On , Canada formally repealed its blasphemy law.
You may be thinking, “but wait, Indi, didn’t Ian Bushfield already say the blasphemy law was repealed ?” Yes and no. Bushfield reported that Bill C-51 had passed the Senate and House… but it technically wasn’t law yet. In his words:
it’s now simply a matter of our astronaut-turned-Governor General and general pro-science badass Julie Payette signing the bill. Royal assent is a mere formality, in theory – it would be a massive political scandal and a huge problem if the Governor General refused to give royal assent (and there are legitimate questions of whether they even could refuse) – and in this particular case, Payette was certain to give assent. Bushfield was technically jumping the gun a bit in his excitement – you could theoretically have still been charged with blasphemy if you had blasphemed between his post and Bill C-51’s royal assent… thought that would never have happened in reality (and if it had, it would have been moot anyway, because the blasphemy law was a dead letter law).
But now the theoreticals, technicalities, and formalities are past. The Bill C-51 is law. Section 295 of the Criminal Code is now consigned to history. Today, Canada no longer has a blasphemy law.
The repeal of the blasphemy law didn’t happen in a vacuum. It took the work over many years of many activists and groups. I couldn’t even begin to list every one or every major group that helped. If you’ve got a favourite secular, humanist, atheist, or freethought organization, then you should give them a show of thanks for their hard work. You could also thank your MP or Senator, and perhaps Justice Minister Jody Wilson-Raybould.
I wanted to take this opportunity, before we dust off our hands and flush the blasphemy law into memory and history, to give a quick review of exactly what we’ve managed to accomplish, how we got here, and what the implications are for things like hate speech. I’m going to do this in the form of questions – not really “frequently asked”, though some are – and answers.
Let’s start at the beginning.
How did we get a blasphemy law in the first place?
Short answer: history and legislative laziness.
I’m not an expert in Canadian history, and certainly not Canadian legal history, but as I understand it, it started in the late 1880s.
John Thompson would become, reluctantly, Prime Minister (and become the last Prime Minister to die in office ). But before that he was appointed by John A. Macdonald as Minister of Justice in … before even having a seat. When Macdonald died in office , Thompson was first choice to take over as PM, but he declined because he was a Roman Catholic, and he didn’t want to deal with the bigotry against Catholics at the time. He recommended John Abbott instead.
As Minister of Justice under Abbott, Thompson’s big project was the creation of the Criminal Code – the unification of criminal law in Canada. How did he do this? He basically copy-pasted the 1879 British criminal code proposed by serial loser James Fitzjames Stephen. Stephen’s hobby was to write codified laws for the UK… none of which were accepted. But his codified criminal law was cribbed by Thompson, slightly edited to work for Canada, and that became the Canadian Criminal Code .
That’s what we’ve been stuck with ever since. It was “updated” in the 1950s, but not in a way that mattered to the blasphemy law. (In fact, I think the only thing they changed was to raise the sentence from 1 year to 2 years.)
Now, if you want to ask how the UK got their blasphemy law (that was ultimately subsumed into Canadian law)… that’s a funny story. It involves a drunken shit disturber named Charles Sedley dancing naked on the balcony of a whorehouse, mocking scripture and sticking his dick into a glass of wine then drinking it as he toasted the King. His antics were so crude, people started throwing rocks at him, and were said to have
straddled the categories of blasphemy, indecency, and sedition, introducing the idea of prosecuting blasphemy as a criminal act (as opposed to a “sin” in ecclesiastical courts). And then a few years later, a man named John Taylor was put in the pillory for saying
Jesus Christ was a bastard,
a whoremaster, and that religion
was a cheat, in a case that formalized the idea of blasphemy as a crime against the state in law.
Some days I love this job.
Was it ever used?
Yes. And sometimes successfully; at least four times by my estimate.
The first case of blasphemy being part of a legal decision in Canada came in 1878. This predates the Criminal Code, and the decision isn’t really a conviction for blasphemy, so I don’t count it in my count of uses of the blasphemy law.
