calling, or

(b) knowing that a clergyman or minister is about to perform, is on his way to perform or is returning from the performance of any of the duties or functions mentioned in paragraph (a), or

(i) assaults or offers any violence to him, or

(ii) arrests him on a civil process, or under the pretence of executing a civil process,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

(2) Every one who wilfully disturbs or interrupts an assemblage of persons met for religious worship or for a moral, social or benevolent purpose is guilty of an offence punishable on summary conviction.

(3) Every one who, at or near a meeting referred to in subsection (2), wilfully does anything that disturbs the order or solemnity of the meeting is guilty of an offence punishable on summary conviction.”

I wrote as follows to the Minister of Justice in July to suggest why I felt this change to the Criminal Code was undesirable, and others appeared before the Justice Committee last week to make similar points.

“The Honourable Jody Wilson-Raybould PC, MP, Minister of Justice and Attorney General of Canada, House of Commons, Ottawa, Ontario K1A 0A6

Dear Minister;

I am writing regarding Bill C-51, “An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act.” My concern has to do specifically with section 14 of the Bill which will, inter alia, repeal section 176 of the Criminal Code.

There is much that is good and commendable in Bill C-51. The Department of Justice website describes it as “reflect[ing] the Government of Canada’s ongoing commitment to ensure that Canada’s criminal justice system protects Canadians, holds offenders to account, shows compassion to victims, and upholds the Canadian Charter of Rights and Freedoms.” But section 176 “upholds the Canadian Charter of Rights and Freedoms” in a very particular way. Its repeal would be contrary to the stated purpose of this legislation.

I first became aware of this provision in the Criminal Code in the early 1990s when I was training for ordination in the Anglican Church. At that time there was a group of three or four people in downtown Montreal, where I then lived, who repeatedly disrupted services in several Anglican (and possibly other) churches. As I recall, all attempts to put a stop to this behaviour were fruitless until the leader of the group was charged – I presume under section 176.

As you know, all Canadians are guaranteed the fundamental freedoms of conscience and religion and of peaceful assembly under the Charter of Rights and Freedoms, sections 2(a) and 2(c), respectively. Gathering for religious worship is a particular intersection of these two fundamental freedoms. Section 176 of the Criminal Code as it now stands is a unique protection of just this set of fundamental freedoms.

Given the publicly stated purpose of the Bill, it would appear that its drafters consider section 176 either obsolete or redundant. In my view, this section of the Criminal Code is neither.

If section 176 is being repealed because it is thought to be obsolete, as recent events demonstrate, the freedom to worship peaceably is very fragile in our society, and cannot be taken for granted. Whether picketers at a mosque in Toronto, or disruptive persons interfering with an Indigenous ceremony in Halifax, there continue to be individuals in our society who would interfere with others’ rights to assemble peaceably for the purpose of manifesting their religious beliefs in worship or spiritual ceremony. And even if charges under section 176 are not laid in these examples, charges have apparently been laid in a case in Ottawa as recently as June of this year.

If this provision is being repealed on the grounds of redundancy, it is true that there are other provisions in the Criminal Code or other legislation that appear to address the sort of disruptive behavior included in section 176, ranging from trespassing to vandalism, creating a public disturbance, or crimes of violence such as assault or murder. The mass shooting this year at the mosque in Quebec City would have been equally illegal wherever it occurred, for an extreme example. However, it seems to me that the harm of disrupting “an assemblage of persons met for religious worship or for a moral, social or benevolent purpose” (s 176(2)) is a particular harm of a different order than the mere “interference with the ordinary and customary use by the public of the place in question.” (R. v. Lohnes, [1992] 1 SCR 167, 1992 CanLII 112 (SCC)) The latter is a nuisance and an inconvenience, even where it is a criminal act pursuant to section 175 of the Criminal Code. But the former constitutes interference, not merely with customary use of a place, but with the Charter rights to freedom of religion and freedom of assembly, and causes harm to persons at the core of their being. And it may be the case that the threshold of disturbance necessary to convict someone under section 176 is different to the ordinary threshold for disturbance under section 175.

Similarly, provisions in section 176(1) protecting clergy going about their duties are not about special protection of a certain class of person, but are in fact protection of the Charter rights of those who would benefit from the performance of a cleric’s duties. Obstruction of a cleric who is “celebrating divine service” (s 176(1)(a)) interferes with the entire assembly in the conduct of sacred worship. And “any other function” might include conducting a wedding or funeral, obstruction of which would cause significant and obvious upset to anyone affected.

There is something particular and sacred about assembling for worship which is fundamental to human dignity and flourishing. Doing so constitutes the exercise of at least two (if not all) of the four “fundamental freedoms” described in section 2 of the Charter of Rights and Freedoms. And yet the very fragility of these rights calls for their particular protection, which is provided in section 176 of the Criminal Code.

I strongly urge you to amend the Bill and to retain section 176 of the Criminal Code.”

It is now being reported that the Government has decided not to repeal this section.

Background links

Alan T Perry

Cite this article as: Alan T Perry, “Criminal law and obstructing a cleric in Canada” in Law & Religion UK, 10 November 2017, https://www.lawandreligionuk.com/2017/11/10/obstructing-worship-and-the-canadian-criminal-code/


For a press report on the debate in the House of Commons Justice Committee, see After ‘avalanche’ of emails, MPs vote to save Criminal Code section protecting religious services.

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