Not dead, just sleeping: Canada's prohibition on blasphemous libel as a case study in obsolete legislation

Article


Patrick, Jeremy. 2008. "Not dead, just sleeping: Canada's prohibition on blasphemous libel as a case study in obsolete legislation." UBC Law Review. 41 (2), pp. 193-248.
Article Title

Not dead, just sleeping: Canada's prohibition on blasphemous libel as a case study in obsolete legislation

ERA Journal ID34024
Article CategoryArticle
Authors
AuthorPatrick, Jeremy
Journal TitleUBC Law Review
University of British Columbia Law Review
Journal Citation41 (2), pp. 193-248
Number of Pages55
Year2008
Place of PublicationVancouver, BC. Canada
ISSN0068-1849
Abstract

Since the first Criminal Code in 1892, Canada has had a law on the books prohibiting the publication of a 'blasphemous libel' The statute resulted in five reported prosecutions over the years, the last in 1935. Although it hasn't been used in over 70 years, dead laws don't always stay dead: England's prohibition on blasphemy, for example, was inert for 55 years before leading to a conviction in 1977 and Ireland's remained unused for 141 years before an (unsuccessful) prosecution was brought in 1996.
This article attempts to answer a few key questions about Canada's blasphemy law. First, what are the historical origins of the prohibition? Canada's law has been influenced heavily by British common law, but there are important differences as well. Second, is the prohibition really as vulnerable to a Charter attack as it first appears? Given a modernist recasting as a 'hate speech' prohibition, the law may have a surprising resistance to attack. Third, how should our legal system deal with obsolete legislation generally? The blasphemy law will be used as a case study in the application of the obscure doctrine of desuetude.

Keywordsblasphemy; blasphemous libel; desuetude
ANZSRC Field of Research 2020500405. Religion, society and culture
480410. Legal theory, jurisprudence and legal interpretation
480499. Law in context not elsewhere classified
Public Notes

File reproduced in accordance with the copyright policy of the publisher/author.

Byline AffiliationsYork University, Canada
Institution of OriginUniversity of Southern Queensland
Permalink -

https://research.usq.edu.au/item/q1vy1/not-dead-just-sleeping-canada-s-prohibition-on-blasphemous-libel-as-a-case-study-in-obsolete-legislation

  • 1691
    total views
  • 32
    total downloads
  • 2
    views this month
  • 0
    downloads this month

