What the hell is wrong with Canada?! And what can we do about this?

[Penguin]

So... I was listening to the Atheist Experience podcast and they had a caller from Ireland who talked about the campaign over there to get blasphemy on the books as a crime (and with a $100,000 Euro fine!).

I wanted to find out more about this, so I did some Googling. A story from the National Post came up that gave a summary of the situation and at the end as an aside mentioned that Canada still has the crime of "blasphemous libel" in its own Criminal Code.

Here it is:

Blasphemous Libel

Offence


296. (1) Every one who publishes a blasphemous libel is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.



Question of fact


(2) It is a question of fact whether or not any matter that is published is a blasphemous libel.



Saving


(3) No person shall be convicted of an offence under this section for expressing in good faith and in decent language, or attempting to establish by argument used in good faith and conveyed in decent language, an opinion on a religious subject.
R.S., c. C-34, s. 260.

Canadians: what the hell is wrong with us? Why is this still in our law?

And, probably more importantly, what can we do to get it out of our law?

I'm serious on this - I was madder than anything when I saw it. We've been asleep at the switch letting this by. I want to make it my goal to get this unjust, draconian law off the books. I'm new to effecting political change, though, so I'd appreciate any help and support you can give.

[Louis]

There are plenty of things wrong with Canada. I believe, for example, that Canada was the only Western country to ban "The Satanic Verses" for a while. Our laws on what constitutes pornography are astounding. There is much to be alarmed about in the criminal code in relation to freedom of speech.

[meezly]

I'm not exactly a political activist either, but the best thing is probably to write to your local MP. like a really proper formal letter stating your concerns as a citizen. it helps that this issue has already been published in a national paper too, so I'd definitely make reference to that.

it also helps to gather public support, and people are generally in favour of freedom of expression. there are online petitions that you can use to email to your family/friends, and they can forward to their peeps and so on and so on. once you gather enough electronic signatures (there is usually a minimum number) you can send that off to your MP too.

[Penguin]

Thanks.

I sent an email off to my MP earlier this evening. I'll see what comes of that and then decide whether to do the petition thing. I know that if you do the petition in the proper format, get enough signatures and submit it in the proper way, it will at least get read on the floor of the House of Commons. I may have to do some digging to re-find the details.

[Chris]

I think this is one of those old legacy laws from the 'olde' that is never enforced.

When the whole 'anti-defamation of religion' nonsense came around, Canada's foreign minister said it would never be applied to Canadians, ever, sort of nullifying this from the criminal code.

[Christian Soldier]

Can you explain that quote better Penguin? I want to be sure that I understand it before and if I reply.

[Penguin]

I think this is one of those old legacy laws from the 'olde' that is never enforced.

Yes and no - it hasn't been enforced within the last few decades, but it was used in Quebec in the 20s and 30s to quash writings that the Catholic Church didn't approve of.

When the whole 'anti-defamation of religion' nonsense came around, Canada's foreign minister said it would never be applied to Canadians, ever, sort of nullifying this from the criminal code.

Are you talking about the UN resolution? If so, I'd be inclined to agree on that issue. However, with this, it's not up to the foreign minister how laws that are already on our books get enforced.

The Charter might prevent some of the most aggregious applications of this law, but I think there's misuse of it as a tool to silence free speech.

While I was trying to find out more about this, I came across this paper from a PhD candidate at Osgoode Hall about the law and the issues surrounding it. It makes for some interesting reading:

http://papers.ssrn.com/sol3/Delivery...121932&mirid=1

Can you explain that quote better Penguin? I want to be sure that I understand it before and if I reply.

"Libel" is the legal term for written or published defamation. Basically, what this law says is this:

- "blasphemous libel", IOW "blasphemy" in written (or recorded?) form, is a crime and is an indictable offense (which is equivalent to a felony in US law).
- if you commit "blasphemous libel", you can be punished with up to two years in prison.
- any statements you make that are expressing an opinion on a religious subject and are presented in good faith and decent language are allowed - they won't be considered illegal under this law.

Also, note a few things:

- the Canadian Charter of Rights and Freedoms would limit how this law could be applied. However, the protections in the Charter have limits themselves, so it's not clear (to me, at least), how things would shake out if a "blasphemous libel" charge actually went to court today.

- the term "blasphemy" isn't defined in the law. These days, it almost certainly couldn't be restricted to only the Christian definition of the term, and most religions are "blasphemy" to someone else. For example, the Christian idea that God has a son is considered blasphemous to many Muslims.

