New Report on Blasphemy in Seven Countries

As noted in Howard Friedman's Religion Clause Blog, an organization called Freedom House has issued a major report titled Policing Belief: The Impact of Blasphemy on Human Rights. The report examines blasphemy in seven countries (Algeria, Egypt, Greece, Indonesia, Malaysia, Pakistan, and Poland) and concludes that such laws severely impact freedom of expression and religion. I haven't yet read the report, but I hope to do so and discuss it in more depth in a future post.

Research Note: Blasphemy in Saskatchewan

As a research note, on January 8, 2009, I sent an inquiry to the Saskatchewan Archives. They responded by stating that a keyword search of their internal database of criminal cases showed no results for "blasphemous", "blasphemy", or "libel."

Research Note: Blasphemy in Nova Scotia

As a research note, on January 8, 2009, I searched the Archives of Nova Scotia's Bosa Nova database for "blasphemy" and "blasphemous" and received no hits. I also corresponded with a researcher at the Archives who had been looking into libel cases in Halifax for the period 1830 to 1920, and he reported finding no cases of blasphemous libel.

Research Note: Blasphemous Libel in Manitoba

On December 4, 2008, I searched the Archives of Manitoba Keystone Descriptive Database for "blasphemy", "blasphemous", and "libel" and turned up no hits. For future researchers in this area, it appears that the Archives contain microfilm-only files that may be worth searching, include Winnipeg Police Court records and Winnipeg Court of Queen's Bench index books and judgment rolls.

"I.L. Honsberger--Long Branch, Ontario--Inquiry re blasphemy laws"

"I.L. Honsberger -- Long Branch, Ontario -- Inquiry re blasphemy laws", RG13-A-2, vol. 262 (1921)

Purely as a reference note, I examined the above file (held by Library and Archives Canada) and found that it contained no useful information regarding Canada's blasphemy laws.

"Separating Church and State Our Tradition"

This column originally appeared in a November, 2006, issue of the The Windsor Star.

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Separating church and state our tradition

Jeremy Patrick, Special to The Windsor Star

Published: Monday, November 27, 2006

Is the separation of church and state Canadian? Much has been written recently about the increasing influence of the "religious right" in Stephen Harper's Conservative government. The commentators share a fear that decisions affecting all Canadians are increasingly being made on the basis of religious faith rather than sound public policy. In the United States, controversies over the proper relationship between religion and government are often settled by judicial invocation of the "separation of church and state" reflected in the American Constitution's Establishment Clause: "Congress shall make no law respecting an establishment of religion."

Canada's Charter of Rights and Freedoms contains no such clause, however. Although it guarantees an individual's freedom of religion, it does not explicitly forbid the state from endorsing or supporting a particular religion (or religion in general). During the last federal election, Harper stated that "the separation of church and state is an American constitutional doctrine, not part of Canada's legal or political tradition." This simply isn't true. Indeed, Canada has a long history of separating church and state in most contexts.

In the late 1700s and early 1800s, the government provided extensive privileges to certain religious denominations. The Church of England, for example, received special favouritism in political appointments, the selection of legislative and military chaplains, and marriage laws. In Quebec, the Roman Catholic Church was closely enmeshed with the provincial government. However, these close links between religion and government slowly fell away. The enormous controversy over the Clergy Reserves is a good example of this trend. In the Constitutional Act of 1791, one-seventh of all public land in Upper and Lower Canada was allotted for the support of Protestant clergy. Income from this land, comprising almost two and half million acres, was channeled solely to the Church of England. Not surprisingly, this provoked intense jealously among other religious denominations, and the controversy was seen as a contributing cause to the failed rebellion of 1837. To placate some of the denominations, the Reserves were partially opened to other denominations in 1840. According to the great Canadian religious historian John Moir, even the mere existence of the Reserves in this form led to a 'bitter and noisy' dispute, and after several more years of controversy, the Reserves were finally abolished in 1854.

The disentanglement of religion from government did not occur overnight, it was a gradual process that is still going on today. However, the proclamation of the Charter in 1982 sped up this process. Although theCharter doesn't have an "Establishment Clause" per se, the courts have used other provisions of the document to reach the same effect. For example, the courts have held that the Federal Sunday Closing Act was unconstitutional because it had a religious purpose; that public schools could not teach Christianity or begin the school day with recitations of the Lord's Prayer or Bible verses; that legislatures cannot begin their meetings with sectarian prayers; and that property disputes between competing factions of a church must be resolved by secular principals.

