Someone who called Queen Elizabeth "the whore of Babylon" as part of an anti-monarchist tirade would presumably be protected from criminal prosecution in this country. Freedom of expression is constitutionally enshrined in the Charter.
No such luck for the poor sod who was sentenced to seven days in jail in Holland recently for calling Queen Beatrix a prostitute.
To my surprise, the land of assisted suicide, pot smoking and red-light districts is not the only country that still maintains the archaic Roman criminal offence of lèse-majesté, i.e. violating the dignity of the reigning sovereign.
Despite our Charter, there is still a good chance that an insult to Queen Elizabeth could land a foul-mouthed anti-monarchist in jail here.
It must not be forgotten that all criminal charges in Canada are framed as Regina (aka Her Majesty the Queen) vs. The Criminal. Elizabeth seems like a nice lady, but why do we still consider her the symbolic accuser in all Canadian criminal cases?
The feudal kingdom of Canadian criminal justice doesn't just pay symbolic tribute to the Queen. It actually provides special protection to the Queen above and beyond the legal protection given to all us serfs. For the most part, to commit a crime against an ordinary Canadian, the criminal must inflict some physical, psychological or economic injury on the victim.
But for the Queen, our Criminal Code actually makes it a crime to simply "alarm Her Majesty" (section 49). And the lawmakers are serious. The crime is punishable by a maximum of 14 years imprisonment. Conceivably, this odd and obscure statute could apply to political pie-throwers, to people who pass gas while dining with the Queen and perhaps to public speakers who for whatever reason feel inclined to call the Queen a prostitute.
In actuality, it is unclear whether free speech in Canada would protect this type of insulting political rhetoric.
In 1987, the Court of Appeal of Ontario ruled that the common law offence of scandalizing the court was unconstitutional, and one might think that if a Canadian is constitutionally entitled to say scandalous things about judges, the monarch would be fair game.
But for the most part, constitutional challenges to the criminalization of offensive speech have failed miserably. Our courts have become quite adept at waxing poetic on the political and social virtues of free expression while simultaneously upholding the use of the criminal law to suppress offensive speech.
In 1998, the Supreme Court upheld the constitutionality of the crime of defamatory libel. There is no doubt that an insult to reputation is a civil wrong warranting compensation when the insult is false and harmful.
But the Supreme Court concluded that casting aspersions on someone's good reputation is a sufficiently serious wrong to warrant the invocation of the criminal law and to override the right of free expression.
There is something insidious about providing the Queen with special protection under the criminal law, and there's no reason to maintain the practice of symbolically naming the Queen as the victim of all crimes committed in Canada. This may have made sense historically, considering our colonial heritage and the structural similarities between British and Canadian criminal justice.
But with the enactment of the Constitution Act, 1982 (The Charter Of Rights And Freedoms), our political leaders claimed that they were finally cutting the political and legal umbilical cord that entangled the Queen and her largest child.
We have enough problems with class bias and racial discrimination that tarnish our criminal justice system, so it doesn't help to recruit the richest woman in the world to act as accuser and victim. The idea of the monarchy may be quaint, but quaint only works in the world of parades and porcelain.
Maintaining the vestiges of our royal heritage in the world of criminal justice can only serve to highlight the common perception that rich and poor do not receive equal justice.
I think it's time to strip the Queen of any honourary status and protection provided for in the administration of Canadian criminal justice. This change may be easier said than done, as traditions always tend to outlive their best-before date.
Nonetheless, if I am constitutionally entitled to call Stephen Harper a moron, then I should be able to call Elizabeth a prostitute. I see no reason to make any comment about Elizabeth's sexual proclivities, but I reserve the right to do so.
Alan Young is a professor of law at Osgoode Hall. His column appears every other week in NOW.