by Leslie Rosenblood
Governments sometimes pass laws that violate their country’s constitution. One purpose of an independent judiciary is to identify and strike down such laws when they are challenged. Since Canada adopted the Charter of Rights and Freedoms  in 1982, many previously valid laws have been found to be contrary to Canada’s new constitution. When the courts strike down a law, it no longer has any legal force, but it remains on the books until such time as Parliament formally repeals it. Thus “zombie” laws accumulate in Canada’s  Criminal Code until a “cleanup” bill removes them.
In 2016, an Alberta judge , in his decision to convict a man of murder, “relied on section 230 of the Criminal Code, which was declared unconstitutional in the 1990 case  R. v. Martineau .” This embarrassed the federal government, and  in response Justice Minister Judy Wilson-Raybould released a statement in which she instructed “officials in the Department of Justice to conduct a review of Criminal Code provisions found to be unconstitutional, with a view to updating the Criminal Code to reflect these decisions.”
A broad mandate from the Justice Minister to update the Criminal Code presented a rare opportunity to make the case that section 296, Blasphemous Libel , should be removed as part of this modernization effort. Members of three prominent Canadian organizations dedicated to freedom of speech and conscience –  Centre for Inquiry CanadaCanadian Secular Alliance , and  Humanist Canada – took the opportunity to meet with the senior bureaucrats leading this review in December 2016.
We highlighted several reasons why Section 296 should be repealed. In short, we argued:
  • Canada’s Blasphemous Libel law, while not tested by the courts, would almost certainly be found to be unconstitutional
  • Blasphemy laws are an indefensible infringement on freedom of speech in a modern democratic nation
  • The law is demonstrably obsolete; it was last invoked in 1980 in an attempt to prevent a cinema from showing Monty Python’s “Life of Brian”, and the last conviction was over eight decades ago
  • Authoritarian states use Canada’s Section 296 as moral cover to defend their own blasphemy laws
  • Human rights activists around the world have called for Canada to repeal its blasphemy law to strengthen their campaigns for freedom of speech in their own countries
(The Canadian Secular Alliance has a brief policy position on blasphemy that makes a compelling case for its repeal.)
On June 6, 2017, the government introduced Bill C-51, an omnibus bill that repeals 39 sections and subsections of the Criminal Code (including blasphemous libel), as well as modifying several sections pertaining to admissibility of evidence in sexual assault cases. In November 2017, Greg Oliver, President of the Canadian Secular Alliance, testified before the Standing Committee on Justice and Human Rights to affirm support for repealing Section 296.
Bill C-51 has passed all three readings  in the House of Commons, and is currently (as of the end of May 2018)  in committee with the Senate , having passed the first two readings there. Based on the  speeches made at the second reading in the Senate, repealing Canada’s blasphemous libel law is not contentious. Careful attention is being paid to updating evidence admissibility in sexual assault cases, which is entirely appropriate.
Though it cannot be known for certain whether blasphemous libel would have been included in bill C-51 without the intervention of Canada’s foremost freethought organizations, I am confident that the meeting with Justice Department officials raised the profile of section 296 while they were crafting this legislation.
Though one cannot predict when a bill in committee will be presented to the Senate for a third reading, there is no reason to expect that bill C-51 will not become law in due course. When it receives royal assent, blasphemous libel will no longer be a crime in Canada.

Chill, but do not yet uncork, your favourite bottle of Champagne.

This article appeared in the June 2018 edition of CFIC’s monthly newsletter, Critical Links