Blasphemous libel
Encyclopedia
Blasphemous libel was originally an offence under the common law
of England
. It is an offence under the common law of Northern Ireland
. It is a statutory offence in Canada
and New Zealand
. It has been abolished in England and Wales
.
It consists of the publication of material which exposes the Christian
religion
to scurrility, vilification, ridicule and contempt, and the material must have the tendency to shock and outrage the feelings of Christians. It is a form of criminal libel
.
.
, blasphemous libel is an offence under section 296(1) of the Criminal Code
. It is an indictable offence
and is punishable with imprisonment for a term not exceeding two years.
Section 296 is subject to section 2 of the Canadian Charter of Rights and Freedoms
, as read with section 1 of that Charter.
Section 296 was formerly section 260 of the Criminal Code (R.S., c. C-34).
The Crown last prosecuted a charge of blasphemous libel in R. v. Rahard [1936] 3 D.L.R. 230 (Court of Sessions of the Peace, Quebec, 1935). In that case, the court adopted an argument that prosecutor E. J. Murphy had proffered in the case of R. v. Sperry (unreported) 1926. Mr. Murphy put the issue this way:
In Rahard, the Court found the Rev. Victor Rahard of the Anglican Church guilty of blasphemous libel for his aspersions upon the Roman Catholic Church.
The words "calculated and intended to insult the feelings and the deepest religious convictions of the great majority of the persons amongst whom we live", which the court used, were adopted from the summing up of Lord Coleridge, LCJ. in R v Bradlaugh (1883) 15 Cox CC 217 at 230.
R. v. St. Martin (1933) 40 Rev. de Jur. 411 was also cited in R. v. Rahard. Cf. R. v. Kinler (1925) 63 Que. S.C. 483.
Because blasphemy appears to be an obsolete crime in Canada, Canadians complain instead of hate speech. The Criminal Code of Canada prohibits hate speech that targets an "identifiable group", which includes a religious group. Canada's provinces and territories have human rights commissions or tribunals which can award compensation in matters of hate speech.
There is a French text of this provision that is equally authentic.
, §13 of the Defamation Act, 1961 prescribed penalties for blasphemous libel, but did not define the offence. The only attempted prosecution since the 1937 Constitution
was in 1999; the Supreme Court
ruled that the Constitution had extinguished the common law offence of blasphemous libel, since when "it is impossible to say of what the offence of blasphemy consists". The Defamation Act 2009 defines a new offence of "Publication or utterance of blasphemous matter", which was held to be required by Article 40.6.1.i. of the Constitution, which states "The publication or utterance of blasphemous, seditious or indecent matter is an offence which shall be punishable in accordance with law".
it is an offence under section 123 the Crimes Act 1961
to publish any blasphemous libel. The maximum punishment is one year imprisonment. No one can be prosecuted without the consent of the Attorney General.
, the common law offence of blasphemous libel was abolished on 8 July 2008 by the Criminal Justice and Immigration Act 2008
, having been replaced with the Racial and Religious Hatred Act 2006
.
.
Section 7 of the Libel Act 1843
creates a defence.
See also the Criminal Libel Act 1819, the Libel Act 1792
and section 8 of the Law of Libel Amendment Act 1888.
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
of England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
. It is an offence under the common law of Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
. It is a statutory offence in Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
and New Zealand
New Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
. It has been abolished in England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
.
It consists of the publication of material which exposes the Christian
Christian
A Christian is a person who adheres to Christianity, an Abrahamic, monotheistic religion based on the life and teachings of Jesus of Nazareth as recorded in the Canonical gospels and the letters of the New Testament...
religion
Religion
Religion is a collection of cultural systems, belief systems, and worldviews that establishes symbols that relate humanity to spirituality and, sometimes, to moral values. Many religions have narratives, symbols, traditions and sacred histories that are intended to give meaning to life or to...
to scurrility, vilification, ridicule and contempt, and the material must have the tendency to shock and outrage the feelings of Christians. It is a form of criminal libel
Criminal libel
Criminal libel is a legal term, of English origin, which may be used with one of two distinct meanings, in those common law jurisdictions where it is still used....
.
Defence
In both Canada and New Zealand, it is not blasphemous libel for a person to express, in good faith and in decent language, or to attempt to establish by argument, in good faith and conveyed in decent language, an opinion on a religious subject.Australia
It remains an offence in some Australian states and territories, although the Commonwealth and some states and territories have abolished it within their jurisdiction. For details, see blasphemy law in AustraliaBlasphemy law in Australia
Australia's Constitution prohibits Australia from having a state religion, and the Crown has rarely acted to protect religion. The Crown has not prosecuted anyone for blasphemy since 1919...
.
Canada
In CanadaCanada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, blasphemous libel is an offence under section 296(1) of the Criminal Code
Criminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
. It is an indictable offence
Indictable offence
In many common law jurisdictions , an indictable offence is an offence which can only be tried on an indictment after a preliminary hearing to determine whether there is a prima facie case to answer or by a grand jury...
and is punishable with imprisonment for a term not exceeding two years.