The case was Pringle v Napanee (town). In 1874, William Allen Pringle invited American Benjamin Franklin Underwood to do a series of lectures on freethought, with titles like “Evolution versus Creation” and “Fallacies and Assumptions of Theologians regarding the Bible and Christianity”. My, how much has changed since then! [/sarcasm]
Anyway, Pringle booked the Napanee town hall for the lectures, but after pressure, the town withdrew permission to use the town hall. Pringle sued for breach of contract.
The court ruled against Pringle, but what’s important to us is why. The town argued that they had every right to break the contract because they learned Pringle was going to do something illegal: blaspheme. Pringle argued, correctly, that there was no blasphemy law, that Canada had a law permitting freedom of religious expression, and that Canada wasn’t a Christian country. But in a devastating loss, the court decided that while all those things were technically true, Canada was still running under UK law… and the UK did have blasphemy laws (in common law, not in statutes)… and that the UK was a Christian country, which made Canada a Christian country by extension.
Nobody was charged for blasphemy because nobody actually blasphemed – the lecture was stopped before it happened – but this established that blasphemy was illegal in Canada.
The first actual blasphemy conviction in Canada was a pretty dull affair, and unfortunately I don’t know much about it because it was in Québec (the language barrier is a minor problem, the fact that Québec law is so different is the major issue). It happened in 1900 in R. v Pelletier. Pelletier was the publisher of a magazine called The Little Review, and one of their issues included an article that was – as far as I have been able to find out – a dialogue about the schism in Christianity between Peter and Paul over circumcision versus baptism. Whatever it was, it really pissed off the judge.
But the publisher pled guilty, and the judge let them off with a fine because they hadn’t actually written the article, and claimed they hadn’t even read it.
In 1925, there was another attempt to use the blasphemy law in R. v Kinler. This was also in Québec, and it involved a pamphlet that attacked the Catholic Church for basically being in league with Satan.
In this case, there was no conviction, because the judge reasoned that the pamphlet wasn’t attacking God… it was attacking clergy and the Church, and as far as the judge was concerned, that’s not blasphemy; blasphemy is attacking/insulting “the Divine”, attacking people and institutions is not attacking “the Divine”.
Then in 1926 came the infamous case of Eugene Sterry. As near as I can tell, this is the only blasphemy law case outside of Québec – it was in Ontario. It was also the only blasphemy law case that was appealed. And it was the only blasphemy law case that resulted in serious consequences, rather than just a fine. It also spawned the only serious attempt to repeal the blasphemy law before Bill C-51, 90 years later.
If you want to read about the Sterry case in detail, I highly recommend Jeremy Patrick’s 2010 article “Canadian Blasphemy Law in Context: Press, Legislative, and Public Reactions”. I’m not going to repeat everything in that article here. Instead, let’s round out the list.
The next case is… a little weird. But it is very important. In 1933 Albert St. Martin was convicted in R. v St. Martin. What St. Martin had done was write a series of articles in a Québec newspaper attacking the Catholic Church for its… charity. Yeah, I don’t really get it either. I mean, it kinda sounds like St. Martin may have been arguing that by giving to the poor, the Catholic Church was not helping to actually end poverty, and was instead keeping the poor on a leash to control them. Oh, and also, the Church wasn’t really giving everything to the poor, it was pocketing a lot of it, so the whole sham of charity was ultimately about keeping control of the poor and lining the Church’s pockets.
Now, the Kinler case mentioned above had concluded that you could only blaspheme against God… not the church. But the judge in St. Martin basically said: fuck that. He decided that attacking anything even remotely connected to religion was blasphemy. Not only was attacking the Church blasphemy, attacking charity itself was blasphemy because “charity is a religious virtue”.
That decision became very important in the final blasphemy law conviction in Canada. The 1935 case R. v Rahard was a pretty mundane case of interdenominational squabbling. Rahard was an Anglican minister who put up a poster ragging on Catholicism. That shouldn’t be a problem… except this was in Québec. The minister was charged, and the judge used the St. Martin case to justify the argument that insulting the Catholic Church (rather than just insulting God) was blasphemy.
