Blasphemy is a crime in Canada

Not because we’re living under the Stephen Harper Christofascist dictatorship, though. (Sorry, Michael Harris.)  It’s actually a law that hasn’t been enforced successfully since 1935, but remains part of the Criminal Code of Canada:

Section 296 of the Criminal Code makes “blasphemous libel” punishable by up to two years in jail in Canada.

No one been prosecuted under the law since 1935. As late as 1980, the law was used to charge the Canadian distributor of Monty Python’s film Life of Brian; the charges were later dropped.

Only last month, the heads of Humanist Canada and the Centre for Inquiry, a national organization that promotes “skeptical, secular rational and humanistic inquiry,” met with Ambassador Andrew Bennett, head of the federal government’s Office of Religious Freedom, to note the law’s inconsistency with Canada’s policy of supporting religious freedom abroad.

[…]

Derek From, a lawyer for the Calgary-based Canadian Constitution Foundation warns that while the law may be dormant, it is not dead. Britain’s blasphemy law, for example, was considered “dead” until it resurfaced in 1977 when a pornographic magazine was charged with the offence for publishing gay poetry about Jesus.

“It is an open question whether the Charter’s guarantee of freedom of expression will offer any protection,” Mr. From wrote in a 2013 letter to Calgary-area MP and Minister of State for Finance Kevin Sorenson. “This is a constitutional question that has never been tested.”

“The conservative right gets bents out of shape about hate speech provisions because they see it as an unconstitutional restriction of their freedom of expression. But that’s exactly what people who are [irreligious] would say about the blasphemy prohibitions — that they cannot say what they want without freedom of prosecution,” Mr. From said.

There’s no way the offence of “blasphemous libel” is compatible with a modern, democratic society, or constitutional under the Charter of Rights and Freedoms.  That said, if threats of violence will keep people and media outlets from publishing material some people find blasphemous, what difference does it really make?

Here are instructions from CBC Journalistic Standards & Practices director @DavidStuder1 to journos. #CharlieHebdo pic.twitter.com/96SGGs0IzY

— Jesse Brown (@JesseBrown) January 7, 2015

(Note: needless to say, an image of “Piss-Christ” was easily found on the CBC website.)

Book review: A Cruel Arithmetic: Inside the Case Against Polygamy by Craig Jones

[Originally posted at Canadian Lawyer]

When s. 293 of the Criminal Code of Canada was referred to the British Columbia Supreme Court, I wrote that I believed the law was clearly unconstitutional in its current form:

If this case was about legal recognition of polygamy — with massive implications for family law and even immigration policy — it would be much more challenging.

At issue, however, is whether a polygamy should be a criminal offence. Federal and provincial governments, and many interest groups, argue that the Criminal Code provision is necessary to protect women and children coerced into abusive relationships.

Such activity is already illegal, however, and the way s. 293 is written criminalizes all polygamous relationships, even those involving consenting adults. I would be very surprised if the B.C. Supreme Court — and, ultimately, the Supreme Court of Canada — does not find that the section is overly broad and therefore unconstitutional.

The Supreme Court of B.C., of course, did uphold the constitutionality of s. 293. (This is why you shouldn’t take my stock market or fantasy football predictions, either.) But the debate isn’t over, and the anti-criminalization arguments summarized in my blog post will still be forcefully made by religious and pro-polyamory activists.

Craig Jones, who represented the British Columbia Department of Justice in the Polygamy Reference, could not disagree with these arguments more strongly. A longtime civil libertarian, Jones was confident the constitutionality of s. 293 would be upheld, but he initially did not personally take a strong position against the practice.

By the time the matter made it to court, however, he was convinced polygamy is an inherently harmful practice that should not be tolerated in a modern society. He explains his evolution, and the case against polygamy, in his fascinating book A Cruel Arithmetic: Inside the Case Against Polygamy.

