Canadian State Trials, Volume IV: Security, Dissent, and the Limits of Toleration in War and Peace, 1914-1939 9781442625976

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Canadian State Trials Volume IV S e c u r i t y, D i ss e n t, a n d t h e L i m i t s o f T o l e r at i o n i n Wa r a n d P e a c e , 1914–1939

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PATRONS OF THE SOCIETY

Blake, Cassels & Graydon LLP Chernos Flaherty Svonkin LLP Gowlings McCarthy Tétrault LLP Osler, Hoskin & Harcourt LLP Paliare Roland Rosenberg Rothstein LLP Torys LLP WeirFoulds LLP

The Osgoode Society is supported by a grant from The Law Foundation of Ontario.

The Society also thanks The Law Society of Upper Canada for its continuing support.

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Canadian State Trials v o l u m e iv

Security, Dissent, and the Limits of Toleration in War and Peace, 1914–1939 Edited by B a r r y W r i gh t , E r i c T u c k e r , and Susan Binnie

Published for The Osgoode Society for Canadian Legal History by University of Toronto Press Toronto  Buffalo London

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© Osgoode Society for Canadian Legal History 2015 www.utppublishing.com www.osgoodesociety.ca Printed in the U.S.A. isbn 978-1-4426-3108-3 Printed on acid-free, 100% post-consumer recycled paper with vegetable-based inks.

Library and Archives Canada Cataloguing in Publication Canadian state trials / edited by F. Murray Greenwood and Barry Wright. (Osgoode Society for Canadian Legal History (Series)) Includes bibliographical references and index. Contents: v. 4. Security, dissent, and the limits of toleration in war and peace, 1914–1939 / edited by Barry Wright, Eric Tucker and Susan Binnie. isbn 978-1-4426-3108-3 (v. 4 : bound) 1. Political crimes and offenses – Canada – History.  i. Greenwood, F. Murray (Frank Murray), 1935–  ii. Tucker, Eric   iii. Wright, Barry, 1957–  iv. Binnie, Susan W. S. (Susan Wendy Strickland), 1941–  v. Osgoode Society for Canadian Legal History vi. Series: Osgoode Society for Canadian Legal History (Series) ke226.p6c351996  345.71’009   c969-311354- 

This book has been published with the help of a grant from the Federation for the Humanities and Social Sciences, through the Awards to Scholarly Publications Program, using funds provided by the Social Sciences and Humanities Research Council of Canada. University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council, an agency of the Government of Ontario.

Funded by the Financé par le Government gouvernement du Canada of Canada

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Contents

foreword acknowledgments contributors Introduction: War Measures and the Repression of Radicalism barry wright, eric tucker, and susan binnie

vii ix xiii 3

1 “They Will Be Dangerous”: Security and the Control of Enemy Aliens in Canada, 1914 bohdan s. kordan

42

2 Enemy Aliens in the First World War: Legal and Constitutional Issues peter mcdermott

71

3 Erroneous and Detestable: Seditious Language and the Great War in Western Canada jonathan swainger

97

4 Conscription and the Courts: The Case of George Edwin Gray, 1918 patricia i. mcmahon

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5 Court-Martial at Vladivostok: Mutiny and Military Justice during the First World War benjamin isitt

172

6 “Daniel de Leon Drew up the Diagram”: Winnipeg’s Seditious-Conspiracy Trials of 1919–20 reinhold kramer and tom mitchell

217

7 The Devil’s Drum: Seditious Libel in Industrial Cape Breton, 1923 david frank

261

8 Red Scares and Repression in Quebec, 1919–39 andrée lévesque

290

9 Section 98: The Trial of Rex v. Buck et al. and the “State of Exception” in Canada, 1919–36 dennis g. molinaro

324

10 The Canadian State, Ethnicity, and Religious Non-Conformism: The Trials of Peter Petrovich Verigin john mclaren

364

11 Wiping out the Stain: The On-to-Ottawa Trek, the Regina Riot, and the Search for Answers bill waiser

402

appendices a. Archival Sources and User Challenges at Library and Archives Canada judi cumming

439

b. A Note on Access-to-Information Challenges patricia i. mcmahon

465



471

c. Supporting Documents

index

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Foreword T H E O S G OODE S O C IET Y F OR C ANADIAN LE G AL H I S TOR Y

Canadians are engaged in an impassioned debate about the correct balance between enhanced state power and fundamental freedoms and liberties in a time of apparent and perceived threats to our security. This book, the latest collection in our Canadian State Trials series, looks at how these same questions were dealt with in an earlier period in our history. The essays here all deal with the legal issues raised by the repression of dissent from the outset of the First World War through the 1930s and the Great Depression. Topics covered include enemy aliens, conscription and courts-martial in the First World War, the trials following the Winnipeg General Strike, sedition laws and prosecutions generally and their application to labour radicals in particular, the 1931 trial of the Communist Party leaders, and the religious-political dissent of the Doukhobors. All regions of the country are covered, and special attention is given in one essay to Quebec’s repression of radicalism. The volume reminds us that the central questions being debated today – what are the acceptable limits of dissent in a democracy, and what limits should be placed on state responses to perceived challenges to its authority – are not novel even if their particular manifestations arise in slightly different ways in different historical contexts. We are very grateful to the editors of this volume for so carefully and skilfully reconstructing how our society dealt with these challenges between 1914 and 1939. The purpose of the Osgoode Society for Canadian Legal History is to encourage research and writing in the history of Canadian law. The

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Society, which was incorporated in 1979 and is registered as a charity, was founded at the initiative of the Honourable R. Roy McMurtry and officials of the Law Society of Upper Canada. The Society seeks to stimulate the study of legal history in Canada by supporting researchers, collecting oral histories, and publishing volumes that contribute to legal-historical scholarship in Canada. This year’s books bring the total published to 100 since 1981, in all fields of legal history – the courts, the judiciary, and the legal profession, as well as on the history of crime and punishment, women and law, law and economy, the legal treatment of ethnic minorities, and famous cases and significant trials in all areas of the law. Reaching such a milestone is a wonderful tribute to the leadership and inspiration of our founder and, until recently, President. Roy McMurtry stepped down as President in June 2015. We will be forever in his debt. Current directors of the Osgoode Society for Canadian Legal History are Robert Armstrong, Susan Binnie, David Chernos, J. Douglas Ewart, Philip Girard, Mahmud Jamal, William Kaplan, C. Ian Kyer, Virginia Mac­Lean, Patricia McMahon, Roy McMurtry, Madeleine Meilleur, Janet Minor, Dana Peebles, Paul Perell, Jim Phillips, Paul Reinhardt, William Ross, Linda Rothstein, Paul Schabas, Robert Sharpe, Jon Silver, Alex Smith, Lorne Sossin, Mary Stokes, and Michael Tulloch. The annual report and information about membership may be obtained by writing to the Osgoode Society for Canadian Legal History, Osgoode Hall, 130 Queen Street West, Toronto, Ontario, M5H 2N6. Telephone: 416947-3321. E-mail: [email protected]. Website: www.osgoodesociety.ca. Robert J. Sharpe President Jim Phillips Editor-in-Chief

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Acknowledgments

This fourth volume in the Canadian State Trials series brings readers to the First World War and the inter-war years. The series was conceived by the late Murray Greenwood. Influenced by the Cobbett-Howells series of English State Trials, Murray proposed a Canadian counterpart informed by modern standards of historical and legal scholarship. He developed this project with the assistance of Barry Wright into an ambitious contextualized examination of political trials and state-security measures in British North America and Canada. Wright was joined by Susan Binnie as co-editor of Volume III and in this volume Eric Tucker also comes aboard as a co-editor. The result has been an excellent and productive collaboration between co-editors as well as with our team of contributors. We wish to recognize the superb scholarship and patience of our authors, whose individual essays, responsiveness to our numerous requests, and assistance in refining general volume themes lend distinction and coherence to this book. We are deeply indebted to them. The previous volumes in this series (Volume I, 1608–1837; Volume II, 1837–1839; Volume III, 1840–1914) examined trials for the classic political offences of treason and sedition, as well as related security measures such as suspensions of habeas corpus, deportations, and the subjection of civilians to military justice. Volume IV follows a similar approach in that our central concern remains the legal responses of Canadian governments to real and perceived threats to the security of the state. Our aim

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is to provide a representative and relatively comprehensive examination of Canadian experiences with these matters, placed in broader historical and comparative context. That said, the country in the early twentieth century was a very different place from the British North America and early Canada covered in the previous volumes. Transitions begin in the period covered by the preceding volume with the emergence of the Dominion of Canada and an industrial economy. In this volume we see the end of significant colonial remnants as Canada takes its place on the international stage as an increasingly independent actor. The First World War witnessed the assumption of new powers by the Canadian state and prompted new political issues and difficult questions about Canadian identity and legal status at local, national, and international levels. The ensuing inter-war years brought serious economic challenges and unprecedented tensions between labour and capital. Federal and provincial governments struggled to address these challenges, and they responded by relying on a mixture of traditional and new legal measures. The War Measures Act, the prohibition of radical organizations, the addition of official secrets and espionage provisions in the Criminal Code, the development of routine deportation powers in immigration legislation, and the expansion of security operations and political policing overlay the older responses of prosecutions for political offences and resorts to military justice during war, insurrection, and emergencies. The series has received unflagging support from the Osgoode Society for Canadian Legal History, first under its late editor-in-chief, Peter Oliver, and then under his successor, Jim Phillips, who guided us in Volume III and this volume with insight, critical acuity, and sound advice. Roy McMurtry long showed superb leadership of this important organization, setting a pattern of excellence that no doubt will be matched by the Society’s new president, Robert Sharpe. And today as always, Marilyn MacFarlane provides first-rate administrative direction. The anonymous readers for the Osgoode Society, the University of Toronto Press, and the Humanities and Social Sciences Federation of Canada provided detailed assessments that not only demonstrated a solid grasp of the field and of the key issues but also resulted in suggestions that improved the manuscript. Len Husband and Wayne Herrington at the University of Toronto Press again did a superb job steering the manuscript from review to production. As was the case with the previous volumes, Curtis Fahey copy edited the volume, bringing order to our scholarly anarchy and wayward written expression, and Michael Bunn again brought his considerable expertise and wisdom to produce an index in short order.

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Acknowledgments  xi

Others have played an important role in the production of this volume. Mary Margaret Johnston-Miller, art archivist, Specialized Media Section at Library and Archives of Canada, provided excellent suggestions and a route through the wealth of available images for the period covered by this volume. One of these was a portfolio of drawings by Lloyd Scott who accompanied the On-to-Ottawa trekkers and his depiction of Slim Evans addressing the assembled men in Regina graces the cover of this volume, with the kind permission of his nephew Munroe Scott. Eric McGeer of Northmount School provided a most helpful overview and valuable guidance on issues around military justice in this period. Barry Wright would like to acknowledge the support and patience of his family, Meredith, Edward, and William, as this volume took shape. Eric Tucker thanks Lisa Brand for her irrepressible enthusiasm, remarkable toleration, and the security she provides. Susan Binnie expresses her gratitude to all of her family for their support and encouragement. This book has been published with the help of a grant from the Federation for the Humanities and Social Sciences, through the Awards to Scholarly Publications Program, using funds provided by the Social Sciences and Humanities Research Council of Canada.

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Contributors

Susan Binnie is an independent legal historian, former university teacher, and co-editor of two volumes of legal history essays, one of which is the third volume in the Canadian State Trials series. Judi Cumming was formerly chief of the Social and Cultural Archives section at Library and Archives Canada and a member of the design team for the archival descriptive system on LAC’s website. She has published in Archivaria and in The Archivist, and contributed to Framing Our Past: Canadian Women’s History in the Twentieth Century (2006). David Frank is a professor of history at the University of New Brunswick and a former editor of Acadiensis: Journal of the History of the Atlantic Region. His publications include J.B. McLachlan: A Biography and Provincial Solidarities: A History of the New Brunswick Federation of Labour. Benjamin Isitt is a historian and legal scholar affiliated with the University of Victoria. He is the author of several books that examine the relationship between social movements and states in Canada and globally, including From Victoria to Vladivostok: Canada’s Siberian Expedition and Militant Minority: British Columbia Workers and the Rise of a New Left. Bohdan S. Kordan is professor of international relations and chair of the Department of Political Studies, St Thomas More College, University of

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xiv  Contributors

Saskatchewan. He is also the director of the Prairie Centre for the Study of Ukrainian Heritage. His current research focuses on the politics of state/ minority relations in Canada, ethnic conflict, and identity and minorityrights issues, and his publications include Canada and the Ukrainian Question, 1939–45: A Study in Statecraft; Enemy Aliens, Prisoners of War: Internment in Canada during the Great War; and A Bare and Impolitic Right: Internment and Ukrainian-Canadian Redress. Reinhold Kramer is professor of Canadian literature at Brandon University. He has authored two books – Scatology and Civility in the EnglishCanadian Novel and Mordecai Richler: Leaving St. Urbain – and co-authored another two with Tom Mitchell – Walk Towards the Gallows and When the State Trembled. Andrée Lévesque is a specialist in labour history and women’s history in the twentieth century. She is the author of Red Travellers: Jeanne Corbin and Her Comrades and Virage à gauche interdit: Les communistes, les socialistes et leurs ennemis au Québec, 1929–1939. She is professor emerita at the Department of History, McGill University. Peter McDermott is an adjunct professor at Central Queensland University and a former reader in law at the University of Queensland. He is a senior member of the Administrative Appeals Tribunal (Australia). A member of the Selden Society, he has contributed to a number of editions of the Supreme Court History Program Yearbook of the Supreme Court of Queensland. John McLaren is emeritus professor of law at the University of Victoria, B.C. His research interests lie in the fields of Canadian and comparative colonial legal history. His most recent publications are Dewigged, Bothered and Bewildered: British Colonial Judges on Trial, 1800–1900 (2011) and an co-edited book of essays (with Shaunnagh Dorsett), Legal Histories of the British Empire: Laws, Engagements and Legacies (2014). Patricia I. McMahon is a historian and a lawyer living in Toronto. She holds an LLB and a PhD in history from the University of Toronto, and an LLM from Yale Law School, where she is completing a JSD on how reform movements influenced the fusion of law and equity in nineteenthcentury England.

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Contributors  xv

Tom Mitchell is university archivist emeritus, S.J. McKee Archives, Brandon University, Brandon, Manitoba, Canada. Dennis G. Molinaro holds a PhD in history from the University of Toronto and his research focuses on the historical use of emergency powers and their effect on identity and society in Canada. He is currently completing a full-length monograph on section 98 of the Criminal Code with the University of Toronto Press as well as a co-authored book on Canadian/ American relations post-1980 with a focus on security and sovereignty. He teaches at Trent University. Jonathan Swainger is a professor of history at the University of Northern British Columbia. He has published on capital punishment, the politics of judicial appointments, crime and community identity, and the juveniledelinquency panic in northern British Columbia during the 1950s, and his books include The Canadian Department of Justice and the Completion of Confederation; The Alberta Supreme Court at 100: History and Authority; Laws and Societies in the Prairie West, 1670–1940 (with Louis A. Knafla); and People and Place: Historical Influences on Legal Culture (with Constance Backhouse). Eric Tucker is a professor at Osgoode Hall Law School, York University, Toronto. He has written extensively in the area of labour law and occupational health and safety regulation, with a particular focus on their history. Most recently, he co-edited Property on Trial: Canadian Cases in Context and Constitutional Labour Rights in Canada: Farm Workers and the Fraser Case. Bill Waiser (SOM, FRSC, DLitt) is distinguished professor emeritus at the University of Saskatchewan. He is the author of more than a dozen books, including the award-winning Saskatchewan: A New History. His father was a guest of Prime Minister R.B. Bennett – in the Hope DND relief camp – during the early 1930s. Barry Wright is a professor of law and history, director of Kroeger College and associate dean of the Faculty of Public Affairs at Carleton University. He co-edited the previous volumes of this series with Murray Greenwood (volumes 1 and 2) and Susan Binnie (volume 3).

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Canadian State Trials Volume IV S e c u r i t y, D i ss e n t, a n d t h e L i m i t s o f T o l e r at i o n i n Wa r a n d P e a c e , 1914–1939

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Introduction: War Measures and the Repression of Radicalism B ARRY W RI G HT, ERIC TUC K ER , and S U S AN B INNIE

This fourth volume in the Canadian State Trials series, Security, Dissent, and the Limits of Toleration in War and Peace, 1914–1939, brings readers to the period of the First World War and the inter-war years. It follows an approach similar to that of others in the series. The central concern remains the legal responses of Canadian governments to real and perceived threats to the security of the state. The aim is to provide a representative and relatively comprehensive examination of Canadian experiences with these matters, placed in broader historical and comparative context. The previous volumes (Volume I, 1608–1837; Volume II, 1837–1839; Volume III, 1840–1914) examined trials for the classic political offences of treason and sedition, and looked at related security measures such as suspensions of habeas corpus, deportations, resorts to martial law, and the trials of civilians by military courts. This volume examines similar responses to security concerns in a fundamentally changed context, that of the early twentieth century, a period of major and intense upheavals. The First World War saw the assumption of new powers by the Canadian state and prompted new political issues and difficult questions about Canadian identity and legal status at local, national, and international levels. The ensuing inter-war years brought serious economic challenges and unprecedented tensions between labour and capital. Governments struggled to address these challenges, and they responded to emergency, crisis, and perceived security issues by relying on a mixture of traditional and new legal measures.

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4  b a r r y w r i g h t, e r i c t u c ker, and susan binnie

We begin with a brief sketch of the main political events and related economic and social issues during the 1914–39 period, followed by a brief note about common legal themes shared with previous volumes in the series. A more detailed survey of the main legal responses, and general issues that arise in this volume, sets the stage for the ensuing chapters. These are briefly summarized at the end of this Introduction. setting the historical stage and overarching themes Canada in 1914 was a self-governing Dominion but with limited autonomy. London controlled foreign policy for the British empire and Canada was committed to war in August 1914. The Dominion’s plans for a considerable contribution to the British war effort were initially widely supported in English Canada. Thirty thousand men enlisted voluntarily, going overseas in October 1914 to fight on the Western Front by early 1915, followed by 400,000 more over the course of the war. At home, the government enacted the sweeping War Measures Act, 1914 (WMA) to manage the domestic war effort. Canadian factories began to produce munitions on an enormous scale, Canadian farmers were enlisted to feed the Allied troops, and an income tax was introduced to support the unprecedented state commitments and interventions. More than sixty thousand Canadians would be killed by 1918. As the war took a brutal toll, consensus slowly diminished. The Canadian victory at Vimy in April 1917, which left over ten thousand dead and wounded, was a turning point. In May 1917, as public opinion became increasingly divided and the number of reinforcements dwindled, Conservative Prime Minister Robert Borden sought to demonstrate Canada’s continuing resolve by announcing his government’s intention to introduce conscription. He presented the policy as a necessary step to support the volunteer soldiers overseas, whose huge sacrifices and contributions must not be in vain. Politically, the government believed that Canada’s unwavering support would help secure British promises of increased autonomy in the future. Liberal leader Wilfrid Laurier, always looking to the middle ground between English Canadian imperialists and French Canadian nationalists, called for robust war production and volunteerism rather than conscription. Laurier refused to participate in a formal wartime domestic political alliance and Borden turned to English Canadian Liberal MPs, drawing many into a new Unionist party formed to contest the December 1917 election.1

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Introduction  5

In September 1917 the government passed the Wartime Elections Act, amending Dominion elections legislation to extend the franchise to mothers, sisters, wives, and widows of servicemen but removing it from immigrants from enemy nations.2 About fifty thousand Canadian residents lost the right to vote, compounding the discrimination already experienced by many immigrants. As a result of earlier executive orders issued under the WMA, over eighty thousand residents had been required to register as enemy aliens, carry identity papers, and report regularly to the police. As the war continued, more than eighty-five hundred were denied habeas corpus and interned without trial as enemy aliens; about a third were prisoners of war but the majority were civilian Canadian residents of Ukrainian background.3 The bitter 1917 election campaign resulted in a decisive Unionist majority in December but with only three government seats from the province of Quebec. The election deepened divisions between English and French Canada and conscription riots that followed in Quebec in the spring were met by resort to military aid to the civil power, leading to the deaths of four protesters. The final year of the war saw harsher censorship, the banning of political groups, and continued attempts to bring sedition prosecutions against those who criticized government and the war effort. The 1914–18 war effort had a significant impact on the Canadian economy, which, despite a recovery from the long depression of the late nineteenth century, had experienced a recession in the years immediately prior to the outbreak of war.4 As production ramped up and men left for the front, the economy began to accelerate and labour shortages combined with wartime inflation created conditions conducive to labour militancy, setting off the largest wave of strikes to that point in Canada’s history.5 The government scrambled to contain this threat to the war effort, initially emphasizing measures that promoted cooperation between employers and “responsible” unions. As the war continued, however, Ottawa increasingly turned to the use of coercion, ultimately prohibiting strikes in war-related industries.6 Divisive conflicts and repressive state interventions continued after the peace of 11 November 1918. There were delays in demobilization and former soldiers, once home in Canada, faced unemployment. Many workers demanded that the sacrifices they had made in a war “fought to save democracy against the scourges of Kaiserism” should result in changes to their workplaces and, in particular, that employers should recognize and bargain with trade unions.7 For the most part, employers preferred a return to the pre-war status quo, and, while some in government wanted

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to continue the wartime policy of promoting collective bargaining, in general there was little support for such measures. Indeed, the principal government response to rising labour radicalism in the post-war era was to enshrine in legislation some of the repressive measures put in place towards the end of the war under the WMA and strengthen the state’s permanent coercive powers. Some of the new powers were soon put to use in post-war confrontations between labour and capital, notably during the Winnipeg General Strike of 1919, when the state responded by calling out the militia, arresting and prosecuting the strike leaders, and deporting aliens.8 The combined effects of repression and the return of economic prosperity in much of Canada during the early 1920s saw a reduction in trade-union activity. But in some regions, such as the Maritimes, labour militancy continued. Cape Breton coal miners and steel workers fought back against the beginning of the long decline of these industries, and the state responded in much the same way as it had a few years earlier in Winnipeg.9 Events outside Canada, most significantly the Bolshevik Revolution in October 1917, also fuelled fears of domestic radicalism. The government responded to the Revolution by sending troops, including conscripts, to join an undeclared and unsuccessful war on the new Soviet government waged by thirteen Allied countries.10 At the same time, Canada also reorganized and strengthened its domestic security forces. The pace and urgency of security operations eased after the immediate post-war turmoil but intensified again with the onset of the Great Depression in 1929. Political and labour radicalism grew stronger as the Communist Party of Canada attracted new members and established a separate union movement, the Workers’ Unity League (WUL), which successfully organized workers in many parts of Canada.11 While these organizations often demanded reforms, their long-term goal was to bring about the end of capitalism, which the Communist International (CI) during its Third Period (1928–35) believed to be in its final phase. The CI encouraged its member parties to adopt a militant line. In response, the Canadian government acted quickly to suppress this perceived threat to the established order, exercising the extraordinary powers that had been made permanent at war’s end. Leaders of the Communist Party in Canada who were British subjects were prosecuted while large numbers of foreign-born radicals were deported.12 The intensity of repressive actions diminished after 1935, in part as a result of the election of a Liberal government under Mackenzie King – more inclined to rule by compromise and accommodation than with an iron fist. In addition, the CI’s adoption of the Popular Front policy in response

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Introduction  7

to the rise of fascism in Europe resulted in the Canadian party adopting different tactics. It dismantled the WUL and directed its member unions to seek integration into the mainstream Trades and Labour Congress. Party members started working in broad alliances with other progressive groups.13 The previous volumes in the series examined how the circumstances of war, invasion, and insurrection prompted prosecutions for political offences. Popular movements of opposition, dissent, and resistance were also sometimes apprehended as insurrectionary, or as potential threats to the existing order, and were met by such prosecutions as well. A shift in legal responses, noted in Volume III, became increasingly evident in the 1914–39 period. Prosecutions for treason and sedition, the traditional response and primary subject of state trials, were increasingly supplanted by reliance on legislation that authorized the administration of nationalsecurity measures. Such measures provided governments with more flexibility than prosecutions for the traditional political offences. They enabled a wider, more intensive regulation of security threats, supported by new institutions of surveillance and enforcement. The summary administrative processes introduced were difficult to challenge in the courts, supported by a judicial tendency to defer to legislated, delegated executive authority and discretion, and by the modification or even suspension of procedural protections usually found in regular criminal trials. There are nonetheless more similarities than differences between traditional and modern legal responses to security threats. These laws were and remain contentious because of their obvious political overtones, impact on civil society, and the manner in which they compromise rights and abrogate civil liberties. They are in conflict or tension with formal constitutional and legal claims and popular expectations of these claims. It is also the case that popular deference to government justifications for special powers, whether cast as matters of public safety or citing other urgent reasons, diminishes when there is obvious abuse of these laws. Yet, despite these common characteristics, the older and newer security responses also defy easy assessment and generalization. The complexity of these laws and their administration was demonstrated in previous volumes in the series. Legal responses to real or perceived security threats by way of resort to regular processes of justice tended to enhance the legitimacy of government actions and broaden public support to a much greater degree than military responses or other heavy-handed forms of repression. But using ordinary law also entailed risks for governments. The accused contested their prosecutions in

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public tribunals. Governments had to attend to popular expectations about justice and the integrity of their formal legal and constitutional claims. Effective defences were possible. Prosecutions could be frustrated and acquittals could discredit governments and enhance public support for the accused and his or her cause. Governments were acutely aware of all of this. Nevertheless, during the most serious security crises there tended to be wider resort to exceptional measures authorized by temporary emergency legislation or exercise of prerogative powers.14 As seen in previous volumes, these included procedural expedients that favoured the crown’s case in trials and suspensions of habeas corpus that supported indefinite detentions and summary deportations (e.g., War of 1812, Upper Canada for most of 1838, the Fenian crisis of the late 1860s, and the 1885 North-West Rebellion). In extreme situations, governments would claim that the regular administration of justice must be suspended altogether; martial law was imposed and civilians were subjected to military justice (as in Quebec in the late eighteenth century, Lower Canada in 1837–8, and parts of Upper Canada in late 1838). Along with the shift away from the prosecution of political offences there was also a modification of exceptional security responses by the early twentieth century. Military aid to the civil power was regularized and exceptions to the usual processes of criminal justice came to be deployed under the authority of modern security legislation that was permanent rather than temporary. These developments tended to result in exceptions that continued in effect well beyond the crisis or concern that prompted them in the first place, typically justified as necessary to contend with changed twentieth-century realities, whether those changes concerned the nature of threats posed by hostile powers, support for effective and comprehensive public responses to emergencies, or the protection of important state secrets in a technological information age. In short, states of exception have tended to become normalized. Yet it remained the case that the resort to more arbitrary measures and the extent of their use depended not only on the gravity of the security threat but also on what Eric Tucker has aptly described as the “social zone of toleration.”15 Emergency expedients that suspended regular legal and constitutional protections required not only political and legal justification but also popular legitimacy in order to be effective. The First World War and the security concerns relating to the labour movement and to aliens that continued in its wake provide ample demonstration of these general themes.

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Introduction  9

canada’s national-security laws in the early twentieth century As noted in the previous volume of Canadian State Trials, the 1892 Criminal Code retained the classic political offences of treason and sedition. The three main forms of high treason, dating to the time of Edward III, were replicated in modern language, accompanied by a lesser new form of treason and the unique Canadian political offence of lawless aggression.16 No treason prosecutions on the scale of the Riel trial and the other trials from the 1885 North-West Rebellion would be ventured again by Canadian governments, although slight amendments were eventually made to the Code in the early 1950s.17 Sedition prosecutions had also become unusual by the late nineteenth century, being viewed as controversial and risky because of the possibility of jury acquittals. The continuing need for that offence also seemed obviated by more comprehensive breach-ofthe-peace offences and new institutional means to enforce them. But, as Desmond H. Brown and Barry Wright observed in the previous volume, the opportunity to define sedition more narrowly during the drafting of the 1892 Canadian Criminal Code, by specifying the required intent and thereby moving decisively away from the older elastic common law elements of the offence, had been missed. This would have serious implications when the official climate once again favoured sedition prosecutions, namely during the First World War and in response to post-war labour radicalism.18 Moreover, a wartime measure (Order-in-Council PC 2384) that outlawed organizations advocating economic or political change by force supplemented the political offence of sedition. It continued in effect after the war, by way of 1919 Criminal Code amendments (the addition of section 97, later renumbered and better known as section 98); and changes to sedition provisions, notably the elimination of the “lawful criticism” saving clause in section 133 and an increase in maximum sentences from two to twenty years. In the 1926 elections, Mackenzie King promised to repeal section 98, and several repeal bills were subsequently passed by the House only to be defeated by the Conservative majority in the Senate. Some of the other retrograde changes to sedition law introduced in 1919 were eventually reversed, and section 98 was eventually repealed in 1936.19 The traditional political offences, as restated in the 1892 Criminal Code and extended by amendments, were supplemented by modern nationalsecurity laws that reflected the wider reach and institutional capabilities of the twentieth-century state.20 The period covered by this volume saw

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the expansion of civilian surveillance, accompanied by modern secrecy and espionage legislation. Adopted from contemporary British legislation, new laws in these areas had been included in the 1892 Code and were elaborated at London’s behest during the 1914–39 period. However, secrecy and espionage did not figure as prominently as security concerns in Canada as they did in the United Kingdom. There were no major cases of Canadians passing secrets to hostile powers in the period. By far the most important new Canadian national-security law, alluded to above, was the War Measures Act, 1914. This emergency executive-enabling legislation plays a central role in the five chapters in this volume relating to the First World War and had a considerable post-war legacy, notably by way of the above-mentioned 1919 amendments to the Criminal Code and related amendments to the Immigration Act. The main national-security issues in Canada during the First World War revolved around enemy aliens, conscription, and military justice. Afterwards, aliens remained a concern and so the government continued exclusionary measures such as limitations on entry and naturalization, combined with the use of deportation, and suspension of civil rights. In addition, worries about radicalism grew rapidly from 1919 into a major government security preoccupation focused on potential revolutionary challenges to the political, economic, and cultural status quo. Against this background, we now offer a closer look at the laws and security measures deployed during the 1914–39 period and the concerns they were designed to address. The War Measures Act: War Emergency Powers and Beyond The War Measures Act, passed at the outset of the First World War, became permanent executive-enabling legislation to deal with the security challenges posed by modern war and similar emergencies. Before the twentieth century, serious security emergencies were, as noted earlier, met by way of emergency legislation of limited duration, wider exercise of prerogative powers, and, in extreme situations, the extension of martial law and military justice to civilians. The WMA introduced a new approach. Parliament was instead called upon to ratify the declaration of emergency and, in so doing, delegate legislative authority to pass emergency regulations to the executive branch of government. This had significant advantages. It avoided the controversial and constitutionally questionable reliance on prerogative powers or the extreme step of subjecting civilians to martial law and military justice. It also avoided the delays and risks

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Introduction  11

governments potentially faced in seeking to secure passage in Parliament of temporary emergency legislation on a piecemeal basis. As will be discussed, the effect of the WMA was retroactive and the act remained law beyond the parliamentary session during which it was passed. While regulations under its authority would expire, the act itself required no renewal. Nor was it repealed at the end of the war. Any questions about its potential application to emergencies other than war were laid to rest by an amendment in 1927 that clarified the reference to “apprehended insurrection.” The government invoked this power again during the Second World War and in 1970 in response to the declared state of “apprehended insurrection” during the October Crisis. In 1988 the WMA was substantially revised and retitled the Emergencies Act.21 The WMA authorized cabinet to issue orders-in-council deemed necessary or advisable for the security, defence, peace, and welfare of Canada once Parliament ratified a declaration of a war or similar emergency. Parliament’s legislative authority for these matters was in effect delegated to cabinet for the duration of the declared emergency. Cabinet was thus given a free hand to issue orders or regulations for any defence or security purpose, including matters as serious as detention without trial and summary deportation, censorship and communications, transportation, and production and appropriation, along with attendant summary powers and penalties. The unfettered discretion also reduced the need for governments to launch legal actions or risky prosecutions for political offences after the fact. Murray Greenwood has argued that Parliament in 1914 never explicitly voted for continuation of the WMA beyond the end of the Great War, nor for the general principle of its potential peacetime application. Inadequate scrutiny, lack of vigilance, and complacency on the part of parliamentarians, a tendency shared by the press and supported by the general public’s attitudes of deference to authority and early war fervour, facilitated the sweeping legislative delegation of emergency powers to executive authority.22 Greenwood notes that, as hostilities commenced, Prime Minister Borden’s Conservative government understood that the war effort, on a magnitude and geographic scale not seen since the Napoleonic conflicts, would require unprecedented legislative powers. This would be the case even if Germany and its allies were quickly defeated, as many expected. Temporary emergency legislation, the traditional means relied on to regulate enemy aliens, ban secret societies, suspend habeas corpus, and enact various procedural expedients to facilitate the prosecution of political

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offences, would require renewal each legislative session. Such conventional legislation would not suffice, it was suggested, since modern conditions required flexible and detailed regulations to deal with these matters and for the effective and strategic control of information, transportation, and production.23 When the Dominion Parliament met for a special war session in midAugust 1914, Westminster had already enacted the Defence of the Realm Act (4&5 Geo. V, c.29), known as “DORA,” a relatively modest delegation of emergency legislative powers to the executive expressly enacted to be in effect only during the continuation of the war.24 Canada’s minister of justice, Charles Doherty, did not initially expect Parliament to agree to an open-ended delegation of legislative power to the executive and some opposition MPs expressed a preference for keeping Parliament in continuous session. The process of enactment of the WMA throws light on how major legislation can be adopted by a series of almost inadvertent steps. Draft legislation, produced by the Department of Justice’s W.F. O’Connor, proposed a blanket act, one that would delegate a general power of executive regulation for security or defence purposes. Doherty, Borden, Solicitor General Arthur Meighen, and former deputy minister of justice Zebulon Lash were persuaded by O’Connor’s argument that enumerated matters of regulation would result in omissions requiring ongoing legislative amendments, as was in fact already experienced in the United Kingdom with DORA. After consulting with Wilfrid Laurier, Liberal MP Edward Macdonald responded that the government should omit no special power needed to support the war effort and, without seeing a legislative draft, assured the government of his party’s support. A number of reporters covering the special war session of Parliament assumed that the proposal involved minor amendments to the Criminal Code and Immigration Act.25 Unsurprisingly, examination of the bill in Parliament was perfunctory,26 and, in the country at large, its provisions received minimal attention. Greenwood’s survey of a dozen newspapers and periodicals reveals scant coverage of the bill, with neither editorial comment nor published criticism.27 Yet, in addition to the sweeping delegation of legislative powers to the executive, the act also had retroactive effect so that there would be no legal challenges to the arrest and detention of aliens from the beginning of August.28 The wide-reaching powers conferred by the WMA, including matters under provincial jurisdiction, were later upheld by the Supreme Court of Canada (SCC) and the Judicial Committee of the Privy Council (JCPC) as falling under the federal jurisdiction to pass laws for the “peace, order and

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Introduction  13

good government of Canada.”29 In the 1918 SCC case In re George Edwin Gray, examined at length in Patricia McMahon’s chapter in this volume, some judges did express the view that the delegation of legislative powers to the executive should be limited in substance to specified matters, or to such times as Parliament is not in session. The question of whether the WMA was intended to have peacetime application was not addressed, although it was raised over sixty years later during the October Crisis of 1970.30 In the 1914 debates Borden and Doherty had said nothing about the issue or post-war implications, and as Greenwood notes, “the judgements rendered in the case [Gray] ranged far and wide on the scope of the WMA but no statement was made indicating a peacetime application.”31 Greenwood also points out that no proclamation of apprehended insurrection was issued in response to the 1919 Winnipeg General Strike, and no prosecutions were taken under the wartime order-in-council (PC 2384) after 11 November 1918. However, that order was not explicitly repealed until April 1919, when it was replaced by the Criminal Code amendments and new deportation provisions in the Immigration Act referred to earlier. And ambiguities in the statutory language in the original version of the WMA, which might suggest that it could be invoked only during wartime, were dealt with in a 1927 revision. The amended act eliminated exclusive references to “war” in a number of provisions and made it clear that the mention of “war” in its short title was intended as a general reference to emergency.32 The 1927 amendment removed all doubt that the WMA was more than an ad hoc war measure. It became a generic emergency powers/executive-enabling statute that went well beyond contemporary British equivalents. The WMA serves as a powerful example of a theme emphasized in much of Greenwood’s scholarship, and a concern that motivated his founding of the Canadian State Trials series: the recurring tendency of Canadian governments, abetted by public deference to authority, to pass more draconian crisis legislation than that found in British precedents and to push shared British constitutional principles to their limit in relation to security matters.33 Civilian Surveillance and Espionage The 1914–18 war marked a qualitative and quantitative change in the state’s treatment of civilian populations. The control and internment of residents originating from nations at war with Britain and its allies was extended much further than previously experienced and the array of

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wartime measures affected most Canadians. The new regime was national, widespread, and relatively effective. In the name of security and counter-intelligence, new approaches were used to control means of communication whether old or new. The press, the mail, broadcasting, and publishing and printing were subject to voluntary or imposed censorship, and most private radio stations were closed down.34 Surveillance of persons identified as non-conforming whether by the Dominion and Royal North-West Mounted Police (RNWMP) or local police became the norm, a practice that, as previously mentioned, weighed especially heavily on enemy aliens and on radical labour leaders. Imperial legislation and British coordination of security and intelligence throughout the empire (as seen with the Komagata Maru affair in 1914) were also important influences on the status and treatment of aliens and approaches to espionage. The U.K. Alien Restriction Act, 1914 (4&5 Geo. V, c.12) was sent to Dominion and colonial governments, which were urged to adopt registration procedures, and the Official Secrets Act, 1911 had imperial effect.35 After the outbreak of war and in a period marked by general uncertainty, public sentiment in favour of control measures was fanned by unfounded and exaggerated rumours. German spies were the focus of many stories while others concerned possible attacks on Canada from enemy nationals resident in the United States, or risks of German sabotage.36 Adding to popular concern was the proximity of the still-neutral United States with large German and Irish populations potentially hostile to Great Britain. This situation encouraged talk that local agents’ communications with Germany were being maintained via the United States.37 Such rumours and fears seem exaggerated but there were areas of serious threat, such as, for instance, the presence in the United States of four hundred thousand or more immigrants of German or Austro-Hungarian origin; many of the men would have done military service in their countries of origin and would be considered reservists for the German or Austro-Hungarian armies, creating a conflict of loyalties. The rumours and reports encouraged the general perspective that methods of surveillance were a necessary feature of the new war. There was, however, no formal system of Canadian agents or organizations designed to protect internal state security during the First World War and, in practice, many measures of repression and control were implemented in piecemeal fashion. Responsibilities were divided with the police in charge of certain approaches, whether local, provincial, or national forces, and for other purposes the militia or military. In effect, in the absence of a unified security service until the post-war period, various organizations were

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Introduction  15

created or drawn in to take responsibility for measures instituted by the government. For example, the Dominion Police were given responsibility for preventing sabotage when several serious attempts or incidents took place in 1914 and 1915,38 while the military took responsibility for overseeing enemy aliens in August 1914.39 But, by October 1914, responsibility for aliens had been transferred to a new organization under the Canadian militia40 and, in 1915, to the Department of Justice.41 It might be suggested that some state activity fell close to the scope of what would now be termed “counter-intelligence,” where the term is taken to refer to “information gathered and activities conducted to protect against espionage, other intelligence activities, sabotage or assassinations conducted for or on behalf of foreign powers, organizations or persons.”42 This may be an overly generous application of the term. The police conducted direct surveillance routinely against members of organizations and other individuals suspected of being, or known to be, opposed to the war in Europe and used infiltration methods against the Industrial Workers of the World (IWW), the Communist Party of Canada, and some labour unions. These activities provided the police with an insider’s view of the target organizations’ operations and produced evidence for prosecutions.43 But it is questionable whether the surveillance was sufficiently intensive and effective or the selected targets threatening enough for the activities to qualify for recognition as forms of “counter-intelligence.”44 In fact, few residents of Canada appear to have been working on behalf of enemy powers, probably only a small handful. In effect, much of the state-sanctioned surveillance activity was aimed at symbolically supporting the war effort by singling out non-conforming organizations or persons in an effort to control their communications, perhaps primarily to demonstrate that the authorities were vigilant. It was what these organizations and their members said, rather than what they did, that troubled the authorities during the early part of the war.45 Military intelligence and counter-intelligence operations continued to operate after the war, and after 1920, when the Dominion Police merged with the RNWMP to form the Royal Canadian Mounted Police (RCMP), a dedicated unified civilian security branch emerged with full responsibility for national security; its activities are discussed further below.46 Canada’s official secrets and espionage laws provide the background to these surveillance activities. Legislation in this area, modelled on 1889 U.K. legislation, had been introduced shortly before the enactment of the Canadian Criminal Code. The passing of state secrets to enemy powers had traditionally been met by treason and sedition prosecutions but

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concerns about effective modern spy laws had grown in Britain in the late nineteenth century, particularly in relation to the disclosure of sensitive government and technological information.47 Provisions in the 1889 legislation relating to secrecy and breach of official trust became sections 76–79 of the Code, remaining part of it until elaborated in a separate Official Secrets Act in 1939.48 The U.K. government had soon found the 1889 legislation inadequate. The press helped mobilize opposition to amending bills in 1896 and 1908 but by 1911 a series of spy scandals, Germany’s growing militarization, and popular spy literature (by writers such as Erskine Childers and William Le Queux) had created a more receptive political climate for passage of the sweeping Official Secrets Act. Espionage or spying and leakage of secrets continued as the main offences but espionage no longer required proof of intentional damage to the state and military secrets were further protected. Prohibited disclosure ceased to be limited to crown servants and government contractors. It extended to the press and all persons not authorized to receive information and the definition of unauthorized communication broadened to cover information, whether classified or not, disclosed “for the benefit of any foreign power or other manner prejudicial to the safety or interests of the state.” In-camera proceedings and reverse-onus procedural expedients were introduced. The 1911 U.K. act was listed in the 1912 Statutes of Canada as an applicable imperial act and so it extended to offences committed in any part of the empire.49 However, as noted, secrecy and espionage concerns did not figure prominently within Canada in this period and the older provisions remained in the Canadian Criminal Code (becoming sections 85 and 86 in the 1927 revisions). Ottawa enacted a separate Official Secrets Act only in 1939, adopting the U.K. 1911 act and its 1920 amendment as domestic law.50 As we shall see in the next volume, concerns generated by the 1945 Gouzenko affair, other spy crises in the late 1940s, and the Korean War led to numerous Official Secrets Act prosecutions and the further development of espionage provisions in the Criminal Code.51 Together these laws provided an expanding mandate for the RCMP security branch and for the development of intelligence and counter-intelligence operations in other departments that expanded the scope of civilian surveillance and the range of domestic targets. In the longer term, the secrecy laws also supplemented and largely displaced sedition as means of restricting expression and open and accountable government, facilitating compliance within the public service and creating a chilling effect on the press.

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Introduction  17

Conscription The conscription issue arguably had as broad a social impact as the wartime treatment of aliens but was even more divisive. It was to become part of the historical perspective of succeeding generations of Québécois. At the time it created a crisis in French-English relations – possibly the deepest since Confederation, even worse than that produced by the Riel affair. And it fanned earlier English-French conflicts such as the Manitoba schools question and the restrictions on French-language education in Ontario. It began in 1916 when the Conservative government recognized that the supply of volunteers for the war effort in Europe was falling rapidly and seemed unlikely to rebound.52 Over time and as a result of the government’s handling of the situation, the conscription issue became a national drama that spun out over two years, with lasting political effects in Quebec. The timing of the rapid decrease in Canadian enlistment was a serious issue since the British and Allies’ need for manpower had never been greater. The losses in the battles of 1916 in Flanders and on the Somme had been very high and the tasks before the Allies accentuated the need for more and more men. Enthusiasm for Canada’s war effort had greatly diminished and was lowest in Quebec, where ultramontane French Canadians felt little allegiance to republican, anti-clerical France and even less towards the United Kingdom. Furthermore, enlistment in the predominantly English-speaking battalions of the Canadian Army held little attraction for francophones.53 Outside Quebec, enrolment in the army had been viewed more favourably but enthusiasm faded over time. Enlistment had offered employment early in the war, after the hard years of 1913–14, but by 1916 the potential costs were seen as too high. Conscription threatened to deprive both agriculture and essential war industries of vital manpower. The generally tight labour market in agriculture had reduced support for the war effort among farmers, while other employers, including those not profiting from wartime conditions, also faced labour shortages. Moreover, the task of enumerating Canadian labour resources and allocating the right proportions to military, agricultural, and industrial requirements was new to the government and beyond its capabilities to administer efficiently. As a result, manpower policy in 1914–18 was impromptu and reactive. Borden’s Conservatives had previously shown great reluctance to impose conscription but their position changed after Borden’s stay in the United Kingdom from February to May 1917, when he discussed the military situation with his fellow prime ministers, Canadian generals, and the

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soldiers themselves. During this visit, the Russian war effort was thrown into doubt with the tsar’s abdication in March 1917. In a world of hard choices, when the outcome of the war was very much in doubt and its duration was anyone’s guess, Borden concluded that the country’s primary obligation was to the army and its allies. In May 1917 his government introduced the Military Service Act.54 Under the statute, enlistment for overseas service was first made compulsory for all men between the ages of twenty and twenty-four who were single or widowers without children. The act included an appeal process, which was soon swamped with applications; one estimate is that 94 per cent of more than 400,000 eligible men filed appeals.55 Borden’s government, faced with the possibility of defeat in the election scheduled for 13 December 1917, had formed a coalition including leading figures from the opposition Liberals. During the election campaign, conscription became the most contentious and divisive issue ever put to the Canadian electorate and Borden responded by enfranchising all soldiers as well as giving votes to their wives, widows, sisters and mothers, and by exempting farmers’ sons from conscription. Laurier’s Liberals were effectively split on the conscription issue, with the result that the Unionist Party won handily, although Laurier won resoundingly in Quebec, dividing the country further along linguistic lines.56 The level of anti-conscription sentiment among many elements in the province of Quebec led to an outbreak of rioting at Easter, 1918. Demonstrations began after the police demanded exemption papers from a young man in Quebec City and, when he failed to produce them, arrested him. The arrest symbolized for Canadiens the regime of surveillance by police and military authorities of all men of military age. Such was the public’s resentment that large crowds gathered to protest the arrest and, by Sunday, 30 March, the authorities had summoned military aid to the civil power. The reinforcements came in the form of English Canadian soldiers, a circumstance guaranteed to worsen the situation. There was ensuing violence and exchanges of gunfire that resulted in the deaths of four civilians and the wounding of five soldiers and fifty civilians before crowds dispersed.57 The German armies launched a spring offensive in March 1918, which was a severe shock to the British and French armies and once again drove home the crucial importance of maintaining manpower, especially since American soldiers seemed unlikely to join the action in a decisive way in the short term. Three weeks after the riots, in May 1918, Borden’s cabinet

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Introduction  19

moved again, this time to halt all exemptions from military service using the simple expedient of cancelling the appeal process, a decision effected by an order-in-council under the WMA.58 Previously exempt recruits in the first category to be conscripted, including many sons of farmers, were profoundly alienated by the move, especially in Quebec. In practice, however, only a small percentage of conscripted men were sent overseas; those who were sent, by all accounts, fought well enough and supplied the manpower necessary for the Canadian Expeditionary Force (CEF) to maintain its fighting edge to the end. Military Justice Military trials were a notable feature of the First World War and have been written about extensively; they remain controversial, especially the executions of a small percentage of convicted soldiers. In legal-historical terms, the reputation of such trials for relative harshness, arbitrariness, and rapid procedures – at least during a considerable part of the past two centuries – has made them appear an anomaly compared with common law criminal trials in most jurisdictions. As a result, military justice has been viewed by civilian lawyers as a blunt and at times unfair instrument. The prevailing military perspective has been the opposite: namely, that conduct by soldiers failing to carry out orders – categorized, for instance, as offences of desertion or mutiny or cowardice – must necessarily be subject to swift trials and severe and exemplary punishment. Underlying this view is the unquestioned assumption that, for an army to be effective, soldiers at a minimum must obey orders and be ready and willing to fight. During the First World War, twenty-five Canadian soldiers were executed after conviction by military tribunals,59 the great majority for the offence of desertion.60 This compares with a total of 346 executions of officers and soldiers by British authorities.61 It should be noted, however, that about 90 per cent of capital sentences imposed by tribunals on soldiers from all Allied countries were commuted62 and that those appearing before military tribunals for serious offences represented a minute proportion of fighting men.63 According to Chris Madsen, “upwards of 16,000 courts-martial took place within the Canadian Expeditionary Force between 1914 and 1920”; most were for minor offences.64 The term “military justice” is perhaps misleading when the goal of military discipline had been and remains the fighting effectiveness of citizen soldiers. In this view, as stated, military justice has necessarily to be

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administered promptly and to have a powerful deterrent effect.65 In practice, this meant, as many commentators have noted, that those executed were not necessarily the most obdurate cases but in some instances soldiers who happened to be in the wrong place at the wrong time. The Canadian Militia Act had been updated in 190466 and the Department of Militia and Defence formed in 1906. Throughout the First World War, Canadian forces fought under the British High Command and came under the same system of military law as all British subjects fighting in the imperial and Dominion forces.67 Canadian military discipline followed the king’s regulations and Orders and, at the outset, those accused of major offences appeared before British military tribunals.68 In the early period of the war, Canadian officers handled summary offences while serious offences were likely to be brought before courts-martial composed of British officers. The Canadian government did not object to the arrangement and neither did New Zealand’s or South Africa’s governments – two colonies also deeply committed to the war.69 In contrast, the Australian government refused on constitutional grounds to allow British military trials of Australian soldiers.70 From 1916 onwards, tribunals were more likely to be staffed by Canadian officers. The make-up of Canada’s fighting men began to change after passage of the Military Service Act, 1917 71 and, once exemptions from compulsory service were withdrawn in May 1918, the majority of new recruits were conscripts. It seems that the British judge advocate general, or probably his Canadian counterpart after 1916, reviewed all case files and considered sentences from hearings of allegations of serious offences before penalties were carried out. Of the twenty-five executed Canadian soldiers, five out of twenty-one executed for desertion were from the 22nd (French Canadian) Battalion where discipline was a continuing problem;72 two soldiers executed for murder had killed an officer; and two executed for cowardice were considered repeat offenders. A good deal of information has been published recently on the context or setting of court-martial cases of Canadian soldiers.73 It is less well known that such proceedings continued after the peace of 11 November 1918; for example, as a result of the resistance of French Canadian conscripts to being sent to Siberia in 1919 as part of the Siberian Expeditionary Force, ten soldiers were tried by a Canadian military tribunal in Vladivostok for “mutinous conduct” (see Benjamin Isitt’s chapter). Two months after those trials, a major series of courts-martial in the United Kingdom followed the riot of several hundred Canadian troops awaiting long-delayed demobilization and repatriation at Kinmel Park in North Wales.74

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Introduction  21

Political and Labour Radicalism The levels of political and labour radicalism varied enormously over the period covered by this volume, rising during and immediately following the First World War, receding during the 1920s, and then resurging in the Great Depression. The government’s response to both waves of radicalism was to turn towards coercion. During the war the government ruled through the WMA and exercised its powers to intern resident aliens, prohibit enemy-language publications, and outlaw radical organizations. But that was not all.75 In 1918 it issued PC 815, the infamous “anti-loafing” law that made it an offence, punishable by a fine of $100 or six months in jail in default of payment, for an adult male not to be “regularly engaged in some useful occupation.” Although striking workers were exempt from its application, the order was used against union organizers and radical agitators. Other orders tightened up the enforcement of the Industrial Disputes Investigations Act (IDIA), the keystone of federal labour policy, which required that strikes and lockouts be postponed in covered industries until after conciliation was completed, to address union defiance of the law.76 Fear of police unionism led to PC 2213 prohibiting the Mounties from joining or associating with any union or organization of employees. Finally, just before the end of the war, the government banned all strikes in industries covered by the IDIA, which had been extended to all war production in 1916.77 In addition to these orders-in-council, the government (and employers) also had “normal” law at their disposal, the importance of which increased once the government’s emergency powers lapsed at the war’s end and after the orders-in-council were eventually rescinded (the last ones in 1921). But, as Dennis Molinaro explores in more detail in his chapter, some emergency powers became permanent as the government prepared to confront the labour unrest that intensified after the armistice. In particular, section 97/98 of the Criminal Code, passed in 1919, built on PC 2384, the order that enabled the government to declare an organization unlawful if it advocated economic or political change by force or violence and to punish members, seize and forfeit the organization’s property to the crown, and prosecute anyone who knowingly permitted such as organization to meet on premises he or she owned or rented. Section 98 followed along similar lines, except that, unlike PC 2384, it did not enable the government to declare organizations unlawful. Rather, the illegality of the organization would have to be established judicially in the context of trials of individuals who were prosecuted under its provisions.78

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The government also enhanced its deportation powers with a view to using them to rid the country of the British-born leaders of the Winnipeg General Strike. The 1906 Immigration Act had been amended in 1910, with a new section 41, to allow the Immigration Department to deport anyone other than a Canadian citizen who advocated the overthrow by force or violence of the government or of constituted law or authority, or who by word or deed created or attempted to create riot or public disorder.79 Yet this did not apply to the British-born, who became citizens by their domicile in Canada. Consequently, in 1919 section 41 was amended so that only those born or naturalized in Canada were exempt from its provisions, and since British-born strike leaders gained citizenship by domicile and not by naturalization,80 they were now deportable. Additionally, the provision was made retroactive to 1910 so that a person who had fallen within that class since the original enactment of section 41 was deportable. Finally, even being naturalized was not a guarantee of immunity from political deportation, since the Naturalization Act was also amended to allow disaffected or disloyal persons to have their naturalization revoked, making them subject to section 41.81 The use of these powers against political and labour radicals is the subject of a number of the chapters in this book, but it will be useful to identify some general issues that run across the period and are not fully captured in those studies. First, it is fair to say that prosecutions for political offences were relatively infrequent during this period, although we lack a count both of the total number of political prosecutions, including charges under sections 98 and 132 (seditious conspiracy and seditious libel, section 133 after 1927) and deportations under section 41. However, relatively infrequent usage of these laws should not lead to the conclusion that they were unimportant. High-profile political prosecutions were a risky endeavour, but when successful they sent a strong message about the seriousness with which the government viewed the actors and actions involved; moreover, in the case of section 98 prosecutions, the result was a judicial finding that an organization was unlawful, which could then justify further actions against other members, including deportation for those subject to section 41 of the Immigration Act. Immigration authorities, however, had their choice of many possible grounds for deporting radical aliens and preferred to use other legal categories, such as becoming a public charge. The reason for this, according to Barbara Roberts, was that “the Department could avoid unfavourable publicity, make legal appeals against deportation more difficult and less effective, and make the administrative management of deportation smoother, more efficient, and

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Introduction  23

easier.”82 And all of this could be justified bureaucratically as being within the spirit of a law that authorized political deportations, while leaving no traceable record of the true number of people deported for political reasons. Secondly, a focus on explicitly political prosecutions and deportations can deflect our attention away from the use of criminal law provisions protecting public order. For example, unlawful assemblies were broadly defined to include three or more people with a common intent to carry out a common purpose that causes people in the neighbourhood to fear on reasonable grounds that the persons so assembled will disturb the peace tumultuously or provoke others to do so. A tumultuous disturbance, if it did occur, was defined as a riot. Not only were members of unlawful assemblies and rioters guilty of an indictable offence, but the Riot Act could be read, requiring those assembled to disperse immediately.83 The failure to do so provided the police, sometimes with the aid of the militia, all the justification they needed to forcibly disperse the crowd, sometime with fatal results, as in the actions taken to break up the On-to-Ottawa trekkers in Regina, an episode discussed in Bill Waiser’s chapter in this volume. At a more mundane level, the criminal law also regulated picket-line behaviour through its section on watching and besetting. Peaceful picketing had been expressly excluded from criminal watching and besetting in 1876,84 but the exclusion was inadvertently omitted from the Criminal Code in 1892. Some judges interpreted the absence of the exclusion as intentional and labour unions demanded that protection of peaceful picketing be reinserted. However, the federal government dragged its heels and it was only in 1939 that the exemption of peaceful picketing from criminal watching and besetting was restored.85 Of course, violence, threats of violence, and intimidation were covered by the Code and these offences were subject to interpretation and were sometimes applied selectively to limit picketing activity. Finally, the vagrancy provision provided police with an enormous degree of discretion in its application, as the On-to-Ottawa trekkers discovered.86 Discussions of legal control of public order cannot be limited to the criminal law. At the federal level, there was legislation other than the Immigration Act that added to the federal government’s power. For example, as the Depression hit and the federal government was pressed to provide resources to support the unemployed, it enacted legislation that authorized it to issue “all such orders and regulations as may be deemed necessary or desirable for … maintaining peace, order and good government throughout Canada.” In defending the measure against criticism

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from Mackenzie King and J.S. Woodsworth that it undermined the rule of law, R.J. Manion, the minister of railways and canals, asserted that the power was necessary for keeping “the bolshevists in order by force.”87 Municipal officials also sometime played an important role, although the legal basis for their actions was not always obvious. For instance, during the Winnipeg General Strike, in response to large and frequent marches by pro- and anti-strike veterans, and intensified picketing, the mayor issued a proclamation, drafted by A.J. Andrews, leader of the Citizens’ Committee of 1000 opposing the strike, banning public gatherings and parades.88 In Toronto, the Police Commission prohibited public meetings in foreign languages in the fall of 1928 as part of its effort to supress the Communist menace, and threatened hall owners that their licences would be revoked if they permitted such meetings on their premises. Efforts to organize free-speech protests in Queen’s Park or make soapbox speeches at other outdoor locations were broken up by police, who forcibly dispersed the crowds and arrested participants on charges ranging from vagrancy to disorderly conduct.89 And, when the unemployed organized demonstrations in the early 1930s, they were often denied permits and faced bans on public meetings.90 Closely related to the laws themselves were the decisions made about their enforcement. Policing officials are always faced with choices about how widely to interpret and how strictly to enforce the law. While it is impossible to generalize, and there was certainly significant variation in official responses to marches and picket lines, it is fair to say that there were a large number of instances in which restrictive laws were expansively interpreted and vigorously applied to limit the space for public protest. The militia was called up three times during wartime strikes, but six times in the post-war confrontations of 1919 and then another four times between 1921 and 1923.91 As a result of the heavy reliance on the militia, in 1919 the government amended the Militia Act to increase the maximum permanent force from 5,000 to 10,000.92 However, the federal government’s enthusiasm for making the militia available to aid the civil power began to wane after the election of the Liberals in 1921 and in response to the use of troops in the Cape Breton strike in 1922 and then again in 1923 (discussed in David Frank’s chapter), in both cases on the signature of a judge. The ease with which extraordinary force could be requisitioned, and its great cost, convinced the federal government to amend the act to require that the provincial attorney general concur with the request from local officials and to make the province, not the municipality, responsible for the cost.93 This had some deterrent effect and the militia was called out only two

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Introduction  25

more times to address labour unrest, once in response to the strike of coal miners in Estevan, Saskatchewan, in 1931 after police fired on a motorcade of striking workers and their families, killing three and wounding eight, and for the final time, in Stratford, Ontario, during a strike by furniture and poultry processing workers in 1933.94 Despite the concern about the lack of adequate controls on calling out the militia, generally speaking it was an exceptional event. For the most part, policing fell to municipal and provincial forces, under the control of their respective government officials. Here, too, however, while tolerance for public demonstrations and picketing varied, officials tended to tilt toward the repressive, as was demonstrated by the actions of Toronto police in trying to prevent Communist activity in the late 1920s; the provincial police in Nova Scotia, who attacked labour protestors in Cape Breton (discussed in Frank’s chapter); the municipal police in Montreal, who established a “Red Squad” and worked closely with provincial police and the RCMP to monitor and disrupt the Communist Party and leftist organizations (discussed in Andrée Lévesque’s chapter); and the municipal police and the RCMP in Regina, Saskatchewan, who triggered a riot by using excessive force while trying to arrest leaders of the On-to-Ottawa Trek (discussed in Waiser’s chapter). Behind public policing, there lurked the secretive operations of Canada’s political police, who went undercover to keep tabs on and investigate the activities of radicals and dissidents. The First World War and the WMA provided fertile ground for the growth of these operations as the Dominion Police and the RNWMP, often operating with the assistance of private police agencies hired by employers, kept a careful watch on labour organizers and provided intelligence to the government that became the basis for issuing repressive orders-in-council. These efforts intensified during the post-war conflicts as police operatives infiltrated radical organizations and, on occasion, surfaced to testify against officials, such as in the prosecution of R.B. Russell, one of the Winnipeg strike leaders (discussed in Reinhold Kramer and Tom Mitchell’s chapter). As noted, the Dominion Police were merged into the RNWMP to form the RCMP in 1920, which was given complete jurisdiction over national security. Between 1920 and 1929, the RCMP opened at least 6,767 subject files on radicalism and 4,806 files on suspected radicals.95 Political policing intensified during the Depression and played a prominent role in planning raids against Communist Party offices and arresting officials and activists. John Leopold, a police agent who had infiltrated the party, was the star witness at the trial of the Communist leadership in Toronto in 1931 (discussed

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in Molinaro’s chapter). These convictions required a judicial determination that the party was an illegal organization under section 98 and, once that was made, a broader crackdown followed in which the secret police played a prominent role identifying activists to be arrested and, in some cases, deported.96 In the face of these repressive measures, radicals were not passive victims. Indeed, one notable development of this period was the formation of the Canadian Labour Defense League (CLDL) in 1925, perhaps Canada’s first organization created to provide legal aid to persons facing political prosecutions and deportations. Initially, the CLDL was formed to defend seventy-five members of the Mine Workers Union of Canada, arrested for picket-line activity during a strike in Drumheller, Alberta. Although not all the individuals who formed the CLDL were Communists, the latter dominated the organization, beginning with its leader for most of its existence, A.E. Smith. The organization had 350 branches, many sponsored by ethnic organizations, and 20,000 members at its high point. The CLDL played a major role in defending individuals arrested during the freespeech struggles in Toronto in the late 1920s, the leaders of the Communist Party who were arrested in 1931 and charged under section 98, and numerous foreign-born activists facing deportation. It defended over six thousand individuals in the inter-war years. Ironically, one of the people to whom it provided legal representation was its leader, A.E. Smith, who was indicted for sedition in 1934 after giving a speech in which he accused Prime Minister R.B. Bennett of giving the order to have Tim Buck, the leader of the Communist Party, assassinated in his jail cell while serving a sentence in the Kingston penitentiary after being convicted under section 98 in 1931. Smith was acquitted. The CLDL not only acted as a legaldefence agency but also played a major role in the campaign for the repeal of section 98. It extracted a promise of repeal from Mackenzie King, then the leader of the Liberal opposition, and King kept his word after becoming prime minister in 1935. However, at the same time, section 133 was also amended to preserve some aspects of the discredited law (discussed in Molinaro’s chapter). 97 overview of chapters The volume is broadly divided into two main chronological periods, the First World War and the two decades that followed. There is nonetheless considerable overlap in the legal responses and the war left a legacy of discrimination and ongoing government security concerns. As noted,

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Introduction  27

some temporary wartime orders issued under the WMA continued in effect after the war through amendments to the Criminal Code and Immigration Act. Immigrant groups continued to be a security concern in the post-war period. And processes of military justice and wartime intelligence operations continued in the post-war period and were extended to growing concerns about labour radicalism. As was the case with the previous volumes in this series, the span of time covered necessitated difficult editorial decisions about what cases and topics to include. Our definition of terms and legal focus provided the main criteria for our selection. The chapters that follow reflect a range of legal responses to real or perceived security threats and aim to be representative and relatively comprehensive. However, it is inevitable that some topics are omitted or only briefly touched on, such as the resorts to military aid to the civil power during the conscription crisis and the Winnipeg and Cape Breton strikes. The CLDL legal challenges to the Halifax deportations of Communists and the attempts by government to intervene over labour support for the Republicans during the Spanish Civil War are other examples. The chapter by Bohdan Kordan opens the volume with an examination of the local impact of wartime measures including alien registration and internment without trial and a range of other forms of discrimination. Kordan’s chapter outlines the difficult circumstances faced by immigrants from enemy nations and the domestic policy considerations that led to early wartime measures against them. He focuses on the development of the alien-registration process, implemented by Order-in-Council PC 2721 under the WMA, and the consequences of registration. These initial state requirements were crucial in paving the way to the later suspension of habeas corpus and internment. For a significant number of those identified as “enemy aliens,” PC 2721 led directly to sweeping arrests and indefinite detention, in most cases on the basis of status rather than evidence of any hostile activity. As noted earlier, about two-thirds of those interned in Canada during the Great War were civilian residents, an experience that is fully examined in Kordan’s recent book.98 Peter McDermott’s chapter surveys the broader imperial context of wartime measures, compares approaches taken in the United Kingdom and Australia, and examines the constitutional and legal issues that arose. As we have seen, executive orders under the U.K. Defence of the Realm Act were relatively limited in scope compared with the WMA. The Aliens Restriction Act, 1914 further regulated the activities of aliens in Britain but internments there were ultimately the result of the prerogative

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powers of the crown. In Canada and Australia, internments were the result of sweeping legislation. Both Dominions had comparatively large immigrant populations, many originating from enemy powers, and interned relatively larger numbers than the United Kingdom, including naturalized British subjects of German birth or origin, despite their great distance from hostilities. Wider-ranging discriminatory measures included Canada’s 1917 Wartime Elections Act, which was influenced by similar Australian legislation. Jonathan Swainger’s chapter follows the impact of general wartime restrictions on civilians who spoke out against the war or expressed themselves in a manner considered detrimental to the war effort. His examination of prosecutions for seditious utterances focuses on western Canada, where prosecutions occurred with considerable frequency compared with the rest of the country during the early years of the war. Most were directed against individuals from enemy countries and the rate fell off sharply as the war went into its third and fourth years, probably in part the result of diminishing jingoism and weakening pro-war attitudes among the public. Swainger suggests that more rational views of the low level of risk these cases presented prevailed among superior court judges who heard appeals from convictions. He concludes that efforts were made by the courts to temper prevailing wartime anti-alien sentiment and discourage the use of such prosecutions. The issues of conscription and the sudden withdrawal of most possibilities for exemptions underlie the 1918 appeal to the Supreme Court of Canada, In re George Edwin Gray, examined by Patricia McMahon. McMahon’s chapter investigates the unexpected background to a hearing on habeas corpus before the SCC. A writ was brought on behalf of Gray, a young Ontario farmer reluctant to leave his farm and enlist when ordered to do so. The government’s fear of a profusion of legal challenges to the compulsory draft – based on the claim that the cabinet’s reliance on issuing an order-in-council to change provisions under the Military Service Act, 1917 was illegal – led to extraordinary steps. The Gray case shows the strength of the federal government’s determination to establish that cancellation of exemptions was above any form of legal challenge. Whether the withdrawal of exemptions was constitutional or not, the Supreme Court sided with the government in upholding the indirect use of the War Measures Act and thus closed a potential escape from the draft for Gray and for others whose cases were moving through the courts. Benjamin Isitt writes about courts-martial involving Canadian soldiers who resisted being sent to Siberia in 1919. Reluctance to follow orders to

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Introduction  29

embark was shown by some Quebec conscripts when, after the end of the war in Europe, two battalions of Canadian soldiers were ordered to board ship for Vladivostok to join a British battalion under Canadian command, known as the Canadian Siberian Expeditionary Force. The broad goals of the endeavour were to assist the White Russians against the Bolsheviks and to support the Allies’ economic interests in Russia, although the immediate rationale was to keep large quantities of Russian supplies held at Vladivostok from falling into German hands, Germany and Austria now being allied with post-revolutionary Russia under the 1918 Treaty of Brest-Litovsk. Isitt’s analysis of military as opposed to civil trials throws light on their very different purposes and procedures and provides some understanding of the many thousands of military trials that took place during the First World War. The tribunals in Vladivostok are especially informative because records of the Canadian proceedings were retained and furnish considerable detail compared with the limited information in most British records of similar military trials held in Europe. Reinhold Kramer and Tom Mitchell’s chapter focuses on the response to the extraordinary events of the Winnipeg General Strike in 1919, the most significant post-World War I conflict between organized labour, which was seeking to establish collective bargaining, and major employers, who wanted a return to the largely union-free world of the pre-war era. As the strike spread, the union reorganized public services formerly provided by municipal employees, which, in combination with socialist rhetoric from a number of radical union leaders, provided the basis for some prominent citizens and public officials to view these events as a threat to the existing order. Ironically, as Kramer and Mitchell show, it was the Citizens’ Committee of 1000, formed to oppose the strike, and in particular its leader, A.J. Andrews, that assumed state powers, arranging for the arrest of strike leaders, searches for seditious materials, and the conduct of the trial of R.B. Russell, one of the principal strike leaders. David Frank’s chapter examines the prosecution of J.B. McLachlan, the leader of the Cape Breton coal miners’ union as part of the last great labour conflict of the post-First World War era, the struggle of unionized coal miners to resist wage cuts and of steelworkers to gain union recognition. After mounted provincial police waded into a crowd of protestors, injuring many, McLachlan wrote a circular letter to union locals accusing the Nova Scotia government of being responsible for crimes committed by the police. The letter was published in Halifax and, based on its content, McLachlan was arrested and tried for seditious libel. Frank not only provides the rich context in which these charges arose but, like Kramer and

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Mitchell, offers valuable insights into the ways in which the legal system was manipulated to produce a guilty verdict. As discussed earlier in the Introduction, the federal government enacted section 98 of the Criminal Code in anticipation of post-war confrontations but did not use the measure until the Great Depression of the 1930s. At that time, the government decided to crack down on Canadian Communists, who played a prominent role in organizing the unemployed and leading the radical unions affiliated with the Workers’ Unity League. Dennis Molinaro’s chapter provides the background to section 98, emphasizing how it made the exceptional conditions of wartime permanent, and then analyses the first prosecution under its terms, the trial of Communist Party leaders in Toronto in 1931. His detailed examination of the trial highlights both the legal complications that had to be overcome to gain a conviction and how the law was used to make ideology, not action, a criminal offence. The theme is further developed in Molinaro’s discussion of the trial of Arthur Evans, a leader of the WUL in British Columbia, for the radical content of speeches he delivered in 1932. Communist and left-wing organizations were also active in Quebec, where they met with a vigorous campaign of repression, as Andrée Lévesque shows in her chapter, which covers police activities and trials from 1919 to 1939. The story in Quebec had its own unique twists where, in addition to the Communist Party, an indigenous left-wing and anti-clerical organization, L’Université ouvrière, gained popular support and was also targeted by the police. Additionally, the Catholic Church strongly supported state repression of radicals, whether in Montreal, the centre of these activities, or in the northern town of Rouyn-Noranda, where the WUL organized strikes by miners and forestry workers. Activists were tried on several occasions, often charged with political offences. Finally, Lévesque draws our attention to the persistence of state repression in Quebec after 1935, at a time when it began to relax in the rest of Canada, owing to the Catholic Church’s ongoing anti-communism and the sympathetic ear of the premier, Maurice Duplessis, elected in 1936. Leaders of ethnic communities were also the target of government surveillance and security measures when seen as obstacles to immigrant conformity and integration. John McLaren’s chapter focuses on continuing post-war discrimination against the Canadian Doukhobor community and the saga of its leader, Peter Petrovich Verigin, who had been welcomed to Canada in 1925 as a moderate new head of the community and a victim of Russian tyranny. Continuing Doukhobor non-conformism led to local and provincial calls for action and increasing RCMP harassment.

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Introduction  31

By the early 1930s, Ottawa had come to share local concerns and took steps to arrange Verigin’s deportation. Peter Makaroff, Canada’s first Doukhobor lawyer and later prominent counsel in the defence of the Onto-Ottawa trekkers in Regina, defended Verigin and successfully applied for habeas corpus, which led to a Supreme Court of Canada reference. The Verigin affair highlights the point that labour radicals were not the only targets of arbitrary repressive measures and that political policing and deportation also took the form of egregious ethnic discrimination. Section 98 was used for a final time to prosecute prominent radicals in an effort to put an end to the On-to-Ottawa Trek in 1935, the subject of Bill Waiser’s chapter. Indeed, it was the attempt to arrest trek leaders on section 98 charges during a rally that triggered the Regina Riot. As Waiser shows through analysis of the trial and a subsequent provincial commission of inquiry, the narrative that the police actions were justified to preserve law and order was embraced by the authorities, leaving no space for a nuanced understanding of the experiences of the trekkers, who had suffered both the economic impact of the Depression and the inadequate response of their governments. Official adherence to this law-and-order perspective precluded a serious inquiry into the wisdom of the decision to arrest the leaders during a rally and the police actions that followed, and left unrecognized the irony of the fact that the section 98 charges were dropped before the trials began. The volume, like the previous ones in the series, closes with short archival essays and illustrative primary documents referred to in many of the chapters. Reproduction of legislation such as the War Measures Act and section 98 of the Criminal Code, for instance, serves as a useful reference and avoids quotation of lengthy extracts in the chapters themselves. The archival essays, by Judi Cumming on suggested research strategies to deal with relevant records at Library and Archives Canada and by Patricia McMahon on experiences accessing records through the current Access to Information regime and processes, speak to the challenges faced by our contributors in working on the 1914–39 period and serve as guides for further research. Like any edited collection, this one cannot address all the relevant events and issues during the period, but we trust that the chapters here further illuminate and connect many of the key ones and will inspire additional research in the area. The period 1914–39 was one of both total war and revolutionary challenges. Canadian governments contended with large-scale migration of populations of diverse cultures and production demands on an unprecedented scale. The young Dominion played an increasing role

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on the international stage, becoming an active participant in international networks of armed conflict, security, and intelligence. The related legal interventions affected enormous numbers in Canada and the associated narratives, experiences, and issues are recounted in this book. The longterm historical meaning of these events, including in public memory and in their effect on efforts to protect rights during times of crisis, will be explored further in the next volume as the Canadian State Trials series moves on to the Second World War, the Cold War, and the October Crisis. N otes   1 See e.g., Tim Cook, Warlords: Borden, Mackenzie King and Canada’s World Wars (London: Allen Lane 2012).   2 Wartime Elections Act, 7–8 Geo. V, c.39. The limited extension of the franchise to women came at the cost of the rights of immigrants – see McDermott’s chapter in this volume.   3 See Kordan’s chapter in this volume and also his Enemy Aliens, Prisoners of War: Internment in Canada during the Great War (Montreal and Kingston: McGill-Queen’s University Press 2002). See also James R Carruthers, “The Great War and Canada’s Enemy Alien Policy,” Queen’s Law Journal, 4 (1978): 43.   4 Robert Craig Brown and Ramsay Cook, Canada 1896–1921 (Toronto: McClelland and Stewart 1974), 83–6; Craig Heron, “The Second Industrial Revolution in Canada, 1890–1930,” in D.R. Hopkin and G.S. Kealey, eds., Class, Community and the Labour Movement: Wales and Canada 1850–1930 (St John’s: LLAFUR/CCLH 1989), 48.   5 David Cruikshank and Gregory S. Kealey, “Strikes in Canada, 1891–1950,” Labour/Le Travail, 20 (1987): 85.   6 Judy Fudge and Eric Tucker, Labour before the Law (Toronto: Oxford University Press 2001), 89–103.   7 James Naylor, The New Democracy (Toronto: University of Toronto Press 1991).   8 Reinhold Kramer and Tom Mitchell, When the State Trembled (Toronto: University of Toronto Press 2010); G.S. Kealey, “1919: The Canadian Labour Revolt,” Labour/Le Travail, 13 (1984): 59; C. Heron, ed., The Workers Revolt in Canada, 1917–1925 (Toronto: University of Toronto 1998).   9 See David Frank’s chapter in this volume. See also Donald McGillvray, “Military Aid to the Civil Power: The Cape Breton Experience in the 1920’s,” Acadiensis, 3, no. 2 (1974): 45. 10 Benjamin Isitt, From Victoria to Vladivostock (Vancouver: UBC Press 2010).

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Introduction  33 11 Stephen Endicott, Raising the Red Flag: The Workers’ Unity League of Canada, 1930–1936 (Toronto: University of Toronto Press 2012). 12 See Dennis Molinaro’s chapter in this volume. Barbara Roberts, Whence They Came: Deportations from Canada, 1900–1935 (Ottawa: University of Ottawa Press 1988), ch. 7, notes that most radicals were not deported under s.41 but rather were found to be undesirable on other grounds. 13 Ivan Avakumovic, The Communist Party of Canada (Toronto: McClelland and Stewart 1975), 96–138. 14 Prerogative powers are those powers that reside in the crown or executive and are not derived from legislation. 15 Eric Tucker, “Street Railway Strikes, Collective Violence, and the Canadian State, 1886–1914,” Canadian State Trials, Volume 3 [CST3]. 16 See the Canadian Criminal Code, 1892, ss.65, 68. The three heads of high treason derive from the 1351–2 Statute of Treasons (25 Edw. III). The treason provisions in the Code also included a lesser treason offence, derived from the 1848 U.K. Treason Felony Act and adopted into Canadian law in 1868. The lesser treason offence was treated as non-capital, absorbing some of the previous judicial and temporary legislative extensions (notably treasonous conspiracies) to definitions of treason set out in the medieval statute. The Code provisions also included the offence of lawless aggression, applicable to those not owing allegiance and therefore not liable for treason, derived from 1838 Upper Canada and 1866 Province of Canada legislation. The lawlessaggression offence was unique to Canada. In English law, liability for treason could be extended to resident non-subjects founds to come under the crown’s protection (see e.g, Joyce v. DPP [1946] A.C. 347) but such extensions of liability were deemed unsuitable for the problem of non-resident Patriot and Fenian raiders from the United States – see Greenwood’s “The Prince Affair: ‘Gallant Colonbel’ or ‘The Windsor Butcher’?” in CST2. These laws were consolidated in 1886 (An Act respecting Treason and Other Offences against the Queen’s Authority, 1886, 49 Vict. c.146) and adopted into the new Canadian Code with minor changes – see, generally, Desmond Brown and Barry Wright, “Codification, Public Order, and the Security Provisions of the Canadian Criminal Code,” CST3, at 529–32. 17 On the North-West Rebellion treason trials, see the following chapters in CST3: J.M. Bumsted, “Another Look at the Riel Trial for Treason”; Bob Beal and Barry Wright, “Summary and Incompetent Justice: Legal Responses to the 1885 Crisis”; and Bill Waiser, “The White Man Governs: The 1885 Indian Trials.” Apart from Riel, the leading figures in the 1885 North-West Rebellion pleaded guilty to the lesser treason felony offence when threatened with charges of high treason. The 1951 and 1953 amendments to what became

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34  b a r r y w r i g h t, e r i c t u cker, and susan binnie ss.46–8 (S.C. 1951, c.47, s.3; S.C. 1953–4, c.51) made a more explicit distinction between high treason and treason, extending the latter to include espionage and assisting hostile armed forces from nations not at war. 18 See the chapters by Swainger and Frank in this volume. On developments in sedition law in the nineteenth century, see Brown and Wright, “Codification,” in CST3, 546, 528–9, and 542–3. The Criminal Code sedition provisions were influenced by Fitzjames Stephen’s conservative approach in the 1880 Draft English Code, which ran counter to the liberalizing trend in English common law, apparent in cases from the mid-nineteeth century, that narrowed the scope of the offence (culminating in the 1886 case R v. Burns, 16 Cox CC, 355, which specified the need for a distinct intent to produce public disturbances, and the 1909 case R v. Aldred, 22 Cox CC, 1, which required incitement to violence). The modern English common law developments were not absorbed into the Criminal Code sedition provisions until the Supreme Court of Canada’s decision in Boucher v. R [1951] 2 DLR 369. 19 Advocacy of political change by lawful means and drawing attention to matters that produce ill-will between classes were once again excluded from the definition and the maximum sentence of two years was restored in 1931– see S.C. 1931, c.11, ss.2, 3; S.C. 1936, c.29, s.1. 20 Ancillary offences against the state in the Canadian Criminal Code included: assisting those who commit treason after the fact (formerly misprision of treason and later dropped in the 1953 amendments); acts intended to alarm Her Majesty; intimidating Parliament or a provincial legislature; assisting an alien enemy to leave Canada; omitting to prevent treason; assisting deserters; sabotage; inciting mutiny; offences in relation to the Canadian Forces and the RCMP; sabotage; and military drilling. On the addition of sabotage and espionage offences, see n.51 below. 21 S.C. 1914, c.2; R.S.C. 1988, c.22 22 F. Murray Greenwood, “The Drafting and Passage of the War Measures Act in 1914 and 1927: Object Lessons in the Need for Vigilance,” in W. Wesley Pue and Barry Wright, eds., Canadian Perspectives on Law and Society: Issues in Legal History (Ottawa: Carleton University Press 1988), 291. This important study warrants extensive reference, which is provided here with the kind permission of McGill-Queen’s University Press (the current publisher of the Carleton Library Series) and Beverley Boissery. See also the chapters by Kordan, McDermott, and McMahon in this volume; Kordan, Enemy Aliens, Prisoners of War; Carruthers, “The Great War and Canada’s Enemy Alien Policy”; and David E. Smith, “Emergency Government in Canada,” Canadian Historical Review, 50 (1969): 430. 23 Greenwood, “Drafting and Passage,” 291–2.

