Tuesday, August 3, 2010

"Des crimes religieux: aux confluents du droit pénal et de la liberté de religion"

Marie-Pierre Robert, Des crimes religieux: aux confluents du droit pénal et de la liberté de religion, 50 Les Cahiers de Droit 663 (2009).

This article, which I would roughly translate as Religious Crimes: The Intersection of Criminal Law and Freedom of Religion,* is a Canada-focussed piece about the nature of secularism and how that principle relates to criminal laws that seem to have a religious motivation for their existence. The discussion of secularism in Canada is interesting, and the article concludes that, despite the lack of an explicit textual guarantee in the Charter, the courts have furthered the view that the state should treat religious subjects in a neutral, non-preferential manner. As Robert says, "All the necessary ingredients of securalism are present. Secularism exists in fact and in law, but this secularism is not proclaimed." (p. 672)

After a general discussion of secularism in Canada, the article moves on to distinguish two types of laws originally motivated by religious beliefs: those which have clear secular purposes and which do not discriminate on the basis of religious belief (laws against murder, theft, etc.) contrasted with laws that originally had a discriminatory religious purpose that can not be justified today (polygamy and blasphemous libel). Canada's hate propaganda law, interestingly enough, is deemed acceptable because it protects all religious and non-religious persons, whether belonging to a majority or minority faith.

Much of the article is devoted to examining the case for holding polygamy and blasphemous libel laws unconstitutional. Robert argues that Canada's long-standing ban on polygamy was originally motivated not by a desire to protect vulnerable women and girls (the rationale most often given by supporters of the ban today), but by animus towards American Mormons who were starting to cross the border in larger numbers. She argues that the ban on blasphemous libel was motivated by a desire to protect Christianity, and that the law does not protect religious minorities ("Why criminalize blasphemous libel? To protect the Christian religion, that's it" at p. 687). I tend to think the motives behind Canada's 1892 blasphemous libel law are perhaps more complex, and that the question of whether the law protects religions other than Christianity is an open one.

Although I don't anticipate seeing the blasphemous libel provision litigated anytime soon, it will be quite interesting to see the results of the B.C. reference over the constitutionality of polygamy bans.

* All quotations here are my translation, and apologies for any mistranslations or misunderstandings of the original French text.

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