The Right to Offend: A Canadian Precedent from 1951

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.