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Introduction  35 24 The comparative reach of U.K., Canadian, and Australian war measures, and their implications, is further explored in McDermott’s chapter in this volume. On the United Kingdom, see, e.g., A.W. Brian Simpson, In the Highest Degree Odious: Detention without Trial in Wartime Britain (Oxford: Oxford University Press 1994); C.K. Allen, Laws and Orders (London: Stevens 1956). As Greenwood pointed out in “Drafting and Passage,” 292, DORA was initially concerned with the delegation of powers related to matters of espionage and transportation infrastructure, and while emergency powers were expanded to more general war purposes by amendment, they never achieved the general global delegation of regulatory powers to the executive found in the WMA. In both cases there were similar arbitrary uses of this power around internment and suspensions of habeas corpus (upheld by the House of Lords in R v. Halliday [1917] AC 260 and by the Supreme Court of Canada in In re George Edwin Gray [1918] 57 SCR 150), as well as more trivial interventions (e.g., outlawing dog shows in the United Kingdom and summarily punishing loafers in Canada). 25 Greenwood, “Drafting and Passage,” 292–3. 26 Liberal MP William Pugsley expressed the deepest reservations in the House about the delegated powers, and attempted to draw attention to the implications of registering aliens and suspected aliens and the need to carefully justify the suspension of habeas corpus. Justice Minister Doherty emphasized the urgent need to ratify measures already taken and to provide for a general delegation of authority rather than attempting to anticipate every kind of regulation, an approach that would only burden parliamentarians with continuing calls for amendments. The bill was referred to a special committee, no changes were made, and the final reading elicited no debate. It passed quickly through the Senate despite a large Liberal majority – see Greenwood, “Drafting and Passage,” 293–4; also, Canada, House of Commons, Journals, 1–18 (18–22 Aug. 1914), and Debates, vol. 188, 1–99 (18–22 Aug. 1914). 27 Greenwood, “Drafting and Passage,” 294–5. Greenwood’s survey included Le Devoir, Halifax Morning Chronicle, Toronto Telegram, Globe and Mail, Winnipeg Free Press, Vancouver Daily Province, Financial Post, Monetary Times, Industrial Canada, Canadian Annual Review, Canadian Magazine, Canadian Law Times, and Canadian Law Journal. 28 See McDermott’s chapter in this volume. 29 In re George Edwin Gray (1918) 57 SCR 150; Fort Frances Pulp and Power Co. v. Manitoba Free Press Co. [1923] A.C. 695. See editors’ note, appendix C, doc. 2. 30 See Greenwood, “Drafting and Passage,” 297–8: Greenwood notes that MPs expressed difference of opinion during the October 1970 parliamentary debates on whether the act was originally intended as a temporary measure for

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36  b a r r y w r i g h t, e r i c t u cker, and susan binnie the duration of the war (Stanley Knowles argued that it was), and that Herbert Marx did not address this issue in his 1970 and 1972 studies of the War Measures Act. The view that the 1914 act was intended for the duration of the war only is suggested in R. Craig Brown, Robert Laird Borden: A Biography, vol. 2 (Toronto: Macmillan 1980), 7–8; Ron Haggart and Aubrey E. Golden, Rumours of War, 2nd ed. (Toronto: Lorimer 1979), 92, 143; and Edgar Z. Friedenberg, Deference to Authority: The Case of Canada (New York: Sharpe 1980), 92. The contrary view of potential peacetime application is suggested in Smith, “Emergency Government in Canada,” 430–1; David Ricardo Williams, Duff: A Life in the Law (Vancouver: UBC Press 1984), 93; and Thomas R. Berger, Fragile Freedoms (Toronto: Clarke Irwin 1981), 216. 31 Greenwood, “Drafting and Passage,” 303. 32 R.S.C. 1927, c.206. 33 Greenwood, “Drafting and Passage,” 305–6. Greenwood noted that the 1927 revisions prompted no outside commentary, not even in issues of the Canadian Bar Review. The amended War Measures Act also went further than its contemporary British equivalent, the Emergency Powers Act, 1920 (10&11 Geo. V, c.55). The U.K. Emergency Powers (Defence) Act, 1939 (2&3 Geo. VI, c.62) was more sweeping but ensured that Parliament retained control over the types of powers delegated to the executive. 34 See S.R. Elliot, Scarlet to Green: A History of Intelligence in the Canadian Army 1903–1963 (Ottawa: Canadian Intelligence and Security Association 1981), 46–7. A total of ninety-two private radio stations was closed by the government. 35 4&5 Geo. V, c.12; 1&2 Geo. V, c.28. On the Komagata Maru affair, see Andrew Parnaby, Gregory S. Kealey, and Kirk Niergarth, “‘High-handed, Impolite and Empire-breaking Actions’: Radicalism. Anti-Imperialism and Political Policing in Canada, 1860–1914,” CST3, 483, 497–501. See McDermott’s chapter in this volume for further examination of the imperial context. 36 Elliot, Scarlet to Green, 50. 37 There is evidence that German agents continued to operate with impunity in New York and elsewhere until 1917. 38 Elliot, Scarlet to Green, 50–1. 39 See chapter by Bohdan Kordan in this volume. 40 Directed by Sir William Otter of the militia, formerly Colonel Otter, a significant figure in the 1885 Rebellion and known for his role in the Battle of CutKnife Hill. 41 Elliot, Scarlet to Green, 49. 42 This definition is cited extensively – the first usage identified is Executive Order 12333 (4 Dec. 1981). United States Intelligence Activities, s.3.4(a). EO provisions found in 46 FR 59941, 3 CFR, 1981 Comp., p.1.

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Introduction  37 43 See Molinaro’s chapter in this volume. 44 The British, for instance, kept close watch on known German agents operating in the United Kingdom prior to the war and arrested several immediately on the war’s outbreak, but identified few enemy agents after late 1914. 45 Prosecutions for seditious utterances were relied on regularly in the Prairies to suppress anti-war expression, often by enemy nationals, as described in Jonathan Swainger’s chapter in this volume. 46 See Elliot, Scarlet to Green, 54–5; and Reginald Whitaker, Gregory S. Kealey, and Andrew Parnaby, Secret Service: Political Policing in Canada from the Fenians to Fortress America (Toronto: University of Toronto Press 2012), 86–9. As Whitaker, Kealey, and Parnaby put it: “Thus by 1922, with the creation of the Criminal Investigation Branch, the Central Registry, and the office of liaison and intellegence [within the RCMP], the security state had arrived in Canada” (87). 47 See Brown and Wright, “Codification,” CST3, 532–4. The statute 53 Vic. c.10 (1889 U.K.) emerged out of rising British government concerns about new forms and technologies of espionage and about the security of government information, sparked by a series of successive leaks to the press in 1887 that embarrassed the government and compromised its intelligence operations. The Admiralty began work on new secrecy laws on the premise that treason prosecutions for some acts of espionage would be strained and attract adverse publicity and controversy, while actions against disclosure of state secrets through administrative measures, civil actions, and criminal prosecutions for larceny or even sedition were inadequate. The Treasury took over the project in 1888 and the bill on breach of official trust introduced new espionage and leakage offences, the latter designed to deter the unauthorized disclosure of sensitive official information by public servants. See Franks Committee, Report of the Departmental Committee on Section 2 of the Official Secrets Act 1911, no. 5104 (London: HMSO 1972), ch. 4 and app. III. See also David Williams, Not in the Public Interest (London: Hutchinson 1965); Jonathan Aitken, Officially Secret (London: Weidenfeld and Nicolson 1971); David Hooper, Official Secrets: The Use and Abuse of the Act (London: Secker and Warburg 1987); Rosamund M. Thomas, Espionage and Secrecy: The Official Secrets Acts 1911–1989 of the United Kingdom (London: Routledge 1991). 48 Section 76 of the Code defined government locations and forms of communications and expression. Section 77 created a dual offence, a minor one punishable by a year’s imprisonment, of “unlawful disclosure,” which involved obtaining or possession, by all persons, of official information that, in the interests of the state, ought not to be communicated; and a more serious one, punishable by life, of communicating or intending to communicate such information to a foreign state or agent of that state. Section 78 set out another

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38  b a r r y w r i g h t, e r i c t u cker, and susan binnie dual offence, “breach of official trust,” applicable to those holding office or contract with Her Majesty or the governments of the United Kingdom or Canada who lawfully or unlawfully obtain or communicate information contrary to their duty. Communication or attempted communication to a foreign state was punishable by life imprisonment; other cases were punishable by a year. 49 See McDermott’s chapter in this volume. 50 See Official Secrets Act, 1911, 1&2 Geo. V, c.28; 1920, 10&11 Geo. V, c.75 (U.K.); S.C. 1939, c.49. 51 The maximum was increased from seven to fourteen years for Official Secrets Act offences, a new offence of sabotage was added to the Criminal Code, and, as noted above, espionage was included as a form of treason (see Official Secrets Act amendment: S.C. 1950, c.46, s.3; Criminal Code sabotage offence: S.C. 1951, c.47, s.18 [amended as s.52 in 1953]; espionage as a form of treason: S.C. 1954–4, c.51). The latter treason offence was punishable by death or life imprisonment if committed during war, and, in duplication of the Official Secrets Act, by a maximum of fourteen years if the espionage was committed during peacetime. Overlaps and inconsistencies in these provisions in the Canadian Criminal Code and the Official Secrets Act were identified by the Mackenzie Committee, Report of the Royal Commission on Security (Ottawa: Queen’s Printer 1969); examined at length in Martin L. Friedland, National Security: The Legal Dimensions (a study prepared for the McDonald Commission of Inquiry concerning Certain Activities of the Royal Canadian Mounted Police (Ottawa: Queen’s Printer 1979); and revisited in the Law Reform Commission of Canada’s Working Paper 49 (1986): 26–30. The U.K. Official Secrets Act was amended in 1986. In Canada the Official Secrets Act has been recently revised and renamed the Security of Information Act – or Anti-Terrorism Act: R.S.C. 2001, c.41, pt.2, ss.24–32). 52 Brown and Cook, Canada 1896–1921, 220. Enlistment fell from a peak of 35,000 a month in early 1916 to about 5,000 a month by early 1917. 53 Ibid., 263–4. 54 Military Service Act, 1917, 7–8 Geo.V, c.19. 55 Morton, Desmond, A Short History of Canada (Toronto: McClelland and Stewart 2001), 187. Elizabeth Armstrong, The Crisis of Quebec, 1914–1918 (New York: AMS Press 1967), says that 98 per cent of Quebecers eligible for conscription filed appeals. Elsewhere across the country, the figure was about 93 per cent. 56 Jack Granatstein et al., Nation: Canada since Confederation (Toronto: McGrawHill, Ryerson 1990), 206–14. 57 Brown and Cook, Canada 1896–1921, 309.

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Introduction  39 58 These measures are described in detail in Patricia McMahon’s chapter in this volume. 59 Gordon Corrigan, Mud, Blood and Poppycock (London: Cassell 2003), 229. 60 Twenty-one executed for desertion, two for murder, and two for cowardice. Tim Cook, Shock Troops (Toronto: Penguin 2009), 252–4. 61 Some or most of the Canadians listed under the first figure may have been included in the second if sentenced by a British court-martial. 62 As Corrigan points out in Mud, Blood and Poppycock, 215–48, consideration was given to soldiers considered to be suffering from “shell shock” or “neurasthenia” throughout the First World War. None were executed if military doctors confirmed such a diagnosis. Eleven per cent of Allied soldiers given capital sentences were executed, a total of 346 men. Seventy-five per cent of these executions (266) were for the offence of desertion. Only three were for mutiny. 63 Set against about five million men under Allied control in 1918, the figure remains relatively low. 64 Chris Madsen, Another Kind of Justice: Canadian Military Law from Confederation to Somalia (Vancouver: UBC Press 1999), concludes (at 40–6) that Canada lacked adequate training in military law for Canadian officers until the middle period of the war. The figure does not provide breakdowns of the composition of the courts in terms of the nationality of court officers. 65 Clemenceau, for example, has been widely reported to have said, “Military music is to music as military justice is to justice,” although his comment was reported slightly differently in French. 66 S.C. 1904, 4 Edw. VII, c.23. 67 It was not until 1922 that the Canadian Parliament enacted the first Department of National Defence Act and, under that statute, the federal government developed a full version of what are now the Queen’s Regulations and Orders (QR&O) and the Canadian Forces Administrative Orders (CFAO), which, among other essential matters, provided for discipline within the army. There were continuing issues around which countries’ officers should sit on courts-martial of non-British soldiers; this was a small part of many complex organizational issues not resolved until the middle of the war or later. See Madsen, Another Kind of Justice, 43–8. 68 Regulations for the volunteer Canadian militia after Confederation (under the authority of s.92(7) of the Constitution Act of 1867), which acted at first in conjunction with British regiments stationed in Canada, were published by the Department of Militia and Defence in 1870 (after passage of the Militia Act, 1868). The British, increasingly eager to withdraw from Canada after 1867, were able to do so to a considerable degree when British garrisons were

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40  b a r r y w r i g h t, e r i c t u cker, and susan binnie replaced by small professional Canadian artillery batteries and forces largely made up of militia. The Boer War of 1899–1902 saw Canadian volunteers form a Canadian contingent under British command governed in accordance with the provisions of the British Army Act. A Canadian navy established in 1910 was nominally independent but subject to imperial control in time of war, with parliamentary consent. 69 Two South African soldiers and five New Zealanders were executed. The editors are grateful for the assistance of Eric McGeer on these matters concerning military justice. 70 This policy was a direct result of a court-martial of Australian troops in South Africa in 1902 when soldiers attached to a British mounted unit were charged with shooting Boer prisoners. Two Australians were executed and the incident became well known after its depiction in the movie Breaker Morant. See also Madsen, Another Kind of Justice, 32–5. 71 S.C. 7–8 Geo. V, c.19. 72 As reported in Jean-Pierre Gagnon, L’Histoire du Royal 22e Régiment (Quebec: Les Presses de l’université Laval 1986). 73 Research has been difficult because few records are available in Canadian archival holdings. The imperial records, i.e., the records created by the British tribunals, contain limited material. Records for all courts-martial conducted for troops under the British High Command in Europe were passed to the British judge advocate general. Amy Shaw, in Crisis of Conscience (Vancouver: UBC Press 2009), looks at the files of conscientious objectors and states that these records were declassified only relatively recently because the government of the time did not want to publicize cases of dissent or desertion. Theresa Iacobelli has recently analysed records of court-martials of Canadians in her thesis and published interesting information in her Death or Deliverance: Canadian Courts Marital in the Great War (Vancouver: UBC Press 2013). 74 Kinmel Park held thousands of U.K. and Allied soldiers. Riots had occurred elsewhere during the war among Canadian and Allied troops and there had been prior demobilization unrest at Kinmel Park, but this was the most serious incident, resulting in five deaths. Fifty-one Canadian soldiers were courtmartialled and twenty-seven convicted – see Madsen, Another Kind of Justice, 51–2. See also Desmond Morton, “‘Kicking and Complaining’: Demobilization Riots in the Canadian Expeditionary Force, 1918–19,” Canadian Historical Review, 61 (1980): 334; and www.canadiangreatwarproject.com/writing/ kinmelpark.asp. 75 Fudge and Tucker, Labour before the Law, 91–103. 76 PC 1832 and PC 2299. 77 PC 2525 (banning strikes) and PC 680 (extending the IDIA).

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Introduction  41 78 S.C. 1919, c.46 (originally passed as ss.97[a] and 97[b]). 79 S.C. 1910, c.27, s. 41; Roberts, Whence They Came, 13–18. 80 The acquisition of citizenship by domicile simply required the individual to become a permanent resident of Canada. No formal application for citizenship was required. This was available to British subjects. By contrast, the acquisition of citizenship by naturalization required an application and the issuance of a certificate by the government. 81 S.C. 1919, c.25, s.15; S.C. 1919, c.26, s.1; S.C. 1919, c.38, s.7. Roberts, Whence They Came, 21–2. In 1928 the act was amended to restore the 1910 version exempting all Canadian citizens from political deportation. S.C. 1928, c.29. 82 Roberts, Whence They Came, 125. 83 Criminal Code, R.S.C. 1927, c.36, ss.87–91. 84 S.C. 1876, c.37. 85 S.C. 1939, c.30, s.11. 86 R.S.C. 1927, c.36, s.238 (vagrancy), and s.290. 87 Unemployment and Farm Relief Act, S.C. 1931, 58; House of Commons, Debates (1 Aug. 1931), 4454. 88 Kramer and Mitchell, When the State Trembled, 133. 89 Lita-Rose Betcherman, The Little Band (Ottawa: Deneau 1982). 90 Fudge and Tucker, Labour before the Law, 156–7. 91 J.H. Alan, “Military Aid of the Civilian Power in Canadian Industrial Disputes 1876–1925,” Occasional Papers on Canadian Defence Policy and CivilMilitary Affairs, 2, no. 5 (1972), Royal Military College. 92 S.C. 1919, c.60; McGillvray, “Military Aid to the Civil Power.” 93 S.C. 1924, c.57. 94 Stephen L. Endicott, Bienfait: The Saskatchewan Miners’ Struggle of ’31 (Toronto: University of Toronto Press 2002); Desmond Morton, “Aid to the Civilian Power: The Stratford Strike of 1933,” in I. Abella, ed., On Strike (Toronto: James Lorimer 1975), 79–91. 95 Whitaker et al., Secret Service, 105. 96 See, generally, ibid., 60–144. 97 J. Petryshyn, ‘“Class Conflict and Civil Liberties’: The Origins and Activities of the Canadian Labour Defense League, 1925–1940,” Labour/Le Travail, 10 (1982): 59; S.C. 1936, c.29, ss.1, 4. 98 See Kordan, Enemy Aliens, Prisoners of War.

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1 “They Will Be Dangerous”: Security and the Control of Enemy Aliens in Canada, 1914 BOHDAN S. KORDAN

During the First World War over eighty-five hundred resident immigrants of Canada, originating from states at war with the British empire, so-called “enemy aliens,” were interned as prisoners of war (POWs). Once interned, they were put to work as POW labour on a variety of publicworks projects throughout the country. Some eighty-five thousand other enemy aliens were required to register and report to local authorities tasked with monitoring their status and movements. These were extraordinary developments in scale and scope but the registration and internment measures were not unprecedented. As subjects of states now at war with the British empire and as possible recruits for enemy armies, aliens of enemy origin were all considered potential adversaries. Security as a state prerogative meant that the legal steps adopted and measures taken fell within the constitutional powers of the state to defend itself and its interests. From this broad perspective, the question of how internment came to pass in Canada is explained. But why these particular measures were taken and how they came to have these consequences, however unintended, remains something of a puzzle. Security entailed new complexities in an age of large-scale migration, world war, and mass mobilization. This chapter addresses some of the questions that arise in these modern circumstances. For instance, how was security defined with respect to the alien of enemy origin? And how did broadly defined security concerns inform government policy, decisions, and actions towards this class of people?

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In dealing with the enemy alien, officials felt compelled to respond in ways that broke with government promises that encouraged their initial immigration. This occurred because of the manner in which the role and place of the enemy alien in Canadian society was understood, both in the context of war and from the perspective of pressing domestic concerns. But how were these security and domestic considerations linked? And what effect did this have on the lives of enemy aliens? Moreover, how did this understanding shape Canada’s strategic response, including those laws that would lead to enemy-alien internment? The experience of internment in Canada for enemy aliens – its operation and consequences – has been well documented.1 From the perspective of political culture, the question of the political status of immigrants of enemy origin has also been examined and there has been much discussion about the War Measures Act.2 But the emergency laws introduced in the early weeks of the war that made internment a likely outcome for aliens have not been studied in depth. What, then, was it about the particulars of these laws that allowed or encouraged the internment of peaceful, lawabiding residents of “enemy nationality”? This chapter, therefore, will also examine and assess the purpose, role, and consequences of two emergency decrees that would profoundly affect the lives of tens of thousands of immigrants hailing from lands at war with Canada: the 15 August 1914 Proclamation Respecting Immigrants of German or Austro-Hungarian Nationality; and Order-in-Council PC 2721 of 28 October 1914, issued under the War Measures Act. the 15 august proclamation and the enemy-alien predicament As the clouds of war gathered over Europe, reservists were being called home from Canada to serve in the armies of their countries of origin. In deference to authority and coupled with concern for their families in Europe, men of various nationalities, including Germans and AustroHungarians, departed for home. Once war was declared, the Canadian government saw an urgent need to stem this flow of returning German and Austro-Hungarian reservists that augmented the fighting capacity of the enemy. Under the authority of the governor-in-council, a proclamation was issued on 15 August which made it clear that enemy officers, soldiers, or reservists would be arrested and detained if they attempted to leave the country (see appendix C, doc. 1). Although the declaration identified specific categories of combatants, the restriction on departure

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from Canada would necessarily apply to virtually every able-bodied male of enemy origin since all were potential combatants. The prohibition on travel was an important security measure, an acknowledgment of the fact that Canada was at war. So too was another measure outlined in the declaration, namely, that those either engaged in, or suspected of participating in, espionage and other hostile acts, or who attempted to aid the enemy, would be apprehended and detained. The enactment of the War Measures Act on 22 August, which delegated extensive emergency legislative powers to the executive for the duration of the war, further underscored the wider concern with security. Inasmuch as the act echoed security legislation adopted elsewhere in the empire (see Peter McDermott’s chapter in this volume), its introduction demonstrated that, in the struggle ahead, not only would very little be left to chance but the authorities would be given the necessary power to address any eventuality should the need arise. The sweeping security measures were portrayed as essential to the selfdefence of Canada but the government also made it clear that the measures taken were to be limited and purposeful; their intent was to secure the realm – no more, no less. In this regard, assurances were given that no action would be taken against those who were law-abiding. The government was unambiguous on this score by declaring that aliens of German or Austro-Hungarian origin quietly pursuing their routine activities would be allowed to do so without interruption. Furthermore, a special provision was included in the 15 August proclamation that stated persons who were arrested and detained would be released if they signed a pledge undertaking to abide by the laws of the country, refrained from taking up arms against Canada, and reported to authorities. On 2 September, a follow-up public notice was released, which reaffirmed the principle that enemy aliens who went about their ordinary business would not be interfered with and “would continue to enjoy the protection of the law and be accorded the respect and consideration due to peaceful and law-abiding citizens” (see appendix C, doc. 2). While the aim may have been to retain a degree of normality, the proclamation and Order-in-Council PC 2721 (and two related orders PC 2758 and PC 2817) issued pursuant to the War Measures Act pre-empted this possibility since they implied that aliens of German and Austro-Hungarian origin were in fact suspect and that their freedom of movement should be limited. Birthplace was made synonymous with enemy status and enemy sympathies were presumed because of origin. Despite the assurances, aliens of enemy origin would not be given the benefit of any doubt.

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The direct consequence was to elevate the sense of insecurity among enemy aliens, who were already apprehensive because of the resentment and anger directed at them by the native-born population. The measures also fuelled nascent suspicions of treachery and public hostility directed towards immigrants coming from nations at war with Canada.3 More immediately, however, the effect was to compound the existing difficult personal circumstances that confronted a large number of these individuals. The growth that had driven the Canadian economy for fifteen years prior to 1914 had come to an end shortly before the war. As the economy contracted, there was now both excess economic capacity and mass unemployment in the country.4 These conditions would prove especially taxing for the tens of thousands of immigrant aliens of enemy origin who were out of work. More to the point, prohibited from leaving the country to look for work in the United States, as they routinely had done in the past, they were now hostages in their adopted homeland. Within a few months of the declaration of war, dispatches to Washington from the U.S. consul general in Montreal, W.H. Bradley, confirmed that the situation for the enemy alien was grim and threatening to become worse. As the newly appointed neutral diplomatic liaison representing Austro-Hungarian interests in Montreal (and Quebec more generally), Bradley was authorized to assist where he could and report back on what he saw. Within weeks of assuming control as consular representative, Bradley communicated that in Montreal alone 4,000 aliens of AustroHungarian origin – Ukrainians, Poles, Croats, and others – had registered for assistance with the diplomatic mission, including 200 children. Of the group, 2,000 were entirely without work and several hundred received a single, daily ration of soup and bread from a recently organized community relief kitchen. Noting their suffering and anguish, Bradley observed, “They do not seem evil-disposed, but cannot see why, after being brought here to work, they should be reduced almost to starvation for a war in which they are, apparently, not greatly interested.”5 It appeared to the American diplomat that, although dazed and confused, those affected were resigned to their lot. As an observer, Bradley also conveyed his impression of the critical nature of the situation to Canadian officials, but he found that there was division of opinion and uncertainty in government circles as to the measures that might be adopted. Although steps had been taken to address the security of the country in the form of the 15 August proclamation, nothing was formally being considered for the alleviation of the plight of the enemy alien whose situation had appreciably worsened as a result.

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Hopeful that something yet might be done, he urged that preparations be made especially since “the suffering among the poor will be greatly increased when the severe Canadian winter settles down upon us toward the end of the month.”6 To this end, Bradley praised the work of charities and community organizations that sought to provide relief by opening up soup kitchens and organizing for the deepening crisis. But these were stopgap measures. A national policy was needed that would create jobs for the thousands of unemployed enemy aliens or allow for their departure to the United States where they might secure work. As it stood, according to Bradley, the 15 August proclamation prohibiting travel to the United States by enemy aliens had made of them “virtual prisoners of the country.” It was a view shared by others. Sir Hugh J. Macdonald, a former interior minister and one-time premier of Manitoba, was very much disturbed about the predicament faced by Germans not yet naturalized, having learned from the mayor of Winnipeg of the personal difficulties facing two young men of German origin.7 He noted that, because of their enemy-alien status, they had been discharged from a local branch of the Imperial Bank and, finding it impossible to secure work, were now without means. They could readily obtain employment in Minneapolis if allowed to leave the country, but were prevented from departing because of their enemy status. From Sir Hugh’s point of view, they were “in a hole from which they cannot escape,” and he impressed upon the prime minister and others the importance of either allowing them to depart for the United States or providing them with work and a means of living. From Sydney, Nova Scotia, the Reverend M.C. Kinsale also corresponded with government officials, bringing to the attention of the secretary of state the serious situation at the local steel works. With mills working at one-third capacity, the mill owners had instituted mass layoffs, mostly affecting Austro-Hungarian nationals. Although acknowledging that the 15 August proclamation prohibited enemy-alien travel to the United States, Kinsale urged that a special allowance be given to them since there was limited local assistance and the men and their families were in desperate need. He reported that the local American consul was besieged every day by large numbers of Austro-Hungarians pleading that they would like to work, if not in Sydney then in the United States, but they were prevented from leaving because, as was prescribed under the proclamation, they were obliged to sign an “Undertaking” which compelled them to stay put. Kinsale observed through his mission work that those desiring to leave the country were not in the slightest inclined to

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participate in the war; they were simply motivated by the need for employment. He asked officials to “take this matter in consideration and find some way out of this difficulty, which, while guaranteeing the safety of the country, will help these men.”8 The secretary of state, Thomas Mulvey, would, in fact, write to the chief commissioner of the Dominion Police, Colonel A.P. Sherwood, asking whether something might be done to meet the needs of the enemy aliens in Sydney. The police commissioner’s response was that, although he concurred with Kinsale’s assessment – “he puts the facts fairly clearly and with absolute correctness” – the issue would have to be resolved politically. By placing the matter before the minister of justice, as he intended to do, the commissioner hoped that some government action would be taken. In the meantime, Sherwood noted there was some urgency in the matter insofar as “the condition of affairs at Sydney [was] similar to many other parts of Canada and some policy [would] have to be adopted to meet the situation.”9 As a result of the prohibition on enemy aliens travelling to the United States, many felt compelled to take a chance in crossing the border illegally. Not all were successful. Mike Kitt was arrested at North Portal, Saskatchewan, for stealing a ride on a freight train to look for work in the Dakotas. Brought before Justice W.A. Neal, Kitt explained that, without work and facing starvation, he had no choice but to try to make his way to the United States. In lieu of internment as prescribed by the proclamation, the judge sentenced Kitt to fifteen days of hard labour for violating the Railway Act.10 John Spodarulek was similarly arrested at Brockville, Ontario, attempting to steal across the international line. He confessed to trying to reach Hammond, Indiana, only because there was no work in Ottawa where he had been a teamster at a box factory for two years.11 Meanwhile, Tom Larivitch and Steve Vincovic could not offer a satisfactory explanation as to why they were on the Grand Trunk train heading from Toronto for the border. They did, however, inform the arresting officer that there was no work to be had in Brantford, Ontario, where they lived. Arrested, they joined Martus Konekovitch of Fort Colborne who had also attempted to cross the border in search of work.12 A handful of cases, they all bore witness to the exodus of individuals looking for employment. There was no doubt that the economic situation was difficult and worsening. Although the recession of 1913–14 was one of the usual cyclical declines, the onset of the war deepened the crisis. In the face of the downturn, businesses and government scaled back their activities. Government

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cutbacks were viewed as being especially problematic. In Manitoba, the business community sharply criticized the government, insisting on provincial action to help promote confidence and stability while imploring officials “[to] proceed along normal lines with respect to public works, thus setting, as far as possible, an example for the rest of the community.”13 The union movement was also censorious of the province’s retreat in the face of the crisis. When construction work stopped in Winnipeg on both the parliament building and new courthouse, five hundred men were thrown out of work. Portrayed as a necessary austerity measure by the provincial government, the move was seen by the Trades and Labour Council as shortsighted and harmful. The council organized a delegation to meet with Premier Rodmond Roblin, hoping to persuade him of the necessity of continuing government support for construction projects during this critical time.14 Provincial governments, and more especially the Dominion government, were called upon to demonstrate resolve and leadership. That they showed neither became a point of both public frustration and criticism. Not only was inaction seen as adding to the ranks of the unemployed but it also appeared there was no plan. In this vacuum, ideas were brought forward, at least at the local level, on how best to relieve the distress of the people. Citizens of Edmonton demanded that the Dominion government appropriate $300,000 for construction of a retaining wall on the riverbank.15 Mayor Thomas R. Deacon of Winnipeg argued for a Dominion-sponsored “Back to the Land” program, offering government loans to those individuals who would consider homesteading and to others who hoped to remain on their homesteads but faced hardship. With more individuals holding title to the land, “not only would much of the unemployment difficulty be settled,” Deacon maintained, “but the country would be better off, owing to the increased number of farmers.”16 The approaching winter underscored the urgency of the matter and across the country multiple proposals at the local level were actively discussed and considered. There was a palpable sense that something needed to be done and soon. Hardship was felt across a wide swath of the working population. In urban centres, a range of organizations and agencies sought to assist those most affected as much as possible. But the sources of help were few and the needs were many, with charities finding it increasingly difficult to address the growing number of indigent, particularly among the enemyalien population. For enemy aliens, the economic situation was especially trying. As the economy continued to contract and employers faced the choice between hiring native-born and enemy subjects, the latter would

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bear the brunt of unemployment.17 Preferential hiring, of course, had always been part of normal labour conditions in the country, but with war it assumed a more malign character. The employment practices of businesses and governments alike were increasingly scrutinized by a section of the public which insisted that loyal British and Allied subjects were to be favoured because birthright and unquestioned allegiance mattered under conditions of war. Governments and businesses were urged to support their own and were called upon to demonstrate their patriotism by hiring only those whose loyalty, a function of birthright, could be trusted.18 How could it be otherwise? The 15 August proclamation already pointed to the enemy subject as a person outside the body politic. From the perspective of the patriot, it only followed that they be treated as enemies. In Montreal, a group of English-speaking French and Italian waiters complained to the major local hoteliers that over 400 individuals of German and Austro-Hungarian origin held remunerative jobs which could easily be occupied by men currently unemployed and “belonging to the Allies.”19 In Toronto, a number of employees, who described themselves simply as “British Waiters,” complained bitterly that the management of the King Edward Hotel continued to retain Germans in their employ “in spite of our Canadian boys being bayoneted when lying wounded.”20 In Calgary, the city commissioner, Adoniram Judson Samis, bowing to public pressure, gave instructions that single men of Austro-Hungarian and German birth working in the city’s street-cleaning department were to be replaced by Britishers, since “it would be monstrous to employ members of a nation at war with the British Empire while men of the British race were unable to find employment.”21 The Calgary Daily Herald applauded the move, declaring that “there will have to be some discrimination used” since, as a matter of principle, it should be the policy of civic authorities to employ first the native-born.22 In the face of expanding employment discrimination, the economic situation of enemy aliens appreciably darkened. Reports of near starvation and substandard living conditions were commonplace and widespread. In Hull, Quebec, municipal authorities were appalled by conditions found after complaints were received and a health inspection conducted of overcrowded rooming houses in which Ukrainians, Poles, and others of Austro-Hungarian origin resided. The inspectors found 125 individuals huddled together in filthy squalour, with entire families living in rooms “no bigger than clothes closets.” Eighteen individuals, including women and children, were crammed into one house described as a sty, with grime, muck, and fetid odour all around.23 To avert the spread of pestilence, the

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Quebec Board of Health was instructed by the province’s chief medical health officer to take action. The problem was that there was nowhere to relocate or house these individuals, let alone provide for their basic needs. The situation in Hull and adjoining Ottawa was the result of the closure of the valley’s lumber mills owing to the war’s effect on the transatlantic commercial trade in timber.24 It was expected that the closures would add to the city’s enemy-alien population who, in August, were already said to be idle and penniless.25 With nowhere to go and no avenues of escape, such people became increasingly desperate. By September, the situation was said to be unprecedented in the history of the city, with 400 or so individuals of Austro-Hungarian origin reported as being “absolutely destitute” and “starving.” The Ottawa Evening Journal noted that “many of the men are sleeping in fields surrounding the city, and are living upon scraps of food picked up at the back door of houses.”26 The theft of food was widely reported in October and immigrant children, street urchins, begging for alms, could be found on Parliament Hill. Despite these conditions, the Evening Journal declared that enemy aliens were being favoured with work.27 It was a false allegation, in no small measure animated by the gathering fear and resentment among the general public. It pointed to an awful yet recurring truth – that wars drew sharp lines between peoples. Notwithstanding the aliens’ suffering and misery, in the view of most of the general public, providing for one’s own took precedence over the enemy alien whose intentions and loyalties were suspect. Still, the task of feeding enemy aliens and their families in Ottawa/Hull could not be ignored entirely. Municipal authorities, already distributing hundreds of loaves of bread daily, were concerned about the impact hunger would have on these unfortunates. With want and desperation rampant, the Ottawa police feared that riots would soon break out – a concern that was voiced in other parts of the country.28 After the cost of basic foodstuffs increased in Vancouver, riots were fully expected. When they did not occur, there was genuine surprise and relief.29 In Montreal, the Board of Control was particularly anxious about the possibility of disturbances, recommending to the city council that “it was advisable to send a delegation to Ottawa to confer with the Dominion authorities on the need for additional protection to property in Montreal on account of the foreign element here.”30 City councillors supported the proposal because of a growing belief that the city’s enemy-alien population posed a threat. The Charity Organization Society of Montreal estimated that there were five to eight thousand enemy aliens, nearly all of whom were in absolute want, out of work, without funds, and prevented from leaving the coun-

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try. In the opinion of the charity, they constituted “a serious menace” to the city, one that would grow as the winter approached.31 Entrusted with public safety, Montreal’s chief of police, Oliver Campeau, reported to the city’s Board of Control that the police were helpless to deal with the situation. “Many hundreds of Austrians and Germans have been thrown out of employment because of their nationality,” Campeau observed, and given that winter was close at hand “these men will be ripe for all kinds of mischief.” He concluded, “Robberies and outrages are sure to become daily occurrences,” adding that the police service had few men and even less power to conduct house-to-house searches in the “foreign sections of the city.”32 At a public hearing held to address the issue, those gathered emphatically declared that neither civic authorities nor charitable organizations were equipped to deal with the size and scope of the problem. They called upon the Dominion government – “by whose act these men … are prevented from leaving the country” – to take immediate action.33 Almost from the outset the government was aware of the problem and similarly preoccupied as to what to do. In August 1914, for example, the minister of defence and militia, Colonel Sam Hughes, expressed his worry about the unfolding situation and his concern for the future: I am very much depressed over the question of foreigners in Canada, out of employment. Estimates vary as to the number of these people unemployed, and it is an undoubted fact that there are very many thousands of them practically destitute. There is no hope of work for them for another year. The winter will soon be coming on and destitution, if not starvation, will be on every hand. Many of these are German and Austrian Reservists. When people are fed they are, usually, contented. When people are starving they are desperate. Almost every offence committed will be laid at the doors of these people and, of course, poverty will have a tendency to make criminals of them. If there are any means whereby they could be gotten out of the country quietly, would it not be well? If they remain, I fear we will have to take charge of them and establish large and expensive camps all over the country to control and feed them. If they were encouraged to go to the United States and were refused admission there, as they doubtless would be, would it not have a tendency to make them more law abiding in Canada?34

Hughes understood the importance of introducing a policy to manage the situation of enemy aliens, but he acknowledged that the solution required

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careful thought. As he noted, “Some lines must be laid out for their control and maintenance.”35 The question of the control and maintenance of the unemployed enemy-alien population was also on the mind of the industrialist Sir Thomas Shaughnessy of Montreal. A prominent public figure and close confidant of the government, Shaughnessy as early as 28 August 1914 shared his concern over the looming enemy-alien situation in the western provinces. He noted that the wealthier German immigrant was in a good position to weather the growing unemployment crisis but among AustroHungarians the shutting down of operations by government, corporations, and municipalities was bound to have a negative effect. From his perspective, “if these men be permitted to reach a starving condition they will be dangerous, and, beyond doubt, some steps should be taken to deal with the problem.” He added, “They are practically prisoners of war, and cannot leave Canada.” Shaughnessy recommended that, under the circumstances, suitable sites should be selected in each of the provinces where “a Detention camp could be located, and properly equipped, so that any German or Austrian who applies for relief or is out of employment and cannot take care of himself, may be removed there and held under military supervision until the war is over, or employment offered.”36 Shaughnessy’s views prompted the prime minister to direct the Department of Militia, the comptroller of the Royal North-West Mounted Police (RNWMP), and senior ministers to bring forward to cabinet, for its deliberation and decision, a recommendation “that was in the public interest.”37 On becoming aware of Shaughnessy’s proposal, Arthur Meighen, solicitor general of Canada, quickly voiced his opposition to the internment of jobless enemy aliens. He was adamant that “such a camp would be looked upon as a lazy man’s haven and men of all nationalities would be fruitful of expediencies to get there,” adversely affecting the quality of free labour.38 Meighen recommended an alternative, namely, to get the men on the land by setting aside parcel lots procured with modest government assistance. “These Austrians,” argued Meighen, “are workers as a rule and those I know would jump at the chance to acquire a small piece of land. They can live on very little.” Insisting that his plan be given serious consideration, he added, “I realize that there are big difficulties in the way [but] the necessities are great and the goal is the correct one.”39 When the RNWMP comptroller, Laurence Fortescue, argued that unemployed immigrants of enemy origin be interned in camps, Meighen reiterated his position that “by an extension of the homestead system under close Government supervision, a great many of these immigrants can be better

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taken care of.”40 For Meighen, internment was a mistake. Moreover, there were real alternatives to detention. At the senior level of government, opinion was divided on what approach to take. The consequence of disagreement was continuing delay. Yet public impatience about what might be done with the growing number of unemployed enemy aliens, and concern over the prospect of an escalation in the crisis with the approaching winter, made a decision necessary. In late October, Prime Minister Borden, worrying about the severity of the situation, noted that some fifty to one hundred thousand enemy aliens would soon be without work, a great many of them having been dismissed by employers who felt the pressure of public opinion. Prohibited by Canada from departing for the United States where they could possibly find work, Borden declared: “We must either let them go, provide them with work or feed them; otherwise they will become desperate and resort to crime.”41 His inclination was to relax measures that prevented enemy aliens from entering the neutral United States, especially since there was little probability that they would ever reach their homelands. Borden, however, wished to solicit and receive as quickly as possible the views and advice of the imperial government. Borden’s views were promptly shared with various officials in London. In discussing the matter with the parliamentary secretary of the Foreign Office, Canada’s high commissioner, Sir George Perley, impressed upon the former that this was “a very serious question in Canada,” largely because of the underlying moral conundrum.42 The government had invited these people as immigrants to Canada, and so there was an obligation, according to Perley, “to treat the matter with sensitivity and an appreciation of the special circumstances.” The concerns expressed by Perley, however, did not appear to resonate with British officials. Ignoring the ethical difficulty and focusing on the practical aspects of the issue, Sir Edward Grey, the British foreign secretary, in consultation with Laurence Harcourt, the colonial secretary, concluded that despite the expense involved in keeping such a large number under the government’s charge – “a serious burden” – the better course of action for the Canadian government to adopt “[was] to detain them within the limits of the Dominion.” Citing the rationale behind the decision, Harcourt remarked: “This course, in spite of the expense which it will involve, will no doubt prove the most satisfactory and it will preclude the practical certainty of any Germans or Austrians drifting, by way of the United States of America, back to the enemy’s firing line.”43 The reply from London would not arrive until a full ten days had passed. The answer was clear. Canada was required to fulfil the goal of

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preventing enemy aliens from joining military forces in their own countries. To this end, the Canadian government began to take what were now perceived to be necessary measures. order-in-council pc 2721 and enemy aliens: registration, supervision, and the prospect of internment As pressure mounted on the government to deal with the enemy-alien unemployed, Dominion officials were routinely queried as to what action would be taken. Several inquiries underscored the view that unemployed enemy aliens should be made prisoners of war. Albert Chevalier, director of the Philanthropic Society of Montreal, a relief agency that increasingly focused its work on the enemy alien, asked, for example, whether the internment of enemy aliens as prisoners of war was being contemplated as part of the government’s strategy.44 The proposition that they might be interned as prisoners of war, although startling, was not hard to understand. Indeed, in the public mind, the 15 August proclamation made those of certain foreign origins and presumptive enemies synonymous, or at least fuelled the popular notion that aliens of German and Austro-Hungarian nationality were adversaries. Origin had made of them enemies against whom the laws of war would apply. Further, the enactment of the War Measures Act on 22 August elevated the level of public anxiety over enemy aliens, especially in light of the rampant rumours alleging espionage and treachery. In this regard, the wide powers delegated to the executive, pertaining to arrest, detention, and internment, infused a sense of crisis into the issue while informing the perception of the enemy alien as a liability if not a threat to which the war measures would apply. The sweeping and open-ended nature of this emergency legislation allowed for the widest possible interpretation of what constituted a threat. Hence, unemployed enemy aliens, seen as presenting a “serious menace” by way of potential disturbances, fell within the range of perceived threats. This, in combination with enemy-alien status, helped to make it publicly acceptable to subject such individuals to war measures, including their internment as prisoners of war. To be sure, the internment of enemy aliens as prisoners of war was not the aim of the security legislation. Indeed, Prime Minister Robert Borden was clear in his assurances, made on several occasions, that “no arrests shall be made unless the persons in question evince an intention of leaving the country for the purpose of fighting against the British Empire, or otherwise assisting the nations with which we are, unfortunately, at war.”45

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In addition, release was all but assured under the terms of the 15 August proclamation for those who were prepared to sign a document declaring that they would do no harm. Thousands, who in the initial weeks of the war had been arrested, either for violation of the regulations or on suspicion, were in fact released in this manner. This was in keeping with the spirit of the public notice of 2 September asserting that aliens of enemy origin would not be interfered with as they went about their business. It also followed from the argument, repeated publicly at times, that consideration was owed them not only because they had been invited to the country but also because the vast majority of these individuals were lawabiding.46 The difficult situation confronting the enemy alien demanded that there be empathy – not suspicion and loathing. The superintendent of immigration, W.D. Scott, for one, on learning of the desperate plight of enemy aliens in Vancouver, spoke against a proposal to intern them as prisoners of war. “If the only objection to these people is that they are destitute and unable to provide for themselves, I can scarcely see why they should be refused the same treatment as other immigrants would receive under similar circumstances … I cannot see why they should be treated as military prisoners unless they have done something to bring them within the terms of Clause 2 of the Proclamation of the 15th ultimo.”47 Nevertheless, officials had to be mindful of the wider context: namely, the need to maintain security while also preserving the country’s obligations to the Allied war effort. The result was that on 28 October 1914 Charles J. Doherty, minister of justice, submitted a report to cabinet outlining measures to be taken in managing the enemy-alien situation. The proposal was adopted and approved the same day by the governor-in-council under the authority of the War Measures Act as Order-in-Council PC 2721 (see appendix C, doc. 4). Derived from the wide defence and security powers authorized under the War Measures Act, Order-in-Council PC 2721 was an extraordinary executive measure even as it pertained to security. Clause 1 of the ordinance called for the establishment of registration offices in cities and towns where large numbers of enemy aliens were clustered. Appointed registrars were to operate under the supervision of the Dominion Police (Clause 2). Enemy aliens were to be examined and registered. The registrars would record particulars that would assist in the process of monitoring these persons and their status (Clause 3). Clause 4 required that all enemy aliens within a twenty-mile radius of designated cities and towns register, answering all questions put to them by authorities. Clause 5

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prohibited aliens of enemy nationality from leaving the country without an exeat granted by a registrar. Clause 7 directed enemy aliens to declare whether they would abide by the laws and customs of the land, and had sufficient means to support themselves, while also obligating them to report monthly to the local chief of police. On failing to declare in the affirmative or report to police as required, they would be interned as prisoners of war. Clause 7 further stated: “Any alien of enemy nationality who in the judgment of the registrar cannot consistently with the public safety be at large shall be interned as a prisoner of war.” Clause 10 authorized the Canadian militia to oversee the maintenance of enemy aliens as prisoners of war, requiring them to do and perform work as was deemed fit. Recognizing that dependants of interned enemy aliens might be placed in a precarious situation, Clause 9 permitted dependants to accompany the prisoner of war into internment. Finally, Clause 11 asserted that enemy aliens who were registered could not be naturalized except under special circumstances. Other orders soon followed under the War Measures Act. Order-inCouncil PC 2758, approved on 30 October, identified cities across the country where registration offices would be established: Sydney, Montreal, Ottawa, Fort William, Welland, Winnipeg, Regina, Calgary, and Edmonton. (Victoria and Brandon were added after local protests there proved effective.) Order-in-Council PC 2817, approved on 6 November, designated Major-General William Otter, a professional soldier with extensive military and administrative experience, as the officer commanding the Internment Operations Directorate.48 He would exercise command over all operational aspects of internment and have military forces placed at his disposal. This followed the logic contained in Clause 7 of Orderin-Council PC 2721, which declared that interned enemy aliens would be treated as prisoners of war. Internment would be a military operation coming under the authority of the militia. Other executive orders relating to registration and internment were to be introduced as needed. In the main, however, it was PC 2721 that would shape conditions and had the most effect on the greatest number of enemy aliens. The public announcement accompanying the order, which appeared in the press, stated that the objective was “the effective control and supervision” of persons of alien-enemy origin.49 Although acknowledging that a majority of such people were perfectly peaceable and posed no threat, the government noted that, potentially, there were enemy aliens who had hostile intentions. The government, therefore, had an obligation to distinguish between them and the majority. In this regard, the registration

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of enemy aliens and the internment of those who in the interest of the public safety could not be at liberty were seen as both a necessity and a duty. Despite being ambitious in its reach, registration had a purpose that was both legitimate and permissible in the context of security measures required under wartime conditions. Almost as an afterthought, however, the announcement added that those enemy aliens who “would not be in a position to maintain themselves” would be treated as prisoners of war in accordance with the general rules of international law, particularly those enacted by the 1899 Hague Convention and identified in the convention’s Annex.50 The first objective, to intern as prisoners of war those who could not safely be at liberty, was now extended to include those who could not provide for themselves. The executive order, in effect, had collapsed two categories of individuals. But far more importantly, in treating both identically, so that either could be interned as prisoners of war, the government gave credence to the idea that the jobless enemy alien was, in fact, a security threat. It was an extraordinary development that would have enormous implications, changing the scope and character of internment. Yet the security dimension of Order-in-Council PC 2721 overshadowed other aspects that suggested some positive elements. Among other things, the order sought to alleviate the distress of unemployed enemy aliens. Clause 9, for instance, acknowledged the difficult circumstances that confronted not only the enemy alien but also their dependants. The goal was not to intern their dependants but rather to aid and assist them in their desperate plight. Further, Clause 6 of the ordinance permitted exeats, or permits to leave the country, to be issued to those who were able to demonstrate that they would not be of service or value to the enemy. As a matter of practice, at least initially, arrests of the unemployed were not routinely undertaken, suggesting that the order-in-council was conceived with limitations in mind. Evidence of the government’s recognition of the worsening situation and the need for assistance was provided as early as November 1914 when the minister of justice recommended to the Privy Council that $1,000 was to be appropriated “for the immediate relief of the most urgent and deserving cases” in the cities of Montreal and Port Arthur where the situation was deteriorating in the extreme.51 The rationale and preferred approach was to administer aid – not to use the blanket authority conferred by the executive order. From this perspective, it is not surprising that Order-in-Council PC 2721 would be interpreted in the press as a gesture that sought to ease the plight of the enemy alien. It was reported, for example, that those

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interned would be provided with employment opportunities, giving the impression that internment was a make-work program. Internment camps were additionally described as places of detention where enemy aliens would be fed and sheltered, suggesting once again that the government was animated by a sense of altruism and fairness. Indeed, the argument, as set out in the Montreal Gazette, was as follows: “To them a country owes a duty. They came here, some on the invitation of the Government, extended through the immigration service, and some at the suggestion of men who needed their labour. They are generally industrious and would not be idle if they had their choice. They cannot get work and they cannot return to their homes. Their detention under honorable restriction is the only apparent way of saving the most of them from risk of starvation and temptation to crime.”52 The statement reflected a sense of obligation. Nevertheless, PC 2721 incorporated an underlying dualism; although officials sought to avoid any suggestion that their aim was to punish or injure, at the heart of the order (and of the War Measures Act more generally) was the power to put into place restrictive measures – the supervision and control of enemy aliens – that by definition were penalizing. There was an element of uneasiness with pursuing a course of action that targeted a class of individual on the basis of birthplace, but it was also the case that the ordinance was enacted to ensure that discontent among the unemployed enemy alien would not translate into riots and other forms of social unrest. As such, PC 2721 was infused with a particular meaning, perhaps not entirely intended but consequential nonetheless. That the matter of supervision and control was to be taken seriously was reflected in the government’s charge to the registrars. Registrars were to make due inquiry of the persons brought before them.53 Answers were to be carefully recorded and copied onto a pass card that was to be carried by the registered alien at all times and shown on demand to police, militia, or any other monitoring officer. In this regard, the registrars were instructed to use discipline and critical judgment in their assessment of the status and intentions of the enemy alien. “You will realize that the duties of the Registrar are not merely clerical,” stated the orders from the Department of Justice. “The proper discharge of duties demands that you should make due enquiry to ascertain the facts and exercise judgment and therefore it is necessary that you should personally consider the particulars of each case.”54 Furthermore, “you should communicate any other information which your enquiries may elicit and which you may think advisable to be considered in the public interest.” Police duties were to be attended to by the chief of the local police at the registrar’s request

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while the process of investigation, registration, and supervision of the target enemy-alien population would be the responsibility of the Dominion chief commissioner of police whose forces were augmented as a result of the increased workload. Underlying the registration of enemy aliens was a major policing operation. Significantly, the instructions from the Department of Justice ordered the registrars to interrogate and surmise, on a reasonable basis, whether the information offered was true; for example, whether those questioned were employed or had the necessary means to maintain themselves.55 The conclusions drawn, however, would depend on individual assessment, and, indeed, personal judgment, allowing for a broad interpretation. It was this discretionary power of the registrars (and other designated officials to whom enemy aliens would report outside the centres identified by the government) that became an important feature in the decision to intern, as did the wide powers of arrest awarded to police and militia under the War Measures Act. When Ivan Milan was made a prisoner of war, the crime report cited that the cause for his arrest was that “he would be one of the first men to do any act that would hurt either the military or police, if by doing so he could earn a dollar of any kind.”56 Thomas Koch was similarly arrested and interned for no less a charge than “acting in an ugly and suspicious manner.” The RNWMP superintendent of the Regina District recommended Koch’s internment on the grounds that “he would not be put to any trouble, while he might give us trouble.”57 The spurious nature of the arrests derived from conjecture and pre-conceived notions about the dangers enemy aliens posed. What made this possible was precisely the direction given to the officers of the crown to act in the public interest, which within the climate of anxiety and enmity necessarily meant they might simply act on their suspicions, fears, and bias. Registration offices were set up in those municipalities where, it was felt, unemployed enemy aliens would gravitate in search of both work and relief and where they would invariably concentrate. By requiring them to report, officials could interrogate and scrutinize enemy aliens on an ongoing basis, ascertaining whether they were in a position to maintain themselves. This provided for their control. But, from a wider security perspective, it was also felt that where the greatest number of unemployed enemy aliens was to be found, disturbances were likely to occur. Registration, therefore, provided the means by which to assess and intervene before even larger problems could arise. For this to work, it meant that all enemy aliens within the designated areas would have to register and report.

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Yet the reality was that the numbers registering and reporting were less than expected. The situation was worrisome. Underscoring the government’s determination to ensure compliance, Order-in-Council PC 2721 was amended on 18 November. The revised order required registered enemy subjects to report more frequently while also insisting on a more comprehensive pledge of loyalty as a sign of acquiescence. More immediately, however, the police effort to uphold the order intensified. In a position to arrest and detain, police and militia increasingly approached those even remotely suspected of being an enemy alien and demanded evidence of their registration. Failing to produce the necessary paperwork, they were brought before a registrar or magistrate for processing. Indiscriminate arrests, including of naturalized citizens, resulted. Despite their protests, into the camps they went. And like John Kondro, the son of a naturalized citizen and therefore a British subject who could not produce papers at the time of his arrest, they would have to wait for release from internment as their appeals were being investigated.58 In the meantime, they were treated as prisoners of war. Although the registration bureaus were welcomed in the targeted cities, not everyone was satisfied. As the chapter by Jonathan Swainger notes, anti-alien sentiment in western Canada prompted prosecutions for seditious utterances. Resenting the presence of “enemies” generally throughout the country, the Calgary Herald declared that the steps taken were futile if not pointless. Nothing would come of monitoring the enemy alien, so the argument went, since “the fact of having to report once a week is no deterrent to a man determined to vent his spite on the enemies of his country.”59 Martial law, the Herald and like-minded voices maintained, was what was needed, leading to the suggestion that the military and police be given “a free hand” in dealing with a problem that was menacing the country. Public talk of martial law, and more fundamentally the issuing of Order-in-Council PC 2721, had predictable consequences. Cast in the role of enemy, the alien of German or Austro-Hungarian origin now faced the real and imminent possibility of internment as a prisoner of war. Within this context, the majority chose a watchful approach. Others, especially those experiencing difficulties in finding and holding on to permanent work, chose to ignore the registration order altogether. For an enemy alien without work, the act of registering or reporting increasingly meant internment. The prospect of doing neither, therefore, seemed a better alternative. As a direct result, the enemy alien who avoided registration and reporting only served to heighten the public’s unease and suspicion.

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The unemployed enemy alien was now understood to be not simply a potential but a real threat, for why else would they fail to register or report if not to do harm? The immediate effects were to strengthen the view of the unemployed alien of Austro-Hungarian or German origin as an actual enemy and to increase the sense of wariness among the registrars and police magistrates who now possessed the discretionary powers to intern. Not surprisingly, having been discovered, thousands would soon be arrested and interned. Among the number were Ilia Petraschuk and four of his companions. “Captured” in the city of Calgary and sent down to the Banff internment camp, they were all charged with the “crime” of being in absolute want and failing to report for six months.60 Increasingly, within the atmosphere of pronounced uncertainty, some aliens of enemy origin attempted to pre-empt the process of registration by acquiring naturalization with the hope that citizenship would afford protection. This resulted in an observable increase in the number of applicants who were long-term residents of the country.61 The rush towards acquiring citizenship did not go unnoticed and the British Imperial Association of Toronto, for one, objected to the granting of naturalization to Austro-Hungarian and German subjects during the war.62 In the Canadian west, newspapers called upon the naturalization of enemy subjects to be suspended altogether. In response, the government sought to appease its critics by making the naturalization process more rigorous, requiring several individuals with standing in the community to vouchsafe for each and every applicant.63 Multiple referees acting as guarantors in the naturalization process, however, failed to satisfy the more unyielding critics of the government. In Ottawa, objecting to enemy aliens applying for citizenship, several prominent community figures intervened in the local naturalization proceedings.64 In Vancouver, Justice David Grant rejected multiple applicants on the basis of insufficient documentation, unapologetically declaring in the case of two ethnic Poles that since there was “a two-to-one chance of their being alien enemies, they would have to establish without a doubt they were not [enemy aliens] or their applications would be laid over until the peace is declared.”65 In British Columbia’s East Kootenay district, Justice George Herbert Thompson refused to grant naturalization certificates to Austro-Hungarian and German applicants on the grounds that, being in a state of war, as enemy subjects, “they had no status to apply for any civil rights in our courts.”66 But it was the celebrated case of Professor P.W. Mueller, dismissed from his teaching position at the University of Toronto, which underscored the

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essential anti-alien nature of the entire approach. A resident of Canada for twenty years but never naturalized, Mueller hoped that he might be restored to his teaching post by acquiring citizenship. When asked, “Whom do you want to win this war?” Mueller responded that it was an unfair question. The presiding judge rebuked the good professor, sharply retorting that the query was well within the purview of the court. The judge asked again, “Do you want to see Britain victorious?” Mueller replied in the affirmative, only to have his application for naturalization rejected.67 For Mueller and others in a similar predicament, the prospect of acquiring citizenship through naturalization held out the promise that they might yet be protected from the suspicions and harsh treatment accorded to persons of enemy birth. It was a desperate strategy, which in the end proved futile. The process of identification and registration was skewed to ensure that, once a designated enemy, an enemy they would remain. Isolated and without protection, the alien of enemy origin would be exposed to petty insults and rulings that would make their lives even more miserable and depressing. With nowhere to hide and nowhere to turn, they endured the indignities of being identified as an enemy, all the while fearing they would be interned and made a prisoner of war by the country they called home. internment and rights: a postscript The 15 August 1914 proclamation was initially conceived as a balance between security and rights. It failed, however, in its very essence. Targeting a population on the basis of birthright, the proclamation singled out a select class of individuals and through negative inference implied that they were enemies. This not only coloured the public’s perception of the aliens, adding to their already difficult situation, but also conceptually framed the war measures that would be used against them. The war constituted the wider context in which security measures could be taken and the deteriorating labour situation provided the immediate reason why war measures would be taken. But it was the proclamation that invoked the rationale as to why and against whom actions would be taken at all. There were enemies in the land and precautions were needed. Order-in-Council PC 2721 issued under the new War Measures Act followed, and its cumulative effect proved to be an important development in the lives of many enemy aliens. There was, of course, the obligation to register and report following from the perceived need to monitor the enemy-alien population. But PC 2721 was designed with more in mind.

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It anticipated the management and control of the enemy alien by way of internment, and once it was accepted that management and control was needed, internment expanded rapidly. In particular, Clause 7 of the ordinance obliged enemy aliens to answer whether they had “the means to remain in Canada conformably to the laws and customs of the country.” Being destitute, they were, in this way, candidates for internment. Once charged, they were, with few exceptions, made prisoners of war under these provisions. Within four months of the introduction of the ordinance, the numbers interned increased fourfold, with 2,294 enemy aliens behind barbed wire. In the designated cities and towns, an additional 36,620 were required to report. By the end of June 1915, the number of internees had nearly doubled, totalling some 5,088, with over 60,000 reporting. These numbers would continue to increase, but only incrementally as enemy aliens sought to hide and stay clear of authority. As for those handed over to the military for internment, they would be sent to one of the twenty-four camps created across the country.68 Under Order-in-Council PC 2721, enemy aliens would be forced to work for their “own maintenance and welfare” as prisoners of war. Within these camps, located on the frontiers of the Canadian wilderness, they would be exposed to a harsh environment and even harder conditions. Subject to a military regime, they would be disciplined and punished in accordance with the laws of war for refusing to work and disobeying orders. Under constant guard, they faced the prospect of being shot if attempting to escape. Perplexed and confounded, many endured years behind barbed wire, all the while failing to understand why they were being treated as prisoners of war. But prisoners of war they were and as such would be treated in a manner that was in keeping with their status, including their use as prison labour.69 The labour required of interned enemy aliens followed the international understanding governing prisoners of war, which maintained that they might work for their own keep and well-being. Working for their own keep, however, assumed a different interpretation than that provided for by the laws of war.70 The point of the work was not the promotion of hygiene and well-being. Rather, forced to work on public projects, they would indirectly pay for their own internment. But, more to the point, the work provision associated with the prisoner-of-war designation also crudely enabled the government to address the problem of their unemployment while allaying the concerns and resentment of an anxious and agitated public. Of course, this could occur only if the government

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War Measures Act internees cutting timber at the Spirit Lake Camp in northern Quebec, c. 1915–17. Source: LAC, Ernest Scrase Fonds, PA188466.

avoided the obligations owing to those it invited to its shores and ignored the basic tenets of justice and fairness.71 There would be no better illustration of the government’s moral failure than the June 1915 Order-in-Council PC 1502, declaring that enemy aliens competing for jobs would be interned. The order, used to dismiss hundreds from their places of work while sanctioning their subsequent arrest and internment, underscored the deeper meaning and purpose of the war measures – including internment. Security was cited as the reason for the measure. Yet the concept was now so expanded as to make it virtually meaningless if not unrecognizable, a parody of the original idea and intent. It also could have been introduced only on the understanding that these recent arrivals did not constitute part of the body politic; that they were in fact enemies. And yet, here they were, in Canada, having come voluntarily to the country with hope and promise. How then to resolve the seemingly irreconcilable? The difference between friend and enemy could not be successfully bridged, so the government sought to avoid the impression that internment was a punitive measure. Indeed, among certain officials, internment was even inter-

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preted as being an altogether altruistic gesture, having saved the unemployed enemy alien from hunger and the misery of poverty. This, clearly, was a varnished representation of the situation. Order-in-Council PC 2721 interned enemy aliens as prisoners of war and made them labour as such. No matter how it was presented, there was no evading the obvious. Not everyone was comfortable with the actions taken, warning that these were ill-conceived and potentially harmful to the long-term interests of the country. They argued for common sense, empathy, and tolerance. Those who had made Canada their home and were affected by the vicissitudes of war needed to be reassured that their decision to migrate was justified and the country was just and fair by way of its commitment to uphold and respect basic rights and freedoms. As the Manitoba Free Press reasonably queried: While we are at war with Germany and Austria today and would misuse, persecute and deprive these people of their liberty while they are peaceably going about their business, what impression are we going to make on the rest of the world that is now at peace with us; yes, and even our Allies today? What guarantee have the people of Denmark, Norway, Sweden, Russia and the United States or any other country that perhaps in the near future we will be at war with, that their turn will be next to receive from our hands the same treatment as we are proposing to give to the Germans and Austrians now because we are at war with their countries?72

Only by giving consideration to the issue of rights would a lasting, positive impression be created, reassuring all who would make Canada their home that there was nothing to fear and much to admire in a country they would claim as their own. And only by giving consideration to the issue of rights could some semblance of security at least be had. Notes   1 See, among other works, B. Kordan, Enemy Aliens, Prisoners of War: Internment in Canada during the Great War (Montreal and Kingston: McGill-Queen’s University Press 2002); L. Luciuk, In the Fear of the Barbed Wire Fence: Canada’s First National Internment Operations and the Ukrainian Canadians, 1914–1920 (Kingston, ON: Kashtan Press 2001); and B. Waiser, Park Prisoners: The Untold Story of Canada’s National Parks, 1915–1946 (Saskatoon: Fifth House 1995).   2 See, for example, J. Farney and B. Kordan, “The Predicament of Belonging: The Status of Enemy Aliens in Canada, 1914,” Journal of Canadian Studies, 39,

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  3

  4

  5   6   7   8   9 10 11 12 13 14 15 16

no. 1 (2005): 74–89; J. Carruthers, “The Great War and Canada’s Enemy Alien Policy,” Queen’s Law Journal, 4 (1978): 43–110; F.M. Greenwood, “The Drafting and Passage of the War Measures Act in 1914 and 1927: Object Lessons in the Need for Vigilance,” in W. Pue and B. Wright, eds., Canadian Perspectives on Law and Society: Issues in Legal History (Ottawa: Carleton University Press 1988), 291–327; and P. Peppin, “Emergency Legislation and Rights in Canada: The War Measures Act and Civil Liberties,” Queen’s Law Journal, 18, no. 1 (1993): 129–90. Public anxiety was largely misplaced, according to the evidence. The chief commissioner of the Dominion Police, Lt.-Col. A.P. Sherwood, noted from a general reading of police reports that there was no evidence anywhere in the country that enemy aliens were organizing and that the rumours, of which the principal source was the press, were “altogether exaggerated and wholly founded on individual utterances, behind which there is no effective organization.” See LAC, Robert Borden Papers, MG26, H1(c), vol. 191, reel C-4388, 105989, A.P. Sherwood, chief commissioner of police, 4 Sept. 1914; and ibid., 106024, Prime Minister Robert Borden, 7 Sept. 1914. Byron Lew and Marvin McInnis, “Guns and Butter: World War I and the Canadian Economy,” http://www.trentu.ca/economics/WorkingPapers/ LewMcInnis_Toronto_05.pdf. United States National Archives, State Department Records, 763.72115/274, W.H. Bradley, U.S. Consulate, Montreal, 17 Nov. 1914. Ibid. LAC, Robert Borden Papers, MG26, H1(c), vol. 191, reel C-4388, 106133–4, Sir Hugh J. Macdonald, 28 Sept. 1914. LAC, RG6, H3, vol. 793, file: 2165B, Rev. M.C. Kinsale, Presbyterian Mission to the Foreigners, Sydney, 24 Sept. 1914. Ibid., Thomas Mulvey, under-secretary of state, 29 Sept. 1914; and Col. A.P. Sherwood, chief commissioner of Dominion Police, 30 Sept. 1914. LAC, RG18, vol. 1770, file: 1914, no. 170 pt. 92–100, Cpl. G. Binning, RNWMP detachment, North Portal, 18 Sept. 1914. LAC, RG4, vol. 4413, file: 26-3–12 – vol. 2, officer commanding 3rd Division, 22 Aug. 1914. LAC, RG76, vol. 603, file: 884866(2), W. Homan, immigration inspector-incharge, Niagara Falls, Ottawa, 26 Aug. 1914. Winnipeg Tribune, 4 Aug. 1914. Ibid., 7 Aug. 1914. Edmonton Bulletin, 3 Sept. 1914. Manitoba Free Press, 21 Sept. 1914. A somewhat similar view was expressed by the German Alliance of Saskatchewan, which communicated to Ottawa

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17 18 19 20 21 22 23 24

25 26 27 28 29 30 31

32 33

that it had received assurances from a great number of German farmers who were prepared to care for one or more unemployed by bringing them on to the land and providing work, food, and shelter. See LAC, Borden Papers, MG26, H1(c), vol. 191, reel C-4388, 106103–7, German-Canadian Alliance of Saskatchewan, 21 Sept. 1914. See, for example, Winnipeg Free Press, 14 Sept. 1914. Calgary Daily Herald, 10 Sept. 1914. Ibid., 26 Aug. 1914. LAC, RG24, vol. 4278, file: 34–1–3(8), letter signed “british waiters,” 11 May 1915; and A.A.G. 2nd Division, Toronto, 15 May 1915. Calgary Daily Herald, 27 Aug. 1914. Ibid., 28 Aug. 1914. Ottawa Evening Journal, 23 Oct. 1914. The interruption in commerce with Europe led to a large number of the logging mills across the country scaling back operations. Jobs were shed not only in the Ottawa valley but also in New Brunswick and on Vancouver Island as lumber mills began decreasing production in direct response to falling demand. Also hard hit, however, was the export-driven manufacturing sector in Ontario and Quebec, which in turn collaterally affected the mining and steel industries of Nova Scotia as well as transportation across the entire country. In the end, tens of thousands of workers were released from a range of industries, with a great many heading to the major cities in search of jobs and relief. In doing so, they would add to the stress of municipalities already attempting to cope with the large number of unemployed. Ottawa Evening Journal, 7 Aug. 1914. Ibid., 9 Sept. 1914. Ibid. Ibid. LAC, RG76, vol. 486, file: 752149 – pt.1, “W.S.D.-2” Report of Malcolm Reid, Immigration Branch, Vancouver, n.d. Montreal Gazette, 27 Oct. 1914. The secretary of the Charity Organization Society, Rufus D. Smith, would write to the Montreal Board of Trade: “We probably have somewhere between five and eight thousands of these men, mostly single, and the majority [enemy] reservists, in the city. Such a body of men, starving and in great distress, may become a serious menace this winter.” Montreal Gazette, 24 Oct. 1914. Free Press, 24 Oct. 1914. Montreal Gazette, 27 Oct. 1914. Members of Montreal’s Board of Trade, as organizers of the meeting, solicited support for their position from other

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34 35 36 37 38 39

40 41 42 43 44

45 46 47 48 49 50 51 52 53

municipal boards of trade. They were not to be disappointed, receiving several endorsements. See, for example, LAC, Borden Papers, MG26, H1(c), vol. 191, reel C-4388, 106266, F. Morley, Toronto Board of Trade, 31 Oct. 1914. LAC, Borden Papers, MG26, H1(c), vol. 191, reel C-4235, 21167, Colonel S. Hughes, minister of defence and militia, 18 Aug. 1914. Ibid. Ibid., reel C-4388, 105935, Sir Thomas Shaughnessy, 26 Aug. 1914. Ibid., 105941, Sir Robert Borden, 27 Aug. 1914. Ibid., 105951, Arthur Meighen, solicitor general of Canada, 28 Aug. 1914. Meighen was not the only advocate of “a back to the land” movement. The plan made for a public debate carried on the pages of the major dailies. See, for instance, Vancouver Sun, 27, 28, 30 October, 2 November. The idea of assisting the unemployed in acquiring plots of land that would help them while alleviating the unemployment problem was endorsed by the mayor and city administration of Calgary as well as the Regina Board of Trade. See Calgary Daily Herald, 29 Oct. 1914, and Edmonton Bulletin, 25 Nov. 1914. LAC, Borden Papers, MG26, H1(c), vol. 191, reel C-4388, 105995, Arthur Meighen, 4 Sept. 1914. Ibid., vol. 192, reel C-4446, 169306, Sir Robert Borden, 20 Oct. 1914. Ibid., vol. 191, reel C-4388, 106260, Sir George Perley, Canadian high commissioner, 22 Oct. 1914. Ibid., 106262, L. Harcourt, secretary, Colonial Office; and ibid., 106258, Sir George Perley, 30 Oct. 1914. LAC, RG2, vol. 5299, file: 1915–2794, copy of letter, A. Chevalier, director, Philanthropic Societies of Montreal, 17 Sept. 1914. See also Montreal Gazette, 19 Oct. 1914. LAC, Borden Papers, MG26, H1(c), vol. 191, reel C-4388, 106153–4, Sir Robert Borden, 3 Oct. 1914. See, for example, Montreal Gazette, 28 Oct. 1914. LAC, RG76, vol. 603, file: 884866 (3), W.D. Scott, superintendent of immigration, 23 Sept. 1914. For an account of the life and times of General Otter, see D. Morton, The Canadian General Sir William Otter (Toronto: Hakkert 1974). See Montreal Gazette, 28 Oct. 1914. Ibid. LAC, RG2, vol. 1104, file: 1176 E, “Enemy Alien Relief,” 25 Nov. 1914; and LAC, G2, vol. 3620, file: 1175–6, PC 2966, 25 Nov. 1914. Montreal Gazette, 30 Oct. 1914. The line of questioning followed similar questions found in the British memorandum on rules to be observed by police with regard to apprehended enemy

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54 55

56 57 58

59 60 61

62 63 64 65 66 67

aliens. The British document was forwarded to the Canadian government and appears to be the basis for the language contained on identification papers held by registered enemy aliens that were to be presented to police or militia on demand. For a copy of the British document, see LAC, Robert Borden Papers, MG26, H1(c), vol. 287, reel C-4440, 106771–2, “Instructions Relative to the Internment and Treatment of Enemy Subjects,” n.d. LAC, RG13, A2, vol. 191, file: 139–59, E. Newcombe, deputy minister of justice, “Registration of Enemy Aliens,” 19 Nov. 1914. It was reported, for instance, that in addition to the official set of queries, the Calgary registrar, Inspector Pennefather, posed a series of other questions. “These he would not disclose, deeming it inexpedient.” Calgary Daily Herald, 7 Dec. 1914. LAC, RG18, vol. 1779, file: 170, Summary remarks, RNWMP report, Yorkton Saskatchewan, re. Iwan Milan, 2 Jan. 1915. LAC, RG18, vol. 1770, file: 170, RNWMP Superintendent, Regina District, re. Thomas Koch, 27 April 1915. Kondro’s father, who had claimed naturalized citizenship for himself and his son, appealed to local military authorities for his son’s release. The appeal was passed along the military chain of command. As time passed, unable to endure any longer the trials associated with his internment at a camp in the Canadian Rockies, the young Kondro made a dash for the bush under a hail of bullets fired by guards in pursuit. He would make his own way to freedom regardless of the incontrovertible evidence that he was a British subject behind Canadian barbed wire. For a detailed account, see B. Kordan and P. Melnycky, In the Shadow of the Rockies: The Diary of the Castle Mountain Internment Camp, 1915–1917 (Edmonton: CIUS Press 1991), 6. Calgary Daily Herald, 12 Nov. 1914. LAC, RG117, vol. 14, file: “Correspondence – Release of Prisoners,” Prisoner Arrest Records Submitted for Release Consideration, 31 May 1916. Vancouver Sun, 3 Dec. 1914. In Vancouver alone, for example, it was reported that no less than 1,550 aliens had applied for naturalization since the start of the conflict, which exceeded the number recorded for the previous eight months of the year. See ibid., 7 Dec. 1914. LAC, Robert Borden Papers, MG26, H1(c), vol. 191, reel C-4388, 106273, British Imperial Association (Toronto), 2 Nov. 1914. Calgary Daily Herald, 3 Nov. 1914. Ibid., 4 Nov. 1914. Vancouver Sun, 3 Nov. 1914. Ibid., 28 Nov. 1914. Daily British Whig, 5 Dec. 1914; Edmonton Daily Bulletin, 17 and 25 Dec. 1914.

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68

69 70 71 72

On the Mueller case, see LAC, Robert Borden Papers, MG26, H1(c), vol. 192, reel C-4388, 106371–4, Sir Edmund Osler, University of Toronto chancellor, 27 Nov. 1914, and Sir Robert Falconer, 28 Nov. 1914; and ibid., 106409–10, F. Neithdor, n.d. For descriptions of the internment operations, see Kordan, Enemy Aliens, Prisoners of War; and L. Luciuk, Without Just Cause: Canada’s First National Internment Operations and the Ukrainian Canadians, 1914–1920 (Kingston, ON: Kashtan Press 2006). See Kordan, Enemy Aliens, Prisoners of War, 90–115. For a comparative discussion regarding the use of enemy aliens as prisoner of war labour during the Great War, see ibid., 52–89. On the question of obligations and responsibilities, see ibid., 30–51. Manitoba Free Press, 17 Nov. 1914.

