Academic journal article St. Thomas Law Review

Blasphemy in Pre-Criminal Code Canada: Two Sketches

Academic journal article St. Thomas Law Review

Blasphemy in Pre-Criminal Code Canada: Two Sketches

Article excerpt

I.   INTRODUCTION

II.  BLASPHEMY IN NEW FRANCE
     A. CONTEXT
     B. CASES
     C. ANALYSIS

III. BLASPHEMY IN EARLY NINETEENTH-CENTURY RURAL
     ONTARIO
     A. CONTEXT
     B. CASES
     C. ANALYSIS

IV.  CONCLUSION

I. INTRODUCTION

Few people realize that Canada has a law against blasphemy, and even fewer realize that this prohibition extends as far back as the origin of the country. (2) The text of Canada's Criminal Code's ("the Criminal Code") blasphemous libel provision, which was enacted in 1892, and the five reported cases arising under it, are the most relevant materials for understanding the legal concept of blasphemy as it exists in Canada today. (3) However, these materials reveal little about how irreligious speech was treated by the criminal justice system prior to the advent of the Criminal Code. (4) This article attempts to fill in this gap by analyzing two particular sites of blasphemy prosecutions in Pre-Criminal Code Canada: the New France era in Quebec and early 1800s rural Ontario. (5)

It must be noted that reconstructing the law of blasphemy in Canada as it existed several generations ago is a difficult task. The available materials come exclusively from archival holdings, which means it may be impossible to conclusively determine whether those materials are truly representative of the law at the time or simply an artifact of archival indexing practices. (6) Those documents which can be found are often incomplete, containing little more than a single affidavit or indictment, (7) or nearly indecipherable from faded handwriting. (8) Secondary sources covering the religious, political, and social history of these time periods make little or no mention of blasphemy. (9) Finally, historians trying their hand at law, and lawyers trying their hand at history, should be quick to acknowledge their limitations. Any conclusions drawn here will necessarily be tentative and preliminary.

Disclaimers aside, such a study is certainly worth the effort. These early cases have something to tell us about what "blasphemy" meant to early European settlers in what would become Canada: what words were considered blasphemous, what social and economic classes were likely to have been viewed as responsible for blasphemy, and how severely blasphemy would be punished if discovered. (10) Even if the framers of the relevant provision of the Criminal Code borrowed from elsewhere, (11) a history of the legal prohibition of blasphemy in Canada would be incomplete without at least an attempt to integrate the earliest examples that can be found. (12)

II. BLASPHEMY IN NEW FRANCE

A. CONTEXT

The colony of New France existed as a state-governed legal entity for just under a century--from 1663, when King Louis XIV imposed military rule dissolving the commercial entity that had established the colony, (13) until the English Conquest of 1760. (14) The military nature of New France is important to remember when studying blasphemy prosecutions during this era, as many of the cases involve soldiers and sailors as defendants. (15) According to W.J. Eccles, "[t]he whole fabric of [New France] Canadian society was imbued with the military ethos" (16) and "[t]he colony ... was organized on military lines" with compulsory military service for all able-bodied men. (17) Colonial government was bifurcated, with a Governor in charge of military and diplomatic matters, and an Intendant in charge of civil administration and the justice system. (18) The civilian population was not subject to military law, but instead was subject to the "Custom of Paris," civil law as then practiced in and around France's largest municipality. (19) A "Sovereign Council" of notables in the colony, including the Governor, the Intendant, the Bishop, and others acted as the court of appeal for both civil and criminal matters. (20)

Criminal law in the colony followed the Criminal Ordinance enacted in France in 1670. …

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