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Blasphemous libel was originally an offence under the common law of England. It is an offence under the common law of Northern Ireland. It is a statutory offence in Canada and New Zealand. It has been abolished in England and Wales.
It consists of the publication of material which exposes the Christian religion to scurrility, vilification, ridicule and contempt, and the material must have the tendency to shock and outrage the feelings of Christians. It is a form of criminal libel.
In both Canada and New Zealand, it is not blasphemous libel for a person to express, in good faith and in decent language, or to attempt to establish by argument, in good faith and conveyed in decent language, an opinion on a religious subject.
It remains an offence in some Australian states and territories, although the Commonwealth and some states and territories have abolished it within their jurisdiction. For details, see blasphemy law in Australia.
In Canada, blasphemous libel is an offence under section 296(1) of the Criminal Code. It is an indictable offence and is punishable with imprisonment for a term not exceeding two years.
Section 296 is subject to section 2 of the Canadian Charter of Rights and Freedoms, as read with section 1 of that Charter.[1]
Section 296 was formerly section 260 of the Criminal Code (R.S., c. C-34).
The Crown last prosecuted a charge of blasphemous libel in R. v. Rahard [1936] 3 D.L.R. 230 (Court of Sessions of the Peace, Quebec, 1935). In that case, the court adopted an argument that prosecutor E. J. Murphy had proffered in the case of R. v. Sperry (unreported) 1926. Mr. Murphy put the issue this way:
In Rahard, the Court found the Rev. Victor Rahard of the Anglican Church guilty of blasphemous libel for his aspersions upon the Roman Catholic Church.[3]
The words "calculated and intended to insult the feelings and the deepest religious convictions of the great majority of the persons amongst whom we live", which the court used, were adopted from the summing up of Lord Coleridge, LCJ. in R v Bradlaugh (1883) 15 Cox CC 217 at 230.[4]
R. v. St. Martin (1933) 40 Rev. de Jur. 411 was also cited in R. v. Rahard. Cf. R. v. Kinler (1925) 63 Que. S.C. 483.
Because blasphemy appears to be an obsolete crime in Canada, Canadians complain instead of hate speech. The Criminal Code of Canada prohibits hate speech that targets an "identifiable group", which includes a religious group. Canada's provinces and territories have human rights commissions or tribunals which can award compensation in matters of hate speech.
Section 296(3) of the Criminal Code provides:
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.
There is a French text of this provision that is equally authentic.
In the Republic of Ireland, §13 of the Defamation Act, 1961 prescribed penalties for blasphemous libel, but did not define the offence.[5] The only attempted prosecution since the 1937 Constitution was in 1999; the Supreme Court ruled that the Constitution had extinguished the common law offence of blasphemous libel, since when "it is impossible to say of what the offence of blasphemy consists".[6] The Defamation Act 2009 defines a new offence of "Publication or utterance of blasphemous matter",[7] which was held to be required by Article 40.6.1.i. of the Constitution, which states "The publication or utterance of blasphemous, seditious or indecent matter is an offence which shall be punishable in accordance with law".[8]
In New Zealand it is an offence under section 123 the Crimes Act 1961 to publish any blasphemous libel. The maximum punishment is one year imprisonment. No one can be prosecuted without the consent of the Attorney General.
Section 123(3) of the Crimes Act 1961 provides:
It is not an offence against this section to express in good faith and in decent language, or to attempt to establish by arguments used in good faith and conveyed in decent language, any opinion whatever on any religious subject.
In England and Wales, the common law offence of blasphemous libel was abolished on 8 July 2008 by the Criminal Justice and Immigration Act 2008, having been replaced with the Racial and Religious Hatred Act 2006.
Blasphemous libel is an offence under the common law of Northern Ireland. Section 7 of the Libel Act 1843 creates a defence.
See also the Criminal Libel Act 1819, the Libel Act 1792 and section 8 of the Law of Libel Amendment Act 1888.