There are still some remnants of an earlier age, but they appear to be of the relatively minor, non-coercive type of symbolism that in the United States is referred to as "ceremonial deisms." For example, the Canadian national anthem makes reference to a deity, the House of Commons opens with an avowedly non-denominational prayer, and the Queen, formal head of state, is required by English law to be Protestant. Otherwise, with one exception, it's hard to think of any legislation or practices in Canada that would constitute a clear violation of the American Constitution's Establishment Clause as interpreted by the U.S. Supreme Court. The major exception, of course, is the existence of publicly funded religious schools in Ontario. Since Confederation, the Constitution has guaranteed the right of Catholic schools in the province to receive support from the government. This is clearly not a minor "breach" in the "wall" between church and state. However, even this link between church and state is allowed only because it is specifically guaranteed in the Constitution. Otherwise, the Charter'sguarantee of religious freedom and equality would probably be applied by the courts to invalidate the practice. The recent voluntary decisions to end public support of religious schools in Newfoundland and Quebec are simply further examples of the ongoing trend to separate church and state in Canada.

New controversies always affect how the state views its role vis-a-vis religion. Should Sharia law be enforceable? Can courts force an Orthodox Jewish husband to ask for a religious divorce?These are all questions that will have to be answered in the future. What's clear is that the country's legal and political history demonstrate that the separation of church and state is a Canadian value, not just an American one.

Jeremy Patrick is an Assistant Professor in the American-Canadian joint degree program at the University of Detroit Mercy School of Law. His article "Church, State, and Charter: Canada's Hidden Establishment Clause" is forthcoming in a comparative law journal.

"Blasphemy Law Should Be Repealed"

The following newspaper column originally appeared in the July 6, 2008, issue of the Toronto Star.

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Blasphemy law should be repealed

Toronto Star

July 06, 2008

Jeremy Patrick

Last month, after a long debate, England abolished the ancient common law offence of blasphemous libel. Historically, the crime of blasphemy was committed whenever "contemptuous," "reviling," or "scurrilous" statements were made about God, Jesus Christ or the Church of England.

The offence had been the basis for hundreds of prosecutions throughout the 18th and 19th centuries before falling into a period of dormancy after 1922. Surprisingly, however, the offence was suddenly resurrected as the basis of a successful private prosecution against a gay newspaper in 1977. Subsequent private prosecutions against Salman Rushdie's book The Satanic Verses in the late 1980s and against the musical Jerry Springer: The Opera just last year were unsuccessful but equally disturbing to modern proponents of free speech.

What most Canadians (even most lawyers) don't realize is that our own Criminal Code also prohibits blasphemous libel and sets a penalty of up to two years in prison. The statute doesn't define what constitutes a blasphemous libel. Instead, it only notes that statements made in "good faith and conveyed in decent language" are exempted.

Although the last known government prosecution was in the 1930s, the law was invoked in private prosecutions at least as late as 1979. Why should we worry about a law that hasn't been used in decades? Dusty old laws can often be perfectly innocuous and even humorous – like the purported Kentucky law that says you have to remove your hat if you come across a cow on the road.

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. And unfortunately, dead laws don't always stay dead when prosecutors are desperate: a statute prohibiting the spreading of "false news" was inserted into the first Criminal Code in 1892, used once in 1907, again 63 years later in 1970, and for the third and final reported time in a high profile conviction (overturned on appeal) of Holocaust-denier Ernst Zundel in the late 1980s.

The Charter, of course, provides strong guarantees of freedom of expression and religion. If the blasphemy law were to be invoked again, it's likely a court would strike it down. Even this should be of limited consolation. The cost and time to mount an effective Charter defence is not insignificant, nor is it perfectly clear that an enterprising Crown attorney couldn't analogize the crime of blasphemous libel to constitutionally valid laws prohibiting anti-religious hate speech.

Of more practical concern, however, is that the existence of the crime of blasphemy in Canadian law could make it harder for the Canadian government to criticize repressive blasphemy prosecutions in countries where free speech is given short shrift. For example, according to the March 6 edition of the Los Angeles Times: "A funny thing happened in November when Britain launched a righteous protest over Sudan's arrest of a British schoolteacher accused of insulting Islam by letting her students name a class teddy bear Muhammad. But it didn't take long for someone to point out that Downing Street was standing on diplomatic quicksand: Britain itself has a law making blasphemy a crime."

Even if the risk of appearing hypocritical is small, the ongoing existence of a criminal prohibition on blasphemy in the Criminal Code directly conflicts with Canada's public- and self-image as a pluralist, multicultural democracy with a strong commitment to freedom of speech and religion.

The prohibition is simply a sad reminder of a time when disagreeing with mainstream religion and using "uncouth" speech was enough to merit a prison sentence. We should be disappointed that Parliament has let it remain on the statute books for as long as it has.

Jeremy Patrick is a PhD student at Osgoode Hall Law School in Toronto and has written on blasphemous libel. He welcomes feedback at jhaeman@hotmail.com.