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

(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.
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:
Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:  
Guarantee of Rights and Freedoms 
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. 
Fundamental freedoms 
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association. . .

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. . . .

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.
(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).
(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).
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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