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2 Enemy Aliens in the First World War: Legal and Constitutional Issues P E T E R M cD E R M O T T

Sir Harold Nicholson, in his biography of King George V, wrote: “At the time of King George’s accession in 1910, the sovereignty of the British Crown and Parliament over the whole Empire was still unimpaired.”1 This was certainly still the case on 4 August 1914 when the United Kingdom declared war on Germany. On that very same day the secretary of state for the colonies sent a telegraphic despatch to the governor general to inform him that “war had broken out with Germany” and advice of this despatch was soon after published in the Canada Gazette.2 This imperial declaration of war bound the whole British empire, including Canada.3 It would have been inconceivable for Canada to issue its own declaration of war. Earlier in 1910, Sir Wilfrid Laurier had presciently observed: “When Britain is at war, Canada is at war. There is no distinction.”4 From the outset of the Great War, Ottawa recognized the authority of the United Kingdom government to conduct war. On 4 August 1914 an order-in-council placed HMCS Niobe and HMCS Rainbow together with the officers and seamen serving in these vessels “at the disposal of His Majesty for general service in the Royal Navy.”5 The Canadian government was, however, reluctant to accept imperial command of Canadian troops. Initially, the first Canadian division was regarded as part of the imperial army until Sir Robert Borden had obtained a legal opinion to vindicate his wish for the Canadian Corps to be under Canadian command.6 Throughout the war the imperial government, mainly through the Colonial Office, also issued various directives to ensure the effective

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prosecution of the war. Imperial directives required the local registration of aliens, as in the United Kingdom under the Alien Restriction Act, 1914,7 which enabled Whitehall to add to a comprehensive register of aliens that had been secretly compiled before the war. This register contained details from the 1911 British census of those male aliens who lived in sensitive areas which would be closed to them during wartime, such as naval bases and important installations.8 On 20 August 1914 the colonial secretary (Lewis Harcourt) sent a confidential circular throughout the empire addressed to the governors general of Canada, Australia, South Africa, and New Zealand as well as to each “Officer Administering the Government” of each British colony.9 Attached to the circular was a copy of the Aliens Restriction Act, 1914,10 as well as the order-in-council of 5 August 1914 which required all aliens (and not just enemy aliens) to register themselves at the local registration office. Section 1(1)(f) of the act provided that an order-in-council could be made only for “aliens residing in the United Kingdom.” Yet the circular nonetheless indicated Whitehall’s expectation that there would be the systematic registration of enemy aliens in the empire. The circular was certainly regarded by the Canadian government as a binding directive.11 This chapter complements the previous chapter’s examination of the local experiences and plight of enemy aliens in Canada by focusing on the particular legal and constitutional issues raised by their treatment. It does so from a comparative perspective. The United Kingdom not only controlled Canada’s foreign policy but also significantly influenced domestic security policies. British legal and constitutional precedents continued to have authoritative weight on Canadian laws and the legacies of colonial supervision continued with London’s ongoing role in judicial and legislative review. Imperial legislation and security directives coordinated imperial intelligence and governed matters such as the status of British subjects and aliens throughout the empire. Canada was similarly situated in this respect to Australia, where Germans were the largest group of non-British immigrants and there were similar legacies of discrimination and experiences of registration and internment. As we shall see, during the course of the war Canada and Australia adopted more sweeping legislated war measures than the United Kingdom, where more limited temporary war measures were enacted and there was heavier reliance on prerogative rather than statutory powers. The measures introduced to mobilize and restrict residents in Canada and Australia reflected the determination of the Dominion governments to support the British war effort but to do so, in significant part, by wide exercise of their own legislative powers.

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enemy aliens in canada and the war measures act At the outbreak of war there were large communities of enemy aliens or persons of enemy origin in Canada. The 1911 census recorded that in Canada 200,000 residents originated from Germany or the AustroHungarian empire,12 of whom some 120,000 were classified by the Canadian authorities as “enemy aliens.”13 The largest group of enemy aliens originated from Germany, but many came from the Austro-Hungarian empire, and a sizeable proportion of these were Ukrainians. The 1911 census recorded some 121,430 persons from the Austro-Hungarian empire, who mainly resided in the prairie provinces. Most enemy aliens were recent arrivals, less than 2 per cent having arrived before 1890. Some 37,731 persons were in Manitoba; 35,482 in Saskatchewan; 21,112 in Alberta; and 15,555 persons in Ontario. The 1911 census recorded that 39,577 Germans lived in Canada. The Germans mainly resided in Ontario (15,010), Saskatchewan (8,300), Alberta (6,012), Manitoba (4,294), and British Columbia (3,104). There were also 4,768 Turks and 1,666 Bulgarians. The 1911 census also documents that, out of over 300,000 “American-born” persons, some 45,374 were of Germanic origin and 1,804 were of Austro-Hungarian origin.14 The enemy aliens who were not naturalized were a particular concern of the authorities. As explained in the Introduction to this volume, the Canadian government responded to the perceived need for emergency wartime legislation with the swift passage of the War Measures Act, 1914.15 As one opposition member remarked: “Make absolutely sure that you omit no power that the Government may need.”16 The act also had retroactive effect to the start of hostilities. This was intended to ensure that both the Canadian and imperial governments could not be sued for certain acts which had been done at the outbreak of war, including the arrest of a number of “dangerous aliens” who were detained in the Halifax Citadel and other places in Canada.17 The legislation was an ambitious assertion of the federal government’s jurisdiction and authority as Canada undertook unprecedented international commitments. The Canadian War Measures Act was assented to on 22 August 1914. In the September 1914 a similar War Measures Act was passed in Newfoundland.18 The wide-reaching powers conferred on the Canadian government under the War Measures Act were subsequently upheld by the Judicial Committee of the Privy Council under section 91 of the British North America Act, 1867 (Imp.), which enabled the federal Parliament to make laws for the “peace, order and good government of Canada.”19 The sweeping pow-

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ers under the War Measures Act included censorship, arrest, detention, exclusion and deportation, control of transportation by land, air, and water, and the regulation or appropriation of trade, production, and manufacture. Many of these powers involved matters that would ordinarily be within the legislative competence of the provinces.20 In one Newfoundland case the Supreme Court held that the authority conferred by the order of the governor in council must not be exceeded so that an order which authorized the seizure of issues of a newspaper did not authorize the detention of printing equipment.21 There was no provision in the War Measures Act for parliamentary scrutiny or disallowance of any ordersin-council or regulations that were made under the act. Indeed, an orderin-council came into force when it was made and did not depend for its efficacy upon Parliament’s approval.22 The War Measures Act therefore enabled the executive branch of government to intervene in all aspects of Canadian life and to do so in an unconstrained manner. It has been observed: “That was the bill’s intention, and in the short term the act proved both effective and relatively uncontroversial. As the war become dreary and long, however, the act became a dangerous temptation for a government facing political troubles. For those opposed to the government’s policies, the existence of this act which bestowed dictatorial powers on the government was thoroughly frightening.”23 The act had a profound effect on the rights of aliens. In the previous chapter, Bohdan Kordan has outlined how the activities of enemy aliens were regulated by orders-in-council that were issued under the authority of the act. Orders in council were issued to provide for the registration of enemy aliens before local registrars in major cities in the Provinces.24 By July 1915 registration offices had been established in Sydney, Ottawa, Toronto, Brandon, Regina, Calgary and Victoria.25 One aim of the Canadian government was to prevent German officers and reservists from returning to Germany, either directly or through the United States, as some had already done. After the outbreak of war, one order-in-council required an enemy alien to obtain an exeat from a registrar before leaving Canada.26 However, as noted by Kordan, this blanket restriction imposed hardship on enemy aliens, many of whom were unskilled and who sought employment in the United States at a time of contraction of the Canadian economy. This harsh policy was in accordance with firm imperial directives to Borden to prevent the movement of enemy aliens into the United States.27 In 1915 the Canadian Government made one exception to this policy by issuing an order-in-council enabling labourers of Austro-Hungarian or

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German nationality in Vancouver to go to the United States to seek employment rather than be a charge on the country providing that these workers undertook not to fight for the enemy: the order-in-council was not published in the Canada Gazette.28 the status of enemy aliens and naturalized british subjects from enemy powers After the declaration of war, enemy aliens who lived in Canada were justifiably concerned about their position. The Canadian government issued a series of proclamations directed at Germans, Austro-Hungarians, Turks, and Bulgarians in an endeavour to allay their concerns and to advise them that they would not be detained unless they engaged in acts of a hostile nature or contravened the law. A general proclamation that was published on 2 September 1914 provided: “That all persons in Canada of German or Austro-Hungarian nationality, so long as they quietly pursue their ordinary avocations[,] be allowed to continue to enjoy the protection of the law and be accorded the respect and consideration dues to peaceful and law-abiding citizens; and they not be arrested, detained or interfered with, unless there is reasonable ground to believe that they are engaged in espionage, or engaging or attempting to engage in acts of a hostile nature, or are giving or attempting to give information to the enemy, or unless they otherwise contravene any law, order-in-council or proclamation.”29 This general proclamation was intended to give law-abiding enemy aliens some measure of assurance.30 However, as noted in the preceding chapter, it soon became clear that enemy aliens could not rely upon such assurances in the future. Kordan refers to instances of enemy aliens being detained because they competed for jobs or on the grounds of poverty rather than because they were any conceivable security threat to Canada. On 26 June 1915 the Canadian Government issued an order-in-council, which authorized “the apprehension and internment of aliens of enemy nationality who may be found employed or seeking employment or competing for employment in any community”: these aliens would be treated as prisoners of war.31 This harsh policy went so far as to authorize the internment of lawfully employed aliens and did not depend upon any justification based on security grounds. The 1915 order was not published in the Canada Gazette unlike the order-in-council of 28 October 1914 which provided for the internment of enemy aliens who “in the judgment of the registrar cannot consistently with the public safety be at large.” The policy of the Canadian

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Government changed after the sinking of the RMS Lusitania: this new policy authorized the blanket detention of enemy aliens but was not a matter of public record. Section 6 of the War Measures Act enabled orders-in-council to be made for the “detention” of persons. An order-in-council of 28 October 1914 provided for the internment of enemy aliens, clause 7 stating: “Any alien of enemy nationality who in the judgment of the registrar cannot consistently with the public safety be at large shall be interned as a prisoner of war.”32 This order was held by the courts in two wartime Canadian decisions to afford sufficient authority for the detention of an enemy alien. The decisions also held that the judgment of the registrar would not be reviewed by the court.33 As a result, the Canadian courts during wartime would not set aside the decision of the registrar unless there was some evidence that the decision was made in bad faith. In Re Beranek,34 Chief Justice William Meredith remarked: It is also, as a matter of law, quite immaterial what the opinion of any Judge, or other person, may be respecting the wisdom or unwisdom of the way in which the power is exercised, provided it is exercised in good faith; but it should be plain to every one that in the stress and danger to the life of any nation in war, the Courts should be exceeding careful not to hamper the action of those especially charged with the safety of the nation; careful, among other things, not to take up the time and attention of those who should be fighting the enemy in the field, in fighting law suits in the law Courts other private rights. It is not a time when the prisoner is to have the benefit of the doubt; it is a time when, in all things always; until the final victory is won; even though individuals may suffer meanwhile. Private wrongs can be righted then: while final defeat would not only prevent that but bring untold disaster to all.35

The decision in Re Beranek is consistent with decisions of the House of Lords during the Second World War in which it was held that wartime legislation had intended a purely subjective assessment on the part of the home secretary and that an internment order could be set aside only if it could be shown that there was a lack of bona fides on the part of the official.36 However, as is apparent from Re Beranek,37 the official in this case was not a minister of the crown who would have political responsibilities but a registrar whose decision was not subject to any review. The decision in Re Beranek38 is also not in accordance with the spirit of the Habeas Corpus Act, 1800,39 which provides that the truth of the facts that are alleged may be inquired into by the court. In any event, such judicial attitudes

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would not prevail today in view of the decision of the House of Lords in Re Khawaja40 that the factual basis for the order of the detention of a person can be questioned in habeas corpus proceedings. On 6 November 1914 an order-in-council under the War Measures Act created a military organization, under the command of Major-General Sir William Otter, for the specific purpose of interning enemy aliens.41 Some 7,762 resident enemy aliens were detained under the War Measures Act; 2,231 of these were members and reservists of enemy armed forces.42 A number of prisoners had at the request of the imperial authorities been transferred to Canada from the inhospitable climate of Jamaica.43 There were also a number of captured German merchant mariners who had been transferred to Canada. The Canadian government ensured that any enemy reservist who was found on a neutral ship would be detained pursuant to an imperial directive.44 In total, some 8,579 persons were detained by the Canadian military as prisoners of war.45 Civilian prisoners of war were required to undertake compulsory labour. In 1915 the German government objected to the work that German civilian prisoners were required to do, particularly at the Kapuskasing camp, this objection was overruled by the Canadian government.46 The particularly unjust aspect of the Canadian experience, examined by Kordan and others, is that many immigrants, particularly Ukrainians, were forced to work on public-works projects in the Canadian Rockies under harsh conditions. There was a lack of any statutory authority for such forced conscription. However, an order-in-council declared that “aliens of enemy nationality interned as prisoners of war shall be made by military authorities who may require such prisoners to do and perform such work as may be by them prescribed.”47 The Hague Convention48 allowed an interning state to utilize the labour of prisoners of war but prohibited their exploitation.49 While the Hague Convention expressly prohibited “excessive tasks” (art. 6), there was acknowledgment by the Canadian minister of justice in the last year of the war that the convention did not differentiate between those prisoners of war who were soldiers and those who were civilians.50 The use of internees for harsh labour was not in accordance with imperial policy that prevailed towards the end of the war that “interned enemy subjects are not compelled to work.”51 The legal status of enemy aliens, alien friends,52 and aliens who had become naturalized British subjects was not identical, although all aliens who resided under the protection of the crown owed related duties of allegiance.53 Detention without trial of aliens who had become naturalized British subjects was more controversial from the perspective of

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established legal and constitutional principles, discussed at further length in the section on habeas corpus below. Since Tudor times, it was recognized that there is no prerogative power to intern a subject of the crown.54 A.V. Dicey, in discussing martial law in England during a time of war or insurrection, remarked: “We must constantly bear in mind the broad and fundamental principle of English law that a British subject must be presumed to possess at all times in England his ordinary common-law rights, and especially his right to personal freedom, unless it can be conclusively shown, as it often may, that he is under given circumstances deprived of them, either by Act of Parliament or some well-established principle of law.”55 Judges during the Great War recognized that the liberty of British subjects could not be lightly taken away. For instance, in R. v Superintendent of Vine Street Police Station, ex parte Liebmann,56 Justice Low stated: “Nothing in this judgment is intended to apply to the case, should it arise of a British subject or of a friendly alien, but only to the case of an alien enemy.”57 However, as Patricia McMahon’s discussion of the Gray case in this volume illustrates, there were many exceptions. The courts tended to defer to executive powers, even in the case of subjects during wartime. This was certainly true in Canada, where executive orders authorizing detention had a legislative basis in the War Measures Act. The status of imperial Germans who later became naturalized as British subjects raised a number of complicated issues. Germans could regain their German citizenship under some circumstances despite being subject to naturalization in a foreign country. Section 25 of the German Delbrück Law (German Imperial and State Nationality Law) of 1913 provided that a German national who applied for a foreign nationality without first obtaining the permission of the German authorities lost his nationality.58 However, a German national who obtained the requisite permission from the German authorities could have both German and British citizenship and thus had dual allegiances between countries at war. In Britain, the courts did not attach special significance whether German nationality had been lost by long residence abroad or through formal discharge by a German official. This is because the Delbrück Law gave residual rights to a German who had divested himself or herself of German nationality.5 At the time of the 1911 census, significant numbers of persons of enemy origin had become naturalized in Canada: some 59 per cent of German-born immigrants and 40 per cent of Turks (though not many Bulgarians). There were more than 81,000 non-naturalized enemy aliens who had been born in enemy countries.60

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The War Measures Act did not specifically authorize the detention of naturalized persons of enemy origin and a contemporary historian noted that “an immigrant who has accepted naturalization is removed, of course, from the categories birth of enemy and alien.”61 It would appear that a person of enemy origin who was a naturalized British subject or whose father was naturalized would generally not be interned in Canada.62 However, in one reported case where the prisoner had been detained under the authority of the War Measures Act, the prisoner asserted that he was a naturalized person. The court declined to enquire into the validity of the detention where the prisoner had not obtained the consent of the minister of justice under section 11 of the act.63 Thus, even though the War Measures Act did not expressly confer any authority for the detention of a naturalized British subject, a British subject who was detained could not be released from detention without the consent of the justice minister. The imperial British Nationality and Status of Aliens Act, 1914 confirmed the existing practice of enabling the government of any British possession, which included the Dominion of Canada and the Commonwealth of Australia,64 to grant a certificate of naturalization.65 This act implemented the policy that had been determined at the Imperial Conference of 1911 that British citizenship would have force throughout the empire. It was noted in Parliament that the Canadian Naturalization Act, 191466 gave a form of imperial citizenship which would have force throughout the empire. 67 However, as illustrated by the Komagata Maru affair in May-June 1914, British subjects from other parts of the empire were subject to exclusion laws.68 With the outbreak of war, long-standing concerns about Asian migration were rapidly displaced by concerns about the “Teutonic threat.” The Australian War Precautions Act, 1914–15,69 like the War Measures Act, enabled the Australian governor general-in-council to make regulations for securing the public safety and defence of the Commonwealth of Australia. Like Canada, the Australian government wished to assert wide legislative authority and, after experience of the Boer War and the relatively recent achievement of federation, to do so as autonomously as possible. The attorney general (William M. Hughes), who later became the prime minister of Australia, pointed out in his speech before the second reading that the measure authorized regulations to “deal effectively with aliens, and, in certain circumstances, with naturalised persons.”70 The Australian War Precautions Act expressly applied to naturalized British subjects who were of German birth or origin, unlike the Canadian War Measures Act, which did not expressly abrogate the liberty of a naturalized British subject.

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A person who was naturalized in Australia gained the status of a British subject.71 The Australian measure was unconstitutional in that it was inconsistent with paramount imperial legislation which had then instituted a scheme of imperial citizenship. The Colonial Laws Validity Act, 1865 prevented the enactment of Australian legislation which was repugnant to imperial legislation that expressly extended to Australia, which had the status of a “colony.” In 1925 it was held that the Australian Parliament could not pass legislation contrary to the scheme of limitation of liability imposed by the Imperial Merchant Shipping Act, 1894.72 This constraint upon the Australian federal Parliament was not removed until the Statute of Westminster of 1931 was adopted by the Australian Parliament in 1942.73 Section 3 of the imperial British Nationality and Status of Aliens Act, 1914 gave a naturalized British citizen “to all intents and purposes the status of a natural-born British subject.” The policy of Australia in treating a naturalized British citizen differently from a natural-born British subject was contrary to this imperial statute that expressly applied to Australia. The same was not true, however, of the Canadian War Measures Act. imperial directives: treatment of enemy aliens and official secrets The colonial secretary issued various directives to the governor general of Canada on all aspects of the prosecution of the war. In 1915 the Colonial Office prohibited Canada from exporting munitions to neutral Holland which the War Office quite rightly suspected would be used by Germany.74 This had domestic consequences, not only in terms of expected restrictions on enemy aliens, but also in matters related to intelligence and espionage and the prevention of sabotage. In 1916 an aliens restriction consolidation order75 that prohibited aliens from being engaged in munitions work was promulgated throughout the empire.76 It has been suggested that the treatment of aliens in Canada was determined locally, not in Whitehall.77 However, directives from the Colonial Office provided guidance to the governor general of Canada as to which classes of enemy alien should not be interned (the imperial authorities did not impose the same restrictions on all enemy aliens). These directives were important in providing a uniform approach within the empire on the alien question. There were often doubts as to the internment of persons who were nominally subjects of the kaiser, the Hapsburgs, or the Ottoman empire but who came from communities who were traditionally hostile to such rule for religious or racial grounds. An early imperial directive

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about the treatment of certain classes of alien was issued on 17 December 1914 when the governor general was advised that “His Majesty’s Government are endeavouring to avoid arresting Czechs and other AustroHungarian subjects in the United Kingdom belonging to races hostile to Austro-Hungarian rule.” On 12 January 1915 the governor general was told that “Christian Syrians may be ignored as long as they give no cause of complaint.” Christian Syrians had been persecuted under the Ottoman Empire. There was persecution of communities of Christians Syrians in the Ottoman Empire.78 In Canada Christian Syrians with no permanent residence or place of abode were still required to register under Orderin-Council PC 2194 (20 September 1916).79 In January 1915 the Canadian governor general was advised of the Aliens Restriction (Armenian &c) Order, 1915,80 which enabled a registration officer to give a certificate of exemption to those Turkish subjects who were “to his satisfaction to be by race a Greek, Armenian, or Syrian or a member of any other community well known as opposed to the Turkish régime, and to be a Christian.” On 2 March 1915 the Canadian governor general was informed that special treatment should be accorded to certain classes of enemy subjects, including the inhabitants of French extraction of Alsace and Lorraine which had been annexed by Prussia after the Franco-Prussian War. Imperial coordination of domestic security and intelligence matters was by no means confined to the status and treatment of British subjects and aliens. Before the war, the Committee of Imperial Defence established a number of subcommittees to focus upon the threat from imperial Germany. In 1909 one such subcommittee, chaired by Lord Haldane, examined German espionage activity and proposed a number of measures to secure the defence of the realm, such as the passage of more effective official-secrets legislation and the need to monitor what was assumed to be an “extensive system of German espionage” in Britain.81 The Official Secrets Act, 188982 was then inadequate to prevent espionage. An obvious deficiency was that the prosecution for an offence against that act required the proof of the guilty intention of a defendant.83 The work of the Haldane subcommittee led to the enactment of the Official Secrets Act, 1911,84 which widened liability for disclosure, increased the penalties for wrongful possession of official information, and introduced more comprehensive provisions for the felony of spying.85 The Official Secrets Act applied to offences committed in any part of His Majesty’s dominions (s. 10[1]). The act thereby became part of the law of Canada and in 1912 appeared in the Statutes of Canada in a list of imperial statutes that were in force in Canada.86 It also had an extraterritorial

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operation in extending to acts committed by British officers or subjects elsewhere (s. 10[1]). It would not be until 1939, at the outset of the next world war, that similar comprehensive legislation was passed in Canada itself, in the form of the Official Secrets Act, 1939, derived from the Official Secrets Acts of 1911 and the amended 1920 act. The Canadian Official Secrets Act, 1939 also repealed the imperial Official Secrets Act, 1911. This action by the Canadian Parliament could have occurred only after the Statute of Westminster of 193187 removed the constitutional limitations imposed by the Colonial Laws Validity Act, 1865.88 Sir Owen Dixon explained that section 2 of the Colonial Laws Validity Act “expressed in statutory form that any colonial law repugnant to any Act of the British Parliament extending to the colony, or to any order or regulation made under such an Act, should, to the extent of the repugnancy be void.”89 While the Canadian Parliament was subject to the constraints of the Colonial Laws Validity Act, it could not pass legislation which was contrary to an act of the British Parliament which extended to Canada.90 habeas corpus and enemy aliens The indefinite detention or internment of an individual could be challenged in habeas corpus proceedings. The writ of habeas corpus is traditionally regarded as the safeguard of liberty under English law.91 The availability of the writ of habeas corpus is a question that traditionally arises whenever anybody wishes to make a challenge to the internment of an individual. Dicey referred to the instances in British history when the availability of the writ of habeas corpus has been suspended by Parliament in times of national emergency and modern scholars have engaged in more rigorous study of these instances where political expedients and emergency measures are in tension with fundamental legal principles and constitutional claims.92 The Canadian State Trials series also examines the suspension of habeas corpus during times of crisis in Canadian history.93 During the Great War the availability of the “Great Writ” was not uniform throughout the empire. As noted earlier, the Canadian courts tended to defer to executive powers to detain persons indefinitely under the authority of the War Measures Act, as seen in the Beranek94 and Gusetu95 decisions. In Re Gusetu96 Mr Justice Maclennan declared: “During the existence of the war the Court should not be called upon to do anything which might in any way interfere with the actions of those specially charged with the safety of the country. Considerations of public welfare must override everything else.” This deference was not restricted to the case of aliens, as was seen in Gray.97

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Habeas corpus was more widely available in Britain during the Great War. In R. v. Superintendent of Vine Street Police Station, ex parte Liebmann,98 Sir Frederick Smith, as the solicitor general, informed the court: “It is not contended that the Habeas Corpus Act is suspended by the war.”99 Later, in R. v. Halliday,100 Smith, this time as attorney general, stated: “There is no ground for the contention that the legislation in question has taken away the appellant’s right to apply for a writ of habeas corpus if there is any foundation for it.”101 In Australia there was also no suspension of habeas corpus. The internment of a naturalized person of enemy-alien origin was successfully challenged in habeas corpus proceedings before the Supreme Court of Victoria in R. v. Lloyd, ex p. Wallach,102 in which it was held that the Supreme Court was vested with jurisdiction under Part VI of the Judiciary Act, 1903,103 a federal statute, to hear a habeas corpus proceeding against a federal officer. The prisoner was detained under regulation 55(1) of the War Precautions Regulations, 1915, which provided: “Where the Minister for Defence has reasons to believe that any naturalized person is disaffected or disloyal, he may, by warrant under his hand, order him to be detained in military custody in such place as he thinks fit during the continuance of the present state of war.” The majority of the Supreme Court held that this regulation was ultra vires. Chief Justice Sir John Madden remarked that, “when Parliament proposes to allow anyone, without appeal, to imprison a British subject, one would expect it to say so in language which is unmistakeable, as it customarily done in such matters.”104 However, on appeal, the validity of the regulation and the detention of the naturalized person was upheld by the High Court of Australia.105 The availability of habeas corpus in Canada is examined further in McMahon’s chapter in this volume.106 While the Habeas Corpus Act was not expressly suspended in Canada during the war, as noted earlier, ordersin-council under the War Measures Act, 1914 specified that an enemy alien could not be discharged without the consent of the minister of justice. This had the consequence that the court could not, under habeas corpus proceedings, order the release of an interned alien enemy without the prior consent of the minister of justice.107 An application for habeas corpus was dismissed in a case where the prisoner claimed to be a naturalized British subject but had neglected to have made an application to the justice minister. Mr Justice Meredith remarked: “I cannot perceive any justification for these proceedings without first applying to the Minister for Justice, even if there had been some power here to deal with the case, in the first instance.”108 One insuperable difficulty that faced an enemy alien seeking habeas corpus was lack of standing. There are reported cases109 as well as

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Canadian press reports110 of habeas corpus proceedings in which enemy aliens were denied standing. In Re Gusetu111 Justice Maclennan relied upon two eighteenth-century cases for authority that alien enemies could not seek habeas corpus,112 and there was another case in that period to the same effect.113 This would accord with the authority, which was finally settled after the Second World War, that an enemy prisoner cannot move for a writ of habeas corpus even if he is rendered stateless by a decree of the enemy state.114 In Re Chamryck115 it was held that a native of Galicia was not entitled to the “particular and extraordinary remedy of habeas corpus”: the military authorities did not accept the explanation of the prisoner that he intended to depart for the United States for the purpose of homesteading because his application was supported by his brother and brother-in-law who were both reservists of the Austro-Hungarian empire. A similar situation pertained in New Zealand under regulations that were made under the New Zealand War Regulations Act, 1914 to deal with the situation in the German colony of Western Samoa, which was occupied by New Zealand troops. Regulation 12 of the Additional Regulations that were made under the War Regulations Act provided for persons who were convicted by a military court in Western Samoa to serve their sentence in New Zealand. The Supreme Court of New Zealand, in what must be regarded as an abdication of its ancient jurisdiction, held that the regulation prevented it from inquiring into the proceedings of a military court in Western Samoa.116 disenfranchised citizens Legal challenges to internment in Canada were therefore very few. At the same time, discriminatory measures beyond the practices of registration and internment were adopted during the course of the war. The immigrant experience of widening measures of discrimination was by no means limited to Canada. Notable among these other measures were wartime laws passed in Australia and Canada to disenfranchise naturalized British subjects of enemy origin. This further excluded immigrants from the national community and removed them from the Canadian and Australian “body politic.” The Canadian and Australian election statutes aimed to silence or further marginalize the political voice of these naturalized citizens, and minimize their influence on sensitive wartime policies such as conscription. The Canadian Wartime Elections Act, 1917117 was passed at the time of the conscription crisis of 1917 in the continuing atmosphere of patriotic

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fervour but deepening domestic divisions around the enormous costs of the war effort. The act disenfranchised “enemy alien” citizens who were naturalized after 31 March 1902, although exceptions were made for those persons who had relatives serving overseas. The act was justified by Secretary of State Arthur Meighen on the basis that it was aimed at recent arrivals of those of “alien enemy birth or alien enemy blood … who cannot be expected to have wholly separated themselves from the sympathies and predispositions which governed themselves in the land whence they came.”118 W. Nickel, who represented the Ontario electoral district of Kingston, stated: “I vote for this Bill, so that those whose sympathies are with the British Empire and with democracy, may have the decision as to which Government shall be in power after the next election takes place.”119 The act ensured that those who voted for the Borden government would be enfranchised. Those who would not support conscription, such as immigrants from non-British cultures and certain religious groups such as Mennonites, were excluded from the franchise.120 Historians have supported the assessment of Liberal leader Wilfrid Laurier that the Wartime Elections Act was “a blot upon every instinct of justice, honesty and fair play.”121 One Liberal member of Parliament opposed the bill by stating that it was contrary to the pledge that was read by a judge “in His Majesties [sic] name” that the “naturalized citizen” was to have all of the political and other privileges to which a natural-born subject was entitled.122 Another opposition member (Ernest La Pointe) stated: “You are going to deprive Canadian citizens, British subjects, of rights and privileges which they now possess and which have been granted to them by a solemn contract to which the people of Canada, as represented by this Parliament, was a party.”123 The Wartime Elections Act extended the right to vote in federal elections to women provided that they were the wives, widows, mothers, and sisters of soldiers serving overseas. These new voters were perceived by Borden government to be in favour of conscription. However, Laurier pointed out during the debate on the measure that the act would disenfranchise those women of Ontario and the western provinces of Alberta, British Columbia, Manitoba, and Saskatchewan who already had the franchise unless they were relatives of men who were enlisted, and that in Quebec, New Brunswick, Nova Scotia, and Prince Edward Island, where women did not have the right to vote, the act limited the franchise to those women who were the relatives of men who were enlisted.124 Within the empire there were some misconceptions about the effect of the Canadian Wartime Elections Act. In 1918 the New Zealand

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government, having received statements that “all enemy subjects naturalised in Canada during the last fifteen years have been denaturalized,” sought clarification from Canada about the effect of the Wartime Elections Act. The private secretary to the Canadian minister of defence advised the New Zealand minister of defence that the effect of the Wartime Elections Act was that “British subjects born in enemy country and naturalised since 31st March 1902, are with certain exceptions disqualified to vote.”125 New Zealand had introduced conscription in 1916 and never passed legislation similar to Canada’s Wartime Elections Act. During the passage of the Wartime Elections Act, Arthur Meighen asserted that the measure was influenced by Australian legislation: “In Australia, facing a situation such as we face to-day, but by no means as aggravated as ours, they prepared for the contest along lines similar to those of this Bill. They, however, disqualified for the war time election all of their citizens who were of alien enemy birth no matter how long they had been naturalized. This Bill does not go that far. This Bill disqualifies, for the war time election, those of alien enemy birth, or other European birth and of alien enemy mother tongue or native language, who have been naturalized since the 31st March 1902. All who were naturalized prior to that date remain in the enjoyment of the exercise of the franchise.”126 The Wartime Elections Act indeed adopted provisions from Australian legislation such as ones exempting Christian Armenians and Syrians from disenfranchisement. There was, however, a distinction between the Australian and Canadian situations. As noted, most enemy aliens in Canada were recent arrivals, less than 2 per cent having arrived before 1890, so that disenfranchising those who were naturalized after 1902 would affect most of the alien-enemy population of Canada. However, Australia had a longer tradition of German settlement. By 1891, there were more than 45,000 persons of German birth in Australia; most of them were in Queensland and South Australia where there were German-language newspapers and German-speaking schools.127 They would have been able to influence the vote in certain rural electorates in those states. Two Australian statutes were passed to disenfranchise naturalized citizens. The Naturalised Subjects Franchise Act, 1916, 128 passed by the New South Wales Parliament, deprived naturalized British subjects of enemy origin of the right to vote and to run for office in state and local government elections. Section 30 of the Commonwealth Constitution reads: “Until the Parliament otherwise provides, the qualification of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the State as the qualification of electors of the

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more numerous House of Parliament of the State; but in the choosing of members each elector shall vote only once.” The operation of the New South Wales statute had the consequence that a disenfranchised person could not vote in federal elections or referendums. A magistrate of a revision court for a New South Wales electorate refused to retain a German woman on the electoral roll even though she had married a British subject; the magistrate stated that the woman would “certainly give a biased vote on any such matter as conscription.”129 The Australian federal Parliament passed the Commonwealth Electoral (War Time) Act, 1917,130 which disenfranchised every naturalized British subject who was born in an enemy country (s. 10[1]). This measure deprived naturalized citizens of the rights to vote in federal elections during the war and for six months thereafter. There were a few exceptions to the process of disenfranchisement, such as members of the armed forces serving outside Australia; persons rejected by the forces as being medically unfit; members of Parliament; and Christian Syrians and Armenians who were the subject of the imperial directive mentioned earlier (s. 10[4]). The Canadian and Australian electoral statutes were certainly unconstitutional for being in conflict with section 3 of the imperial British Nationality and Status of Aliens Act, 1914, which gave a naturalized British citizen “to all intents and purposes the status of a natural-born British subject.” This was paramount imperial legislation, which, as explained above, could not be abrogated while the imperial Colonial Laws Validity Act, 1865 was in force in those jurisdictions. concluding reflections Comparison of the Canadian and Australian legislative regimes in force during the Great War reveals certain similarities. The internment of enemy aliens was authorized by statute in Canada and Australia. However, in Britain itself, the internment of enemy aliens was justified by a more confident reliance on the prerogative power of the crown. In the 1915 case of R. v. Superintendent of Vine Street Police Station, ex parte Liebmann,131 it was held that enemy aliens could be detained in reliance on the prerogative. This was an important test case brought by Alfred Liebmann, who was not an actual combatant or enemy reservist; he had sought habeas corpus to challenge his detention. However, the savings clause in section 1(6) of the Aliens Restriction Act provided that the act did not derogate from “any other powers of His Majesty,” preserved the prerogative powers of the crown, and ensured that these powers could be exercised throughout

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the empire. At this time the doctrine of the indivisibility of the crown had not yielded to the difficulties caused by the federal systems in Australia and Canada.132 Not long after the armistice, Lord Haldane went so far to declare in his famous aphorism that the crown “is one and indivisible throughout the Empire.”133 Liebmann had obtained a discharge from his German nationality but had not yet become a naturalized British subject and was then stateless. However, his discharge from German nationality would not have significance in view of his right under the Delbrück Law to resume that nationality. Until the 1915 ruling in the Liebmann case, there appeared to be no modern precedent to justify the internment of enemy aliens. This is presumably why W.F. O’Connor, who drafted the War Measures Act, as well as the drafters of the Australian War Precautions Act preferred to rely upon the clear authority of statute rather than the crown prerogative for the authorization of the detention of enemy aliens. The War Measures Act did not expressly abrogate the rights of naturalized citizens. However, the Australian War Precautions Act, in authorizing regulations to be made in respect of naturalized citizens, was in conflict with the paramount imperial British Nationality and Status of Aliens Act, 1914 for treating naturalized British citizens differently from a natural-born British subject. In Britain applications for exemption from internment and repatriation could be considered by an Advisory Committee under the chairmanship of a High Court judge which made recommendations to the home secretary. Mr Justice John Sankey, later a Labour lord chancellor, chaired the Advisory Committee for England and Wales and Mr Justice Younger chaired the Advisory Committee for Scotland.134 The relatively high rate of success in these applications showed that many people would not have been a risk to the safety to the state and were unnecessarily interned. There was, however, no such process of independent review available in Canada and Australia. The internment schemes in Canada and Australia were deficient because an interned person could not seek an independent review of his or her detention by a judicial officer. In the Australian case of R. v. Lloyd, ex p. Wallach,135 Chief Justice Sir John Madden pointed out that there was no appeal from the minister available to Wallach. It was then thought that there was no constitutional impediment to a Canadian or Australian federal judicial officer considering applications for exemption from internment. This appeared to be permitted in Canada because the Privy Council had refused to import any separation-of-powers doctrine into the British North America Act, 1867 in the 1912 Reference case.136 It was only well after the Great War that the High Court of Australia applied

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Enemy Aliens in the First World War  89

a separation-of-powers doctrine so that federal judges were confined to traditional judicial functions.137 A feature of the Canadian experience noted earlier and not found in Australian and the United Kingdom was the forced labour of interned persons. The use of forced labour was certainly not in accord with imperial policy and not within the spirit of the Hague Convention, which prohibited the exploitation of prisoners. There was certainly no statutory authority for the forcible conscription of such labour. When wartime election legislation was passed in Canada and Australia, no consideration was given to the imperial Colonial Laws Validity Act, 1865, which prevented the Canadian and Australian parliaments from passing legislation which was repugnant to the British Nationality and Status of Aliens Act, 1914. The implication of this doctrine of repugnance was fully appreciated only after the Great War.138 The Canadian Wartime Elections Act would have been unconstitutional as repugnant to section 3 of the British Nationality and Status of Aliens Act, which gave a naturalized British citizen “to all intents and purposes the status of a natural-born British subject.” By depriving naturalized citizens of the right to vote, the Canadian Parliament was engaged in a legally questionable act of discrimination that was contrary to imperial policy. Similarly, the Australian wartime electoral statutes were also unconstitutional because naturalized British citizens were treated differently from natural-born British subjects. Wartime legislative initiatives in Canada and Australia provide a glimpse into the development of Dominion self-government, the constraints of British constitutional and legal precedents, and the continuing role of imperial supervision. The people of both Dominions made huge contributions and sacrifices for the British war effort. Their domestic war measures suggest the need for a nuanced assessment of the British role and illustrate some of the complexities in the narratives of developing national autonomy. N otes   1 H. Nicolson, King George V: His Life and Reign, 5th ed. (London: Constable 1970), 470.   2 Canada Gazette, 8 Aug. 1914, 466.   3 D. Morton, Canada and War (Toronto: Butterworths 1981), 54.   4 Ibid.   5 Ibid.

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90  p e t e r m c dermott   6 K. McNaught, The Penguin History of Canada (London: Penguin 1988), 214.   7 4&5 Geo. V, c.12 (Imp.)   8 C. Andrew, Defend the Realm: The Authorised History of MI5 (New York: Alfred A. Knopf 2009), 48. By July 1913, this register contained details of some 28,830 aliens (including 11,100 Germans and Austrians) out of an estimated alien population of under a quarter of a million persons. See A.W.B. Simpson, In the Highest Degree Odious: Detention without Trial in Wartime Britain (Oxford: Oxford University Press 1994), 12.   9 National Archives of the United Kingdom (NAUK), Colonial Office, 323–637. 10 5 Edw. VII, c.13 (Imp). 11 The Proclamation respecting German and Austro-Hungarian alien enemies that was published in the Extra Canada Gazette, 15 August 1914 recited that “certain instructions have been received from His Majesty’s Government in connection with the arrest and detention of subjects in Canada of the German Empire and of the Austro-Hungarian Monarchy and particularly of those who attempt to leave Canada.” 12 R.H. Coats, “The Alien Enemy in Canada,” in Canada in the Great World War (Toronto: United Publishers of Canada, 1919), vol. 2: 144, 145–6; D.P. Morton, “Sir William Otter and Internment Operations in Canada during the First World War,” Canadian Historical Review, 55, no. 1: 32 at 33. 13 B.S. Kordan, Enemy Aliens, Prisoners of War (Montreal and Kingston, ON: McGill-Queen’s University Press 2002), 5. 14 Canada in the Great World War, vol. 2: 145–7. 15 Geo. V, c.2 (Canada) (date of assent, 22 Aug. 1914). See app. C, doc. 1, in this volume. 16 Morton, Canada and War, 54; D. Morton and J.L. Granatstein, Marching to Armageddon: Canadians and the Great War 1914–1919 (Toronto: Lester and Orpen Dennys 1989), 6–7. 17 See Jeff Keshen, Propaganda and Censorship during Canada’s Great War (Edmonton: University of Alberta Press 1996), 65; Canada in the Great World War, vol. 2: 149. The War Measures Act provided that actions of the Canadian and imperial governments after 1 Aug. 1914 were lawful on the condition that they would have been authorized by the WMA or orders and regulations made under it (s.2). It is interesting that this indemnity in s.2 provided protection for actions taken at the outbreak of the war not only by the Canadian government but also by the British government. 18 War Measures Act, 1914 (5 Geo. V, c.1) (Newfoundland). See also Sean Thomas Cadigan, Newfoundland and Labrador: A History (University of Toronto Press, 2009), 190.

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Enemy Aliens in the First World War  91 19 Fort Frances Pulp and Power Co. v. Man. Free press Co. [1923] A.C. 695. 20 Section 6. These express powers conferred on the governor-in-council by the WMA were not intended to limit the authority of the governor-in-council to issues of defence and security. Section 3 provided that these powers were to be in force only during war or invasion, and the act later was amended to include insurrection, real or apprehended. 21 Daily Star Publishing Co. v Grimes (1918) 10 N.R. 316. 22 In Re Gray (1918) 57 S.C.R. 150, 183, Justice Duff pointed out that the fact that certain orders-in-council under the War Measures Act had been approved by both houses of Parliament “does not add anything to their legal force as enactments.” 23 R. Bothwell, I. Drummond, and J. English, Canada, 1900–1945 (Toronto: University of Toronto Press 1987), 121. 24 Order-in-Council PC 2721, cl. 5 (see app. C, doc. 4, in this volume). 25 Order-in-Council PC 1493, 26 June 1915: Canada Gazette, 10 July 1915. 26 Order-in-Council PC 2721, cl. 5 (see app. C, doc. 4, in this volume). 27 Memorandum from the Canadian high commissioner, London, to Sir Robert Borden, 30 Oct. 1914 (LAC, Borden Papers, OC series, no. 106258). 28 Order-in-council PC 858, 24 April 1915. 29 Extra Canada Gazette, 2 Sept. 1914. In Bassi v. Sullivan (1914) 32 O.L.R. 14, 18, it was held that this proclamation may have been issued under s.6(b) of the War Measures Act, 1914. It was also questioned whether the reference in the proclamation to “the protection of the law” amounted to anything more than police protection. 30 The effect of the Proclamation was discussed in a number of decisions: see, e.g., Bassi v. Sullivan (1914) 32 O.L.R. 14; Re Chamryk (1914) 25 Man. R. 50. 31 Order-in-council PC 338, 26 June 1915. 32 Order-in-council PC 2721, cl. 7 (see app. C, doc. 4, in this volume). 33 Re Beranek (1915) 24 C.C.C. 252, 33 OLR 139; Re Gusetu (1915) 24 C.C.C. 427, 17 Que PR 95. 34 (1915) 24 C.C.C. 252. 35 Ibid., at [9]. 36 Liversidge v. Anderson [1942] A.C. 206; Greene v. Secretary of State for Home Affairs [1942] A.C. 284. See also J. Farbey and R.J. Sharpe with Simon Atrill, The Law of Habeas Corpus, 3rd ed. (Oxford: Oxford University Press 2011), 100. 37 (1915) 24 C.C.C. 252. 38 Ibid. 39 56 Geo. III, c.100 (Imp.). 40 [1984] A.C. 74. 41 Canada in the Great World War, vol. 2: 150.

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92  p e t e r m c dermott 42 Kordan, Enemy Aliens, Prisoners of War, 5. 43 On 19 Sept. 1914 the colonial secretary wrote to the governor general of Canada to obtain the approval of the Canadian government for the detention in Halifax of 30 officers and 539 men of the German regular and reserve forces who were held in Jamaica as prisoners of war and who needed to be transferred to a cooler climate. On 22 Dec. 1914 the Canadian government was advised that the cost of accommodation of the prisoners, estimated at £4,000, would be borne by army funds. 44 Detention Measures – Arrest and Detention of Foreigners – Instructions That All Enemy Reservists and Subjects on Neutral Ships Be Made Prisoners of War (Directive, August 1914). 45 Kordan, Enemy Aliens, Prisoners of War, 134. The actual number of prisoners of war who were detained in Canada is not discussed in Coats, “The Alien Enemy in Canada,” 144. 46 Order-in-council, PC 2039, 28 August 1915. 47 Order-in-council PC 2721, cl. 10 (see app. C, doc. 4, in this volume). 48 In the Laws and Customs of War on Land (Hague II), 29 July 1899, article 6 provides: “The State may utilize the labor of prisoners of war according to their rank and aptitude. Their tasks shall not be excessive, and shall have nothing to do with the military operations. Prisoners may be authorized to work for the Public Service, for private persons, or on their own account. Work done for the State shall be paid for according to the tariffs in force for soldiers of the national army employed on similar tasks. When the work is for other branches of the Public Service or for private persons, the conditions shall be settled in agreement with the military authorities. The wages of the prisoners shall go towards improving their position, and the balance shall be paid them at the time of their release, after deducting the cost of their maintenance.” 49 Kordan, Enemy Aliens, Prisoners of War, 12–13. 50 Canada, House of Commons, Debates, 1918, 2: 1021. See also M. Koesller, “Enemy Aliens: With Special Reference to Great Britain and France,” Political Science Quarterly, 57, no. 1 (1942): 98–9. 51 Telegram of Walter H. Long, colonial secretary, to the governor general of New Zealand, 5 March 1918, NAUK, CO1030/18. 52 Porter v. Freudenberg [1914] 1 K.B. 857; Re Cimond (1915) 36 O.L.R. 129, 132. 53 See previous volumes of the CST series for discussion of the liability of resident aliens for treason and the offence of lawless aggression applicable to non-resident invaders. 54 J. Baker, The Oxford History of the Laws of England (Oxford: Oxford University Press 2003), vol. 6: 63. 55 A.V. Dicey, Introduction to the Study of the Law of the Constitution, 8th ed. (London: Macmillan 1915), 538.

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Enemy Aliens in the First World War  93 56 57 58 59 60 61 62

63 64 65 66 67 68

69 70 71 72 73 74

75 76 77

[1916] 1 K.B. 268. [1916] 1 K.B. 268 at 279. Oppenheimer v Cattermole [1976] A.C. 249 at 257 per Lord Salmon. A.D. McNair, “British Nationality and Alien Status in Time of War,” Law Quarterly Review, 35 (1919): 213 at 225. Canada in the Great World War, vol. 2: 145. Ibid. Kordan, Enemy Aliens, Prisoners of War, 62. While the status of Canadian citizen was introduced by the Immigration Act, 1910, the fact that naturalized citizens would be British subjects was maintained by the Naturalization Act, 1914, which increased the period of residence required to qualify for naturalization in Canada as a “British subject.” Re Beranek (1915) 24 C.C.C. 252 at [12] per Meredith C.J.C.P. British Nationality and Status of Aliens Act 1914 (Imp.), First Schedule. British Nationality and Status of Aliens Act 1914 (Imp.), s.8. 4–5 Geo. V, c.44 (Canada) (date of assent, 12 June 1914). Canada, House of Commons, Debates, vol. 131, 5828 (14 Sept. 1917). Re Munshi Singh (1914) 20 B.C.R. 243. See Hugh Johnstone, The Voyage of the Komagata Maru (Vancouver: UBC Press 1989); Andrew Parnaby and Gregory Kealey with Kirk Niergarth, “‘High-handed, Impolite and Empire-breaking Actions’: Radicalism, Anti-Imperialism, and Political Policing in Canada,” in CST3, 483, 497–501. War Precautions Act 1914 (Australia) (no. 10 of 1914) as amended by the War Precautions Act 1915 (Cth.) (no. 2 of 1915). Parliamentary Debates (House of Representatives), 28 Oct. 1914, 369. Naturalization Act 1903, s.8 (Australia). Union Steamship Co. of New Zealand Ltd. v. Commonwealth of Australia (1925) 36 C.L.R. 130. Statute of Westminster Adoption Act 1942 (Australia). In a coded cable dated 26 Aug. 1915, there was a directive from the colonial secretary (Bonar Law, himself a Canadian) to the governor general of Canada, which was issued in response to an enquiry as to whether munitions could be exported to non-aligned Holland. The colonial secretary advised that “all munitions that Canada can produce are required for use of His Majesty’s Government and their Allies and that it is accordingly regretted that exportation of any munitions to Holland cannot be permitted” (LAC, doc. 162792, microfilm). Aliens Restriction (Consolidated) Order 1916, art. 22A. This order was published in the London Gazette, 29 Feb. 1916. and the Canada Gazette, 25 March 1916. D. Saunders, “Aliens in Britain and the Empire during the First World War,” Immigrants and Minorities, 4, no. 1 (1985): 5, 13–14.

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94  p e t e r m c dermott 78 Sean Thomas Cadigan, Newfoundland and Labrador: A History (Toronto: University of Toronto Press 2009), 190. 79 R. v. Hackham (1918) 44 O.L.R. 224. 80 London Gazette (Supplement), 7 Jan. 1915, 256 (LAC, vol. 207, doc. 161740). 81 Committee of Imperial Defence, subcommittee of foreign espionage, October 1909, NAUK, CAB 16/8. 82 52&53 Vict., c.52 (Imp.). Provisions from the Official Secrets Act, 1889 were enacted in the Canadian Criminal Code of 1892. See Desmond Brown and Barry Wright, “Codification, Public Order, and the Security Provisions of the Canadian Criminal Code, 1892,” in CST3, 516, 532–4. 83 See P. Panayi, German Immigrants in Britain during the 19th Century, 1815–1914 (Oxford: Berg 1995), 249. 84 1&2 Geo. V, c.28 (Imp). 85 Persons were liable for the felony of spying if they were in the neighbourhood of or entered a protected place (s.1[a]); had a sketch or plan that could be useful to the enemy (s.1[b]); or communicated to any person information that was calculated to be or might be or was intended to be, directly or indirectly, useful to an enemy (s.1[c]). The Official Secrets Act, 1911 also provided that it need not be shown that a defendant acted for a purpose contrary to the interests or safety of the state; the onus of proving that there was no such purpose lay on the accused (s.1[2]). The act enabled the arrest of a person without a warrant (s.6) and made it an offence to harbour spies (s.7). A person who incited the commission of an offence under the act would also be guilty of a felony or misdemeanour. However, during the passage of the Official Secrets Act, 1911, there was some concern as to the use in the act of the term “enemy” rather than “foreign power” to cover espionage when there was no war. This issue arose in 1913 when a sailor was charged with passing information to German agents: it was ruled that the term “enemy” could refer to a potential enemy such as Germany with which Britain might be at war: R. v. Parrott (1913) 8 Cr. App. R 186. See also S. Wade, Spies in the Empire: Victorian Military Intelligence (London: Anthem Press 2007), 229. The issue would not have arisen at all if the expression “foreign State” had been used instead of “enemy”: this would conform with s.1(3) of the Official Secrets Act 1889, which referred to a “foreign State.” 86 R.A. Thomas, Espionage and Secrecy: The Official Secrets Acts 1911–1989 of the United Kingdom (London: Routledge 1991), 24 (n.86). 87 22&23 Geo. V, c.4 (U.K). 88 28&29 Vict., c.63 (Imp.). 89 Sir Owen Dixon, Address to the Law Council of Australia on “The Statute of Westminster 1931,” in Judge Woinarski, ed., Jesting Pilate (Sydney: Law Book Co. 1965), 82 at 83. 90 An example of where Canadian legislation was declared repugnant to an act

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Enemy Aliens in the First World War  95 of the British Parliament is Nadan v. R. [1926] A.C. 482. In that case, it was held that the Canadian Parliament could not take way the right of the Privy Council to grant the special leave to appeal that was conferred under the Judicial Committee Acts. The Colonial Laws Validity Act extended to Canada until the enactment of the Statute of Westminster, 1931 (Imp.), after which Canada had the power to abolish the right of appeal to the Privy Council: see British Coal Corporation v. R [1935] A.C. 500.   91 Maitland in his Constitutional History of England described habeas corpus as “unquestionably the first security of English liberty”: Re Gray (1918) 57 S.C.R. 150, 156.   92 See Dicey, Introduction, 224–8; R.J. Sharpe, The Law of Habeas Corpus, 2nd ed. (Oxford: Clarendon Press 1989), 94–5; A.W. Brian Simpson, Human Rights and the End of Empire (Oxford: Clarendon Press 2001), 57–8. See also Paul D. Halliday, Habeas Corpus: From England to Empire (Cambridge, MA: Harvard University Press 2012).   93 See, e.g., F. Murray Greenwood and Barry Wright, “Introduction: State Trials, the Rule of Law, and Executive Powers in Early Canada,” CST1, 31–3; J.-M. Fecteau, F. Murray Greenwood, and J.-P. Wallot, “Sir James Craig’s ‘Reign of Terror’ and Its Impact on Emergency Powers in Lower Canada, 1810–13,” CST1 (323); and David A. Wilson, “The D’Arcy McGee Affair and the Suspension of Habeas Corpus,” CST3, 85.   94 (1915) 24 C.C.C. 252.   95 (1915) 24 C.C.C. 417.   96 Ibid.   97 (1918) 57 S.C.R. 150.   98 [1916] 1 K.B. 268.   99 [1916] 1 K.B. 268 at 270. 100 [1917] A.C. 260. 101 [1917] A.C. 260 at 263. 102 [1915] V.L.R. 476, (1915) 21 Argus L.R. 295, (1915) 37 A.L.T. 75. 103 No. 6 of 1903 (Australia). 104 [1915] V.L.R. 476 at 498. 105 Lloyd v. Wallach (1915) 20 C.L.R 299. 106 (1918) 57 S.C.R. 150. 107 See, e.g., Gusetu v. Lang (1915) 24 C.C.C. 427. 108 Re Beranek (1915) 24 C.C.C. 252 at [12]. 109 See Re Beranek (1915) 24 C.C.C. 252; Re Gusetu (1915) 24 C.C.C. 427; Re Gottesman (1918) 41 O.L.R. 547. 110 See, e.g., “To Test Validity of Internment of Alien Miners at Fernie,” Lethbridge Herald, 17 June 1915, 1; “Aliens at Fernie Fight against Internment,” Brandon Sun, 24 June 1915, 8.

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96  p e t e r m c dermott 111 (1915) 24 C.C.C. 417 at [6]. 112 Three Spanish Sailor’s Case (1779) 2 W.Bl. 1324; R v Schiever (1759) 2 Burr. 765. 113 Furley v. Newnham (1780) 2 Doug. 419. 114 R. v. Home Secretary, Ex p L [1945] K.B. 7; Hirsch v Somervell [1946] 2 All E.R. 27; Lowenthal v. Attorney-General [1948] 1 All ER 295. 115 (1915) 25 Man. L.R. 50. 116 Gaudin (1915) 34 N.Z.L.R. 401, 17 G.L.R. 286; Arlow [1917] N.Z.L.R. 361. 117 S.C. 1917, c.39 (Canada). 118 Canada, House of Commons, Debates, vol. 131, 5416–17 (6 Sept. 1917). 119 Ibid., 5841 (14 Sept. 1917). 120 Amy Shaw, Crisis of Conscience (Vancouver: UBC Press 2009), 32; Bothwell, Drummond, and English, Canada, 1900-1945, 128–9. 121 Bothwell, Drummond, and English, Canada, 1900-1945, 129. 122 Canada, House of Commons, Debates, vol. 131, 5828 (14 Sept. 1917). 123 Id., 5809. 124 Id., 5421 (6 Sept. 1917). 125 Advice from Major Creighton, private secretary, minister of defence, Ottawa, 9 April 1918, NAUK, no. D24/268. 126 Canada, House of Commons, Debates, vol. 131, 5417 (6 Sept. 1917). 127 Australian Encyclopaedia, 5th ed. (Sydney: Australian Geographical Society 1988), 1394–5. 128 1916, no. 14 (New South Wales). 129 Barrier Miner (New South Wales), 20 Sept. 1916, 4. 130 No. 8, 1917 (Australia). 131 [1916] 1 K.B. 268 at 275. 132 Minister of Works (W A) v. Gulson (1944) 69 C.L.R. 338 at 350–1. 133 Theodore v. Duncan [1919] A.C. 696, 706; Amalgamated Society of Engineers v. Adelaide Steamship Co. (1920) 28 C.L.R. 129, 152. 134 Out of 16,000 applications to be exempted from internment, more than 7,000 were successful. And out of 16,456 applications to be exempted from repatriation, 14,939 were successful: see Advisory Committee reports (NAUK, WO32/ HO 45 11004/259527/227, WO 45 11025/410118/2). 135 [1915] V.L.R. 476 at 497, (1915) 21 Argus L.R. 295, (1915) 37 A.L.T. 75. 136 Reference Appeal [1912] A.C. 571. A decision otherwise would have been fatal to the practice of direct government references to the Supreme Court of Canada for advisory opinions. 137 Re Judiciary and Navigation Act (1921) 29 C.L.R. 257. 138 Nada v. R. [1926] A.C. 482, discussed earlier.

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3 Erroneous and Detestable: Seditious Language and the Great War in Western Canada J O N AT H A N S WA I N G E R

Historian John Keegan tells us that by the end of 1915 the European war had become an inconclusive affair. Allied expectations for a quick victory had evaporated despite the German and Austrian armies fighting on two fronts; “the war that men were already beginning to call the Great War was becoming a world war and its bounds were being set wider with every month that passed.”1 For Canadians, the year had been difficult and the horror of Second Ypres and Festubert left little doubt that the war would exact an almost incomprehensible price.2 Still, the continuation of hostilities a year beyond the hoped-for Christmas victory of 1914 only served to multiply Canadian home-front fervour in defence of empire, democracy, liberty, and Christianity.3 Predictably, such zeal was not without repercussions and by the spring of 1915 accusations of seditious utterances – the use of language deemed a threat to the successful conduct of the war – began appearing in Canadian newspapers and, in time, as cases in the courts. By war’s end, almost every province in the Dominion had seen at least one prosecution although the vast majority were heard west of the Manitoba/Ontario border, with Alberta alone accounting for over a third of all cases in the nation (see Table 1). Transformed by two decades of European, British, and American immigration, the wartime Canadian west emerged as a testing ground for ideals of loyalty, patriotism, and, ultimately, the role played by courts in determining where wartime exuberance and commitment became jingoistic opportunism.

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98  j o nat h a n swainger

To the extent that events in the Atlantic and European theatres invested the judicial deliberations with increasing immediacy, British legal precedents, anti-foreigner rhetoric, the supposed threats that organized labour represented, notions about sedition voiced in newspaper reports on the Irish Home rule agitation, and anti-conscription activists all served to influence the Canadian marketplace of ideas.4 As much as these utterances involved the war, they were not just about the war. Rooted in the evolution of contemporary standards of behaviour, these cases illuminate the core of governmentality, that amalgam of notions about individual and collective self-regulation, accountability, and order that the judiciary may echo, moderate, or resist.5 Embracing implicit expectations as to how responsible individuals perceive their own conduct as well as the expected conduct of others, governmentality functions as an assortment of possibly disparate actions ranging from the barely perceptible pressure of social conformity to compulsion through state action. At one level, mechanisms of family, friends, the workplace, church, and community count among the “multiplicity of authorities and agencies” encouraging preferred and desirable conduct.6 At another level, when individuals or classes of individuals persist in their refusal to adopt these standards – despite the influence of critique and stigmatization – direct state action may lend the force of law to impose expected conduct and punish that deemed to be undesirable. The breadth of potentially moderating influences reveals the fractures within and between those expectations voiced publicly in newspapers and unevenly endorsed by some state agents. For, while newspaper commentary and vocal segments of public opinion favoured the prosecution of every allegedly seditious statement uttered by those labelled foreigners or enemy aliens – a response often embraced by the police and lower courts – the higher courts evinced greater concern for individuals espousing ideals and philosophies linked with socialist discourse. These fissures, or what Eric Tucker has described in another context as “the disparate zones of community and legal toleration,” deepened as wartime conditions fed into the radicalization of western Canadian labour and added profound complications to contemporary standards of behaviour in what proved to be the build-up to the Winnipeg General Strike.7 The evidence indicates that, inasmuch as certain segments of society seemingly thought that the courts ought to shield and bolster the war effort by heralding a particular form of unrelenting loyalty, judicial opinion increasingly viewed such expectations as bringing the law into disrepute. While military officials were to shoulder the task of dealing with enemy aliens who spoke out of turn, Alberta’s Court of Appeal attempted to lead

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Erroneous and Detestable  99 Table 1: Canadian seditious language prosecutions, 1914–18

1914

1915

1916

1917

1918

Manitoba   1   4 Saskatchewan   1 12   5   5 Alberta 1   7 25   8   7 British Columbia   4   2   6 12 13 Ontario   2   5   5 New Brunswick   1   1 Nova Scotia   1 Quebec   1 Yearly Totals

1

14

46

29

39

Source: Canada, Sessional Papers, 1915–19

the way in questioning whether the courts ought to favour a particular form of popularly mandated self-control and self-governance directed at immigrants and those labelled dangerous foreigners.8 According to Justice Charles Stuart of the Alberta Supreme Court (Appellate Division), the courts should not “be asked to spend their time scrutinizing with undue particularity the foolish talk of men in bar rooms or shops or a word or two evidently blurted out there impulsively and with no apparent deliberate purpose.”9 At the same time, as wartime inflation stoked workers’ activism and unionization efforts, the courts remained leery of such designs, especially when voiced in a manner critical of the war. No matter where newspaper commentary and public opinion found common ground – be it in terms of the threat posed by dangerous foreigners, insufficient loyalty, or the emergent willingness to give socialist campaigners a respectful audience, the courts stood apart, concerned with the flavour of accountability and self-regulation reflected in such perspectives.10 Beginning with an examination of the British jurisprudential legacy and the importation of the inference linking so-called troublemakers with sedition, this chapter explores First World War seditious-language prosecutions in western Canada as framed by shifting contemporary standards of behaviour about free speech, loyalty, nativism, workplace organization, and the role that the courts played in managing these different currents. Although claims about the use of seditious language alleged a litany of abuses and threats, these cases ultimately turned on the supposed obligations and the expectations of responsible citizenship in a liberal democracy. Attention then turns to two cases bookending 1914 that provide a

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prescient image of judicial thinking about seditious language and the threat posed by organized labour. Here we see fundamental notions about identity and values on the home front soon to be arrayed against the inhumanity of the European theatre. It is against this backdrop that wartime criminal complaints echoed jingoistic patriotism, anticipating that the criminal justice system would enforce an unblinking and unthinking measure of loyalty. By the spring of 1915, prosecutions for seditious language were under way across western Canada and what proved to be the first leading case made its initial appearance before the lower courts in Alberta; two more followed in Alberta and one in Manitoba. Although Alberta’s Court of Appeal eventually pushed back on prosecutions targeting individuals who questioned the war effort or even the superiority of British government and institutions, similar patience was nowhere in evidence for those articulating organized socialist critiques of liberal-capitalist democracies at war.11 The emergent judicial view in Alberta ran counter to local prosecutorial efforts prior to 1916 and had limited influence on either private or crown attitudes outside the province. In standing apart from popular and prosecutorial sentiment (both against dangerous foreigners and for socialist alternatives), the Alberta judiciary’s seditious-utterance rulings may have led decision makers watching from Ottawa to conclude that judicial thinking was too unpredictable in responding to an increasingly volatile domestic political situation and, in particular, the worrying tide of socialist and Communist agitation.12 In effect, as the nation turned from war to peace in late 1918 in an environment of rising labour militancy, it is possible to discern a link between these seditious-utterances cases, the eventual drafting of the repressive section 98 of the Canadian Criminal Code, and the heavy-handed response to the leaders of the Winnipeg General Strike.13 While western Canada’s settlement history and events in the theatre of war had framed the early cases, there is little doubt that, by 1918, the portent of home-front clashes proved to be of significant influence. legal context on the eve of hostilities The nineteenth- and early-twentieth-century British legal context defining seditious language was rooted in the slow liberalization of the state that allowed for greater latitude within public discourse about governance even if such tolerance was not universally welcome. In turning to British case law and legal treatises for guidance on the nature of seditious language

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and the standards of accountability, the Canadian judiciary therefore encountered a body of law falling between two views of the relationship between governors and the governed. Either the ruler was beyond question and censure because of innate superiority, or, on the contrary, the ruler (or government) was open to critique because the ruler was an agent and servant of the public.14 Lending substance to this initial characterization, Sir James Fitzjames Stephen defined seditious intention as that which excited hatred, contempt, or disaffection towards the crown, constitution, or government and incited any person to commit a crime in disturbance of the peace or to promote feelings of ill will and hostility between different classes of subjects.15 A separate proviso added that “every person must be deemed to intend the consequences which would naturally follow from his conduct at the time and under the circumstances in which he so conducted himself,” although nothing short of a direct incitement to disorder and violence was required for a successful prosecution.16 Underpinning Stephen’s definition was a line of cases extending from the Peterloo massacre thorough Chartism and the ongoing Irish troubles where, outside of the courtroom, one discerns an emergent political and rhetorical association between allegations of seditious language and eruptions of public discontent or protest, regardless of whether the words spoken had actually threatened the state’s well-being.17 Effectively, those accused of sedition or of having used seditious language were individuals whose disruptive behaviour or statements had signalled the need for a reminder of contemporary standards of conduct. They were, in a phrase, troublemakers. Still, there were glimpses of increasing toleration. As detailed by Desmond H. Brown and Barry Wright in Volume III of Canadian State Trials, translating British antecedents on seditious language to colonial British North America and then Canada proved to be a challenge. Although political opponents of every political stripe continued to hurl accusations of sedition with alacrity, pragmatic responses to unlawful assemblies and breaches of the peace in concert with legislative reform and begrudging toleration for substantive public debate exerted a dampening effect on accusations of sedition and seditious language.18 Limits, however, persisted. In what proved to be the case throughout and beyond the latter half of the nineteenth century, one area where division remained was that of the sanctity of contract and its influence in the developing struggle over workers’ rights and the right to organize.19 Although that contest informed legislative and legal thinking on the meanings of sedition, it was the combination of the North-West Rebellion of 1885 and Liberal criticism of the definition of seditious intent within the draft 1892 Criminal

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Code that facilitated the survival of the older and more “elastic” common law definition of sedition.20 Consequently, at the outset of the First World War, section 134 of the Canadian Criminal Code defined the offence of speaking seditious words as “speaking any seditious words” or publishing “any seditious libels” or being “party to any seditious conspiracy.”21 A person convicted of this offence warranted up to two years’ imprisonment. Arguably, the persistence of this tautology prolonged the use of the accusation within any heated political or sectarian eruption, while leaving to the courts the task of sorting out the precise legal meaning of sedition, a state of affairs that, beginning in 1915, increasingly troubled some members of Alberta’s senior judiciary.22 Two intriguing trials, one at the beginning and the other at the close of 1914, indicate how differently allegations of seditious language were likely to fare in the western Canadian courts before and after hostilities broke out in Europe. The first, in early January 1914, involved William McConnell, secretary of the Calgary branch of the Industrial Workers of the World, and the second concerned Herman Elmer, the secretary of the Michel Miners’ Union on the British Columbia side of the Crowsnest Pass, ten months later in October 1914. Both cases centred on whether the accused were capable of self-governance and implicitly questioned the degree to which socialists, foreign-born “radicals,” and labour activists could act responsibly within the dictates of a liberal democracy and, in Elmer’s case, a liberal democracy at war. Equally, the events surrounding the cases suggested that, inasmuch as western Canadians might voice misgivings about aspects of socialist politicized rhetoric, in 1914 at least there was no unanimity about the supposed threat of such ideas. Erroneously described by a Calgary journalist as the first case of sedition in the history of Canadian jurisprudence, the accusation levelled at William McConnell grew out of a noisy demonstration in Calgary during which McConnell allegedly had incited a crowd of unemployed men to steal.23 Specifically, he had stated that “when, after making your demands known to the mayor, if they are not granted, take what you want yourselves, not from some poor Chinaman, who is working hard and running a restaurant for a living, but go where there is plenty and take plenty.”24 In later addressing the jury, Chief Justice Horace Harvey asserted that, had the comments been made to a board of trade “or some other body of representatives and prosperous men, [the words] might be treated as a joke. It was for the jury to decide if they might have the effect of inciting a crowd of unemployed men to steal.”25 After noting that McConnell was released on suspended sentence with two sureties of $500 to keep the

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peace, the Calgary Daily Herald offered the view that those who had defended McConnell’s actions had failed to appreciate that British freedom of speech extends only to the point where it “prejudices the rights and privileges of others.”26 Still, at the time of the demonstration, the Morning Albertan called upon Calgarians to support the needy in the community and chided the local Board of Trade for its cavalier attitude towards the unemployed.27 Chief Justice Harvey’s sentiment extolling the perspective of prosperous men and asserting that their rights and privileges should necessarily trump those of the unemployed was by no means universally accepted. Circumstances had changed by October 1914 when Herman Elmer, secretary of the Michel Miners’ Union, allegedly used seditious language. Described as a well-known member of the United Mine Workers of America, secretary of the Michel local, and a principled international anti-militarist, Elmer reportedly recognized that his German origins and the fact that the nation was at war required that he tread lightly at private and public gatherings. Yet, when speaking at a closed union meeting, Elmer echoed the official, anti-militarist position of the British Columbia Federation of Labor (BCFL) that “all working men should be against the war.” When a disgruntled union member reportedly repeated Elmer’s statement to authorities, they seized the union secretary and delivered him to Vernon jail as an enemy alien.28 Some commentators approved. The Phoenix Pioneer, published in south Kootenay border country, described Elmer as a German socialist who preached sedition and insulted the militia and who would deservedly be “held until the close of the war and then probably be deported to his former home of ‘culture and liberty in the fatherland.’”29 Evidently, as a German-born socialist who had questioned the war’s rationale, Elmer was, in the eyes of some, a three-time sinner. Yet, akin to McConnell’s case, such condemnatory views were not unanimous. Reporting on the BCFL’s efforts to have Elmer released from the internment camp at Vernon where he was held as an enemy alien, the Lethbridge Herald argued in February 1915 that the secretary’s position was entirely consistent with the “international anti-militarist views endorsed by the Federation since its foundation.” Further, “there is no reason other than the general one that he is of German birth why he should be detained. No specific charge of attempting to dissuade anyone from joining the Canadian contingents, or anything definite like that is laid against him, and … he should be given his liberty at least under the guarantee of the officers of the mine workers.”30 The union’s efforts were fruitless; Elmer was to stay at the Vernon detention camp “until the close of hostilities, unless he can

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satisfy the authorities, that he had no hostile intentions when he used the language attributed to him.”31 The two cases reveal the fissures within opinion linking ethnicity, socialist rhetoric, an early tolerance for principled criticism of capitalism and industrial militarism, and what constituted seditious language. McConnell’s case is intriguing in that, while exhorting the unemployed to “take plenty,” he did so with a warning against racist attacks targeting fellow labourers, the hard-working Chinese. Further, there is no evidence that anyone acted upon McConnell’s call to take plenty. To the extent that he had incited the demonstrators to steal, he did so unsuccessfully and it would be the question of incitement and consequent actions that, in the course of the war, attracted further attention from Alberta’s Court of Appeal. Despite the conviction, it is arguable that McConnell’s actions aligned with a portion of public and perhaps some judicial opinion as to what constituted respectable self-governance. The fact of the war complicated Elmer’s case although it too suggested a measure of toleration and latitude. In a reflection of the tangle of ethnicity and ideology that Benjamin Isitt examines elsewhere in this volume, despite Elmer’s principled stand he was dispatched to an internment camp because he was a German-born socialist who had criticized war in general and not because there was any evidence that he had actively prevented working men from enlisting. Elmer was conscious that the tenor of the times demanded that he govern himself differently than might otherwise have been the case. Yet, in stating that all working men should be opposed to war, he demonstrated to various interested parties within the community that despite this awareness, he lacked good sense and self-control. There may even be room to argue that the content of his statement was less of a concern than was the potential threat posed by someone who had demonstrated such irresponsibility. Effectively, if he was foolish enough to make such an utterance in a country in the midst of a war, what other excessive behaviour might he undertake? Quite simply, he could not be trusted to govern himself with sufficient rigour and thus had to have governance administratively imposed under orders-in-council while the courts dealt with McConnell.32 Admittedly, these are observations proffered from a distance. In 1914 and 1915, as Canadian troops crossed the Atlantic in anticipation of joining the fray, there was little subtlety in home-front accusations concerning seditious language. A complaint was laid against Paul Schaeffer of Mayton, Alberta, when, after reading a German newspaper from New York, he declared, “Mein Gott! We’re going to have Canada soon.”33 In early De-

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cember 1914, Vancouver “street orator” H.M. Fitzgerald was arrested for his indecorous comments concerning the royal family and in particular the queen.34 Allegations against three men in west-central Alberta compelled the Red Deer News to assert that, in contrast with the law-abiding Bohemians who were “minding their own business,” the German settlers were “taking advantage of our good nature”35 Patience was wearing thin and the barrage of bulletins on the use of poison gas at Second Ypres during the third week of April 1915, the sinking of the Lusitania on 7 May, and claims that a Canadian solider had been crucified brought matters to a head.36 News that “Jimmy” Dunsmuir, grandson of British Columbian mining magnate Robert Dunsmuir and son of former lieutenant governor James Dunsmuir, was numbered among the Lusitania dead fanned rising anti-German sentiment into a two-day riot targeting Victoria businesses believed to be operated or owned by Germans.37 To the east in Alberta, and within a framework examined by Bohdan Kordan, entrepreneur Fritz Thaden was convicted of conspiracy in assisting German military reservists attempting to return to Germany to fulfil their service obligations.38 Finding the accused guilty two days after news of the Lusitania and the introduction of martial law in Victoria, Justice William Legh Walsh postponed sentencing Thaden to avoid “a shadow of suspicion that in passing sentence on him there should be any idea of revenge for this awful evil his countrymen have committed.”39 Having already spent four months in custody by the time of his sentencing, Thaden was given a two-year suspended sentence, compelled to post a $1,000 recognizance to keep the peace for two years, and dispatched to the Lethbridge internment camp.40 Paul Bergman, described as “a German,” was arrested for causing a disturbance in a Calgary market by taunting customers with the news that the Lusitania survivors had been compelled to swim for their lives; two days later, “another German” named Benn was locked up for allegedly using seditious language.41 Editorials and letters to the editor quickly appeared, demanding internment for anyone supporting Germany; “it’s up to every true Britisher to declare war against every German whether he is on the battlefield in France or in Calgary.”42 Lethbridge’s police chief, John Skelton, announced that the “obnoxious attitude of certain Germans or German sympathizers” threatened to ignite violence, as had occurred in Victoria where martial law followed the anti-German rioting.43 The chief cautioned pro-German sympathizers who gave voice to their opinions in public that he would “put them in the detention camp if they are not naturalized citizens … and if they are British subjects I shall charge them with

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sedition. This is a warning to them to keep their mouths shut on such subjects as the Lusitania.”44 Quite simply, they were to govern themselves according to the dictates of proper British loyalty. Along similar lines, Brandon’s mayor, H.W. Cater, invited anyone with complaints concerning seditious language to come forward so that either military or police officials could act.45 In an intriguing counterpoise, Otto George Muller, a local resident and a naturalized Canadian of German birth, responded to Cater’s invitation by publicly requesting police protection and, at the same time, warning the city council that he would hold it responsible for any harm done to his family or property.46 Unresolved tensions existed at the heart of these increasingly jingoistic declarations. Was home-front vigilance that targeted German immigrants and sympathizers a legitimate contribution to the war effort or simply racist opportunism? Did the Victoria riot undermine the elevated civility and self-restraint claimed by western Canada’s Anglo-British population?47 Could the civilian courts or military processes channel the righteous indignation of loyal “Britishers” and thus preserve domestic peace, or was the outbreak of rioting in Victoria a lamentable yet understandable and perhaps defensible response to German barbarism? Indeed, was it literally necessary to declare war on every German in western Canada regardless of their naturalization status? Did the tenor of war news rupture standards of self-restraint in response to reported enemy excesses? Perhaps more quizzically, did the same standards demand righteous action in the name of justice? Where was the line between the rule of law and lawlessness in what many believed were unparalleled times? For those accused of uttering sedition, answers were quick to arrive as enemy aliens were summarily dispatched to internment camps while all other complaints delivered Canadian-born and naturalized citizens into civilian courts. leading cases emerge: 1915–16 In the midst of the Lusitania outrage, the first of western Canada’s four leading seditious-language cases began its journey through the criminal justice system. George Cohen, a former German army officer operating a used-furniture store in Calgary’s Riverside neighbourhood, stopped by the local pool hall on 11 May 1915 to purchase some tobacco. Laughing at the recent war news, Cohen declared that Canadians were slaves to King George and, when challenged by Thomas Wiggins, added that after encountering the German army “the Canadians would make good fertilizer.” The ensuing brawl produced an assault charge against Wig-

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gins and a seditious-language complaint against Cohen.48 A day later, Police Magistrate G.E. Saunders dismissed the assault charge because “the provocation was entirely sufficient,” to which Wiggins’s counsel added gratuitously that comments critical of the war effort in Germany would have won Cohen crucifixion. Such possibilities aside, the furniture dealer was bound over to appear at the next assize before Justice W.C. Simmons, where Cohen was convicted of having used seditious language.49 In the interim and four days after Cohen’s preliminary hearing, an inquiry began into allegations that Canadian-born Arthur Trainor, an employee with the provincial government telephone system, had declared his approval of the Lusitania sinking and defended it as justifiable under the laws of warfare.50 When challenged at the time of the incident, Trainor retorted that his critic ought not to “be a hypocrite; you know very well the British are killing women and children by trying to starve them.”51 The preliminary hearing, before Superintendent Fitz J. Horrigan of the Royal North-West Mounted Police (RNWMP) and Justice of the Peace W. Vickery, heard sufficient evidence to warrant a trial and the “telephone man” was bound over to appear before Justice Simmons. Convicted, Trainor was fined $250.52 In passing sentence, the judge claimed that, had he personally heard the remarks attributed to the accused, he too would have been tempted to “take the law into his own hands.”53 The final case in the Alberta triumvirate involved Oscar Felton in what had become a familiar script. While drinking beer on 27 August 1915 in a bar in Okotoks, a small community south of Calgary, Felton declared that he would “like to see the Germans come across the Channel and wipe England off the map.”54 Predictably, the comments attracted both civilian and police attention, and, following a preliminary hearing, Felton appeared before Justice Walsh. Felton was convicted and his lawyer, Ford W. Griffiths, appealed, making it the first seditious-utterance case heard in Alberta’s Court of Appeal.55 The court unanimously upheld the conviction. Chief Justice Horace Harvey outlined the court’s conclusions in a decision handed down on 21 December 1915. Although the Felton appeal centred on what entailed sufficient evidence of intent to support a conviction, it also represented the first opportunity to bring to bear English legal authorities on seditious utterance within the western Canadian setting during the war. Harvey prefaced his ruling with excerpts from Russell on Crimes, Stephens’s History of the Criminal Law, Halsbury’s Laws of England, and the Encyclopaedia of the Laws of England along with English case law. First, he held that, “on the principle that a man is presumed to intend the natural consequences

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of his act, it would always be open to a Judge or jury to infer the intent from the words and the circumstances in which they are spoken.” Evidently, whatever did or did not occur, it was still a judicial prerogative to presume the speaker’s intentions regardless of actual consequences. Second, according to the chief justice, Felton’s statements that he “would like to see the Germans come across the Channel and wipe England off the map” and that “England put Russia into the war and is letting them get licked” amounted to the promotion of ill will while also bringing the government into hatred and contempt.56 Again, despite lacking evidence that Felton’s statements had actually promoted hatred, contempt, and ill will, it was reasonable to make the inference that these results had followed. Finally, Harvey indicated that, as an offence, sedition “covers a wide field … and this present day of the great war when all our people are in a state of nervous tension and excitement, and intense feelings against the enemy due to the struggle in which we are engaged, words which, in ordinary times, would have no effect in creating disorder cannot be used without much great danger, and such words as those in question would not be likely to be used now unless with some intent to stir up trouble.”57 Harvey affirmed the original conviction that Felton had, indeed, intended “to stir up trouble” while having a glass of beer. Apparently, the justices of the Alberta Court of Appeal had been unable to rise above the nervous tension, excitement, and intense feelings of the times. Although concurring in the ruling, Justice Charles Stuart voiced concern over Harvey’s reliance on the “elastic” definition of “seditious intention” that had survived in the 1892 Criminal Code, rather than in light of the circumstances wherein the alleged words were uttered. Stuart’s judicial activism had already been on display in Stoney Joe, where he recognized First Nations’ traditional hunting rights regardless of federal or provincial legislation; in R. v. Cyr, which would culminate in the famous “Person’s Case”; and in Board v Board, which cleared the path for the province’s courts to decide divorce cases. For him, context and local meaning mattered.58 Inflammatory language in a public setting was of a different weight than that spoken in a private setting or conversation. Furthermore, and regardless of context, Stuart denied that “very offensive expressions of dislike towards Englishmen” were necessarily seditious. For a phrase to be seditious, it had to be part of a broader attack on “Great Britain and the Dominions as a whole.” The tendency of Stuart’s concurrence was clear. Attempting to distance the criminal justice system from monitoring all manner of opinions, no matter how ill-informed, his emphasis on the qualitative difference distinguishing public and private narrowed

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Justice Charles A. Stuart. Source: Legal Archives Society of Alberta, Image #5-G-32.

the field for a criminal complaint along the lines that had developed in England but that had been dropped from Canada’s 1892 Criminal Code in order to ease its passage. Although he emerged as the lead opinionwriter on the ensuing two cases, Stuart’s view failed to take hold beyond the court’s chambers and, in 1915’s troubling spring and early summer, western Canadians continued to initiate seditious-language prosecutions, despite the fact that few of the allegations bore any discernible threat to the war effort.

