Blasphemy and the Modern, 'Secular' State
| Author | Rebecca Ross |
| Position | Graduated from the Faculty of Law at the University of Victoria in 2011, and went on to article at a criminal law 'rm in Vancouver |
| Pages | 3-19 |
APPEAL VOLUME 17
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Winner of the 2012 McCarthy Tétrault Law Journal Prize
for Exceptional Writing
AR T I C L E
BLASPHEMY AND THE MODERN,
“SECULAR” STATE
By Rebecca Ross*
CITED: (2012) 17 Appeal 3-19
When twenty thou sand people gathered on Dam Squa re on t he day of
[eo] Van Gogh’s murder to demonstrate their anger, Aboutaleb was one
of only a handful of Muslims. is was a disappoi ntment to him. “Even
though they might have found Van Gogh an asshole,” he says, “they should
have been there to defend the rule of law.”1
INTRODUCTION
Many western countries, i ncludi ng Canada, have a history of legally prohibiting
blasphemy. Although rarely enforced in Canada, section 296 of the Criminal Code2 is
the product of a pa rticular legal p erspective that presumes bla sphemy e xists, that it can
be set apa rt from criticism of reli gion “in good faith and in decent lang uage”, and that
the state has a role to play in its cen sorsh ip.
In pa rticular, the Canadian blasphemy law rests on c ertain premises about
multicultural ism and freedom of relig ion that may have been consistent and just in early
twentieth century Canadian society; however, the y are gradually becoming unstable
in the modern era. Can a western, multicultural, ostensibly secular country such as
Canada have a blasphemy law on the books without ad mitting legal inc onsistency and
political hypocrisy? Answering this quest ion depends upon determin ing whether the
following premises hold true: that a law against blasphemy is consistent with freedoms of
expression and re ligion; that these laws are justified in a multic ultural society; a nd that
laws against blasphemy are neces sary to prevent public disorder. is paper wil l exa mine
these jus tifications in t he context of t he current socio-politica l climate, and will arg ue
that they do not justif y the current blasphemy laws in Canada.
* Rebecca Ross graduated f rom the Faculty of Law at the Universit y of Victoria in 2011, and went
on to article at a criminal law rm i n Vancouver. This paper was originally writ ten for the course
“Law and Religion” taught b y Professor Benjamin Berger, and would not have be en possible
without his support an d editorial advice. It was also inspired by h er thoughtful and gracious
classmates who continue to challeng e and encourage her.
1. Ian Buruma, Murder in Amsterdam: Liberal Euro pe, Islam, and the Limits of Tolerance (New York:
Penguin Books, 200 6) at 249.
2. RSC, 1985, c C-46.
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APPEAL VOLU ME 17
Contemporary international law is also wrestling with blasphemy prohibitions; this
context, as well as hig h-profile incidents of supposed-blasphemy, i llustrates that t he
existence of blasphemy laws is more problematic in a globalized world. is wider
context includes confrontations between acade mic theor y and pract ical reality, as well as
between religion and expression. e best example of these collisions is the contemporary
Western world’s re sponse to Isla mic concerns reg arding blasphemy, and I will use the
Canadian blasphemy prohibition as a startin g point to examine this larger issue. While
the arguments that follow could theoretica lly apply to any religion, I will focus on Islam.
As I will explain, this focus is due to contemporary Islam’s pronounc ed conflict with
both the international leg al community, and with creative figures in t he recent past.
I. CURR ENT LAW
A. Canada and the United Kingdom
Section 296 of the Canadia n Criminal Code prohibits blasphemous libel . e st atute
reads:
296.(1) Every one who publishes a bla sphemous libel is guilty of an
indictable offence a nd liable to imprisonment for a term not exceeding
two years.
(2) It is a question of f act whether or not any matter t hat is published is a
blasphemous libel.
(3) No person shall be convicted of an offence u nder thi s section for
expressing in good faith and in decent languag e, or attempting to establish
by argument used in good faith and conveyed in decent language, an
opinion on a religious subject.3
Jeremy Patrick traces the current incarnation of the bla sphemy law to a 1676 English case
in which the court stated that blasphemous utteranc es were not merely offensive to God;
they were offensive to the state:
For to say, religion is a c heat, is to d issolve all those obligations whereby
the civil socie ties are preserved, and t hat Christianity is pa rcel of the laws
of England; and t herefore to reproach the Christian religion is to spe ak in
subversion of the law.4
Despite this rationale, the crime of blasphemy e volved to include only those criticisms
of religion that were obscene or offensive,5 excluding attac ks on religion made “in go od
faith and in decent lang uage”, as bla sphemous libel has been defined in Canada since its
prohibition by statute in 1892.6
In En gland, unlike in Can ada, the concept of bla sphemy as a crime again st the st ate
meant that only Anglican Christia nity was protected by the bla sphemy prohibition.7 In
3. Criminal Code, RSC 2010, c C-34, s 296.
4. Jeremy Patrick, “Not Dead, Just Slee ping: Canada’s Prohibition on Blasphemo us Libel as a Case
Study in Obsolete Legislatio n” (2008) 41 UBC L Rev 193 at 198.
5. Ibid, at 199.
6. Ibid, at 201.
7. Peter Cumper, “T he United Kingdom and the U.N. De claration on the Elimination of Intoler ance
and Discrimination Based o n Religion or Belief” (2007) 21 Emor y Int’l L Rev 13 at 14.
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