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.