In a polygamous society like Bountiful, B.C. — a mysterious, secretive colony populated by members of the Fundamentalist Church of Latter-Day Saints, the breakaway Mormon sect which practises “plural marriage” — this “cruel arithmetic” inevitably manifests itself in two ways. Every time a man takes an additional wife (polyandry, the taking of multiple husbands by a woman, is almost unknown) another man in the community is left with no one to marry. And as the adult females are married off, younger and younger wives are taken. The results: child trafficking, sexual exploitation of minors, and “lost boys,” who are marginalized and even expelled from their homes:According to Jones, it is not enough for the state to take action against only “bad” polygamy involving young children or coercion and abuse:

Again and again, the discussion circled back to the fact that academic writers seemed to consider only harm arising in polygamous marriages, not polygamous societies [emphasis added]. The focus was entirely on how to accommodate polygamous unions while minimizing or addressing possible harms to co-wives and children. The commentators concluded that banning polygamy was unconstitutional because the law could be written to apply only to “bad” polygamy, or the state could simply scrutinize polygamous marriages looking for abuse and crimes. But the “cruel arithmetic” effect on the targeting of girls, like the increased criminality of men in the polygynous society, would be felt everywhere, and this was so even if every polygynous marriage was harmless, egalitarian, and restricted to fully consenting adults.

One of Jones’s expert witnesses, Dr. Joe Henrich, forcefully made the case that a “nontrivial” increase in polygamy would result in higher rates of crime and anti-social behaviour from the growing number of unmarried males (this has been the experience in China, where the “one-child” policy has led to an imbalance in the number of males and females).

But surely if polygamy were decriminalized, very few Canadians would take up the practice, right? Jones isn’t willing to take that risk. He devotes a lengthy chapter to the findings of historians and evolutionary psychologists, who note monogamous societies are a relatively new development. And, of course, there are still many nations where polygamy is legal and/or widespread, and it’s not hard to believe immigrants from these societies would be attracted to Canada — multiple wives in tow.

A Cruel Arithmetic makes a very strong case against polygamy, but does it make a strong case for criminalizing the practice? I find Jones’ arguments compelling (as did the British Columbia Supreme Court, obviously) but I still believe consenting adults have an inalienable right to enter into whatever arrangements they want.

Indeed, adults can enter into polyamorous relationships, provided they don’t go through anything like a marriage ceremony. Once the relationship becomes a “marriage,” though, it becomes a crime. As the distinction between even monogamous marriage and common-law relationships becomes less clear, I believe this becomes increasingly hard to justify. Even Jones has a difficult time pulling it off, in my opinion:

There may be harms that attached to some “polyamorous” relationships that weren’t marriages. But in my view, there was something about marriage, about the invocation of some external authority with (even notional) powers of enforcement, that permitted polygamy “take” a spread. . . . Who knows, if polyamory really does take off, and if it caused the same problems as polygamy, perhaps the law would have to be changed to accommodate that new reality. But line drawing, as we would urge the Court, is Parliament’s business, and when dealing with a spectrum of risks and harms the line has to be drawn somewhere.

Jones puts forward evidence that polygamy leads to societal harms that justify infringement upon some individual rights. But we have to be careful about where that line of thinking can lead us (would an abortion ban be justifiable if social science research showed harm arising from a declining birth rate?).

There’s also the fact Canada has tolerated the practice of polygamy in Bountiful for decades. There might be a Criminal Code section that makes polygamy a criminal offence, but it hasn’t stopped a polygamous community of 1,000 people from developing in the B.C. interior. We’ve known what’s been going on there for years, but nothing was done about it. And the longer it takes, the harder it becomes to suddenly start prosecuting it.

Moreover, Canadians know the anti-polygamy law is almost never enforced, but that certainly hasn’t led to many more “plural marriages.” If anything, the existence of Bountiful — a closed, cultish community that feels like a throwback to the 19th century — has probably made polygamy less attractive to mainstream Canadians. Who wants to live like those guys?

The case against officially recognizing polygamous unions, however, is much more strong (if anything, A Cruel Arithmetic is useful for rebutting the argument made by anti-gay-marriage activists, that recognizing same-sex marriage will lead to a slippery slope toward officially sanctioning polygamy). We can respectfully disagree as to whether it should be a crime, but we can agree that polygamy is a very troubling practice.

More importantly, A Cruel Arithmetic describes this major Canadian constitutional argument in more detail than I’ve seen in any other book. The duelling lawyers and their personalities, the clashes within the civil service, the preparation and cross-examination of witnesses — it’s all here. And it is absolutely riveting, especially when Jones describes the dismantling of dubious “expert” witnesses trying to make the case that polygamy is not so harmful. I’d go so far as to say every law student should read it, and many practising lawyers could learn a lot from it, too. I certainly did.