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The next case to appear before the Alberta Court of Appeal was that of George Cohen. Overturning the guilty verdict delivered at trial by Justice Simmons, the court followed the line set out by Justice Stuart’s concurrence in Felton. In a unanimous judgment handed down on 31 March 1916, Stuart indicated that while there was sufficient evidence to place the matter before the original trial jury, the issue of whether Cohen’s words amounted to seditious intention deserved close attention and comment. The primary difference between Felton and Cohen was that a public barroom in a hotel had been the setting for the first case, while in the latter the exchange had been part of a conversation between two individuals. In Stuart’s estimation, Cohen’s case rested “at least upon the extreme limit of the law. Indeed, one is inclined to wonder why the authorities saw fit to put the country to the expense of a criminal trial when it was apparently possible to intern the accused as an enemy alien during the war … the case is near, or indeed, just on the line.”59 As he had done in Felton, Stuart returned to the question of context. Not only should the conversation’s setting play a role in determining these questions, but so too should contemporary events. Certainly, the times might well lend credence to the argument that words such as those spoken by the accused might stir up ill will and hostility, perhaps even rioting as had occurred in Victoria. Indeed, if spoken to a person of great loyalty, there was every reason to believe that animosity might be sparked, and, further, it was conceivable that an average individual’s resolve in the nation’s cause might have been weakened by such statements. Such a scenario was, at least arguable and a jury could conceivably conclude that the words spoken had undermined the war effort. At the same time, Stuart’s tone suggests that a person of great loyalty would maintain convictions of a more resilient character and remain undented by beery declarations. Almost a year removed from the raw emotions of the Lusitania attack, Stuart had arrived at the conclusion that these allegations did not warrant serious attention. In Alberta, despite their enthusiasm for seditious-utterance prosecutions since the war’s early years, police and crown prosecutors seemingly received the message: the number of such prosecutions fell from the wartime high of twenty-five in 1916 to eight a year later (see Table 1). The final leading Alberta case from the First World War involved Arthur Trainor, whose difficulties began moments after the Lusitania reports hit Calgary’s newsstands.60 Stuart’s judgment in Trainor demonstrated how far the court was willing to temper popular and patriotic standards of behaviour that had sustained seditious-utterance prosecutions in the war’s first two years. Having dispensed with a number of technical ques-

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tions on the substance of the complaint, Stuart turned to the definition of seditious language. First, arguing that “disloyalty of the heart” was not a crime, the judge sought to distinguish disloyal or unpatriotic sentiments from those of a seditious nature.61 Specifically, the courts can deal only with words expressive of an intention to create ill will against the monarchy, government, or war effort. Trainor had stated that the sinking of the Lusitania was good and that “war was war.” Stuart then offered a telling distinction: “Now I detest such an opinion as strongly as anyone, but my present duty is to decide the law, not to express my moral or patriotic sentiment. For myself I am unable to see how the expression of such views, mistaken and detestable though they are, upon the proper limitations of the laws of war was calculated, or expressive of an intention, either to promote feelings of ill-will and hostility between different classes of His Majesty’s subject or to incite disaffection against His Majesty’s government.”62 More pointedly, the judge wondered how words uttered at “a country store” undermined the war effort. Certainly, the statements ran “counter to the opinion of everyone who has any moral instinct at all, but why should the expression of an erroneous or even detestable opinion on the proper limits of warfare be calculated, or expressive of an intention, to raise discontent and disaffection?”63 The sentiments lacked morality but that did not mean they were seditious. Stuart concluded by noting that “there have been more prosecutions for seditious words in Alberta in the past two years than in all the history of England for over a hundred years and England has had numerous and critical wars in that time.”64 Although the “patriotic zeal of our public officials” was praiseworthy, he wanted to emphasize “the stability and safety of our institutions” and that prosecutions aimed at “the foolish talk of men in bar rooms” served no useful purpose.65 Prosecuting Trainor had gone too far; the appeal was sound. Stuart’s majority opinion was not unopposed. Judge Walsh, who had tried Fritz Thaden and Oscar Felton, maintained that Trainor’s words were seditious because they had amounted to an attack on the war effort. While he agreed with Stuart’s contention that there were far too many cases of this nature appearing in Alberta’s courts, the problem was the penchant of “ingenious counsel” for applying a “legal fine tooth comb” to decisions made in the lower courts. His fellow judge Stuart was correct; “it is neither necessary nor wise to rush into Court every fool with a wagging tongue and an empty head, because of something which he has said about the war which savours of disloyalty.” However, the province’s “cosmopolitan” make-up required vigilance and permitting unrestrained

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freedom of speech to “every hothead in the community” was extremely dangerous.66 To the degree that the court had moved away from anxious and often excessive vigilance of the early war years, Judge Walsh, for one, continued to champion the more strident standards of behaviour befitting a society fighting for its life. Although his views had failed to win the day in Alberta, the only leading seditious-language case from elsewhere in western Canada revealed that Walsh was not alone. In the Manshrick case, which lasted just two months from the initial complaint to the appellate decision on 23 November 1916, the Manitoba Court of Appeal confirmed Albert Manshrick’s conviction for uttering seditious words. Described as a well-established and prosperous farmer who had refused the blandishments of Patriot Fund canvassers, Manshrick allegedly blamed the Belgians for the misery they suffered at Germany’s hands, praised the sinking of the Lusitania, and expressed his hope that few of the Canadian troops would return home.67 Convicted at the Morden Assizes for the Southern Judicial District during the first week of November 1916, Manshrick appealed the verdict on grounds relating to the admission of evidence and on the issue of whether the jury had received the correct charge as to seditious intent and the definition of seditious words.68 Aided by Cohen and Felton but without reference to Trainor, Manitoba’s chief justice, Hector Mansfield Howell, dismissed the evidentiary questions and confirmed that it was fit and proper for the jury to decide if Manshrick’s statements amounted to seditious language.69 The Court of Appeal’s decision did little to advance the state of Canada’s sedition law and, in terms of the thinking about the threat posed by isolated and individual cases of seditious language, Trainor had already moved towards greater clarity. Still, Manshrink deserves notice for Justice D.A. Macdonald’s jury charge in the trial court, which captured how judicial opinion outside Alberta aligned with the perspective that enemy aliens and dangerous foreigners were incapable of governing themselves in accordance with responsible standards of behaviour.70 After asking the jury members to divest their minds of the “extraneous matter” that had been brought into the case concerning the proclivities of German-born immigrants, Macdonald launched into a strained attempt to both rationalize and exclude prejudice in the jury’s deliberations: “We are very liable, we are only human, and we are British subjects, and we are very liable to entertain a prejudice against the Germans, anything and everything German, a German article, or a German individual and perhaps we have good reason to have that prejudice. I think we can strike out the word perhaps. I think we have

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every reason in the world to be prejudiced against the German nation but that is no reason for you as jurymen and this as a Court of British justice to allow that to enter into this case.”71 Macdonald then added that, even if Manshrink had “German blood in his veins,” he was to be treated as a British subject “while he is in our midst,” and if he was a German subject he was nonetheless “entitled to the same fair play upon his trial.” The exhortation assured the jury and the public that, while moral outrage towards Germans was fully justified, true and loyal British subjects – unlike others – possessed the character required to rise above base responses. In short, British subjects knew how to conduct themselves even if dangerous foreigners did not.72 Macdonald further developed the distinction in directing the jury to consider the demeanour of the principal witnesses as contrasted with that of the accused. Acknowledging that the defence counsel had characterized crown witness Edward Briggs as unreliable and his evidence contradictory, the judge offered the jury a perspective by which to shape their deliberations: “You have seen these witnesses in the box, you have seen Mr. Briggs and Mr. Coombs, and one of the principal means of judging the value of evidence is by the demeanour of the witnesses in the box. It is for you to judge …You look at the men and you judge them by their demeanour in the box. Now, did either of these two men, Mr. Briggs or Mr. Coombes, impress you as men who have come into the witness box with the intention of perjuring themselves and sending this man to gaol or at least making an effort to have you find this man guilty of the offences with which he is charged.”73 Contrast this with the image offered of the accused, who allegedly had approved of the torpedo attack on the Lusitania. “Do you think it is possible, judging from the man’s demeanour in the box, judging from his character generally, do you think it is possible that a man in possession of his senses, would make use of and suggest, that horrible, that wicked expression of such a horrible thought, even if he ever entertained the thought? The Germans have been guilty of many atrocities, they are a nation we can hardly understand from our best view of them … Do you think that a man with a Canadian wife and children of his own is capable of this terrible expression?”74 And, while the conduct of the crown witnesses ought to factor in gauging their credibility, the defence efforts to portray the accused as kind-hearted and good natured had “nothing to do with your duty. Your duty as sworn jurymen is simply to judge this case according to the evidence that has been placed before you regardless of what the results may be. There is no sentimentality in the jury box, no more than on the Judge’s bench. You must not be governed

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by sentiment, you must be governed by hard facts.”75 Despite the fiendish accusations levelled at the accused, Macdonald remained steadfast in his faith that British subjects shared a character that placed unsullied justice at the forefront of their minds. And, even when cast against the horrors of European battlegrounds, that faith and character remained and would remain unbowed just as surely as the righteous cause would emerge victorious. During the seven months between the initial complaint in Cohen and the issuance of the appeal decision in Manshrick, prosecutions for seditious language continued in criminal courts across western Canada and, with rare exceptions, followed established patterns. RNWMP Superintendent Horrigan warned German sympathizers in central Alberta that it was unwise to “forget” themselves while, at the same time, he congratulated local residents for remembering the restraint and respectability expected of loyal citizens.76 Charges followed when Ross Bell, described by the Prince Rupert Daily News as an “Eastern man” from Prince Edward Island who was seemingly under the influence of liquor, reportedly declared that “the Germans will cut the heart out of every damned Canadian who went to the war.”77 By early June, the allegedly seditious talk of aliens in Winnipeg had risen to such proportions that local authorities were actively considering prosecutions and, by the end of the month, the region around Red Deer, Alberta, emerged as a point of particular concern.78 In one instance Theodore Schacht, who defended the sinking of the Lusitania, added that he would rather eat with a cat than with King George and that the RNWMP were “the scum of England” who would not arrest a man unless there “was a crowd of them.”79 John Gray’s claim that “as the Lusitania was carrying munitions of war [and therefore] the Germans had a right to sink her” brought seditious-utterance charges against the former Presbyterian student minister in Prince Albert, Saskatchewan.80 In the midst of this drumbeat of cases there occurred, however, a prosecution that harkened back to those of William McConnell and Herman Elmer in 1914 and, in so doing, articulated a threat that had lain silent during the war’s first eighteen months. a distinct threat: socialist agitation John Reid was a Socialist Party organizer, platform speaker, and candidate who, in 1915, travelled across Alberta building party support in anticipation of Western Clarion editor William Pritchard’s speaking tour that coming winter.81 Although later adopting a very different tone, in

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mid-June 1915 The Guide newspaper of Rocky Mountain House wrote approvingly of an upcoming address by “Comrade John Reid … a forceful, level headed speaker and clear thinker” whose efforts could aid the socialists in giving the “other parties a hot run for their money” in the local constituency.82 The actual speech and later court documents provided a rather different story. After he had previously spoken in the mining town of Nordegg, Reid’s address in Rocky Mountain House on 11 June attacked the war effort as one where “the capitalists would get all the glory, and … the soldiers would return to their country with wooden legs only to be disowned by the King.” Reid also charged that Allied troops, on direct orders from Lord Kitchener, had committed atrocities by “cutting fingers from German soldiers and selling them.”83 J.D. Skinner, owner and editor of The Guide, was appalled; Reid was anything but forceful, level-headed, and clear thinking: “No loyal self-respecting man of whatever party would identify himself with such an individual.”84 As Reid’s tour continued through small communities east of Rocky Mountain House, RNWMP Corporal W.J. Della Torre filed a charge of using seditious language; two more would be forthcoming. Ironically, these complaints ultimately spared Reid some humiliation for, in the aftermath of a speech in Evarts, Corporal J. G. Hanna’s arrival with an arrest warrant reportedly prevented Reid from being “thrown in the river.”85 Reid pleaded not guilty to three charges of using seditious language. At first denied bail and confined to custody, following the provision of $1,000 in sureties, he secured his release after a 3 August appearance before Justice J.H. Hyndman.86 Although Reid was but one of a number of defendants appearing before the Alberta Supreme Court sitting in Red Deer in the early summer of 1915, his three charges garnered the most newspaper attention. The balance sided with Skinner of The Guide, who claimed that a jail sentence would provide Reid with the time to re-examine “his foolish statements.”87 Echoing comments printed by the Calgary Herald in the aftermath of the McConnell case, Skinner argued that “under normal conditions the utterances of Reid might be tolerated but the present is not time for loyal citizens to put up with such humbugging. The doctrine of free speech must not be abused. With men momentarily sacrificing their lives for the Empire, and some of whom are right from our own neighborhood, it is highly improbable that Britishers will stand silently by within the hearing of such objectionable statements as were made by Mr. Reid.”88 Following this theme, the Red Deer News promised RNWMP Inspector W.P. Lindsay that “all the loyal citizens of Alberta” were behind him as he took “the bull

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by the horns” in the seditious-language cases.89 For anyone who thought otherwise, it was prudent that they “keep a civil tongue in their head and mind their own business.”90 Called on 21 September before Justice Maitland McCarthy, the case was delayed because the judge refused to proceed until the complaint clearly indicated the allegedly seditious words.91 For, while it might be true that these words were in the body of Reid’s ninety-minute speech, the crown was obliged to specify the precise language in the complaint.92 McCarthy’s demand highlighted the tautology of section 132 of the Criminal Code wherein “words expressive of seditious intention” defined what it was to speak seditiously.93 Requiring that the crown set out the allegedly seditious words, McCarthy applied some restraint on what could have degenerated into a witch-hunt. Still, redrafting the complaint required the trial to be rescheduled for the next assize. Unfortunately for Reid, the redrafted complaints failed to hamper the prosecution. Despite his counsel’s claim that a guilty verdict would “strike a blow at the cherished British heritage of freedom of speech” and that “the jury must take a broadminded view as to the rights of the advocate of an unpopular cause in citing his unpleasant facts,” a fifteen-month sentence in the Lethbridge jail followed Reid’s conviction before Justice Charles Simmons on 1 February 1916.94 The response to Reid’s statements in the press and to Simmons’s ruling traced the slender margins of toleration for socialist campaigners in late 1915 and early 1916. While most of the newspaper commentary prefaced denunciations of Reid with declaratory statements celebrating the English tradition of free speech, in practice a disinclination to tolerate dissent or criticism of almost any aspect of wartime governance or military policy circumscribed this tradition. Effectively, freedom of speech covered only that which the public and legal authorities were willing to hear and as the war dragged on this narrowed considerably for socialist campaigners. For his part, Judge Simmons’s view reflected that of the Alberta Supreme Court, which had already decided Cohen but not yet addressed either Felton or Trainor. Charging the jury, Simmons acknowledged a set of working assertions. First, British subjects enjoyed the right to hold and express their political, religious, and economic opinions without serious disturbance to fellow citizens. Secondly, every person was assumed to intend the natural meaning and consequences of his own utterances. Thirdly, there must be a form of government to ensure the protection of these rights and individuals should tread lightly when casting contempt or scorn on duly constituted authority. Finally, any public speaker must leave the audience with no doubt as to whether the proffered views re-

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flected his own experience or were the product of hearsay or knowledge gained from other sources and perspectives. Consequently, and given the tone of his allegations, Reid should have been better prepared to provide the evidence to sustain his claims about the behaviour of Allied troops and the prosecution of the war effort. After the jury returned its guilty verdict, Simmons expanded on his charge, indicating that he “whole-heartedly” agreed with the decision and added that Reid, in stating in public what he had, revealed himself as “a knave or a fool.”95 To this point there had been little to distinguish the socialist speaker from the others who had collided with the law and patriotic sentiment in western Canada. The judge then turned to the British institutions that the jury had so well represented: “Their institutions and administration allowed a great margin of toleration to every citizen, no matter how mistaken his views, provided they were held honestly, but no margin for a man dishonest in his representations of his case, and dishonest in his evidence, trying to give his utterances a different turn and a different twist from what was said, as Mr. Reid tried to do. An honest advocate of the Socialist principles was one thing but there were some men who were better talkers than workers, and it looked as if the accused was one of them.”96 While it is true that Reid had made a number of inflammatory claims that, in the immediate aftermath of Second Ypres, the Lusitania attack, and the crucifixion story were likely to trigger a complaint for seditious language, Simmons’s ire centred on the supposed dishonesty the campaigner used in defending himself. In particular, the judge’s barbed allowance that an honest socialist “was one thing” framed the assertion that Reid was a “talker” who was incapable of adhering to the standards of behaviour that wartime necessitated. It may have been unsurprising that individuals new to Canada, and especially those from enemy nations, were prone to espouse questionable if not dangerous ideas, but the organized advocacy of threatening political ideologies represented a more serious and worrying threat. Reid’s behaviour in uttering the words he did and the manner in which he attempted to evade responsibility for those words demonstrated a character flaw that, if shared among the Socialist Party leadership, rendered them untrustworthy and unfit for elected office. That Reid, a Scot and born a subject of Great Britain, did so underlined the manifest danger posed by someone who should have known better.97 While by late 1916 and early 1917 the foolish talk of men in barrooms was seen in some quarters as unworthy of sustained judicial attention, this latitude could not be extended to those who espoused, in an organized manner, unsettling and possibly dangerous doctrines. To

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paraphrase Judge Macdonald in Manshrink and Judge Walsh in Trainor, foolish men in barrooms were “one thing” but socialists were an entirely different matter. Reid’s conviction signalled the re-emergence of the pre-war association between politicized “troublemakers” and allegations of seditious language. While the Alberta Court of Appeal had attempted to slow opportunistic, ethnically motivated, and frivolous prosecutions, there had been little indication that free speech would embrace the perceived irresponsibility of socialist campaigners. Further, while the home-front hyperbole in the aftermath of Second Ypres, the Lusitania sinking, and the crucifixion story had played itself out by late 1916, the establishment of the Great War Veteran’s Association (GWVA) added another complicating factor to the mix.98 For while the GWVA ensured the respectability of anti-foreigner rhetoric and behaviour regardless of the legal finery displayed in Alberta, the association’s internal divisions over socialism revealed the volatility of domestic politics during these years. Whether the threat was that embodied by dangerous foreigners, irresponsible subjects who should have known better, or dishonest and threatening socialist ideologues, the appeal of employing sedition allegations to corral and silence such troublemakers must have been considerable, even if Alberta’s bench had manifested a more selective approach. lingering unease: 1918 By the time Europe’s battlefields had fallen silent in November 1918, homefront notions about seditious language had travelled full circle, albeit by a meandering route, and the journey through the western Canadian context had coloured judicial thinking. Disloyal, contrary, or unpalatable opinions expressed in private or even within a small public setting, if worthy of a criminal complaint, did not warrant worried attention. As Justice Stuart assured the public in Trainor, the nation’s institutions were sturdy enough to withstand fools in barrooms uttering nonsense. However, when irresponsible and perhaps dishonest individuals mounted stages and took to the public rostrum where they commanded the attention of an audience and perhaps many more through reported and reprinted speeches, the patience afforded to the ill-informed and careless would not be further extended. The apparent willingness to “abuse” freedom of speech was too great a departure from appropriate conduct for those aspiring to shape public opinion. It was a threat that could not go unanswered. And, as the nation moved from war to an increasingly tumultuous and fractured

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peace, it was this latter group that attracted the sharpened attention of provincial and federal officials alike.99 The wartime contests over seditious language had sown the seeds of the repressive section 98 of the Canadian Criminal Code, the official response to the strikers in Winnipeg, and, indeed, the punitive reactions to those who walked off the jobs in resource communities across western Canada. Peter Symk’s arrival in Lacombe, Alberta, on 8 November 1918 provides a compelling portrait of the tenor of the times.100 Born of GermanAmerican parents, Symk was a naturalized Canadian whose enlistment attempts were rebuffed owing to his hunchback and his familial responsibilities. It was in that latter role that he had sought out work in Lacombe. Confronted by a Dominion constable after disembarking from the train, Symk immediately penned a note to the registrar in Calgary notifying that office of his change of address; the letter arrived a day later. Yet on the 8th, the constable once again stopped Symk, arrested him, and presented him to Norman E. Carruthers, justice of the peace, who launched into a close questioning before a charge had been laid or oaths sworn. Symk explained that he had notified the registrar by mail but Carruthers was unmoved and ordered a thirty-day sentence in the Red Deer gaol. Informed of the events, Red Deer lawyer Arthur Russell filed notice to secure Symk’s release and Justice Stuart, who had played such a prominent role in tempering the patriotic zeal of local officials in the seditiouslanguage cases, quickly ordered Symk’s discharge. In a ruling released in late January 1919, Stuart offered a stark commentary on the war and the toll it had wrought on the home front: “I have no doubt in the world that the real reason why this man was sent to jail was because he appeared to be German, although he was born an American citizen and was a British subject by naturalization and was complying with the law, and not at all because it was thought he had failed to comply with the law; and when such things as throwing this man in jail for a month in the manner I have described can happen in the name of loyalty and patriotism in this country, we ought to cease to wonder at what was being done in the name of the same things in Germany.”101 Having witnessed the incomprehensible and now facing the unknown, the judge had been given reason to reflect on the assurances he had offered as to the soundness of the nation and its institutions. Authored just four months before the Winnipeg General Strike, Stuart’s decision, with all the discomfort it expressed, marked a telling moment for a community on the verge of once again examining the meaning of responsibility, citizenship, and the willingness to adhere to respectable standards of behaviour.

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While it is arguable that Stuart’s decision in Symk was influenced by the war having already been won, it would be ungenerous to overlook the fact that the judgment held true to his thinking in seditious-language cases extending back to late 1915. When it came to the intersection between the shifting wartime standards of behaviour concerning free speech, loyalty, and nativism, Stuart had separated patriotic zeal from racist jingoism in the face of newspaper reports and editorials, public opinion, lower court decisions, and the views of his brethren. Given the tenor of the times and what was viewed as the absence of normal circumstances militating against unrestrained free speech, the accomplishment was not inconsiderable.102 Yet, even so, there is little evidence that any of the western Canadian judges, including Stuart, were inclined to champion toleration for those advocating socialist solutions for the inequities of life in western liberal democracies. This was a perspective out of step with a growing segment of the western Canadian public which, at the war’s outset and increasingly during its final years, was prepared to lend a sympathetic ear to socialist solutions for the supposed ills of western capitalism.103 When taken together, the fissures of opinion reveal the depth of sentiment among the public, state officials such as the police, various court levels, and politically motivated groups including veterans, unskilled workers, and advocates of workplace organization. There were indeed disparate zones of community and legal toleration underpinning the continuum of governmentality in western Canada during the Great War. And, while the press and some public representatives willingly demonized foreign-born settlers for allegedly undermining western Canadian society and weakening its resolve in times of conflict – a portrait that few municipal, provincial, or Dominion figures opposed – there is little doubt that, from the state’s perspective, the real threat on the home front remained socialist and, in time, communist agitation. Viewed from the vantage point of a century since the outbreak of the First World War, a conflict supposedly fought in defence of empire, democracy, liberty, and Christianity, the shifting standards of behaviour at the heart of governmentality reveal that which was both admirable and deplorable. After a faltering start responding to nativist prosecutions for seditious language where crown prosecutors and the courts manifested an unalloyed willingness to prosecute anything hinting of seditious language, the Alberta Supreme Court eventually demonstrated that it was capable of rising above the nervous tension, excitement, and intense feelings of the times. After all, agrarian western Canada was a relatively new society peopled with newcomers from across North America, the United

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Kingdom, Europe, and beyond, and if it was to prosper, the contributions of many, not just loyal Britons, would be needed. At the same time, the judiciary, in concert with most if not the entirety of the state, was disinclined to believe that prosperity would be found within the dictates of socialism or through the actions of those promoting its message. Their advocacy seemingly abused the British tradition of free speech, and just as importantly, the wartime cases suggested that the traditional definition of sedition and the perspectives of the nation’s judiciary might not be sufficient protection in the face of this new foe. The state, for one, and in time the judiciary emerged as increasingly willing to accept that the strictures of section 98 of the Criminal Code were needed to protect the reborn nation emerging out of the ravages of war.104 Instituting that revision of the criminal law in the midst of what proved to be the build-up to the Winnipeg General Strike represented a willing embrace of state repression. It entirely obscures the fact that, while not beyond reproach, the Alberta Supreme Court voiced the principle that in a new Canada, the courts need not provide a forum for jingoistic and racist prosecutions. That this sense of what brought the law into disrepute did not include a similar rejection of opportunistic and politically motivated prosecutions proved, unfortunately, to be the more telling legacy of the wartime seditious-language cases in western Canada. Notes   1 John Keegan, The First World War (Toronto: Vintage Canada 2000), 205.   2 See Tim Cook, At the Sharp End: Canadians Fighting in the Great War 1914–1916 (Toronto: Viking 2007), for an extraordinarily compelling treatment of the Canadian infantry’s experiences during the first two years of the war. Cook’s second volume, Shock Troops: Canadians Fighting the Great War, 1917–1918 (Toronto: Viking Canada 2008), maintains the high standard of scholarship and writing.   3 Desmond Morton and J.L. Granatstein, Marching to Armageddon: Canadians and the Great War (Toronto: Lester and Orpen Dennys 1989), 22–9. Also see Jonathan F. Vance, Death So Noble: Memory, Meaning, and the First World War (Vancouver: UBC Press 1997); Ian Hugh Maclean Miller, Our Glory and Our Grief: Torontonians and the Great War (Toronto: University of Toronto Press 2002); and Timothy C. Winegard, For King and Kanata: Canadian Indians and the First World War (Winnipeg: University of Manitoba Press 2012).   4 Originally articulated by John Stuart Mills, the phrase “marketplace of ideas”

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  5

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10

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was employed by Justice Oliver Wendell Holmes in his dissent in the American First World War seditious-language case Abrams v. US in 1919. On Holmes and freedom of speech, see G. Edward White, Justice Oliver Holmes: Law and the Inner Self (New York: Oxford University Press 1993), 412–54. Mitchell Dean, Governmentality: Power and Rule in Modern Society, 2nd ed. (London: Sage Publications 2010), 17; Colin Gordon, “Governmental Rationality: An Introduction,” in Graham Burchell, Colin Gordon, and Peter Miller, eds., The Foucault Effect: Studies in Governmentality (Chicago: University of Chicago Press 1991), 2–3. See Foucault’s reference to the “government of oneself” in his “Governmentality,” in ibid., 87. Dean, Governmentality, 18. Eric Tucker, “Street Railway Strikes, Collective Violence, and the Canadian State, 1886–1914,” in CST3, 259. See Bodan Kordan’s chapter in this volume. Also see James R. Carruthers, “The Great War and Canada’s Enemy Alien Policy,” Queen’s Law Journal, 4 (1978): 43–110. R. v. Trainor, Alberta Supreme Court, Appellate Division, Alberta Law Reports [hereafter ALR], 10 (1917), para. 34. See also “Stuart, Charles Allan,” in Louis A. Knafla and Richard Klumpenhouwer, eds., Lords of the Western Bench: A Biographical History of the Supreme and District Courts of Alberta, 1876–1990 (Calgary: Legal Archives Society of Alberta 1997), 176–8. For the issue of Canadian courts attempting to stand apart in relation to enemy-alien issues, see Carruthers, “The Great War and Canada’s Enemy Alien Policy,” 43–110. As demonstrated elsewhere in this volume by Patricia McMahon, the Alberta Supreme Court was embroiled in other cases concerned with the intersection of political and judicial authority during the war. On the Lewis case, see Dale Gibson, “The Supreme Court of Alberta Meets the Supreme Court of Canada,” and Wayne Renke, “The Power of Law: Judicial Independence and the Supreme Court of Alberta,” in Jonathan Swainger, ed., The Supreme Court of Alberta at 100: History and Authority (Edmonton: University of Alberta Press, and Toronto: Osgoode Society for Canadian Legal History, 2007), 100–3 and 69–98. Gregory Kealey has convincingly argued that concern over the legal system’s ability to control the various domestic threats facing the nation included sustained doubts about the Royal North-West Mounted Police. Dwindling numbers in the RNWMP and worries about the force’s abilities triggered the formation of the Alberta and Saskatchewan provincial police forces. See Gregory Kealey, “The Surveillance State: Domestic Intelligence and CounterSubversion in Canada, 1914–1921,” Intelligence and National Security, 7, no. 3

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13

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15 16 17

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(1992): 182. On the origins of the two forces, see Zhiqiu Lin, Policing the Wild North-West: A Sociological Study of the Provincial Police in Alberta and Saskatchewan, 1905–32 (Calgary: University of Calgary Press 2007), 25–46. A similar conclusion may have been drawn in light of the conscription cases examined by Patricia McMachon in this volume. For the environment towards organized labour and labour politics, see A. Ross McCormack, Reformers, Rebels, and Revolutionaries: The Western Canadian Radical Movement, 1899–1919 (Toronto: University of Toronto Press 1977), 118–64, and Judy Fudge and Eric Tucker, Labour before the Law: The Regulation of Workers’ Collective Action in Canada, 1900–1948 (Toronto: Oxford University Press 2001), 16–103. On C.H. Cahan and his role in fanning the embers of the post-war Red Scare, see Kealey, “The Surveillance State.” For an example of the level of official unease with the rising spectre of socialism and communism, see Benjamin Isitt’s chapter in this volume. Sir James Fitzjames Stephen, A History of the Criminal Law of England, 2 vols. (London: Macmillan 1883), 2: 299–300. I employed R v. Cohen, R v. Trainor, R. v. Felton, R v. Reid, R. v. Schacht, and In re Smyth in “Wagging Tongues and Empty Heads: Seditious Utterances and the Patriotism of Wartime in Central Alberta, 1914–1918,” in Louis A. Knafla and Susan W.S. Binnie, eds., Law, Society and the State: Essays in Modern Legal History (Toronto: University of Toronto Press 1995), which concentrated on central Alberta alone and in which the leading cases provided context for localized prosecutions. The current chapter expands the scope of this examination with a new set of enquiries aimed at shifting standards of behaviour and the expectation that the state and judiciary ought to actively police such expectations. Sir James Fitzjames Stephen, A Digest of the Criminal Law (London: Macmillan 1883), 65. Ibid., 66. For a survey of the British jurisprudence, see Sir William Oldnall Russell, A Treatise on Crimes and Misdemeanors, 2 vols. (Toronto: Canada Law Book Company 1910), 1: 301–15. Desmond H. Brown and Barry Wright, “Codification, Public Order, and the Security Provisions of the Canadian Criminal Code, 1892,” in CST3, 540. See, generally, Tucker, “Street Railway Strikes, Collective Violence and the Canadian State.” Brown and Wright, “Codification,” 545–6. Canada, The Criminal Code of the Dominion of Canada (Toronto: Carswell Law Publishers 1908), s.134. These were not the only topics that elicited accusations of seditious language and seditious libels. For a small number of examples, see “The Emmerson

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Episode,” Red Deer News, 17 July 1907; “Winnipeg Tribune: Where Are the Watch Dogs in Quebec?” Red Deer News, 14 April 1909; “Letters to the Editor: Letter from Father Gerritsma,” Winnipeg Free Press, 9 April 1912; “More Sedition and Treason Openly Preached in Ulster,” Prince Rupert Daily News, 25 Sept. 1913; “The Rejection of the Hindus,” Winnipeg Free Press, 24 July 1914; and “Bishop Budka, Austrian Mobilizer in this Country,” Winnipeg Free Press, 7 Aug. 1914. For newspaper reports on the disturbances, see “20 Cents Per Hour Is Offered as Wages for Unemployed,” and “Chief Puts Kink in Unemployed’s Plans,” Morning Albertan, 3 Jan. 1914, and “Alderman Maintain Demonstrations Due to Political Engineering,” Calgary Herald, 2 Jan. 1914. The Herald article is a continuation from that edition’s missing front page. McConnell’s name does not appear in any of the reports. Also see “McConnell Convicted on Sedition Charge,” Morning Albertan, 19 Feb. 1914. For the post-Confederation sedition issues, see Brown and Wright, “Codification.” Two months before McConnell’s case was tried, Alberta’s legislature hosted a bad-tempered debate centred on whether Arthur Sifton’s Liberal government supported the publication of allegedly seditious material in the Alberta Herald. For a shrill version of events, see “Deplorable Scene in Provincial Legislature: Premier Sifton and Liberal Members Back-up Pro-German Publications,” Red Deer News, 28 Oct. 1914. For similar discussions on pro-German commentary, see “Warns Western Papers against Publishing Pro-German Articles,” Brandon Daily Sun, 4 Nov. 1914, and “Canada Curbs Germans: Newspapers in West Ordered to Stop Printing Seditious Matter,” New York Times, 4 Nov. 1914. On the trial, see “Faces Sedition Charge,” Manitoba Free Press, 18 Feb. 1914, and “McConnell Convicted on Sedition Charge,” Morning Albertan, 19 Feb. 1914. Also see “Calgary Man Found Guilty of Sedition: Incited Men to Steal,” Edmonton Capital, 19 Feb. 1914, and “I.W.W. Secretary is Convicted of Sedition,” Edmonton Daily Bulletin, 19 Feb. 1914. On Harvey, see William F. Bowker, “The Honorable Horace Harvey, Chief Justice of Alberta,” Canadian Bar Review, 32, no. 9 (1954): 932–81 and 1118–39. “McConnell Is Released,” Calgary Daily Herald, 20 Feb. 1914, and “There’s a Difference,” Calgary Daily Herald, 20 Feb. 1914. “Caring for the Needy,” Morning Albertan, 2 Jan. 1914, and “The Unemployed Problem,” Morning Albertan, 3 Jan. 1914, the latter of which stated that “to advise a man to save his money and not get in such a sad condition of affairs, such as some of the members of the board of trade gave to the unemployed, is foolish and unfair. The wealthy who gave the advice did not earn all of their money by saving what they got from hard labor. The unemployed problem is

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31 32

33 34 35 36

with us, not as strenuous as in some places but the city officials would do better by meeting it than trying to disguise the existence of it.” “Fight for Release of German Miner,” Lethbridge Herald, 6 Feb. 1915. Also see “Organization of Miners Discussed,” Manitoba Free Press, 22 Feb. 1915. For labour’s concern with the war, see McCormack, Reformers, Rebels, and Revolutionaries, 118–36. “Arrested for Sedition,” Phoenix Pioneer, 10 Oct. 1914. Also see untitled article in Grand Forks Sun, 16 Oct. 1914. When a letter writer to the Western Clarion stated, in line with socialist opposition to war, that in the current circumstances “the Dove of peace has nowhere to roost,” the Hedley Gazette responded with the irrelevant rejoinder that such “seditious sentiment” could not be expressed in Germany. See “Unworthy Taunts,” Hedley Gazette, 22 Oct. 1914. “Fight for Release of German Miner,” Lethbridge Herald, 6 Feb. 1915. Two chapters in this volume address organized labour’s principled opposition to the war and conscription (Isitt) and the security measures aimed at enemy aliens (Kordan). “Child Killed by Aeroplane Bomb,” Lethbridge Herald, 10 Oct. 1915. A small item in the Phoenix Pioneer in mid-December 1914 suggested that in some areas opinions were hardening: “The Kootenian [Kaslo] says: “A letter has been sent by the municipal authorities to the Attorney General, asking for advice as to what to do in the case of registered Austrians residing within the city limits who refuse to report monthly. Advice is also sought as to what is to be done in the case of residents of other nationalities who are siding with the enemy and openly preaching sedition.” See untitled article in Phoenix Pioneer, 11 Dec. 1914. For a similar view, see “Correspondence,” Red Deer News, 25 Nov. 1914, wherein the author, “A Loyal Britisher,” believed that all Germans and Austrians in Canada should be subjected to a severe crackdown because of the threat they posed. “Alberta German Is Arrested for Sedition,” Prince Rupert Daily News, 20 Nov. 1914. “Street Orator under Arrest at Vancouver on a Serious Charge,” Brandon Sun, 3 Dec. 1914. “Germans Talk Too Freely and Get a Warning,” Red Deer News, 9 Dec. 1914. The outrage over the Lusitania sinking is captured in “Calgary Roused by Brutality of German Savages,” Calgary Herald, 8 May 1915, 1. Stories of the crucifixion of Canadian soldiers began appearing in western Canadian newspapers in early May 1915. See: “Canadians Found One Man Crucified,” Edmonton Bulletin, 6 May 1915; “Circumstantial Story of a Crucifixion of a Canadian Sergeant by Germans,” Calgary Herald, 14 May 1915; “Verifies the

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37

38 39

40 41

42

Crucifixion of a Canadian,” Calgary Herald, 15 May 1915; “Says Sergeant of Pats Crucified,” Edmonton Bulletin, 17 May 1915; “Houston, MP, after Evidence of Crucifying,” Calgary Herald, 18 May 1915; “Crucifixion of Canadian by Germans Has Been Confirmed,” Edmonton Bulletin, 19 May 1915; “Investigating Charge Canadian was Crucified,” Edmonton Daily Bulletin, 20 May 1915; “Saw with His Own Eyes Two Canadian Sergeants Crucified,” Edmonton Bulletin, (morning edition), 14 September 1915; and “London Boy Nailed to Barn Door by Germans at Ypres,” Lacombe Guardian, 1 Oct. 1915. Cook argues that, while these stories lacked grounding in fact, they nonetheless served a purpose in further demonizing the Germans; see Cook, At the Sharp End, 163. For details of the Victoria riot, see Arthur Tylor Richards, “(Re)-Imagining Germanness: Victoria’s Germans and the 1915 Lusitania Riot” (MA thesis, University of Victoria 2009); Tracy Raynolds, “A Case Study in Attitudes towards Enemy Aliens in British Columbia” (MA thesis, University of British Columbia 1973), 63–6; Charles Humphries, “War and Patriotism: The Lusitania Riot,” British Columbia Historical News (November 1971): 5–23; and Isitt’s chapter in this volume. More generally, see “Victoria, B.C., Placed under Martial Law,” Calgary Herald, 10 May 1915; “Victoria under Martial Law; Soldiers Head Mob in Attack on Germans,” Lethbridge Herald, 10 May 1915; “Victoria People Show Indignation,” Edmonton Bulletin, 10 May 1915; and “Martial Law in Force in Victoria,” Edmonton Bulletin, 11 May 1915. “German Property Badly Damaged by Furious Mob at Victoria, Saturday,” Camrose Canadian, 13 May 1915. See Kordan’s chapter in this volume. “Fritz Thaden Is Convicted of Conspiracy,” Calgary Herald, 10 May 1915. Also see “Fritz Thaden Is Placed on Trial for Conspiracy,” Calgary Daily Herald, 3 May 1915, and “Judgment Will Be Given Monday in Thaden Case,” Calgary Daily Herald, 4 May 1915. Similar incidents and prosecutions occurred in Vancouver where the German consul, G. Wulfson, was implicated in efforts to smuggle reservists out of the province en route to Washington. See Raynolds, “A Case Study in Attitudes towards Enemy Aliens in British Columbia,” 40–1. See “Walsh, William Legh,” in Knafla and Klumpenhouwer, eds., Lords of the Western Bench, 187–9. “Thaden Must Keep the Peace for Two Years,” Calgary Herald, 21 May 1915. “German Gloater Arrested,” Calgary Daily Herald, 8 May 1915; “Another German Arrested,” Calgary Daily Herald, 10 May 1915; “Will Try Bergman for the Use of Seditious Talk,” Calgary Daily Herald, 11 May 1915; “Calgary German Committed,” Winnipeg Free Press, 12 May 1915. “Shut Them Up: He Would Not Let Germans Have Citizen Liberties,” Cal-

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43

44 45

46 47 48

49 50

51 52 53 54 55

gary Daily Herald, 11 May 1915; “Intern Them All,” Calgary Herald, 14 May 1915; “Time to Wake Up: Hun Atrocities Are Making British Red Blood Boil,” Calgary Herald, 14 May 1915; “He Says Intern: Strong Letter by a Man Who Has Studied Situation,” Calgary Herald, 17 May 1915. For a thoughtful examination of Lethbridge during the First World War, see Robert Rutherdale, Hometown Horizons: Local Responses to Canada’s Great War (Vancouver: UBC Press 2004). “Police to Deal with Local Germans,” Lethbridge Herald, 12 May 1915. “Report Disloyal Expressions,” Brandon Daily Sun, 13 May 1915. On Cater, see Leland Clark, “Harry Cater: The Personification of the Successful Municipal Politician?” Manitoba Historical Society Transactions, series 3, no. 35 (1976– 9), http://www.mhs.mb.ca/docs/transactions/3/cater_h.shtml (accessed 31 Aug. 2012). “Otto Muller Complains: Declares His Loyalty,” Brandon Sun, 18 May 1915. Richards, “(Re)-Imagining Germanness,” 86–7. “Dynamite Stolen by Unknown Leads to Many Rumors in City,” Calgary Daily Herald, 12 May 1915. For an earlier discussion of the Cohen case, see Swainger, “Wagging Tongues and Empty Heads,” 274–5. “Said Canadians Would Make Good Fertilizer,” Calgary Daily Herald, 13 May 1915. On the Trainor case, see “Alleged to Have Gloated over News about Lusitania,” Calgary Herald, 17 May 1915, and “Charge of Sedition Against Telephone Man: Committed for Trial,” Strathmore Standard, 19 May 1915. Also see “Committed for Trial on Sedition Charge,” Brandon Sun, 20 May 1915; “Local Jottings,” Strathmore Standard, 2 June 1915, indicating that Trainor’s bail was $3,000; and “Criminal Cases,” Strathmore Standard, 9 June 1915, which notes that Trainor’s case was scheduled for the ensuing day. R. v. Trainor, Alberta Supreme Court, Appellate Division, ALR 10 (1917), para. 10. “Charge of Sedition against Telephone Man: Committed for Trial,” Strathmore Standard, 19 May 1915. “Trainor Fined $250,” Strathmore Standard, 16 June 1915. R v. Felton, Alberta Supreme Court, Appellate Division, ALR, 9 (1915), para. 21. The notes taken in preparation for the crown’s arguments in Felton’s case are housed in the Spencer Cummings fond, Glenbow Archives, M-1938/262. According to witness A.W. Visser, deposed before F.J. Horrigan on 30 Aug. 1915, Felton stated that “I hope to Christ the Germans come across the Channel and knock the shit out of Old England. I don’t give a shit for an Englishman. They are no good any way.” Susan Kooyman, an archivist at the

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56 57 58

59 60 61 62 63 64 65 66 67

Glenbow, was kind enough to provide me with a copy of these documents. For an earlier treatment of this case, see Swainger, “Wagging Tongues and Empty Heads,” 270–1. R v. Felton, para. 22. Ibid., para. 29. On Stuart as a judge, see Louis A. Knafla, “The Supreme Court of Alberta: The Formative Years, 1905–1921,” in Swainger, ed., The Alberta Supreme Court at 100, 38–9. On the Stoney Joe case, see Douglas Sanders, “The Queen’s Promises,” in Louis A. Knafla, ed., Law and Justice in a New Land: Essays in Western Canadian Legal History (Toronto: Carswell 1986), 101–28, and Brian Calliou, “The Supreme Court of Alberta and First Nations Treaty Hunting Rights: Federalism and Respect for ‘the Queen’s Promises,’” in Swainger, ed., The Alberta Supreme Court at 100, 133–58. On the Cyr case, see David Bright, “The Other Woman: Lizzie Cyr and the Origins of the Persons Case,” Canadian Journal of Law and Society, 13, no. 2 (1998): 99–115. On the “Person’s case,” see Catherine Cavanaugh, “Out of the West: History, Memory and the Person’s Case, 1919–2000,” in Richard Connors and John M. Law, eds., Forging Alberta’s Constitutional Framework (Edmonton: University of Alberta Press 2005), 136–63, and Robert Sharpe and Patricia McMahon, The Persons Case: The Origins and Legacy of the Fight for Legal Personhood (Toronto: Osgoode Society for Canadian Legal History 2007). On Board v. Board, see Allison Rankin, “Rescinding the Vow: Divorce in Alberta and Prairie Canada, 1905–1930” (MA thesis, University of Calgary 1998), ch. 5, and Gibson, “The Supreme Court of Alberta Meets the Supreme Court of Canada,” 104–5. Stuart’s principles are also noted by McMahon in this volume. R v. Cohen, Albert Supreme Court, Appellate Division, ALR 9 (1916), paras. 11 and 12. The following is based in part on Swainger, “Wagging Tongues and Empty Heads,” 276–8. R. v. Trainor, para. 29. Also see “Stated Case Granted in Two Applications,” Calgary Daily Herald, 6 Nov. 1916. R. v. Trainor, para. 30. Ibid., para. 31. Ibid., para. 34. Ibid. Ibid., para. 47. “Rex v. Manshrick,” Canadian Criminal Cases [CCC], 27 (1917): 17. That Manshrick was unwilling to contribute to the Patriot Fund despite being perceived as financially well-off contributed to the animosity directed at him. Also see Reinhold Kramer and Tom Mitchell, When The State Trembled: How

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68

69 70

71 72 73 74 75 76 77

78

79 80 81

A.J. Andrews and the Citizens’ Committee Broke the Winnipeg General Strike (Toronto: University of Toronto Press 2010), 303–4. See “Charged with Sedition,” Brandon Sun, 21 Sept. 1916; “Morden Farmer Is Guilty of Sedition,” Manitoba Free Press, 4 Nov. 1916; “Manshrick Fined $700 for Sedition,” Manitoba Free Press, 27 Nov 1916; and “Rex v. Manshrick,” CCC, 27 (1917): 19. See Richard A. Willie, “Howell, Hector Mansfield,” Dictionary of Canadian Biography, 14 (Toronto: University of Toronto Press 1998), 509–11. On Justice Macdonald, see Dale Brawn, The Court of Queen’s Bench of Manitoba, 1870–1950 (Toronto: Osgoode Society for Canadian Legal History/University of Toronto Press 2006), 199–203. Unless otherwise cited, the following is based on Justice Macdonald’s jury charge, reproduced in “R v. Manshrick,” 19–25. “R v. Manshrick,” 20. Dean, Governmentality, 17–21. “R v. Manshrick,” 21. Ibid., 22 and 23. Ibid., 24. “Given a Warning,” Disbury Pioneer, 19 May 1915. “Charge of Seditions against Eastern Man,” Prince Rupert Daily News, 25 May 1915, and “Local News Items,” Prince Rupert Daily News, 26 May 1915. “Germans Organize to Help Defeat Britain,” Winnipeg Free Press, 3 June 1915; “Hordan in Custody,” Winnipeg Free Press, 4 June 1915; “Aliens in Winnipeg Talk Seditiously,” Brandon Sun, 8 June 1915; “George Benson Sentenced,” Winnipeg Free Press, 11 June 1915; “Mounted Police Arrest German on Sedition Charge,” Redcliff Review, 18 June 1915; “Local and General,” Red Deer News, 23 June 1915; “Charged with Sedition,” Red Deer Advocate, 25 June 1915; “Sent up for Trial,” Winnipeg Free Press, 25 June 1915; “John Reid, the Socialist Candidate, and C.H. Von Holtum Committed for Trial for Seditious Utterances,” Red Deer News, 30 June 1915; “The Socialist Candidate,” The Guide (Rocky Mountain House), 18 June 1915; “Farmer Charged with Sedition,” Bow Island Review, 9 July 1915; “A Case of Sedition,” Red Deer News, 21 July 1915; “Try Austrians for Sedition,” Lethbridge Herald, 18 Aug. 1915; “Victor D. Freytag Interned,” Red Deer News, 18 Aug 1915; “Charged with Uttering Seditious Language,” Prince Rupert Daily News, 18 Aug. 1915. R. v. Schacdt (1915, unreported), Alberta Supreme Court (Red Deer), Provincial Archives of Alberta [PAA], Accession 79.220, file 121. “Sent up for Trial,” Winnipeg Free Press, 25 June 1915, 1. See Peter Campbell, “Bill Pritchard’s Propaganda Tour of Alberta, Winter

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82 83

84 85

86 87 88 89 90 91 92 93 94

95 96 97

1915–16,” in Labour/Le Travail, 37 (spring 1996): 266. The following is based loosely on Swainger, “Wagging Tongues and Empty Heads,” 267–9. “Of Local Interest,” The Guide, 11 June 1915. R. v. Reid (1915, unreported), Alberta Supreme Court (Red Deer), PAA, Accession 79.220, file 1205. Nordegg was named after its founder Martin Nordegg, a German industrialist who left Canada for the United States after his company’s assets were frozen early in the war. See W. John Koch, Martin Nordegg: An Uncommon Immigrant (Edmonton: Brightest Pebble Publishing Company 1997). Reid’s appearance in the coal-mining community was noted in “Nordegg News,” The Guide, 18 June 1915. “The Socialist Candidate,” The Guide, 18 June 1915. “Put a Stop To It,” Red Deer News, 30 June 1915, and “John Reid, the Socialist Candidate, and C.H. Von Holtum Committed for Trial for Seditious Utterances,” Red Deer News, 30 June 1915. Also see “John Reid under Arrest,” The Guide, 25 June 1915. Statements at Reid’s trial alleged that there was talk of hanging him from the bridge over the local river. See “John Reid, Socialist Candidate, Gets 15 Months,” Red Deer News, 2 Feb. 1916. See “Hyndman, James Duncan,” in Knafla and Klumpenhouwer, eds., Lords of the Western Bench, 74–5. “John Reid under Arrest,” The Guide, 25 June 1915. “Heed the Warning,” The Guide, 25 June 1915, and “There’s a Difference,” Calgary Daily Herald, 20 Feb. 1914. “John Reid, the Socialist Candidate, and C.H. Von Holtum Committed for Trial for Seditious Utterances,” Red Deer News, 30 June 1915. “Put a Stop To It,” Red Deer News, 30 June 1915. See “McCarthy, Maitland Stewart,” in Knafla and Klumpenhouwer, eds., Lords of the Western Bench, 114–15. “Supreme Court,” Red Deer News, 29 Sept. 1915, and “Supreme Court,” Red Deer Advocate, 1 Oct. 1915. Canada, Statutes of Canada (1906), c.146, ss.132–4. “John Reid, Socialist Candidate, Gets 15 Months,” Red Deer News, 2 Feb. 1916. See “Simmons, William Charles,” in Knafla and Klumpenhouwer, eds., Lords of the Western Bench, 167–8. “John Reid, Socialist Candidate, Gets 15 Months,” Red Deer News, 2 Feb. 1916. Ibid. Prior to the post-war Winnipeg General Strike, the escalation of this antagonistic perspective towards the organized socialist critique played out in Ontario with newspaper publisher Isaac Bainbridge, who, between May 1917 and November 1918, was three times charged with seditious libel and once

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Erroneous and Detestable  131 with possession of seditious material. See Ian Milligan, “Sedition in Wartime Ontario: The Trials and Imprisonment of Isaac Bainbridge, 1917–1918,” Ontario History, 100, no. 2 (2008): 150–77.   98 See Desmond Morton and Glenn Wright, Winning the Second Battle: Canadian Veterans and the Return to Civilian Life, 1915–1930 (Toronto: University of Toronto Press 1987), 62–84; Desmond Morton, When Your Number’s Up: The Canadian Soldier in the First World War (Toronto: Random House 1993), 264–5 and 269–71; and Nathan Smith, “Fighting the Alien Problem in a British Country: Returned Soldiers and Anti-Alien Activism in Wartime Canada,” in James Kitchen, Alisa Miller, and Laura Rowe, eds., Other Combatants, Other Fronts: Competing Histories of the First World War (Newcastle, U.K.: Cambridge Scholars Publishing 2011), 293–318.   99 See, generally, McCormack, Reformers, Rebels, and Revolutionaries; Fudge and Tucker, Labour before the Law; and Kealey, “The Surveillance State.” 100 The following was initially examined in Swainger, “Wagging Tongues and Empty Heads,” 281–2. 101 Re Symk (1919, unreported), Alberta Supreme Court, (Red Deer), PAA, Accession 79.220, file 1648, and “Magistrate at Fault,” Red Deer Advocate, 24 Jan. 1919. 102 “Heed the Warning,” The Guide, 25 June 1915, and “There’s a Difference,” Calgary Daily Herald, 20 Feb. 1914. 103 For the environment of labour unrest, see Greg Kealey, “1919: The Canadian Labour Revolt,” Labour/Le Travail, 13 (spring 1984): 11–44. The deteriorating economic conditions in Alberta and the corresponding rise of labour activism are noted in Alvin Finkel et al., Working People in Alberta (Edmonton: Athabasca University Press 2012), 80–90. 104 On the idea of a new nation of higher ideals and character emerging out of the war, see John English, The Decline of Politics: The Conservatives and the Party System, 1901–20 (Toronto: University of Toronto Press 1977); Vance, Death So Noble, 226–56; Cook, Shock Troops, 621–48; and Mark Osborne Humphries, The Last Plague: Spanish Influenza and the Politics of Public Health in Canada (Toronto: University of Toronto Press 2013), 149–70.

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4 Conscription and the Courts: The Case of George Edwin Gray, 1918 PAT R I C I A I . M c M A H O N

On 11 August 1918 a court-martial in Toronto sentenced George Edwin Gray, a twenty-one-year-old farmer from Matheson, Ontario, to life imprisonment for refusing an order under the Army Act.1 The sentence was quickly commuted to ten years, though Gray spent only a few weeks in Kingston Penitentiary before being released after agreeing to serve in the Canadian Expeditionary Force (CEF).2 Having worked for years on the family farms in Muskoka and Nipissing, Gray bought his own 160-acre spread in nearby Hislop Township in the spring of 1916.3 He tended it without assistance and two years later had twenty acres in crop and another six cleared but not stumped.4 When the Military Service Act (MSA) introduced conscription in mid-1917, Gray, like so many other farmers, sought to avoid military service,5 securing his prized certificate of exemption on appeal in early 1918.6 However, the war was going badly and conscription had not raised enough troops to reinforce Canadian forces. With recruits from conscription falling well short of the desired number of 100,000 men,7 Prime Minister Borden revoked all exemptions in April. That Borden revoked exemptions from military service was controversial, but so was the manner in which he did so. The MSA created a broad scheme for the administration of conscription, with local tribunals responsible for applying vaguely worded statutory criteria to approve or reject individual applications for exemption. There were no automatic or categorical grounds for exemption. Borden issued two orders-in-council

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in April 1918. The first revoked all exemption certificates for men between the ages of nineteen and twenty-one.8 The second required those men to report for duty.9 Each was made under the authority of the War Measures Act (WMA)10 and came into force only after Parliament approved them by resolutions passed through both chambers on 20 April. To be clear, Parliament did not amend the MSA and the resolutions did not purport to be legislation. Numerous legal challenges followed. With his exemption certificate revoked, Gray reported to Toronto’s Camp Exhibition in May and secured a short leave to tend to his farm. When he returned to duty at Camp Niagara in June, Gray asked for another leave – this one for the entire summer. The commanders denied the request and ordered Gray to report for basic training. He refused and was court-martialled. Within days, Gray filed a petition for habeas corpus with the Supreme Court of Canada in which he challenged the lawfulness of the orders-in-council that revoked the exemptions from service and formed the basis for his detention.11 The Court heard Gray’s case in a rare summer sitting a mere one week after the petition was filed, and issued reasons less than twenty-four hours later with a majority upholding the government’s actions. What is puzzling is why such a routine dispute between the Canadian military and a reluctant soldier warranted the immediate involvement of the Supreme Court of Canada. In fact, Gray’s petition was the government’s initiative to test the lawfulness of the manner in which it had revoked exemptions. Time was of the essence. Not only did Canada’s war effort need more men, but other legal challenges were under way. One, involving a young farmer named Norman Lewis from Alberta, was particularly worrisome for the government. In late June, by a 4–1 decision, the province’s Supreme Court (Appellate Division) rejected the government’s revocation of exemptions. Only the chief justice of Alberta approved the government’s use of ordersin-council to revoke exemptions. Rather than appeal the decision or bring a reference, the government decided to start fresh with a case in the Supreme Court of Canada.12 George Gray just happened to be in the right place at the right time. Gray’s experience offers a glimpse into some of the problems associated with the implementation of conscription during the Great War and the administrative mechanism to secure exemptions from service. The case illustrates how Borden’s government used the courts to deal with a political problem, and raises troubling questions about the extent of the government’s involvement in the case and its use of the courts to validate the

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circumvention of procedural protections afforded by the normal legislative process. The case also reveals the Supreme Court of Canada’s deference to government conduct during times of war. This chapter discusses the administration of conscription under the MSA and the government’s handling of this controversial wartime policy. It deals with Gray’s application for exemption from military service and subsequent detention before turning to the government’s involvement in the creation and management of Gray as a test case. It analyses the Supreme Court’s handling of a historic initiative and concludes with an assessment of the decision and its implications. This chapter is the first detailed study of Gray. Within the legal and historical literature, the case is dealt with only briefly. P.W. Hogg cites the case for the proposition that there are few constitutional limits imposed on legislatures to restrict the delegation of their powers.13 J.G. Snell and Frederick Vaughan cite Gray as evidence of the Court’s general support for the state during the first two decades of the twentieth century, and note that “the close ties between the judiciary and the political executive had the potential for influencing judicial decisions handed down by the Supreme Court of Canada.”14 Gray, they write, “makes clear the potential for indirect influence.”15 Ian Bushnell also sees the court as a political actor, particularly during the war, and describes Gray as a case with “clear political tones.” He finds the Court’s decision surprising only for its lack of unanimity.16 Although the leading work on conscription in Canada mentions the Alberta court’s rejection of the orders-in-council, the authors mistakenly attribute the Supreme Court’s ruling in Gray to Lewis. As outlined below, the cases were similar but far from identical.17 Finally, a note about sources: a detailed discussion about the problems involved with researching this chapter is available in appendix B of this volume. Although I had full access to the Supreme Court of Canada’s case files on Lewis and Gray, Justice Canada was less forthcoming with the full contents of its relevant files. The department claimed privilege (after formal appeals and the involvement of the Information Commissioner) over a single document from Gray for years and continues to do so for many more from Lewis. As a result, although we know a great deal about the government’s involvement in Gray, we know far less about its involvement – if any – in Lewis. Although the missing records are unlikely to alter the basic story outlined in this chapter, the incongruity of the government withholding information about conscription litigation in light of the generous access given to CEF personnel files is striking. The latter include detailed personal medical information and can be ordered online. By contrast, it has taken years to obtain information about conscription litigation

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and information requests remain under appeal. These cases were dealt with almost one hundred years ago, and yet the government continues to withhold documents that might illuminate decisions involving one of the most controversial policies in Canadian history. What my research has uncovered about the government’s role in the Gray case is unsettling at best and serves as a warning about the importance of judicial oversight during times of war. The current government ought to waive privilege (whether properly claimed or not) in the interest of knowing more fully how Borden’s government handled this contentious issue. As the Harper government commemorates the centenary of the start of the First World War, Canadians deserve to know the complete story behind the handling of conscription, including the role of the courts in its management. conscription: law and politics Although Canada joined the conflict automatically when Great Britain declared war against Germany on 4 August 1914, Parliament met in special session two weeks later to pledge support for the war effort. Legally, it was unnecessary. Canada, as a Dominion of the British empire, was at war when Great Britain was. Symbolically, it signalled Canada’s growing maturity and legal autonomy within the empire. Parliament enacted the War Measures Act during the special session,18 giving broad authority to the governor-in-council to conduct the war effort. In particular, section 6 of the act conferred sweeping powers to deal with the war in all areas of Canadian life, including communication, transportation, and trade along with arrest, detention, and deportation.19 What Parliament did not do during the summer of 1914 was alter the Militia Act,20 which authorized the mass mobilization of troops and existed long before the outbreak of hostilities. The act was a blunt instrument to mobilize men in modern times.21 Although it allowed the government to raise men, there was no formal mechanism to allow individuals to forgo military service legally. At the outset, Borden promised to support the empire and to wage war with an all-volunteer military force. At that time, one could hardly fathom a need for conscription. There was tremendous support for a war that was supposed to be over by Christmas, and men volunteered in droves to serve with the CEF. Even former prime minister Sir Wilfrid Laurier, who was now the leader of the Official Opposition, gave his unconditional support for the government’s war effort during the special war session of Parliament.22 By 1917, however, enthusiasm for the war was gone. The conflict seemed

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to have no end in sight, and Borden’s promise to avoid conscription ran up against his support for the empire. The conflict had taken a toll on troop strength. For example, the Battle of Vimy Ridge in April 1917 may have been the greatest Allied victory to that date, but four thousand Canadians died.23 There was no way around it; the CEF needed more men. Borden faced a politically perilous situation as his government teetered on the brink of defeat. He had been elected prime minister in the fall of 1911, and his five-year parliamentary term had already been extended by a year. By 1917, no one was inclined to extend the life of Parliament again. An election loomed, and Borden’s increasing unpopularity almost guaranteed defeat.24 It was within this context that Borden turned to conscription, introducing the Military Service Act in the House of Commons on 18 May 1917. Weeks of debate followed, and the legislation received royal assent in late August.25 When Borden took to the campaign trails that autumn, he sought re-election under the banner of a “union” government, which included Conservatives and well-known Liberals like T.A. Crerar (the president of the Manitoba Grain Growers’ Association), Newton Rowell (the leader of the Liberal Party of Ontario), and Arthur Sifton (the Liberal premier of Alberta). The move divided Laurier’s Liberal Party and virtually assured Borden’s re-election.26 Although many Canadians supported conscription – particularly English Canadians living in urban centres – others were vocal in their opposition. Many French Canadians (particularly those living in Quebec) had opposed the conflict from the beginning as a British war, and the introduction of conscription did nothing to change their perceptions. Opposition to conscription was so fierce that people took to the streets, with riots in Quebec City over Easter, followed by the imposition of martial law in the province.27 Other groups opposed conscription just as vehemently, though less violently. Among them were conscientious objectors and rural Canadians, particularly farmers, who did not support the measure, even with the possibility of exemptions from service. Farmers were especially unhappy about the apparent contradiction in the government’s encouragement of food production to feed Canadians at home while conscripting farmers to fight abroad.28 the military service act, 1917 Legislators made no secret about the rationale behind the Military Service Act. They needed to raise more troops to defend Canada, the empire, and

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Anti-conscription parade at Victoria Square, Montreal. Source: LAC, Secretary of State Fonds, C006856.

“human liberty.” There was, however, also a need to preserve the “agricultural and industrial pursuits in Canada,” which had already been decimated by the departure of so many volunteers leaving to serve in the war. The MSA created a class system of eligibility based on the twin criteria of age and family status. It was a hierarchical approach that limited the number of conscripts to 100,000 and required men to report for duty according to the details and dates set out in the proclamations or regulations issued by the governor-in-council.29 The statute also set out a mechanism for the administration of exemptions from military service though it did so without establishing clear categories of eligibility. Instead, the act provided six vaguely worded grounds that men could invoke in their applications for exemption. Individuals could ask to be excused from military service because their employment or continued training and education

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were in the “national interest.” There was also provision for exemption based on ill health or for conscientious objectors who sought to avoid military service on religious grounds.30 Individuals seeking an exemption from service had to apply to statutorily created tribunals for assessment of their application. The act created local tribunals, appeal tribunals, and even a central appeal judge, who served as the final arbiter of appeals.31 Successful applicants received a certificate of exemption from military service that was subject to terms and valid only as long as the recipient continued to meet them.32 Tribunals were empowered to renew, vary, or withdraw a certificate at any time.33 Although the MSA allowed the governor-in-council to abolish individual local tribunals and transfer their powers to any other local tribunal, the act did not authorize the governor-in-council to overrule the decisions of any tribunal.34 Gray was keen to avoid conscription and applied for an exemption early in the process. His application to the local tribunal in Iroquois Falls was rejected in November 1917 but succeeded on appeal at the end of January 1918. The appellate bodies were created and staffed by provincial chief justices, and, in Ontario, Chief Justice William Meredith was responsible for creating Justice Henry Hartman’s appeal board in Haileybury, which granted Gray’s exemption.35 However, the military representative appealed the exemption to the central appeal judge, Lyman Poore Duff of the Supreme Court of Canada.36 Duff, who had considered joining the Union government in the summer of 1917, had done double-duty as the central appeal judge since the MSA came into force.37 It was a timeconsuming job; by early April 1918, Duff had written twenty-eight judgments and had more than 5,000 pending cases to review. There were also at least another 34,000 cases before appeal tribunals, the outcome of which Duff could still be asked to review.38 It is thus no surprise that Gray had heard nothing about the status of the army’s appeal by the time Parliament revoked exemptions in April.39 the politics of conscription and rural opposition Disaffection among farmers and their families was evident even before the introduction of conscription. Rural Canada faced a labour shortage, which may be one reason that farmers volunteered for military service at a lower rate than other groups.40 Farm organizations urged recruiters to leave one farm hand for every 100-acre farm,41 and although Borden had promised to consider agricultural needs when he introduced conscription,

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farmers were not reassured by the system of exemptions created by the MSA. The exemptions process was both complicated and uncertain. Amid complaints that the standard was too vague, farmers organized meetings and passed resolutions to push the government to offer more guidance to local tribunals. They received only half-hearted responses and little changed.42 When the election was held in December 1917, Borden was in a political bind. Having won over Liberals like Rowell, Crerar, and Sifton, Borden still needed the support of rural voters. Rowell had worked to improve the treatment of farmers, and he felt so strongly that “some of the tribunals had acted with great stupidity” that he sent a telegram to the prime minister urging him to change how tribunals awarded exemptions “lest the cause of the Union Government be imperilled.”43 General S.C. Mewburn, the minister of militia and defence, agreed, and in late November he promised to discharge any conscripted farmer who returned to work on his farm for the purposes of food production.44 Within days, the government formalized the pledge with an order-in-council.45 Despite these steps, many farmers worried the new government would not honour the exemptions from service.46 Such fears proved valid when Borden revoked exemptions in April 1918. When he later recounted the decision, the prime minister focused on the “tremendously grave” situation following the unexpected German offensive in March 1918 and the need to expedite Canadian reinforcements. He justified the revocation of exemptions because “no time should be lost in making preparation to maintain the Canadian Corps at its highest efficiency. To do this, it seemed necessary to reconsider the situation with respect to exemptions.”47 As for the use of orders-in-council, Borden explained that it would have been too time-consuming to amend the legislative framework. He described the solution of using orders-in-council to modify legislative requirements as “a rather novel method.”48 Some members of Parliament expressed suspicion and disdain for farmers and their opposition to conscription. For instance, Frank Carvell, a Unionist Liberal MP from New Brunswick, complained that “men by the score have been practically adopted by their neighbours on the ground that it was necessary to work their farms and through that have obtained exemptions, and the next day these young men have gone away from the farm as if it were a pest-house.” Although Rowell supported the measure in what Borden described as “a strong and eloquent address,” Laurier opposed it and raised concerns about both the constitutionality and the utility of the measure. John Patrick Molloy, a Laurier Liberal, proposed an

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amendment to permit exemptions for those involved in food production, but the measure was defeated, along with another from Ernest Lapointe, also a Laurier Liberal, who had proposed to defer the revocation of exemptions by six months.49 Farmers were predictably outraged.50 Borden acknowledged this hostility in his memoirs, but, instead of sympathizing with the concerns of farmers, he portrayed them as greedy: “It was indeed inevitable that the farming population would greatly prefer to have their sons at home and engaged in producing large crops which could be sold at unusually high prices rather than that they should be placed on active service, proceed overseas and take their places at the Front.”51 Farmers expressed their anger in letters and columns in newspapers, and began to mobilize locally. They tried to persuade the government to give farmers leaves of absence to allow them to tend to their crops until after the harvest. They argued that, because the next big wave of fighting would not occur until the spring of 1919, recruits could report for training in the fall of 1918 and still be ready to fight.52 Over the course of May and June, the United Farmers of Ontario led a series of protests and meetings with officials in Ottawa,53 and Crerar and Rowell continued to push Borden to modify the revocation to deal with the plight of farmers.54 Borden refused to back down, although the governor-in-council on 22 May issued PC 1259,which permitted exemptions from conscription in cases of “extreme hardship.” Under the order, individuals could seek an unpaid thirty-day leave of absence from the commanding officer of their unit. Longer leaves were possible but required the approval of the district commanding officer.55 This was the state of affairs in June 1918. gray’s exemption from service and subsequent detention Gray reported for duty to Camp Exhibition in Toronto on 23 May. He promptly asked for – and received – a two-week leave of absence to finish planting his farm.56 When Gray returned to duty at Camp Niagara on 4 June, he spoke to Major Dawson, the commanding officer of the camp’s E Company, about taking a leave of absence until the fall, but the major denied the request. Lieutenant H.J. Kirby then ordered Gray to don his uniform and report for the required inoculations. Gray refused, and was detained. He remained in custody at the guardhouse of the 1st Depot Battalion, 1st Central Ontario Regiment for almost three weeks before Kirby gave Gray another chance to comply with the orders. Again, Gray refused.

