10 years of speaking out against Canada's blasphemy law

The petition, launched last week, is only the latest effort to repeal Canada's blasphemy law.

Over the past few years, numerous columnists, civil liberties groups and legal experts have called for the law to be repealed. If you're not convinced that the law needs to go, read some of these links.

And make sure to sign and share the petition.

Following the UK repealing its blasphemy law in 2008, Jeremy Patrick wrote about Canada's blasphemy law in The Toronto Star.

However, obscure, little-known statutes like the blasphemy offence can also serve as a dangerous extension of police or prosecutorial discretion, creating a greater opportunity for threats of enforcement that lead to self-censorship by cautious publishers.

Writing in 2006 about the publication of the Mohammed Cartoons, Craig Jones and John Dixon, past presidents of the BC Civil Liberties Association said:

My copy of the Code features an annotation saying only that “this rather archaic section, if used, would, in all likelihood, be challenged under the Charter.” No kidding.

We don’t prosecute people for “blasphemous libel” anymore. That would be too unpalatable, too unCanadian. We are a diverse people, with many competing world views that must be accommodated. The central tenets of almost every religion are at some level blasphemous to almost every other.

Derek James From, the staff lawyer with the Canadian Constitutional Foundation in Calgary, has been calling for the law to be repealed since at least 2012. He wrote about it in the Huffington Post in October 2013 and again for the Calgary Herald in September 2015.

But being effectively dead is not truly dead. The UK had a similar criminal 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 so-called "private prosecution." The accused was convicted but did not have to serve the prison term. The UK repealed its blasphemy law in 2008.

Winnipeg lawyer Douglas J Johnston called for the law to be repealed in the Winnipeg Free Press in February 2013.

Unlike almost all criminal offences, there doesn't have to be an element of intention to support a successful prosecution. In other words, for the Crown to convict, it needn't prove the accused actually intended to blaspheme. It need only prove the accused uttered blasphemous -- howsoever that might be defined in any particular scenario -- statements.

In September 2014 Alan Shanoff questioned the law in The Toronto Sun.

Surely, if we are to show solidarity with those who have suffered and continue to suffer under blasphemy laws in what amount to medieval societies, we must repeal this odious law in Canada.

Other legal experts have also spoken out. For example, Alan Shanoff wrote in Law Times News in November 2014:

Aside from being a victimless crime, blasphemy laws punish people for insulting a concept or an idea.  Since when is it a goal of the criminal law to protect concepts or ideologies as opposed to people?

Worse, blasphemy laws have served to punish minorities and thereby violate free-speech rights and freedom of religion. Blasphemy laws therefore serve as a tool to violate human rights, not to enforce them.

Following the Charlie Hebdo attacks in Paris in January 2015, Centre for Inquiry Canada and Humanist Canada made the largest concerted effort to repeal the law to date. They brought the issue before the Office of Religious Freedoms and Department of Justice and managed to get quite a bit of coverage at the time.

For example, Shanifa Nasser covered the story for Vice and the National Post. She highlighted the effect on those who've come to Canada from regimes where blasphemy laws are still enforced.

Some argue that the law is dead, a harmless historical relic. But that's little comfort to [ex-Muslim Iman] Willoughby, who emigrated from Saudi Arabia. "Will a judge say, 'Nah, I won't use this law. It's too old'? Is that enough protection for those like myself who speak openly against gods and religion?"

That coverage led to a number of columnists to speak out. Thomas Walkom wrote in The Toronto Star about the history of the law, including the most famous conviction under the law.

He was a Toronto atheist named Eugene (Ernest) Victor Sterry. In 1927, he was jailed and then deported to England for the offence of insulting Christianity.

Sterry’s particular crime was to call God an “irate Old Party who thunders imprecations” and prefers the smell of roast cutlets to that of boiled cabbage.

He also called God a “frenzied megalomaniac.”

Similarly, Grant LaFleche commented on the continued threats to free speech in The Toronto Sun:

Last week, Pope Francis said free speech is great so long as you don’t offend anyone’s religious belief.

“You can’t provoke, you can’t insult the faith of others, you can’t make fun of faith,” he said.

While the Pope naturally condemned the Charlie Hebdo murders, he also seemed to be saying that when you offend a religion, you should perhaps expect a punch in the face.

That amounts to saying, “I want free speech for views I like”, which isn’t free speech.

Verb magazine wrote an editorial calling for the law to be repealed in January 2015.

