Blasphemous libel was originally an offence under the common law of England. Today, it is an offence under the common law of Northern Ireland, but has been abolished in England and Wales, and repealed in Canada and New Zealand. It is a form of criminal libel that consists of the publication of material which exposes the Christian religion to scurrility, vilification, ridicule, and contempt, with material that must have the tendency to shock and outrage the feelings of Christians.
Historically, the common law offences of blasphemy and blasphemous libel were adopted from the common law of England as common law offences in British colonies and territories. From the late 19th century, several colonies and countries replaced the common law offences with adopted versions of the draft code called "the Stephen Code" written by Sir James Fitzjames Stephen as part of a Royal Commission in England in 1879. The Stephen Code included the offence of blasphemous libel but omitted blasphemy. The common law offences of blasphemy and blasphemous libel were abolished in England and Wales with the passage of the Criminal Justice and Immigration Act 2008 but the offences remain as part of the common law, criminal code, or criminal statute in various countries, states, territories, and legal jurisdictions.
United Nations General Comment 34
Blasphemy laws are incompatible with the International Covenant on Civil and Political Rights (ICCPR). In July, 2011, the UN Human Rights Committee released a 52-paragraph statement, General Comment 34 on the International Covenant on Civil and Political Rights 1976, concerning freedoms of opinion and expression. Paragraph 48 states:
Defence
In both Canada and New Zealand and other jurisdictions that adopted versions of the Stephen Code under their respective legislation, it was not blasphemous libel to express in good faith and decent language any opinion on a religious subject.
Australia
The offences of blasphemy and blasphemous libel in English common-law were carried over to the Australian colonies and "received" into state law. Blasphemy and blasphemous libel are not criminal offences under Australian federal law and the common-law offences were abolished by the Australia Criminal Code Act 1995. The Australian Capital Territory abolished the common-law offence of blasphemous libel but not blasphemy with the Law Reform (Abolitions & Repeals) Act 1996.
The common-law offences were abolished completely in Queensland and Western Australia when those jurisdictions adopted criminal codes that abolished the common-law offences and did not replace them with code offences. The criminal code of Tasmania includes the offences of both blasphemy and blasphemous libel and abolishes both common-law offences. In New South Wales, the crimes act recognises blasphemous libel and the common-law offences have not been abolished. In both Tasmania and New South Wales, the relevant offences are not enforced and generally regarded as obsolete. In South Australia, Victoria, and the Northern Territory, the situation is uncertain as the local criminal codes do not mention blasphemy or blasphemous libel but did not specifically abolish the common-law offences.
Canada
Summary of offence and defence
Blasphemy and Blasphemous libel were common law offences before the Criminal Code Act of 1892 abolished the common law offence of Blasphemy but included the offence of Blasphemous libel. Before repeal in December 2018, blasphemous libel was an offence under section 296 of the Criminal Code of Canada.
It was an indictable offence punishable with imprisonment for a term not exceeding two years. The offence of blasphemous libel, like all other laws of Canada, was subject to section 2 of the Canadian Charter of Rights and Freedoms, which protects freedom of expression. Before the law's repeal, no court was asked to consider whether blasphemous libel was consistent with the Charter's guarantee of freedom of expression, which came into force in 1982.
Last prosecution: R v Rahard (1935) The last prosecution of a charge of blasphemous libel was in 1935, in R v Rahard, in Quebec. In that case, the court adopted an argument that prosecutor E. J. Murphy had proffered in the case of R v Sperry (unreported) in 1926. Mr. Murphy put the issue this way:
In Rahard, the Court found the Rev. Victor Rahard of the Anglican Church of Canada guilty of blasphemous libel for his aspersions upon the Roman Catholic Church.