20 May 2013

Blasphemy Law In Canada

Jeremy Patrick (University of Southern Queensland School of Law) has posted The Curious Persistence of Blasphemy: Canada and Beyond on SSRN. Here is the abstract:
The purpose of this dissertation is to examine the history and future of the crime of blasphemy. In the introduction, several key questions are examined:(1) What is blasphemy? (2) Why do people blaspheme? and (3) What are the real or perceived harms of blasphemy?  
Subsequently, Part I examines the history of blasphemy and blasphemy-like laws in six jurisdictions around the globe: England, Ireland, Australia, Pakistan, the United Nations, and the United States. The jurisdictions chosen illuminate the fact that blasphemy is a complex concept which can be regulated in a wide variety of ways. These six provide an excellent picture of the varied and diverse ways the concept of blasphemy has operated and an understanding as to why it remains relevant today.  
Part II of this dissertation turns away from a global, comparative examination of blasphemy and instead provides a comprehensive, in-depth study of a single jurisdiction: Canada. This sustained history of blasphemy in Canada, the first ever published, allows for a valuable snapshot of the evolution of the crime into its modern form.  
Part III synthesizes the research and analysis in Parts I and II to answer the fundamental questions: what is the future of the crime of blasphemy in Canada and beyond?
From here.

The article explains that:
In Canada, most lawyers and laypersons alike would be astonished to hear that the country still has a law prohibiting blasphemy on the books. Originally prosecuted as a common law crime, the offense was first statutorily prohibited in 1892 and is currently contained in Section 296 of the Criminal Code:19

19 R.S.C. 1985, c. C-46 [Criminal Code].
Although this prohibition is now of dubious constitutionality given the Canadian Charter of Rights and Freedoms several prosecutions for blasphemous libel can be found in Canada’s law reports, and dozens more are hidden in newspaper archives and courthouse files. Indeed, the offense has survived the normal processes responsible for “weeding out” obsolete legislation: critical public attention, repeal bills launched by reformists, law commissions, Criminal Code revision committees, and more. The survival of a criminal ban on blasphemy cannot therefore be attributed wholly to an inattentive legislature.
The Canadian Charter of Rights and Freedoms (aka "CONSTITUTION ACT, 1982, c. 11 (U.K.), Schedule B" provides in the pertinent parts:
Guarantee of Rights and Freedoms 
Fundamental freedoms 
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(c) freedom of peaceful assembly; and
(d) freedom of association. . .


Section 33 of the Canadian Charter of Rights and Freedoms, commonly known as the "notwithtstanding clause" allows the Canadian parliament to suspend certain parts of the Canadian Charter of Rights and Freedoms including the one containing Canada's freedom of religion, if it does so expressly and intentionally.  But, it has not, in fact, been invoked in the case of Canada's blasphemy laws.

Of course, unlike the American constitution and bill of rights, the Canadian constitution expressly recognizes the "supremacy of God" in its preamble and in Section 1 recognizes that the rights it grants are not absolute.  And, Canada's statute itself may comply by permitting sincere and "polite" blasphemy.  But, this statute is certainly an odd bird and the analysis in the linked article is worth a read.

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