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Ten days later, Gray faced a court-martial in Toronto. After the tribunal found him guilty, Gray returned to Camp Niagara to await his sentence.57 One week later, Gray was brought back to Toronto. There, he met with two lawyers: F.P. Varcoe and Christopher Robinson. The sole purpose of the trip was to swear an affidavit in support of an application for habeas corpus to the Supreme Court of Canada. How did a twenty-one-year-old farmer from northeastern Ontario decide to seek a writ of habeas corpus from the Supreme Court of Canada? The answer is surprisingly simple: the government asked him. Why, then, was the government interested in Gray? the

lewis

decision

On 28 June 1918 the Appellate Division of the Alberta Supreme Court rejected the government’s use of orders-in-council to revoke exemptions from military service. The case involved a twenty-one-year-old unmarried farmer by the name of Norman Earl Lewis. From Beddington, Alberta (now northwest Calgary), Lewis fell squarely within the confines of the first group of conscripts under the MSA. Having secured an exemption from service from his local tribunal in February, Lewis received a notice from the provincial registrar to report for duty after the exemptions were cancelled. Lewis dutifully arrived at camp in early May.58 However, unlike Gray, Lewis was never court-martialled. Instead, with the help of R.B. Bennett,59 a former member of Borden’s government from Calgary and future prime minister, Lewis filed a petition for habeas corpus with the Alberta court, claiming to be in the custody of the CEF as a result of conscription. Four judges agreed and declared the orders-in-council invalid. Only the chief justice of Alberta sided with the government.60 Justices Nicolas Beck, Charles Stuart, James Hyndman, and W.C. Simmons wrote separate reasons rejecting the government’s use of orders-incouncil, though they did so on similar grounds. Foremost, they held that section 6 of the WMA was not sufficiently broad to permit the government to revoke exemptions by order-in-council. In their view, nothing in the WMA empowered Parliament to revoke exemptions without formally amending the MSA. Each justice emphasized the novelty of Borden’s approach to cancelling exemptions. None accepted the implications of the government’s argument that Parliament intended the WMA to confer absolute authority to legislate through cabinet fiat. They worried that the government’s approach to exemptions was based on political expediency,

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not legal authority. For Stuart in particular, the “exigencies of war” did not justify ignoring due process and the ordinary legislative process with its procedural safeguards. He argued that the courts ought to be just as concerned about the propriety of the government’s behaviour during times of war as in times of peace.61 In upholding the government’s approach to revoking exemptions from service, Chief Justice Horace Harvey accepted the government’s argument that the WMA was sufficiently broad to authorize the de facto amendment of the MSA without formal legislation. He accepted that the demands of war permitted leeway for the administration of Canada’s wartime effort, particularly with respect to raising troops. In light of wartime needs, Harvey accepted Parliament’s authority to delegate its legislative authority as it had done. He recognized that this was a broad power, but reasoned that it was limited by the circumstances.62 It was within this context that the government turned to George Gray. Gray’s petition did not merely follow Lewis’s successful challenge in Alberta; it was the government’s carefully orchestrated response to it. Although government lawyers discussed whether to seek leave to the Supreme Court or even the Privy Council to deal with Lewis, they chose to start fresh with Gray.63 However, they must have had some doubts about what they were doing. On 5 July the government issued an order-incouncil overruling the decision in Lewis, though it was not published until two weeks later, after the Supreme Court of Canada had released Gray.64 Why government lawyers chose Gray to serve as the petitioner remains a mystery. the case of george edwin gray Politicians mobilized after the Lewis decision to lay the proper foundation for a successful test case. On 8 July, Justice Minister Charles Doherty introduced a series of regulations to address and expedite any challenges to the orders revoking exemptions. The regulations, which superseded any existing law, practice, or procedure and were to remain in force for the duration of the war, were justified by reference to the MSA, the WMA, and the need to raise troops for the CEF.65 The new regulations applied to all cases (whether determined or pending) involving the April orders-in-council, stayed original proceedings under appeal, and gave the government thirty days to file an appeal with the Supreme Court of Canada. They required the Supreme Court to hear appeals on this issue, and the full bench to hear any appeal from the

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decision of a single Supreme Court justice on the subject. To underscore the Court’s authority to hear these challenges, the regulations expressly prohibited challenges to the Court’s jurisdiction to hear cases involving the revocation of exemptions. Because time was short, the regulations compelled the senior judge to convene the Court “at the earliest convenient time, whether in or out of vacation” upon the “assertion” of an appeal,66 directed the Canada Gazette to publish notice of the special session at least five days before the hearing date, and limited written materials to the underlying judgments, opinions, and orders. There were to be no factums “or any further preliminary delays or proceedings, except as the Supreme Court might otherwise direct.”67 Lawyers at the Department of Justice were also kept busy in the days following the Lewis decision, and their role in the development and preparation of Gray runs counter to modern notions of professional conduct and conflicts of interest. Leslie Newcombe, the long-serving deputy minister of justice and future justice of the Supreme Court of Canada,68 played a pivotal role. First, he found a suitable petitioner, George Gray. Then, he retained counsel for Gray, which was no easy feat given the need to find someone available to act in July with little more than a week to prepare for a hearing at the Supreme Court of Canada. With the assistance of F.P. Varcoe, one of the department’s junior lawyers, Newcombe remained in constant contact with Gray’s counsel whom he also instructed. The deputy minister did so all the while preparing the government’s response to the challenge.69 On 10 July, Newcombe dispatched Varcoe to meet with Gray in Toronto.70 Military officials had brought Gray to Toronto from Camp Niagara to meet with Varcoe and the lawyer arranged for him by the Department of Justice, Christopher Robinson, the grandson of Sir John Beverley Robinson, the former mayor of Toronto and lieutenant governor of Ontario.71 There were two reasons for the meeting with Robinson: first, to confirm the details of Gray’s detention, and second, to allow the young farmer to swear an affidavit to support his habeas petition. After the meeting, Varcoe – who was only a few years older than Gray – reported back to Newcombe. He confirmed that Gray had lost his exemption from service in April 1918 because of the orders-in-council and had been court-martialled under section 9 of the Army Act for refusing a lawful order.72 “Think Gray case will do,” Newcombe wrote later that day, giving Varcoe instructions for Robinson to prepare and file the necessary materials with the Supreme Court, and telling the two of them to return to Ottawa so that Robinson could appear before Justice Francis Anglin on 12

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July. Newcombe urged Varcoe to respond as quickly as possible to allow sufficient time to arrange things with the Court.73 After he received Varcoe’s response, Newcombe contacted Anglin on 11 July,74 and Anglin agreed to hear the petition at noon the following day as planned.75 It is unclear how Anglin was chosen to hear the initial petition. He was neither in town (though just across the river in Gatineau) nor the senior puisne judge. On the issues, Duff was the more logical choice given his familiarity with the subject as the central appeal judge. By July, Duff and his staff had dealt with approximately forty-two thousand cases over the course of a five-month period, many of which were now disposed of in groups for the sake of efficiency.76 Newcombe and Varcoe continued to participate in the preparation of Gray’s case. In addition to contacting Anglin on 11 July, Newcombe met with Francis Chrysler, an experienced king’s counsel (KC) in Ottawa, to add him to Gray’s legal team.77 The same day, Varcoe spoke to Newcombe about the junior lawyer’s ongoing work with Robinson to prepare materials for the Court, including Gray’s affidavit and notice of application.78 All this occurred while Newcombe prepared his own case. As Varcoe met with Robinson and Gray in Toronto, Newcombe called W.N. Tilley in Toronto to ask that he help prepare the government’s submissions to the court.79 Tilley – a senior KC and bencher with the Law Society who had represented the government frequently in court – was in Montreal that day with another military service tribunal, but agreed to work on the government’s case.80 Varcoe also helped prepare the government’s case by gathering information from military officials. He and Newcombe recognized that the Supreme Court’s jurisdiction to hear the case was tenuous, and if military officials released Gray from detention, there would be no grounds for the Court to deal with a petition for habeas. Varcoe tried to eliminate that potential problem by writing to the deputy minister of militia and defence. He explained the government’s intention to use Gray’s habeas petition to test the validity of cancelling exemptions, and asked that Gray’s “status” remain unchanged. Explaining that Gray had been court-martialled and convicted, but not yet sentenced, Varcoe underscored that the petition to the Supreme Court hinged on the young farmer remaining in detention; he made clear that Gray’s release would jeopardize the entire case.81 Meanwhile, Robinson appeared before Anglin in chambers to make a formal request for a writ of habeas corpus pursuant to section 62 of the Supreme Court Act, which authorized the court to hear habeas petitions in criminal matters. Anglin expressed no doubt about the court’s authority

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to take the case. He concluded that Gray was “in military custody awaiting sentence of a court-martial for disobedience as a soldier to lawful orders of a superior officer. Such disobedience is declared to be an offence punishable by imprisonment for any term up to life under the Army Act, made part of the law of Canada by the Militia Act, R.S.C., c. 41, ss. 62 and 74, and the Military Service Act, 1917, c. 19, s. 13.” As such, “the commitment” – Gray’s detention at Camp Niagara – “is therefore ‘in a criminal case under an Act of the Parliament of Canada’ within s. 62 of the Supreme Court Act.”82 As Doherty’s regulation required, Anglin referred the petition to the entire bench for final determination even though he had not formally denied the request. (The Supreme Court Act allowed a petitioner the opportunity to be heard by the full Court when the chambers judge denied the writ.) In addition to the Lewis decision, numerous habeas petitions had now been drawn up across the country to challenge the validity of using orders-in-council to cancel exemption certificates; there could be no doubt that the issue was one of national importance which warranted a hearing before the entire Court.83 Within a day, the Canada Gazette published an announcement about the hearing on order from the chief justice, indicating that the Court would hear Gray’s petition on 18 July, a reflection of the required five-day notice period.84 The day before the hearing, two things happened that directly influenced the presentation of the government’s case to the court. First, the director of the Military Service Branch provided Newcombe with details about the number of eligible Class 1 men (i.e., those men between the ages of nineteen and twenty-one who had lost their exemptions). More than 71,000 men had lost their certificates of exemptions under the April orders-in-council and were now subject to recall. As of 21 June 1918, almost 48,000 had been ordered to report for duty, and the director presumed that the more than 23,000 remaining men had received their orders to do the same in the interim.85 Despite these efforts, the number of new soldiers remained below the 100,000 men the Borden government hoped to raise through conscription. Newcombe now had all the information he needed to make a factual case to the court that the CEF faced a manpower shortage of emergency proportions despite the introduction of conscription. At the same time, Borden’s government issued a secret order-in-council that purported to prevent a successful challenge to the court’s habeas jurisdiction. Signed by Rodolphe Boudreau, the clerk of the Privy Council, the order introduced regulations to govern the Gray proceedings exclusively.86 The order was not published in the Canada Gazette in the months

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that followed, and subsequent events, discussed below, indicate that the order was never intended for public release.87 The order stated that Gray was “alleged to be a deserter” from the CEF. Of course, Gray had reported for duty – twice – and the distinction between deserting and refusing to obey an order was and is a meaningful one. The order described the issues relating to the revocation of exemptions as “questions of great public importance and urgency connected with the administration of the Military Service Act, 1917 and regulations, and the powers of the Governor in Council under the War Measures Act, 1914.” Their resolution was said to be “of the utmost importance to the effective carrying on of the military operations necessitated by the present war,” and warranted an expeditious resolution. On the advice of the minister of justice and under the authority of the WMA, the order eliminated the possibility of any preliminary arguments about the Court’s jurisdiction to hear Gray’s application for habeas. The language contained in the order of 17 July previewed the government’s argument before the court. By implication, it proclaimed the exigencies of war sufficient to require the quick resolution of an awkward challenge to the government’s authority to raise troops for an unpopular war with no end in sight. The order eliminated a significant – and serious – preliminary challenge to Gray’s petition by requiring the Supreme Court to take the petition and decide “all questions that may arise at the hearing relevant to the said application, or to the powers of the Governor in Council, under the War Measures Act, 1914.” The order concluded with the statement that the Supreme Court of Canada’s decisions in this area were “binding and conclusive upon all courts, magistrates and judicial tribunals in Canada.”88 It seems odd that the government used an order-in-council to affirm the prospective authority of a Supreme Court decision. Decisions of the Supreme Court of Canada were binding on all Canadian judicial authorities unless and until the Judicial Committee of the Privy Council (JCPC) said otherwise. However, Borden’s government had just issued an orderin-council to overrule the Lewis decision. Perhaps the government tried to foreclose the possibility of an appeal to the JCPC using the same approach, though it is doubtful it had the necessary authority to do so (or to overrule Lewis for that matter).89 Not only did the 17 July order-in-council purport to interfere with the Supreme Court’s ability to determine its own jurisdiction, but it did so within the context of at least two justices expressing serious reservations about the Court’s authority to hear a habeas petition for contravention of

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the Army Act at the hearing the following day. We have no way of knowing what Newcombe and Anglin discussed on 11 July when they arranged for Gray’s petition in chambers, but there seems to be little doubt that someone got word to the justice minister that at least some of the Court’s members had concerns about its authority to act in this situation. in re gray :

the supreme court of canada

The Gray hearing was front-page news at the Toronto Daily Star on 18 July and earned a full page in the Toronto Globe the day following.90 However, it was not the dominant headline at the Star; that honour went to General Ferdinand Foch’s efforts in Germany.91 It was also not the only newsworthy habeas petition. Sharing the front page was a story about seventy-three people seeking habeas at Osgoode Hall in Toronto.92 In the Star – alongside the rest of the description of the Gray hearing – there was another story about the appeal tribunal in York County that had granted exemptions to every single farmer who appeared before it.93 The present account of the Gray hearing relies on these reports, and this poses some challenges. In particular, it is difficult at times to determine whether a particular line of argument was confusing in Court or merely in the reporting since there were no transcripts made and no factums permitted.94 Questioning revealed a divided bench.95 Three lawyers – Robinson, Chrysler, and now Aimé Geoffrion, a well-regarded KC from Montreal – represented Gray on that warm, breezy July morning in Ottawa.96 The Court heard from two lawyers per side, so Robinson – the most junior of the three – remained silent. R.B. Bennett attended as counsel for Lewis but addressed the court only briefly.97 Newcombe and Tilley spoke for the government. Six experienced judges, each appointed by Wilfrid Laurier and from across Canada, comprised the panel: Chief Justice Charles Fitzpatrick, Louis Henry Davies, John Idington, Lyman Duff, Francis Anglin, and Louis-Philippe Brodeur.98 Three had extensive political experience in the House of Commons. Brodeur had served more than twenty years as a backbencher, speaker of the House, and in cabinet. Davies had spent just under twenty years in the House, five of them as minister of marines and fisheries. Fitzpatrick had served almost ten years in Parliament, first as solicitor general and then as minister of justice, a position he held when he was appointed to the Supreme Court of Canada. Oral argument boiled down to three issues. The most basic was the Court’s authority to hear the petition. Although the government had presumed to deal with the jurisdictional issue by order-in-council, there was

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nothing to guarantee that the Court would accept the government’s assertion. For example, judges in Alberta had not been shy about criticizing what they viewed as an inappropriate order-in-council in Norton, a case heard after Lewis that involved a number of applications for habeas.99 Secondly, counsel and the judges dealt with the scope of authority delegated to the executive under the WMA.100 In part, this involved an assessment of whether the revocation of exemptions had amended the MSA, and, if so, under what authority. Finally, the Court addressed whether, absent legislative authority, there was an emergency that justified executive action. The discussion about the Court’s jurisdiction to hear the petition was brief. Counsel all agreed that Gray’s was a criminal matter for the purposes of section 62 of the Supreme Court Act, though two justices – Idington and Brodeur – expressed doubts. Chrysler assured the Court that Gray was subject to punishment or fine under the imperial Army Act, which was part of Canadian law under the Militia Act and the Military Service Act. Newcombe agreed, noting that contravention of the Army Act was subject to penal servitude. “There is no doubt this is a criminal offence,” he told the Court. The heart of Gray’s petition was the government’s authority to use orders-in-council to abolish exemptions from military service. Chrysler argued that the executive needed to amend the legislation in order to cancel exemptions. Orders-in-council were insufficient. The panel was obviously split on the point. Idington, Anglin, and Brodeur sympathized with Chrysler, but the other judges clearly believed that the government had sufficient authority – whether under the MSA or the WMA – to pass orders dealing with the conduct of the war. In fact, Chrysler’s argument may have skipped a step. It was not clear that exemptions had actually been abolished since the government had issued PC 1259, which permitted exemptions in case of “extreme hardship.”101 However, no one raised this argument. Geoffrion made the most passionate case against the government’s approach, calling it “a complete suspension of the constitution” and “a complete departure from the rule that Parliament makes the laws.” Revoking exemptions in this manner could not “be justified except by supporting the claim that under the War Measures Act there was a blank delegation of every legislative power that Parliament possesses to the Governor in Council, irrevocable at least for a year until the next session.” He argued that such power could be exercised only if cabinet deemed it “advisable for the security, defence, peace, order and welfare of Canada.” Here, cabinet had not done so. Geoffrion stressed that the MSA was a complete code

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to govern conscription, and the legislative framework empowered tribunals – not the executive – to deal with exemptions. Nothing allowed the executive to overrule the existing legislative regime. Geoffrion reminded the Court that there was no emergency. Parliament was in session when the governor-in-council issued the orders. Parliamentarians considered and passed resolutions authorizing the orders – and did so quickly. Procedural tools like closure permitted the hasty enactment of legislation when necessary. There was no reason to rely on executive orders. When Anglin asked Newcombe to justify the government’s use of what looked like emergency powers, the deputy minister only sidestepped the question. Neither Chrysler nor Geoffrion urged the Court to be vigilant about the scope of government power during wartime, and Fitzpatrick and Davies were content to give the executive the benefit of the doubt, remarking that cabinet alone was likely to have information about the conduct of the war that might warrant actions like orders to revoke exemptions. That cabinet had confidential information about the difficulties with raising much-needed troops despite the introduction of conscription was true. Newcombe and Tilley had the information too, but did not make the argument to the Court.102 Instead, the justices made the case on their own. The justices raised Lewis several times. Bennett spoke after Gray’s counsel finished, and argued that individuals who had secured exemptions under the MSA had rights akin to contract rights that could not be revoked solely by executive order. Fitzpatrick also speculated that the Court might not have had the power to deal with Lewis. Newcombe agreed. After all, Lewis had sought habeas to be released from the custody of the military because he had been drafted, not because he had been detained as a matter of criminal law. However, the government could have appealed Lewis to the Supreme Court (as it later did), which would not have depended on the Court’s original jurisdiction to hear a petition for habeas. Chrysler invoked Lewis for the proposition that the WMA did not permit the amendment of the MSA by order-in-council. Fitzpatrick, Duff, and Davies dismissed the basic premise of the argument. Idington also raised Lewis when he asked Newcombe point-blank whether there had been an order referring the case to the Supreme Court of Canada. Newcombe responded in the negative.103 The judge mused: “I myself have very grave doubts about whether we have the right to sit here in this [Gray] case at all. But you could overcome that by passing an order in Council submitting both cases.” Newcombe argued that the WMA was sufficiently broad to allow executive discretion to conduct the war as necessary, though he did not

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argue there was an emergency that justified the use of orders-in-council to revoke exemptions. His argument did not sit well with Brodeur, who was troubled by the potentially limitless nature of such executive authority. The deputy minister’s response likely offered little reassurance as he explained to the Court that the executive’s wartime authority under the WMA was so great that the government could even impose taxes by order-in-council if necessary. Tilley offered a more subtle defence of the government’s actions. He argued that men with exemption certificates were not free from service; they were simply on leave from the military. In this context, revoking exemptions was akin to cancelling leave. Idington seemed dubious and asked bluntly why the government did not simply introduce a formal amendment to the MSA in the usual manner to revoke exemptions. Tilley explained simply that it was “because they thought it was the legal and the best way.” Anglin tried to probe the limits of the executive’s authority to act, asking whether the government had the power to conscript more than the statutory limit of 100,000 men. Tilley responded evasively that Parliament had authorized the government to take any action necessary for the conduct of the war. With that, argument ended at the dinner hour. At 2 p.m. on Friday, 19 July, the Court delivered four sets of reasons. All but one upheld the government’s use of orders-in-council to revoke exemptions.104 Anglin, joined by Davies, wrote for the majority. Fitzpatrick and Duff each wrote their own reasons in support of the government. Only Idington, joined by Brodeur, rejected the government’s approach. With minimal explanation, the majority accepted the Court’s jurisdiction to hear the case. Anglin offered a number of “cogent reasons” (as he described them) to explain why the Court heard the petition. Acknowledging that the issue in Gray was precisely the same as in Lewis, Anglin justified the decision to hear Gray in part because he had doubts that Lewis could be appealed and the “unavoidable delay that the taking of such an appeal ... might involve.” Gray, he noted, had suffered no prejudice because Newcombe had arranged with the Court to have the petition heard in a special session, and Gray already had a statutory right to appeal any habeas petition to the full bench where it had been rejected in chambers. Most importantly, Anglin held that the revocation of exemptions was significant enough to require an authoritative statement from the entire Supreme Court of Canada to provide guidance to the provincial courts administering the appeals process under the MSA.105 Anglin addressed Gray’s three arguments in support of limiting the powers of Parliament. Gray had argued that Parliament could not delegate its major legislative powers and functions; that Parliament had not

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actually delegated the authority to the governor-in-council to amend or otherwise alter legislation; and that emergency powers could be exercised only if Parliament were not in session.106 Anglin dismissed each. He acknowledged limits to the exercise of power under the WMA but concluded that Parliament had authority to delegate to the governorin-council the power to issue the orders in question. “To hold otherwise would be very materially to restrict the legislative powers of Parliament,” Anglin explained. He also relied on the language of section 91 of the British North America Act and the breadth of section 6 of the WMA to reject Gray’s invocation of the ejusdem generis rule as a matter of statutory construction. Anglin pointed out that the language in the WMA was the same as the language used in the residuary powers of the BNA Act, and no one had suggested restricting those powers to “the subjects enumerated in its succeeding clauses.” Instead, Anglin held that the enumerations in section 6 were situations that one would not ordinarily associate with the conduct of war. Moreover, the MSA stated expressly that the CEF was engaged in active service “for the defence and security of Canada,” which necessarily required reinforcements for their maintenance and support.107 Anglin acknowledged that the orders-in-council were an “extreme exercise of the power of the Governor in Council to make orders and regulations of a legislative character,” but pointed out that parliamentarians had added a provision to the Military Service Act, not contained in the original draft, to reinforce the powers of delegation conferred in the WMA.108 In Anglin’s view, the WMA conferred powers that were sufficiently broad to deal with matters under the MSA, particularly in an emergency, up to and including modifying or repealing the MSA. Although he dismissed concerns that the government’s approach to section 6 would imperil parliamentary institutions, Anglin conceded that the sorts of orders-in-council at issue were the type “to be avoided as far as possible.” “But,” he wrote, “we are living in extraordinary times which necessitate the taking of extraordinary measures.” Anglin saw the parliamentary resolutions as evidence that the government was not trying to abuse the authority conferred under the WMA, even if the resolutions did “not add anything to their legal force as enactments.”109 The chief justice agreed with the majority. He had no doubts about the Court’s jurisdiction to hear the petition for habeas in these circumstances, and rejected a narrow interpretation of section 6 of the WMA. Adopting Newcombe’s approach, Fitzpatrick agreed with Anglin’s explanation of the enumerated items in section 6, and also invoked the Judicial Committee’s long-standing interpretation of the residuary powers. Fitzpatrick explained that the exigencies of war justified extraordinary measures, even

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the de facto amendment of legislation by order-in-council. He concluded with great deference to the will of Parliament: “Our legislators were no doubt impressed in the hour of peril with the conviction that the safety of the country is the supreme law against which no other law can prevail. It is our clear duty to give effect to their patriotic intention.”110 Duff also justified the revocation of exemptions with a broad reading of section 6 of the WMA. He dismissed the argument that parliamentarians could not have intended the provision to confer sufficient executive authority to permit repeal of the Militia Act or amendment of the MSA by order-in-council, pointing out that Parliament had used sweeping, permissive language for precisely that reason. Like Fitzpatrick, Duff underscored the wartime context in which the legislation was passed and the need for “extraordinary” executive powers. Rejecting Geoffrion’s argument that the delegation of authority was excessively broad, Duff was comforted by what he described as two pre-conditions to limit the exercise of that authority: it was available only in wartime, and the governor-incouncil had to deem its exercise “advisable by reason of war.”111 In reality, there were hardly any limits at all during war. In his dissent, Idington focused on the haste with which Parliament passed the WMA. Like the majority in Lewis, Idington commented on the rationale for the MSA, explaining how the legislation introduced a comprehensive yet selective regime for drafting men that balanced the needs of industry and agriculture with those of the armed forces.112 He was unmoved by the government’s expansive interpretation of section 6 of the WMA, and rejected any assertion (conceded by the government in oral argument) that the parliamentary resolutions transformed the orders into statutory authority. In fact, Idington could find no legal basis for the revocation of exemptions, and remarked that the government’s approach ran contrary to the values the CEF was fighting to preserve. He concluded with a hypothetical. Say a new government wanted to repeal the MSA, but the Senate opposed it. Could the executive issue an order-in-council under the WMA to complete the task? What would the Court do if asked to affirm that order-in-council? “I should in such a case answer just as I do now that the War Measures Act could not be so stretched nor our Constitution stand such a strain as repeal of a single line of the Military Service Act by any such methods.”113 aftermath Within days, questions arose about the finality of the Supreme Court’s decision. People wondered about the possibility of an appeal to the Ju-

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dicial Committee of the Privy Council, and other soldiers filed new challenges or renewed existing ones. In Toronto, the case involving more than seventy petitioners for habeas had been held in abeyance pending the outcome of Gray, but now counsel for the petitioners – a Mr Waldron – announced that Gray did not bind his clients, and vowed to press on with his own application. The case was of sufficient concern that Tilley wrote to Newcombe about it, speculating that counsel intended to argue that the government had exceeded the 100,000 men limit under the MSA.114 In fact, the number of men raised by conscription fell short of that figure.115 Newcombe worked to make sure that counsel throughout Canada knew about the decision in Gray. Within days of the decision’s release, the deputy minister wrote to lawyers across the country to draw attention to the majority’s reasoning. He also hoped that judges dealing with similar challenges would take judicial notice of Gray to bring these cases to an end.116 However, judges and justices of the peace wanted actual copies of the decision, and they wrote to the Department of Justice to request them for use in courtrooms across Canada. One request highlights some of the problems involved with the Gray decision. At the end of August, Newcombe exchanged letters with a judge of the Sessions of the Peace in Quebec. In his initial letter, Justice PhilippeAuguste Choquette asked only for a copy of the decision.117 Following receipt of the reasons, Choquette – who had described the case as one on “consent” – sent another letter, asking whether the government would appeal to London. He explained that he had a similar case to decide, but was willing to suspend his judgment pending a pronouncement from the Judicial Committee given “so many judges having opinions pro and con.”118 Newcombe responded brusquely. “I do not know why you describe the Gray case as ‘a case by consent’ or what that phrase in your meaning is intended to convey,” he wrote. There were three reasons the government would not appeal the case to the JCPC. Most obviously, the government won at the Supreme Court, so there were no grounds for an appeal. Under section 1025 of the Criminal Code, “there is no right of appeal or power to entertain an appeal in such a case.” More tellingly, Newcombe wrote that he was “not aware of any reason to doubt the propriety of the judgment pronounced by the Supreme Court.”119 Undeterred, Choquette made one final attempt to persuade Newcombe to turn to the Judicial Committee. The Quebec judge explained that he called Gray a case on consent because “it is clear for everybody that it was a test case promoted by the Government, and there is no objection to that, the attorney for the Suppliant was Mr. Chrysler who is always acting for the Government.” He reasoned that “the way the case was put up before

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the Supreme Court shows conclusively that it was a case by consent.”120 The judge, who appeared to sympathize with the views of Brodeur and Idington, doubted Newcombe’s interpretation of section 1025, explaining that, though “the Government has gone so far as to pass an order in council to put aside the doubt that may exist … the legality of that special order in council is, in spite of that, an open question.” If the case had been one on consent, then even if section 1025 were applicable, the question could be submitted to the JCPC on consent of the minister of justice and the English tribunal. Choquette questioned Newcombe’s puzzlement over questions about the Supreme Court’s authority. The “propriety” of the Supreme Court’s judgment was “an open question, and I submit that there are many reasons to doubt the legality of that judgment.” Choquette reminded the deputy minister that the majority on the Supreme Court may have upheld the revocation of exemptions, but, when combined with the reasons of the Lewis court, there were more judges who had opposed it, which “ought to be taken into consideration.”121 It was on this final point in particular that Choquette believed the government ought to seek the opinion of the JCPC. Although there is no indication that Newcombe responded to Choquette’s final letter, it was during this time period that the government filed its notice of appeal with the Supreme Court for Lewis, delivering a factum at the end of September. The case was eventually discontinued.122 In addition to the ongoing legal challenges to the April orders, much about the government’s handling of Gray’s petition remained cloaked in secrecy, particularly the existence of the 17 July order-in-council. For Newcombe, the most troubling aspect of the case brought on behalf of more than seventy petitioners by Mr Waldron was not the prospect of another court challenge but the fact that his former co-counsel wanted to rely on the 17 July order-in-council in addition to the holding in Gray. Tilley wrote to Newcombe asking the deputy minister to authenticate a copy of the order-in-council to eliminate the need for further proof, assuming there would be no problem doing so.123 He must have been surprised when Newcombe hesitated. Noting his disappointment about the Court’s inability to make copies of the reasons available quickly, Newcombe asked Tilley not to use the order-in-council (though he provided a certified copy) “unless you find it really necessary.” The order-in-council, Newcombe stated bluntly, was intended to be kept secret. “This order in council has not been published or communicated except conditionally to the Chief Justice and you may remember that at the argument the fact was rather suppressed, notwithstanding an opportunity which Judge Idington

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offered me to make a statement on the subject.” Newcombe went on to explain that he thought the order-in-council was irrelevant to Waldron’s cases because it was “useful only to establish the jurisdiction of the Supreme Court.” Gray was binding on the provincial courts regardless of the 17 July order. Newcombe explained that “the Governor in Council has no authority to declare the judgment binding if the Orders in council which are the subject of the judgment were themselves ultra vires.” Ironically, the deputy minister wrote this statement just days after the publication of the order-in-council overruling Lewis. Instead, Newcombe offered to send an affidavit attesting that conscription had yet to raise 100,000 men notwithstanding the revocation of exemptions, since it was thought Waldron would argue that the government had exceeded the number of prescribed conscripts.124 The 17 July order-in-council continued to haunt Newcombe. Within days of learning about the Waldron cases from Tilley, Newcombe received a letter from Fitzpatrick, who was not just the chief justice but the deputy minister’s former minister. Fitzpatrick complained that news of the order-in-council had reached local reporters. “The papers here are full of the order in council,” he wrote. “How did this piece of information get in the newspapers? I was in hopes that it would be kept absolutely secret.”125 Newcombe took five days to investigate, but still had no explanation. “I cannot discover how it was that the newspapers got that order in council,” he wrote to Fitzpatrick. “I gave out no copies and Mr. Boudreau sayd [sic] he gave none. I had particularly cautioned him not to do so,” he explained. Newcombe speculated that “a copy must have come out through one of the ministers. I myself did everything I possibly could to suppress the order after our conversation.”126 Such an explanation either ignored the fact that only a handful of people received a copy of the order-in-council, or pointed to the person the deputy minister thought was the source of the leak. No cabinet ministers received a copy of the order-in-council prior to the hearing. Only the minister of justice, Charles Doherty (who made the recommendation), knew about it. Newcombe received one of the initial copies, as did Fitzpatrick, but they were not the likely culprits. Given the timing of the chief justice’s letter, it is more reasonable to suspect that the source was one of the recipients of the copies distributed on 23 July. Those copies went to the governor general, the Duke of Devonshire; Sir Edmund Kemp, the minister of overseas military forces (who had served as the minister of militia and defence before that); and the High Command, each member of which received three copies.127

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the fate of george edwin gray Gray’s prison sentence was extraordinary. Although failure to report for duty was punishable by summary conviction and up to five years’ imprisonment under the MSA,128 the young farmer’s refusal to obey an order after he reported for duty earned him a life sentence commuted to ten years under the Army Act.129 After the Supreme Court declared the government’s actions lawful, Gray remained in detention at Camp Niagara until his sentence was imposed and he was transferred to Kingston Penitentiary in mid-August.130 Two weeks later, Varcoe wrote to Newcombe to plead Gray’s case. Recounting a conversation with Gray at the time of their initial meeting, Varcoe reminded the deputy minister that Gray had never defaulted under the MSA “and was not a conscientious objector, strictly speaking.” Instead, Gray “was incensed by what he considered to be the unfair treatment in being required to abandon his farm and stock without having proper time to dispose of the same and refused to obey orders without realizing ... the seriousness of the offence.”131 Varcoe described Gray as being “in quite a different category from a majority of those who have refused to put on the uniform,” and wondered whether anyone had given him another chance simply to return to service and whether Newcombe would “recommend to the Militia Department that he be accepted.”132 Within the week, an officer had visited Gray, who signed a statement indicating that “he no longer objected to performing combatant military services overseas.”133 Several days later, albeit after a letter from Newcombe to his counterpart at the Department of Militia and Defence, prison personnel began to process Gray’s release to allow him to fulfil his military service.134 Private Gray served another two years in the Canadian military after leaving Kingston Penitentiary in late September.135 His military record was unremarkable. Gray’s record lists 22 May 1918 as his start date, with no reference to insubordination, military detention, judicial proceedings, or imprisonment.136 He never saw battle; the armistice occurred less than two weeks after his discharge from hospital following a bout of bronchial pneumonia (diagnosed initially as influenza, a serious concern amid a global epidemic of the Spanish flu) after his release from prison.137 When George Edwin Gray died one month shy of his ninetieth birthday in March 1987, his obituary referred to his “short time in the service” during the First World War.138 The reference minimizes Gray’s role in the conduct of Canada’s Great War effort. Superficially, Gray appeared to be

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a simple application for habeas corpus. In fact, it was a carefully orchestrated test case, crafted to secure judicial approval of the “novel” manner in which the government decided to cancel exemptions from military service that had been granted pursuant to the Military Service Act. The Borden government’s efforts were led by Leslie Newcombe and his colleague F.P. Varcoe in the Department of Justice. Together, they created the entire case. Instead of expediting an appeal of Lewis, or seeking a reference, the federal government turned to Gray and a fresh start at the Supreme Court of Canada. The Department of Justice seems to have prepared its appeal in Lewis at the last minute out of an abundance of caution. Borden’s government went to extraordinary lengths to create the perfect conditions to obtain a desired judicial result. Justice Department lawyers handpicked the petitioner and then instructed the counsel they chose to represent him. The government next passed an order-in-council requiring the Supreme Court of Canada to take jurisdiction of the habeas petition in circumstances that at least two justices questioned. New regulations followed that precluded the submission of factums or other written materials to the Court. The Court released four sets of reasons less than twenty hours after the conclusion of the oral argument, a hearing for which the justices had just five days’ notice in the middle of their summer break. When Newcombe finally appealed the decision in Lewis, he relied on the Supreme Court’s decision in Gray. There were political consequences to Gray, and the case highlights the tensions between the need to sustain Canada’s war effort at home and to supply troops for the fight abroad. The handling of conscription more broadly left a legacy of fear among politicians facing the prospect of mandatory military service. It was a political lesson William Lyon Mackenzie King remembered well during the Second World War. Gray also had serious constitutional implications. It remained good law for decades – through the Second World War and the October Crisis of 1970 – until the WMA was replaced by the Emergencies Act in 1988.139 As noted in the Introduction, we do not know the entirety of the Justice Department’s management of Gray. Nor do we know much about its role in Lewis. What we do know is that the government stacked the deck in as many ways as possible to achieve its desired result. It is tempting to excuse the Supreme Court’s acquiescence to the government’s expansive approach to executive power as a wartime sacrifice. Yet the case has a legacy that has lasted beyond the legislative regime at issue or its wartime context. Hogg cites Gray as one of three cases to stand for the proposition that there are few constitutional limits on the delegation of legislative power.

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The case is one of the reasons Canada lacks a separation-of-powers doctrine. It is a powerful legacy for a case that appears to have been rigged. Notes   1 F.P. Varcoe to E.L. Newcombe, 29 Aug. 1918, LAC, Department of Justice Records [hereafter DOJ Papers], RG13, vol. 2445, file 9-A-1509: 10 July 1918 re George Edwin Gray, Habeas Corpus [hereafter Gray DOJ file].   2 Gray may have been better off claiming to be a conscientious objector. Typically, conscientious objectors were sentenced to serve between two and six months in prison. “Treatment of Desertion, Defaulters, Conscientious Objectors Etc.,” E.L. Newcombe, 5 Feb. 1919, LAC, DOJ Papers, RG13, ser. A-2, vol. 2162, file 1919–2453. For more on conscientious objectors, see A.J. Shaw, Crisis of Conscience: Conscientious Objection in Canada during the First World War (Vancouver: UBC Press 2009).   3 Affidavit of George Edwin Gray, Application for Habeas Corpus, 11 July 1918 [hereafter “Gray Affidavit”], paras. 2–3, Gray DOJ file. See K. Abel, Changing Places: History, Community, and Identity in Northeastern Ontario (Montreal and Kingston: McGill-Queen’s University Press 2006). On agriculture in northern Ontario, see P.W. Sinclair, “The North and the North-West: Forestry and Agriculture,” in I.M. Drummond, ed., Progress without Planning: The Economic History of Ontario from Confederation to the Second World War (Toronto: University of Toronto Press 1987). On agriculture more generally, see, I.M. Drummond, “Agriculture, 1867–1941,” in the same volume.   4 Gray Affidavit, para. 4, Gray DOJ file.   5 Gray was among the first wave of conscripts who were originally supposed to report for duty or apply for exemption in early November. It quickly became apparent there would be delays implementing the regime, and in midOctober the government extended the deadlines by one month, allowing men to start reporting for duty in mid-December. Many tribunals did not start hearing applications for exemption until December 1917 or January 1918. No one was expected to report for active service before early January 1918. Gray Affidavit, para. 5, Gray DOJ file; Canada Gazette, 16 Oct. 1917, 2936.   6 Appeal Disposition dated February 1918. Gray Affidavit, para. 7.   7 In late March 1918 Clifford Sifton wrote to Robert Borden about the desperate need for men. By his calculation, there were no more than 18,200 troops available for the front lines even with the advent of conscription. Another estimate put the number higher, at approximately 31,000. Regardless of the actual number, it was clear that conscription, as administered by the spring of 1918,

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  8

  9 10 11

12

13

14

15 16

17

18

19

20 21 22

was not able to raise the number of troops necessary for the war effort. See Sifton to Borden, 26 March 1918, and Mewburn to Borden, 1 April 1918, LAC, Robert Laird Borden Papers, MG26, H1(a), vol. 100. PC 919. The revocation of exemptions applied to men who were at least nineteen years old and born on or since 13 Oct. 1897. The order was made on Borden’s recommendation. PC 962. The order was made on Mewburn’s recommendation. War Measures Act, 1914, 5 Geo. V, c.2 [hereafter WMA]. Gray filed his petition pursuant to s.62 of the Supreme Court Act, c.139, Revised Statutes of Canada [hereafter RSC] 1906. Supreme Court of Canada, In re Gray, case file no. 4132, 1918 [hereafter Gray SCC file]. The government appealed Lewis on 25 July 1918, after the Supreme Court of Canada had released its reasons upholding the orders-in-council to revoke exemptions. DOJ Papers, RG13, vol. 2445, file A-1-1501. P.W. Hogg, Constitutional Law of Canada (Toronto: Carswell 2007), 14.1(d) and 14.2(a). Canada, unlike the United States, does not have a separation-ofpowers doctrine. J.G. Snell and F. Vaughan, The Supreme Court of Canada: History of the Institution (Toronto: Osgoode Society for Canadian Legal History/University of Toronto Press 1985), 99–100. Ibid., 100. I. Bushnell, The Captive Court: A Study of the Supreme Court of Canada (Montreal and Kingston: McGill-Queen’s University Press 1992), 204–5. Bushnell attributes Brodeur’s dissent to the fact that he was from Quebec, though Idington, who actually wrote the dissent, did not warrant an explanation. J.L. Granatstein and J.M. Hitsman, Broken Promises: A History of Conscription in Canada (Toronto: Oxford University Press 1977), 95. They describe the order overruling the Lewis decision as a “simply astonishing course of conduct.” For context on the legislation, see F.M. Greenwood, “The Drafting and Passage of the War Measures Act in 1914 and 1927: Object Lessons in the Need for Vigilance,” in W. Pue and B. Wright, eds., Canadian Perspectives on Law & Society: Issues in Legal History (Ottawa: Carleton University Press 1988), 291. These included: censorship and control of all manner of publications and communications; arrest, detention, exclusion, and deportation; control of the harbours and vessels; all manner of transportation; all manner of trade, export, import, production, and manufacture; and all use and disposition of property. See WMA. Militia Act, RSC 1906, c.41. Ibid., ss.10, 69, R.C. Brown and G.R. Cook, Canada 1896–1921: A Nation Transformed (Toronto:

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23 24 25 26

27

28

McClelland and Stewart 1974), 212; R.M. Bray, “‘Fighting as an Ally’: The English-Canadian Patriotic Response to the Great War,” Canadian Historical Review, 51 (1980): 141. J.H. Thompson, The Harvests of War: The Prairie West, 1914–1918 (Toronto: McClelland and Stewart 1978), 115. See J. English, The Decline of Politics: The Conservatives and the Party System, 1901–20 (Toronto: University of Toronto Press 1977), 121–85. Military Service Act, 1917, 7–8 Geo. V, c.19. Borden’s government had already tried to introduce national service and a semi-active militia, but had failed. The introduction of the Wartime Elections Act in September 1917, a statute that enfranchised close female family-members of men serving overseas, along with the Military Voters Act, also helped Borden. Additionally, the act disenfranchised citizens of enemy alien birth naturalized after March 1902 except where a son, father, or grandfather was on active duty. See: A.M. Willms, “Conscription 1917: A Brief for the Defence,” in Conscription 1917 (Toronto: University of Toronto Press), 4–5; English, The Decline of Politics; C. Berger, “Introduction,” in Conscription 1917, viii; H. Borden, ed., Sir Robert Laird Borden: His Memoirs (Toronto: University of Toronto Press 1938), vol. 2; J.C. Hopkins, ed., Canadian Annual Review of Public Affairs 1917 (Toronto: University of Toronto Press 1918); J.M. Beck, Pendulum of Power: Canada’s Federal Elections (Toronto: University of Toronto Press 1968). On 4 April an order-in-council passed that included “elaborate provisions” to deal with enforcement and suppression of violence relating to these riots: PC 834. Memorandum, re-establishment of martial law in City of Quebec, 3 April 1918, Varcoe to Newcombe, LAC, DOJ Papers, RG13, vol. 221, file 729–1918; Borden, Borden Memoirs, 2: 786. For additional information on the French Canadian opposition to conscription and the war more generally, see the chapter by Benjamin Isitt on mutiny among the French Canadian members of the Canadian Expeditionary Force (Siberia) in this volume. Robin writes about opposition to conscription among labour and farmers, many of whom urged mobilization of both men and wealth. See M. Robin, “Registration, Conscription, and Independent Labour Politics, 1916–1917,” Canadian Historical Review, 47 (1966): 101. On the Quebec City riots, see, for example, M.F. Auger, “On the Brink of Civil War: The Canadian Government and the Suppression of the 1918 Quebec Easter Riots,” Canadian Historical Review, 89 (2008): 503–40. On conscription and the First World War, see: J.L. Granatstein, “Conscription,” in D. Mackenzie, ed., Canada and the First World War: Essays in Honour of Robert Craig Brown (Toronto: University of Toronto Press 2005), 62; A.J. Shaw, Crisis of Conscience; J.L. Granatstein and J.M. Hitsman, Broken Promises: A History of Conscription in Canada (Toronto: Oxford

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29

30 31

32

33

34 35

36

37

38

University Press 1977); G.W.L. Nicholson, Canadian Expeditionary Force, 1914– 1919 (Ottawa: Ministry of National Defence 1962). The Military Service Act, 1917 operated in conjunction with the Militia Act to the extent that it was not inconsistent to do so. It raised the minimum age for conscription from eighteen to twenty and reduced the maximum from sixty to forty-five. It created six classes of potential conscripts based on age and family status. See ss.3, 4, 13(1), and 13(4). Ibid., s.11(1). Military Service Act, 1917, ss.5(1), 6(3). The federal government appointed one member, and the provincial government in which the tribunal operated appointed the other. In most instances, tribunal members were judges. “Treatment of Desertion, Defaulters, Conscientious Objectors Etc.,” E.L. Newcombe, 5 Feb. 1919, LAC, DOJ Papers, RG13, ser. A-2, vol. 2162, file 1919–2453. For more on conscientious objectors, see Shaw, Crisis of Conscience. Military Service Act, 1917, s.11(3). Where an appeal tribunal or the central appeal judge granted the exemption, only that entity could renew, vary, or withdraw the exemption, although it could do so at any time. Ibid., ss.5(2), 5(3), 5(6), and 11(5)(c). Peter E. Paul Dembski, “Meredith, Sir William Ralph,” Dictionary of Canadian Biography, 15, http://www.biographi.ca/en/bio/meredith_william_ ralph_15E.html; Gray Affidavit, para. 5, Gray DOJ file. Military Service Act, 1917, s.7(1). Military Service Act, 1917, s.10(4). At the request of the central appeal judge, the governor-in-council could appoint one or more judges of any superior court to assist the central appeal judge with his duties. Clifford Sifton proposed that Duff serve as leader of the Union government, but Duff refused to join the government unless W.N. Tilley did so as well. D.R. Williams, Duff: A Life in the Law (Toronto: Osgoode Society for Canadian Legal History/University of Toronto Press 1984), 89–90. Military Service Act, 1917, s.8. By February 1918, there had been more than 360,000 applications for exemption, with 52,000 claims pending. See Military Service Council memorandum to Cabinet War Committee, 4 Feb. 1918, LAC, Borden Papers, MG26, vol. 99. On 3 April 1918 the House of Commons issued an order requesting copies of all judgments from the central appeal judge. A handwritten note on the memorandum indicates that Justice Duff had already produced twenty-eight judgments, but Newcombe refused to produce them to the Commons. Director, Military Service Branch, to Newcombe, 10 April 1918, LAC, DOJ Papers, RG13, series A2, vol. 222, file 1918–763, DOJ Papers, RG13, series A2, vol. 222, file 1918–890.

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162  pat r i c i a i . m c mahon 39 Gray Affidavit, para. 6, Gray DOJ file. 40 W.R. Young, “Conscription, Rural Depopulation, and the Farmers of Ontario, 1917–19,” Canadian Historical Review, 52, no. 3 (1972): 299. See also Hopkins, ed., Canadian Annual Review 1917. In 1915, 30 per cent of volunteers were Canadian-born, and 62 per cent were British-born. Newton Rowell released Ontario recruitment figures as of 1 March 1916 which indicated 17,044 farm enlistments, or 8.5 per cent of the total. See also Granatstein, “Conscription.” 41 J.E. Rea, T.A. Crerar: A Political Life (Montreal and Kingston: McGill-Queen’s University Press 1997), 49; Young, “Conscription,” 300–3. 42 In mid-November, Newcombe appeared indifferent when he acknowledged that some decisions were bound to be unjust given the number of local tribunals in operation. Borden’s point about the “simple character” of appeals likely did not help, either. At their convention in December 1917, members of the United Farmers of Ontario passed a resolution asking for registration of all skilled labour. By implication, this process would recognize the need for labour in essential industries. Young, “Conscription,” 303–5. 43 Ibid., 305. 44 Ibid. 45 On 3 Dec. 1917 the governor-in-council issued order-in-council PC 3348, which allowed the minister of militia and defence to overrule denials of exemptions from service when he saw fit. It was published in the Gazette on 31 Dec. 1917. See: http://www.collectionscanada.gc.ca/databases/canadagazette/093/001060-119.01e.php? document_id_nbr=6380 &f=p&PHPSESSID =t23btm27br5pgmhe1diukmt4s4. 46 In the weeks before the exemptions were cancelled, a group of Englishspeaking farmers from Sherbrooke and the Eastern Townships in Quebec met with the Liberal minister of agriculture, T.A. Crerar. They presented him with options to deal with the manpower shortage on Canadian farms and the need for troops to fight overseas. Crerar turned over the proposal to Borden and the Department of Justice. They ignored it. DOJ Papers, RG13, series A2, vol. 222, file 1918–793. See also Young, “Conscription,” 305–7; Rea, T.A. Crerar, 49. 47 Borden Memoirs, 2: 799–800. 48 Ibid., 2: 800. 49 Young, “Conscription,” 307–8. In his diary, Borden called Laurier’s speech, “piffling.” Borden Memoirs, 2: 800–1. 50 Young, “Conscription,” 308–9. 51 Borden Memoirs, 2: 801. I have not been able to locate this order-in-council from the autumn of 1917 that Borden referred to in his memoirs. Moreover, there is no evidence of an order-in-council that would save the sons of farm-

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52

53 54

55

56 57

ers from conscription, especially in light of the discontent among farmers and their activities with respect to Borden and Newcombe during the 1917 election campaign. However, an order-in-council, dated 12 Oct. 1917 and published in the Canada Gazette, 13 Oct. 1917 (1157–8) and 20 Oct. 1917 (1237–8), justified calling up all members of Class 1 under the Military Service Act in part: given “the large number of men who have already left agricultural and industrial pursuits in Canada to join such expeditionary force as volunteers, and of the necessity of sustaining under such conditions the productivity of the Dominion, it is expedient to secure the men still required, not by ballot as provided in the Militia Act, but by selective draft.” See: http:// www.collectionscanada.gc.ca/databases/canada-gazette/093/001060119.01e.php?image_id_nbr=208323& document_id_nbr=6414&f=p &PHPSESSID=f6j9ofd8u62i186u93gbsg7290. Young, “Conscription,” 309. Granatstein promoted this position in many of his earlier works on conscription, denying the military necessity or assistance of conscription. However, he has changed his view. See Granatstein, “Conscription,” in Canada and the First World War, 62–4. Young, “Conscription,” 309–11, 314; Borden Memoirs, 2: 802; Rea, T.A. Crerar, 55–6. See, for example, Rowell to Borden, 8 May 1918; Rowell to Mewburn, 4 May 1918; and Rowell to Newcombe, 2 May 1918, Borden Papers, vol. 99; Crerar to Borden, 18 May 1918, Borden Papers, vol. 100. Crerar opposed other wartime initiatives like sending Canadian troops to Siberia. See Isitt’s chapter in this volume. PC 1259. In his letter to Borden dated 18 May 1918, Crerar appealed for an order-in-council to exempt those facing hardship as a result of the revocations, including “the only son of the widow or invalid father, working the farm, and the young man who is a bona fide owner or renter of his own land, and working it.” Crerar to Borden, 18 May 1918, Borden Papers, vol. 100. See also DOJ Papers, RG13, series A2, vol. 225, file 1918–1519. On 1 July the government announced it would grant a harvest leave where possible, although it was evasive about whether it would call up nineteen year olds. Farmers were not entirely satisfied but were now more encouraged than ever to act. They had proof that mobilization could yield results. Young, “Conscription,” 312; Borden Memoirs, 2: 802–3. It is not clear whether Gray knew about PC 1259. There is no reference to that order-in-council in the materials prepared for Gray’s habeas petition. Gray Affidavit, para. 14, Gray DOJ file. Because Gray was court-martialled in Canada, his file is not included in the online database on the LAC website. See: “Courts-martial of the First World War,” http://www.collectionscanada

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58 59

60

61 62 63

64

65 66

67 68

69

.gc.ca/databases/courts-martial/index-e.html. Email from Marcelle CinqMars, military archivist, LAC, 4 Sept. 2013, on file with author. Norman Earl Lewis, LAC, RG150, Accession 1992–93/166, box 5627–12, file: Lewis, Norman Earl #3209121/3214647 [hereafter “Lewis CEF File”]. At the Gray hearing, Bennett was listed as counsel of record in Lewis. However, the Lewis decision printed in the Dominion Law Reports lists A. Macleod Sinclair as counsel, with James Muir representing the government. See Re Lewis, (1918) 41 Dominion Law Reports [hereafter DLR] 1 (Alta. S.C.) [hereafter “Re Lewis”] and In Re George Edwin Gray (1918) 57 Supreme Court Reports [hereafter SCR] 150 [hereafter “Re Gray”]. Re Lewis. See also J. de P. Wright, “Habeas Corpus in Wartime,” Law Society Gazette, 19 (1985): 32; W.N. Renke, “The Power of Law: Judicial Independence and the Supreme Court of Alberta, 1918,” in J. Swainger, ed., The Alberta Supreme Court at 100: History and Authority (Edmonton: University of Alberta Press/Osgoode Society for Canadian Legal History), 69, 75–89. See the Military Service Act, 1917, ss.6 and 13. Re Lewis, 8–14, 16–17, 18–19. Relying on the WMA, s.6. Re Lewis, 5–7. The government lawyers filed their notice of appeal in Lewis on 27 July 1918, more than a week after the decision in Gray. They appear to have done so to cover themselves, having considered whether to appeal to the JCPC or the Supreme Court much earlier. The appeal was discontinued in October 1918. DOJ Papers, RG13, vol. 2445, file A-1-1501. Canada Gazette, 20 July 1918, vol. 52, no. 3, 42. See: http://www .collectionscanada.gc.ca/databases/canada-gazette/093/001060-119.01e .php?document_id_nbr=6508&f= p&PHPSESSID =pgnkonovh2jgocm94ckbordrk5 (accessed 31 July 2013). Charles Doherty to governor general-in-council, 8 July 1918, Gray DOJ file. After Chief Justice Fitzpatrick, who was appointed in 1906, the senior puisne judge was Justice Davies, who had been appointed in 1901. J.M. Bumsted, “Davies, Sir Louis Henry,” Dictionary of Canadian Biography, 15, http://www .biographi.ca/en/bio/ davies_louis_henry_15E.html. See also http://scc-csc .gc.ca/court-cour/judges-juges/bio-eng.aspx?id=louis-henry-davies. Charles Doherty to governor general-in-council, 8 July 1918, Gray DOJ file. Appointed in 1893, Newcombe served as deputy minister of justice until 1924 when he was appointed to the Supreme Court of Canada. See P. Girard, “Newcombe, Edmund Leslie,” Dictionary of Canadian Biography, forthcoming (unpublished draft on file with author); and http://scc-csc.gc.ca/court-cour/ judges-juges/bio-eng.aspx?id=edmund-leslie-newcombe. It is not clear that Gray’s lawyers would have put forward different or better arguments without the involvement of Newcombe and Varcoe. Rather, it is

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70

71 72 73 74 75 76 77

78 79

80 81

the mere fact of their continued involvement in preparing Gray’s case while they prepared the government’s response that is problematic. F.P. Varcoe articled in Toronto before his call to the bar in September 1916. He became deputy minister of justice in 1941 and held the position for more than eighteen years. See Ontario Bar Biographical Research Project, Law Society of Upper Canada Archives. Email to author, 15 Oct. 2013. Patrick Brode, “Robinson, John Beverley,” Dictionary of Canadian Biography, 12, http://www.biographi.ca/en/bio/robinson_john_beverley_12E.html. Varcoe to Newcombe, 10 July 1918, Gray DOJ file. Ibid., Newcombe to Varcoe, 10 July 1918. Ibid., Newcombe to Anglin, 11 July 1918. Ibid., Anglin to Newcombe, 11 July 1918. Williams, Duff, 91–2. Newcombe told Chrysler to act as counsel for Gray “for the purpose of bringing a test case to try the validity of the order in council taking away exemptions and Statutes relating to the Military Service Act.” Chrysler Statement of Account to Department of Justice, 1 Aug. 1918, Gray DOJ file. Ibid., Varcoe to Newcombe, 11 July 1918. Ibid., Newcombe to Tilley, 10 July 1918: “Anxious to see Mr. Tilley – when can he come?” Ibid., Newcombe to Thomson, 11 July 1918. Borden had tried to persuade Tilley to join the Union Government in 1917. See Williams, Duff, 89–90. Thomson, Tilley, and Johnston to Newcombe, 11 July 1918, Gray DOJ file. Ibid., Varcoe to deputy minister, Department of Militia and Defence, 12 July 1918. Others raised concerns about the court’s jurisdiction to hear Gray’s application. The day after Justice Anglin heard Gray’s preliminary petition in chambers, Sir Joseph Pope, the under-secretary of state for external affairs, wrote to Newcombe expressing concern about the availability of habeas. He reminded the deputy minister that the Province of Canada had suspended the operation of the British Habeas Corpus Act in 1866 during its final session, which the Parliament of Canada had confirmed in its early days. That legislation “provides that for a period of nine months it may be alternately suspended or revived by order in council at the pleasure of the Government.” Newcombe acknowledged the letter and the Canadian statutes touching on habeas, noting, “I had already noticed these. I am nevertheless grateful for your reminder.” But he was not likely to be concerned about Pope’s letter because the Gray petition was proceeding as a criminal matter under s.62 of the Supreme Court Act R.S. 1906, c.139, and the newly enacted regulations. See Pope to Newcombe, 13 July 1918; Newcombe to Pope, 20 July 1918, Gray DOJ file; Parliament of Canada, 1866, 29–30 Vict., c.1; 31 Vict., c.16; 33 Vict., c.1.

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166  pat r i c i a i . m c mahon 82 Re Gray, (1918) SCR 173. 83 In Alberta, the Lewis decision inspired others to seek habeas. See the discussion of the case involving Marvin Chester Norton in Renke, “The Power of Law,” 78–81; In re Norton, (1918) 13 Alberta Law Reports 457. 84 1867–1946 (Dominion of Canada), vol. 52, no. 2, 13 July 1918, 71. See also n.64. 85 Director, Military Service Branch, to Newcombe, 17 July 1918, Gray DOJ file. The statistics were broken down according to military districts, which meant that all figures were divided according to urban centres: London, Toronto, Kingston, Hull, Montreal, Quebec, Halifax, Saint John, Charlottetown, Kenora, Winnipeg, Vancouver, Regina, and Calgary. It is thus not possible to determine the rural breakdown. 86 PC 1795. The order-in-council is listed among public orders during the relevant period, but it was not published in the Canada Gazette during the same period. 87 The distribution list is handwritten on PC 1795: “Justice; C.J. Sup. Court; Dy Min Just; Gov. General; High Com; Sir. Edw. Kemp.” 88 Gray DOJ file. The order provided, in part: “The Supreme Court of Canada shall have jurisdiction to hear and determine at the special sitting of the court to be held at Ottawa on Thursday, the 18th day of July, 1918, or at any other sitting to which the hearing may be adjourned, the application for the issue of a Writ of Habeas Corpus ad subjiciendum on behalf of George Edwin Gray, now pending before the said Court, upon reference by Mr. Justice Anglin, and it shall be the duty of the Court to hear the said application and to determine the same, and all questions that may arise at the hearing relevant to the said application, or to the powers of the Governor in Council, under the War Measures Act, 1914, as soon as the ends of justice will permit, and the judgment of the Supreme Court so rendered upon the said application and questions shall be binding and conclusive upon all courts, magistrates and judicial tribunals in Canada.” [Emphasis added.] 89 When Canada abolished appeals to the Judicial Committee of the Privy Council, it did so only after references to the Privy Council and formal legislative amendment. Canada abolished criminal appeals to the JCPC in 1935: British Coal Corporation v. The King, [1935] Appeal Cases 500 [hereafter AC], 3 Dominion Law Reports 401 [hereafter DLR] (PC). It took references to the Supreme Court of Canada and the JCPC and legislation to abolish all appeals to the JCPC in 1949. See (1940) SCR 49 and JCPC (1947) 1 DLR 801. Both bodies concluded that Parliament had the power to abolish all Canadian appeals to the Judicial Committee, even those appeals derived wholly from provincial powers. A Canadian order-in-council would have been insufficient in 1949, and there is no reason it would have been acceptable in 1918. Of course, the WMA was not in effect in 1949 because it was only operative during times

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90

91 92 93

94

95 96

97 98

of war, or, after amendments in 1927, times of “apprehended insurrection,” which included emergencies such as the October Crisis. The Toronto Globe and Toronto Daily Star printed the Canadian Press account of the hearing, although the Globe also had a special report on the subject. Toronto Daily Star, 18 July 1918, 1–2; “Diverse Views in Supreme Court on Habeas Corpus,” Globe, 19 July 1918, 4; “Supreme Court Hearing To-day: Momentous Habeas Corpus Case to be Argued at Ottawa, Not Appeal Simply but a Direct Application to That Court for a Writ,” Globe, 18 July 1918, 5. “Foch Drives a Telling Blow at Germans,” Toronto Daily Star, 18 July 1918, 1. “Must Not Move Draftees Away, Says the Court,” Toronto Daily Star, 18 July 1918, 1–2. “Judge Masten Grants Everyone Extension – Farmers Appear before Tribunals and Are Exempted until November,” Toronto Daily Star, 18 July 1918, 2. With respect to the Gray hearing, the newspapers published some first-hand accounts of the proceedings but generally relied on the Canadian Press report. The reporting is hard to follow at times, and it is sometimes difficult to tell whether the arguments were confusing or if something got lost in translation between the hearing and the reported accounts. However, there were neither written submissions to the court nor transcripts of the hearing to use as a check against these first-hand accounts. Newcombe to Squires, 13 Aug. 1918. Enclosing copies of the court’s decision for his review, Newcombe explained that there were no factums, no written arguments, and no transcript. DOJ Papers, RG13, series A2, vol. 225, file 1918–1622. The Supreme Court of Canada did not begin transcribing hearings until 1988. Email from Records Centre, Supreme Court of Canada, 9 Sept. 2013 (on file with author). Toronto Daily Star, 18 July 1918, 1; “Diverse Views in Supreme Court on Habeas Corpus,” Globe, 19 July 1918, 4. Robinson earned $481.65; Chrysler and Geoffrion each received $632.55 for eight days of work. See: Robinson to Newcombe, 22 July 1918; Varcoe to Robinson, 27 July 1918; Chrysler Statement of Account, 1 Aug. 1918; Varcoe to Secretary, Militia Council Headquarters, 21 Aug. 1918, Gray DOJ file. Re Lewis. Fitzpatrick was from Quebec and was appointed chief justice of Canada in 1906 directly from Parliament. Davies, the longest-serving member of the Court, having been appointed in 1901, was originally from Prince Edward Island, where he had practised law and served as premier and attorney general before turning to federal politics in Ottawa. Idington practised in Stratford, Ontario, for decades, then served briefly on the High Court of Justice in Ontario before his appointment to the Supreme Court of Canada in 1905.

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168  pat r i c i a i . m c mahon Duff, from British Columbia, served on the trial court of the province for less than two years before his appointment to the Supreme Court in 1906. Anglin was from New Brunswick but practised in Ontario, and he served on the Exchequer Division of the High Court of Justice in that province for almost five years before his appointment to the Supreme Court of Canada in 1909. Brodeur, from Quebec, was Laurier’s final Supreme Court appointment, arriving at the Court just before the 1911 election. Among the group hearing the case were three future chief justices (Davies, Anglin, and Duff) in addition to Chief Justice Fitzpatrick, who resigned from the Court shortly after Gray to become the lieutenant governor of Quebec. See: http://scc-csc.gc.ca/courtcour/judges-juges/bio-eng.aspx?id=charles-fitzpatrick; Bumsted, “Davies, Sir Louis Henry”; http://scc-csc.gc.ca/court-cour/judges-juges/bio-eng .aspx?id=louis-henry-davies; Gordon Bale, “Idington, John,” Dictionary of Canadian Biography, 15, http://www.biographi.ca/en/bio/idington_ john_15E.html; http://scc-csc.gc.ca/court-cour/judges-juges/bio-eng .aspx?id=john-idington; Williams, Duff; http://scc-csc.gc.ca/court-cour/ judges-juges/bio-eng.aspx?id=lyman-poore-duff;” I. Kyer, “Anglin, Francis (Frank) Alexander,” Dictionary of Canadian Biography, forthcoming (unpublished draft on file with author); http://scc-csc.gc.ca/court-cour/judgesjuges/bio-eng.aspx?id=francis-alexander-anglin.   99 In re Norton, (1918) 13 Alberta Law Reports 457. 100 Greenwood, “Drafting and Passage,” 302–3. 101 See n.55. 102 See n.85. 103 The government filed its notice of appeal on 27 July 1918. See Case File 04331: Norman Earl Lewis v. Military Service Act (Alberta), Supreme Court of Canada. 104 Re Gray. 105 Ibid., 173–5. Justice Anglin also justified his decision to refer the case to the entire bench for hearing pursuant to Rule 72 of the Supreme Court of Canada’s Rules of Court. “As many thousands of young men throughout Canada,” he explained, “most of them already drafted and a considerable number of them already overseas or en route to Europe, are affected, the importance of the matter involved is serious.” He continued, “It has occasioned much public excitement and unrest, and numerous applications for writs of habeas corpus are already pending in the provincial courts. Under these circumstances it was obviously of great moment in the public interest that the question of the validity of these Orders in Council should be authoritatively determined by this Court.” 106 Ibid., 175.

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Conscription and the Courts  169 107 Section 6 contemplated events that would trigger the powers under the act (“as he may by reason of the existence of real, or apprehended war, invasion or insurrection, deem necessary or advisable”); s.3 contemplated the duration of these powers; and s.11 limited the sanctions imposed under the act. Justice Anglin relied on Bank of Toronto v. Lambe 12 AC 575, 588 (JCPC): “The Federal Act exhausts the whole range of legislative power”; and Hodge v. The Queen, 9 AC 117, 133 (JCPC): within the ambit of legislative authority “as plenary and as ample ... as the Imperial Parliament in the plenitude of its powers possessed and could bestow.” Ibid., 176–7, 180. 108 The MSA stated specifically that “nothing in this Act contained shall be held to limit or affect … the powers of the Governor in Council under the War Measures Act of 1914.” 109 Re Gray, 180–3. 110 Ibid., 155, 158, 160. 111 Ibid., 166, 168–9. 112 Ibid., 161–3. The section read: “And whereas by reason of the large number of men who have already left agricultural and industrial pursuits in Canada to join such expeditionary force as volunteers, and of the necessity of sustaining under such conditions the productivity of the Dominion, it is expedient to secure the men still required, not by ballot as provided in the Militia Act, but by selective draft.” This language also appeared in the orderin-council published 13 Oct. 1917 and 20 Oct. 1917 calling up for service members of Class 1 under the act. See: http://www.collectionscanada .gc.ca/databases/canada-gazette/093/001060-119.01-e.php?image_id_ nbr=208323& document_id_nbr=6414&f=p&PHPSESSID= f6j9ofd8u62i186u93gbsg7290. See also n.51. 113 Re Gray, 164–6. 114 Tilley to Newcombe, 20 July 1918, Gray DOJ file. 115 See, for example, Mewburn to Borden, 19 Sept. 1918, Borden Papers, vol. 99; Grantatstein, “Conscription,” Canada and the First World War, 62. 116 Newcombe to W.S. Hall (Halifax), 22 July 1918; Newcombe to J.L. Whiting (Kingston), 22 July 1918; Newcombe to W.N. Tilley (Toronto), 22 July 1918; Newcombe to James Muir (Calgary), 22 July 1918; Newcombe to G.F. Gibsone (Quebec), 22 July 1918; Newcombe to P.B. Mignault (Montreal), 22 July 1918, Gray DOJ file. 117 Ibid., Choquette to Newcombe, 20 Aug. 1918. 118 Ibid., Choquette to Newcombe, 28 Aug. 28. 119 Ibid., Newcombe to Choquette, 29 Aug. 1918. 120 Ibid., Choquette to Newcombe, 3 Sept. 1918. 121 Ibid.

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170  pat r i c i a i . m c mahon 122 DOJ Papers, RG13, vol. 2445 pt.1, file A-1-1501; Case 04331: Norman Earl Lewis v. Military Service Act (Alberta), Supreme Court of Canada. The case was discontinued when counsel for Lewis missed the deadline to file his reply factum. DOJ Papers, RG13, vol. 2445, file A-1-1501. 123 Tilley to Newcombe, 20 July 1918, Gray DOJ file. 124 The Department of Justice, not the Supreme Court of Canada, published the initial copies of the Reasons for Judgment. On 5 August, Chief Justice Fitzgerald wrote to Newcombe to ask for permission to look at the department’s copy before publication, and offered to have it translated because “it might be useful to have them in French.” Ibid., Fitzgerald to Newcombe, 5 Aug. 1918; Cameron to Varcoe, 19 Sept. 1918; Varcoe to Cameron, 20 Sept. 1918, Newcombe to Tilley, 23 July 1918. 125 Ibid., Fitzgerald to Newcombe, 26 July 1918. 126 Ibid., Newcombe to Fitzgerald, 1 Aug. 1918. 127 PC 1795. See n.87. 128 Military Service Act, 1917, s.4. 129 Varcoe to Newcombe, 29 August 1918, Gray DOJ file. The Military Service Act, 1917 included a range of offences and penalties for contravention of the act. Most ranged from a penalty of between $250 and $1,000 to six months’ imprisonment upon summary conviction. See ss.11, 14, and 16. 130 Gray’s transfer is not recorded in his personnel file. Newcombe wrote to the inspector of penitentiaries in early September to urge the warden at Kingston Penitentiary to speak to Gray about his willingness to begin military service if discharged from prison. However, he warned the warden not to make any promises to Gray. “I shall endeavour in that case to have him discharged, but questions of policy may supervene to prevent, and I do not wish to induce any false hopes. I should however like to do what is possible for this young man who has rendered us a considerable service in permitting his case to be made a test.” Newcombe to Stewart, 2 Sept. 1918, Gray DOJ file. 131 Ibid., Varcoe to Newcombe, 29 Aug. 1918. 132 Ibid. 133 Ibid., Stewart to Newcombe, 4 Sept. 1918. 134 Newcombe explained Gray’s situation: “This is the young man whose case was recently before the Supreme Court upon Habeas Corpus. He was, as you are aware, committed to Kingston Penitentiary upon sentence of courtmartial for disobedience to military orders, but I have ascertained that he no longer objects to performing his military duties, and is willing if discharged to become subordinate to discipline. I do not overlook the fact that he rendered the Government considerable services in consenting to put forward

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Conscription and the Courts  171 his Application as a test case, and I should be glad in the circumstances to recommend his discharge if your department approve. Will you be good enough to let me have your views upon this question at an early date.” Ibid., Newcombe to deputy minister of militia and defence, 9 Sept. 1918. 135 Gray CEF File, 21, 25. 136 Gray’s Statement of Service lists his enlistment as 2 years and 112 days. George Edwin Gray, LAC, RG150, Accession 1992–93/166, box 3753-57, file: Gray, George Edwin #3039147, 7. The Military Service Act, 1917 deemed applicants to be on leave of absence without pay for the duration of their application process or any resulting appeals, but there is nothing in Gray’s file to indicate that he was denied pay, detained, or subject to court-martial. 137 Gray suffered two serious illnesses during his time in the CEF. Not only did he spend a month in the hospital at Camp Niagara after his release from prison with bronchial pneumonia, but also in early 1920 he suffered from scarlet fever and spent time in St Andrew’s military hospital in Toronto. Ibid., 17. 138 Temiskaming Speaker, 18 March 1987 and 15 April 1987. 139 Brian Mulroney’s government repealed the WMA when it enacted the Emergencies Act, 1988, c.29 (R.S.C., 1985, c. 2 [4th Supp.]). See also Greenwood, “Drafting and Passage,” 291; Williams, Duff, 93.

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5 Court-Martial at Vladivostok: Mutiny and Military Justice during the First World War BENJAMIN ISITT

In January 1919 a unique military tribunal opened at the Canadian barracks at Gornostai Bay outside Vladivostok, Russia: court-martial proceedings for ten French Canadian conscripts in the 259th Battalion of the Canadian Expeditionary Force (Siberia) (CEFS), who faced the serious charge of “joining in a mutiny while on active service in His Majesty’s armed forces.” The soldiers belonged to the Canadian force that was part of the Allied intervention in the Russian Civil War following the Bolshevik Revolution. The charges arose from a disturbance a month earlier on the streets of downtown Victoria, British Columbia, when a platoon of troops broke from a march en route to the wharf, refusing to deploy for service in Russia. The soldiers were forced to embark from Canada at bayonet point and were then detained in the hold of the ship SS Teesta as officers investigated the circumstances surrounding the mutiny, before being tried upon their arrival in Russia. Following three days of hearings, in which evidence from military officers was adduced before a panel of three military judges, the accused were found guilty and received sentences of between thirty days’ field punishment and three years’ imprisonment with hard labour. The court-martial proceedings of the French Canadian mutineers at Vladivostok provide a unique window into the legal procedures and wider social context of Canadian military justice during the First World War. It draws legal-historical inquiry to an unlikely theatre, the war in the Russian Far East, but it illustrates much more than the Canadian govern-

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ment’s war aims in Europe and Asia. The incident highlights class and ethnic cleavages within the Canadian armed forces during and after the war, including the dual role of soldiers as workers, and French Canadian antipathy to conscription. The chapter also illuminates diverse state responses to the threat of Bolshevism at home and abroad, which ranged from a widening of state surveillance and censorship against socialist and radical labour groups in Canada to the deployment of military force against the revolutionary movement in Russia. At the nexus of these social tensions and state responses lay the unlikely Siberian Expeditionary Force and the French Canadian conscripts who defiantly declared “On y va pas en Siberie!” Through the case study of their mutiny and subsequent court-martial proceedings – examined through original archival research into military records and set against the backdrop of the wider social context at home and overseas – this chapter breaks fresh ground in the legal historiography of the First World War. military justice during canada’s great war The later years of the First World War provided the backdrop for one of the deepest political crises in Canada’s history, as the rising cost of living, profiteering, and censorship combined with public anger against compulsory military service and carnage on the battlefields of France and Flanders to produce widespread social unrest. The unrest peaked in events such as Quebec’s 1918 Easter Riots against conscription and extended to the general sympathetic strikes that paralysed production from Victoria to Winnipeg to Amherst, Nova Scotia, actions that involved many exsoldiers concerned about unemployment and economic insecurity in the post-war era.1 Displays of social discontent, moreover, were not confined to civilians but included active members of the armed forces themselves. As historian Desmond Morton notes, soldier unrest is “as much a part of the fabric of Canadian history as the Winnipeg General Strike or any other symptoms of social turmoil in the wake of the First World War. They were part of the experience of ordinary Canadians, asserting their own interests against authorities who always professed to know better.” According to Morton, labour historians “have never shown much interest in military service as part of the working-class experience.”2 This chapter explores the dual role of soldiers as fighting men and workers and considers the distinct legal context within which soldiers dissented during the First World War. In this respect, Teresa Iacobelli’s recent research has shone valuable interpretive and empirical light on

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174  b e n ja m in isitt

the exercise of military justice during the war, including the refinement of legal procedures during court-martial proceedings and the exercise of discretion by commanding officers. Challenging prevailing historiography, which had focused on the death sentences of twenty-five Canadian soldiers “shot at dawn” by firing squad on the Western Front (rather than the much larger group of 197 soldiers whose sentences were commuted by commanders), Iacobelli argues that military justice was “far less brutal, and far more flexible” than previously believed, and that “the individual records of soldiers mattered far less than the timing of an offence and the behaviour of the battalion as a whole.”3 Chris Madsen also addresses this topic, noting that “Canadian officers with legal knowledge oversaw instruction, application, and supervision of military law within the Canadian Expeditionary Force.”4 All officers were expected to be familiar with the relevant statutes, the King’s Regulations and Orders, the 1914 edition of the Manual of Military Law, and the 1917 edition of the training manual Military Law Made Easy.5 While Canadian forces in the British Isles and continental Europe fell under the jurisdiction of British law, specifically the Army Act of 1881, Canada retained under the British North America Act jurisdiction over the conduct of its own troops on Canadian soil. Soldiers in the CEFS were therefore subject to Canadian statutes in relation to the mutiny at Victoria. The Militia Act (1906) and accompanying regulations laid out the principal areas of law governing the conduct of Canadian soldiers within the armed forces.6 Soldier unrest during the First World War included riots in several Canadian cities where soldier-led mobs ransacked businesses owned by Germans and other perceived “enemy aliens,” demonstrating an ugly current of xenophobia and patriotism that surges during wartime. In Victoria, soldiers responded to the sinking of the Lusitania in 1915 by unleashing a wild rampage that culminated in the looting of German-owned hotels, service clubs, shops, warehouses, and a brewery. A year later, Calgary soldiers ransacked local restaurants and hotels for employing German nationals. Towards the end of the war, in August 1918, Toronto was rocked by the largest rioting in the city’s history when returned soldiers led mobs numbering in the thousands to destroy Greek-owned businesses in protest against that country’s late entry into the war.7 Colonel Harold Bickford (who would be promoted to brigadier-general and appointed second-incommand of Canada’s Siberian force the following month) declared: “Any soldier in uniform found participating in disturbances on the streets will be handed over to the military authorities and be tried by court-martial.”8 These episodes of soldier unruliness foreshadowed tumultuous “demobi-

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lization riots” in Kinmel Park and other camps in England and Belgium, some of which were aggravated by labour strikes, as Canadian soldiers openly defied their commanding officers and civilian authorities, resulting in the loss of property and life in protests against their delayed return to Canada.9 A major catalyst in the transition from passive discontent to active resistance within Canada and its armed forces was Parliament’s passage in June 1917 of the Military Service Act (MSA), which provided a direct point of conflict between rank-and-file conscripts and military commanders.10 As Patricia McMahon notes in her chapter on the Gray case, compulsory military service reflected a decline in voluntary enlistments as the war dragged on, in the face of mounting carnage in the bloody war of attrition on the Western Front which ultimately took the lives of 66,000 Canadians and injured 150,000 more. Data from the second half of 1916 graphically reveals the enlistment crisis that prompted Canada to introduce conscription: between August and November, a total of 31,358 Canadians were killed or wounded in Europe, while only 26,279 enlisted voluntarily.11 Additionally, the Dominion government sought to “keep enough troops in Canada to guard against invasion or insurrection,” devoting 16,000 troops to the task.12 While supported by a section of public opinion, the MSA’s passage provoked a strong reaction from individual citizens, who mounted appeals under tribunals established by the legislation and regulations, as well as collective challenges from labour unions, farm organizations, and riotous citizens.13 The British Columbia Federation of Labor conducted a referendum on a general strike against conscription, with three-quarters of affiliated workers who responded endorsing a “down tools” policy.14 Labour’s only recourse in response to conscription, socialist longshoreman Jack Kavanagh suggested, was to say to the master class, “If you touch a man of us, we will touch your industries.”15 B.C. labour delayed action, but in August 1918 it launched general strikes in Vancouver and the Comox valley to protest the killing of draft-dodger Albert “Ginger” Goodwin, a former vice-president of the labour federation who was shot by a special Dominion Police constable while evading the MSA.16 In Quebec, the unrest went further, with major riots erupting in Quebec City; the registrar’s office was destroyed and at least four civilians were killed as the Borden government deployed one thousand troops to reinforce the local garrison and summoned an additional five thousand troops from the west (the largest deployment of military force in aid to the civil power in Canadian history up to that time). Unrest continued throughout the

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summer of 1918. The registrar’s office in Beauce County was ransacked and a farmer at Black Lake, while resisting the draft, shot a Dominion Police officer.17 conscription, soldier unrest, and the siberian expedition Resistance to conscription and the exercise of military justice were graphically revealed with the deployment of Canada’s Siberian Expedition, an unlikely and now largely forgotten force of 4,200 soldiers. The force left British Columbia for the Far East of Russia in the closing months of 1918 as part of an effort by an international coalition to alter the outcome of the Russian Revolution through bolstering anti-Bolshevik White Russian forces in the country’s nascent Civil War. At meetings of the Imperial War Cabinet in London in July 1918, Prime Minister Borden agreed to spearhead the British empire’s military intervention on revolutionary Russia’s Far Eastern flank (a decision affirmed by his cabinet with an order-incouncil authorizing the force).18 The CEFS represented Canada’s largest contribution to the Allied intervention in the Russian Civil War, dwarfing smaller Canadian contingents that served at the ports of Murmansk and Arkhangelsk in northwestern Russia and at Baku in the south, where Canadians travelled with British forces overland from Baghdad to keep the Caspian Sea oilfields out of Bolshevik hands. The Siberian force reached Canada’s Pacific coast as the war in Europe drew to a close. It was led by Major-General James H. Elmsley, recalled from the Western Front and deployed to Vladivostok with a small advance party in October. His second-in-command was Brigadier-General Harold Bickford, head of Military District 2, Toronto, who acted, as mentioned, during the veterans’ riots of August 1918.19 The CEFS was drawn from across the country. From British Columbia to Quebec to Nova Scotia, the troops converged on Victoria’s Willows Camp and camps at New Westminster and Coquitlam. In addition to small units of bakers, butchers, medics, artists, and other supporting troops – and Nursing Matron Grace Eldrida Potter, the lone woman in the force (and wife of Colonel Jacob Leslie Potter, head of the No. 11 Stationary Hospital) – the bulk of the CEFS consisted of the 16th Infantry Brigade (Canadian Rifles), a “mixed brigade” that included the 259th and 260th Battalions and Britain’s 25th Battalion Middlesex Regiment and 1/9th Battalion Hampshire Regiment.20 These infantry units were joined by a machine-gun company and two artillery batteries, which had begun their training at Petawawa,

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Ontario. In Regina, “B” Squadron of the RNWMP Cavalry unit enlisted 181 horses and 215 men, all volunteers.21 Canada’s minister of militia and defence, General Sydney Mewburn, had suggested that the Siberian Expedition be publicized as a “most interesting service,” appealing to the “public spirit of young Canadians.” Among commissioned officers, interest exceeded the number of available spaces. However, three days after the Canadian government approved the formation of the force, Mewburn issued the following order: “If men are not coming forward voluntarily rapidly enough, fill ranks with men obtained under Military Service Act.”22 Ultimately, more than one-third of the CEFS – 1,653 soldiers – were conscripts.23 The 259th Battalion – which emerged as the hotbed of dissent – was raised entirely from Ontario and Quebec. Compared to the 260th Battalion, a much higher proportion of this battalion was drafted under the MSA – 705 of 1,083 troops (versus 520 of the 1,026 troops mustered from the Maritimes, Prairies, and British Columbia for the 260th). “A” and “B” companies were raised from the military districts around London, Kingston, and Toronto, while “C” and “D” companies consisted mainly of French-speaking soldiers from the military districts around Montreal and Quebec City. Quebec City had been the epicentre of the “Easter Riots” in the spring of 1918, as anti-conscription sentiment culminated in the death of civilian protesters and the deployment of several thousand troops. In Montreal, the local branch of the Social Democratic Party responded to the formation of the Siberian Expedition by calling a protest meeting against Allied intervention in Russia, circulating leaflets in Yiddish, and attracting seven hundred “Russian and Jewish socialists” to the event, thirty-nine of whom were arrested by Dominion Police.24 The 259th Battalion was led by Lieutenant-Colonel Albert E. “Dolly” Swift, a career soldier who had served in the 4th Infantry Brigade on the Western Front. On 20 September 1918 Swift established the battalion headquarters at Montreal. The troops mustered to camps in Ontario and Quebec to report for duty and await the trip west: “A” and “B” companies to Niagara Camp at Niagara-on-the-Lake; “C” Company to Montreal’s Peel Street Barracks; and “D” Company to the Drill Hall at Quebec City.25 The Montreal Gazette reported: “Great activity has been shown by the Military Police during the past few days in rounding up men all over the city for military service.” And, in late September, it suggested: “This time next month they will all be in Siberia.”26 More than six hundred civilians in the district were recorded at the time as “defaulters” from military-service obligations.27 To support the military police, the commanding officer of

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Military District 5 in Quebec City deployed Special Service Detachments comprising three hundred troops to Chicoutimi and the Gaspésie to assist “in the enforcement of the MSA.”28 Press censor Ernest Chambers warned the Canadian Press syndicate about the need for “absolute secrecy as to the composition of this Force.”29 Problems plagued the 259th Battalion from the start. Mobilization coincided with the arrival of the Spanish flu in Canada, the worldwide influenza epidemic that took tens of millions of lives globally and spread rapidly through sundry military units. Critics later attributed the scale of the epidemic to wartime privation and the low level of nutrition that left military units and local populations susceptible to disease. But a recent study has found that “the mobilization of the Siberian Expeditionary Force (SEF) was the greatest single factor in the diffusion of the disease … a direct consequence of the widening of Canada’s commitment to the Great War.” Troops travelling west infected towns “like an invading army ravaging a foreign country.”30 Quebec’s central health committee urged that “no transport[s] of conscripts” proceed since they were “the cause of the dissemination of influenza” and “dangerous to the conscripts themselves,” but the military command disregarded this advice and major troop movements began.31 On 2 October, “D” Company had been relocated to Quebec City’s Citadel and the following day the men were “placed in Quarantine owing to the epidemic of influenza in [the] City.” “C” Company moved to the Guy Street Barracks at Montreal and was also quarantined. Despite these conditions, the “French-Canadian companies” (as the battalion war diary describes them) began preliminary training in squad drill. “C” Company left Montreal on 24 October, while “D” Company left Quebec City on 26 October. After an inspection and address by Canada’s governor general, the Duke of Devonshire, battalion commander Lieutenant-Colonel Swift joined “D” Company aboard a special train to the west coast. The MP for Chambly-Verchères, Joseph Archambault, would later tell the House of Commons that “some of the men were forced to board a train for Victoria against their will.”32 Dissent and disease were not confined to the Quebec units of the CEFS. Dawn Fraser, a pharmacist from Saint John, New Brunswick, who voluntarily enlisted in “A” Company of the 260th Battalion, used verse to describe conditions at the Aldershot Camp in Nova Scotia: Oh! Aldershot, white-tented, wet, and beastly grim,

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Court-Martial at Vladivostok  179 Where my courage was first dented, When someone screamed, “Fall In.”33

Fraser’s Songs of Siberia and Rhymes of the Road sheds light on the rankand-file view of Canada’s Siberian Expedition and offers a rare glimpse of working-class culture at this moment of labour unrest. His poem “The Parasite” pointedly took aim at the unstable global situation: The world is nicely arranged for them, Who live by the efforts of other men; Live by the sweat of the poor and the weak, Then marvel that men turn Bolshevik.34

Among the Ontario troops in the 259th Battalion, dissent could also be detected. “A” and “B” companies had been quartered “under canvas” at the Niagara Camp since late September and had begun training in musketry. “Its [sic] getting pretty miserable,” Rifleman Harold Steele wrote to his girlfriend Josie Libby in Cane Township, Ontario.35 Like their Quebec counterparts, the companies were quarantined on 5 October as a result of the Spanish flu. As soldiers began to die, the mayor of Toronto, Thomas Church, wrote to Canada’s defence minister, saying that he feared “further casualties ... owing to heavy outbreak of this epidemic at Fort Niagara.” He asked why the Siberian draft should be “singled out and kept there in tents” and suggested that they be moved to “good accommodation” at Toronto’s Exhibition Grounds. General Mewburn consulted with military officials and rejected Church’s proposal, but he expedited the troops’ departure for British Columbia.36 On 15 October, “A” and “B” companies left Niagara Camp for Toronto, where they boarded a train west. En route, seventy-five troops were dropped from the battalion on account of influenza.37 “That was in the middle of that awful influenza epidemic, which we brought with us from the East,” recalled Captain Eric Elkington, a medical doctor attached to the CEFS.38 In October and November 1918 – as the war was ending in Europe – conscripts and volunteers from across Canada converged on Victoria’s Willows Camp, a horse-racing track and exhibition ground on the edge of the city. General Elmsley and the advance party sailed for Vladivostok as the main body of the force gathered at the camp. The first troops arrived at the Willows Camp in early October, which is also when the Spanish flu reached Canada’s Pacific coast aboard the troop trains of the 260th Battalion from Regina and the Maritimes.39 On 7 October 1918 a

