Strike Canada's blasphemy law as a sign of good faith

Prime Minister Stephen Harper last week launched the Office of Religious Freedom, a new branch of the Department of Foreign Affairs, to promote religious tolerance internationally. He appointed Toronto academic Andrew Bennett its "ambassador," and repeatedly underlined religious persecution is an urgent and ongoing global problem.

Harper has said the idea for the new branch arose, in part, from his meeting with Pakistan's late minister for minorities, Shahbaz Batti, shortly before his murder by Islamic extremists in March 2011.

Bhatti, the only Christian in the Pakistani cabinet, was sprayed with bullets while being driven through a residential district of Islamabad. The group that carried out the fatal attack, Tehrik-i-Taliban Pakistan, labelled him a "known blasphemer."

Bhatti was an outspoken advocate of the separation of church and state. He'd publicly criticized Pakistan's controversial blasphemy law as promoting intolerance of religious minorities. He knew he was courting assassination by speaking out against the law and had predicted his own violent death.

Harper was genuinely angered by Bhatti's death. When Bhatti was gunned down, our prime minister ditched diplomatic platitudes for plain English, and called the killers "gutless." He also spearheaded the House of Commons motion that condemned the murder and offered condolences to Bhatti's family.

But if the prime minister truly wishes to honour Bhatti's legacy, he'd best start at home -- by repealing Canada's own archaic blasphemy law.

Blasphemy laws, in general, are a bad idea. Western democracies normally disdain them because they're so ripe for abuse. Mixing legal authority with religious belief is a time-honoured recipe for injustice.

In Third World countries, they're often employed by religious majorities to arrest, imprison and prosecute religious minorities. Bhatti's Pakistan is typical. Majority Sunni Muslims have used blasphemy laws to punish Shiite Muslims, Ahmadis, Hindus and Christians, for no other reason than their beliefs.

Canada, unlike most western nations, has a blasphemy law. Canada's Criminal Code includes a crime of blasphemy that not only mixes church and state, but also favours one faith over all others. To boot, it's badly drafted and dangerously vague.

Sec. 296 of the code criminalizes what it calls "blasphemous libel." It doesn't scruple, however, to define blasphemy. It simply states: "It is a question of fact whether or not any matter that is published is a blasphemous libel."

The code's only stated defence to criminal liability for blasphemy is as nebulous as the crime. The provision states it's not blasphemous to express an opinion on a religious topic "in good faith and in decent language. "

In the result, both the crime and its sole legal excuse fudge what is or isn't criminally blasphemous.

There are other significant problems with the law.

Unlike almost all criminal offences, there doesn't have to be an element of intention to support a successful prosecution. In other words, for the Crown to convict, it needn't prove the accused actually intended to blaspheme. It need only prove the accused uttered blasphemous -- howsoever that might be defined in any particular scenario -- statements.

More problematic still, the Criminal Code's blasphemy provision is an inheritance from old English criminal law. And English courts -- though there's no Canadian judicial decision on the point -- have determined the provision applies only to insults to the Christian faith. It's therefore uncertain whether statements about other religions, no matter how vile or offensive, are prosecutable.

As if that weren't enough, it's doubtful the crime of blasphemous libel would survive a challenge under the Charter of Rights and Freedoms. A court could easily find the crime is a violation of freedom of expression.

Moreover, if a Canadian court followed British precedent, and held that the crime applies only to Christianity, it's also therefore likely in breach of both the charter's equality guarantee and its affirmation of multiculturalism, and apt to be struck down on either or both of those grounds.

Part of the new Office of Religious Freedom's avowed mandate is to "oppose religious hatred and intolerance." It might well begin by lobbying the very prime minister that created it to separate church and state in our criminal law.

We neither need, nor deserve, a law that divides people of different faiths.

Douglas J. Johnston is a Winnipeg lawyer.

Republished from the Winnipeg Free Press print edition February 25, 2013 A7