So these are all the cases of the blasphemy law being used in court:
|1900||R. v Pelletier||Québec||Publisher “unknowingly” published article about circumcision versus baptism schism||Guilty plea||$100 fine|
|1925||R. v Kinler||Québec||Pamphlet accusing Catholic Church of being in league with Satan||Acquitted||―|
|1926||R. v Sterry||Ontario||Newspaper criticizing Old Testament God||Convicted; upheld on appeal||60 day jail sentence (+ deportation)|
|1933||R. v St. Martin||Québec||Newspaper articles criticizing Catholic charity||Convicted||$100 fine|
|1935||R. v Rahard||Québec||Anglican minister trash-talking Catholicism||Convicted||$100 fine|
4⁄5 saw convictions; an 80% conviction rate. One was a guilty plea. 3⁄4 resulted only in a fine (of $100 in all cases); the fourth saw jail time and deportment (technically, Sterry voluntarily agreed to be deported, but there are reasons to believe he only did so out of fear of even more jail time). 4⁄5 were in Québec, the fifth in Ontario. All were about blasphemy against Christianity, and 3⁄5 – all in Québec – were specifically about blaspheming against the Catholic Church (note: not Catholicism in general, specifically against the Church).
The blasphemy law was last used in 1935? Didn’t I read something about Monty Python’s Life of Brian?
In 1979, the distributors of Monty Python’s Life of Brian were charged with blasphemy.
However, the charges were hastily dropped when Ontario’s Attorney General refused to prosecute. In fact, they were quite annoyed that charges had been laid in the first place, and thought the whole thing was an embarrassment.
Incidentally, the Attorney General in the 1926 Sterry case was also annoyed that someone had actually been charged with blasphemy. But in his case, he figured: well, we’re in it now, might as well see it through.
So 1935 was the last conviction under the blasphemy law, and also the last case prosecuted. I believe the 1979 Life of Brian incident maybe the last time blasphemy charges were laid, but there was no prosecution (and certainly no conviction). I’m not sure how many other times blasphemy charges have been laid and not gone to trial.
Were there ever any attempts to repeal the blasphemy law?
Prior to 2017, I am only aware of a single serious attempt.
At the height of the kerfuffle over the Sterry case in 1927, an MP named J.S. Woodsworth – a CCF (precursor to the NDP) representative from Winnipeg who was known for championing underdog causes – tabled a bill to repeal the blasphemy law, which was then §198.
Unfortunately… he kinda bungled it.
The first problem was that the government in power at the time – one of the Mackenzie King governments – was very much not on his side. The repeal became a partisan issue. Not only did the Minister of Justice at the time refuse to help Woodsworth out, he secretly prepared a trap that would embarrass Woodsworth and kill the bill cold.
The second problem is that Woodsworth didn’t really think his bill through… which created the opportunity for the Justice Minister’s trap.
This is the entirety of Woodsworth’s 1927 bill:
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
1. Section one hundred and ninety-eight of the Criminal Code, chapter thirty-six of the Revised Statutes of Canada, 1927, is hereby repealed.
Seems simple enough, right? What could be wrong with it?
Well, the really balmy thing is that that bill – with that exact wording (not counting changing the statute section number) – would work just fine today (well, yanno, not today because of the repeal, but a couple days ago). But in 1927, the Canadian Criminal Code was just a band-aid sitting on top of a big pile of truly ancient United Kingdom common law. If you just ripped away some part of the Criminal Code without replacing it with something, you would fall back on that common law. And common law not only had blasphemy as a crime, it didn’t have the mitigating language of the Criminal Code blasphemy law (which excuses expressing
an opinion on religious subject
in good faith and in decent language).
In other words, had Woodsworth’s bill passed, not only would blasphemy still be a crime in Canada… it would have been even worse.
The Minister of Justice knew that, but said nothing so that he could spring it on Woodsworth in open debate. He also managed to bait Woodsworth into reading Sterry’s article in Parliament, which triggered a big fuss about decorum that ultimately lost Woodsworth all his support. (They never did read Sterry’s article in Parliament.)
The blasphemy law could have been repealed successfully in 1927 with slightly different wording. Basically, instead of just “the blasphemy law is repealed”, something more like “blasphemy is no longer a crime”. That’s it; that’s all that would have been needed.
(I believe that the 1950s update of the Criminal Code changed the situation with regards to common law and criminal law – all common law “crimes” were removed from criminal law, so only the Criminal Code (and a few other statutes) define criminal law in Canada now. But I’m not an expert on legal history, so don’t quote me on that.)