[Demojen]

(2) It is a question of fact whether or not any matter that is published is a blasphemous libel.

That's a kind of important statement that effectively obliterates the argument of blasphemous libel insofar as Canadian law is concerned now a days.

(3) No person shall be convicted of an offence under this section for expressing in good faith and in decent language, or attempting to establish by argument used in good faith and conveyed in decent language, an opinion on a religious subject.

That statement gives an example of where it may be applied.

I'm a legal admin student so I couldn't just leave this alone...because there is a reason that this law was not removed.
It acts as a vanguard against any future government legislation that hopes to create laws similar to it. In Canada our judicial system is chiefly defended using Case Law and if there is no case law for which to depend upon, legislation.

Read on if you're interested in why Blasphemous Libel was not removed (in alot more detail).

After pasting the case law on the subject, I realized it was too long and attempted to remove it, but there is no delete button. Sorry for the long read!

[Demojen]

From the Supreme Court Reporter 1992
Indexed as R. v. Zundel, [1992] 2 S.C.R. 731

1. Section 181: Its History, Purpose and Ambit



Section 181 dates from the Statute of Westminster in 1275, which introduced the offence De Scandalis Magnatum or Scandalum Magnatum. It provided "[t]hat from henceforth none be so hardy to tell or publish any false News or Tales, whereby discord, or occasion of discord or slander may grow between the King and his People, or the Great Men of the Realm". The criminal offence was enforced by the King's Council, and later by the Court of Star Chamber, until the 17th century when its enforcement was taken over by the common law courts. It had as its primary aim the prevention of "false statements which, in a society dominated by extremely powerful landowners, could threaten the security of the state": see R. v. Keegstra, supra, at p. 722, per Dickson C.J.; and F. R. Scott, "Publishing False News" (1952), 30 Can. Bar Rev. 37, at pp. 38-39. As Holdsworth recounts, "[t]his was no vain fear at a time when the offended great one was only too ready to resort to arms to redress a fancied injury": A History of English Law (5th ed. 1942), vol. III, at p. 409. Nonetheless, De Scandalis Magnatum is not thought to have been a very effective instrument. Holdsworth refers to a "thin stream of . . . cases" from the 16th century onwards; by the time of its repeal in 1887 (Statute Law Revision Act, 1887 (U.K.), 50 & 51 Vict., c. 59) it had long been obsolete.



Although the offence of spreading false news was abolished in England in 1887, and does not survive in the United States, it was enacted in Canada as part of the 1892 Criminal Code. The reason for the offence's retention in Canada is unknown. Scott suggests that it may have been no more than oversight, with no one in Canada being aware that the English provision had been repealed four years previously: see Scott, supra, at p. 40. Certainly Burbridge, the drafter of the 1892 Code, was no enthusiast of the offence, commenting in his 1890 Digest of the Criminal Law in Canada that its "definition is very vague and the doctrine exceedingly doubtful": see Scott, supra, at p. 39. Be that as it may, the offence was retained, originally under the rubric of "Seditious Offences" (Criminal Code, 1892, S.C. 1892, c. 29, s. 126; R.S.C. 1927, c. 36, s. 136) and more latterly as a species of "Nuisance" (S.C. 1953-54, c. 51, s. 166). Until its revision in 1955, the Criminal Code provision read:



136. Every one is guilty of an indictable offence and liable to one year's imprisonment who wilfully and knowingly publishes any false news or tale whereby injury or mischief is or is likely to be occasioned to any public interest.



The substantive elements of the offence remained the same after Parliament's 1955 transfer of the provision to the "nuisance" section of the Code, but the potential sentence was increased to two years. Neither documentary nor viva voce evidence has been proffered to explain why the section was retained in Canada when it had been dropped elsewhere or why it was moved from the offences dealing with "Sedition" to those dealing with "Nuisance". What is now s. 181 has been judicially considered only three times in Canada, excluding this case; the jurisprudence on it is virtually non-existent.



After considering the rather sparse history of the provision, Cory and Iacobucci JJ. conclude at p. 000 that:



. . . a review of the historical development of the law's response to false news reflects its role in prohibiting the dissemination of false information which strikes at important interests of society as a whole. Section 181 perpetuates one of the central functions of De Scandalis in prohibiting public alarm and internecine hostilities between and among social groups.