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“temperature parade” was held at the camp to identify the prevalence of the disease among the men. Thirty troops, while not actually diagnosed with influenza, were found to have “above normal” temperatures and were promptly quarantined by the CEFS’s 16th Field Ambulance.40 Throughout the city, 50 to 100 known cases of influenza were reported, the opening wedge of an epidemic that left 101 Victorians dead and another 2,800 ill.41 The city’s health committee banned all public gatherings on 7 October in an effort to contain the outbreak. Schools closed on the morning of 8 October, as did “churches, theatres, pool-rooms, dance halls, and public meeting places.”42 The ban would not be lifted until the end of November, despite protests by Victoria’s Anglican bishop and others.43 Such was the climate that greeted the soldiers of the Siberian Expedition as they gathered at the Willows Camp. The conscripts and volunteers from the 260th Battalion were followed by “A” and “B” companies of the 259th Battalion, who reached Victoria on the morning of 22 October aboard an overnight boat from Vancouver. The Ontario companies, consisting of 327 enlisted men and 13 officers, marched through the city to the Willows Camp.44 Despite the threat of an epidemic, the soldiers of the 259th Battalion were quartered “under canvas” and in the stables used by racehorses during peacetime, where they were vulnerable to the autumn winds, flooding, and driving rain.45 Rifleman Harold Steele, a twentyyear-old railway worker from Cane Township, Ontario, who voluntarily enlisted in “B” Company of the 259th Battalion, described conditions at the Willows. “The weather is the worst,” Steele wrote to his girlfriend Josie Libby. “It rains every day and sometimes two or three times a day.”46 As the Victoria Times later conceded, “it may not have been the best time of year for troops to have been quartered in Victoria ... The latter part of their stay has been marked by an unusual amount of rain with an attendant sea of mud at the Willows.”47 By the time the soldiers embarked for Russia, outdoor training was “impossible” and boardwalks were required to navigate over the flooded fields in the camp.48 The Spanish flu and poor camp conditions provided a fertile climate for dissent, which extended throughout Canadian and British forces in the late stages of the war and demobilization.49 Local conditions were aggravated by the phenomenon of “war weariness,” a public revulsion to warfare following “a long and severe bout of fighting.”50 One-half of all CEFS members had seen previous service in Europe, and their willingness to fight in Siberia diminished with the signing of the armistice in November. These men were “veterans of the bloodiest fighting on the Western Front,” according to historian John Skuce, and suffered serious wounds

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before returning to Canada for medical treatment.51 While Harold Carne, a stretcher-bearer on the Western Front, wrote, “I’d sure hate like the devil to be in the shoes of those fellows who are still sporting around in ‘civies,’” a growing number of Canadians were unwilling to serve overseas.52 Morale within the 259th Battalion was also influenced by the presence of 132 Russian soldiers and three officers, who were taken on strength at the Willows on 24 October to provide interpretive services in Siberia. Containing former members of the czar’s army, the two Russian platoons had been attached to the Canadian Corps in France and then recalled for the Siberian force.53 Evidence of Bolshevik sympathies was soon apparent.54 In the face of these conditions, the 259th Battalion continued its training regimen at the Willows Camp. On 25 October, Brigadier-General Bickford, commander of the 16th Infantry Brigade, inspected the troops during their first parade and rifle drill as a battalion. The troops “made a good appearance.”55 However, inclement weather led to the cancellation of a planned church parade on Sunday, 27 October, and forced the cancellation of training the following day, prompting lectures, inoculations, and dental parades. On 31 October 1918 members of “D” Company arrived from Quebec City. Reflecting the mood of the period, the battalion war diary records that the company “only lost one man on the way from Québec through illness.”56 In contrast, “C” Company arrived from Montreal a day later after losing six troops to influenza.57 At the height of the influenza outbreak, the troops’ sleeping quarters were transferred from tents to the stables and exhibition hall at the Willows Camp.58 armistice and the legality of the siberian draft The signing of the armistice in Europe on 11 November 1918 triggered a legal and political debate over whether Canadian troops should be deployed to Siberia. As Borden sailed aboard the Mauritania en route to peace talks in Europe, acting prime minister Sir Thomas White sent an urgent telegram from Ottawa: “All our colleagues are of opinion that public opinion here will not sustain us in continuing to send troops, many of whom are draftees under the Military Service Act and Order in Council, now that the war is ended. We are all of opinion that no further troops should be sent and that Canadian forces in Siberia should, as soon as situation will permit, be returned to Canada. Consider matter of serious importance.”59 Earlier that year, White had attempted to resign from Borden’s cabinet because of poor health but was persuaded to remain.60 Another member of the government, T.A. Crerar, a Winnipeg farmer and

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businessman who would soon defect from the Union cabinet to lead the Progressive Party, was “absolutely opposed to sending any additional forces to Siberia.” According to him, “the matter of how Russia shall settle her internal affairs is her concern – not ours.” As Patricia McMahon notes, Crerar had adamantly opposed the conscription of farmers.61 Borden rejected his ministers’ advice, maintaining that troops should leave Victoria for Vladivostok: “In my judgment we shall stand in an unfortunate situation unless we proceed with [the] Siberian Expedition ... Canada’s present position and prestige would be singularly impaired.” Anticipating that Canadian troops would not be called upon to engage in active warfare, “beyond possible quelling of some local disturbances,” he suggested they were needed to assist the new government of Admiral Kolchak, which sought to organize anti-Bolshevik forces into a professional army.62 White reiterated his earlier opposition, pointing out that Canadian interests in Siberia differed from those of Britain and France, which sought the repayment of debt repudiated by the Bolshevik government: “Canada has no such economic or business interests as will justify the employment of a Canadian force composed of young men whose parents and friends desire should return at once to their ordinary occupations ... Canada should, now that the war is over and no necessity exists for the re-establishment of the Eastern front, discontinue further participation and expense. It seems clearly a task for nations more immediately interested in the finances of Russia. There is an extraordinary sentiment in Canada in favour of getting all our men home and at work as soon as possible.”63 As an indication that opposition was not confined to labour circles, the Toronto Globe weighed in on the debate: “Why should Canadians be forced into a service of which the purpose, if there is any definite aim, is hidden in the minds of public men? ... There has been no proposal to make Russia our enemy in any legal form. How can we say that our force in Siberia is being used for the defence of Canada?”64 On 22 November a scheduled troop sailing was postponed indefinitely by Mewburn, but this position was reversed days later when the cabinet yielded to its prime minister and decided that the Siberian Expedition would proceed – with the proviso that any soldier who desired would be permitted to return to Canada within one year of the armistice. “We are advised that this will be satisfactory to the troops now in British Columbia,” White assured Borden, prematurely, as events revealed.65 Stuart Tompkins, an officer in the 260th Battalion, lamented the decision in a letter to his wife Edna in Edmonton: “Well the worst has come. Instructions came through that all men were to be asked whether they wanted their discharge. Result about

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one third are quitting. So we are likely to be hung up here waiting for reinforcements for another month or so. It is discouraging.”66 This question of whether or not the conscripts were asked to consent to their deployment to Russia is somewhat ambiguous in the source material, and would later form part of the defence of the conscripts court-martialled in relation to the mutiny. Morale among the troops at the Willows Camp waned in the face of delay, political uncertainty, and vigorous propaganda by Victoria’s labour movement. The movement was part of a national campaign against the Siberian Expedition and local socialists targeted their efforts at members of the CEFS. When the Victoria Trades and Labor Council met at the end of November, following the lifting of the influenza ban, delegates voted to hold a mass meeting against censorship and the Siberian Expedition.67 The council also sent a telegram to Ottawa expressing its “emphatic disapproval” of the Siberian Expedition, calling on the government to “abandon” the mission and “immediately recall” all troops in Russia or at sea.68 The BC Federationist observed in late November: “In Canada we are already seeing a great change in the attitude of the workers towards the actions of the government. While the workers have been satisfied to jog along and take all that has been handed out to them during the last four years with little protest, they are now taking a definite stand on the censorship, and the intervention of the Allies in Russia. Not only are the workers asking for some explanation as to the intentions of the Allied governments in the Siberian expedition, but some of the daily papers are asking questions, and from the information at hand, there is some little unrest amongst the men detailed for duty in that part of Russia.”69 Another BC Federationist article quipped: “The Siberian invasion is not being looked forward to with a very charitable manner by the majority of the boys now located at the Willows Camp, and according to comments one can hear amongst them down town, they are wondering what the devil self-determination of nations really means.”70 Conditions at the Willows Camp were “not happy,” a reporter with the Colonist confided in December to the local press censor.71 However, the commanding officer, Brigadier-General Bickford, insisted there was “no truth whatever” to rumours that the Siberian troops were “getting out of hand.”72 Seven hundred members of the Siberian Expedition attended the inaugural meeting of the Victoria branch of the Federated Labor Party (FLP) on 8 December, while “hundreds were turned away.” Rifleman Joseph Guenard of the 259th Battalion’s “D” Company recalled that the soldiers marched “down the streets together to go and attend.”73 As the

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BC Federationist reported, “the way those boys applauded the Labor speakers showed in no uncertain manner where their sympathies lay.” FLP organizer W.R. Trotter discussed the war, censorship, and intervention in Russia, condemning the violent overthrow of the Vladivostok Soviet the previous June. Trotter told the crowd, “We know enough to distrust every reference to Russia in the capitalist press.” The second speaker, Jim Hawthornthwaite, member of the legislature for the coal-mining district of Newcastle, discussed post-war reconstruction and the role of workers in Soviet Russia. “They should be left free to produce as they like, and when we are rid of tyranny and plunder here in Canada we will then be in a better position to judge others.” When he suggested that the soldiers were going to Russia to civilize the country, shouts such as “We aren’t there yet!” arose throughout the theatre. Organizers took a collection of $46.75 and sold a number of publications, including the banned books of Kerr and Company.74 The Daily Times, considered the more liberal of Victoria’s two dailies, railed against “certain elements of pronounced Socialistic tendencies” and claimed that the Siberian Expedition was needed to “maintain control of the trans-Siberian railroad along its whole length from the Pacific to the Urals.”75 Attempting to sway public opinion, the newspaper stated that Canadian troops would help establish “law and order in a land now terrorized by the Bolshevik ... part and parcel of the job foisted on them in 1914.”76 The Times quoted Canada’s trade commissioner at Vladivostok, Dana Wilgress: “The population of Siberia is practically destitute of clothing, linen and shoes.” The Canadian Siberian Economic Commission would restore Siberian industry and agriculture “and incidentally secure trade for Canada.”77 Unswayed, the labour movement intensified its campaign against the Siberian Expedition, provoking a reaction from the military command. On 13 December, a second protest meeting was held under the auspices of the labour council. A group of CEFS officers attempted to disrupt the meeting, flooding onto the stage, singing “God Save the King,” and accosting the speakers. One officer in the balcony was “repeatedly jumping up and down in his excitement, shaking his cane at the stage in a most ludicrous manner.” Labour council president Eugene Woodward was the first speaker, reading a letter he had received asking trade unionists to “refrain from holding a meeting and expressing opinions on subjects of which they had little or no conception.” Woodward claimed that it was impossible to know if the Siberian Expedition was justified because the truth was suppressed. He described free speech as a safety valve and warned that if the

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Soldiers from the 259th Battalion attend a labour protest meeting at the Columbia theatre in Victoria, B.C., on 8 December 1918, less than two weeks before the mutiny. Source: Sidney Rodger Collection, Beamsvile, Ont.

government was not careful it would wake up with a revolution on its hands. The next speaker, socialist longshoreman Joe Taylor, said that Russian workers had overthrown the czar’s regime and had taken the land from the barons. He questioned why Canadian troops should be sent to the country. A sergeant offered an explanation: “We are going to Siberia as far as I know because Britain has loaned a great amount of money to Russia. I don’t know how much, and the Bolsheviki has repudiated the loan money. This is as much ours as anybody’s, and we are going there to get it.”78 When a resolution against censorship was presented, officers stormed the stage. “Our fellows went down nearly in a body and broke it up and cleared the house,” Lieutenant Stuart Tompkins of the 260th Battalion wrote to his wife.79 However, according to the BC Federationist, “the majority of their comrades in the body of the theatre watched their antics with undisguised disgust, which later developed into very heated debates, in which the remarks of the labour speakers were strongly defended.”80 Woodward was “roughly” handled during the melee and the police were called. The BC Federationist reported that “the majority of the soldiers present were with the labor speakers,” while the Semi-Weekly Tribune claimed that “the whole house, composed mostly of the Siberian contingent, were unanimous in expressing their sentiments … [in favour of] the withdrawal of the troops.”81

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The prospect of soldier-labour unity created much apprehension within the local elite, foreshadowing the heavy-handed response to veteran-labour unity in Winnipeg the following spring.82 The lieutenant governor of British Columbia, shipping owner Frank S. Barnard, sent a secret letter to Borden on 4 December, requesting the prime minister to “urge upon the Imperial Government the importance of keeping a few large Cruisers upon this Coast, if for no other reason, than for that of having a force to quell, if necessary, any rising upon the part of the IWW [Industrial Workers of the World].” Barnard felt “the presence of a warship” would “do more than any local military force to settle any local trouble” since “the personnel of such force would not be subjected to the insidious socialistic propaganda which reaches the soldier – in other words, would be more amenable to discipline, and not affected by local influences ... In the event of labor strikes, with demonstrations leading to riots, a serious situation would arise if the soldiers were in sympathy with the strikers.”83 Labour halls across the country continued to send a flood of protest resolutions against Canadian intervention in Siberia to Ottawa. The Vancouver Trades and Labor Council placed itself “on record as being against intervention in Siberia or interfering in Russia’s internal affairs.” Ernest Winch, a Socialist Party member and president of the council, insisted that “if the government desired evolution, and not what was called revolution,” it would halt its campaign of repression against radical labour.84 In Winnipeg, the labour council entertained a proposal for a general strike to force the withdrawal of Allied troops from Russia. Toronto’s labour council also declared against the Siberian Expedition, while a delegate by the name of Chalmers described the Bolsheviks as “the only movement that will emancipate the working class.”85 Victoria’s Semi-Weekly Tribune, meanwhile, suggested: “Ottawa should at once be notified by the Military Authorities of the real state of affairs at the Willows. It is common knowledge that the vast majority of the men in camp are strongly averse to embarking for Siberia.”86 Evidence of serious discontent at the Willows Camp in this period is plentiful. In November, eighty-seven soldiers in the Russian platoons of the 259th Battalion were moved across the city to the Work Point Barracks, “these men not being anxious to proceed to Siberia.”87 Bolshevik sympathies had developed among the men, as had an aversion to fighting other Russians. A loyal soldier in the CEFS reported confidentially that the Russians at the Willows were “all Bolsheviki,” that they intended to join the Red Army if deployed to Russia, and that they were “debating all the time the social question and predicting the downfall of the rich.” He went on:

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“I am not afraid to fight the enemy ahead of me ... but I don’t want to be shot from behind with our own machine guns.”88 Only eighteen of the Russian troops were eventually deemed reliable for service in Siberia and permitted to leave Canada. Within the other units of the 259th, efforts were made to contain discontent: English-speaking troops were transferred out of “D” Company, while French Canadians were transferred from “C” Company to “D” Company; unfortunately, available evidence provides little insight into the linguistic background of the commanding officers of “D” Company. In the 20th Machine Gun Company, seven soldiers were declared “deserters” by a Court of Inquiry on 20 December 1918; every day, punishments were meted out for infractions ranging from “breaking out of camp” to “highly improper conduct in the ranks.” As Skuce observed, “barrackroom lawyers fomented discord by pointing out the illegality of the government’s intent,” which was highlighted by a government order of 7 December authorizing MSA troops for service in Siberia.89 A soldier wrote to his sister-in-law from the Willows Camp: “Well, things are beginning to look awful black over here. We are going to be railroaded to Siberia, and we cannot do a thing to help ourselves. They started to dish out our clothes to us the first day, and out of 78 of us 77 refused to take them.”90 Unrest extended to both anglophone and francophone troops, with sixty-three men being dismissed from the Siberian force for “Bolsheviki tendencies.”91 On 18 December, hundreds of dissidents in the 259th Battalion sent an urgent telegram to Montreal lawyer Sir Lomer Gouin: “Over 300 loyal French-Canadians in the 16th Brigade, S.E.F., who were willing to do their duty to annihilate the Hun menace, energetically protest against being sent today in Siberia, contrary to their will, in an expedition which is not justified and useless for our Country.” The soldiers asked Gouin, a well-place Liberal, to intervene to prevent “injustice.”92 Canada’s top military commander, General Willoughby Gwatkin, admitted that “the Government is in a hole” and that “popular opinion is opposed” to the dispatch of Canadian troops for Vladivostok.93 Efforts to ameliorate the situation were unsuccessful. The YMCA provided regular recreation and entertainment for the troops, and the military organized a “sports day” and a mandatory lecture on the geography and political climate of Siberia, attempting to counter the influence of the labour meetings. George S. Conover, a rifleman in the 260th Battalion, wrote in the Times: “Some people have a mistaken idea concerning the Siberian Expeditionary Force ... [It] is not for the suppression of the working class in Russia, but to aid them to put a government of their own choice in

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power.”94 When gale-force winds and driving rain resulted in the cancellation of rifle practice at the Clover Point Range, brigade commander Bickford addressed all ranks in the CEFS “on discipline, complaints, etc. and propaganda against the Siberian Force.” As the brigade war diary records, “so-called Socialistic meetings have been held in Victoria at which there were speeches made ... against the Siberian Force.”95 White wired Borden in London: “There is a good deal of feeling in labour and other quarters here against our continued participation and my personal view is that a serious political situation may arise later unless some definite statement can be made as to the return of the expedition within a reasonable time.” Borden responded that Canada had made commitments that had to be honoured, regardless of the armistice in Europe.96 The stage was set for mutiny. mutiny in victoria Departure day arrived, Saturday, 21 December 1918. The weather was cold and crisp, with the wind blowing from the north. A total of 856 enlisted men in the 259th Battalion and the 20th Machine Gun Company, along with Headquarters Detachment and several smaller units, left the Willows Camp for the four-mile march up Fort Street towards the outer wharves and the troopship SS Teesta. They were under the command of Lieutenant-Colonel Swift, along with forty-two other officers.97 Canada’s defence minister, Sydney Mewburn, had travelled to Victoria to inspect the troops before they embarked. The most detailed description of the events that followed appeared in a lieutenant’s letter to his wife, mailed from Japan, which was published in the BC Federationist and is worth quoting at length: Yesterday morning (Saturday, December 21) we turned out a reveille, 5 a.m., and turned in all our camp equipment at quartermasters’ stores. We breakfasted at 6 a.m., and marched out of camp at 7:30 a.m. for the wharf, a distance of four and a half miles. When we got half way the signal came from the rear to halt, so we stopped for about ten minutes. Then the commanding officer blew his whistle as a signal for everyone to resume his place in the column, and we jumped into our places waiting for the further signal to advance, which was an unusually long time coming. We could not see the rest of the column, as we had turned a corner of the road – and a few minutes later a shot rang out, but still we waited till eventually we received word to resume the march. In the meantime it appears that our gallant

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Court-Martial at Vladivostok  189 [men] ... or a number of them, had absolutely refused to fall in again when the signal blew, or to go down to the boat at all. So then the colonel drew his revolver and fired a shot over their heads – in the main street of Victoria – when some more got into line, though there were still a large number who would not, so the other two companies from Ontario were ordered to take off their belts and whip the poor devils into line, and they did it with a will, and we proceeded. While all this was happening the general staff car was flying round with good effect, so that after marching another half mile we came to a “guard of honour” (fifty men in close formation, with rifles and fixed bayonets on either side of the road) who presented arms in the approved fashion to us – scouts, bugle band, and the Toronto company – but as soon as the other company was just nicely between them the order was given to the guard to “Outwards turn,” with the result that this company continued the march virtually at the point of the bayonet, they being far more closely guarded than any group of German prisoners I ever saw, and they were put under armed guard till we actually pulled out to sea, and even now a dozen of the ringleaders are in the cells – the two worst handcuffed together – awaiting trial.98

Evidence to corroborate this story is sparse, the victim of military and press censorship and a historiography that failed to ask the right questions while the participants were still alive.99 Previous historical accounts consign the events of 21 December 1918 to the margins, providing only passing references that are neither explained nor interrogated for meaning.100 These interpretations do not extend beyond a superficial reference to French Canadian anti-militarism. Mirroring the weakness of the larger literature on conscription in Canada, such accounts ignore the complex interplay of class and national cleavages, and the dual role of soldiers as workers and fighting men; they confine opposition to conscription to the province of Quebec.101 To be sure, the class antagonisms found especially fertile soil among the French Canadian troops because of the long-standing reluctance of French Canadians to support conscription. However, in framing anti-conscription sentiment and mutinous activity as purely a French Canadian phenomena, these accounts distort the experience, deny the agency of British Columbia’s working class, and simplify the motivations of the Quebec troops themselves. Research into the regimental records of the Siberian Expedition has produced incomplete evidence of the mutiny. According to the official war diary of the 16th Infantry Brigade, “on the march from the camp to the dock some of the French-Canadians of the 259th Battn. created trouble and objected to embarking. The trouble was soon overcome, however,

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and the delinquents placed under arrest to be dealt with.”102 The diary of the 20th Machine Gun Company is even vaguer: “Parade formed up at 7:00 A.M. to march to Rithet’s wharf. Made several halts en route and arrived at wharf at 10:30 A.M.”103 The court-martial would later conclude that the trouble started “at the date when the men were asked whether they were willing to volunteer for service in Siberia.” Brigadier-General Bickford admitted that only 40 per cent of the troops agreed to go voluntarily. Owing to a requirement of the Records Office, the troops marched in alphabetical order: “This completely changed the company organization so that the men were not under the command of their own Platoon officers and NCOs. There was one case of an officer who could not speak French being in charge of a platoon of men who could not understand English.”104 The commanding officer of the 259th, Lieutenant-Colonel Swift, described the troublemakers as “French-Canadians, farmers and recruits” with “very little education,” who were “mislead [sic] by some civilians while stationed in Victoria, BC, in December 1918.”105 Ernest J. Chambers, chief press censor for Canada, reinforced this point in a letter to Chief of Defence Staff Gwatkin: “The Socialistic organizations made particular efforts to create disaffection in the Siberian Force.”106 Military censorship prevented contemporary reports from appearing in the press. The labour council’s Semi-Weekly Tribune alluded to “recent happenings, the knowledge of which is common property in this community.” But no details of these “happenings” are provided: “The Tribune has no desire to infringe the regulations by giving publicity to these happenings unless forced to do so in self defence.”107 It was later revealed that the local intelligence officer had visited the Tribune’s offices and extracted a signed pledge from the editor, a pledge the newspaper threatened to breach when Defence Minister Mewburn told the House of Commons that no men had been forced to embark against their will: “If Gen. Mewburn does not know the truth concerning the circumstances under which some of the men now serving in the Siberian forces left the City of Victoria he should forthwith communicate with the local Intelligence Officer ... Not all Victorians were unfortunate enough to witness the scenes to which we refer ... The drama was enacted on the streets and wharves of Victoria in the full blaze of publicity ... Before many hours had passed the news had spread from mouth to mouth until the whole city was aware of the salient facts.”108 A week passed before Victoria’s mainstream newspapers even alluded to the Teesta’s departure, with a Colonist editorial accusing local “Hands Off Russia” campaigners of encouraging “anarchy and destruction” and

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“opposing the sending of food to Russia in the only possible way in which it could be sent.”109 In a letter dated 21 December, a correspondent suggested: “There are quite a few slackers who are making trouble about going to Siberia.”110 In the mainstream press, the Toronto Globe was one of the few voices calling for the withdrawal of the Canadian troops, citing protests that were “general throughout the country.” While the Globe acknowledged that “sixty to seventy per cent of the men dispatched to Siberia went unwillingly,” it dismissed reports of “something very like mutiny” aboard an unspecified troopship, commending the men for embarking “without serious disturbance.”111 The commanding officer of Military District 11, Victoria, had wired Canada’s chief press censor on 23 December, stating that there was “no truth” to reports of an “alleged mutiny of Siberian troops 21st December.” He noted further: “The embarkation [was] carried out in perfect order” with “all men quite content. Two or three French-Canadians attempted to desert on the march to the steamer, but no trouble arose.”112 Chambers instructed all newspaper editors in the country to “suppress report regarding alleged mutiny of Siberian troops in British Columbia,” suggesting that “publication [would] only cause unrest and bring discredit to our soldiers.”113 When the Globe and the Hamilton Herald persisted in pursuing the story, Mewburn instructed Chambers to “take to task the Editors of the Herald and Globe” and discover “the identity of the egregious liars who ha[d] been in correspondence with them.”114 Chambers penned a strongly worded letter to the Herald editor – in Mewburn’s Hamilton riding – lambasting the “scandalous story ... so basely reflecting on the honour and loyalty of Canadian soldiers.”115 Other publications, such as Saturday Night magazine, helped perpetuate this myth, describing the Siberian Expedition as “absolutely a voluntary force” and stating that “every member ... was willing and anxious to go.”116 Correspondence from members of the CEFS also sheds light on censorship of the mutiny. Walter B. Ford, a soldier in the 259th Battalion who, “by military permission[,] had represented the Victoria Colonist in Siberia,” later wrote to the Department of Militia and Defence offering to counter the view that the troops were ill-treated: “It seemed that our battalion especially was fated to be misunderstood. Even the mutiny of the French companies on the way to the boat in Victoria, in some way got past the censor in letter-writing and was published in garbled form in the East.”117 Stuart Tompkins, a lieutenant in the 260th Battalion, discussed the incident in a letter to his wife, Edna, who lived in Edmonton: “You may not know that we have had quite a lot of trouble here. This is strictly

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‘sub rosa’ and is not to be repeated. There has been a lot of socialistic agitation here and two weeks ago there was a meeting here largely attended by 259th men – French Canadians. At this meeting the Siberian Expedition was discussed and a strong resolution taken against it. Last Sunday night our fellows went down and broke up the meeting but the harm was done. When two companies of the 259th were marching down town yesterday to embark some of the men egged on by agitators refused to go on. They were escorted.”118 Another letter posted from a Victoria mailbox, by Private Richard Garton Holmes of the 20th Machine Gun Company, illuminates the dynamics of the mutiny: “They had some trouble at the camp and two companies (who are French Canadians) refused to get ready to march down, so they got another battalion and chased them out of their tents with bayonets. Then at one of the places where they let them rest along the way, they wouldn’t fall in again to march the rest of the way, so the officer fired his revolver at their feet and made them walk or get hit ... It would have been the same, with the rest of us, only we didn’t raise a row as there is no use doing that and getting it wrong like the Frenchman have.”119 Additional detail on the Victoria mutiny is revealed in labour sources. “In Victoria, if street corner reports are true, some members of the Siberian Expeditionary Force refused to go, and were compelled to do so by the use of forceable [sic] methods, amongst which was the use of revolvers by the officers,” the BC Federationist reported, ignoring the censorship restrictions.120 J.S. Woodsworth, addressing an FLP meeting in Vancouver, described “some disgraceful scenes” that had taken place “when certain Canadian troops were only recently shipped at Victoria for Siberia.” He went on: “We had grown accustomed to hear of German and in the past of Russian troops being driven by force to the fighting front, but it was something new for Canada, and ... for the British Empire itself, to have troops driven aboard ship by bayonet and revolver.”121 Having resigned from the Methodist Church, Woodsworth was working as a longshoreman in Vancouver, where, according to daughter Grace MacInnis, he “downed tools and gave up his day’s work and pay” when he discovered he was loading munitions bound for Siberia.122 At the Western Labor Conference in Calgary in March, Helen Armstrong, representing the Women’s Labour League of Winnipeg, asked B.C. delegates whether the troops aboard the Teesta had reached Vladivostok: “Some of our members have not been heard from since Christmas ... and we heard ... that it took half a regiment at Christmas to put the other half on the ship for Siberia.” A Victoria delegate by the name of Flewin responded that, as an organizer of the FLP

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meetings in the city, he had met personally with several soldiers, including some from Winnipeg: “When these boys were given notice they were to leave for Siberia there was a plan among them that they would refuse to go. There was one man chosen to lead them, but when he struck down one of the officers the rest didn’t give him support. However, it took 23 hours to get those men aboard the ship.”123 Testimony from the commanding officers of the 259th Battalion provided greater detail of the mutiny. “I arranged my company into two parties and went forward when I found a crowd of men on the side walk talking and muttering in French which I do not understand,” Major A.G. Pourpore of “A” Company told a military investigator aboard the Teesta: “I ordered them to go on and one man standing directly in front of me said ‘No, No.’ I ordered my men to make them move and some of them took off their belts and struck one or two. We pushed them along for about six blocks when they started to move more quickly.”124 The soldiers in “D” Company continued to resist, prompting the “guard of honour” to hem them in on both sides and from the rear as they neared the outer wharves, marching them at bayonet point into a shed.125 Forty soldiers were arrested and detained in the shed, then paraded before the 259th Battalion’s commanding officer, Lieutenant-Colonel Swift. Thirty received summary sentences, ranging from seven to twenty-eight days, Field Punishment No. II. A dozen others were remanded into custody, their charges held over for court-martial “because the evidence pointed to their being more active in the affair.”126 Most faced the serious charge of: “While on Active Service Joining in a Mutiny in forces belonging to His Majesty’s Auxiliary Forces.”127 Conditions aboard the Teesta were “very poor,” in the words of LanceCorporal Erskine Ireland. Five days into the journey, the ship encountered a heavy storm, during which Rifleman Frank J. Kay fell down a coal chute and died. A Chinese crew member also died on the crossing. On New Year’s Day, the troops received plum pudding, a bottle of beer, and an apple or orange.128 court-martial On 25 January 1919, two weeks after the SS Teesta had reached the Russian port of Vladivostok, the Canadian command convened a Field General Court-Martial for the accused ringleaders of the mutiny. All had been conscripted under the authority of the Military Service Act and all held the rank of rifleman. They were: Onil Boisvert, a twenty-two-

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year-old farmer from Drummond, Quebec; Sylvio Gilbert, a twentyyear-old labourer from Jonquières; Joseph Guenard, a nineteen-year-old plumber from Quebec City; Edmond Leroux, a twenty-two-year-old lumberjack from Saint-Apolline; Edgar Lebel, a twenty-one-year-old farmer from Saint-Épiphane, Témiscouata County; Alfred La Plante, a twenty-three-year-old mechanic from Richelieu; Edmond Pauze, a thirty-year-old blacksmith from Joliette; Leonce Roy, a twenty-twoyear-old farmer, also from Saint-Épiphane; Arthur Roy, a twenty-threeyear-old saw-maker from Montreal who resided in St Catharines at the time he was conscripted; and Adore Leroux, a twenty-three-year-old mechanical engineer from Le Cèdres, Soulanges County, Quebec.129 Guidelines adopted by the CEFS command stipulated: “In all cases in which a charge is serious and may entail the death penalty, a legal Officer should be procured to act as prisoner’s friend.”130 This distinguished the system of military law from the ordinary civilian criminal law that prevailed in Canada at this time, when defendants who lacked financial means were often represented pro bono by lawyers offering their services informally as a voluntary obligation of their profession.131 In other respects, procedures employed at courts-martial were similar to those used in civilian criminal trials, with witnesses subject to cross-examination and character witnesses admitted subject to some restrictions.132 However, the veneer of an adversarial trial with legal representation and some procedural rights for the accused fit uneasily with the reality of quasi-inquisitorial proceedings where the “prisoner’s friend” lacked independence from the military command and other elements of civilian criminal law were absent. In contrast to ordinary criminal law, which provided for a separation between the prosecutorial and judicial functions, in military law these roles were combined in the judge advocate, resulting in a lack of procedural rights for the accused. Lieutenant-Colonel Gregor Barclay, a Montreal barrister and military officer, served as judge advocate for the Canadian force in Vladivostok.133 There were also much more limited avenues for recourse against a ruling, with no appeal mechanism that was independent of the military command against whose authority the accused were alleged to have offended. The reason for this variation was the fundamental distinction of purpose between a civilian trial, designed to provide for justice, and a military court-martial, designed to uphold discipline within the armed forces. Moreover, as Iacobelli has noted, field general courts-martial “were simplified in both routine and requirements” from ordinary courts-martial, with their procedural rules “relaxed in order to deal effectively with conditions of war on the ground.”134

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According to army regulations, soldiers accused of offences punishable by death would have their cases heard before a three-member panel of officers unless operational considerations made this impossible. Officers could be drawn from any unit, though the accused soldier’s commanding officer was not eligible to serve on the court-martial. While some legal background was encouraged, the number of qualified officers had diminished markedly by the late stages of the war and, according to Iacobelli, “there was little time and few resources to train new officers in the complexities of military law.”135 Indeed, the three officers selected to serve on the court-martial at Vladivostok appear to have had no formal legal training prior to military service: Lieutenant-Colonel Geoffrey Lidbrook McDonell identified his occupation as “prospector, hunter [and] trapper” on his officers’ declaration paper; Major Paul Fleetford Sise was a businessman who would assume the presidency of the Northern Electric company upon his return from Russia; and Captain John Hyde Bennett was a career soldier.136 The court-martial proceedings took place over three days of hearings at the Canadian barracks at Gornostai Bay, a former czarist military base nine miles east of Vladivostok on a barren hillside overlooking the sea. The military tribunal received evidence from witnesses and statements sworn by the accused and translated into English. Based on available evidence, the court-martial of the accused francophone soldiers appears to have been conducted entirely in English, raising further questions about the fairness of the proceedings. There were also complaints of ill treatment. “Although being kept under arrest since over 38 days, to date I have never been given permission to take a bath or supplied with a change of underwear,” Alfred Laplante declared. He had been “used on all kinds of fatigues and works – being treated as a convicted prisoner instead of as a man awaiting trial.” Laplante had attended the labour meetings in Victoria, where the soldiers “were advised that the Canadian Government could not force [them] to go to Siberia unless [they] were prepared to sign a written statement to that effect.” A labour paper, “widely circulated in [the Willows] Camp,” underscored this point, as did statements made by non-commissioned officers in “C” Company. On two occasions, Laplante was paraded with his platoon in front of the company officers and asked to sign a pledge stating his willingness to go: “On both occasions I refused to do so.”137 Alfred Laplante insisted that he had “never joined in or caused a mutiny.”138 However, several witnesses identified him as the ringleader, violating standing orders of the CEFS that stated clearly that “no man

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will fall out without permission of an officer” during a march, and that “a high standard of discipline must be maintained at all times and under all conditions.”139 Lieutenant Wallace Webb of “C” Company testified that Laplante was at the centre of a group of Quebec troops “bunched together in a doorway” at Fort and Quadra streets who refused repeated orders to “fall in.” Rather than continue the march towards the wharf, Laplante defiantly shouted in English, “About Turn, About Turn” – seeking to instigate a return to the Willows Camp. A corporal in the 259th Battalion, L.-G. Bouillon, testified that Laplante told him to “mind his own business” when ordered to “fall in.”140 However, other officers testified to the motivations behind the mutiny – the broken promise that no soldier would be sent to Russia against his will. Platoon commander Lieutenant J.-M. Pellerin described the “strong impression in [his] platoon, to which the accused belong[ed], that those who did not sign would be sent home.” A non-commissioned officer, Sergeant E.M Tuffs, said that no attempt had been made to prevent soldiers from attending the labour meetings, and he testified that the labour council’s Semi-Weekly Tribune newspaper was widely circulated in the Willows Camp. The final witness at Laplante’s trial insisted that “the accused ... [did] not understand English.”141 In the face of this evidence, the military court found Laplante guilty of “joining in a mutiny in forces belonging to His Majesty’s Auxiliary Forces” and sentenced him to two years’ imprisonment with hard labour.142 While this was a serious sentence from the standpoint of the accused (who felt, like the others, that he had been wrongly deployed to Russia), it demonstrated a degree of leniency on the part of the military command, and probably reflected a discretionary quality of military justice that Teresa Iacobelli has noted.143 All but three of the twenty-five Canadian soldiers executed on the Western Front had been convicted of desertion, perhaps reflecting a sense of immediacy and urgency to maintain a steady supply of troops that was less of an issue in the Siberian campaign. There were relatively few episodes of Canadian soldiers collectively refusing to deploy for service during the First World War, resulting in a paucity of legal precedents to guide the deliberations of the officers conducting the court-martial at Vladivostok. Moreover, the complex legal status of the Siberian Expedition, occurring after the conclusion of the armistice and amid unanswered legal questions over the government’s authority to deploy conscripts, may have dampened the zeal of the commanding officers to issue harsh sentences up to and including death. It is difficult to determine with precision the legal reasoning behind the court-martial’s decision on sentencing. In this regard it is interesting that discretion was

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exercised not only in the mutiny cases but also in cases of desertion, since deserters in the Russian Far East received much lesser sentences than their counterparts on the Western Front. The court-martial proceedings at Vladivostok also differed substantially from earlier episodes of military justice in Canada, such as the legal response to the rebellions in Upper and Lower Canada in 1837–8. Those military trials at Kingston and London, as Barry Wright has demonstrated, applied to civilians, including both American invaders and rebellious civilian subjects of Upper Canada, not only Canadian soldiers on active military service. The military proceedings of the 1830s were exceptionally harsh even by the standards of the time, relying on the provisions of the hastily approved Lawless Aggressions Act, which curtailed procedural safeguards available to accused persons under the Treason Act, and culminating in harsh sentences including eighteen executions and nearly eighty deportations from Upper Canada. The accused foreigners and civilians “received summary justice, with the thinnest veneer of legality,” according to Wright.144 In Lower Canada, the picture was even starker, as British military commanders responded to armed insurgency of French Canadian civilian rebels with a mass general court-martial in Montreal in the winter of 1838–9. As Murray Greenwood has demonstrated, the proceedings were rife with procedural irregularities, partiality, and a lack of due process, with commanders serving as “judges” against civilian patriotes they had recently faced in battle, and defendants lacking avenues of representation, evidence, and appeal that were gaining currency in the civilian legal system.145 The intensity of the British authorities’ response to the 1830s rebellions and the seeming disregard for the rights of the accused reflected the scope of the emergency confronting the military and civil authorities, as well as the tenuous recognition of individual rights within the British empire’s legal and military institutions in the period. In contrast, the court-martial at Vladivostok pertained to a localized episode of mutiny within a particular military unit, one that had little apparent impact on public order within the civilian population and that was detached from the imminent threat of opposing enemy forces. At the Gornostai Bay barracks, the trials of the other accused followed the conviction of Alfred Laplante. Onil Boisvert (who had been hospitalized with influenza before leaving Montreal) was sentenced to two years’ hard labour based, the conscript later wrote, on “the lies of others.”146 His trial heard evidence from Major Guy Boyer of “D” Company: “[Boisvert] kept on saying in French, ‘We will not go to Siberia.’ He was trying to persuade my men not to go.” Sergeant J.-A. Deguise of “C” Company said:

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“I noticed the accused on the side walk among the men of D. Company, saying ‘Come on boys, C. Company is with you.”147 In a written statement, Boisvert insisted that he had refused to sign the consent form for Siberia because “as a farmer [he] was more useful at home.”148 Rifleman Arthur Roy received the harshest sentence – three years’ penal servitude (later commuted to two years) on the charge of “Joining a Mutiny” – for conduct that Major Boyer described as “inciting the others not to comply” and threatening to strike the Catholic chaplain of the battalion, Captain Jacques Olivier, who urged him to “Fall In”: “He was surrounded by several men ... and acted as spokesman for this group ... He kept on shouting ‘On y va pas à Siberia [sic]’ ... ‘On y va pas,’ ‘On y va pas.’”149 On 20 December, the day before the mutiny, rumours had swirled around the Willows Camp. “There was likely to be trouble,” Roy’s platoon sergeant informed a senior officer, and “Rifleman Arthur Roy was one of the Ring Leaders.” On a streetcar from the camp to downtown Victoria that evening, Roy was overheard announcing that Canada “had no right to fight against the Bolsheviki” and that it would “take a good man to put [him] on the boat.” When he returned to the Willows that night, Lieutenant T.J. Morin informed Roy of the grave consequences of “such a movement.” Roy insisted at the time that there was no truth to the rumours.150 The other dissenters received lesser sentences. Edmond Leroux, who allegedly sat on a fence during the melee and refused a direct order from the battalion’s commanding officer to fall in, was convicted of “wilful disobedience” and sentenced to one-year hard labour.151 Joseph Guenard and Edmond Pauze – “one of the best soldiers in my company,” according to Lieutenant E.J. Mantell – were found guilty of “Joining a Mutiny” and sentenced to six months’ hard labour. Pauze had reportedly joked to a comrade, “On n’est pas assez pour faire un strike” (We are not enough to make a strike).152 While serving his hard-labour sentence, Pauze strained his lumbar spine and spent ten days in hospital.153 Sylvio Gilbert received ninety days’ Field Punishment No. 1, Leonce Roy received thirty days’ Field Punishment No. 1, and Egard Lebel received twenty-eight days’ Field Punishment No. 1, all of which were served at the Field Punishment Station at the East Barracks, Vladivostok.154 Adore Leroux was found not guilty on all charges.155 The sentences imposed on these working-class Quebec youth were designed to have a deterrent effect within the CEFS. They were generally consistent with sentences imposed in other mutiny cases in the Canadian Expeditionary Force in non-combat situations (for example, among the Canadian soldiers who mutinied at Nivelles, Belgium, in December 1918,

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sixty faced charges and sentences as high as five years’ penal servitude).156 However, as Teresa Iacobelli has noted, “the individual records of soldiers mattered far less than the timing of an offence and the behaviour of the battalion as a whole.”157 Unlike the European theatre, the military command was on dubious legal ground in pursuing charges against CEFS soldiers conscripted under the MSA. Contrary to historian John Skuce’s claims, it was not merely “barrackroom lawyers” who questioned the legality of deploying conscripts in the Siberian Expedition.158 While section 2(b) of the MSA provided for compulsory service for “the defence of Canada, either in or beyond Canada,” the soldiers themselves as well as members of Parliament from Quebec believed it was inaccurate to interpret the Siberian adventure as being necessary for the defence of Canada.159 As late as April 1919, as the Canadians prepared to evacuate Vladivostok in the midst of growing tensions among Allied and White Russian forces and a robust partisan guerrilla movement, questions arose in Parliament over the legality of deploying conscripts in the CEFS. Defence Minister Mewburn responded to a formal inquiry by wiring Elmsley in Vladivostok, asking whether any Canadian “draftees objected to doing Military Service in Siberia.” The Canadian commander made discreet inquiries among his commanding officers before responding (selectively) that “no objection on part draftees to doing military service in Siberia brought to notice.”160 In the face of this legal ambiguity, as well as the growing vulnerability of the Conservative government in Ottawa, the judge advocate in Vladivostok received an application to release, on suspended sentence, the “men convicted of mutiny at Victoria, BC” – a request that Elmsley authorized.161 conclusion The nine French Canadian conscripts convicted of mutiny at Victoria were spared the fate of the twenty-five Canadian soldiers executed by firing squad on the Western Front.162 This perhaps confirms Iacobelli’s findings regarding the wide discretionary latitude exercised by commanding officers during the First World War, as well as possible reluctance on the part of military judges and the force command in light of public opposition to the Siberian campaign. But the Siberian conscripts suffered distinct forms of degradation in their brush with military justice. Influenced by labour agitation, their morale weakened by poor weather and the Spanish flu, the soldiers refused to leave Victoria for Vladivostok, and the military authorities used force – revolvers, canvas belts, and bayonets – to ensure

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Siberian Sapper newspaper, Vladivostok, February 1919 (one of two newspapers published by the Canadians in Vladivostok). The headline reveals a question on the mind of many of the troops. Source: Stephenson Family Collection, McMaster Archives and Research Collections.

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their deployment to Russia. They were shackled in the bottom of the ship for the three-week voyage to Vladivostok, and denied the basic human right to bathe or change clothes – in the midst of an influenza epidemic that was taking the lives of millions of soldiers and civilians around the globe. “They didn’t want to go to war,” Captain Charles Hertzberg wrote in his diary after the Canadians had reached Vladivostok.163 Commenting on the wider Siberian Expedition, Dr Henri Sévérin Béland, MP for Beauce and a former prisoner-of-war in Germany, refused to mince words in a speech to the House of Commons on 10 June 1919, as the last ship sailed for Victoria: “This expedition was a political error, a military mistake, and a wanton extravagance.”164 The mutiny in Victoria and the court-martial proceedings at Vladivostok provide a powerful window into the exercise of Canadian military justice during the First World War, illuminating tensions within the armed forces and social cleavage in Canadian society in the context of the forgotten military adventure in revolutionary Russia. The Canadian government’s determination to deploy troops to Vladivostok strained class and linguistic antagonisms – within the CEFS and the broader country – provoking mutiny in the streets of Victoria in December 1918 that resulted in violence and imprisonment for those who proclaimed “On y va pas en Siberie!” Canadian commanders seemed more willing to use force against their own soldiers to ensure their deployment to Russia than to engage the Bolshevik enemy overseas. During Canada’s seven-month sojourn in Siberia and the Russian Far East, soldiers participated in only one aborted military engagement. Within the broader Canadian society, the Siberian Expedition brought about censorship of major newspapers such as the Toronto Globe and intensified the repression of working-class and socialist parties. The widening labour and farmer revolt in post-war Canada was bound up with the government’s decision to deploy troops to Russia, which contributed to the general strikes that erupted from Victoria to Winnipeg to Amherst in the spring of 1919. As a 1957 graduate thesis concluded, the Siberian Expedition “helped to provoke the worst labour troubles in Canadian history.”165 Among workers, farmers, and the general population of Quebec, seething anger over conscription and profiteering was inflamed by the Canadian government’s insistence on sending troops to Russia after the armistice had been signed. These social cleavages in post-war Canada endured. The connection between domestic unrest and the Siberian Expedition (and, implicitly, the failure of Canada’s military adventure in the Russian Far East) was graphically revealed when the force returned home, in the wake of the general strikes in Winnipeg and other cities. Brigadier-

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General Harold Bickford, the second-in-command of the force, told the Globe: “If they arrest any Bolshevists in Canada, Siberia is the best place for them ... There are a lot of their fellows over there.”166 N otes Sections of this chapter have been adapted from Benjamin Isitt, From Victoria to Vladivostok: Canada’s Siberian Expedition, 1917–19 (Vancouver: UBC Press, 2010).   1 See Craig Heron, ed., The Workers’ Revolt in Canada, 1917–1925 (Toronto: University of Toronto Press 1998); Gregory S. Kealey, “1919: The Canadian Labour Revolt,” Labour/Le Travail, 13 (spring 1984): 11–44.   2 Desmond Morton, “‘Kicking and Complaining’: Demobilization Riots in the Canadian Expeditionary Force, 1918–19,” Canadian Historical Review, 61, no. 3 (1980): 360 and 334. See also Lawrence James, Mutiny: In the British and Commonwealth Forces, 1797–1956 (London: Buchan and Enright 1987); Julian Putkowski, British Army Mutineers, 1914–1922 (London: Francis Boutle 1998).   3 Teresa Iacobelli, “No Example Is Needed: Discipline and Authority in the Canadian Expeditionary Force during the First World War” (PhD thesis, University of Western Ontario 2010), iii and 5.   4 Chris Madsen, Another Kind of Justice: Canadian Military Law from Confederation to Somalia (Vancouver: UBC Press 1999), 44.   5 S.T. Banning, Military Law Made Easy, 11th ed. (London: Gale and Polden 1917).   6 Madsen, Another Kind of Justice, 39–44.   7 “Mobs in Toronto Demolish Cafes,” Victoria Colonist, 4 Aug. 1918; “Toronto Mobs Give Trouble,” Colonist, 7 Aug. 1918; “Soldiers Behaving Badly: CEF Soldier ‘Rioting’ in Canada during the First World War,” and other essays in Craig Leslie Mantle, ed., The Apathetic and the Defiant: Case Studies of Canadian Mutiny and Disobedience, 1812 to 1919 (Kingston, ON: Canadian Defence Academy Press/Dundurn 2007), 195–260; P. Whitney Lackenbauer, “The Military and ‘Mob Rule’: The CEF Riots in Calgary, February 1916,” Canadian Military History, 1, no. 10 (2001): 31–43; P. Whitney Lackenbauer, “Under Siege: The CEF Attack on the RNWMP Barracks in Calgary, October 1916,” Alberta History, 49, no. 3 (2001): 2–12; P. Whitney Lackenbauer and Nikolas Gardner, “Soldiers as Liminaries: The CEF Soldier Riots of 1916 Reassessed,” in Yves Tremblay, ed., Canadian Military History since the 17th Century (Ottawa: National Defence 2001), 164–74; Arthur Tylor Richards, “(Re-)Imagining Germanness: Victoria’s Germans and the 1915 Lusitania Riot” (MA thesis,

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  8

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12 13

14 15 16

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University of Victoria 2012); Ian Miller, Our Glory and Our Grief: Torontonians and the Great War (Toronto: University of Toronto Press 2002). “Interfering with the War,” Toronto Evening Telegram, 6 Aug. 1918; also “Bickford Awaiting Orders,” Evening Telegram, 7 Aug. 1918; “Bickford Goes to Siberia,” Evening Telegram, 13 Sept. 1918. Julian Putkowski, “The Kinmel Park Camp Riots 1919,” Flintshire Historical Society Journal, 32 (1989): 55–107; Morton, “‘Kicking and Complaining.’” Canada, Military Service Act 1917 (Ottawa: J. de Labroquerie Taché 1917). See Patricia McMahon’s chapter in this volume; H.A.C. Machin, Report of the Director of the Military Service Branch to the Honourable Minister of Justice on the Operation of the Military Service Act, 1917 (Ottawa: J. de Labroquerie Taché 1919), 90. J.L. Granatstein and J.M. Hitsman, Broken Promises: A History of Conscription in Canada (Toronto: Copp Clark Pitman 1985), 49–50. For individual appeals relating to the MSA, see Canada, Military Service Act, 1917 – Manual (Ottawa: J. de Labroquerie Tache 1918), 103–10; LAC, RG13, Department of Justice fonds, Accession 3, Series: “Legal Opinions and Material of Precedential Value,” vol. 2445, file 9-A-1501, “Norman Earl Lewis Application for a Writ of Habeas Corpus by A/M in Calgary, Alta. Whether Habeas Corpus Is a Remedy Open to a Soldier Enlisted Against His Will. Whether an Appeal Should Be to the Supreme Court of Canada or the Privy Council,” 18 June 1918; file 9-A-1509, “George Edwin Gray Application in Supreme Court of Canada for an Inquiry into the Cause of His Commitment and Detention on Charges of Refusing to Obey Orders of a Superior Officer While on Military Service. Supreme Court Act Rsc, C139, S62 Militia,” 10 July 1918; file 9-A-1503-1, “Max Perlman vs. Lt. Col. Ma Piche and CJ Doherty Attorney General of Canada Application for Writ of Habeas Corpus by A/M Soldier held in Military Custody. Validity of Paragraph 5 of Order In Council of April 30, 1918 # 1013 in the Canada Gazette,” 30 Dec. 1918. “First Unwilling Conscript to Be Signal for ‘Down Tools,’” British Columbia Federationist (hereafter: Federationist), 7 Sept. 1917. “Trades and Labor Council Favors Down Tools,” Federationist, 21 Sept. 1917. See “Albert Goodwin Shot and Killed by Police Constable Near Comox Lake” and “Trades and Labor Council Endorse 24-Hr. Protest,” Federationist, 2 Aug. 1918; Susan Mayse, Ginger: The Life and Death of Albert Goodwin (Madeira Park, B.C.: Harbour 1990); Roger Stonebanks, Fighting for Dignity: The Ginger Goodwin Story (St John’s: Canadian Committee on Labour History 2004). “Draft Evaders Make Trouble,” Victoria Daily Colonist, 15 Aug. 1918; Martin F. Auger, “On the Brink of Civil War: The Canadian Government and the Suppression of the 1918 Quebec Easter Riots,” Canadian Historical Review, 89,

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18

19 20

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no. 4 (2008): 503–40; Elizabeth H. Armstrong, The Crisis of Quebec, 1914–1918 (New York: Columbia University Press 1937); Bernard Dansereau, Le mouvement ouvrier montréalais et la crise de la conscription, 1916–1918 (Montreal: Université du Québec à Montréal 1994); Gaston Dugas, “Le Québec et la crise de la conscription, 1917–1918,” L’Action nationale, 9 (1999): 139–41; Gérard Filteau, Le Québec, le Canada et la guerre, 1914–1918 (Montreal: L’Aurore 1977); Granatstein and Hitsman, Broken Promises, 86–99; Desmond Morton, When Your Number’s Up: The Canadian Soldier in the First World War (Toronto: Random House of Canada 1993), 67–8; and Ferdinand Roy, L’appel aux armes et la réponse canadiennne-française: Étude sur le conflit des races (Quebec: Garneau 1917). See Canada, Documents on Canadian External Relations, vol. 1, 1909–1918 (Ottawa: Department of External Affairs 1967), 207–9; PC 1983 and PC 2073, LAC, RG24, Series C-1-A, vol. 2557, file HQC-2514 (vol. 1). Subsequent orders of 23 Aug. 1918 (PC 2073) and 5 Sept. 1918 (PC 2151) augmented the original force. “Mobs in Toronto Demolish Cafes,” Colonist, 4 Aug. 1918; “Toronto Mobs Give Trouble,” Colonist, 7 Aug. 1918. For details on the composition of the force, see “The Force Dispatched to Siberia,” n.d., LAC, RG24, vol. 1741, file DHS 4-20; “Disposition of Officers, NCO’s and Other Ranks of the Canadian Expeditionary Force in Siberia, Friday, January 31st, 1919,” LAC, RG24, vol. 1872, file 15; “Memorandum Respecting the Organization and Status of the Proposed Canadian Siberian Expeditionary Force,” n.d. [ca. 9 Nov. 1918], LAC, RG24, Series C-1-A, vol. 2557, file HQC-2514 (vol. 1); J.E. Skuce, CSEF: Canada’s Soldiers in Siberia, 1918–1919 (Ottawa: Access to History Publications 1990), 23–4; Raymond Massey, When I Was Young (Toronto: McClelland and Stewart 1976), 199–200. S.W. Horrall, “The Force’s Siberian Patrol,” RCMP Quarterly, 36, no. 5 (1971): 3–8; “Siberian Expeditionary Force Mobilization of Ammunition Column,” LAC, RG24, Series C-1-A, vol. 1994, file 762-12-1; “Total Strength of Squadron,” 14 Nov. 1918, LAC, Royal Canadian Mounted Police fonds, RG18, vol. 1929, file: “RCMP 1918 – Siberian Draft Pt. 1.” Mewburn to Burrill, 7 August 1918, Mewburn to Gwatkin, 15 Aug. 1918 (both in LAC, RG24, Series C-1-A, vol. 2557, file HQC-2514 [vol. 1]); Deputy Minister Militia and Defence to RNWMP Comptroller, 7 Sept. 1918, LAC, RCMP fonds, RG18, vol. 3179, file G989-3-24 (vol. 1); “Siberia Holds Immense Opportunity to Members of Canadian Contingent,” Daily Times, 17 Dec. 1918. Elmsley to Defensor, 9 April 1919, War Diary of General Staff CEF(S), April 1919, app. 8. “Draft Evaders Make Trouble,” Colonist, 15 Aug. 1918; “Bolsheviki Rally Upset by Police,” Montreal Gazette, 29 July 1918; Steuart Beattie, “Canadian Intervention in Russia, 1918–19” (MA thesis, McGill University, 1957), 180.

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Court-Martial at Vladivostok  205 25 War Diary of 259th Battalion CEF(S), September 1918; Director for Record to J.K. Laflamme (director of personal services), 1 Aug. 1923, LAC, RG24, Series C-1-a, vol. 1993, file 762-11-24, Queries Relating to CEF (Siberia). 26 “Will Shortly Be on Their Way to Siberia,” and “Siberian Force Men Despatched,” Montreal Gazette, 30 Sept. 1918. 27 “Administrative Staff, M.D. No. 5, Month Ending 30 Sept. 1918,” LAC, RG9, Militia and Defence, Series III-D-3, vol. 5061, reel T-11124, War Diaries of Military District 5 (Quebec City). 28 War Diary of General Staff, Military District 5 (Quebec City), 18 and 22 Sept. 1918, LAC, RG9, Militia and Defence, Series III-D-3, vol. 5061, reel T-11124, War Diaries of Military District 5 (Quebec City). 29 Chambers to Editors, 2 Oct. 1918; Mewburn to Chambers, 22 Sept. 1918, LAC, RG24, Series C-1-A, vol. 2566, file HQ-2758 (Suppression of Information with Reference to the Siberian Expeditionary Force). 30 Mark Osborne Humphries, “The Horror at Home: The Canadian Military and the ‘Great’ Influenza Pandemic of 1918,” Journal of the Canadian Historical Association, 16, no. 1 (2005): 235–60; Janice P. Dickin McGinnis, “The Impact of Epidemic Influenza: Canada, 1918–1919,” Historical Papers of the Canadian Historical Association 12, no. 1 (1977): 120–40; Howard Phillips and David Killingray, eds., The Spanish Flu Pandemic of 1918: New Perspectives (London and New York: Routledge 2003); LAC, RG 24, Series C-1-a, vol. 1992, file 762–11– 15 (Infectious Diseases, Siberian Expeditionary Force CEF). 31 Deputy Minister of Militia and Defence to Deputy Minister of Justice, 31 Oct. 1918, LAC, RG13, vol. 1939, file 2362–1918, as quoted in Humphries, “Horror at Home,” 258; War Diary of 259th Battalion CEF(S), October 1918. 32 Canada, Report of Debates of the House of Commons (Ottawa: J. de Labroqueire Taché 1919–26), 25 June 1919, 4001. 33 Dawn Fraser, The Mud-Red Volunteers: Songs of Siberia and Rhymes of the Road (Glace Bay, N.S.: Eastern Publishing, c. 1919), 11. 34 Ibid., 178. 35 Harold to Josie, 1 Oct. 1918, LAC, Harold Steele fonds, MG30, E564, file: “Correspondence, 1 August 1918–23 November 1918.” 36 Church to Mewburn, 8 Oct. 1918, Captain to Church, 15 Oct. 1918 (both in LAC, RG24, Series C-1-a, vol. 1992, file 762–11–15 [Infectious Diseases, Siberian Expeditionary Force CEF]). See also various files in LAC, RG9, Series IIF-9, vol. 474; Miller, Our Glory and Our Grief. 37 War Diary of 259th Battalion CEF(S), October 1918. 38 Eric Henry William Elkington interview, 16 June 1980, UVASC, Military Oral History Collection, SC 141, 169. 39 “C” Company of the 260th Battalion reached Victoria from Regina on 2 October, followed by “D” Company from across British Columbia on 3 October,

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40 41 42 43

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45 46 47 48 49

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51 52 53

“A” Company from the Maritimes on 12 October, and “B” Company from Manitoba on 17 October. See Skuce, CSEF, 24; McGinnis, “Impact of Epidemic Influenza,” 123; Humphries, “Horror at Home,” 253–4. “Isolation at Willows Camp” and “City Will Act to Check Epidemic,” Colonist, 8 Oct. 1918. Victoria, Annual Reports: Corporation of the City of Victoria (Victoria: Diggen 1918), 89. “City Will Act to Check Epidemic,” Colonist, 8 Oct. 1918; “Spanish Influenza,” Tribune, 7 Oct. 1918. Victoria, Annual Reports (1918), 89; “Marked Decrease of Military ‘Flu’ Cases,” Colonist, 22 Oct. 1918; “Field Ambulance Unit Is Kept Busy” and “Epidemic Halts as City Prepares,” Colonist, 23 Oct. 1918; “Nearly Forty Places under the ‘Flu’ Ban,” Daily Times, 24 Oct. 1918; “The Ban,” Tribune, 14 Nov. 1918. War Diary of 259th Battalion CEF(S), 22 Oct. 1918; Harold to Josie, 22 Oct. 1918, LAC, Harold Steele fonds, MG30, E564, file: “Correspondence 1 August 1918–23 November 1918”; “Force at Willows Further Augmented,” Colonist, 24 Oct. 1918. Ron Baird, Success Story: The History of Oak Bay (Victoria: Borsman and Heffernan 1979), 138. Harold to Josie, 2 Nov. 1918, LAC, Harold Steele fonds, MG30, E564, file: “Correspondence 1 August 1918–23 November 1918.” “Siberia Holds Immense Opportunity to Members of Canadian Contingent,” Daily Times, 17 Dec. 1918, 7. War Diary of 16th Infantry Brigade Headquarters CEF(S), 13 Dec. 1918. See Desmond Morton, “‘Kicking and Complaining’”; Julian Putkowski, British Army Mutineers; Julian Putkowski, “The Kinmel Park Camp Riots, 1919,” Flintshire Historical Society Journal, 32 (1989): 55–107; James, Mutiny. Lewis F. Richardson, Arms and Insecurity (Chicago: Quadrangle 1960), 232. See also Jack S. Levy and T. Clinton Morgan, “The War-Weariness Hypothesis: An Empirical Test,” American Journal of Political Science, 30, no. 1 (1986): 26–49; David Garnham, “War-Proneness, War-Weariness, and Regime Type: 1816–1980,” Journal of Peace Research, 23, no. 3 (1986): 279–89; Jeffrey Pickering, “War-Weariness and Cumulative Effects: Victors, Vanquished, and Subsequent Interstate Intervention,” Journal of Peace Research, 39, no. 3 (2002): 313–37; Terry Copp and Bill McAndrew, Battle Exhaustion: Soldiers and Psychiatrists in the Canadian Army, 1939–1945 (Montreal and Kingston, ON: McGillQueen’s University Press 1990); Morton, When Your Number’s Up, 244. Skuce, CSEF, 32. Carne to Family, 17 July 1916, UVASC, Carne fonds, “Letters.” War Diary of 259th Battalion CEF(S), 24 Oct. 1918; Elmsley to Mewburn, 31 Aug. 1918, LAC, RG24, Series C-1-A, vol. 2557, file HQC-2514 (vol. 1).

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Court-Martial at Vladivostok  207 54 War Diary of 259th Battalion CEF(S), 16 and 20 Nov. 1918. 55 Ibid., 25 Oct. 1918. The CEFS was initially armed with the notorious Ross rifle, but before leaving the Willows Camp it was equipped with the Short Magazine Lee Enfield (SMLE) rifle, 3,765 of which were transported to Vladivostok, along with 10,746,998 rounds of ammunition, 132 Lewis light machine guns, and 16 Vickers heavy machine-guns. See Skuce, CSEF, 34. 56 War Diary of 259th Battalion CEF(S), 31 Oct. 1918. 57 Ibid., 1 Nov. 1918. 58 MacLaren, Canadians in Russia, 156. 59 White to Borden (via Sir Edward Kemp, overseas minister), 14 Nov. 1918, LAC, Borden Papers, MG6, Series H1(a), vol. 103. See also CGS (Ottawa) to Troopers (London), 2 Nov. 1918, and CGS (Ottawa) to Troopers (London), 14 Nov. 1918 (both in LAC, RG24, Series C-1-A, vol. 2557, file HQC-2514 [vol. 1]); MacLaren, Canadians in Russia, 158–65. On 2 Nov. 1918 the chief of general staff, Ottawa, had sent an inquiry to the British War Office: “In view of rapid march towards peace, my Minister wishes to know whether dispatch of Force from Canada to Vladivostok should be cancelled or delayed, or whether in any respect existing arrangements should be modified.” 60 Henry Laird Borden and Heath MacQuarrie, eds., Robert Laird Borden: His Memoirs (Toronto and Montreal: McClelland and Stewart, 1969), 779. 61 See McMahon’s chapter in this volume. 62 Borden to White, 24 Nov. 1918, Crerar to White, 22 Nov. 1918, LAC, Borden Papers, MG26, H1(a), vol. 103. 63 White to Borden, 25 Nov. 1918, LAC, Borden Papers, MG26, H1(a), vol. 103. 64 “The Siberian Riddle,” Globe, 3 Dec. 1918. See also “Canadian and Russian Chaos,” Globe, 29 Nov. 1918. 65 White to Borden, 22 Nov. 1918, Mewburn to Borden (via Kemp), 24 Nov. 1918, Borden to Mewburn, 25 Nov. 1918, White to Mewburn, 28 Nov. 1918, White to Crerar, 28 Nov. 1918, White to Borden, 29 Nov. 1918 (all in LAC, Borden Papers, MG26, H1[a], vol. 103). See also CGS (Ottawa) to troopers, 24 Nov. 1918, and Major-General for Military Secretary to Naval Secretary, 28 Nov. 1918 (both in LAC, RG24, vol. 3968, file NSC 1047–14–26 [vol. 1]); Mewburn to Kemp, 22 Nov. 1918, Bickford (Victoria) to Osborne (Ottawa), 26 Nov. 1918, Troopers (London) to CGS (Ottawa), 6 Dec. 1918 (all in LAC, RG24, Series C-1-A, vol. 2557, file HQC-2514 [vol. 1]); Adjutant General (Ottawa) to Elmsley, 7 Dec. 1918, LAC, RG9, Series III-D-3, vol. 5056, reel T-10950, War Diary of Force Headquarters CEF(S). The decision to proceed with the expedition, subject to the one-year limit on compulsory service, was made on 28 Nov. 1918. “You may regard the matter as closed,” White informed Borden. 66 Stuart Ramsey Tompkins, A Canadian’s Road to Russia: Letters from the Great

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67

68

69 70 71

72 73

74

75 76 77 78 79

80 81

War Decade, edited by Doris H. Pieroth (Edmonton: University of Alberta Press 1989), 344. UVACS, Minutes, 27 Nov. 1918; “Labor’s Local Parliament,” Tribune, 28 Nov. 1918. The ban on public gatherings was lifted on 20 Nov. 1918. See Victoria, Annual Reports (1918), 89. Sivertz to Mewburn, 6 Dec. 1918, LAC, RG24, Series C-1-a, vol. 1993, file 762– 11–24, “Queries Relating to CEF (Siberia).” For the government’s response, see Deputy Minister of Militia and Defence to Christian Sivertz, 19 Dec. 1918, LAC, RG24, Series C-1-a, vol. 1993, file 762–11–24, “Queries Relating to CEF (Siberia).” “Editorial,” Federationist, 29 Nov. 1918. “Carpenters Lose Member,” Federationist, 13 Dec. 1918. Kipp to Chambers, 27 Nov. 1918, Deacon to Kipp, 27 Dec. 1918 (both in LAC, RG24, Series C-1-A, vol. 2566, file HQC-2698, “Canadian Expedition Force Siberia Censorship”). Bickford (Victoria) to Osborne (Ottawa), 26 Nov. 1918, LAC, RG24, Series C1-A, vol. 2557, file HQC-2514 (vol. 1). “Statement Submitted by 2769509, Rfn. J. Guenard,” n.d., Exhibit B, LAC, RG24, Series C-1-a, vol. 1992, file H-Q-762-11-10, “Courts Martial in CEF (Siberia).” “Federated Labor Party Launched at Victoria,” Federationist, 13 Dec. 1918; “Crowded Meeting of the Federated Labour Party,” Tribune, 9 Dec. 1918; “The Protest Meeting,” Tribune, 12 Dec. 1919; Minutes, 4 and 11 Dec. 1918, UVASC, VLC fonds, 80–59, box 3. An order-in-council of 30 Sept. 1918 had banned all works by Chicago publisher Charles Kerr and Company from Canada. These included Lewis H. Morgan’s Ancient Society, Marx’s Capital, and a pamphlet entitled The Siberian Expedition. “Help for Russia,” Daily Times, 10 Dec. 1918. “Siberia Holds Immense Opportunity to Members of Canadian Contingent,” Daily Times, 17 Dec. 1918. “Siberians Are in Need of Clothing,” Daily Times, 16 Dec. 1918. “Organized Attempt to Wreck Mass Meeting,” Federationist, 20 Dec. 1918. Tompkins to Edna, 16 Dec. 1918, reprinted in Tompkins, A Canadian’s Road to Russia, 355. For a first-hand account of the incident, see George F. Clingan, “Siberian Sideshow: The Canadian Expeditionary Force, Siberia, 1918–1919,” Legionary (Ottawa) 30, no. 1 (1955): 10. “Organized Attempt to Wreck Mass Meeting,” Federationist, 20 Dec. 1918. “Help for Russia,” Daily Times, 10 Dec. 1918; “Organized Attempt to Wreck Mass Meeting,” Federationist, 20 Dec. 1918; “Free Speech,” Tribune, 19 Dec. 1919; “Soldiers Protect Labor Meeting,” Tribune, 16 Dec. 1918. At the labour

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85 86

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council’s next meeting, Joe Taylor suggested that the secretary enquire through the press as to the names of those officers who had disrupted the meeting, but his motion was narrowly defeated by the deciding vote of the chair. See Minutes, 18 Dec. 1918, UVASC, VLC fonds, 80–59, box 3. Reinhold Kramer and Tom Mitchell, When the State Trembled: How A.J. Andrews and the Citizens’ Committee Defeated the Winnipeg General Strike (Toronto: University of Toronto Press 2012). Barnard to Borden, 4 Dec. 1918, LAC, Borden Papers, MG26, H1(a), vol. 103. “Labor Council and Censorship of Literature,” Federationist, 22 Nov. 1918. See also “Trades Council to Hold Protest Meeting,” Federationist, 20 Dec. 1918. For labour opposition in nearby Seattle, Washington, see “Protest Siberian Picnic,” Tribune, 12 Dec. 1918. “Call on Govt. to Withdraw Troops Sent to Siberia,” Ottawa Citizen, 6 Dec. 1918. “The Siberian Expedition,” Tribune, 9 Dec. 1918. Developments in Winnipeg are discussed in Norman Penner, ed., Winnipeg 1919: The Strikers’ Own History of the Winnipeg General Strike, 2nd ed. (Toronto: James Lorimer 1975), 6–15; Beattie, “Canadian Intervention in Russia,” 176–206. Sam Blumenberg advocated a general strike at a Trades and Labour Council meeting in early December. War Diary of 259th Battalion CEF(S), 16 and 20 Nov. 1918. See also Cahan to Deputy Minister of Justice, 8 Jan. 1919, LAC, RG13, Department of Justice fonds, Series A-2, vol. 231, file “43–63 1919”; Comptroller to Secretary, Military Council (Ottawa), 28 Jan. 1919, LAC, RCMP fonds, RG18, Series F-1, vol. 3179, file G989-3-24 (vol. 1), pt. 1, “First World War. B Squadron for Service in Siberia.” Scott to Borden, 22 Oct. 1918, Borden to Scott, 26 Oct. 1918, Borden to Mewburn, 26 Oct. 1918, Mewburn to Borden, 2 Nov. 1918 (all in LAC, Borden Papers, MG26, H1[a], vol. 103). Skuce, CSEF, 23–8; War Diary of 259th Battalion CEF(S), November and December 1918; Daily Orders, 2 Dec. to 20 Dec. 1918, LAC, RG9, Series II-B-12, vol. 4, file: “Part II Daily Orders, 20th Machine Gun Co – Siberia”; “Summary of Evidence in the Case of 2140598, Rifleman Frank Atkinson, 260th Battalion,” 9 Dec. 1918, and “Summary of Evidence in the Case of #888039, Rifleman N. Kazakoff,” 12 Dec. 1918, LAC, RG24, Series C-1-a, vol. 1992, file H-Q-762-11-10, “Courts Martial in CEF (Siberia).” “There Can Be No Peace,” Federationist, 20 Dec. 1918. File 58/19, “Public Safety – Dismissal of Soldiers for Siberia Who Have Shown Bolshevik Tendencies,” LAC, RG13, Department of Justice fonds, Series A-2, Public Safety Records, vol. 231, file: “43–63 1919.”

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210  b e n ja m in isitt   92 Gouin to Mewburn, 20 Dec. 1918, LAC, RG24, Series C-1-a, vol. 1993, file 762–11–24, “Queries Relating to CEF (Siberia).”   93 Gwatkin to Chamber, 22 Dec. 1918, LAC, RG24, Series C-1-A, vol. 2566, file HQC-2698, “Canadian Expedition Force Siberia Censorship.”   94 “The Siberian Expedition,” Colonist, 25 Dec. 1918; “Siberia Holds Immense Opportunity to Members of Canadian Contingent,” Daily Times, 17 Dec. 1918; “Cheered Siberians during Stay Here,” Daily Times, 28 Dec. 1918.   95 War Diary of 16th Infantry Brigade Headquarters CEF(S), 10 Dec., 6 Dec., and 17 Dec. 1918. The sports day, held on 16 December, included field events, hockey, and a boxing match. The YMCA’s activities are described in “Expeditionary Force Hears about Siberia,” Daily Times, 20 Dec. 1918, 22. The lecture of 17 December was delivered by James W. Davidson, former American consul-general at Shanghai, who had undertaken a detailed study of the resource wealth of the Russian Far East.   96 White to Borden, 7 Dec. 1918, Borden to White, 7 Dec. 1918 (both in LAC, Borden Papers, MG26, H1[a], vol. 103).   97 This description of the mutiny is adapted from Benjamin Isitt, “Mutiny from Victoria to Vladivostok, December 1918,” Canadian Historical Review, 87, no. 2 (2006): 222–64. The units aboard the Teesta are listed in Daily Routine Orders, Headquarters CEF(S), 14 Jan. 1919, LAC, RG9, Series II-B-12, vol. 2, file: “Daily Routine Orders, Siberia.” See also a telegram from Divisional Transports, Vancouver, to Naval Service, Ottawa, 23 Dec. 1918, LAC, RG24, vol. 3969, file: NSC 1047–12027 (vol. 1).   98 “What a Muddle,” Federationist, 28 Feb. 1919.   99 Censorship in Canada during the war is examined in Jeff Keshen, “All the News That Was Fit to Print: Ernest J. Chambers and Information Control in Canada, 1914–19,” Canadian Historical Review, 73, no. 3 (1992): 315–43. 100 William Rodney reduced the mutiny to “a small number of French-Canadian troops of the 259th Battalion,” a claim that is contradicted by contemporary accounts. MacLaren’s description of the incident is equally curt: “Following a brief rest halt on Fort Street in Victoria, six declined to march any farther. For their objections, they were promptly arrested and placed on board the ship under guard.” He added that “many of the French-speaking soldiers mutely demonstrated that they did not regard service in Siberia as being within the terms of the conscription act.” Swettenham quoted a Toronto Globe editorial that dismissed “something very like mutiny” on “a Siberia-bound troopship” but that provided no direct reference to the Teesta. He is more elaborate in his treatment of a mutiny of Canadian troops on the Murmansk Front in February 1919. Skuce provides the most accurate description of the Victoria mutiny, but, like the others, he offers little detail: “The serious charge of mu-

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Court-Martial at Vladivostok  211 tiny arose from events on December 22, 1918 [sic] when two companies of the 259th refused to board the transport SS Teesta at Victoria.” A more thorough treatment can be found in Beattie’s unpublished 1957 MA thesis. See Beattie, “Canadian Intervention in Russia,” 167–70; MacLaren, Canadians in Russia, 175; Rodney, review of A. Swettenham’s Allied Intervention in Russia, 186; Skuce, CSEF, 19; Swettenham, Allied Intervention in Russia, 153, 205. 101 See Granatstein and Hitsman, Broken Promises, 24–99. 102 War Diary of 16th Infantry Brigade Headquarters CEF(S), 21 Dec. 1918. 103 War Diary of 20th Machine Gun Company CEF(S), 21 Dec. 1918, LAC, RG9, Series III-D-3, vol. 5057, reel T-11119. 104 Report of Field General Court Martial, Vladivostok, 2 Feb. 1919, LAC, RG9, Series III-A-3, vol. 378, file A3, SEF Courts Martial; Bickford to Headquarters CEF(S), 5 April 1919, LAC, RG9, Series III-A-3, vol. 373, file A3, SEF Force HQ MSA. 105 Swift to Brigade Headquarters, 8 April 1919, LAC, RG9, Series III-A-3, vol. 371, file A3, SEF Force HQ 23. 106 Chambers to General Gwatkin (Chief of General Staff, Ottawa), 31 Dec. 1918, LAC, Department of Justice fonds, RG13, Series A-2, Public Safety Records, vol. 231, file 43–63 1919 (file 57–19). 107 “The Siberian Expedition,” Tribune, 6 Jan. 1919. 108 “Did Gen. Mewburn Speak the Truth,” Tribune, 17 March 1919. See also “Remarks of the Owl,” Tribune, 30 June 1919; Canada, Report of Debates of the House of Commons, 10 March, 25 June 1919, 4001. 109 “The Russian Problem,” Colonist, 27 Dec. 1918, 4; “Siberians Receive Rousing Send-Off,” Colonist, 27 Dec. 1918. Two weeks later, labour’s Tribune accused Victoria’s daily press of “lying ... to discredit Russia.” See “Lying and Lying,” Tribune, 9 Jan. 1919. See also “Screaming Editorials,” Tribune, 16 Jan. 1919. 110 “The Siberian Expedition,” Colonist, 27 Dec. 1918. 111 “The Siberian Expedition,” Globe, 28 Dec. 1918. See also Toronto Daily Star, 27 Dec. 1918; Beattie, “Canadian Intervention in Russia,” 198–206. This alleged mutiny reported in the Globe and the Herald conflated the Teesta’s turbulent departure with problems encountered on the cargo ship War Charger, which returned to Vancouver in late December after encountering engine problems. 112 GOC to Chief Censor, 23 Dec. 1918, LAC, RG24, Series C-1-A, vol. 2566, file HQC-2698, “Canadian Expedition Force Siberia Censorship.” 113 Chambers to Editors, n.d. [23 Dec. 1918]; Chambers to GOC Military District 13, 26 Dec. 1918, LAC, RG24, Series. C-1-A, vol. 2566, file HQC-2698, “Canadian Expedition Force Siberia Censorship.”