Following that attempt, I am not aware of any serious attempt to repeal the blasphemy law before Justice Minister Jody Wilson-Raybould’s bill in 2016.
What about the Charter?
Ah, excellent question. The simple answer is: no one really knows for sure.
The more interesting answer is… well… more interesting.
Okay, so in 1981, Canada undertook the project of “patriation”, which took authority for Canadian law away from the UK parliament, and ended with the 1982 Constitution Act, of which the Charter is the first chunk.
Section 2 of the Charter lists the fundamental freedoms that every Canadian has, and among those freedoms is
freedom of thought, belief, opinion and expression (in §2(b)).
That seems to pretty much rule out the possibility of a blasphemy law. There don’t seem to be any grounds for denying our fundamental right to freedom of opinion and expression with regards to blasphemy. Blasphemy is, as they say, a victimless crime. And contrary to what a lot of far right agitators think and claim, there is no protection in Canadian law for “hurt feelings” or “offence” (no, hate speech law does not protect anyone from feeling “offended”).
So it seems pretty clear that with the coming of the Charter, the blasphemy law was effectively dead.
Unfortunately, we can’t say that for sure, because it’s never been tested in court. The last time the blasphemy law came up in court was 1935. The last time it was even used in a charge was in 1979. We are pretty sure the blasphemy law would never have survived a Charter challenge; but we’re not absolutely sure because it never came up.
The reason Jody Wilson-Raybould included the blasphemy law in C-51 was specifically because it is widely believed to be dead letter law under the Charter. That was the whole point of C-51… well part of it, anyway. C-51 was about removing crap from the Criminal Code that has been made obsolete or archaic by the Charter and other modern jurisprudence.
So there’s no clear answer for how or whether the blasphemy law would work in the post-Charter legal regime.
And now there never will be.
So what exactly is Bill C-51
The first thing I want to clarify is that this Bill C-51, introduced by the Trudeau government in 2017 is not the same Bill C-51 as the very controversial Bill C-51 introduced by the Harper government in 2015. The 2015 Bill C-51, also known as the Anti-Terrorism Act, was about giving government the power to spy on Canadians. The 2017 C-51 was an entirely different bill.
One of the things the Liberals promised in their campaign was that on being elected, they would clean the crud out of the Criminal Code.
This idea didn’t come out of nowhere. “Zombie laws” have been a concern for some time. Those are laws that have been struck down as unconstitutional, but remain on the books. This can create confusion – the most famous case is the Vader trial, where a man was mistakenly convicted on murder charges in 2016 on the basis of a law that had been struck down in 1990. (He was given a retrial.)
And then, of course, there are also those laws on the books that are laughably archaic, like laws against duelling, or “alarming the Queen”, or water-skiing alone. And, of course, blasphemy. When asked specifically about the blasphemy law, Justice Minister Jody-Wilson Raybould gave a promising response, suggesting it was in her cross hairs for repeal.
Unfortunately, that’s not all it was.
C-51 was an omnibus bill. In addition to cleaning up the criminal code, it also did multiple other things, including:
It introduced a requirement for the Justice Minister to do “Charter statements”, that explain the potential impacts of every bill they table on Charter rights.
It modernized law about consent to sexual activity. For example, it made it clear that an unconscious person cannot consent.
It expanded “rape shield” protections, so that people’s sexual history is not allowed as evidence in rape trials.
Bill C-51 ultimately took over a year and a half to pass, and nearly all of that was due to two reasons:
- Debate over cannabis legalization (Bills C-45 and C-46, among others), took up most of the first half of 2018.
- Debate about the new consent laws and evidence requirements in sexual assault cases took up most of the second half of 2018.
As for what took up so much of the time in 2017… I’ll save that for the next section.
So there were delays, and it took a bit of back-and-forth, but none of it had to do with the blasphemy law. And ultimately, C-51 did get passed.
What was “the biggest setback of 2017”?
“The biggest setback of 2017” was the title of a post I wrote about a major disappointment in the process toward repealing the blasphemy law.
