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Derek James From Headshot

Canada's Hypocritical Blasphemy Law

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On September 30, 2005, the Danish newspaper Jyllands-Posten published the now notorious cartoons of the prophet Muhammad. The cartoons were republished by newspapers around the world and over 200 people died as protests and riots erupted in response. Prime Minister Stephen Harper issued a statement that he regretted that Canadian newspapers had also published the cartoons, but that Canadians had a right to freedom of expression.

On February 19, 2013, the Canadian government opened the Office of Religious Freedom within the Foreign Affairs and International Trade department and mandated the new office to protect and advocate for religious minorities, oppose religious hatred and intolerance, and promote the Canadian values of pluralism and tolerance around the world.

But there is some irony here. While the Canadian government publicly defends the freedom to publish cartoons that mock a religious figure and looks abroad to protect religious minorities from oppression, section 296 of the Criminal Code makes it an indictable offence to publish blasphemous materials in Canada. If an accused is convicted under section 296, he or she is liable for up to two years of imprisonment. In other words, Canada is promoting tolerance and the freedom to speak freely about religion abroad while restricting each domestically.

Most Canadians probably do not know what blasphemy is, let alone that publishing blasphemous materials is a criminal offence. To blaspheme is to insult or show contempt or a lack of reverence for God or other things sacred.

Originally, the prohibition on blasphemous libel was specifically tied to publishing materials that brought the Christian religion into disrepute. The courts held it to be a criminal offence to publish any profane words vilifying God, Jesus Christ, the Holy Ghost, the Bible, or Christianity if done with the intent to shock or insult believers, or mislead the ignorant and unwary. Even though the most recent decision on section 296 arguably generalized the prohibition so that it may now be illegal to blaspheme other religions as well, this has not been tested in court and the prohibition has fallen into disuse.

It should be 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. Second, the Canadian Charter of Rights and Freedoms guarantees everyone the right to freedom of expression -- this includes the right to speak freely about religion. And third, any sort of restriction on what the government will allow us to say on religious topics seems a potentially dangerous limitation on freedom of expression.

There have been few blasphemous libel prosecutions in Canada, and none since the 1930s. 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 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.

Aside from the previous 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, and more so now that Canada has an Office of Religious Freedom intended to promote religious tolerance. Remember that famous admonition to take the plank 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 remains an unanswered question yet to be tested in court. Sadly, there are cases that refer to section 296 as a potentially justifiable violation of freedom of expression, and there is no shortage of cases where the courts have deferred to the government and upheld restrictions on speech. The answers to such questions are inherently uncertain and court decisions can often yield surprising results.

For these reasons, it's best to repeal section 296 rather than to leave it in force and assume that it will never be used for ill-purposes in the future.