With the greatest respect, I find no support in the history of the provision for such a conclusion. The only lesson to be gleaned from the history of s. 181 is that the offence was aimed at protecting the rule of law and the security of the state, in the guise of the head of power whether that be the monarchy or later the government: see Drouin J. in R. v. Carrier (1951), 16 C.R. 18, 104 C.C.C. 75 (Que. K.B. (Criminal Side)). The fact that provocative racial statements have been, on the odd occasion in the past two hundred years, prosecuted as other criminal offences such as "public mischief" and "criminal libel" sheds no light on the objective behind the enactment of the "false news" provision. Moreover, as discussed below, the very cases referred to by Cory and Iacobucci JJ. to support their conclusions actually reveal the overinclusiveness of the provision.



I turn from history to the wording of s. 181 and the ambit of the section upon whose constitutionality this Court is asked to pronounce. The construction of s. 181 is not at issue in these proceedings, leave to appeal on those issues having been denied. The analysis of the constitutionality of s. 181 must therefore be based on the section as it was interpreted by the courts below.



As interpreted by the trial judge and the Court of Appeal below, the actus reus of the offence is the publication of "a statement, tale or news" that is false and that "causes or is likely to cause injury or mischief to a public interest . . .". The mens rea lies in the knowledge that the statement is false. Thus the Crown, to succeed, must establish beyond a reasonable doubt the following propositions:



1. That the accused published a false statement, tale or news;



2. That the accused knew the statement was false; and



3. That the statement causes or is likely to cause injury or mischief to a public interest.



Each of the three elements of the offence created by s. 181 is capable of giving rise to considerable difficulty of application in the context of a trial. The question of falsity of a statement is often a matter of debate, particularly where historical facts are at issue. (Historians have written extensively on the difficulty of ascertaining what actually occurred in the past, given the difficulty of verification and the selective and sometimes revisionist versions different witnesses and historians may accord to the same events; see, for example, the now famous treatise of E. H. Carr, What is History? (1961)). The element of the accused's knowledge of falsity compounds the problem, adding the need to draw a conclusion about the accused's subjective belief as to the truth or falsity of the statements. Finally, the issue of whether a statement causes or is likely to cause injury or mischief to the public interest requires the identification of a public interest and a determination of whether it has been or is likely to be injured. In the case of each of the three elements of the offence, the not inconsiderable epistemological and factual problems are left for resolution by the jury under the rubric of "fact". Thus, both in its breadth and in the nature of the criteria it posits, s. 181 poses difficulties not usually associated with criminal prohibitions, which traditionally demand no more of a jury than common sense inferences from concrete findings on matters patent to the senses.

[Demojen]

At pages 000-000, Cory and Iacobucci JJ. summarize and interpret in detail the s. 181 trial process in the case at bar, the goal being to show that s. 181 did not theoretically or practically preclude the accused Zundel from raising a reasonable doubt on each element of the offence -- a basic requirement of fundamental justice. The argument, as I understand it, would appear to be that if s. 181 occasioned no unfairness in this case, it never will. One doubts the validity of such an inference, given the acknowledgement that this was a clear, simple case on the facts. But that aside, I do not share my colleagues' view that as a practical matter the Court can be certain, even in this instance, that the defendant was accorded procedural justice. On the contrary, it is my view that the difficulties encountered in this case underline the inherent vices of s. 181.



Difficulties were encountered at trial with respect to all three elements of the offence -- with respect to what constitutes a "statement, tale or news", interpreted as constituting an assertion of fact as opposed to opinion; what constitutes injury or mischief to a public interest; and what constitutes proof of knowledge of falsity of the statement. The courts below resolved the difficult issue of the distinction between a statement and an opinion by treating it as a question of fact for the jury to resolve. While this is true in a technical legal sense, in a practical sense the jury was told that the publication at issue was a false statement. By applying the doctrine of judicial notice and telling the jury that "[t]he mass murder and extermination of Jews in Europe by the Nazi regime" was an (historical) fact no "reasonable person" could dispute, the judge effectively settled the issue for them. Moreover, I am unable to agree with my colleagues (see p. 000) that the trial judge instructed the jury that the "onus of differentiating fact from opinion" lay with the Crown. Judge Thomas's direction that the Crown must prove "that the pamphlet, in essence, is a false statement of fact" does not impose upon the Crown the more difficult burden of first explaining to and then convincing a jury of the distinction between historical fact and historical opinion regarding events almost fifty years old. This might be forgiven, given the elusiveness of distinguishing historical fact from historical opinion. But it shows the danger in criminalizing "false statements". The contention is that expressions of opinion are not caught by s. 181. The reality is that when the matter is one on which the majority of the public has settled views, opinions may, for all practical purposes, be treated as an expression of a "false fact".