When originally tabled, C-51 was going to repeal several “dead letter” laws in the Criminal Code. §296, the blasphemy law, was one of them, but others were:
- §365: pretending to practice witchcraft;
- §49: alarming the Queen;
- §143: advertising that you will accept the return of stolen goods “no questions asked”; and
- §163: publishing crime comics.
One of the other laws that was going to be repealed was §176, which read:
Marginal note: Obstructing or violence to or arrest of officiating clergyman
176 (1) Every one who
(a) by threats or force, unlawfully obstructs or prevents or endeavours to obstruct or prevent a clergyman or minister from celebrating divine service or performing any other function in connection with his calling, or
(b) knowing that a clergyman or minister is about to perform, is on his way to perform or is returning from the performance of any of the duties or functions mentioned in paragraph (a)
(i) assaults or offers any violence to him, or
(ii) arrests him on a civil process, or under the pretence of executing a civil process,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
Marginal note: Disturbing religious worship or certain meetings
(2) Every one who wilfully disturbs or interrupts an assemblage of persons met for religious worship or for a moral, social or benevolent purpose is guilty of an offence punishable on summary conviction.
(3) Every one who, at or near a meeting referred to in subsection (2), wilfully does anything that disturbs the order or solemnity of the meeting is guilty of an offence punishable on summary conviction.
Now, this is not really a blasphemy law, and any plausible case where this law may be needed is already covered by other laws. Assaulting a clergyman or detaining him without just cause is already covered by the laws against assaulting anyone, or detaining anyone without just cause. And disturbing a religious service is covered by the laws that cover disrupting any private (or public!) event.
So the law is completely unnecessary, it privileges religion over non-religion, and it uses Christianity-specific, sexist language. Seems like a no-brainer for repeal, right?
Unfortunately for us, religious groups across Canada mobilized and pressured Conservative MPs to fight the repeal of §176. And they were much better organized than we were.
The repeal of §176 was removed from C-51, and instead, it was updated with more modern, inclusive language.
That was an enormous disappointment, and it remains to be seen whether it will have any lasting impacts on free expression or the criticism of religion in Canada. Ian Bushfield did a review of the jurisprudence involving §176, and it doesn’t seem like there’s any real cause for concern. But we’ll see.
Isn’t blasphemy still effectively illegal, thanks to hate speech law?
There is a lot of ignorance and misinformation out there about hate speech law, mostly coming from the right. A lot of the time, they try to imply that saying anything “mean” is hate speech, or that strongly-worded but legitimate criticism of religious ideas is hate speech. All of that is complete bullshit.
In Canadian law, the relationship between legitimate criticism of religion, blasphemy, and hate speech is easy to illustrate. It’s a Venn diagram of 3 completely distinct circles.
That’s a nerdy way of saying that legitimate criticism of religion, blasphemy, and hate speech are all completely unrelated in Canadian law. There is no overlap between them.
Now, that doesn’t mean you couldn’t do them together. You could, for example, say: “The Christian nativity story is problematic from a feminist perspective because of the power imbalance between God and Mary when he impregnated her (that’s legitimate criticism). Also God is a rapist (that’s blasphemy) and Christians are vermin that should be exterminated (that’s hate speech).”
But any one, distinct statement can only be one of the three. If a statement is legitimate criticism, then by definition it can’t be blasphemy, because the blasphemy law specifically excluded legitimate criticism. And legitimate criticism can’t be hate speech because hate speech requires actively calling for or encouraging violence or discrimination against a group… and that’s not criticism, in any sense.
And hate speech and blasphemy are both obviously different because one is about advocating for violence against a group of people while the other is targeting religious beliefs (and possibly institutions).
If you made a statement that was indictable as both blasphemy and hate speech last week, then it is still indictable as hate speech this week. If your statement was indictable last week as blasphemy but not as hate speech, then it will not be indictable as hate speech today.
So the repeal of the blasphemy law has literally zero impact on hate speech. It’s no more or less illegal than it was last week, and the exact same stuff that was hate speech last week is still hate speech this week. Nothing at all has changed on that front.
So what changes now?