Export as

Related outputs

Introduction
Copley, Julie, Harmes, Marcus, McKibbin, Sarah and Patrick, Jeremy. 2023. "Introduction." Queensland History Journal. 25 (7), pp. 527-529.
Respect for juries: A rejoinder to Hemming on Pell
Patrick, Jeremy. 2023. "Respect for juries: A rejoinder to Hemming on Pell." Alternative Law Journal . 48 (2), pp. 116-119. https://doi.org//10.1177/1037969X231159431
Law, Religion, and Heritage Research Program Team: Submission to the Australian Law Reform Commission Consultation Paper: ‘Religious Educational Institutions and Anti-Discrimination Laws’
MacLeod, Rena, Murray, Katie and Patrick, Jeremy. 2023. Law, Religion, and Heritage Research Program Team: Submission to the Australian Law Reform Commission Consultation Paper: ‘Religious Educational Institutions and Anti-Discrimination Laws’. Australia. University of Southern Queensland.
Legal Realism and Australian Constitutional Law
Patrick, Jeremy. 2022. "Legal Realism and Australian Constitutional Law." Journal of Judicial Administration. 32 (1), pp. 3-13.
Introduction
Harmes, Marcus K., McKibbin, Sarah and Patrick, Jeremy. 2022. "Introduction." McKibbin, Sarah, Patrick, Jeremy and Harmes, Marcus K. (ed.) The Impact of Law's History: What’s Past is Prologue. Switzerland. Springer. pp. 1-4
The Impact of Law's History: What’s Past is Prologue
McKibbin, Sarah, Patrick, Jeremy and Harmes, Marcus K.. McKibbin, Sarah, Patrick, Jeremy and Harmes, Marcus K. (ed.) 2022. The Impact of Law's History: What’s Past is Prologue. Switzerland. Springer.
Path dependency, the High Court, and the Constitution
Patrick, Jeremy. 2020. "Path dependency, the High Court, and the Constitution." Journal of Judicial Administration. 30 (2), pp. 51-63.
‘A la carte’ spirituality and the future of freedom of religion
Patrick, Jeremy. 2020. "‘A la carte’ spirituality and the future of freedom of religion." Babie, Paul T., Rochow, Neville G. and Scharffs, Brett G. (ed.) Freedom of Religion or Belief: Creating the Constitutional Space for Fundamental Freedoms. Cheltenham, United Kingdom. Edward Elgar Publishing. pp. 58-91
Faith or Fraud?: Fortune-Telling, Spirituality, and the Law
Patrick, Jeremy. Pue, W. Wesley (ed.) 2020. Faith or Fraud?: Fortune-Telling, Spirituality, and the Law. Vancouver, Canada. University of British Columbia Press.
An Argument against the Registration of Religions
Patrick, Jeremy. 2019. "An Argument against the Registration of Religions." 2nd International Conference on Indonesian Legal Studies (ICILS 2019). Semarang, Indonesia 04 Sep 2019 Amsterdam, The Netherlands. https://doi.org/10.2991/icils-19.2019.2
Evidence of Absence in the Ruddock Report
Patrick, Jeremy. 2019. "Evidence of Absence in the Ruddock Report." Australian Law Journal. 93 (9), pp. 747-751.
Submission to Queensland Law Reform Commission on review of Queensland’s laws relating to civil surveillance and the protection of privacy in the context of current and emerging technologies
Patrick, Jeremy. 2019. Submission to Queensland Law Reform Commission on review of Queensland’s laws relating to civil surveillance and the protection of privacy in the context of current and emerging technologies. Toowoomba, Australia. University of Southern Queensland.
Religious freedoms should include spiritual beliefs too
Patrick, Jeremy. 2018. "Religious freedoms should include spiritual beliefs too." The Conversation. 7 June 2018, pp. 1-3.
Submission to the Legal Affairs and Community Safety Committee on the Human Rights Bill 2018
Jones, Nicky and Patrick, Jeremy. 2018. Submission to the Legal Affairs and Community Safety Committee on the Human Rights Bill 2018. Unpublished.
Submission to the Queensland Law Reform Commission on 'Review of Termination of Pregnancy Laws'
Patrick, Jeremy. 2018. Submission to the Queensland Law Reform Commission on 'Review of Termination of Pregnancy Laws'. Unpublished.
The 'red menace' on trial: jury discrimination in Dennis
Falk, Barbara J. and Patrick, Jeremy. 2016. "The 'red menace' on trial: jury discrimination in Dennis." University of La Verne Law Review. 37, pp. 285-304. https://doi.org/10.2139/ssrn.2627030
A survey of arguments against the constitutional recognition of Indigenous Australian peoples
Patrick, Jeremy. 2016. "A survey of arguments against the constitutional recognition of Indigenous Australian peoples." Young, Simon, Nielsen, Jennifer and Patrick, Jeremy (ed.) Constitutional recognition of first peoples in Australia: theories and comparative perspectives. Sydney, Australia. Federation Press. pp. 143-157
Religion, secularism, and the National School Chaplaincy and Student Welfare Program
Patrick, Jeremy. 2014. "Religion, secularism, and the National School Chaplaincy and Student Welfare Program." University of Queensland Law Journal. 33 (1), pp. 187-219.
A polemic against the standing requirement in constitutional cases
Patrick, Jeremy. 2013. "A polemic against the standing requirement in constitutional cases." Capital University Law Review. 41, pp. 603-635.
Religion and new constitutions: recent trends of harmony and divergence
Patrick, Jeremy. 2013. "Religion and new constitutions: recent trends of harmony and divergence." McGeorge Law Review. 44 (4), pp. 903-921. https://doi.org/10.2139/ssrn.2077274
Section 38 and the open courts principle
Patrick, Jeremy. 2005. "Section 38 and the open courts principle." UNB Law Journal. 54, pp. 218-234.
The religion provisions of the Nebraska Constitution: an analysis and litigation history
Patrick, Jeremy. 2003. "The religion provisions of the Nebraska Constitution: an analysis and litigation history." Journal of Law and Religion. 19 (2), pp. 331-396.
Sexual exploitation and the Criminal Code
Patrick, Jeremy. 2006. "Sexual exploitation and the Criminal Code." Alberta Law Review. 43 (4), pp. 1057-1067.
Beyond case reporters: using newspapers to supplement the legal-historical record (A case study of blasphemous libel)
Patrick, Jeremy. 2011. "Beyond case reporters: using newspapers to supplement the legal-historical record (A case study of blasphemous libel)." Drexel Law Review. 3 (2), pp. 539-560.
Strict scrutiny for denominational preferences: Larson in retrospect
Patrick, Jeremy. 2005. "Strict scrutiny for denominational preferences: Larson in retrospect." New York City Law Review. 8 (1), pp. 53-121.
Church, state, and charter: Canada's hidden establishment clause
Patrick, Jeremy. 2006. "Church, state, and charter: Canada's hidden establishment clause." Tulsa Journal of Comparative and International Law. 14 (1), pp. 25-52.
Blasphemy in pre-criminal code Canada: two sketches
Patrick, Jeremy. 2010. "Blasphemy in pre-criminal code Canada: two sketches." St. Thomas Law Review. 22 (3), pp. 341-361.
Creating a federal inmate grievance tribunal
Patrick, Jeremy. 2006. "Creating a federal inmate grievance tribunal." Canadian Journal of Criminology and Criminal Justice. 48 (2), pp. 287-303. https://doi.org/10.1353/ccj.2006.0022
Civil liberties advocacy organizations in Canada: a survey and critique
Patrick, Jeremy. 2007. "Civil liberties advocacy organizations in Canada: a survey and critique." Oklahoma City University Law Review. 32 (2), pp. 187-213.
Canadian blasphemy law in context: press, legislative, and public reactions
Patrick, Jeremy. 2010. "Canadian blasphemy law in context: press, legislative, and public reactions." Annual Survey of International and Comparative Law. 16 (1), pp. 129-163.
The curious persistence of blasphemy
Patrick, Jeremy. 2011. "The curious persistence of blasphemy." Florida Journal of International Law. 23 (2), pp. 187-220.