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Blasphemy and the law: ideas versus intentions

January 27, 2015 — 

The following is an Op-ed written by Faculty of Law professor Karen Busby. It was originally published in the Winnipeg Free Press on on January 26, 2015.


Like gliding tectonic plates, religious belief systems keep to themselves most of the time. But when they do grind against each other, volcanoes erupt, and earthquakes rumble. Grinding against each other now are conflicting beliefs about religious expression. Some adherents feel religiously bound to protest certain images, but others defend their right to religious expression or critique.

Many Christians cherish Michelangelo’s images of God in the Sistine Chapel and da Vinci’s rendition of Jesus and his disciples in The Last Supper. Buddhists find meaning in sculptures of the Buddha — be they the size of a thimble or mountain. It is said that images are to Hindus what diagrams are to geometricians. Anishinaabe artists and elders have both ancient traditions and modern methods of representing spiritual beings. Most religions encourage the creation of work depicting deities or holy people. Such work arouses adoration or affirmation, encourages meditation and reflection and facilitates education.

Visual artists also use imagery to critique religion. Sculptures of Greek and Roman deities often exploit their weaknesses. More recently, provocative works such as the film Monty Python’s Life of Brian, Andres Serrano’s photograph Piss Christ, Theo van Gogh’s film Submission and Charlie Hebdo cartoons use satire, parody or allegory to convey their message.

In contrast, some Islamic, Jewish and Christian sects are aniconic, eschewing any representations of deities, holy people or, sometimes, any human face. For some, figurative representation degrades or insults the subject. For others, the sin is idolatry. Members of a Hutterite colony in Alberta were unable to renew their driver’s licences because they refused to be photographed. Such an act violated the biblical commandment not to create a graven image.

Some religious people believe it’s their obligation to protest images of God, the Prophet or other religious figures. Piss Christ has been repeatedly slashed, the massive Bamiyam Buddhas in Afghanistan have been dynamited, and Charlie Hebdo staff were murdered.


“The road to peaceful coexistence must first be paved with this understanding.”


Many non-Muslim Canadians appreciate religious representations and most accept trenchant critique. What they still do not understand is just how offensive it is to many Muslims to depict certain religious figures, regardless of the message. The road to peaceful coexistence must first be paved with this understanding.

Various regulatory laws and social norms restrain religious and expressive freedoms in Canada; neither freedom is absolute. Anti-discrimination and anti-harassment norms govern how we treat each other. Most obviously, racist, sexist and homophobic comments, as well as those expressing religious intolerance, in workplaces and schools should result in reproach.

But what of the iron fist of the criminal law? Do criminal prohibitions have any place in managing the grinding tectonic-plates problem of religious representation in Canada?

The Criminal Code already prohibits “blasphemous libel,” unless the libel was made “in good faith and in decent language.” While the law was originally concerned with enforcing Protestant orthodoxy, its objective transformed in the 19th century to preventing irreverent or disrespectful attacks on religion.

Blasphemous libel is undefined in the code, although in one case, a Canadian court held that the sentiments must be “calculated and intended to insult the feelings and the deepest religious convictions” of believers. Thus, ideas themselves are not penalized, but the intention of the presenter (to insult) and the manner (indecent language) in which the sentiments are expressed can be.

No one has been prosecuted under Canadian blasphemy law since 1935, although angry clergy unsuccessfully attempted to press such charges in 1979 to stop the showing of Monty Python’s Life of Brian.

The Criminal Code already prohibits anyone from engaging in the wilful promotion of hatred against an identifiable group. The Supreme Court of Canada upheld this law as a reasonable limit on charter-protected freedom of expression, stating that the value of expression can be tempered if the expresser’s intention is to foment hatred toward a group. Such an intention violates Canada’s cherished anti-discrimination values. However, hate-promotion charges are rare. No one has ever been charged in Manitoba since the offence was created in 1970.

It is debatable whether Canada’s blasphemous libel laws would be considered by the courts a reasonable limit on expression in Canada. The law is perhaps impossibly vague. As 80 years have passed since the last prosecution in Canada, it could be argued disuse establishes that the law serves no pressing purpose. On the other hand, Muslims in Canada who feel obliged to protest images may think the time is ripe to test this law.


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