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212  b e n ja m in isitt 114 Mewburn to Chambers, 27 Dec. 1918, LAC, RG24, Series C-1-A, vol. 2566, file HQC-2698, “Canadian Expedition Force Siberia Censorship.” 115 Chambers to Lyon, 28 Dec. 1918, Chambers to Editor, 28 Dec. 1918 (both in LAC, RG24, Series C-1-A, vol. 2566, file HQC-2698, “Canadian Expedition Force Siberia Censorship”). 116 “Reasons for Siberian Expedition,” Saturday Night (Toronto), 28 Dec. 1918. 117 Ford to Department of Militia and Defence, 19 July 1919, LAC, Defence, RG24, Series C-1-A, vol. 1994, file HQ-762-11-32, “#2356836 Walter B. Ford declares willingness to support statement that troops were well cared for in Siberia.” 118 Tompkins to Edna, 22 Dec. 1918, Washington State Historical Society Archives, MsSC138, Stuart Ramsay Tompkins Papers, box 3, file 3. 119 Richard Garton Holmes to Mother, 21 Dec. 1918, as quoted in Edith M. Faulstich, “Mail from the Canadian Siberian Expeditionary Force,” Postal History Journal, 12, no. 1 (1968): 20. 120 “The Unemployed Question,” Federationist, 27 Dec. 1918. Though subject to the same regulations as the Tribune, the Federationist appears to have taken a greater risk in reporting details of the mutiny in Victoria. Chief Press Censor Ernest Chambers had visited the Vancouver offices of the newspaper following the Ginger Goodwin general strike of 2 Aug. 1918, threatening to suppress the publication if the directors refused to sign a declaration against “objectionable material,” a request with which they complied. Eleven months later, on the night of 30 June 1919, with Vancouver once again tied up in a general strike, members of the RNWMP raided the Federationist office in the Vancouver Labor Temple, smashing through the front door and seizing a number of documents. See “Censorship,” Federationist, 9 Aug. 1918, and “Mounties Raid Homes and Offices of Labor Men,” Federationist, 4 July 1919. 121 “Woodsworth Talks to a Capacity House,” Federationist, 17 Jan. 1919. 122 Grace MacInnis, J.S. Woodsworth: A Man to Remember (Toronto: Macmillan 1953), 123. 123 “Verbatim Report of the Calgary Conference, 1919,” Winnipeg One Big Union Bulletin, 10 March 1927. 124 “Trial of No. 3167375 Rifleman Onil Boisvert,” 25 Jan. 1919, Vladivostok, Russia, LAC, RG24, Series C-1-A, vol. 1992, file H-Q-762-11-10, “Courts Martial in CEF (Siberia).” 125 Testimony of Sergeant R. Belleau, “Trial of No. 3040117 Rifleman Edmond Leroux,” 28 Jan. 1919, Vladivostok, Russia, LAC, RG24, Series C-1-A, vol. 1992, file H-Q-762-11-10, “Courts Martial in CEF (Siberia).” 126 Testimony of Lieutenant T.J. Morin, “D” Company, “Trial of No. 3040117

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Court-Martial at Vladivostok  213 Rifleman Edmond Leroux,” 28 Jan. 1919, Vladivostok, Russia, and “Summary of Evidence for the Trial of No. 3164261, Rfn. Laplante,” 1 Jan. 1919 (both in LAC, RG24, Series C-1-A, vol. 1992, file H-Q-762-11-10, “Courts Martial in CEF [Siberia]”). Field Punishment No. II was a common form of discipline in the British and Canadian armies during the First World War. The offending soldier was restrained in handcuffs and fetters for two hours each day for the duration of the sentence, and also subjected to hard labour and loss of pay. This form of punishment was considered more bearable and humane than Field Punishment No. I, in which the prisoner was attached to a fixed object, such as a fence or post, while restrained, a sentence outlawed by the British Parliament in amendments to the Army Act in 1923. 127 For the list of charges, consult individual personnel files such as “Casualty Form – Pte. Onil Boisevert,” 1918–19, LAC, RG150, Accession 92–93/166, vol. 852, file: “Boisvert Onil.” 128 War Diary of Force Headquarters CEF(S), 15 Jan. 1919; MacLaren, Canadians in Russia, 177–6. 129 For biographical information on the occupation, age, and place of origin of the accused, consult the Attestation Papers in LAC, RG150, Accession 1992– 93/166, boxes 8522–20, 852–24, 5392–80, and 5587–64. 130 “Courts Martial,” n.d. [ca. 11 Dec. 1918]. War Diary of Force Headquarters CEF(S). This stipulation was restated on the eve of the Vladivostok hearings, in Elmsley’s General Routine Orders on 27 Jan. 1918: “An opportunity should be given in all cases to the prisoner to have an officer, with legal experience, to act for him as counsel. If necessary, an officer will be detailed for this duty.” See General Routine Orders, 27 Jan. 1919, War Diary of Force Headquarters CEF(S). See also “Standing Orders by General Officer Commanding Canadian Expeditionary Force (Siberia), 1918,” LAC, RG24, Series C-1-A, vol. 1993, file HQ-762-11-19, “Standing Orders – Siberian Expeditionary Force.” 131 Iacobelli, “No Example is Needed,” 63–4. 132 Civilian criminal law procedures are illuminated in Robert J. Sharpe, The Lazier Murder: Prince Edward County, 1884 (Toronto: Osgoode Society for Canadian Legal History/University of Toronto Press 2011). Rules relating to character witnesses in courts-martial can be found in the 1917 edition of the officers’ manual Military Law Made Easy: “Evidence of the accused’s bad character cannot be given by the prosecution unless he has called evidence to show he has a good character, in which case the Prosecutor can call witnesses to rebut this evidence. On the other hand, evidence as to character is relevant for the defence, and an accused can always call witnesses to prove his good character, or he may call for the production of his Conduct Sheet.”

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214  b e n ja m in isitt See Banning, Military Law Made Easy, 141; Iacobelli, “No Example Is Needed,” 62. 133 LAC, RG150, Accession 1992–92/166, box 424, file: “Gregor Barclay,” Barclay attestation forms. 134 Iacobelli, “No Example Is Needed,” 51 and 60. 135 Ibid., 60–1. 136 McDonell attestation paper, LAC, RG150, Accession 1992–93/166, box 6775– 3, file: “G.L. McDonell.” 137 “Statement submitted by 3164261 Rfn. A. Laplante,” n.d, LAC, RG24, Series C-1-A, vol. 1992, file H-Q-762-11-10, “Courts Martial in CEF (Siberia).” 138 Ibid. 139 Standing Orders by General Officer Commanding Canadian Expeditionary Force (Siberia) (Ottawa: King’s Printer 1918), 6 and 14, LAC, RG24, Series C-1-A, vol. 1993. 140 “Trial of No. 3164261, Rifleman Alfred LaPlante, C. Company, 259th Battn. Canadian Rifles, CEFS,” 25 Jan. 1919, LAC, RG24, Series C-1-A, vol. 1992, file H-Q-762-11-10, “Courts Martial in CEF (Siberia).” 141 Ibid. 142 “Suspension of Sentence,” 14 April 1919, LAC, RG24, Series C-1-A, vol. 1992, file H-Q-762-11-10, “Courts Martial in CEF (Siberia).” 143 Iacobelli, “No Example Is Needed,” iii, 3–4. 144 Barry Wright, “The Kingston and London Courts Martial,” in CST2, 130–59. 145 See the following chapters by F. Murray Greenwood in CST2: “The General Court Martial at Montreal, 1838–9: Operation and the Irish Comparison” (279–324); and “The Montreal Court Martial, 1838–9: Legal and Constitutional Reflections” (325–52). 146 Boisvert to H.C. Hannington, 16 March 1920c, “Trial of No. 3167375 Rifleman Onil Boisvert,” 25 Jan. 1919, LAC, RG24, Series C-1-A, vol. 1992, file H-Q-762-11-10, “Courts Martial in CEF (Siberia)”; “Case History Sheet,” LAC, RG150, Accession 92–93/166, vol. 852, file: “Boisvert Onil.” 147 “Trial of No. 3167375 Rifleman Onil Boisvert,” 25 Jan. 1919, LAC, RG24, Series C-1-A, vol. 1992, file H-Q-762-11-10, “Courts Martial in CEF (Siberia).” 148 “Written Statement Submitted by 3167375 Rfn. O. Boisvert,” LAC, RG24, Series C-1-A, vol. 1992, file H-Q-762-11-10, “Courts Martial in CEF (Siberia).” 149 The testimony recorded the English spelling “Siberia,” while in all likelihood Roy’s defiant statement during the mutiny would have used the French word Siberie. See “Trial of No. 3312133 Rifleman Arthur Roy,” 28 Jan. 1919, LAC, RG24, Series C-1-A, vol. 1992, file H-Q-762-11-10, “Courts Martial in CEF (Siberia).” 150 Testimony of Major Guy Boyer, Lieutenant T.J. Morin, Captain G.N. Oliver,

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Court-Martial at Vladivostok  215 Lieutenant L.H.G. Van Boren, Sergeant R. Belleau, Captain S.M. Rapin, “Trial of No. 3312133 Rifleman Arthur Roy,” 28 Jan. 1919, “Summary of Evidence for the Trial of No. 3312133, Rfn. Arthur Roy,” 27 Dec. 1918, and “Schedule No. 3312133, Rfn. Arthur Roy” (all in LAC, RG24, Series C-1-A, vol. 1992, file H-Q-762-11-10, “Courts Martial in CEF [Siberia]”). Chaplain Olivier is identified in the War Diary of 259th Battalion CEF(S), 28 Dec. 1918. See also Olivier Attestation Papers, LAC, RG150, Accession 1992–93/166, box 7455–42, file: “Olivier Jacques.” 151 “Schedule, No. 3040117, Rfn. Edmond Leroux,” 4 Feb. 1919, “Trial of No. 3040117 Rifleman Edmond Leroux,” 28 Jan. 1919 (both in LAC, RG24, Series C-1-A, vol. 1992, file H-Q-762-11-10, “Courts Martial in CEF [Siberia]”). 152 “Schedule No. 2769509, Rfn. Joseph Guenard,” 4 Feb. 1919, “Trial of No. 2769509, Rifleman J. Guenard,” “Schedule No. 3173531, Rfn. E. Pauze,” and “Trial of #3173531, Rifleman E. Pauze” (all in LAC, RG24, Series C-1-A, vol. 1992, file H-Q-762-11-10, “Courts Martial in CEF [Siberia]”). 153 “Casualty Form – Active Service,” RG150, Accession 92–93/166, vol. 7663, file: “Pauze Edmond.” 154 See “No. 206, Property of Prisoners Undergoing Field Punishment,” 12 March 1919, War Diary of General Staff CEF(S), Daily Routine Orders, March 1919, app. 41, p.11. 155 “Schedule No. 2769509, Rfn. Joseph Guenard,” 4 Feb. 1919, “Trial of No. 2769509, Rifleman J. Guenard” (both in LAC, RG24, Series C-1-A, vol. 1992, file H-Q-762-11-10, “Courts Martial in CEF [Siberia]”). 156 Morton, “‘Kicking and Complaining,’” 339. 157 Iacobelli, “No Example Is Needed,” iii. 158 Skuce, CSEF, 23–4. 159 Military Service Act, 1917 (1917); Military Service Act, 1917 – Manual (1918), 23. 160 Defensor to Elmsley, 1 April 1919, Bickford to Headquarters CEF(S), 5 April 1919, Elmsley to Defensor, 10 April 1919 (all in LAC, RG9, Series III-A-3, vol. 373, file A3, SEF Force HQ MSA). 161 Swift to Brigade Headquarters, 8 April 1919, Barclay to Elmsley, 11 April 1918, Barclay to Elmsley, 12 April 1919, “Suspension of Sentence,” 14 April 1919 (all in LAC, RG9, Series III-A-3, vol. 371, file A3, SEF Force HQ 23); “Courts Martial, CEF (Siberia),” various documents, LAC, RG9, Series III-A-3, vol. 378, file A3, SEF Courts Martial; General Routine Orders No. 34 Field General Courts-Martial, 11 Feb. 1919, War Diary of General Staff CEF(S), February 1919, app. 48; War Diary of Deputy Judge Advocate General CEF(S), January-February 1919, LAC, RG9, Series III-D-3, vol. 5057, reel T-11119. See also “Summary of Events and Information, April 1919,” War Diary of Deputy Judge Advocate General CEF(S); Canada, Report of Debates

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216  b e n ja m in isitt of the House of Commons, 1 April 1919, 8 April 1919, 25 June 1919; Beattie, “Canadian Intervention in Russia,” 272–86. On 20 Dec. 1919 the Canadian government proclaimed a general amnesty for sixty-seven Canadian soldiers who remained in prison or detention from court-martial convictions in other theatres of war. See Madsen, Another Kind of Justice, 55. 162 Morton, When Your Number’s Up, 250–2; Desmond Morton, “The Supreme Penalty: Canadian Deaths by Firing Squad in the First World War,” Queen’s Quarterly, 79, no. 3 (1972): 345–52; Iacobelli, “No Example Is Needed,” 3. 163 Hertzberg Diary, 13 Jan. 1919, LAC, Hertzberg fonds, vol. 1, file 1–18, diary no. 9. 164 Canada, Report of Debates of the House of Commons, 10 June 1919, 3298. See also MacLaren, Canadians in Russia, 213–14; Jonathan F. Vance, “Dr. Henri Beland: Nobody’s Darling,” American Review of Canadian Studies, 28, no. 4 (1998): 469–87. 165 Beattie, “Canadian Intervention in Russia,” iii. 166 “Canadians’ Discipline Effective in Siberia,” Globe, 9 June 1919.

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6 “Daniel de Leon Drew up the Diagram”: Winnipeg’s Seditious-Conspiracy Trials of 1919–20 R E I N H O L D K R A M E R and T O M M I T C H E L L

On 15 May 1919 in Winnipeg, thirty thousand workers walked off the job. Some were building and metal-trades workers who had been unsuccessful at negotiating a new contract with their employers, but the bulk of the strikers walked off unrelated workplaces in sympathy, as Winnipeg unions tested a new weapon that they believed would force employers and governments to bow to labour: the general strike. For weeks, the Winnipeg General Strike paralysed the city, until the arrests of the strike leaders finally brought the strikers to heel through the agency of A.J. Andrews and the Citizens’ Committee of 1000, a front for Winnipeg’s business elite modelled on business-controlled “citizen” alliances that had arisen in Britain and the United States to fight unionization. Several questions have dominated the scholarship on the seditious-conspiracy trials that followed: Was the Winnipeg General Strike an attempt at revolution? Were the strike leaders guilty of seditious conspiracy?1 Did the trial judge bias the jury? While these are all important matters, one central question raised by the defendants’ counsel in 1919 has not been addressed: Were the trials conventional public prosecutions, “state trials” initiated by Manitoba’s attorney general, or private prosecutions provided for under the Criminal Code and conducted by the Citizens’ Committee of 1000?2 When Robert Cassidy, lead defence counsel in R. v. R.B. Russell, pushed for an answer, he called it “a question that goes to the root of the whole thing.”3 To examine the role of the Citizens’ Committee in the seditious-conspiracy trials is to discover that Cassidy’s concerns were well founded. The procedure

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Board of Trade Building, Winnipeg, with sign reading “Headquarters Citizens’ Committee of One Thousand,” later removed by an angry crowd. Source: Archives of Manitoba, Winnipeg Strike 7/N12298.

leading to these trials was without precedent in post-Confederation Canadian legal history.4 prelude It is well known that, in the early days of the strike, A.J. Andrews and other members of the Citizens’ Committee hurried to Fort William to intercept acting Minister of Justice Arthur Meighen and Labour Minister Gideon Robertson on their way to Winnipeg, and to warn them that the strike was an incipient revolution.5 In a much-quoted report to Newton Rowell, minister responsible for the Royal North-West Mounted Police (RNWMP), Meighen subsequently declared that the strike lead­ers’ goals were “sinister” and “far different from those that the ordinary sympathetic striker has in view.”6 In Winnipeg, Meighen and Robertson, Conservative members of a Union government, lobbied T.H. Johnson, the Liberal provincial attorney general, “to obtain the co-operation of provincial authorities in meeting the trouble wisely and firmly.” Meighen was quickly

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“Daniel de Leon Drew up the Diagram”  219

disappointed, and complained, “We could get no assistance whatever.”7 If the provincial government did not sympathize with his fears, Meighen needed someone in Winnipeg who did. On 26 May 1919 Meighen chose fellow Conservative and fellow lawyer Andrews to “represent” the federal Justice Department in Winnipeg. A former mayor of Winnipeg, Andrews had run three times, without success, for the Manitoba legislature, and despite his defeats he was an astute Conservative strategist who had managed to keep former premier Rodmond Roblin out of jail after Roblin had been accused of receiving bribes in the construction of the Manitoba legislature. Meighen wrote to Andrews, saying, “Examine any evidence that may be available touching the conduct of the principle instigators of the present unfortunate industrial disturbance, with a view to ascertaining whether or not the activities of these men is of a seditious or treasonable character and to advise as to what should be done.” “Represent” is a slippery term, yet Meighen’s marching orders suggest that he wanted Andrews not as an independent proxy but as a legal adviser. Meighen gave Andrews much latitude, but no official power, charging him to “act in co-operation with Attorney-General of Manitoba” and to confer with the RNWMP.8 These instructions slid open the door to confusion about just who was responsible for administering criminal law in Manitoba. In June 1919 Rowell pledged in Parliament that any RNWMP action would occur in cooperation with provincial Attorney General Johnson. Rowell sent Johnson the same assurances.9 This was, of course, to belabour the obvious: Johnson alone, as attorney general, had the final responsibility for criminal prosecutions in Manitoba.10 Despite being a cabinet member, he was expected to act “independently of the cabinet in the exercise of the prosecution function.”11 What did Cortlandt Starnes, the RNWMP superintendent commanding Manitoba, think on 27 May when Andrews revealed that he “had been authorized to deal with General [sic] matters pertaining to the strike, also to take action against agitators if necessary?”12 The day-to-day exercise of prosecutorial initiative was not Johnson’s job but occurred at the crown attorney’s discretion.13 In Winnipeg, decisions to prosecute, even extraordinary ones, were taken by Crown Attorney Robert G. Graham. Andrews met with Graham and explained how the Citizens’ Committee planned to prosecute the strike leaders. But Graham proved uncooperative: “I intimated that I was still Crown prosecutor and would decide how the cases would be handled.”14 Johnson was forced to hear the Citizens’ complaint that Graham was ignoring serious infractions of the Criminal Code, and, in response, Johnson proposed a “Special

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Crown Prosecutors Department” to “assist” Graham in dealing with cases of strike intimidation and violence. Graham, who sensed that only public opinion prevented Johnson from sacking him, felt insulted and declined the “assistance.” According to Graham, most cases were not complaints but had been “dug up” by special detectives and amounted to little more than strikers “shouting abuse and empty threats.” He bore no particular love for the strikers but thought that the case for sedition was weak: “I do not think there was, in the minds of the real leaders any thought of revolution. They merely wished to establish the dominance of organized labour.”15 Graham would later insist that the only serious criminal cases were those that occurred at the end of the strike on Bloody Saturday. Nevertheless, Johnson dispatched “Assistant” Crown Prosecutor Hugh Phillips to Graham’s office.16 Phillips showed up with his brother-in-law (then a law student), a stenographer (a barrister from his office), an elaborate filing system, and a squad of special detectives. He became Andrews’s to the province and clashed frequently with Graham.17 a citizens’ arrest When the arrests of the strike leaders did come, it was without Graham’s authorization. On Monday evening, 16 June, the person who supposedly had final authority in the laying of charges, Graham, was simply one of nearly one hundred “citizens” summoned to a meeting at RNWMP headquarters, where Andrews, with Phillips at his side, directed an exercise deciding whom to arrest.18 Phillips was not directly “authorizing” the arrests, so he was not exactly overriding Graham’s authority, but neither did Phillips consult Graham. Later, when the strike leaders’ defence counsel, E.J. McMurray, asked Graham whether the federal or provincial government had authorized the arrests, Graham admitted that he did not know.19 At the meeting, Andrews, like an American district attorney, decided who would be charged and with what. From a list of fifty strike leaders, the Citizens decided to arrest twelve.20 It was unheard of for a private citizen to charge other private citizens with seditious conspiracy and seditious libel.21 On the eve of the arrests, and even afterwards, federal and provincial officials assumed that the strike leaders were being arrested under the recent changes to the Immigration Act – changes that Andrews had specifically requested in order to deal with the strike. Through section 2(f) of 1910 Immigration Act, the Canadian government had nine years earlier instituted the category of “Canadian citizen,” which included: 1) per-

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A.J. Andrews c. 1920. Source: Authors’ Collection.

sons born in Canada; 2) British subjects who had emigrated to Canada and had been domiciled here for three years; and 3) aliens who had been naturalized. On 6 June 1919, hoping to quell radicalism and believing that changes would aid the Citizens’ Committee, the Canadian Parliament had amended section 41 of the Immigration Act to allow for the deportation of “any person other than a Canadian citizen”22 who advocated the overthrow of the government. Attached was a long laundry list of dangerous activities that could be interpreted as such advocacy. However, the amendments did not meddle with the definition of citizenship in section 2(f), which, unchanged, became 2(b) in the 1927 act.23 Andrews had heard the details of the amendment the day before it was made, and he had called the changes “absolutely useless.”24 Given the definition of citizenship, domiciled Britons would be protected from the

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discipline of the new section 41, and thus he would be unable to deport any British-born strike leaders. By telegraph, while the changes were receiving royal assent on 6 June, Andrews had lobbied for and received an amendment to the amendment. Hard upon the initial amendment, and in a matter of minutes, Parliament had rushed into law An Act to Amend an Act of the Present Session entitled An Act to Amend the Immigration Act. This new amendment copied section 41’s laundry list of dangerous acts but quietly dropped the reference to “any person other than a Canadian citizen” at the beginning, and added a sentence at the end: “This section shall not apply to any person who is a British subject, either by reason of birth in Canada, or by reason of naturalization in Canada.”25 Without changing the definition of Canadian citizenship in section 2(f), in section 41 Parliament had neatly eliminated any protection for the second category, British subjects domiciled in Canada. People who were citizens under one section of the Immigration Act were not citizens under another section. As the Winnipeg Free Press had observed, “It would appear that practically all persons of British Birth are subject to the penalty provided in the amendment, for the reason that few immigrants of British birth have ever taken the trouble to be naturalized in Canada.”26 More to the point, the British-born strike leaders were now vulnerable to deportation.27 Federal ministers fully supported Andrews’s attempt to suppress the strike – as long as he used the Immigration Act. Both Immigration Minister J.A. Calder (on the 16th) and Meighen (on the 17th) requested particulars from Andrews so that Calder could issue a detention order. But a couple of hours after midnight on the 17th – between these two requests – Andrews had already gone ahead and arrested the strike leaders. He arrested them using Criminal Code provisions for sedition before the government could legalize his actions.28 According to Andrews’s later claim, the sedition charges were a backup to the Immigration Act, but it is possible that Andrews resorted to the Criminal Code because he feared that he had not fully complied with the new Immigration Act amendments.29 His announcements on the 18th that immigration proceedings would begin almost immediately support this interpretation. Another possibility: Andrews had no “particulars” to forward to Calder that warranted action under the Immigration Act; he waved around the Immigration Act because he had insufficient evidence for arrests under the Criminal Code; the Immigration Act was a smokescreen (at least in respect to the British-born and Canadian leaders). It may be that Andrews simply wanted to smother the strike, and the shortest route to that was to place the leaders in jail, never mind under which legislation.

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sergeant albert reames To justify use of the Criminal Code, Andrews produced a sworn information from RNWMP Sergeant Albert Reames, second-in-command of the western Ontario and Manitoba secret service department.30 The information charged seditious conspiracy and seditious libel but included little more than their legal definitions, alleging that the strike leaders had “conspired with one another … to excite divers liege subjects of the King, to resist laws and resist persons, same being part of the police force in the city of Winnipeg, in the due execution of their duty, and to bring the said force into hatred and contempt … and intending to disturb the public peace and raise discontent in the minds of subjects of the King.”31 As evidence, the complaint cited a Western Labor News (WLN) article which referred to the Special Police (brought in to replace dismissed Winnipeg police) as “thugs,” claiming that the Specials had “spilled blood, caused booze to be sold openly on the Main Street at 50c a drink, and allowed fifteen to twenty bunches to carry on games of ‘crap’ for hours on the said Main Street without interference.”32 Technically, the Citizens did not need Reames’s complaint. Under the 1892 Code, any private citizen who thought a crime had taken place could initiate a criminal prosecution through a complaint before a justice of the peace. In fact, speaking generally to the House of Commons, Newton Rowell later said (particularly because of the limits to the RNWMP’s policing obligations in western Canada) that “no duty rests with the Mounted Police officer that does not rest equally on all other citizens in the particular community who have knowledge of the facts.”33 On the even more significant matter of prosecutorial authority, Reames had no more authority to initiate the prosecution of the strike leaders than did private citizens A.J. Andrews, Travers Sweatman,34 or Isaac Pitblado,35 each of whom could have signed the information for the arrests 16 June but did not. As Philip Stenning has noted, a police officer’s “prosecutorial authority under the Criminal Code is legally no greater (or less) than that of a private citizen.”36 In effect, private citizen Albert Reames had initiated a prosecution on behalf of the Citizens. Attorney General Johnson could either step forward to take up the prosecution or, conversely, issue a nolle prosequi, a decision not to prosecute. Lacking the attorney general’s intervention (or Ottawa’s under the preamble of section 91 of the BNA Act), private counsel could still carry the prosecution forward. If Reames’s membership in the RNWMP gave him no particular prosecutorial authority, why did Andrews have him sign the information?

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Clearly, Reames’s uniform did not hurt. An RNWMP signature on the information, and Andrews’s repeated reference to himself as “representing” the federal Department of Justice, bolstered – somewhat artificially – Andrews’s authority to act against the strike. More importantly, a sworn information could be converted by an accommodating justice of the peace into an arrest warrant.37 The warrant signified that the arrests were not a private effort on behalf of the Citizens’ Committee but had the imprimatur of the state. deputy minister of justice? The RNWMP duly burst in on the homes of the strike leaders and at each stop collected papers, books, and correspondence.38At the Labor Temple, five hundred men stood guard while a search was conducted.39 Among those recruited by Travers Sweatman to “pick out incriminating documents” was William Parker Fillmore, president of the Law Society of Manitoba from 1916 to 1918. Fillmore recalled breaking down a door and opening drawers, where he found “some of Lenin’s writings.”40 A truckload of material – books and documents – was taken from the building. Similar raids took place at the Ukrainian Labour Temple and the Liberty Hall.41 But when it came to revealing who authorized the arrests and raids, reported the Free Press, “all are unanimous in their disinclination to shoulder any responsibility.” Did Mayor Charles Gray, so confident that the strike would be over in “a matter of days,” have prior knowledge? No. Had Attorney General Johnson sanctioned the arrests under the Criminal Code? No. Had Ottawa ordered the arrests and prosecutions? Apparently not. Acting Minister of Justice Meighen expressed surprise when he learned that the Criminal Code had been used for the arrests, and yet Labour Minister Gideon Robertson said that the arrests were made by “the policy department of the Department of Justice.”42 By referencing a non-existent “policy department,” he may have simply been trying to put an official spin on a decision made by Andrews. Later, two strike leaders would sign an affidavit stating that Andrews told them that he was acting as a “Deputy Minister of Justice” for the Dominion government; and that they would not see a judge or jury but would be deported under the Immigration Act.43 No mention of the Criminal Code. Across the country, organized labour immediately began to petition on behalf of the arrested men for “British justice.”44 In legal terms, Andrews’s own comments the day after the arrests were mystifying. He revealed

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that he had been “retained by the federal authorities as official prosecutor” and that “the general charge against each man would be seditious conspiracy.”45 Then he spoke as if he had used the Immigration Act, not the Criminal Code, to arrest the men. The federal Department of Justice, Andrews (correctly) said, had authorized him to urge deportation of all men “adjudged guilty of disloyalty or conspiracy to inspire others to rise against the government.” If the Immigration Board refused to deport the men, Andrews would deal with them “under the Criminal Code.”46 A day later, although the men had been arrested under the Criminal Code, he pretended that criminal charges were a new development: “I have decided to postpone any proceedings for [the strike leaders’] deportation until the charges against them have been heard.”47 Of course, in legal terms Andrews had never actually used the Immigration Act against the British-born leaders, and, privately, he told Meighen that it would be harder to legally deport the British-born leaders than to secure a sedition conviction.48 Perhaps even more important was the prospect, apparently floated at the bail hearings, that “the offer of the Metal Trades Employers was satisfactory” and that strike leaders, if given bail, might call off the sympathetic strike.’49 Publicly, Andrews proclaimed his magnanimity: he had taken the new course “in order that no citizen should have any cause to complain that the government was disposed to deny … R.B. Russell, W. Ivens, John Queen, A.A. Heaps, George Armstrong and R. E. Bray, a fair trial by jury.”50 daniel de leon drew up the diagram The Citizens’ Committee had always portrayed the strike as a Bolshevik conspiracy. The best chance for a conviction, they realized, was to link the strike leaders with other militants in a worldwide Moscow-inspired revolution, since the rules of evidence for seditious conspiracy gave prosecutors enormous leeway. As Peter McKinnon explains, “upon proof of common purpose,” the words and deeds of one conspirator could be used as evidence against all conspirators. Defendants could be “legally considered to have said or done everything that every other conspirator, whether charged or not,” had “done or said.” And there were “few clear limits” as to who might be considered a “co-conspirator.”51 If Andrews could not get seditious statements from the strike leaders, he could get them from Marx. A more or less fully formed version of the conspiracy story that the Citizens had in mind appeared in the “Particulars” statement finally given to

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the strike leaders’ counsel in January 1920. When did the strike leaders’ conspiracy to overthrow the government begin? Sometime before 1910, with a man that none of the strike leaders had met, New York’s “Red Pope of Revolution,” Daniel de Leon. De Leon paid lip service to industrial unionism but really wanted labour to bring about a bloodless revolution. “Daniel de Leon drew up the diagram of organization which Lenine [sic] and Trotsky used for establishing Soviet Government in Russia,” a goal to be achieved through the vehicle of the One Big Union (OBU) – which had been created in 1905 by the renegade Catholic priest Thomas J. Hagerty.52 The diagram at first seems inoffensive, but, when interpreted as a scheme for a workers’ state (as John MacLean, for example, did53), it becomes more ominous. The diagram had made its way to Montreal probation officer Rose Henderson, from her to R.B. Russell, and from him to the 25 April 1919 front page of the Western Labor News, the official organ of the Winnipeg labour movement. Who blessed the soviet diagram by publishing it? Strike leaders such as Russell, William Ivens, E. Robinson, H.G. Veitch, and G. Barlow, all of whom sat on the Winnipeg Trades and Labor Council press committee that ran the WLN. Also John Queen, the WLN’s advertising manager. Andrews reported that, in the early days of the Great War, Russell, Queen, Armstrong, Pritchard,54 and Sam Blumenberg55 had manifested sedition by speaking and writing against the war. The sedition grew “in extent and virulence” as well as in numbers of adherents. First, the Reds attempted to take control of the Trades and Labor Congress held in Quebec in September 1918. When this failed, they called a conference in Calgary. Masquerading as labour men, members of the Socialist Party of Canada (SPC) planned to have the Industrial Workers of the World (IWW) infiltrate Canada under the guise of the OBU.. By mass action and general strikes, they hoped “to obtain control of the Government in Canada and also the control of all industries and of capital.” The practical outcome of all this was the calling of a general sympathetic strike in Winnipeg. In effect, the Citizens put the Winnipeg strike leaders on trial alongside Lenin and Trotsky. The Citizens’ “Particulars” extended the participants in this conspiracy far beyond the boundaries of Winnipeg to include every member of the Socialist Party of Canada, every delegate to the Western Labor Conference at Calgary, and “every person who assisted, sided or abetted … [the] Strike, L.A.K. Martens and other Bolshiks in the United States of America and Canada and elsewhere, who assisted, sided and abetted in the carrying out of the seditious intention aforesaid” [sic].56

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raid and seizures – 30 june 1919 To unravel and combat a plot of such magnitude required an intense, nationwide investigation. Ostensibly to gather evidence to convict the strike leaders of seditious conspiracy, Andrews was able, on 30 June, to launch midnight raids across Canada on the homes and offices of labour activists: in Victoria, Vancouver, Prince George, Coleman, Lethbridge, Brule Mines, Carbondale, Edmonton, Calgary, Drumheller, Alberta, Moose Jaw, Saskatoon, Regina, Brandon, Port Arthur, Fort William, Windsor, North Bay, Stratford, St Catharines, Toronto, Ottawa, Montreal, and Saint John, among other places.57 Six plainclothes RNWMP officers raided the Victoria homes of British Columbia Federation of Labour Vice-President Joe Taylor and Victoria Trades and Labor Council President Eugene Woodward, the Victoria headquarters of the Socialist Party of Canada, and the office of the Semi-Weekly Tribune – A Journal of Industrial and Social Reconstruction. Its editor, Woodward, protested that, since he was not a socialist or an SPC member, the police had no authority to enter the Tribune office through a search warrant for the offices of the Socialist Party of Canada and the homes of its officers.58 The Victoria Daily Times condemned what it termed “promiscuous raids.”59 Police in Vancouver hauled prohibited material from the Labour Temple and private residences, and seized Bill Pritchard’s entire library, including three bibles.60 In Montreal, 130 police officers “ransacked premises,” including Rose Henderson’s home, “took up carpets, searched cupboards, garments and inmates.”61 The Henderson raid prompted some revealing correspondence between Quebec City, Ottawa, and Winnipeg. Charles Lanctôt, deputy attorney general of Quebec, wrote to Meighen asking for copies of the material taken from Henderson. Quebec had an interest in the matter because of Henderson’s probation work for the Montreal juvenile court. W. Stuart Edwards, Meighen’s deputy, replied that he could not help Lanctôt since the searches had been conducted not by the federal government but by the provincial government of Manitoba. Edwards forwarded Lanctôt’s correspondence to John Allan, Manitoba’s deputy minister of justice. But Allan, likewise, disavowed responsibility. He said that the searches had been initiated by A.J. Andrews acting on behalf of the federal government.62 Lanctôt must have wondered who was in charge. An authoritative RCMP history (initially published for RCMP eyes only) said that, although the force gathered the evidence, the initiative for the raids belonged to the crown prosecutor.63 The RNWMP, recently having acquired responsibility west of the Lakehead for enforcing

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wartime orders-in-council affecting prohibited literature, led the raids both in western Canada and, more oddly, in eastern Canada where the Dominion Police still retained responsibility.64 Given the “national” scope of the “conspiracy,” one might have expected wide consultation and numerous sources for RNWMP suspicions. Not so. Press reports credited “federal authorities” with authorizing police actions,65 but, in fact, all of the warrants were based on the initial information sworn by Sergeant Reames.66 The signature that launched a thousand raids was even less prepossessing. A justice of the peace could receive a criminal information, then issue a subpoena, a summons, a search warrant, or an arrest warrant.67 The accommodating JP who authorized the nationwide raids was Edgar Allen Andrews (no relation to A.J. Andrews) – not a judge, not even a lawyer, just an assistant clerk (under Magistrate Hugh John Macdonald) of the Winnipeg Police Court.68 Very quickly, Andrews accumulated a mountain of evidence – books, pamphlets, correspondence, newspapers, copies of The Red Flag, The Liberator, Revolutionary Age, The Soviet, Soviets at Work, Slaves on the Farm, The Trial of Eugene Debs, and the British Columbia Federationist – a virtual library of labour radicalism.69 No charges were laid anywhere in Canada against anyone except the Winnipeg strike leaders, yet during R.B. Russell’s trial “pile after pile of literature and papers was brought into the court room during the afternoon by RNWMP officers, Ontario provincial police and Montreal city police.”70 A total of 1,700 individual exhibits were submitted as evidence.71 If very little of the mountain could be construed as evidence of seditious conspiracy, Andrews evidently hoped that the overwhelming quantity would make up for its weak quality, and he clearly wanted to try the strike leaders not on any actual conspiratorial plans but on his own, much broader notion of sedition. In Andrews’s words, the strike leaders intended “to wipe out all sentiments of faith in God, respect for fellow men, sanctity of marriage and the family, love of country, regard for life and property, in a word all principles of religion and nationality and to overturn and subvert the present system of constitutional government of the Dominion of Canada, by force, in order to bring about a condition of chaos and tyranny such as exists in Russia and to give control of the Dominion of Canada or a part thereof to the ambitious conspirators under the guise of a so-called government by the workers, or the dictatorship of the proletariat.”72 The raids were a fishing expedition. So much would depend on how the evidence would be presented in a courtroom. Andrews sought examples of worldwide labour’s most radical statements and then hoped to pin those statements on the Winnipeg strike leaders. And the

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right jury might sympathize with his accusations if the state – and not the self-interested Citizens – were prosecuting. the consolidated orders respecting censorship Procedurally, Andrews must also have counted it a coup that the 30 June raids had gone forward. Simply by getting the federal government to agree to the raids, he had committed it to a course of action that seemed to promise federally sponsored prosecutions. No need to lobby provincial attorneys general across the country. With the material in the hands of the Citizens, Winnipeg courts could host a national campaign against subversives. In mid-July, Andrews wired Meighen for authority to proceed under Order 2, section 7, of the Consolidated Orders respecting Censorship. Andrews intimated that RNWMP Commissioner Perry naturally expected prosecutions under the orders to follow the raids. To justify the raids, the federal government needed to prosecute.73 The chief press censor for the Borden government from June 1915 to 1 January 1920, Ernest Chambers, who was in Winnipeg at Andrews’s insistence, seconded Andrews’s proposal.74 Conviction would be a foregone conclusion. As Andrews correctly noted, as long as the federal minister of justice initiated the prosecution, the information itself was already “prima facie proof of all facts alleged therein.” In one of the great understatements, Andrews added that such a prosecution “would save a great deal of expense and difficulty in securing convictions.”75 Indeed it would: no need even to hire a prosecutor or to make a case when mere allegations already counted as proof. And yet Meighen refused to act. In a letter to Ed Anderson, a prominent figure in the Citizens’ Committee, Meighen explained that he feared setting a constitutional precedent of the federal government “assuming at this stage of censorship work, duties that are constitutionally clearly provincial.”76 Meighen’s response disclosed a fundamental disagreement between the Citizens and the federal government: the Citizens had declared all-out war on labour radicalism; the federal government, although unfriendly to labour, wanted above all a return to peacetime normality. Although the War Measures Act and its Consolidated Orders respecting Censorship were still technically in force (and as late as 1922, the Judicial Committee of the Privy Council would affirm that legally only Ottawa could decide when the war emergency had ended77), in practical terms the authority to act on the orders had lapsed shortly after the war.78 Meighen was happy to use the Immigration Act against the strike leaders, but, as long as he remained acting minister of justice, no prosecutions under the Consolidated Orders would

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be approved.79 And if Meighen balked at the simple prosecutions under the orders, how much confidence could Andrews have that Meighen would step into provincial jurisdiction to authorize expensive and constitutionally fraught sedition trials? why not a royal commission? Experienced litigators such as Pitblado and Andrews could not have failed to see that criminal proceedings might be awkward. There was no state sponsor, a Winnipeg jury might well sympathize with the strikers, and testimony in open court would expose the police spies who had only recently infiltrated labour organizations. But there was an alternative procedure that Andrews was very familiar with, one that, like a Star Chamber, allowed complete control of process. The 1915 Manitoba legislative buildings scandal had triggered a series of provincial royal commissions, in which Andrews and other Citizen lawyers saw how a royal commission could serve as a fulcrum to facilitate criminal prosecutions when investigative, evidentiary, or political challenges stood in the way. Alleging that the Tory government had wrongfully paid $800,000 to a contractor building the legislature, the Liberals succeeded in their calls for the creation of a royal commission under Manitoba Chief Justice Thomas Graham Mathers. Andrews defended the Roblin government, while future-Citizens Ed Anderson and Travers Sweatman defended the contractor.80 Andrews tried to control the process, demanding, unsuccessfully, the right to review documents prior to their consideration by the commission.81 Anderson, meanwhile, argued before the Manitoba Court of Appeal that no commission could replace or invade the powers of ordinary courts, particularly on criminal matters. Since commissions “made their own rules and their own procedure,” Anderson argued, the Mathers Commission had some “star chamber” features about it. He speculated that the province was using the commission as a way to gather evidence for a criminal prosecution. Appeal Court Justice William Edgerton Perdue refused to disband the commission and stated that witnesses would be protected in subsequent criminal procedures.82 In fact, however, the Mathers Commission found “a conspiracy between four members of the late government, including the late Premier, to loot the treasury.”83 Soon afterward, Roblin and others faced criminal charges, based, voila, on their testimony in front of the commission, Andrews again defending. Citizen E.K. Williams, who had seen workings of the Mathers Commission and had also appeared as counsel before the Perdue Commission

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(into charges that the Liberals had used “improper considerations” to secure the resignation of the Roblin government84), would use his knowledge of royal commissions in later years. In December 1945, facing the espionage crisis that erupted with the defection of Igor Gouzenko, Williams, as president of the Canadian Bar Association, advised Prime Minister W.L. Mackenzie King against conventional criminal prosecutions, and instead recommended a royal commission, intimating that “it need not be bound by the ordinary rules of evidence if it considers it desirable to disregard them. It need not permit counsel to appear for those to be interrogated by it or before it.”85 In 1919 Andrews asked for a royal commission with national terms of reference – this would have allowed the Citizens to present the evidence gathered in raids and to take testimony in camera. Meighen, however, worried that such a commission would duplicate the work of the Robson Commission, recently appointed to investigate the origins of the strike. The Citizens, via their chairman, investment manager A.L. Crossin, cried that no mere judicial trial or provincial commission could disclose the true extent and purposes of Bolshevism in Canada.86 Evidently attempting to mollify the Citizens, Meighen proposed that Andrews ask provincial Attorney General Johnson to add a general investigation of labour radicalism to Robson’s brief. But the Citizens wanted a foregone conclusion. They recognized that Robson was not a strong opponent of labour activism, and Andrews declared him unsuitable.87 There is no evidence that Andrews followed Meighen’s suggestion.88 prosecutorial authority Meighen had refused to attack labour radicalism using the Consolidated Orders or a royal commission. Would he sponsor criminal prosecutions? To say no, Meighen would have to defy the public pronouncements of his chosen “representative,” Andrews, who declared that he had a mountain of incriminating evidence. Yet to prosecute in Manitoba, Ottawa would have to invoke its emergency powers under the “peace, order and good government” preamble to section 91 of the BNA Act.89 It could be done through an order-in-council under the War Measures Act. It could be done: Was not a working-class insurgency from Victoria to Halifax a national emergency? But such a use of emergency powers by Ottawa a year after the Great War had ended would draw vigorous opposition in Parliament and across the country. Questions would be asked about why the province of Manitoba was not prosecuting. Provincial jurisdiction over

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criminal prosecutions was unquestioned, even during the Great War. Though the War Measures Act was in force, Ottawa had left to the provinces the prosecution of individuals possessing prohibited literature.90 Since the Department of Justice had no budget to finance a prosecution that promised to be expensive, a parliamentary debate would be inevitable.91 If Ottawa refused to enter the fray, what could the Citizens do? In legal terms, the information sworn to trigger the arrests of the strike leaders had been undertaken by a private citizen, and the 1892 Criminal Code continued to protect the right of private citizens to initiate criminal prosecutions.92 An individual could still go a long way with a private prosecution, especially if everybody thought he was acting on behalf of the minister of justice.93 Section 5(c) of Manitoba’s Crown Attorney’s Act obligated the crown to “watch over” the conduct of such cases “without unnecessarily interfering,”94 though at any time the attorney general had the authority to stay proceedings.95 In fact, a few years earlier, Alexander McMicken, a provincial police magistrate, had dealt with two cases arising out of the 1911 federal election. When the complainants and counsel arrived in McMicken’s courtroom, they were told that the cases had already been disposed of – that each of the accused had pled guilty and been fined $50. The complainants objected that, among other things, McMicken did not give the private prosecutors a chance to be heard. The Manitoba Court of Appeal agreed, ruling that McMicken had erred, that the private prosecutor had legal standing and a right to be heard.96 In July 1919 the Citizen lawyers knew that, even in the worst-case scenario, Sergeant Reames – as a private citizen – had a legal right to carry forward the prosecution of the strike leaders or to allow counsel (A.J. Andrews) to do so on his behalf. Alternatively, if Ottawa took the case out of Reames’s hands, Andrews could look forward to prosecuting on behalf of Ottawa. According to the Toronto Star, Andrews had been engaged by the Citizens’ Committee of 1000 to prosecute strike leaders.97 This was legally possible, but untrue: even though Citizens’ money was available, they did not want to underwrite an expensive private prosecution, nor did they relish being cast as the enemy of the people if word of their financing leaked out. They wanted the full legal, financial, and moral weight of the government to press down upon the strike leaders. Immediately after the leaders’ arrests on the 17th, Andrews reported to Meighen that “Pitblado, Coyne, Sweatman and other leading legislators not only approve my course but are voluntarily aiding me.”98 It is unclear whom (if anybody) Andrews meant by “leading legislators,” but “voluntarily” did not mean “pro bono.” In the following days, Andrews

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would ask for more lawyers. After several requests, Meighen finally, on 27 June, approved the extra lawyers if they were “absolutely necessary,” but he did not agree to a federal prosecution.99 Above all, Meighen was not agreeing that Andrews could operate without provincial blessing. Andrews had kept stringing Meighen along, evidently with the hope that at some point Manitoba Attorney General Johnson would cooperate and prosecute. Despite the arrest of editor William Ivens, the Western Labor News kept up the fiery denunciations of the Citizens in its Strike Bulletins, and its reports of Bloody Saturday made Andrews boil. At his suggestion, Gideon Robertson appealed to the Secretary of State Martin Burrell to use one of the wartime orders-in-council to shut the paper down, but Burrell and cabinet refused.100 So Andrews appointed himself censor. If he could not silence the strikers directly, he could frighten the printers. He warned the Winnipeg Printing and Engraving Company that the Labor News had contained material that was “seditious, inflammatory and inciting to riot.” He ordered the company to stop printing the strike editions.101 At the same time, Andrews engineered the arrest of J.S. Woodsworth and Fred Dixon on the basis of that material. Again, as he had done with Sergeant Reames, Andrews initiated what was technically a private prosecution, but with a public aura. The information alleging seditious libel was signed by A.E. Morris,102 who, from 1902 to 1915, was variously identified in the press as a city of Winnipeg special constable, licence inspector, and by-law officer. 103 In 1916 Henderson’s Directory graduated Morris to “detective.”104 Since he does not appear in the 1918 and 1919 Henderson’s, but reappears in 1920 as a “constable,” it seems likely that he was a Special on 23 June.105 Morris’s affiliation gave him no prosecutorial authority. Like any citizen, he could press charges, even charges of seditious libel; and conveniently, on the basis of Morris’s information, Andrews could – without consulting the province – arrest Woodsworth and have the printer searched. To implicate the state directly in the Citizens’ campaign against labour was the prize Andrews sought, and he was a past master at manipulating the state’s apparatus of criminal prosecution. It was Citizens’ theatre: neither Dixon – a sitting member of the legislature – nor Woodsworth was likely to flee the scene of the crime.106 Woodsworth reported that he encountered Andrews at the print shop, was told about the warrant, and, in response, walked the half-block over to the police station to surrender. Dixon, whose warrant seems to have been issued later the same day, continued his Labor News work by producing the 24 and 25 June editions of the Western Star and the Enlightener before he, too, turned himself in on 27 June.107

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To Meighen, Andrews implied that Crowns Phillips and Graham had authorized the arrests and would be prosecuting on behalf of the province.108 A few days later, Andrews added that Phillips now wanted Andrews – that is, the federal government – to prosecute Woodsworth and Dixon.109 Meighen, taking Andrews at his first word, replied that if the province had arrested, the province must prosecute.110 After some back and forth, the climax came. Andrews wired: “phillips finally decided not to proceed with woodsworth dixon and other seditious cases as he is not so instructed by local government we all agree they should proceed please wire me quick if we shall carry them on.”111 Meighen was unmoved: “Such prosecutions have everywhere until now been entered and conducted by Provincial authority in usual way and Government feels not justified in now assuming this class of work.”112 In fact, there is no evidence that the province ever intended to prosecute. It was Andrews who had used the mechanisms of the criminal law – an information signed by a citizen, A.E. Morris – to initiate a criminal prosecution. A series of remands would follow, while the Citizens pressed the province to prosecute.113 Only on 14 August – almost two months after the charges were first brought by Morris and as the strike leaders’ preliminary hearing was ending – would Woodsworth and Dixon finally get their own preliminary hearing before Police Magistrate D.W. McKerchar. The hearing would last a single day: Crown Prosecutor Graham would reveal that he was not going to argue that the material was seditious or not. He would question a mere three witnesses, enter a few documents as evidence, and ask the court to decide the matter.114 McKercher would order that Dixon and Woodsworth go to trial.115 However, Graham, by his action, ensured that the cases would be handled with a degree of impartiality. His curious conduct was probably designed to defend his autonomy as crown prosecutor and to prevent the Citizens from stepping in to take over the case on Morris’s behalf. If the province (through Graham) did not take over the case, Morris could carry his case forward and have counsel – possibly Andrews – act on his behalf.116 Given the way that Andrews would manipulate the outcome of the R.B. Russell trial, Graham did Dixon and Woodsworth considerable service by avoiding a Citizen prosecution. When the case against Dixon went to trial in January 1920, Phillips, not one of the less scrupulous Citizen lawyers, was in charge. Dixon was tried on the limited ground of seditious libel (not the quagmire of seditious conspiracy) and he was tried by a mixed urban and rural jury, uncontaminated by extra-legal investigation.117 The jury acquitted Dixon, and the province then declined to prosecute Woodsworth.118

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the deal Back on 26 July, just over a week after Meighen had decisively informed Andrews that the federal government would not be prosecuting Dixon and Woodsworth, the following words pealed from the front page of the Western Labor News: “Workers! The 1,000 has persuaded the Government to pay for the prosecution of the Strike Leaders.” The advertisement urged workers to buy Victory Bonds, which would pay the leaders’ legal expenses.119 Somehow, the WLN intuited that the federal government was not just encouraging but financially sponsoring the prosecution. Why the change? By initially asking Andrews to represent the Department of Justice, Meighen had opened the door to the federal treasury for the Citizens’ lawyers, but he had continually resisted the idea of criminal prosecutions. That all changed when Charles Doherty, minister of justice, returned from European peace negotiations in late July. On 21 July, at the end of the first day of the preliminary hearing, Andrews received a terse wire from Meighen: “In Justice matters communicate with Mr. Doherty. Am closely following all proceedings.”120 Andrews did not immediately know it, but this was remarkably good news for him and the Citizens. Unlike Meighen, Doherty did want to prosecute.121 A trail of guarded disclosures about Ottawa’s financing of the prosecution followed the WLN article.122 Only after the release, decades later, of long-sought Justice files dealing with the financial relations between the Citizens and the Department of Justice was a detailed record of payments available.123 Yet even in these records the only direct reference in the Ottawa/Citizens correspondence about prosecution funding came in the spring of 1920, when Andrews spoke of “the arrangement I made before we went into this case for $150.00 a day each for Mr. Pitblado, Mr. Coyne and myself, when in court, and $100.00 out of Court, and for Mr. Sweatman, $100.00 a day throughout.”124 The federal Department of Justice over which Doherty presided had no budget expressly for criminal prosecutions. Indeed, when legal bills from the Citizens began to arrive at the end of July 1919, a bureaucratic struggle ensued between the RNWMP and the Department of Justice over just who would cough up the money. The RNWMP had never engaged Andrews and would not accept “pecuniary responsibility for his services or actions.”125 Nevertheless, Doherty had authorized Andrews’s prosecution and $150 a day in court for Andrews, Pitblado, and Coyne. Now Justice bureaucrats had to find resources without asking Parliament for “new” money that might call attention to the questionable nature of the prosecution. The large dollar figures involved made it a cabinet-level problem.126

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Finally, Doherty hit upon a solution. Remembering that the money for the short-lived Public Safety Branch had come out of the war appropriation, he realized that he could avoid Parliament by spending funds earmarked for demobilization of Canadian soldiers. Defending Parliament’s final War Appropriation Bill (termed the Demobilization Act) in May 1919, the minister of militia, Major-General Sydney Mewburn, had told Parliament that “every dollar of this expenditure is simply to pay the allowances of soldiers on active service today.”127 Although the majority of Winnipeg’s returned soldiers had joined the strike, on 10 October 1919 cabinet approved an order-in-council whereby $35,000 of their settlement money was appropriated to prosecute their labour leaders.128 The Union government found it expedient to use demobilization funds because it kept Parliament from scrutinizing the extent of the federal involvement in an extraordinary prosecution. Not everyone was hoodwinked. Federal Auditor General E.D. Sutherland could not see how any strike expenses fell under the Demobilization Act. How could the suppression of strikes or the legal expenses arising out of a strike figure in (as section 2[a] of the Demobilization Act put it) “the defence and security of Canada?” He wanted the Department of Justice instead to ask Parliament for new money.129 Sutherland, with many years as assistant auditor general under his belt, could not have failed to understand that the use of the Demobilization Fund was designed to avoid exactly what he was suggesting: parliamentary scrutiny of a huge expense to pay for a criminal prosecution by private interests.130 But E.L. Newcombe, deputy minister of Justice, dug in his heels and rationalized that the Demobilization Act allowed for “many expenditures not foreseen which in one way or another find their origin in the war.” He added that “revolutionary activities in Winnipeg and elsewhere” originated in “war conditions.”131 It was an easy argument to make: Was there anything in 1919 that could not in some way be blamed on conditions in 1918? Given the limits to the auditor general’s power at that time, Sutherland could only examine operations and approve or deny government cheques – he could not pronounce on the legality of the process.132 And so, on 16 October, cheques finally winged their way to Andrews.133 These were only a foretaste: a lot more money would beat a path into the pockets of the Citizens’ lawyers before the strike leaders went to jail. While the Defence Committee for the strike leaders requested money from workers and unions to offset legal fees (raising and spending $120,000 by February 1920, and then requesting another $75,000134), Doherty simply used orders-in-council to siphon demobilization monies from the soldiers to

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the prosecution. By the end of 1921, the federal government would send an astounding $227,000 to the Citizens’ lawyers to deal with the strike prosecutions, of which over $47,000 went to Andrews alone.135 a country jury All the money, however, would not guarantee a conviction if Andrews were required to sell his story to an urban jury that included former strikers. But Andrews had a plan to unearth a tractable jury for R.B. Russell’s trial. Because the crown could “stand by” a juror until all other possible jurors were considered, he had what amounted to a veto against jury members from Winnipeg.136 When Andrews received the list of potential jurors, he used the RNWMP and the McDonald Detective Agency to locate the jurors and to ask the following questions: Is he a returned man: if so was he a volunteer or a conscript? ... What are his views as to the Union Government War Policy? Was he ever a member of a Union? What are his views on Bolshevism? … What does he think of Trades Unionist Leaders and their methods during the last twelve month? What does he think of the Winnipeg Strike? Does he think it was justified? What does he think of the Citizens’ Committee of 1000 and their work? Does he blame the Government for taking methods to put down the strike? … Is he in your opinion liable to be sentimental in his judgment?137

To prevent pre-judgment, police could legally ask acquaintances of the jurors such questions, but to ask the same questions of jurors was jury tampering.138 A young crown attorney, Joseph Thorson, who witnessed the process, spoke of feeling “an abiding sense of shock” that Andrews could pack a jury in the way he wanted. But Thorson did not reveal this until fifty years later, after he had become a judge and president of the Exchequer Court of Canada.139 By tampering with jury selection, Andrews broke the law in order to, as he saw it, defend the constitution. Why did he ask potential jurors about such seemingly irrelevant issues as their support for Canada’s war policy? Because he knew that jurors who were strongly patriotic would be rankled by Russell’s opposition to the war. Later, when E.J. McMurray tried to ask potential juror William Scott about his attitude towards

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labour, Andrews protested, and Judge Thomas Llewellyn Metcalfe agreed that the defence could not ask such questions.140 The defence could challenge jurors too, but Metcalfe ruled that the defence could make only four peremptory challenges in the trial, and Andrews was able to avoid exhausting the pool of jurors by hiving off Russell’s trial from that of the other strike leaders.141 As a result, Andrews got himself a “white,” rural jury. None of the jury members were Winnipeggers. None were associated with labour. None were eastern European immigrants. The farmers, business people, and Orangemen that he found tended to be patriotic, with relatives who had died in the Great War. In sedition cases, guilt or innocence is decided not by facts alone but by the most compelling story, so country jurors – none of whom had been directly involved in the labour battle – were the ideal audience for the Citizens. Andrews had good reason to hope that such jurors would match his own answers to the basic constitutional questions posed by Russell’s trial: Should the Russian Revolution and the upheavals in Germany limit freedom of speech and assembly in Canada? How free should Russell be to agitate for alternative systems of government? “state” trial When he opened the prosecution of R.B. Russell in November 1919, Andrews misled the jury members on the nature of the proceedings. He told the jury that this trial was a rare “state trial” and that he represented “the Crown,” that is, “the people of Canada.”142 Morally, he was deceiving the jury, though, on purely technical grounds, he was correct, since a private prosecution is carried forward in the name of the crown. As the trial drew to a close, Andrews said, “There is only one crown represented in this case, by the Attorney-General of this province, and I am here as his representative … Did [the defence] question that when he was in the box?”143 In fact, the defence had. Counsels McMurray and Cassidy had called Attorney General T.H. Johnson to the stand, asking him about the province’s role in the prosecution.144 But Andrews objected, and Metcalfe sustained the objection. Although it might seem obvious that the defendant must know who is prosecuting, Metcalfe ruled that unless Cassidy could cite precedents, the question about who was behind the prosecution “could not be answered.”145 As for the charges themselves, Andrews took pains to lower the bar for a conviction. The prosecution asserted not that Russell and his “conspirators” had “attempted to overthrow the government,” but simply that they had seditiously conspired to “bring about discontent and dissatisfaction

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and what would be the logical result someday – revolution.”146 In “discontent” and “disaffection” Andrews dusted off the old Thompson/Stephen definition of sedition that never made it into the new Criminal Code but still sat in everyone’s law books. Canadian case law (especially during wartime) was friendly to the older and more emotional catch-all definition.147 A general strike would no doubt seed discontent, and it could be used as the wedge to establish a “Soviet” government in Canada. Using the enormous leeway given by “proof of common purpose,” Andrews made the trial of Russell the trial of all, and words said by others were used against him. Sam Blumenberg had said, “I put on a red flag tie so that there can be no mistake about where I stand.”148 At the Walker Theatre in December, someone had joked that “houses in Fort Rouge would make good houses for the Soviet leaders.” Russell’s friend, Bill Pritchard, had referred to “the late lamented Mr. Christ.”149 All these were evidence of Russell’s sedition, as were criticisms of the “master class” made by Ivens and the Socialist Party of Canada.150 Observers might be forgiven for scratching their heads, but, in the elastic Thompson/Stephen definition, sowing disaffection between classes was seditious. “It is not a crime,” agreed Andrews, “for Mr. Russell to get up and say that he thinks the Russian government is a fine government, but he must not carry it to the limit of getting people to hate our form of government; he must not excite revolt; he must not excite discontent.” If evidence was thin that Russell had conspired to overthrow the nation, SPC-related correspondence indicated that he had planned to overthrow the forces of moderate labour. Russell planned to “pack” the Western Labor Conference “with reds, and no doubt start something.” Russell’s language had a conspiratorial ring. As editor of the national Machinists’ Bulletin, Russell called the dramatic growth in its circulation “proof that they are swallowing it … Some of the recent issues and although they are not the real thing, you will realize the necessity of me leading them gently” [sic].151 Andrews fastened on Russell’s reference to the “real thing, to “swallowing,” and to “leading them gently.” While this was far from showing the strike to be a Bolshevik plot, it did suggest that Andrews was right in attributing ulterior motives to Russell. The real thing, Andrews correctly suggested, was the Communist Manifesto. When Russell and his “boys” arrived at the Calgary conference in March 1919, they had as their goal, Andrews said, “the dictatorship of the proletariat.”152 If Andrews’s wording was more direct than the resolutions at Calgary (which called for the present system of production to be abolished, and for workers to give up on Parliament as means to achieve their ends), he was not far off.153

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Andrews’s main difficulty, however, was that none of the “conspirators” had made directly seditious statements. Yet, if the unpalatable effects of the strike could all be laid at the strike leaders’ feet, then seditious conspiracy had issued in seditious action. Ultimately, in Andrews’s story, all the chance results of the strike, including the shooting of strikers by the RNWMP, became the natural consequences of the “something” that the strike leaders had “started.” Russell’s own words had not created disorder, and Andrews acknowledged this, but that was irrelevant.154 The law, insisted Andrews, presumed that Russell and company had intended the natural consequences of their actions and words. After the trial’s war of words ended, Judge Metcalfe’s charge to the jury confirmed that he accepted the Citizens’ arguments. By implication, he frowned at the province and smiled at the Citizens, saying that if governments refused to deal with offences, “it is the duty of every individual, or combination of individuals, to observe the law; and to give information of its infraction by others.” “Combinations of individuals”: to hint at the Citizens any more clearly, he would have had to name them. The administration of justice was indeed a provincial matter, he admitted, but if the constitution were threatened, the federal government could step in.155 There was some legal force to this argument, but, by allowing the provincial attorney general to escape questions, Metcalfe effectively admitted that Andrews had misled the jury about the nature of the prosecution.156 He also told the jury what decision to make: “Gentlemen, speaking to you as the Judge, if I were on a jury, there is much in that matter that I would find no difficulty in concluding was seditious.”157 Andrews had chosen his jurors well, and by the next morning they had decided. Guilty. Metcalfe sentenced Russell to two years on each of the six counts of seditious conspiracy and one year for being a public nuisance, all sentences to run concurrently.158 Andrews began preparations for the trial of the remaining seven strike leaders immediately after the Russell trial. He told Doherty that there were 250 names on the jury list and that he was securing information about potential jurors.159 Once again, with the help of the RNWMP and the McDonald detectives, Andrews got himself a jury composed entirely of farmers from rural Manitoba.160 Counsel for the strike leaders tried to prove that Andrews had tampered with the jury, but Judge Metcalfe barred most of the evidence. At the outset of the trial, F.J.G. McArthur, counsel for a prospective juror who sought to be released from jury duty, charged that his client had been approached by two men in connection with the case. Defence lawyer R.A. Bonnar demanded that testimony about the incident

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be taken from McArthur, but Metcalfe refused.161 Another prospective juror, Joseph Wright, a blacksmith, signed an affidavit saying that the day after he had received a jury summons, a man approached him about how best to sell several lots in West Kildonan. But “his interest in real estate,” Wright realized, “was not very great, for he shortly turned the conversation on to the subject of the trial of Robert B. Russell … and he asked me what was my candid opinion of the matter.” Wright revealed that he considered the strike to be an ordinary strike, “the natural result of conditions.” When Wright applied to be excused from jury duty on account of illness, he was excused.162 It was alleged that Deputy Sheriff John Pyniger had given out jury lists, and Pyniger admitted, that, yes, he had turned the list over to the “Crown” counsel (Andrews), but only at the order of Justice Alexander Galt.163 Pyniger claimed that he had also offered a copy of the list to McMurray, but McMurray denied receiving such an offer.164 McMurray called a juror, J.W. Hansen, to the stand, and asked him whether anyone had approached him after he was summoned to be on the jury panel. But Andrews objected to the question, and Metcalfe upheld the objection. When McMurray tried to ask RNWMP officers whether members of the force had interrogated potential jurors, Andrews again objected, and Metcalfe ruled that defence questions could address only the possible misconduct of the deputy sheriff, not that of the RNWMP.165 During this second trial, the strike leaders’ counsel did not question Andrews’s claim that he was prosecuting a state trial, but they did challenge the legitimacy of the proceedings with a campaign for the removal of the Citizen lawyers on the grounds of their “extreme partiality.”166 R.A. Bonnar assailed Andrews and his associates for undertaking the prosecution when they had been members of the Citizens’ Committee. Their presence as crown counsel was “unfair” to the defendants: “It would not have been done in a British court of justice.”167 McMurray, counsel for George Armstrong,168 described Andrews and his associates as unfit to prosecute the case, citing, first, prejudice; second, that they were not retained and instructed by the attorney general of Manitoba; and third, that they were retained and instructed by the Dominion of Canada. When Andrews responded that “he was both retained and instructed by the Attorney General of the province of Manitoba,” Bonnar wanted Attorney General Johnson summoned to the courtroom to “say whether the present counsel were under his instructions or not.” Metcalfe side-stepped the issue of federal sponsorship, disallowing “any investigation of the Attorney General of Manitoba.” Defence attorneys could investigate Johnson, said Metcalfe, “but this court is not the place.”169

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A month later in the legislature, on 16 February 1920, Johnson made a liar of his old political adversary Andrews. Fred Dixon, just that day acquitted on the charge of seditious libel, asked, “[Are] ... Messrs. Alfred J. Andrews, KC, Isaac Pitblado, KC, J.B. Coyne, KC, and W.A.T. Sweatman, purporting to be Crown Counsel in the case of The King v. William Ivens, et al, representing His Majesty by virtue of being retained or instructed by the Attorney-General of Manitoba?” “No,” Johnson answered. Under whose authority, then? Johnson admitted that he did not prevent Andrews from acting as crown prosecutor, but added that Canada’s minister of justice had retained Andrews and his colleagues.170 In other words, it was a private prosecution, permitted under the Criminal Code, but curiously (and here silence reigned) paid for by Ottawa out of soldiers’ demobilization funds. Andrews could no longer pretend to be representing Johnson in the courtroom, and in March 1920, at the end of his closing statement in the trial of Ivens et al., he caught up to the headlines about Ottawa’s role: “The defense had accused the Dominion government,” Andrews told the jury, “of interfering with Manitoba affairs when they instigated these actions,” but he quickly merged this into his official story: “The Dominion government prosecuted this case owing to its being a wide conspiracy spread over Canada.”171 It is possible that Andrews did not know that Doherty had never invoked emergency powers under the BNA Act to legitimize the Citizen lawyers, but it is highly unlikely that the more careful Pitblado did not know. The debate over who was prosecuting did not affect the outcome of the trial. Though the jury acquitted Heaps, it found Ivens, Pritchard, Johns, Queen, and Armstrong guilty of six counts of seditious conspiracy and one of common nuisance. Each received concurrent sentences of one year for every count of seditious conspiracy and six months for common nuisance. Bray was sentenced to six months of hard labour on one count of common nuisance.172 The sentences, Metcalfe emphasized, were so short only because he was following the jury’s recommendation for mercy.173 conclusion The arrests of the strike leaders – an admission that traditional forms of consent and court-ordered compliance no longer had traction in 1919 – disclosed how dire circumstances had become from the Citizens’ perspective. But, in a social order with a vigorous common law inheritance of individual rights and rule of law, such extreme measures had to be jus-

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Strike leaders outside Vaughan Street Jail in 1920. L-R back row: Roger Bray, George Armstrong, John Queen, R.B. Russell, R.J Johns, Bill Prichard. L-R front row: William Ivens, Abram A. Heaps. Source: Manitoba Archives, N12322.

tified in the public and legal spheres. Though the rhetorical excesses of the Socialist Party of Canada and OBU opened a narrow window for a sedition prosecution, Attorney General Johnson, Crown Prosecutor Graham, and, to a lesser degree, acting Minister of Justice Meighen, resisted the juridical agenda of the Citizens. Federal emergency powers under the BNA Act – the legal means by which the federal government could have

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asserted itself – were never used to push aside the province of Manitoba. It was only through the conjunction of the private-prosecution provisions of the Criminal Code, A.J. Andrews’s ideological and procedural gambits, and Justice Minister Doherty’s willingness to use fiscal sleight-of-hand that the Citizens’ Committee of 1000 was ultimately able to criminalize the Winnipeg General Strike.174 Notes   1 On the proceedings against Fred Dixon and J.S. Woodsworth for seditious libel, see James (Jack) S. Walker, The Great Canadian Sedition Trials: The Courts and the Winnipeg General Strike, 1919–1920, Duncan Fraser ed. (Winnipeg: Legal Research Institute of the University of Manitoba/Canadian Legal History Project 2004). The publishers of this work erroneously identified Walker as James (Jack) Walker. Walker was formally Jacob Samuel Walker and his archival records held at the Archives of Manitoba, which we rely on later in the paper, are identified as the Jacob Samuel Walker fonds. The editors of Walker’s obituary settled for Jack Samuel Walker QC, BA (Hons.), LLM, PCJ. Winnipeg Free Press, 22 Oct. 1994, 42.   2 This chapter builds on Reinhold Kramer and Tom Mitchell, When the State Trembled: How A.J. Andrews and the Citizens’ Committee Broke the Winnipeg General Strike (Toronto: University of Toronto Press 2010). For earlier accounts of the trials, see E.W. Greening, “The Winnipeg Strike Trials,” Industrial Relations, 20, no. 1 (1965): 77–84; D.C. Masters, The Winnipeg General Strike (Toronto: University of Toronto Press 1950), 114–27; Leslie Katz, “Some Legal Consequences of the Winnipeg General Strike of 1919,” Manitoba Law Journal, 4 (1970): 39–52; Kenneth McNaught, “Political Trials and the Canadian Political Tradition,” in Martin Friedland, ed., Courts and Trials: A Multidisciplinary Approach (Toronto: University of Toronto Press 1975), 137–61; Peter R. Lederman, “Sedition in Winnipeg: An Examination of the Trials for Seditious Conspiracy Arising from the General Strike of 1919,” Queen’s Law Journal (1976): 3–24; Peter McKinnon, “Conspiracy and Sedition as Canadian Political Crimes,” McGill Law Journal, 23 (1977): 622–43; Desmond H. Brown, “The Craftsmanship of Bias: Sedition and the Winnipeg Strike Trials 1919,” Manitoba Law Review, 1 (1984): 1–33; Wes Wilson, “The Political Use of Criminal Conspiracy,” University of Toronto Faculty of Law Review, 42 (1984): 60–78. In The Great Canadian Sedition Trials, Walker questions the basic fairness of the trials without examining the nature – public or private – of the prosecution.

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“Daniel de Leon Drew up the Diagram”  245   3 Transcript of testimony, Thomas H. Johnson, The King v. R.B. Russell, 22 Dec. 1919, Archives of Manitoba, P-5610, Jacob [Jack] Samuel Walker fonds, file 8. There does not appear to be a complete transcript of The King v. R.B. Russell extant: the Walker fonds contains only a few pages drawn from what appears to be an original transcript with no indication of the source.   4 In November 1969, during a discussion of the possibility criminal activities of members of the Company of Young Canadians in Montreal, Minister of Justice John Turner stated that “at no time since confederation had a prosecution for sedition been undertaken by the federal Attorney General.” But in December Turner backtracked when a senior lawyer told him that “Robert B. Russell and several other individuals were prosecuted for seditious conspiracy by counsel retained by the then Acting Minister of Justice, the Right Hon. Arthur Meighen.” The word “retained” obscures the complicated nature of the relationship between Ottawa and A.J. Andrews, who served as the principal conduit between Ottawa and the Citizens’ Committee. See Canada, House of Commons, Debates [hereafter Debates], 27 Nov. 1969, 1302, and ibid., 10 Dec. 1969, 1816.   5 Arthur Meighen was elected to the House of Commons in 1908 and entered the Borden cabinet in 1913 as solicitor general. In October 1917 he was appointed minister of the interior and superintendent of Indian affairs. When Minister of Justice Charles Doherty joined Robert Borden at the Peace Conference in Paris in late 1918, Meighen took on added responsibility as acting minister of justice. Meighen continued in this acting capacity until early July 1919 when Doherty returned from Europe and resumed his regular duties as minister of justice. See Ernest J. Chambers, ed., The Canadian Parliamentary Guide (Ottawa: Mortimer Co. 1920), 166.   6 Newton Rowell was elected as a Unionist candidate in the December 1917 federal election. He served in the Borden government as president of the Privy Council and vice-chairman of the War Committee of cabinet. As president of the Privy Council, Rowell had cabinet responsibility for the RNWMP. Chambers, ed., The Canadian Parliamentary Guide, 177–8; Margaret Prang, N.W. Rowell: Ontario Nationalist (Toronto: University of Toronto Press 1975), 237. For Meighen’s report, see Meighen to N.W. Rowell, 21 May 1919, LAC, RG13 (Department of Justice), Accession 1987–88/103, box 36, file 9-A1688, “The King v. William Ivens and Robert Russell, A/M Regarding the Winnipeg Strike” [hereafter LAC, RG13, Accession 87–88/103: box 36, file 9-A‑1688], pocket 2.   7 These quotations are taken from a narrative composed by Meighen concerned with Meighen’s handling of the Winnipeg crisis of 1919. The narrative was composed for use by historian Roger Graham in the preparation of his celebrated biography of Meighen. See LAC, Meighen Papers, Series 6 (MG26, I,

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  8   9 10

11

12 13

14

15 16

17

18 19

vol. 226 A), 149088. For the biography, see Roger Graham, Arthur Meighen: A Biography, 3 vols. (Toronto: Clarke, Irwin, 1960–5). Arthur Meighen to A.J. Andrews, 26 May 1919, LAC, RG13, Accession 87– 88/103: box 36, file 9-A‑1688, pocket 2. Debates, 23 June 1919, 3843. “Prosecutorial primacy in the provincial Attorneys General was not only recognized in the Code itself, but was on numerous occasions publicly acknowledged by federal Prime Ministers and Ministers of Justice in a variety of forums.” Philip C. Stenning, Appearing for the Crown: A Legal and Historical Review of Criminal Prosecutorial Authority in Canada (Cowansville, QC: Brown Legal Publications 1986), 167. On the general constitutional position of the Manitoba attorney general, see Bruce A. McFarlane, “Sunlight and Disinfectants: Prosecutorial Accountability and Independence through Public Transparency,” Criminal Law Quarterly, 45 (2001–2): 274–83. Cortland Starnes to the commissioner, RNWMP, 27 May 1919, LAC, RG13, Accession 87–88/103: box 36, file 9-A‑1688, pocket 2. On the discretionary authority of Canadian crown attorneys, see Brian A. Grosman, “The Role of the Prosecutor in Canada,” American Journal of Comparative Law, 18, no. 3 (1970): 502–3; and Stenning, Appearing for the Crown, 307–19. Recollections 1909–34, Journal, May-October 1934, vol. III, Archives of Manitoba, MG14 C109, M 329, Robert Blackwood Whidden Graham fonds [hereafter Recollections, Archives of Manitoba, Robert Graham fonds], 109–11. Recollections, Archives of Manitoba, Robert Graham fonds, 121–2. Hugh Phillips was a native of Beckenham, England, born on 15 Dec. 1875. He arrived in Manitoba in 1893 and articled in the law office of Chief Justice D.A. Macdonald of Portage la Prairie. He settled in Winnipeg in 1898 and was called to the Manitoba bar in 1900. In 1919 Phillips was a principal in the firm of Phillips and Whitlaw. He was a member of the Manitoba Club, the St Charles Country Club, and the Carlton Club. C.W. Parker, ed., Who’s Who in Western Canada: A Biographical Dictionary of Notable Living Men and Women of Western Canada, vol. 1 (Vancouver: Canadian Press Association 1911), 660. Jack Walker reports that E.J. McMurray regarded Phillips as a “stupid man.” Walker, The Great Canadian Sedition Trials, 150. Recollections, Archives of Manitoba, Robert Graham fonds, 109–12, 120–1. Phillips showed Graham an order-in-council empowering Phillips, but the Manitoba Legislative Library has been unable to find a copy of this. Recollections, Archives of Manitoba, Robert Graham fonds, 115. Testimony of R.B. Graham, Archives of Manitoba, M268–269, Transcript, Pre-

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20 21

22 23 24 25 26

27

28

29

liminary Hearing, The King vs. Wm. Ivens, R.B. Russell, R.J. Johns, et al., 1079. Recollections, Archives of Manitoba, Robert Graham fonds, 115. For an account of the origins and evolution of prosecutions for seditious libel, see Mark MacGuigan, “Seditious Libel and Related Offences in England, the United States, and Canada,” in The Report of the Special Committee on Hate Propaganda in Canada (Ottawa: Queen’s Printer 1966), app. I. An Act to Amend the Immigration Act, 9–10 Geo. V, c.25, 98. Revised Statutes of Canada, 1927, vol. 2, c. 93, An Act Respecting Immigration, 2(b), 2065. Andrews to Meighen (telegram), 6 June 1919, LAC, RG13, Accession 87– 88/103: box 36, file 9-A‑1688, pocket 2. An Act to Amend the Immigration Act, 9–10 Geo. V, c.26, 108. The Free Press also noted that few foreigners in Canada were actually British subjects, “since very few were naturalized under the new act, which provides for Imperial citizenship.” See “Immigration Act Provides for Denaturalization and Deportation of All Undesirables Except Canadian Born,” Manitoba Free Press, 20 June 1919, 1. Andrews had coached Meighen to ensure that such amendments to the Naturalization Act provided for action that was “simple and summary.” Andrews to Meighen, 8 June 1919, LAC, RG13, Accession 87–88/103: box 36, file 9-A‑1688, pocket 2. The amendments were introduced on 9 June and approved in September, too late for use against the Winnipeg strikers. Without comment, Meighen noted: “Calder just received now 3.40 p.m. these names and particulars and is immediately despatching authorization.” Later, during the immigration hearings, defence lawyers would ask Andrews to produce Calder’s original warrant to detain the men, but all Andrews could deliver was a 21 June letter from Calder for Blumenberg’s detention. For the telegrams between Andrews and Meighen disclosing Andrews’s failure to adhere to the terms of the Immigration Act in making these arrests, see Meighen to Andrews, 17 June 1919 (telegram), no. 2400, LAC, RG13, Accession 87–88/103: box 36, file 9-A‑1688, pocket 2. Because the charges were laid under the existing Criminal Code, the penalty for a conviction for seditious conspiracy would have been a maximum two years in prison. Parliament was in the process of revising the Code at the time of the strike. On 1 May 1919 a special committee had been created to review the Code with a view to amendments to meet the post-war era. The committee’s report was presented to the House of Commons on 6 June. Legislation based on the report was introduced for first reading on 27 June, for second reading on 1 July, and for third reading on 2 July. The amended Criminal Code was given royal

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30

31 32 33 34

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assent on 7 July and took effect on 1 Oct. 1919. Conviction for seditious conspiracy under the amended Code could mean a sentence of twenty rather than two years. For an account of developments related to the Criminal Code, see Katz, “Some Legal Consequences of the Winnipeg General Strike,” 50–1. “Original Information,” Archives of Manitoba, Exhibits, King v. Ivens, et al., AtG007, GR3081, G7490, no. 638. See also “Disrespect for Court by Strike Leaders,” Manitoba Free Press, 23 July 1919, 2. The swearing of an information is the initiating point for a criminal prosecution. Stenning, Appearing for the Crown, 199, 204. “The Charge,” Western Labor News, 19 June 1919, 2. “Special Police Driven from the Street,” Western Labor News, 11 June 1919, 1, 4; “The Charge,” Western Labor News, 19 June 1919, 2. Debates, 7 June 1920, 3194–6. Travers Sweatman was born in Pembroke, Ontario, 1879. He came to Winnipeg as a child and was educated in Winnipeg. He completed a BA at the University of Manitoba in 1900 and an MA in 1909. Sweatman was called to the Manitoba bar 1906. In 1919 he was a principal in Sweatman, Fillmore, Riley and Watson. From 1921 to 1925 he was president of the Winnipeg Board of Trade. He was a member of the Manitoba Club, the St Charles Country Club, and a founding member of the Winnipeg Winter Club. Winnipeg Free Press, 9 Sept. 1941. Issac Pitblado had come west at age fifteen in 1882, when St Andrew’s Presbyterian Church called his father to the pulpit. At the time of the strike, Pitblado was the head of a large legal firm, chairman of the Board of Governors at the University of Manitoba, and president of the Manitoba Law Society. Isaac Pitblado, “60 Years at the Bar – the Pitblado Story,” 31 Jan. 1950, University of Manitoba Archives and Special Collections, MSS 48, PC 58, Pitblado Family fonds, Series 3, Isaac Pitblado, box 6, folder 32. For the prosecutorial powers of police under the Criminal Code, see Stenning, Appearing for the Crown, 272. Under s.440(1) of the Criminal Code: “A justice who receives an information shall ... issue, where he considers that a case for doing so is made out, a summons or warrant, as the case may be, to compel the accused to attend before him.” The justice of the peace exercises significant discretion. Martin L. Friedland, Detention before Trial: A Study of Criminal Cases Tried in the Toronto Magistrates’ Courts (Toronto: University of Toronto Press 1965), 21. Those arrested on 16 June included R.B. Russell, William Ivens, John Queen, A.A. Heaps, George Armstrong, R.E. Bray, Oscar Schoppelrei, Moses Almazoff, Max Charitonoff, and Mike Verenczuk. The latter was mistaken for Boris Devyatkin. W.A. Pritchard was arrested in Calgary on his way back

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39 40 41 42

43

44

45 46 47 48 49 50 51 52

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to Vancouver. R.J. Johns, who was in Montreal when the arrests took place, turned himself in on his return to Winnipeg. Similarly, Sam Blumenberg reported to the Winnipeg police when he heard that a warrant for his arrest had been issued. Andrews to Meighen, 18 June 1919, LAC, RG13, Accession 87–88/103: box 36, file 9-A‑1688, pocket 2. Interview with W.P. Fillmore, Archives of Manitoba, Jacob [Jack] Walker fonds, tape C 2381. “Strike Goes on, Workers’ Reply from Winnipeg,” Ottawa Evening Citizen (Canadian Press Dispatch), 17 June 1919, 1. “Conspiracy and Sedition Are the Charges Laid against Strike Leaders,” Calgary Daily Herald, 17 June 1919, 1. Elsewhere Robertson is reported to have referred to “the authority of the Department of Justice.” “Extremists among Strike Leaders Placed behind Bars,” Manitoba Free Press, 18 June 1919, 4. Affidavit, Roger Bray, 22 Jan. 1920, Affidavit, George Armstrong, 22 Jan. 1920, Archives of Manitoba, GR180, Court of Queen’s Bench, Winnipeg Criminal Pockets, 3/2166 to 3/2171– 8. See the reports of protest meetings on 19 June in Toronto, Brantford, Mon­ treal, Sydney, Moncton, and Victoria, reported under “Demand Robertson Resign Immediately,” Western Labor News, 19 June 1919, 2. See also James Muir, “The Demand for British Justice: Protest and Culture during the Winnipeg General Strike Trials,” Canadian Legal History Project Working Paper Series (Winnipeg: Canadian Legal History Project, Faculty of Law, University of Manitoba 1993). “Extremists among Strike Leaders Quietly Placed behind Prison Bars,” Manitoba Free Press, 18 June 1919. “Deportation for Strike Leaders Is Asked by Canada,” Manitoba Free Press, 19 June 1919, 13. “Bail Granted Six men Held for Sedition,” Manitoba Free Press, 20 June 1919. Meighen to Andrews, 18 June 1919, LAC, RG13, Accession 87–88/103: box 36, file 9-A‑1688, pocket 2. Andrews to Meighen, 25 June 1919, LAC, RG13, Accession 87–88/103: box 36, file 9-A‑1688, pocket 2. Meighen to Andrews, 18 June 1919, LAC, RG13, Accession 87–88/103: box 36, file 9-A‑1688, pocket 2. McKinnon, “Conspiracy and Sedition as Canadian Political Crimes,” 629. For De Leon’s role in the IWW, see Melvyn Dubofsky, We Shall Be All: A History of the Industrial Workers of the World (Chicago: Quadrangle Books 1969), 133–41. On Hagerty, see 84–7. John MacLean, “The O.B.U.,” Manitoba Free Press, 4 Sept. 1920, 33.