The other “Jesus shirt” case

Nova Scotians who followed the “Life is Wasted Without Jesus” controversy may be interested in this markedly similar case from Ohio, where a student’s T-shirt was banned because of a controversial religious message.

The difference? In the Ohio case, the shirt read, “Jesus is Not a Homophobe.”

Two related stories

Canada:

A Nova Scotia teenager who made international headlines for getting suspended from school after wearing a T-shirt with a Christian message didn’t attend classes on Monday and may be leaving the school for good.

William Swinimer, a Grade 12 student at Forest Heights Community School in Chester Basin, N.S., was suspended last Monday after repeatedly wearing to class a bright yellow T-shirt with the slogan “Life is wasted without Jesus” despite a request from the principal not to.

On Friday, the suspension was reversed and he was expected to resume classes on Monday, wearing the shirt. The school had planned to hold a special talk about religious freedoms.

But instead, he arrived on campus early Monday morning with his father, who abruptly pulled him out of the school, saying he doesn’t want anything to do with the school’s planned discussions about the balance between religious freedom and students’ rights to not have their beliefs criticized. [emphasis added]

India:

CR 61/2012, Juhu Police Station, has been filed against miracle-buster Sanal Edamaruku, who is also founder-president of the Rationalist International, which has scientists such as Richard Dawkins in it.

The FIR [apparently a First Information Report -EV] has been filed under IPC Sec 295A: Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs….

The whole story began on March 5, when during a TV programme in Delhi, Sanal dismissed reports that the “dripping cross” outside Vile Parle’s Velankanni church was a miracle….

Later on March 10, Sanal attributed the water dripping from the Jesus statue to capillary action of underground water near the cross. His photographs, displayed on TV-9, showed seepage on the wall behind the cross and on the ground near its base. “I removed one of the stones covering a canal for dirty water nearby, and found that water had been blocked there. Once water is blocked, it will find an outlet, if not downwards, then upwards. Every student knows that trees get water through capillary action.” [emphasis added]

There is a right to freedom of expression, or a right to not be offended. Pick one.

“Life is Wasted Without Jesus”

If you’re a Christian, you probably think that statement is just common sense.  If you aren’t a Christian, you probably rolled your eyes and moved on.  And if you’re an administrator at Forest Heights Community School in Chester Basin, you think it’s hateful speech meriting suspension from school:

William Swinimer was suspended from the Forest Heights Community School in Chester Basin for five days on Monday, after he defied the principal’s instruction not to wear a yellow T-shirt sporting the phrase “Life is wasted without Jesus” anymore.

He’d worn the shirt to school several times before he was told two weeks ago that another student had complained. That was when he was told to leave it out of his school week wardrobe.

Swinimer says he never intended to be rude or disrespectful, but he’ll keep wearing the shirt because he stands behind its message.

“That’s my opinion, but under the Canadian Charter of Rights and Freedoms I’m allowed to have my opinion and express my opinion,” the Grade 12 student told CTV’s Canada AM on Friday.

“The only reason I’m wearing the T-shirt continually now is because I’m standing up for my rights as a Canadian citizen.”

But according to South Shore Regional School Board Supt. Nancy Pynch-Worthylake, the problem is not that the shirt sports a religious message, but that this particular message appears aimed at denigrating those who don’t agree.

“We do ask that our students are expressing their views in a way that could not be interpreted by other students as a criticism of their beliefs,” Pynch-Worthylake told CTV Atlantic on Thursday.

A good test case: let’s get a female student at Forest Heights to wear a shirt reading “Keep Your Rosaries Off My Ovaries” and see what happens.

More here and here.  If a teacher was using his position in a public school to promote his religion, I’d understand the controversy.  (There’s also some suggestion that Swinimer has been aggressive in confronting other students about his Christian beliefs, which wouldn’t necessarily merit a suspension, but could at least be said to be imposing on other students’ rights.)  But “keeping religion out of the schools” doesn’t mean students shouldn’t be allowed to express their religious beliefs.  Unless you’re in France, at least.

At least one student has gotten the message: if you see something that offends you, whine about it until it’s removed from your sight.

Grade 11 student Niall Barkes told CTV Atlantic that interpretion is within reason.