First of all, almost nothing of what you were saying before was blasphemy under the law anyway. And I say that as an atheist activist who routinely criticizes religion; 99+% of what I’ve ever written or published wouldn’t get me charged with blasphemy even if the blasphemy law had been in active use at the time. The blasphemy law always excluded legitimate criticism made in good faith, and that’s what atheists do almost all of the time. They may be snarky, rude, irreverent, or even outright insulting, but their ultimate goal is almost always making a valid criticism of religion.
You see, even when the blasphemy law was in effect and being used, there was always vigorous debate about what exactly counts as blasphemy. It was decided very early on that mere disagreement with religious precepts doesn’t count, because otherwise every religion would be “blaspheming” against every other religion. (It was actually pointed out in the early days of the development of blasphemy law in the UK that if merely calling a religion’s beliefs “bullshit” was blasphemy, then the Anglican Church – which was part of the government – was committing “blasphemy” against the Catholics.) But the real debate was about the mens rea of blasphemy, or the “intentionality” of blasphemy. To put it simply: if you write/say something blasphemous for any reason other than specifically to insult or denigrate religious beliefs, does that count as blasphemy? For example, if you said “Muhammad was a pedophile” as part of an essay discussing historical and cultural contexts of child abuse… that’s very different from saying the same thing just to piss off Muslims. The former would not be blasphemy; the latter would.
So unless you’re just an asshole who was just out to hurt religious people, anything you said about religion that was nasty or rude was probably part of speaking out against some injustice or other being done by religion. And that wouldn’t have fallen within the scope of the blasphemy law.
In other words, most atheists – myself included – have been doing blasphemy for the right reasons most of the time. And blasphemy done for the right reasons wouldn’t have been an offence under the blasphemy law. So even if it had been a live law, it wouldn’t really have mattered.
But, let’s face it, sometimes we do blaspheme just for the hell of it. That might have fallen afoul of the blasphemy law. So it’s cool we don’t have to worry about that anymore.
But of course, we didn’t really worry about it before. That’s because although the blasphemy law has been on the books my whole life, it’s also been effectively dead for the same length of time.
So nothing’s really changed. If we’re to be completely honest, the blasphemy law has never really been a real issue in our lives.
So why do we care so much about its repeal?
Well, a couple reasons.
First, even though the blasphemy law was dead letter law, it was still on the books. That turned out to be a headache whenever we tried to speak up in defence of our atheist brothers and sisters being persecuted in other countries. A non-Canadian atheist would be imprisoned, attacked, or harassed for blasphemy (sometimes when they hadn’t even actually blasphemed!) and Canadians would step up to help them… and then the persecutors would brush our protests aside by saying we had no right to criticize them when we had our own blasphemy law. That kind of thing happened quite often. It never really mattered that the blasphemy law was never used and probably wouldn’t have stood even if it had been. The mere fact that it was there undermined our efforts.
Well, now we can look those motherfuckers square in the eye and say that we don’t have a blasphemy law. We outgrew that archaic, repressive shit. That puts more pressure on those who use blasphemy laws to persecute; it makes it harder for them to justify it.
But it’s also just a matter of pride, and an encouragement to believe in human progress.
You see, even if it were true that consigning our blasphemy law to the dustbin of history served absolutely no practical purpose, it would still be an important action in and of itself. That’s because growing out of archaic, regressive practices, beliefs, traditions, and laws is part of moving forward as a civilization.
If the blasphemy law were merely a symbolic vestige of our intolerant past, and nothing more, then its repeal would still be symbolic of our evolving beyond that past.
That’s why I’m so proud of this repeal. It’s why I’m proud to have been part of it; so proud to be able to stand alongside the many thousands of fellow Canadians and Canadian organizations who worked to make this happen.
It’s been a very rough couple of years. The regressive right has risen, and dominated the cultural conversation at every level, and even attained a disturbing amount of power recently. It’s easy to look at all that and get disheartened, or even disillusioned about progress.
But we are making progress. We are moving forward, even through every setback, toward a more progressive, humanistic future. We have a lot of work to do, and we cannot relax or get complacent. We are losing battles here and there. But we are winning the greater fight.
One can quibble about how big a step this repeal is, but one cannot deny that without the blasphemy law, Canada is at least a slightly better place to live in than it was with it.
I’ll take that victory.