Tuesday, September 25, 2012

Canada Should Repeal Blasphemy Law

It's time for Canada to repeal its prohibition on blasphemous libel.

Section 296 of the Criminal Code of Canada makes it an indictable offence to publish blasphemous libel. Upon conviction, an accused is liable for up to two years of imprisonment. Section 296 permits an accused the defence of “good faith” provided that “decent language” is used.
296. (1) Every one who publishes a blasphemous libel is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. 
(2) It is a question of fact whether or not any matter that is published is a blasphemous libel. 
(3) No person shall be convicted of an offence under this section for expressing in good faith and in decent language, or attempting to establish by argument used in good faith and conveyed in decent language, an opinion on a religious subject.
It’s probably a safe bet that most Canadians do not know what the term “blasphemy” means, let alone that blasphemous libel is a criminal offence. According to the Merriam-Webster online dictionary, to blaspheme means to insult or show contempt or a lack of reverence for God or other things sacred.

Originally, blasphemous libel was specifically tied to publishing materials that brought the Christian religion into disrepute—presumably excluding other religions. The courts held the prohibition to include any profane words vilifying God, Jesus Christ, the Holy Ghost, the Bible, or Christianity if it was done with the intent to shock or insult believers, or mislead the ignorant and unwary.

Arguably, the most recent decision on section 296 generalized the prohibition so that it may now be possible to blaspheme other religions as well. But this has not been tested in court because the prohibition has fallen into disuse.

The first time I read this prohibition in the Criminal Code during law school, I found it surprising that Canada has any sort of law prohibiting blasphemy. First, blasphemy is everywhere. It is not difficult to find all sorts of published material that break this law—movies, music, books, magazines, video games, visual art, etc. And second, any sort of prohibition on blasphemy strikes me as an unacceptable restriction on freedom of expression and one more potential foothold for tyranny. Notice that the way that the prohibition is worded inevitably makes it function as a proxy for the personal and political views of the judiciary. Perhaps "foothold for tyranny" is an understatement?

Fortunately, there have not been any blasphemous libel prosecutions in Canada since the 1930’s. It is likely that section 296 is effectively dead even though it remains in the Criminal Code.

But being effectively dead is not truly dead. The UK has had a similar prohibition with much the same story as Canada’s—it languished unused for a significant period of time. Yet in the 1979 case of Whitehouse v. Lemon, Mary Whitehouse resurrected the UK’s blasphemous libel prohibition in a successful private prosecution. The accused was convicted but did not have to serve the prison term. By the way, the UK repealed its blasphemy law in 2008.

Aside from the important point that effectively dead laws are not guaranteed dead, there are other reasons to repeal section 296.

First, the continued existence of a prohibition on blasphemy places Canada in an awkward and hypocritical position when it criticizes other countries of religious intolerance. Remember the famous admonition to take the mote out of your own eye first?

And second, there is no certainty that the Charter’s guarantee of freedom of expression will offer any protection to an individual accused of blasphemous libel. That’s an unanswered question that has never been tested in court. Sadly, there are cases that refer to section 296 as a potentially justifiable violation of freedom of expression. Also, there is no shortage of cases where the courts have deferred to the government and upheld restrictions on speech. Trials are inherently uncertain and court decisions can often yield surprising results.

It’s probably best to repeal section 296 rather than assume that it will never be used in the future.

6 comments:

  1. Absoutely. Section 296 is a wart in our law and should long ago have been repealed.

    ReplyDelete
  2. Especially now, when international blasphemy laws are being proposed, it is essential that we get rid of this unreasonable and oppressive law.

    ReplyDelete
  3. Bravo! Repealing this antiquated law would send a stronger message than mere words alone could manage. But I doubt that under the current government, with it's "Office of Religious Freedom", this would be even considered. But under a new government, repealing section 296 AND abolishing the O.R.F.? Priceless!

    ReplyDelete
  4. @Tim, I don't know much of anything about the ORF, but my inclination is to agree with you. I wasn't a fan of it when it was announced during the last election and I am still not a fan of it. That is, unless someone can explain to me why it's necessary for the protection of individual rights. (I am NOT holding my breath waiting for that explanation)

    ReplyDelete
  5. According to author Hussein Ibish, blasphemy is an indispensable human right. http://www.nowlebanon.com/NewsArticleDetails.aspx?ID=439991

    ReplyDelete
  6. I had, and still have. . . the great honour and privilege of being accused of blasphemous libel by the Unitarian Universalist Association of Congregations last June for allegedly making "unfounded and vicious allegations to the effect that ministers of the Association engage in such despicable crimes as pedophilia and rape."

    Of course the key word in all that legalistic bluster is *unfounded*, and the few allegations that I actually have made about Unitarian Universalists engaging in "such despicable crimes as pedophilia and rape" are very well founded in fact. The Unitarian Universalists in question were charged with rape, tried for rape, convicted of rape, and incarcerated for the rape of minors. Most ironically, the UU who I described as a "pedophile rapist" because his victims, including "a female family member", were as young as 9 or 10 years old at the times that the rapes were committed was, to the best of my knowledge, not a UU minister at all but an ordinary UU layman. Ergo, prior to receiving the cease and desist demand letter, I had not actually blogged about any pedophilia committed by Unitarian Universalist ministers. This is a clear attempt to misuse and abuse Canada's blasphemy law to silence a critic and cover up and hide online testimony about Unitarian Universalist clergy sexual abuse.

    You may view and read the complete cease and desist demand letter at the following URL -

    http://emersonavenger.blogspot.ca/2012/07/marc-andre-coulombe-stikeman-elliott.html

    Here is my most recent email to the Stikeman Elliott litigation lawyer who had me served with this cease and desist demand letter last June -

    http://emersonavenger.blogspot.ca/2013/01/stikeman-elliott-litigation-lawyer.html

    ReplyDelete