“I’m an atheist myself and I’m kind of offended because he’s basically stating that my life is wasted without Jesus, it’s just not a fair statement at all and I think the reason for him getting suspended is reasonable,” Barkes said.

I believed a lot of obnoxious, self-righteous things when I was your age, too, Mr. Barkes.

Blasphemy in Pennsylvania

The always excellent Cathy Young on the “Zombie Mohammed” case in Pennsylvania:

It all started with a Halloween parade in which Ernest Perce V, head of the state chapter of American Atheists, marched as “Zombie Mohammed” with turban, fake beard, and chants of “I am the prophet Mohammed, zombie from the dead.” (A fellow atheist activist was “Zombie Pope.”) An offended Muslim immigrant, Talaag Elbayomy, approached Perce and threatened to call the police, apparently believing that such blasphemy was against the law; Perce claims Elbayomy spun him around and grabbed his neck while trying to pull off his beard and his “Mohammed of Islam” sign. Elbayomy was charged with harassment.

On December 6, Judge Martin dismissed the case for lack of evidence. He also gave Perce a lengthy tongue-lashing, chastising him for everything from ignorance of Islam to failure to understand the importance of religion to Muslims to an “ugly American” disregard for other cultures. Noting that Perce’s actions would have been punishable by death in many Muslim countries, he continued, “Here in our society, we have a constitution that gives us many rights, specifically First Amendment rights. It’s unfortunate that some people use the First Amendment to deliberately provoke others.” He told Perce that while he had the right to be offensive, “you’re way outside your bounds on First Amendment rights.”

[…]

With such conflicting testimony, Judge Martin’s decision to dismiss the case is entirely reasonable. The way in which he used his position as a bully pulpit is another story.

It is not unusual for judges to admonish the parties in a case, sometimes harshly, about their conduct. In this instance, though, the lecture was startlingly one-sided. Judge Martin lambasted Perce for his disrespect for other people’s culture and faith while not one critical word was spoken to Elbayomy.

There is nothing wrong with telling someone that just because he has a constitutional right to say something doesn’t mean he should say it (which Judge Martin told me was his point). Yet there is something inherently disturbing about a public official chastising a citizen for engaging in constitutionally protected expression, however obnoxious. It is especially troubling when it’s a matter of criticizing or even lampooning religion, an area in which free speech has so often been trampled.

Meanwhile, Judge Martin had before him a defendant who, by his own and his lawyer’s admission, was grossly ignorant of the protections for free speech in America. Surely, a lecture on civics would not have been amiss.

When I posed this question to the judge, he replied that his remarks about First Amendment rights were addressed to both parties: “It was a dual message … that the victim was within his constitutional rights to do what he did.” But, given that Perce was the one being chided, that message was likely lost on the defendant—particularly since it came with the disclaimer that these rights should not be used to “piss off other people and other cultures” and with the baffling statement that Perce was “outside [his] bounds on First Amendment rights.”

The case has another worrisome aspect. While no religion has a monopoly on fanaticism, it is no secret that, for many complex reasons, religious intolerance is at present far more entrenched, more common, and more extreme in Islam than in other major religions. Some argue that violent suppression of dissent is in the nature of Islam, and insinuate that every Muslim in the West is a potential agent of sharia tyranny.

Judge Martin did not, of course, invoke sharia law as a basis for his ruling; nor did he suggest that Elbayomy would have been justified in assaulting Perce because his religion commanded it. But he did seem to suggest that insults to the Muslim faith are especially bad because of how impermissible blasphemy is in many Muslim countries and because of the role religion plays in Muslims’ lives. Indeed, he specifically drew a distinction between “how Americans practice Christianity” and how Muslims practice Islam: “Islam is not just a religion, it’s their culture … it’s their very essence, their very being.”

“Until somehow his soul is taken from him.”

In the Islamic Republic of Iran, a Christian pastor faces execution for “apostasy”:

Fears are growing for the fate of Pastor Youcef Nadarkhani after some reports claimed he could be executed by as early as today.

White House spokesman Jay Carney stated yesterday: “A decision to impose the death penalty would further demonstrate the Iranian authorities’ utter disregard for religious freedom.”

British Foreign Secretary William Hague and US House Speaker John Boehner have both joined in calls for Mr Nadarkhani to be freed.

