The right to offend is much in the news in 2020. People debate whether one can say things that might hurt other people’s feelings. Students claim that they are harmed by ideas that professors put forth for discussion. The mass media are expected to issue trigger warnings so that listeners and viewers can decide whether they can tolerate what is about to be reported.
In 1951 the Supreme Court of Canada issued a
decision that might help us decide what can and cannot be said today, even if
it is offensive. The question in the Boucher
case was whether Aimé Boucher should be permitted to distribute pamphlets
with content that offended Quebec Roman Catholics. Boucher was a farmer and a
Jehovah’s Witness.
The Jehovah’s Witnesses were a small Christian
denomination. In 1939 there were perhaps two to three thousand Witnesses in
Canada. They were a missionary group and tried especially to convert Roman
Catholics who, they believed, were being misled by the Vatican. At one point
Witnesses depicted the Catholic Church as a “whore of Babylon.” During World
War II, Witness literature grouped the Pope with Hitler, Stalin and Mussolini
as allies of Satan.
This did not sit well with the Catholic hierarchy
that dominated much of Quebec’s social life. The Church was so strong that it
persuaded the federal government to ban Witnesses during the war. Some Witness
children were expelled from school for refusing to sing the national anthem and
salute the British flag, while many male Witnesses were arrested and interned
for refusing military service. Yet the Witnesses continued their missionary
work. By 1945, there were about 10,000-15,000 in Canada, although fewer than
500 lived in Quebec.
Premier Maurice Duplessis of Quebec, who obtained
much of his support from the Catholic hierarchy, detested Jehovah’s Witnesses.
He used sedition laws to arrest hundreds, charging over 800 in 1946 alone.
Duplessis grouped Witnesses with Communists and Nazis as seditious organizations,
declaring a “war without mercy” on them.
In 1946 Boucher was arrested for distributing a
pamphlet entitled “Quebec’s Burning Hatred for God and Christ and Freedom is
the Shame of All Canada.” Most of this pamphlet detailed post-war mob violence
against, and political persecution of, Witnesses. It concluded with a message
to Quebec society:
Quebec, Jehovah’s witnesses are telling all Canada
of the shame you have brought on the nation by your evil deeds….And your claims
of serving God are…empty.…Quebec, you have yielded yourself as an obedient
servant of religious [Roman Catholic] priests, and you have brought forth
bumper crops of evil fruits.
Boucher was charged
with sedition by intentionally creating ill will between sections of the
population. The case against him went through several courts, eventually ending
up at the Supreme Court of Canada in 1950, with judgment rendered in 1951. In
acquitting Boucher, Justice Ivan Rand issued a ringing defense of freedom of
speech.
Freedom in thought and speech and disagreement in
ideas and beliefs, on every conceivable subject, are of the essence of our
life. The clash of critical discussion on political, social and religious
subjects has too deeply become the stuff of daily experience to suggest that
mere ill-will as a product of controversy can strike down the latter [i.e.
controversy] with illegality. …Controversial fury is aroused constantly by differences
in abstract conceptions; heresy in some fields is again a mortal sin…but our
compact of free society accepts and absorbs these differences.
The fact that some
Quebeckers were insulted by the Jehovah’s Witness pamphlet was not enough to
limit dissent in Canada. The Boucher case,
and others involving Jehovah’s Witnesses, were among the key cases preceding
the establishment of the Canadian Charter of Rights and Freedoms in 1982. As Antonio
Lamer said in 1996, “Boucher…entailed
an exploration of the underpinnings of a free and democratic society,
particularly the importance of protecting the freedom of expression of
dissenting minorities.”
In our time, certain
factions of Canada’s political and academic “left” wish to censor the views of
dissenting minorities. These minorities express views that some consider to be
insulting to, demeaning of, or prejudicial to marginalized people who suffer from
social, economic and political disadvantages. Yet as Justice Rand also said in
his ruling on Boucher:
[D]iscontent…and hostility: as subjective incidents
of controversy…are part of our living which ultimately serves us in
stimulation, in the clarification of
thought and…in the search for the …truth of things generally….[F]ree
criticism as a constituent of modern democratic government, provides the widest
range of public discussion and controversy.
This 70-year-old
precedent arises from persecution of a minority religious group that held opinions
offensive to many people. It explains why even offensive ideas deserve airing
in the public realm today. As of August 2020, it had been cited in 65 Canadian
cases and decisions, including 14 by the Supreme Court of Canada. It has never
been overturned.