Section 296 is subject to section 2 of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
, as read with section 1 of that Charter.
Section 296 was formerly section 260 of the Criminal Code (R.S., c. C-34).
The Crown last prosecuted a charge of blasphemous libel in R. v. Rahard [1936] 3 D.L.R. 230 (Court of Sessions of the Peace, Quebec, 1935). In that case, the court adopted an argument that prosecutor E. J. Murphy had proffered in the case of R. v. Sperry (unreported) 1926. Mr. Murphy put the issue this way:
- The question is, is the language used calculated and intended to insult the feelings of and the deepest religious convictions of the great majority of the persons amongst whom we live? If so, they are not to be tolerated any more than any other nuisance is tolerated. We must not do things that are outrages to the general feeling of propriety among the persons amongst whom we live.
In Rahard, the Court found the Rev. Victor Rahard of the Anglican Church guilty of blasphemous libel for his aspersions upon the Roman Catholic Church.
The words "calculated and intended to insult the feelings and the deepest religious convictions of the great majority of the persons amongst whom we live", which the court used, were adopted from the summing up of Lord Coleridge, LCJ. in R v Bradlaugh (1883) 15 Cox CC 217 at 230.
R. v. St. Martin (1933) 40 Rev. de Jur. 411 was also cited in R. v. Rahard. Cf. R. v. Kinler (1925) 63 Que. S.C. 483.
Because blasphemy appears to be an obsolete crime in Canada, Canadians complain instead of hate speech. The Criminal Code of Canada prohibits hate speech that targets an "identifiable group", which includes a religious group. Canada's provinces and territories have human rights commissions or tribunals which can award compensation in matters of hate speech.
Defence
Section 296(3) of the Criminal Code provides:There is a French text of this provision that is equally authentic.
Republic of Ireland
In the Republic of IrelandRepublic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
, §13 of the Defamation Act, 1961 prescribed penalties for blasphemous libel, but did not define the offence. The only attempted prosecution since the 1937 Constitution
Constitution of Ireland
The Constitution of Ireland is the fundamental law of the Irish state. The constitution falls broadly within the liberal democratic tradition. It establishes an independent state based on a system of representative democracy and guarantees certain fundamental rights, along with a popularly elected...
was in 1999; the Supreme Court
Supreme Court (Ireland)
The Supreme Court of Ireland is the highest judicial authority in the Republic of Ireland. It is a court of final appeal and exercises, in conjunction with the High Court, judicial review over Acts of the Oireachtas . The Court also has jurisdiction to ensure compliance with the Constitution of...
ruled that the Constitution had extinguished the common law offence of blasphemous libel, since when "it is impossible to say of what the offence of blasphemy consists". The Defamation Act 2009 defines a new offence of "Publication or utterance of blasphemous matter", which was held to be required by Article 40.6.1.i. of the Constitution, which states "The publication or utterance of blasphemous, seditious or indecent matter is an offence which shall be punishable in accordance with law".
New Zealand
In New ZealandNew Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
it is an offence under section 123 the Crimes Act 1961
Crimes Act 1961
The Crimes Act 1961 is an Act of the Parliament of New Zealand administered by the Ministry of Justice.-Amendments:The Homosexual Law Reform Act 1986 amended the Crimes Act, allowing for consensual homosexual relationships between men....
to publish any blasphemous libel. The maximum punishment is one year imprisonment. No one can be prosecuted without the consent of the Attorney General.
Defence
Section 123(3) of the Crimes Act 1961 provides:England and Wales
In England and WalesEngland and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
, the common law offence of blasphemous libel was abolished on 8 July 2008 by the Criminal Justice and Immigration Act 2008
Criminal Justice and Immigration Act 2008
The Criminal Justice and Immigration Act 2008 is an Act of the Parliament of the United Kingdom which makes significant changes in many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland and Northern Ireland...
, having been replaced with the Racial and Religious Hatred Act 2006
Racial and Religious Hatred Act 2006
The Racial and Religious Hatred Act 2006 is an Act of the Parliament of the United Kingdom which creates an offence in England and Wales of inciting hatred against a person on the grounds of their religion...
.
Northern Ireland
Blasphemous libel is an offence under the common law of Northern IrelandNorthern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
.
Section 7 of the Libel Act 1843
Libel Act 1843
The Libel Act 1843, commonly known as Lord Campbell's Libel Act, was a Act of the Parliament of the United Kingdom. It enacted several important codifications of and modifications to the common law tort of libel....
creates a defence.
See also the Criminal Libel Act 1819, the Libel Act 1792
Libel Act 1792
The Libel Act 1792 was an Act of the Parliament of Great Britain. At the urging of the Whig politician Charles James Fox, the Act restored to juries the right to decide what was libel and whether a defendant was guilty, rather than leaving it solely to the judge...
and section 8 of the Law of Libel Amendment Act 1888.