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
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