Not Dead, Just Sleeping: Canada's Prohibition on Blasphemous Libel as a Case Study in Obsolete Legislation

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.