No Separation of Church and State in Canada

The National Post reported on December 19, 2012 that a disgruntled Saskatoon resident is about to launch a human rights complaint against the city of Saskatoon for placing the words “Merry Christmas” on its buses.

The media coverage surrounding this issue has made me realize that many Canadians are confused about whether the Charter guarantees the separation of church and state. It does not. Further, our constitution lacks a clear equivalent to the most famous of such constitutional protections—the American establishment clause.

The establishment clause is a phrase in the 1st Amendment of the U.S. Bill of Rights that says "Congress shall make no law respecting an establishment of religion". Canada has no equivalent constitutional protection.

Although the linked National Post article above focuses on the up-coming human rights complaint, on the Charles Adler show on the afternoon of December 18, 2012, Mr. Solo implied that Canada has constitutional protection regarding the separation of church and state.

If I had to guess, I would say that Mr. Solo, and other Canadians like him, are confused because they have watched US legal dramas on TV and assume that, like the U.S., Canada has a similar separation of church and state. We do not. Consider this plain and simple fact: the Queen remains the Head of State in Canada even though she is the Supreme Governor of the Church of England.

On the other hand, section 2 of the Charter does guarantee "freedom of religion", and the courts have interpreted this to include a right to be free from religion.

But this right to be free from religion is subtly, yet significantly, different from a separation of church and state. Freedom of religion under the Charter means that Canadians are free to practice their religions in a non-harmful fashion (e.g. the Multani case), while freedom from religion means that Canadians cannot be forced to adopt a religious practice (e.g. the Big M Drug Mart case).

Canada Should Repeal Its Blasphemy Law

It's time for Canada to repeal its prohibition on blasphemous libel.

Section 296 of the Criminal Code of Canada makes it an indictable offence to publish blasphemous libel.  Upon conviction, an accused is liable for up to two years of imprisonment.  Section 296 permits an accused the defence of “good faith” provided that “decent language” is used. 

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.

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

(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.

It’s probably a safe bet that most Canadians do not know what the term “blasphemy” means, let alone that blasphemous libel is a criminal offence.  According to the Merriam-Webster online dictionary, to blaspheme means to insult or show contempt or a lack of reverence for God or other things sacred.

Originally, blasphemous libel was specifically tied to publishing materials that brought the Christian religion into disrepute—presumably excluding other religions.  The courts held the prohibition to include any profane words vilifying God, Jesus Christ, the Holy Ghost, the Bible, or Christianity if it was done with the intent to shock or insult believers, or mislead the ignorant and unwary.

Arguably, the most recent decision on section 296 generalized the prohibition so that it may now be possible to blaspheme other religions as well.  But this has not been tested in court because the prohibition has fallen into disuse.

The first time I read this prohibition in the Criminal Code during law school, I found it surprising that Canada has any sort of law prohibiting blasphemy.  First, blasphemy is everywhere.  It is not difficult to find all sorts of published material that break this law—movies, music, books, magazines, video games, visual art, etc.  And second, any sort of prohibition on blasphemy strikes me as an unacceptable restriction on freedom of expression and one more potential foothold for tyranny.  Notice that the way that the prohibition is worded inevitably makes it function as a proxy for the personal and political views of the judiciary.  Perhaps "foothold for tyranny" is an understatement?

Fortunately, there have not been any blasphemous libel prosecutions in Canada since the 1930’s.  It is likely that section 296 is effectively dead even though it remains in the Criminal Code.

But being effectively dead is not truly dead.  The UK has had a similar prohibition with much the same story as Canada’s—it languished unused for a significant period of time.  Yet in the 1979 case of Whitehouse v. Lemon, Mary Whitehouse resurrected the UK’s blasphemous libel prohibition in a successful private prosecution.  The accused was convicted but did not have to serve the prison term.  By the way, the UK repealed its blasphemy law in 2008.

Aside from the important point that effectively dead laws are not guaranteed dead, there are other reasons to repeal section 296. 

First, the continued existence of a prohibition on blasphemy places Canada in an awkward and hypocritical position when it criticizes other countries of religious intolerance.  Remember the famous admonition to take the mote out of your own eye first?

And second, there is no certainty that the Charter’s guarantee of freedom of expression will offer any protection to an individual accused of blasphemous libel.  That’s an unanswered question that has never been tested in court.  Sadly, there are cases that refer to section 296 as a potentially justifiable violation of freedom of expression.  Also, there is no shortage of cases where the courts have deferred to the government and upheld restrictions on speech.  Trials are inherently uncertain and court decisions can often yield surprising results.

It’s probably best to repeal section 296 rather than assume that it will never be used in the future.