Yesterday his lawyer Mohammad Ali Dadkhah said he was “optimistic” that Mr Nadarkhani would be freed soon – despite admitting: “Mr Nadarkhani did not repent and the last court verdict said he would face a death sentence if he did not.”

[…]

Mr Nadarkhani, now 32, converted from Islam to Christianity at the age of 19 and became pastor of a small evangelical community called the Church of Iran.

He was arrested in October 2009 and condemned to death for apostasy under Islamic sharia law, which however allows for such verdicts to be overturned if the convicted person “repents” and renounces his conversion – which Mr Nadarkhani has refused to do.

David Allen Green, legal blogger for Britain’s New Statesman magazine, posts excerpts from unofficial translations of the Iranian court rulings.  It’s a fascinating and scary look at how a theocratic legal system works:

The accused’s attorneys in addition to repeating their client’s defense, stated that, “Since there is no punishment specified in the Islamic Judicial system of Iran and other penal laws and therefore their client has not committed a crime to deserve a punishment. Secondly: Their client has not accepted Islam from the beginning of the puberty age to become an apostate by returning from it. Thirdly: Their client does not deny the prophethood of the great prophet of Islam as he has stated in his bills to The Assize Court of the province of Gilan that, he believes in great Mohammad as the great prophet of Islam. Fourthly: due to existance of not proven evidence regarding this case, the attorneys have requested a not guilty verdict for their client. in response to the court, that whether the accused believes in the prophethood of great Mohammad son of Abdullah as a prophet from almighty God for the salvation of humanity or not, he said, ” I have stated in the written bills that he is the prophet of Muslims but not a messenger from God, I am saved for not studying Islam, and I will never speak of Islamic testimonies to convert to Islam.

After hearing of the indictment by the public persecutor, the accused denied his apostasy charge in his last defense, and committed the remaining defense to his attorneys’ hands.

The attorneys have pleaded a not guilty verdict for their client by repeating the same previous defense. objections affected on the trial somehow one member of the jury left during the trial. even though some jury members, in the first day 30/6/89 and second day 31/6/89 of the trial, specified that the court has not accepted the objections after termination of the trial, and answers to the objections have been written.

As a result, with regard to 1- The reports of the intelligence bureau of Gilan as the executive office of the Judicial system. 2- The accused’s explicit and indisputable writings with the content that he has accepted Islam at the age of maturity, and quitted it at the age of 19. 3- organizing evangelistic gatherings and admitting establishments of house churches. 4- the accused’s unreasonable and not proven defense, that he has not enter Islam to quit it. 5- his written bills from prison to the investigator in charge of the case that confirm his statements in the intelligence bureau. 6- and other elements that exist in the case such as attorney’s unreasonable defense that their client’s denial of prophethood of the great prophet of Islam has not been due to enmity and malice with Islam but because of the anger and pressure he has been bearing.

It has been proven to the members of the jury that Mr Youcef Nadarkhani, son of Biram, has been born from Muslim parents, have chosen Islam, and quitted it at the age 19.

His actions according to the fatwas of all Shia theologians is considered as inherent apostasy from the sacred religion of Islam. With regard to the Article 167 of The Constitution of the Islamic Republic of Iran, Article 3 of Civil procedure of the Islamic Revolutionary Court, Article 8 of The law of Establishment of the General and Revolutionary Courts, Article 105 of the Islamic Judicial system of Iran, Article 8 from the book of Tahrir Alvasilah Fi Sofat Alghazi Va Maianaseb Lah, Fatwas of theologians including Imam and the supreme leader and grand ayatollahs Mohammad Reza Golpayegani, Safi, Makarem Shirazi, Behjat Foumani, and pages of 103 till 109 of his file, the above-mentioned person as an apostate will be executed by being hung until somehow his soul is taken from him. The sentence is attendant and appealable at the supreme court 20 days after when It has been delivered. [emphasis added]

You can send a message to the Iranian embassy in London here.

Review – The Church of Scientology: A History of a New Religion by Hugh B. Urban

[A version of this review originally appeared at CanadianLawyerMag.com.]