The question of knowledge of falsity was similarly left as a question of fact for the jury to decide. But this too was not a question of fact in the usual sense. The jury was instructed that it was entitled to infer from the judge's instruction that because the Holocaust must be regarded as proven, the accused must have known it to be proven and must be taken to have published his pamphlet deliberately for personal motives, knowing the falsity of his assertion to the contrary. Judge Thomas added, albeit as only one factor in this assessment, the principle that the "more unreasonable the belief, the easier it is to draw the inference that the belief is not honestly held". In the context of a sexual assault trial such an instruction would be unlikely to mislead the jury, both because questions of consent and perceptions of consent are far more common place than questions of the sincerity of an accused's belief in esoteric or outlandish historical "facts", and because the jury is likely to have the assistance of the viva voce evidence of both the complainant and accused in determining whether the inference that the accused's unreasonable belief in the complainant's consent was not an honest one ought to be drawn. But in the context of a prosecution under s. 181 a jury is, in the face of such instructions, unlikely to be able to evaluate or accept the accused's assertion that he believed the truth of his publications. The logic is ineluctable: everyone knows this is false; therefore the defendant must have known it was false.



On the final question of injury or mischief to a public interest, the trial judge told the jury that it was sufficient if there is a likelihood of injury or mischief to a particular public interest and directed the jury on the "cancerous effect of racial and religious defamation upon society's interest in the maintenance of racial and religious harmony in Canada." Judge Thomas further instructed the jury that "[t]here can be no doubt . . . that the maintenance of racial and religious tolerance is certainly a matter of public interest in Canada". Once again, the jury's conclusion may have flowed inevitably from the trial judge's instruction.



One is thus driven to conclude that this was not a criminal trial in the usual sense. The verdict flowed inevitably from the indisputable fact of the publication of the pamphlet, its contents' divergence from the accepted history of the Holocaust, and the public interest in maintaining racial and religious tolerance. There was little practical possibility of showing that the publication was an expression of opinion, nor of showing that the accused did not know it to be false, nor of showing that it would not cause injury or mischief to a public interest. The fault lies not with the trial judge or the jury, who doubtless did their best responsibly to inform the vague words of s. 181 with meaningful content. The fault lies rather in concepts as vague as fact versus opinion or truth versus falsity in the context of history, and the likelihood of "mischief" to the "public interest".

Against this background, I turn to the question of whether the conviction and imprisonment of persons such as the appellant under s. 181 violate the rights which the Charter guarantees. The first question is whether the Charter's guarantee of free speech protects the impugned publication. If the answer to this question is in the affirmative, the second question arises of whether prohibition of the publication by criminal sanction can nevertheless be maintained as a measure "demonstrably justified in a free and democratic society".



2.Does the Charter's guarantee of freedom of expression protect Mr. Zundel's right to publish the booklet Did Six Million Really Die?



Section 2(b) of the Charter provides:



2. Everyone has the following fundamental freedoms:



. . .



(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;



The Court must first ask whether a publication such as that at issue is expression protected by s. 2(b) of the Charter. If so, the Court must ask the further question of whether the purpose or effect of s. 181 is to restrict such expression. If so, it will be found to violate s. 2(b) of the Charter: see Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (S.C.C.), [1989] 1 S.C.R. 927.



This Court has held that s. 2(b) is to be given a broad, purposive interpretation: Irwin Toy, supra. Even prior to the Charter, this Court recognized the fundamental importance of freedom of expression to the Canadian democracy; see Reference re Alberta Statutes, 1938 CanLII 1 (S.C.C.), [1938] S.C.R. 100; Switzman v. Elbling, 1957 CanLII 2 (S.C.C.), [1957] S.C.R. 285. I can do no better than to quote the words of my colleague Cory J., writing in Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20 (S.C.C.), [1989] 2 S.C.R. 1326, at p. 1336:



It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates all truly democratic societies and institutions. The vital importance of the concept cannot be over-emphasized. No doubt that was the reason why the framers of the Charter set forth s. 2(b) in absolute terms which distinguishes it, for example, from s. 8 of the Charter which guarantees the qualified right to be secure from unreasonable search. It seems that the rights enshrined in s. 2(b) should therefore only be restricted in the clearest of circumstances.