The problem we have with this isn’t that [then Foreign Minister John] Baird and [head of Canada's Office of Religious Freedoms Andrew] Bennett condemned the lashings. We encourage all political leaders to join the outcry over [Raif] Badawi’s fate; it is the right thing to do. The problem we have is that our government opposes and condemns blasphemy laws abroad while blasphemy laws still exist here at home. If that’s not the very definition of hypocrisy, we don’t know what is.

Karen Busby, writing for the Winnipeg Free Press looked at the broader issue of blasphemy ending with a look at the risks of letting the current prohibition stand.

It is debatable whether Canada's blasphemous libel laws would be considered by the courts a reasonable limit on expression in Canada. The law is perhaps impossibly vague. As 80 years have passed since the last prosecution in Canada, it could be argued disuse establishes that the law serves no pressing purpose. On the other hand, Muslims in Canada who feel obliged to protest images may think the time is ripe to test this law.

Aher Honickman writing for Rule of Law applauded Humanist Canada and CFI Canada for their efforts to abolish the law. He also points out that the even though no one has been charged, courts have continued to cite the law.

Section 296 has been cited in a handful of cases since the Charter of Rights and Freedoms was enacted in 1982, but its constitutionality has never been before the court.

Local feminist and pro-choice activist, Joyce Arthur called for the blasphemy law to be repealed in Rabble in March 2015.

Beyond these "official" punishments however, blasphemy laws create an atmosphere of legitimacy and impunity for people to persecute anyone who "offends" their religious sensibilities. Such offence may arise from things the person says or does, but too often the offence is their mere existence, or comes from false rumours. Indeed, countries that prosecute blasphemy tend to suffer disproportionately from community and mob violence, vigilantism against individuals, and the silencing and persecution of minorities. The [International Campaign to Abolish Blasphemy Laws] gives many examples of each.

While not explicitly mentioning Canada's law, Katrina Lantos Swett and M Zuhdi Jasser wrote about the need to repeal blasphemy laws around the world in The Huffington Post in February 2015.

It is particularly important for free nations to repeal their own codes. Several European countries, from Austria to Greece, Ireland to Poland, still have blasphemy laws on the books. Repealing them would send the right message.

CFI Canada legal intern Cassandra Martino wrote about the law in the Winter 2015-16 issue of Humanist Perspectives.

From a legal perspective, the statute is fundamentally flawed. Every crime has two parts: the forbidden act (actus reus) and the guilty intent (mens rea). Here, the forbidden act is “publishing a blasphemous libel,” but the statute doesn’t tell us what that is! And perhaps worse, it remains silent on what the guilty intent must be: is it simply the intent to publish something that turns out to be blasphemous, or is it instead the intent to publish something already known to be blasphemous?

An academic analysis, by Rebecca Ross, won the 2012 McCarthy Tétrault Law Journal Prize for Exceptional Writing.

The Canadian state has been gradually divesting itself of its religious past, seeking to move further and further away from the context in which it first codified its law against blasphemy. Considering that it is no longer used, and that internationally Canada does not support blasphemy prohibitions, it is incongruous for the prohibition to remain. While there is presumably little political will to become involved in repealing such a provision, and while little damage is done to Canadian citizens by its existence at the moment, it remains an example of the convergence of law and religion, and the complexities borne from therein, not the least of which is the collision between contemporary academic ideology and practical consequences of blasphemy internationally. This issue will continue to challenge the current generation of legal scholars, forcing them to confront issues of freedom and diversity both at home and abroad.

Finally, one of the most thorough analyses of Canada’s blasphemy law comes from Jeremy Patrick, who authored the first article I linked to. His 2013 PhD dissertation, entitled The Curious Persistence of Blasphemy: Canada and Beyond, is freely available and extensively covers (among other things) the history of Canada’s blasphemy law.

Of the five prosecutions for blasphemy published in Canadian caselaw reporters, four took place in Quebec. Three out of those four clearly involved anti-Catholic speech, and the fourth could be interpreted in such a matter. In none of the cases was the fact that attacks on Catholicism was involved instead of attacks on the Church of England in Canada raised as an issue.

Patrick concludes that while the law is most likely irrelevant, it is unlikely to be repealed without a concerted public campaign, perhaps like a House of Commons petition. However, he does end with a warning about letting the law sit idle.

The history of blasphemy statutes in other jurisdictions shows that assuming they will remain dormant forever is often risky; when prosecutors are desperate enough, or when public outcry is severe enough, recourse will be had even to a long-forgotten statute if no other alternatives present themselves.

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