An academic history of the Church of Scientology might not seem relevant to lawyers, unless you’re familiar with the controversial movement’s use of the justice system against its many detractors. Founder L. Ron Hubbard explained his legal philosophy in 1955: “The purpose of the [lawsuit] is to harass and discourage rather than to win. The law can be used very easily to harass, and enough harassment on somebody who is simply on the thin edge anyway . . . will generally be sufficient to cause his professional decease. If possible, of course, ruin him utterly.”

(I wish I could say I’ve never dealt with lawyers who subscribe to this line of thinking, but that’s another column.)The reclusive Hubbard died in 1986, but Scientology critics should still brace themselves for long, difficult, and expensive defamation actions brought by the organization. Time magazine and its parent company spent millions of dollars in legal fees defending its 1991 cover story “The Thriving Cult of Greed and Power.”  Church lawyers have demanded that Google remove anti-Scientology web sites from its search results. Most notoriously, the venerable Cult Awareness Network was forced into bankruptcy after years of litigation against Scientology — and then its name was purchased by a Scientologist who started up a Hubbard-friendly “New Cult Awareness Network.”

The organization really devoted its energies to a long, brutal legal battle with the Internal Revenue Service, trying to restore its designation as a tax-exempt religious organization. In The Church of Scientology: A History of a New Religion, Ohio State University religious studies professor Hugh Urban notes that Hubbard initially made no effort to claim he had founded a religion, and in fact made several comments disparaging religious belief. Dianetics, the founding text of Scientology (which initially appeared, fittingly enough, as an article in Astounding Science Fiction magazine), was subtitled “The Modern Science of Mental Health,” and the “religion angle” (Hubbard’s words, not mine) was only approached when the IRS started sniffing around.

Suddenly, Scientology buildings were adorned with an eight-pointed cross, Scientologists were sporting clerical collars, and a book of Scientology rites was hastily produced. The U.S. government remained suspicious, however, and things only got worse after “Operation Snow White,” an elaborate intelligence-gathering operation in which Scientologists infiltrated the IRS, was uncovered in 1977.

In 1993, however, Scientology and the American government reached a settlement, in which the church dropped several legal actions in exchange for official recognition as a tax-exempt religion. Now the organization is fighting the same battle in other countries, including Canada.

Urban’s book raises many thought-provoking questions about the distinction (if any) between a religion and a cult, and why some faiths are officially exempted from the tax system while others are not. Paradoxically, the United States Constitution forbids promotion of religion by the state, yet the state’s revenue agency has the power to determine what is “really” a religion and what is not.

He also illustrates how in recent years, the tables have been turned on Scientology, which now finds itself under attack from decentralized “anonymous” members who organize through the Internet. The church itself has launched many copyright-infringement lawsuits against web sites on which confidential “scriptures” — including the ones about evil intergalactic ruler “Xenu,” famously satirized on South Park — have been posted, but it is practically impossible to stop the viral spread of anti-Scientology material on the web.

The author shies away from taking a clear position on whether, in his opinion, Scientology truly deserves its official recognition. Indeed, Urban tries to remain neutral as to the benefits and/or harm caused by the organization and its practices, and whether its followers and leaders are sincere as to whether Scientology is really a system of religious belief. (The question of whether religious organizations deserve tax-exempt status at all is largely ignored.)

Urban’s history of this controversial movement is a good starting point for authors and academics who wish to review the legal, moral, and theological issues surrounding Scientology. But it might have been an even better book had he not decided to pull so many punches.

Unfortunately, when the subject is Scientology, it’s hard to say whether the author was trying to be fair or whether he wanted to avoid being sued.

Quote of the day

“People are entitled to speak their mind. If their speech is unkind or irrational or similarly improper, it should be condemned on those grounds. But neither law nor morality can demand that they restrict what they do because of the murderousness of others.”

– Eugene Volokh, on the Koran-burning controversy. Someone should read that post to Senator Lindsey Graham.

A thought experiment

Matt Stone and Trey Parker, the creators of South Park, have written a raunchy Broadway musical called The Book of Mormon. I haven’t seen it, but history suggests that the show’s portrayal of the Church of Latter-Day Saints is less than respectful.

Now, imagine some lunatic taking offence to The Book of Mormon and trying to track down Matt and Trey to avenge this gross insult to his faith.  Unable to locate them, he walks into a shopping mall and goes on a shooting rampage, killing twenty people and injuring dozens more.

Question: do you believe Matt Stone and Trey Parker should be held responsible for these deaths?