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250  r e i n h o l d k r a m e r and tom mitchell 54 W.A. “Bill” Pritchard came to Canada from his native England in 1911. He became a central figure and propagandist for the Socialist Party of Canada (SPC). Pritchard served as editor of the SPC newspaper, the Western Clarion. In 1919 he was a leading figure in the western Canadian labour movement. For his career as a labour militant, see Peter Campbell, Canadian Marxists and the Search for a Third Way (Montreal and Kingston, ON: McGill-Queen’s University Press 1999), 73–124. 55 Samuel Blumenberg, Jewish and orphaned at a young age, was still technically a Romanian citizen in 1919. Although his father had brought the family to the United States, and although Blumenberg had spent his formative years in Minneapolis, he had never become a U.S. citizen. In Winnipeg he ran the Minneapolis Dye House on Portage Avenue. Not only had he spoken often on labour platforms during both the 1918 and 1919 conflicts, but he was also a target for anti-alien fervour because of his opposition to the Great War. Among his radical plays were The Undesirable Citizen, The Modern Shylock, and War, What For? Advertised as “one of the most radical plays ever produced on any stage,” War, What For? opened at the Grand Theatre 1915 in the wake of the second Battle of Ypres, during which nearly six thousand Canadian soldiers died. In 1916 he named his newborn son Karl Marx Blumenberg. See Kramer and Mitchell, When the State Trembled, 290–1. 56 “Particulars,” Archives of Manitoba, In the Court of King’s Bench, 3. 57 For a complete list of individuals and communities listed in the document, see “Particulars,” Archives of Manitoba, In the Court of King’s Bench, 1–3. 58 Benjamin Isitt, “Searching for Workers’ Solidarity: The One Big Union and the Victoria General Strike of 1919,” Labour/Le Travail, 69 (fall 2007): 36–7nn.145–6. Isitt credits A.J. Andrews, appointed by Arthur Meighen to represent him in Winnipeg, with signing the search warrant. It was actually signed by E.A. Andrews, justice of the peace, Winnipeg Police Court. See also “Think Police Acted beyond Their Power,” Victoria Daily Times, 2 July 1919, 14. The authors would like to thank Benjamin Isitt for furnishing copies of the Victoria Daily Times and Semi-Weekly Tribune dealing with these raids. 59 “Those Raids,” Victoria Daily Times, 4 July 1919, 4. 60 Interview with William Pritchard, C 2382–6 (side B, tape 2), Archives of Manitoba, Jacob [Jack] Walker fonds. 61 “Police Seize Tons of ‘Red’ Literature,” Edmonton Bulletin, 2 July 1919, 1. For the raid on Henderson’s home, see “Montreal Police Raid Homes,” Labor News, 11 July 1919. 62 The authors would like to thank Peter Campbell for drawing our attention to this correspondence. See Charles Lanctôt to the minister of justice, 15

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63 64

65 66

67 68 69

70 71 72 73 74 75 76 77

July 1919, Archives Nationale du Québec, Fonds du Ministere de la Justice, e17, dossier 5007/1919 [hereafter Archives Nationale]; W. Stuart Edwards to Charles Lanctôt, 22 July 1919, Archives Nationale; John Allan to Charles Lanctôt, 8 Aug. 1919, Archives Nationale; Charles Lanctôt to A.J. Andrews, 21 Aug. 1919, Archives Nationale; A.J. Andrews to Charles Lanctôt, 8 Sept., 1919, Archives Nationale. For an account of this exchange, see Peter Campbell, Rose Henderson: A Woman of the People (Montreal and Kingston, ON: McGill-Queen’s University Press 2010), 67–70. See Carl Betke and S.W. Horrall, Canada’s Security Service: An Historical Outline, 1864–1966 (Ottawa: RCMP Historical Section 1978), 343. Gregory Kealey, “The Surveillance State: The Origins of Domestic Intelligence and Counter-Subversion in Canada, 1914–1921,” Intelligence and National Security, 7, no. 3 (1992): 193. See, for example, “Winnipeg Strike Leaders Kidnapped by Police in Surprise Raid,” Ottawa Evening Citizen (Canadian Press Dispatch), 17 June 1919, 1. See, for example, the search warrant issued for use by the RNWMP in Brule Mines, Alberta. “Search Warrant, Cpl. Birks,” Archives of Manitoba, ATG007/GR3081/G7493, no. 557. For a copy of the warrant approved by Andrews for use by the RNWMP in Victoria, B.C., see “North West Mounted Police Make Illegal Seizure at the Office of the ‘Tribune,’” Semi-Weekly Tribune – A Journal of Industrial and Social Reconstruction, 30 June 1919, 1. Manitoba Law Reform Commission, The Independence of Justices of the Peace and Magistrates (Winnipeg: Queen’s Printer 1991), 16–18. “Court Clerk Retires,” Winnipeg Free Press, 30 April 1952. For the complete list, see Exhibit List, King v. Ivens et al. (twenty-one pages); Exhibit List, King v. Russell (thirty pages), Archives of Manitoba, AT G007/ GR 3081/G7490. “Shorthand Test Made at Trial of Strike Head,” Winnipeg Evening Tribune, 4 Dec. 1919. “A Ton of Literature before the ‘Peg Jury,’” Toronto Star, 16 Dec. 1919. “Particulars,” Archives of Manitoba, In the Court of King’s Bench, 4–5. A.J. Andrews to Arthur Meighen, 17 July 1919 (wire), LAC, RG13, Accession 87–88/103: box 36, file 9-A‑1688, pocket 2. E. Chambers to C.J. Doherty, 17 July 1919 (wire), LAC, RG13, Accession 87– 88/103: box 36, file 9-A‑1688, pocket 1. A.J. Andrews to Arthur Meighen, 18 July 1919, LAC, RG13, Accession 87– 88/103: box 36, file 9-A‑1688, pocket 2. Arthur Meighen to Ed Anderson, 19 July 1919, LAC, RG13, Accession 87– 88/103: box 36, file 9-A‑1688, pocket 2. Emphasis added. Quoted in Fort Frances Pulp and Paper Co. v. Manitoba Free Press Co. (1923),

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79

80 81 82 83 84 85

86 87 88 89

90 91

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[1923] A.C. 695 (P.C.), 6. http://www.dessus.com/TaxInfo/Cases/ fortfrancis.html. The use of these orders in the fall of 1918 and January 1919 had triggered fierce opposition from organized labour in Ontario and Manitoba. Convictions and draconian sentences were, on instructions from Ottawa, dramatically reduced or eliminated entirely. After that, Meighen understood that any widespread use of the Consolidated Orders Respecting Censorship would be vigorously opposed even within his own government. See Ian Angus, Canadian Bolsheviks: The Early Years of the Communist Party of Canada (Montreal: Vanguard Publications 1981), 28–36. Meighen was prepared to address the crisis through amendments to existing legislation, including the Immigration Act, the Criminal Code, and the Naturalization Act. Manitoba Free Press, 21 April 1915. “Lawyers Have Sharp Clash at Capitol Inquiry,” Manitoba Free Press, 30 April 1915. “Kelly Injunction in Appeal Court,” Manitoba Free Press, 28 July 1915, 8. “There was Conspiracy to Rob Province,” Manitoba Free Press, 26 Aug. 1915. “New Commission Begins Session,” Manitoba Free Press, 29 June 1915, 10. Dominique Thomas Clément, “The Royal Commission on Espionage and the Spy Trials of 1946–9: A Case Study in Parliamentary Supremacy,” Journal of the Canadian Historical Association, 11, no. 1 (2000): 153–4. A.L. Crossin to Meighen, 16 July 1919, LAC, RG13, Accession 87–88/103: box 36, file 9-A‑1688, pocket 2. Andrews to Meighen, 25 June 1919, LAC, RG13, Accession 87–88/103: box 36, file 9-A‑1688, pocket 2. Meighen to Andrews, 18 July 1919 (wire), LAC, RG13, Accession 87–88/103: box 36, file 9-A‑1688, pocket 2. On the development of Ottawa’s emergency powers, see Herbert Marx, “The Emergency Power and Civil Liberties in Canada,” McGill Law Journal, 16, no. 1 (1970): 56–72. Manitoba Free Press, 12 June 1915, 5. In September 1919 A. J. Andrews wrote to Assistant Deputy Minister of Justice W. Stuart Edwards about unpaid legal bills that had been sent to Ottawa by the Citizens. Edwards replied that he had no appropriation out of which to pay them, but promised to alert Charles Doherty, minister of justice. See W. Stuart Edwards to Andrews, 19 Sept. 1919, LAC, RG13, Accession 87–88/103: box 36, file 9-A‑1688, pocket 1. On Code provisions addressing private prosecutions, see Fred Kaufman,

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“Daniel de Leon Drew up the Diagram”  253 “The Role of the Private Prosecutor: A Critical Appraisal of the Complainant’s Position in Criminal Cases,” McGill Law Journal, 102 (1960): 102–14; and Peter Burns, “Private Prosecutions in Canada: The Law and a Proposal for Change,” McGill Law Journal, 21 (1975): 268–97.   93 The Citizens’ legal campaign shared some characteristics with British private prosecution societies, hundreds of which were created in the eighteenth and nineteenth centuries to prosecute alleged felons. The spread of policing (beginning with the Metropolitan Police Act of 1829) and a system of public prosecutions (the office of public prosecutor was established in 1879) gradually removed the need such private initiatives. See Douglas Hay, “Controlling the English Prosecutor,” Osgoode Hall Law Journal, 21, no. 2 (1983): 166–7; Adrian Shubert, “Private Initiative in Law Enforcement: Associations for the Prosecution of Felons,” in Victor Bailey, ed., Policing and Punishment in Nineteenth Century Britain (New Brunswick, N.J.: Rutgers University Press 1982). For American private initiatives (though less law-abiding), see Craig B. Little and Christopher P. Sheffield, “Frontiers and Criminal Justice: English Private Prosecution Societies and American Vigilantism in the Eighteenth and Nineteenth Centuries,” American Sociological Review, 48, no. 6 (1983): 796–808.   94 Revised Statutes of Manitoba, vol. I (Winnipeg 1892), s.5(g), c.38, An Act Respecting Crown Attorneys, 460.   95 Revised Statutes of Canada, 1927 (Ottawa, 1927), pt. XIX, c.146, An Act Respecting the Criminal Law, s.962, 970.   96 See Re McMicken, 3 W.W.R. 492, 20 C.C.C. 334, 8 D.L.R. 550, 22 Man. R. 693, 1912 Carswell Man 298 (Man. C.A. Dec 06, 1912).   97 Toronto Star, 11 June 1919.   98 Andrews to Meighen, 17 June 1919 (telegram), LAC, RG13, Accession 87– 88/103: box 36, file 9-A‑1688, pocket 2.   99 Meighen to Andrews, 27 June 1919 (telegram), LAC, RG13, Accession 87– 88/103: box 36, file 9-A‑1688, pocket 2. 100 Martin Burrell to Senator Robertson, 22 June 1919, “General Strike Winnipeg, 1919,” RG24, National Defence, Series C-1, reel C-5052, file 363–46–1. 101 “The Latest Desperate Trick of Tyrants,” Western Star, 24 June 1919, 1. 102 For the Information and Complaint against J.S Woodsworth, see R. v. J.S. Woodsworth, Archives of Manitoba, GR180, range 40, bay 6, shelf 6: 2170/3 (file 1). For the Information and Complaint against Fred Dixon, see R. v. F.J. Dixon, Archives of Manitoba, GR180, range 74, box 28, 2169/3. 103 See “James Street Court,” Manitoba Free Press, 26 April 1902, 2; “May Settle Sign Trouble,” Manitoba Free Press, 14 May 1913; “Sold Adulterated Milk,” Manitoba Free Press, 5 Feb. 1915, 14.

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254  r e i n h o l d k r a m e r and tom mitchell 104 Henderson’s Directory (Winnipeg: Henderson Directories 1916), 1241, http:// peel.library.ualberta.ca. 105 Henderson’s Directory (Winnipeg: Henderson Directories 1920), 1099, http:// peel.library.ualberta.ca. 106 The justice of the peace could bring the offender to trial either by a simple summons or by an arrest warrant. See William B. Common, “The Administration of Justice in Canada,” Journal of Criminal Law, Criminology, and Political Science, 43, no. 1 (1952): 6. 107 Western Star, Special Edition, 24 June 1919. The Toronto Star reported that the RNWMP issued the warrant for Woodsworth’s arrest. See “Trial of Strikers May Be Postponed,” Toronto Star, 25 June 1919. “Dixon under Arrest on Sedition Charge,” Manitoba Free Press, 28 June 1919, 1. The information against Dixon must have been composed later on the 23rd, since Dixon was with Woodsworth when Woodsworth encountered Andrews. Jack Walker reports that both Dixon and Woodsworth were granted bail at $1,500 on Saturday, 28 June. Walker, The Great Canadian Sedition Trials, 53. 108 Andrews to Meighen, 25 June 1919, LAC, RG13, Accession 87–88/103: box 36, file 9-A‑1688, pocket 2. 109 Andrews to Meighen (telegram), 3 July 1919, LAC, RG13, Accession 87– 88/103: box 36, file 9-A‑1688, pocket 2. 110 Andrews to Meighen (telegram), 4 July 1919, LAC, RG13, Accession 87– 88/103: box 36, file 9-A‑1688, pocket 2. 111 Andrews to Meighen (telegram), 12 July 1919, LAC, RG13, Accession 87– 88/103: box 36, file 9-A‑1688, pocket 2. 112 Meighen to Andrews (telegram), 17 July 1919, LAC, RG13, Accession 87– 88/103: box 36, file 9-A‑1688, pocket 2. 113 For the dates of these remands, see R. v. J.S. Woodsworth, Archives of Manitoba, GR180, range 40, bay 6, shelf 6: 2170/3 (file 1). 114 “Dixon, Woodsworth to Stand Their Trial,” Manitoba Free Press, 14 Aug. 1919. 115 Manitoba Free Press, 15 Aug. 1919. 116 In writing to Meighen, Andrews had threatened precisely this. If neither the province nor the federal government would prosecute, Andrews expected that “the Citizen’s [sic] Committee would instruct private counsel to carry on the prosecution.” Andrews to Meighen (telegram), 18 July 1919, LAC, RG13, Accession 87–88/103: box 36, file 9-A‑1688, pocket 2. 117 Unlike the strike leaders’ jury, there is no evidence that Dixon’s jury had been manipulated. A review of census and Henderson’s Directory records is inconclusive but suggests a mixed jury. Roy Erb, E.A. Baragar, and J. Attree appear to have been Eastern Judicial District residents living south or north

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“Daniel de Leon Drew up the Diagram”  255 of Winnipeg; A.E. Murray, Robert Dickson, J.A. Simpson, J.S. Mann, R.S. Mitchell, Alfred Wilson, and A.E. Thompson seem to have been Winnipeg residents. For the list of jurors, see “Dixon Trial Opens before Judge Galt,” Manitoba Free Press, 30 Jan. 1920, 1. 118 For an account of the trial, see Walker, The Great Canadian Sedition Trials, 149–69. 119 “Defence Committee,” Western Labor News, 26 July 1919, 1. 120 Meighen to Andrews (telegram), 21 July 1919, LAC, RG13, Accession 87– 88/103: box 36, file 9-A‑1688, pocket 2. 121 C. J. Doherty, minister of justice, to Col. E.J. Chambers, 19 July 1919 (telegram), LAC, RG13, Accession 87–88/103: box 36, file 9-A‑1688, pocket 1. For permission to proceed, see C.J. Doherty to Andrews, 26 July 1919, LAC, RG13, Accession 87–88/103: box 36, file 9-A‑1688, pocket 2. In early August, Doherty approved the prosecution of Jacob Miller and the publisher of Die Volksstimme. See Andrews to Doherty, 6 Aug. 1919 (wire), and C.J. Doherty to Andrews, 8 Aug. 1919, LAC, RG13, Accession 87–88/103: box 36, file 9-A‑1688, pocket 1. 122 See, for example, “Cost of Strike Trial,” Manitoba Free Press, 11 May 1920, 7. In 1922 E.J. McMurray (elected to Parliament in 1921) asked Liberal Justice Minister Sir Lomer Gouin for details about federal involvement in the Winnipeg prosecution. Gouin provided a partial accounting: Justice had paid $150,024.20 to prosecuting lawyers, and $12,332.09 had been paid to the McDonald Detective Agency. See Debates, 26 April 1922, 1182. 123 For failed attempts to gain access to these records, see Kramer and Mitchell, When the State Trembled, 4n.6. 124 Andrews to C.J. Doherty, 21 May 1920, LAC, RG13, Accession 87–88/103: box 36, file 9-A‑1688, pocket 1. 125 Angus L. McLean, comptroller, RNWMP, to W. Stuart Edwards, assistant deputy minister of justice, 9 Sept. 1919, LAC, RG13, Accession 87–88/103: box 36, file 9-A‑1688, pocket 1. 126 W. Stuart Edwards to the minister of justice re. Winnipeg Strike, 19 Sept. 1919, LAC, RG13, Accession 87–88/103: box 36, file 9-A‑1688, pocket 1. 127 Debates, 7 May 1919, 2173. 128 Order-in-Council, PC 2106, LAC, RG 2, Privy Council Office, vol. 1233, 10 Oct. 1919. 129 E.D. Sutherland, auditor general, to E.L. Newcombe, deputy minister of justice, 3 Feb. 1920, LAC, RG13, Accession 87–88/103: box 36, file 9-A‑1688, pocket 1. 130 “Major Sutherland Is New Auditor General,” Manitoba Free Press, 6 March 1919, 1.

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256  r e i n h o l d k r a m e r and tom mitchell 131 E.L. Newcombe to E.D. Sutherland, auditor general, 6 Feb. 1920, LAC, RG13, Accession 87–88/103: box 36, file 9-A‑1688, pocket 1. 132 After 1977, the auditor general’s role was expanded to include the broader mandate of how the government administered its business. See the archival description of the Office of the Auditor General fonds, R711-36-9-E (Series), LAC. Jonathan Swainger, The Canadian Department of Justice and the Completion of Confederation, 1867–1878 (Vancouver: UBC Press 2000), 131–2. 133 Andrews to C.J. Doherty, 6 Oct. 1919, and W. Stuart Edwards to Andrews, 20 Oct. 1919 (telegrams), LAC, RG13, Accession 87–88/103: box 36, file 9-A‑1688, pocket 1. 134 “Says $75,000 More Is Needed for Strike Leaders’ Defense,” Winnipeg Tribune, 20 Feb. 1920. 135 See handwritten summary of payments to Andrews et al. contained in Justice Department files, item 638 (three pages). LAC, RG13, Accession 87– 88/103: box 36, file 9-A‑1688, pocket 1. The 1919–20 costs appear in W. Stuart Edwards to Andrews, Andrews, Burbidge and Bastedo, 3 July 1920, LAC, RG13, Accession 87–88/103: box 36, file 9-A‑1688, pocket 1. Canada, Sessional Papers, 1920, vol. 4 (Ottawa, 1921), pt. 3, Sessional Paper No. 1, Auditor General’s Report, pt. ZZ, War Appropriation Act: Expenditures, Justice Department, ZZ13. The costs for R.B. Russell’s appeal to the Privy Council appear in Canada, Sessional Papers, 1922, vol. I (Ottawa, 1923), pt. 2, Sessional Paper No. 1, Auditor General’s Report, War Appropriation Act: Expenditures, Justice Department, L46. 136 The Criminal Code in 1919 stipulated that a defendant charged with a crime that carried a sentence of less than five years could peremptorily challenge up to four potential jurors without cause, or up to twelve potential jurors if the maximum sentence was more than five years. At the outset of the November trial, defence attorneys for the eight defendants multiplied the Code provision by eight, arguing for the right to thirty-two peremptory challenges. Because the indictment also carried one count of being a public nuisance and six counts of seditious conspiracy (with a fourteen-year maximum sentence), the defence asserted that each defendant could claim twelve peremptory challenges (collectively ninety-six). Andrews, on the other hand, argued that the defendants collectively should be given the same number of challenges that a single accused would be given: four. When Justice Metcalfe refused to rule on the matter until required to do so in the course of selecting jurors, Andrews announced that the crown would try R.B. Russell separately to avoid exhausting the jury pool. Later, Metcalfe ruled that Russell could claim only four peremptory challenges. When the issue arose again in January, during the trial of the seven remaining strike leaders, Metcalfe ruled

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“Daniel de Leon Drew up the Diagram”  257 that collectively they could exercise a maximum of twenty-eight peremptory challenges. For an account of these developments, see Walker, The Great Canadian Sedition Trials, 184–5. Revised Statutes of Canada, 1927 (Ottawa, 1927), vol. I, pt. XIX, c.36, An Act Respecting the Criminal Law, s.932(3), 964. E.P. Thompson, “Subduing the Jury,” London Review of Books, 8, no. 22 (18 Dec. 1986): 12. Winnipeg Tribune, 24 Nov. 1919. “Jury Is Selected to Try R.B. Russell,” Winnipeg Free Press, 28 Nov. 1919, 3. 137 Col. Starnes conveyed the RNWMP actions to the Commissioner Perry, complete with a copy of the questionnaire. If the use of the RNWMP was a routine procedure in such investigations, Starnes would not have needed to let Perry know. See Supt. C. Starnes to the commissioner of the RNWMP, 5 Nov. 1919, LAC, Records of the Royal Canadian Mounted Police, RG18, vol. 3314, file HV-1, vol. 6, “Winnipeg General Strike and Riot.” A bill from the McDonald Detective Agency submitted to the Justice Department by Andrews on 5 Jan. 1920 indicates that the agency was involved in this jury investigation. See Invoice, McDonald Detective Agency, 5 Jan. 1920, LAC, RG13, Accession 87–88/103: box 36, file 9-A‑1688, pocket 1. 138 Access to the jury list by anyone other than the officers of the court responsible for summoning a jury panel was strictly prohibited. Under art. 180 of the Criminal Code, anyone who influenced or attempted “to influence, by threats or bribes or other corrupt means, any juryman in his conduct, whether such person has been sworn as a juryman or not” was subject to a sentence of two years’ imprisonment. The act also prohibited wilful “attempts in any other way to obstruct, pervert or defeat the course of justice.” Revised Statutes of Canada, 1927, vol. I (Ottawa, 1927), s.180(b)(d), 720. The provincial Jury Act stipulated that “neither the jury panel nor the name of any person on such panel, shall be communicated, either verbally or otherwise, to any person whomsoever, until such panel is returned into court by the sheriff.” This provision could be set aside only “upon an order of the court or of a judge.” Statutes of Manitoba, Consolidated Amendments (Winnipeg, 1924), s.48, c.108, 798. 139 Walker, The Great Canadian Sedition Trials, 6–7. 140 Winnipeg Evening Telegram, 27 Nov. 1919. We are forced to rely often upon newspaper reports: only Andrews’s summation to the jury and Metcalfe’s charge to the jury remain extant. 141 On the power to reject jurors, see Thompson, “Subduing the Jury,” 12. Winnipeg Evening Telegram, 27 Nov. 1919. 142 Winnipeg Evening Tribune, 29 Nov. 1919. The term “state trial” has traditionally referred to proceedings undertaken by the crown in an era when criminal offences were privately prosecuted. For an account of the term’s

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258  r e i n h o l d k r a m e r and tom mitchell historical and more recent connotations, see Barry Wright, “Quiescent Leviathan? Citizenship and National Security Measures in Late Modernity,” Journal of Law and Society, 25, no. 2 (1998): 216–17. A contemporary use of the term would include “trials for offences that allegedly threatened the safety of the state and other legal responses to officially apprehended or professed threats to internal or external state security.” See F. Murray Greenwood and Barry Wright, “Introduction: Rebellion, Invasion, and the Crisis of the Colonial State in the Canadas, 1837–9,” CST2, 5. 143 Crown Counsel’s Address to the Jury (A.J. Andrews), 23 Dec. 1919, Archives of Manitoba, MG19, A14-2, no. 54 [hereafter Crown Counsel’s Address, Archives of Manitoba], 143. 144 Winnipeg Evening Telegram, 22 Dec. 1919. 145 Winnipeg Evening Tribune, 22 Dec. 1919. See also Winnipeg Evening Telegram, 22 Dec. 1919. 146 Crown Counsel’s Address, Archives of Manitoba, 8. 147 For a discussion of the law of sedition as it applied to the Russell case, see Kramer and Mitchell, When the State Trembled, 302–4. 148 Crown Counsel’s Address, Archives of Manitoba, 46. Blumenberg referred to his red tie during his address at the famous Walker Theatre meeting, 22 Dec. 1918. 149 Address to the Calgary Conference of Labour in late March 1919, reported in the Western Labor News, 4 April 1919, 3. 150 Crown Counsel’s Address, Archives of Manitoba, 45, 23, 26, 61. 151 Crown Counsel’s Address, Archives of Manitoba, 77. Based on “context and content,” Gerald Friesen concludes that the articles “Revolution,” “Industrial Ownership,” “The Way Out,” and “Reconstruction or Revolution” (Machinists’ Bulletin, No­vember and December 1918, March and April 1919) “were written by Russell, Johns, or their associates.” See Gerald Friesen, River Road: Essays on Manitoba and Prairie History (Winnipeg: University of Manitoba Press 1996), 145n.14. 152 Crown Counsel’s Address, Archives of Manitoba, 102. 153 Ibid., 104. 154 Ibid., 50, 72, 78, 5. 155 Justice Metcalfe’s Charge to the Jury, Archives of Manitoba, The King vs. William Ivens et al., P-5613, f-8, 23 Dec. 1919, 43–6. In March 1920, during his summation to the jury at the trial of Ivens et al., Metcalfe took a similar tack: the province had a duty to prosecute offenders, but during times of great trouble the Dominion government could use military force to halt the disturbance and apprehend the guilty. See “Jury May Return Verdict This Morning,” Manitoba Free Press, 27 March 1920, 8.

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“Daniel de Leon Drew up the Diagram”  259 156 Crown Counsel’s Address, Archives of Manitoba, 143. 157 LAC, Records of the Royal Canadian Mounted Police, RG18, vol. 3314, file HV-1, vol. 6, “Winnipeg General Strike and Riot,” RCMP Report, 7 April 1920. 158 “Two Years In Jail Is the Term Given Russell,” Manitoba Free Press, 29 Dec. 1919, 8. 159 Andrews to Doherty, 25 Dec. 1919, LAC, RG13, Accession 87–88/103: box 36, file 9-A‑1688, pocket 1. 160 Winnipeg Free Press, 29 Jan. 1920. In the course of selecting the jury, 110 jurymen were called and considered. Of these, 17 were peremptorily challenged by the defence; 41 were stood aside on grounds admitted by both the defence and crown; 7 were found unfit; and 1 was ruled unfit by the judge. On the Macdonald Detective Agency, see bill for service, 5 Jan. 1920, LAC, RG13, Accession 87–88/103: box 36, file 9-A‑1688, pocket 2. The jury was composed of D. Bruce (Carman); G.C. Glenny (St Marks); A.H. Quick (Emerson); George Morrison, J.M. Henderson, John Stephens (Hazelridge); James Jack, James Kirkpatrick (Ridgeville); A. Davidson (Sperling); Herman Johnson (Lundar); Thomas Spence (Greenridge); and Alex Sinclair (Tyndall). Winnipeg Free Press, 25 Jan. 1920. 161 Robert Andrew Bonnar was born in York County, Ontario, on 10 May 1860. He came west in 1882, took a homestead near Moosomin, and began the study of the law during his spare time. He left farming, settled in Winnipeg, and articled with the law firm of Hagel, Davis and Gilmour prior to his call to the Manitoba bar in 1889. Bonnar rose quickly in the profession: he was made a KC in 1915. He was a Conservative in politics and a member of the Carlton Club and the St Andrews Society. He had been the first choice of the Defence Committee to defend the strike leaders but had declined. Approached a second time, he agreed to serve as counsel for Roger Bray. Winnipeg Free Press, 15 Aug. 1932. On his role in the trial of the strike leaders see Walker, The Great Canadian Sedition Trials, 170–1. 162 “Climax Reached on Monday in Great Fight over Trial Jury,” Western Labor News, 30 Jan. 1920, 1. 163 Alexander Casimir Galt was born in Toronto, Ontario, on 15 March 1853, son of Sir Thomas Galt (a father of Confederation). He was a graduate of Osgoode Hall and the University of Toronto. Galt was called to the Ontario bar in 1876. He practised in Toronto from 1876 to 1896 and Rossland, B.C., from 1897 to 1906, and came to Manitoba in 1906 as a member of Tupper, Galt, Tupper, Minty and MacTavish. Appointed KC in 1909, he was elevated to the Court of King’s Bench in 1912. See “Mr. Justice A.C. Galt, Veteran Jurist, Dies after Long Illness,” Winnipeg Free Press, 30 July 1936, 1.

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260  r e i n h o l d k r a m e r and tom mitchell 164 Walker, The Great Canadian Sedition Trials, 176. For Deputy Sheriff Pyniger’s testimony, see Winnipeg Telegram, 26 Jan. 1920. For McMurray, see Masters, Winnipeg General Strike, 121. 165 Walker, The Great Canadian Sedition Trials, 176–7. “Climax Reached on Monday in Great Fight over Trial Jury,” Western Labor News, 30 Jan. 1920, 1. 166 “Final Defence Plea Made by Mr. Bonnar,” Manitoba Free Press, 26 March 1920, 1. 167 “Attempts to Block Trial Is Failure,” Montreal Star, 22 Jan. 1920. Bonnar represented R.E. Bray. See “Challenge Whole of All Jury Panel [sic],” Montreal Star, 23 Jan. 1920. 168 Edward James McMurray was born in Thorndale, Ontario, in 1878. He came west on a harvest excursion. After attending normal school in Regina, he taught in the NWT. In 1900 he settled in Winnipeg, where he entered Manitoba College and completed a BA. In 1903 he articled as a law student with Pitblado and Campbell. He was called to the Manitoba bar in 1906. McMurray became one of Winnipeg’s pre-eminent criminal lawyers. Roy St George Stubbs, Prairie Portraits (Toronto: McClelland and Stewart 1954), 143–76. 169 “Intricate Legal Argument Continues,” Winnipeg Tribune, 23 Jan. 1920. 170 For the exchange, see Journals of the Legislative Assembly of Manitoba (Winnipeg, 1920), 69–70. 171 “Jury May Return Verdict This Morning,” Manitoba Free Press, 27 March 1920, 10. 172 “One Year in Jail Is Strikers Term,” Manitoba Free Press, 7 April 1920, 1. 173 LAC, Records of the Royal Canadian Mounted Police, RG18, vol. 3314, file HV-1, vol. 6, “Winnipeg General Strike and Riot,” RCMP Report, 7 April 1920. 174 Russell appealed to the Manitoba Court of Appeal (R v. Russell [1920], 51 D.L.R. 1), which unanimously dismissed the appeal, the judges simply finding that his actions amounted to seditious conspiracy without attempting to define the offence. Because the verdict of the Court of Appeal was unanimous, Russell could appeal only to the Judicial Committee of the Privy Council. In July 1920 the JCPC declined to consider the case. See “Russell Hearing at Privy Council Fixed,” Winnipeg Free Press, 9 July 1920, 7, and “Canada and the Privy Council,” Winnipeg Free Press, 23 July 1920. On the Citizens’ role in these matters, see Kramer and Mitchell, When the State Trembled, 401–2n.58.

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7 The Devil’s Drum: Seditious Libel in Industrial Cape Breton, 1923 D AV I D F R A N K

“The judge’s words May pound my ears Like a devil dancing On a drum; But better that Than woman’s tears For children starved, And I stay dumb!”1

The lines are those of the radical labour poet Joe Wallace. They were written in late 1923 after he visited the union leader James Bryson McLachlan, who was in jail in Halifax, Nova Scotia, awaiting an appeal on his conviction for seditious libel. More recently, the words have been set to music and are included on a recording of Cape Breton labour songs released in 2011, the latest indication that the case of The King vs. McLachlan has found a place in public memory. The story can even be read in brief at one of the main intersections in Glace Bay, where a monument to McLachlan, installed there in 1992, includes the text of a contemporary verse about the trial by the local worker-poet Dawn Fraser: “Away, false teachings of my youth / It’s now a crime to speak the truth.”2 While the story of the arrest, trial, and conviction of McLachlan has become a part of local workingclass culture, historical researchers have also continued to examine the case. Most notably, Barry Cahill has pointed out instructive parallels with

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the seditious-libel cases of Joseph Howe (1835) and Fred Dixon (1920), while also noting the very different outcome in the McLachlan case. Similarly, Philip Girard has summarized the biases and inconsistencies in the conduct of the trial and has endorsed the conclusion that McLachlan’s conviction was a “gross miscarriage of justice.”3 Any historical account of the McLachlan case faces the challenge of understanding how the protagonists understood the relevant law and what issues were at stake in the surrounding social context of their time and place. Despite the implicit gravity of the charge of sedition, the offence was loosely defined in Canadian law. As Barry Wright and Desmond Brown have pointed out, the failure to incorporate a definition of the offence into the 1892 Criminal Code revisions was an “ominous portent” for the future application of the law in Canada.4 In the context of an evolving industrial-relations system governed by what Judy Fudge and Eric Tucker have described as a contemporary code of “industrial voluntarism,” the prevailing legal regime acknowledged the legitimacy of trade unionism but provided little practical support for workers seeking to organize unions, achieve recognition, or secure collective-bargaining agreements. Instead, employers were able to rely on the stagnant condition of labour law, and often the active collaboration of the state, to reject demands for union recognition. In situations where other sanctions failed to stop the spread of undesirable ideas or the influence of radical labour leaders, recourse to sedition charges was one of the available options.5 In exploring this theme, we may also benefit from applying the concept of “liberal order” as developed in the Canadian context by Ian McKay. As an exercise in metahistory, McKay’s discussion of the “long liberal revolution” since the 1840s highlights the persistence within the Canadian democratic tradition of assumptions and values associated with liberalism, including equality before the law, freedom of expression, and the defence of property rights. His framework, however, places them in a distinct order of priorities: property first, freedom second, and equality last. Moreover, he proposes that the consolidation of this hegemonic paradigm is an overarching theme in Canadian history, initially through a process of active transformation in the nineteenth century and subsequently through the selective concessions of a “passive revolution” in the twentieth century. When applied to labour history in particular, this schema confirms the individual right to union membership as specified in the Trade Union Act (1872) but reminds us that collective rights, including those providing for the adjustment of social and economic power in the interests of social justice, to paraphrase the famous pronouncement of Justice Ivan Rand in 1946, have been more difficult to achieve.6

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The McLachlan trial took place in the Supreme Court of Nova Scotia in Halifax over the course of several days in October 1923. The charges consisted of three counts of seditious libel under section 132 of the Criminal Code, each punishable by up to twenty years’ imprisonment. The alleged offence arose from the publication of a circular letter directed to local officers of the coal miners’ union in Nova Scotia. It is notable too that the potential penalty had only recently been raised from two years in amendments made at the time of the Winnipeg General Strike.7 The proceedings involved several prominent public figures. Appearing for the crown was a member of the provincial Liberal government, Attorney General Walter J. O’Hearn. In his address to the jury he declared the case to be “the most important that had come before the courts of Nova Scotia in recent years”; the identity of the prisoner, he said, was less important than “the principle involved, the principle as to whether or not the doctrines of Soviet Russia should flourish in Nova Scotia.” Appearing for the defence was Colonel Gordon S. Harrington, a former mayor of Glace Bay and a leading figure in the provincial Conservative Party who later became premier (1930–3). He told the jury that, in the alleged seditious remarks, the accused was “only voicing the opinions of the thousands he represented among the miners of Cape Breton”; moreover, if the prisoner was “red,” then so too were those who elected him regularly to union office. On this basis, he concluded, McLachlan deserved the same result as the celebrated hero of Nova Scotia liberalism, Joseph Howe, who was tried in the same city on similar charges almost a century earlier.8 The origins of the case were closely bound up with the events of the early 1920s in industrial Cape Breton. It was a period of extended labour unrest focused primarily on conflict in the coal industry between the miners’ union and the British Empire Steel Corporation (Besco), a large holding company created by a merger of the province’s major coal and steel companies, completed in 1921. The unrealistic financial expectations of the promoters as well as the deepening post-war crisis of markets for the region’s coal and steel industries doomed Besco to a short and troubled history that included a campaign to reduce its wage bill and suppress local unions. Moreover, in pursuing this strategy of corporate survival, the corporation faced a militant local labour movement that had gathered considerable strength at the end of the Great War.9 At the time of his arrest in July 1923, James Bryson McLachlan was secretary-treasurer of District 26, United Mine Workers of America (UMWA), a position to which he was first elected when the district was founded in 1909. A veteran of the Scottish coalfields who migrated to Nova Scotia in 1902, McLachlan was steeped in old Calvinist traditions as well as the

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more recent politics of radical social reform. When he ran as a Socialist Party of Canada candidate in the 1916 provincial election, his publicity announced that it was the party’s mission “to redeem the world from the chaos of capitalism.” As an agent of more immediate social change, McLachlan had already succeeded in gaining recognition for the UMWA in Nova Scotia in 1919. In the subsequent labour wars of the early 1920s, when the coal miners resisted wage reductions and challenged managerial and corporate authority, McLachlan embodied the spirit of militant trade unionism in the province. One recent popular history tracing the influence of Scottish-born labour leaders within the larger overseas diaspora has summed up McLachlan as a carrier of ideals rooted in a moral critique of capitalism and a practical experience in labour and socialist politics, both supported by a forceful commitment to his mission: “When he believed in a cause, no level of harassment could break him.”10 During 1922, the year of the first great confrontation between the Nova Scotia coal miners and Besco, McLachlan remained the coal miners’ most popular leader. As a labour candidate in the December 1921 federal election, he led the polls in the mining districts of Cape Breton South and Richmond as well as in the steel town of Sydney, though he was ultimately defeated by adverse votes in other parts of the constituency. Under McLachlan’s leadership, the coal miners fought a protracted battle against wage reductions, employing tactics such as a slowdown strike during the winter months before engaging in a full-dress strike in August. During this time, delegates to the annual convention adopted spirited declarations denouncing the capitalist system: “We proclaim openly to all the world that we are out for the complete overthrow of the capitalist system and capitalist state, peaceably if we may, forcibly if we must.” More moderate union officers were defeated, but McLachlan was re-elected by a two-to-one majority. A representative of the Workers’ Party of Canada, as the Communist Party of Canada was known until 1924, was present at the 1922 convention, and speakers such as “Red” Malcolm Bruce and “Moscow” Jack MacDonald made speaking tours of the coalfields. It was no secret that McLachlan had joined the Workers’ Party that year, and by the time the union leaders led a parade through the streets of Glace Bay on May Day in 1923, there were ample anxieties about the spread of radical influences in industrial Cape Breton.11 Those concerned included the international officers of the UMWA, who objected to the district’s plan to affiliate to the Red International of Labour Unions. That was mainly a symbolic gesture, and the union leaders in practice pursued a cautious policy, requesting a ruling on the matter

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from President John L. Lewis. When the UMWA issued a report alleging that the Red International was “an outgrowth of the One Big Union” and ordering District 26 to withdraw its application, the district complied. This retreat failed to satisfy the international union, which continued to cast doubts on the legitimacy of the policies pursued by District 26. When a committee of investigation visited, they reported not only “a splendid feeling of loyalty to the United Mine Workers” but also “ample evidence of the machinations of the red outfit of Moscow.”12 The struggle for union recognition at the large steel plant in Sydney, operated by the same corporation as the collieries in the surrounding industrial district, proved to be the most explosive development of 1923. The steelworkers had repeatedly failed to win recognition of their unions, but by the fall of 1922 a new organizing campaign was under way on behalf of the Amalgamated Association of Iron, Steel and Tin Workers of America. In December 1922 the steelworkers voted to reject a company proposal for a plant council, and in February a walkout closed the plant for five days. However, neither show of strength was sufficient to win recognition. For their part, the coal miners’ leaders saw the fight as an opportunity to take joint action against a common employer. When an official from the federal Department of Labour visited in March 1923, he was intrigued to find that the steelworkers’ leaders at their meeting were accompanied by the miners’ officers; indeed, he reported, they appeared to have formed “something like a local One Big Union” through which the coal miners planned to strike in support of the steelworkers if necessary.13 Meanwhile, worried by the progress of labour organization at the steel plant and by the presence of radical influences in the unions, Besco President Roy Wolvin sounded the alarm at a meeting of the Sydney Board of Trade, urging members to “drive the radicals out of Cape Breton,” and the board subsequently passed a resolution denouncing “Cape Breton Bolshevism.”14 The Liberal provincial government of E.H. Armstrong soon adopted strong measures. At the time of the miners’ strike in 1922, the cabinet had authorized the creation of a special provincial police force. Although the force was not used at the time, the provincial police were mobilized in March 1923 and stationed in Sydney in expectation of a confrontation at the steel plant. These actions won the premier a number of congratulations, including an encouraging message from his predecessor, George H. Murray, who was also prone to attribute industrial difficulties to radical influences: “I am glad to see you are taking no nonsense from the ‘reds.’ That is the proper attitude, even if a political issue were created.”15 The steel strike did not materialize as expected, but before their departure

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from Sydney in May, “Armstrong’s Army” embarked on a series of raids in quest of what was described as “literature of a seditious nature.” Riding into Glace Bay on the evening of 14 May, the provincial police conducted a search of union offices and seized a red flag used in the May Day parade two weeks earlier. Returning the following night, the police also searched the homes of several union leaders. At McLachlan’s house they retrieved a copy of the constitution of the Red International. This reading matter was forwarded to Nova Scotia Attorney General O’Hearn, who by this stage was reviewing relevant statutes and precedents related to the Winnipeg General Strike: “Book found possession McLachlan filled with sedition,” he telegraphed Premier Armstrong. “Will peruse 1919 amendment and King vs. Russell in Ottawa before advising you.”16 The opportunity to proceed came at the end of June 1923. When the corporation once more rejected the union’s demand for recognition, the steelworkers launched a strike and began to shut down the plant. There were tumultuous scenes at the gates as pickets blocked access to the plant. At night masked men forcibly removed maintenance workers from the boilerhouses and coke ovens. On the requisition of Cape Breton County Court Judge Duncan Finlayson (neither federal nor provincial approval was required at this time; the amendments to the Militia Act that restricted the power of local magistrates were enacted the following year), military aid to the civil power was invoked, as the same magistrate had also done at the company’s request in 1909 and 1922, “in anticipation of disorders that might arise.” The first soldiers arrived from Halifax to camp out at the steel plant on 30 June; the total force in place ultimately reached 1,150 men. Meanwhile, a reassembled provincial police force arrived, and their actions raised tensions to a new level. On the evening of 1 July, a squad of sixteen mounted provincial police charged into the pickets at the plant gates and ran riot in the nearby streets, swinging their clubs and driving the crowd before them into an underpass and up the roadway into the residential area of Whitney Pier. According to the RCMP summary of the event, perhaps as neutral a source as may be available, “the Provincial Police charged the crowd through the subway and Victoria Road, with the result that quite a number of strikers and other people were injured.”17 This event provided the coal miners with all the reason they needed to come to the aid of the steelworkers. As news of the outrage spread to the surrounding district, the coal miners held protest meetings to announce support for their fellow workers and to demand the withdrawal of troops and police. There was a twenty-four-hour delay while the union officers presented their demands to company officials, and then the sympathetic

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strike was under way. Throughout the Sydney coalfield, work stopped at midnight on 3 July. The following morning McLachlan composed the fateful document that was to be the central piece of evidence in his prosecution. It was a circular letter to the local unions within District 26 of the UMWA: To officers and members of Local Unions: Brothers: This office has been informed that all the Waterford, Sydney Mines and Glace Bay sub-districts are out on strike this morning as a protest against the importation of Provincial Police and Federal troops into Sydney to intimidate the steel workers into continuing work at 32¢ per hour. On Sunday night last these Provincial Police in the most brutal manner rode down the people at Whitney Pier who were on the street, most of whom were coming from Church. Neither age, sex nor physical disabilities were proof against these brutes. One old woman over seventy years of age was beaten into insensibility and may die. A boy nine years old was trampled under the horses’ feet and his breastbone crushed in. One woman was beaten over the head with a police club and gave premature birth to a child. The child is dead and the woman’s life is despaired of. Men and women were beaten up inside their own homes. Against the brutes the miners are on strike. The Government of Nova Scotia is the guilty and responsible party for this crime. No miner or mine worker can remain at work while this Government turns Sydney into a jungle; to do so is to sink your manhood and allow Armstrong and his miserable bunch of grafting politicians to trample your last shred of freedom on the sand. Call a meeting of your Local at once and decide to spread the fight against Armstrong to every mine in Nova Scotia. Act at once. Tomorrow may be too late.18

The letter from the secretary-treasurer to the union locals was both an explanation for the eruption of the sympathetic strike and a call for support from coal miners in other parts of the province. As usual with district correspondence, a stencil was prepared and copies of the letter, over McLachlan’s signature, were placed in the mail. Another copy, addressed to Besco Vice-President D.H. McDougall, the senior official resident in Cape Breton, was taken by District 26 President Dan Livingstone and hand-delivered to the offices of the Dominion Coal Company in Glace Bay.19 Two days later, on 6 July, McLachlan, as well as President Livingstone, were arrested. Sydney police chief J.B. McCormick received a telegram from Attorney-General O’Hearn informing him that warrants had been issued in Halifax for the arrest of the two union officers. The charges were described as “unlawfully publishing false tales whereby injury or mischief was likely to be occasioned to a public interest, namely the government

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and provincial police of Nova Scotia, contrary to Sec. 136 of the code.” “Publishing false news” carried a penalty of up to one year’s imprisonment and was certainly a lesser offence than “seditious libel” (section 132), for which the penalty had been raised to a maximum twenty years. In the case of “publishing false news,” the prima facie burden of proof was presumably also less demanding; nonetheless, it did require evidence of “publication,” a condition apparently satisfied by the appearance of the text of the union communication in a Halifax newspaper report. Following O’Hearn’s instructions and accompanied by a carload of provincial police, Chief McCormick and his deputy drove to Glace Bay and found the two men at the union offices. Then he delivered them to Halifax – a three-hundred-mile journey by car, ferry, and train – where they were lodged in the county jail. The arrests thus had the effect of removing the principal union leaders from Cape Breton at the height of the industrial crisis.20 The first round in the courts was a battle over the question of bail. When they appeared on 8 July for a hearing before the Halifax stipendiary magistrate M.B. Archibald, who had issued the warrants, the crown immediately asked for an adjournment to 12 July. On behalf of the prisoners, John A. Walker, a young lawyer and associate of Harrington, opposed the adjournment while also registering his objection that the Halifax magistrate had no jurisdiction in this case. On the matter of bail, the crown argued that the prisoners were men of considerable public influence and “opposed allowing these men to be at large at the present time to go back to Cape Breton and continue to do acts to the injury of the public.” Walker noted that the offence of publishing false news was a relatively minor one and that bail should be granted as a matter of course; he also argued that the weight of evidence against the accused should be taken into account: while the warrant stated the offence was committed in Halifax, it was a matter of common knowledge that the accused were both three hundred miles distant from the scene of the alleged crime. Although bail was denied and the prisoners were remanded to the Halifax County Jail, Walker persisted. After applying for a writ of habeas corpus he placed the argument before Supreme Court Justice J.A. Chisholm. It is notable that Chisholm was one of the few justices without previous links to the coal companies; moreover, he knew McLachlan personally since they had served on a royal commission together in 1917. Chisholm was also known for having an interest in legal history; he had published a volume of Joseph Howe’s speeches and letters and would later write on the Howe trial. Although O’Hearn appeared in person to oppose the petition, Justice Chisholm al-

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lowed bail and the men were released on 13 July. Even then the attorney general insisted on a further hearing on 24 July by a panel of Supreme Court justices, who considered it prudent to endorse Chisholm’s decision, perhaps partly because by this time the critical phase of the strike situation had passed. The preliminary hearing did not resume until 2 August.21 Largely removed from the centre of strike activity, the accused union officers were released from jail in time to participate in an extraordinary episode that came close to changing the outcome of the 1923 strike. As the events of the strike were unfolding, the governor general, Lord Byng of Vimy, was making his way by train on an extended tour of the Maritimes that was timed to coincide with the 150th anniversary of the landing of the Scottish immigrant ship Hector at Pictou. Prime Minister William Lyon Mackenzie King was sufficiently embarrassed by the presence of federal troops and the turbulent labour scene to cancel his own plans to participate in the celebrations. Once in Nova Scotia, the governor general soon became embroiled in the industrial dispute. Together with Mayor Dan Willie Morrison of Glace Bay, who was also a labour member of the provincial legislature, Livingstone and McLachlan requested an interview with Byng. After consulting the cabinet member in attendance, Pictou MP and Minister of National Defence E.M. Macdonald, Byng decided to ignore his advice and receive the union officers in his private railway car. The interview took place on 17 July, and at the end the four men shook hands. The outcome of the discussion was later a matter of dispute. Mayor Morrison claimed that an agreement was reached that the armed forces would be withdrawn within twenty-four hours of the miners’ return to work and that a royal commission would be appointed to investigate the steelworkers’ grievances. Macdonald (who was not present at the interview) insisted that the governor general had only clarified the union’s position and had no authority to conclude an agreement. Although a minor constitutional crisis may have been in the making – three years prior to the more famous Byng-King Crisis of 1926 – it appears that the prime minister was actually prepared to overlook the ambiguities of the situation. King telegraphed Macdonald that he was prepared to offer the appointment of a royal commission in exchange for a return to work. He subsequently added that, if the strike could be ended on such terms, “no time should be lost in agreeing to them.”22 Before any action could be taken, the delicate situation was upset by other developments. Like O’Hearn, UMWA President John L. Lewis had also been waiting to take action against the leadership in District 26. Before the strike, he had already ordered that new elections be held in the

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district, a ruling that did not greatly alarm the local leaders, since elections were already scheduled for August. Responding to an appeal from Besco officials at the outbreak of the strike, Lewis issued a warning that sympathetic strikes were a violation of contractual agreements and against union policy. After some delay, Vice-President Alex S. McIntyre replied on behalf of the executive, stating that “our international must understand that its jurisdiction does not give it authority to prohibit workers in Canada waging a political struggle against use of armed forces which are being used to smash our labour movement.” Lewis rejected that assertion, and on the evening of 17 July he released a long telegram suspending the district’s autonomy, a practice he had already started to use with some frequency in disciplining dissidents in other parts of the international union. The executive officers were ordered removed from office and the members instructed to return to work. Silby Barrett, the former international board member who had been defeated in the 1922 elections, was appointed provisional president. Lewis’s widely distributed letter to Livingstone charged the leaders of District 26 with crimes against the state: “No doubt the present strike in Nova Scotia corresponds to your idea of a revolution against the British government and is in pursuance thereof … You may as well know now as at any time in the future that the United Mine Workers is not a political institution and cannot be used to promote the fallacious whims of any political fanatic who seeks to strike down the established institutions of his government.” Although the arrest of the union leaders by provincial authorities had in itself failed to break the sympathetic strike, Lewis’s intervention was a decisive blow. The coal miners gradually returned to work during the remainder of the month, and the steel strike itself ended in defeat.23 Meanwhile, the legal charges against McLachlan and Livingstone were making their way through the courts. The preliminary hearing considered not only the individual charges of “spreading false news” against each of the two union leaders on which they had been arrested, but also an additional joint charge of “conspiring to produce a seditious libel,” the latter being a substantially more serious offence, for which an information was sworn by a Halifax detective before Stipendiary Magistrate Archibald on 9 July. The preliminary hearing itself did not resume until August and extended over several days. On 20 August the defendants were committed for trial at the fall criminal term of the Supreme Court of Nova Scotia in Halifax. Walker continued to register objections to the court’s jurisdiction and in September moved to have the trial venue changed to Sydney, where the

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court would also be sitting that fall to consider criminal cases, including charges against several men who were arrested in the disturbances at the steel plant at the end of June. The crown and the defence were both well aware that a change in venue in this kind of political trial would affect the selection of a jury and the prospects of success for either the prosecution or the defence. Walker argued that a trial in Halifax imposed heavy expenses on the defendants and that it was proper for the trial to be conducted in the locality where the alleged offence was committed. O’Hearn appeared in court to oppose this motion, stating that Halifax was the appropriate venue since the charges were based on the publication of McLachlan’s letter in the Halifax Morning Chronicle. Moreover, O’Hearn argued that grand juries in Sydney had recently brought in at least eighteen “no bills” in looting and assault cases arising from the industrial conflict.24 He might also have noted that his own attempt to try Malcolm Bruce for making seditious utterances at a public meeting in Glace Bay in May had failed when the charges were dismissed by a local magistrate in June.25 O’Hearn prevailed, and the request for a change of venue was denied. On 2 October a grand jury returned true bills in the charges against the two men.26 At this time, the crown decided to proceed separately against McLachlan, a strategy that focused full attention on the man whose name was synonymous with the cause of labour radicalism in Nova Scotia. Although arrested, arraigned, and charged at the same time as McLachlan, Livingstone was (like J.S. Woodsworth in Winnipeg) never brought to trial. In separating the McLachlan trial (and distinguishing his case from the range of lesser charges against individual workers to be heard in Sydney), the case focused on the province’s most vocal advocate of labour radicalism, which enhanced its significance as a political trial.27 Moreover, the indictment presented in court in October did not specify the original arrest charge of “publishing false news” as defined in section 136 of the Criminal Code but was based on the additional charge presented at the preliminary hearing, regarding “a seditious libel concerning His Majesty’s Government of and for the Province of Nova Scotia and the Provincial Police established under the laws of the Province,” under section 132. The indictment then cited the text of McLachlan’s circular letter of 6 July and stated that the offence had been committed on three separate occasions in Glace Bay, in Halifax, and in Thorburn, a mining town in Pictou County.28 As noted earlier, the shift in the charges made the offence a more serious one. Convictions under section 136 were punishable by a term of one year’s imprisonment, whereas each charge of seditious libel under section 132 was punishable by up to twenty years’ imprisonment, a penalty that

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had been increased from two years under the Criminal Code amendments of July 1919.29 Moreover, under the seditious-libel charge, attention was directed less to the veracity of McLachlan’s claims than to his political intent, an interpretation underlined by O’Hearn in his opening remarks at the trial on 15 October on the malleable nature of the sedition offence: “The issue is not whether the statement published is false or true. There are many things which are true but cannot be published. It is not the question of the truth of the statement, but a question of whether it was said with the intention of creating dissatisfaction and disturbance.”30 In the course of the trial, it also became clear that the presiding judge, Justice Humphrey R. Mellish, who had already ruled against a change of venue, would have a significant influence on the proceedings. Mellish had been involved in at least two previous legal battles with McLachlan. The best known was McLachlan’s attempt to have company officials and one mines inspector tried on manslaughter charges following a disastrous explosion that killed sixty-five men and boys in the Dominion No. 12 mine at New Waterford in 1917. As a solicitor for Dominion Coal, Mellish had helped prepare the defence, and after he was named to the bench the following year, he ruled at trial that there was not enough evidence to send the case to the jury. More recently, in January 1922, Mellish had written a decision that supported the unilateral wage reductions announced by Dominion Coal. At stake was the question of whether wage reductions constituted an “intended change” in “conditions of employment” under the Industrial Disputes Investigation Act (IDIA) and, if so, whether the company was obliged by the law to engage in the conciliation procedures provided for under the act. Initially, McLachlan had secured an injunction, from Nova Scotia Supreme Court Justice Benjamin Russell, prohibiting action until a conciliation board had reported; this was overturned by a panel of three judges, with Mellish writing the decision. The federal minister of labour, James Murdock, had earlier pleaded with Besco President Roy Wolvin to show “reasonable adherence to obvious spirit and letter of statute,” and the ruling was a setback for those who hoped that the IDIA, which dated from Prime Minister King’s time as deputy minister of labour, would produce an orderly labour-relations regime in sectors such as the coal industry. For McLachlan, it was more confirmation that the courts were heavily biased against the interests of workers. “What a funny, funny thing the law is,” wrote McLachlan at the time. “What right had working men to gain any advantage by playing the game according to the rules set down by the flunkies of capitalism? The rules are not made for the benefit of the workers, but for the advantage and benefit of the owners of this country.”31

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Mellish’s first rulings in the case certainly did not favour the defence. When the crown began to present evidence regarding the situation at the steel plant at the end of June, Harrington objected on the grounds that, if the truth of McLachlan’s letter was not an acceptable defence, as O’Hearn had argued, then evidence about those events should not be allowed. O’Hearn replied that the purpose was to show “general industrial disorder in Cape Breton,” since “seditious intention shall be judged from the times in which the thing was done.” Judge Mellish ruled in support of O’Hearn. Harrington then objected that some thirty witnesses would be required to present the defence’s view of the events and that they could not bear the costs of bringing witnesses from Cape Breton for this purpose. Judge Mellish in response noted simply, “You are objecting to the evidence on the ground that you have not witnesses to meet it; I rule that is a bad ground; that is the short end to that.” At the end of the trial Harrington placed a formal motion for a change of venue, on the grounds that “there is no possibility of the defendant getting witnesses here.”32 As the crown proceeded with their case, several witnesses described the disorderly scenes at the plant gates at the beginning of the steel strike. Captain D.A. Noble, head of the Besco police force, stated that rioting went on continuously from the start of the strike on Thursday 28 June until Sunday night 1 July. Colonel Eric McDonald, commissioner of the provincial police, testified that “the crowd outside the gate seemed to have control of all that part of the town, and the local police or steel company’s police were not able to appear on the street.” Witnesses went on to describe the efforts of the provincial police to, in McDonald’s words, “send the crowd home.” Sydney police chief McCormick reported there was “practically no trouble” at the plant gates afterwards. As mining engineer Walter Hurd explained, the issue was not simply a matter of law and order in the streets; the company needed to control access to the plant in order to prevent damage to company property, especially the coke ovens that were left unattended as a result of the strike.33 Beyond this, the balance of the prosecution’s case focused on McLachlan’s opinions and actions. The book taken from his house in May was entered as an exhibit, as was a copy of the published minutes of the 1922 district convention, with excerpts from radical resolutions read into the record. By calling the union’s office secretary, the prosecution established that McLachlan was indeed the author of the circular letter of 4 July. Two union members from Pictou County were called to testify to the receipt of the letter by union locals in that district. And the news editor of the Morning Chronicle testified that he had published the document – under

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a cautionary headline reading, “Miners Are Duped by the Circulation of False Statements” – in the 6 July edition of the Halifax newspaper.34 Although no witnesses were called for the defence, Harrington and Walker were able to draw out some evidence beneficial to the defence during the cross-examination of crown witnesses. It was established that McLachlan was not personally present at the disturbances in Sydney, but that there was “quite a bit of talk” about the actions of the provincial police and that the Sydney police commission had later held hearings on the conduct of the police force. Harrington was thus able to demonstrate that McLachlan’s account was not without foundation; indeed, he was able to introduce into the proceedings the name and address of the pregnant woman assailed by the provincial police in one of the incidents alluded to in McLachlan’s letter. Harrington also elicited evidence that conditions at the steel-plant gates seemed relatively peaceful for most of the day on Sunday 1 July, and he alleged that the provincial police were determined to, in words he attributed to Colonel McDonald, “put on a show about eight that night at No. 4 gate.” He implied also that the police might well have “passed the rum jar copiously around” before taking to the street.35 In retrospect, the most significant testimony was presented in the course of Walker’s cross-examination of the Canadian Press reporter Andrew Merkel. This witness, an independent-minded reporter based in Halifax, explained the very indirect route by which McLachlan’s letter had reached Halifax and appeared in the press there, thus providing the original basis for his arrest on charges of “publishing false news.” Arriving in Sydney on 4 July, Merkel went to the offices of the Sydney Record, where F.W. Gray, the assistant to Besco Vice-President D.H. McDougall, handed him a typewritten copy of McLachlan’s letter, which had apparently been prepared from the copy delivered to company offices earlier in the day. This was the first time Merkel had seen the document, and, he recalled, “Mr. Gray suggested I put it on the wire and distribute it.” After speaking with McLachlan to confirm the authenticity of the letter, Merkel then filed his report, and the document appeared the following day in the Morning Chronicle and other newspapers. When O’Hearn cross-examined him, Merkel firmly maintained that the document was not published in the press until after it was released to him by the company. Harrington later emphasized the significance of this evidence in his address to the jury: “If McLachlan is guilty for sending this letter to the locals of his union, why is not F.W. Gray of the steel company not also guilty for having it published? … Why aren’t there more people in [the] dock besides McLachlan?”36

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For many of his supporters, the most remarkable aspect of the trial was McLachlan’s muted conduct. He sat in an uncharacteristic silence, arms crossed, pipe clenched in his mouth, maintaining what one reporter described as “an air of sang froid” throughout the proceedings.37 He spoke only once during the trial, briefly interrupting O’Hearn’s final address to the jury. When the attorney general claimed that a red flag had been seized at McLachlan’s home, he interjected: “There was no red flag; he never said it.” It was a small point, but one that raises a larger question. In a trial in industrial Cape Breton McLachlan might well have insisted on a vigorous, personal defence of his ideas and actions before a jury of his peers. As Barry Cahill has pointed out, this was the precedent implied by the Howe and Dixon cases in which the accused successfully defended themselves against the same charge by articulating the reasons they saw fit to challenge established authority in defence of a public good. In Halifax, however, McLachlan seemed to be reconciled to a guilty verdict, and it is known that he made an effort to prepare his family for that outcome. It is difficult to imagine McLachlan silent against his will, and one of the defence lawyers has recalled that McLachlan did not speak in court because he did not want to.38 At another level, McLachlan knew that his conviction would simply confirm his view of the courts as functioning organs of the capitalist state. As early as the time of the 1909 strike, he had seen the courts used to requisition troops, protect strikebreakers, and evict families from company housing, all in the interest of protecting property and maintaining law and order. In a controversial interpretation of the Industrial Disputes Investigation Act confirmed by the Supreme Court of Nova Scotia, he had seen a union organizer convicted for distributing food and relief to miners engaged in a strike judged to be illegal; in relating this example as recently as 1921, McLachlan described the Canadian law as the equivalent of the Fugitive Slave Act (1850) in the United States that provided for the return of slaves to their masters.39 Yet McLachlan was not averse to using the law to advance the interests of the union. During the 1909 strike he launched a conspiracy case against the leading coal operators of the province, alleging that they were engaged in limiting production, reducing competition, and fixing prices; the charges were eventually thrown out, but not before the companies were exposed to considerable bad publicity; interestingly, two of the company lawyers in that case were E.M. Macdonald, minister of national defence in 1923, and Humphrey Mellish himself, with whom, as noted earlier, McLachlan had crossed swords in 1917 and 1922 as well.40

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With McLachlan in the dock before him in October 1923, following almost two years of intense labour unrest in the coalfields, Mellish made it clear in his charge to the jury (appendix C, doc. 13) that sedition should be broadly interpreted. Section 132 stated only that “seditious libel is a libel expressive of a seditious intention,” but Mellish directed the jury’s attention to Sir James Fitzjames Stephen’s History of the Criminal Law of England, which was more explicit in defining sedition: “all those practices, whether by words, deed, or writing, which fall short of high treason, but directly tend to have for their object to excite discontent or dissatisfaction; to excite ill-will between different classes of the King’s subjects: to create public disturbances, or to lead to civil war; to bring into hatred or contempt the sovereign of the government, the laws or constitution of the realm, and generally all endeavours to promote public disorder.” Mellish went on to qualify this sweeping definition by reading section 133, which originally limited the scope of section 132 to permit criticism and qualify the scope of comments to be considered seditious: “No one shall be deemed to have a seditious intention only because he intends in good faith, (a) to show that His Majesty has been misled or mistaken in his measures; or, (b) to point out errors or defects in the government or constitution.” In identifying the permissive scope of section 133, Mellish may have appeared to be offering a balanced view of the law; he was in fact either misleading the jury or demonstrating his incompetence, since he failed to point out that this permissive section had been removed from the Criminal Code in the amendments of 1919. He certainly had read the statute, because he was aware of the “more modern” penalty for sedition enacted at the same time. In reviewing the evidence, Mellish noted that there was no question concerning McLachlan’s responsibility for “publication” of the document, since the original distribution of the letter to the union locals “in itself was a publication.” He dismissed concerns that McLachlan was not directly involved in the delivery of the letter to Halifax: “I don’t think it unreasonable to say that when a document of that kind once became distributed in the way McLachlan intended it should be distributed that he would naturally expect it would be published all over Nova Scotia and get into the newspapers also.” As to the question whether the document was seditious under the definition provided, Mellish had few doubts: “It is capable of a seditious construction, I may tell you, gentlemen; and the next question for you is, whether it was intended that the construction should be put upon it.” In considering that issue, Mellish continued, it was relevant to consider the defendant’s intentions in seeking the withdrawal of the military and the

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police: “You are told by counsel for the defence that the police were there to break the strike. Was that the purpose for which the police were there? Or were the police there to maintain order? What interest had the Glace Bay miners in having the police removed from Sydney? … Was it to give the strikers a free hand to do as they had been doing before? That is a question for you to consider, as to whether this document was intended to operate and incite people against law and order, the orderly government of the community by the executive of the people.” Finally, Mellish pointed out, it was also relevant to “consider his opinions, and those of the party whom he represents”; accordingly, he quoted excerpts from the radical resolutions of June 1922 and drew attention to the “seditious literature” in McLachlan’s possession.41 Thus instructed, the jury retired to consider their verdict and returned one and a half hours later to pronounce the prisoner guilty on all three counts. It was not a surprising result. The attorney general had seen the case as a personal crusade against the man he regarded as the personification of Cape Breton Bolshevism. In his conduct of the case and in his charge to the jury, the trial judge had virtually directed a guilty verdict. For their part, the defence lawyers failed to present a coherent line of defence, apparently hoping for an appeal on one or more technical grounds, such as the failure to grant a change of venue. Harrington seemed surprised by the judge’s decision to admit evidence of the Sydney disturbances and, probably unreasonably, accepted the claim that truth was no defence in a case of seditious libel, even if that would serve to shed light on local conditions and the intentions of the accused. The failure to present a single witness or to hear from the accused must have seemed curious to the jury, twelve citizens of Halifax and Dartmouth whose knowledge of conditions in industrial Cape Breton was probably limited. Although McLachlan had enjoyed a measure of respectability in the Halifax newspapers in previous years, he had been vilified, at least since 1920, as the representative of dangerous trends in the public life of the province. Joseph Howe in 1835 had faced a jury of peers and acquaintances, and Fred Dixon in 1920 was at least tried in the community where he lived and worked; these relatively favourable conditions were not present in the McLachlan case.42 For McLachlan, the trial was never quite over. The legal aftermath continued for several months. When he appeared for sentencing on 31 October, Walker made a plea for leniency and urged that he be given a suspended sentence. The attorney general replied that McLachlan had been convicted of “a very serious offence against the law of Canada” and reminded the court that a conviction, “generally speaking, was designed

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J.B. McLachlan, 1923. Source: Halifax Herald.

for the purpose of impressing the community.” Mellish then pronounced a sentence of two years in Dorchester Penitentiary on each of the three offences, the sentences to run concurrently.43 Walker immediately applied for bail pending an appeal. Chief Justice R.E. Harris – a former president of the Nova Scotia Steel and Coal Company – denied the application, and McLachlan remained in the county jail awaiting the outcome of his appeal. When the hearing took place on 17 December 1923, before a panel of five members of the bench “sitting as a criminal court of appeal,” the defence presented arguments based on eleven points of law, including errors on the part of the trial judge, defects in the indictment, an irregularity in the constitution of the jury, the improper admission of evidence, the court’s lack of jurisdiction, and the prisoner’s inability to make a full defence. With the concurrence of the four other judges sitting with him, Chief Justice Harris delivered the judgment. In the light of Merkel’s direct evidence

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on how the document reached the pages of the Chronicle, the conviction on the charge of publication in Halifax was set aside; but on the other two counts the convictions were upheld. This decision obviously overlooked the fact that it was the Halifax charge that had determined the unfavourable venue and confirmed that the Supreme Court did have the jurisdiction to try McLachlan in Halifax on all three charges; Philip Girard has given particular weight to this inconsistency, noting that it was arguable that the entire trial verdict should have been invalidated once the Halifax conviction was overturned.44 One more legal avenue was available in the case. On 29 January Walker presented a motion for leave to appeal the case to the Judicial Committee of the Privy Council, and on 16 February 1924 this was granted. Alert to some of the implications that transcended the particular case or the problems of industrial relations, Justice Russell noted that at least one significant issue was at stake: “The use that may be made of books or documents found in the library of a suspected person presents a question of ‘great general and public importance.’” This, however, marked the end of the legal history of the case. There is no direct evidence why the appeal was not pursued further, but we may surmise that, as far as McLachlan was concerned, the courts had lived up to his limited expectations. As he wrote to one of his daughters while awaiting the outcome of his first appeal shortly after Christmas that year, “I care if I do go to Dorchester, [but] it would never be half so hard for me, as taking a favor from the crew who want me there, and then I shall come out some day and be able to keep telling them what I think of that particular ‘British institution’ and you know it is sedition to [be] saying anything harsh about our ‘great British institutions.’”45 There was little doubt in the minds of contemporaries that this was a political trial. While coal miners in Cape Breton passed resolutions protesting the outcome, Besco President Wolvin was telegraphing his congratulations to Attorney General O’Hearn.46 After the conviction was announced, a flood of telegrams, letters, and petitions began to arrive in the offices of the minister of justice in Ottawa, many of them inspired by appeals from the Nova Scotia Workers’ Defence Committee.47 In Cape Breton there were protests from local unions and public meetings, and, following the failure of the appeal, resolutions from the town councils in the coal towns and in Sydney requesting McLachlan’s release. Most of the protests from across the country were from trades and labour councils and local unions, appealing not only for the release of McLachlan or for a new trial but also in some cases for the repeal of all the sedition laws. From his retirement in Oakville, the aged labour radical Phillips Thompson wrote directly to the

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prime minister, whom he had known when King was a student at the University of Toronto and helped lead a strike to support the students’ right to invite Thompson to speak on campus: “It would be much to be regretted should Canada follow the bad example of the degenerate republic across the border, with its judicial frame-ups, its scores of political prisoners and its brutal suppression of free speech.”48 The labour MP J.S. Woodsworth, who had faced the same charge of seditious libel in Winnipeg, took a close interest in McLachlan’s fate. In a speech at the Savoy Theatre in Glace Bay in 1923, Woodsworth gave an extended review of “capitalist laws used to bind and gag the labour movement.” He drew the parallels with Winnipeg and pointed out that McLachlan’s conviction only strengthened his qualifications to sit as a workers’ representative in Parliament.49 Less enthusiastically perhaps, the executive council of the Trades and Labour Congress of Canada, which was dominated by the more conservative international unions at this time, made a plea on McLachlan’s behalf at their annual meeting with the Dominion cabinet in January 1924; his imprisonment, they told King “made heroes of that type … and threw discredit upon the more rational leaders of the labor movement.”50 As it became clear that the government might find grounds to release McLachlan from prison, there were objections. The Employers’ Association of Manitoba, supported by the Winnipeg Board of Trade, warned that “it would have a most injurious effect on this country and result in further acts of sedition and lawlessness and disobedience to the authority of the State.”51 Besco President Wolvin also wrote the prime minister to state that McLachlan was “the concentrated cause of past unrest in this district and with him away for a few years, possibly, his teachings may be forgotten.”52 In addition, Attorney General O’Hearn met with the solicitor general in Ottawa to argue against McLachlan’s release: “It is not in the interests of peace and order in the community that he should receive any clemency while he maintains his present defiant attitude.” That must have been an awkward interview, since the Liberal solicitor general of the day was E.J. McMurray, MP for Winnipeg North, who had served as a defence lawyer in the Winnipeg trials. McMurray placed no obstacles in the way of McLachlan’s release on a ticket-of-leave, an arrangement short of a pardon that required him to report regularly to local police until the formal expiry of his two-year sentence. The order was formally signed by Governor General Byng on 28 February 1924.53 Leaving Dorchester behind, McLachlan returned to a hero’s welcome in the coalfields. At his first stop in Pictou County, the Academy of Music

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was packed to the doors when McLachlan appeared on the stage. At last, he was prepared to begin a public defence: “Sedition, said Mr. McLachlan, is when you protest against the wrongs inflicted on working men; when you protest against the resources of the province being put in the control of men like Roy Wolvin; when wage rates are forced on you without your consent. These things will be given back to the working class and their wrongs will eventually be redeemed. If you say that strongly enough, you are liable to get into jail for sedition.”54 Obviously unrepentant, McLachlan received a triumphal reception in Cape Breton, and at subsequent public meetings he reviewed the absurdities and scandals of his trial, with a satirical emphasis on the behaviour of the attorney general, “bellowing like a bull and tossing his legal horns in the air.” The formal conditions of his release required McLachlan to “abstain from any violation of the law” but this does not seem to have restrained him. McLachlan did not hesitate to repeat the offending statements for which he had been indicted; he also added statements that might be considered even more disturbing: “You can’t have peace where the workers are betrayed and where the contract gives the boss the right to bully the men and the employers lie. You will have war to the knife and that is what is happening in Cape Breton … They want me in jail, not because I am saying things that are true but because what I say jeopardizes the profits made out of the blood and sweat of the working classes in Cape Breton, out of the children and out of their homes, so that they may get their dividends. What kind of peace do they want?” At one public meeting, an informant prepared a stenographic report, and the most offensive passages were underlined and studied in the premier’s office. McLachlan was taking a risk, but he considered his release to be a political act, conceded by the state to the working class, for which he thanked his audiences: “To the working classes I am indebted for the freedom I have today … I am glad to get out because the workers got me out.”55 Despite the removal of McLachlan from union leadership, he continued to have influence, most notably through his position as editor of the Maritime Labor Herald. Meanwhile, the corporation’s financial and economic difficulties had not gone away, and in 1925 the coal miners found themselves facing another round of wage reductions and the threat of losing union recognition entirely. In the course of a long, hungry strike that lasted from March to August 1925, the plight of the coal miners attracted sympathy and support from across the country. The conflict ended in disorder and violence, including the shooting of coal miner William Davis by company police and a round of rioting, looting, and arson directed at

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company properties. The army was called out again, and troops remained on the ground until after the resumption of work at the mines. A provincial election that summer brought the Conservative Party to power. McLachlan’s defence lawyers Harrington and Walker, elected in local industrial ridings, both became cabinet ministers in the new government. One of the first actions of the new administration was to arrange a settlement for the coal miners. Against its will, the corporation was forced to continue union recognition, and the historian of District 26, C.B. Wade, has described the long strike as essentially a “recognition strike” that confirmed the coal miners’ success in gaining union recognition: “After 1925 all serious efforts to destroy the union were abandoned.” The provincial government subsequently introduced legislation providing statutory support for the check-off of union dues, another guarantee of union recognition. The outcome fell far short of McLachlan’s preferred solution – summed up in the Maritime Labor Herald’s slogan of “nationalization of industry, with workers’ control” – but the promise of the stabilization of labour relations was a kind of vindication for McLachlan’s long struggle for union recognition in the coal industry.56 It is also tempting to speculate in a counter-factual way whether McLachlan’s radicalism might have been tempered by an immersion in the labour politics of the federal Parliament. Yet Woodsworth’s hopes of recruiting McLachlan to sit with him in the House of Commons were never fulfilled. In 1921 McLachlan had won many more votes than Woodsworth in Winnipeg but, through the anomalies of the electoral map, had failed to win election. In 1925 he received 30 per cent of the vote, a weaker result than in 1921; moreover, to Woodsworth’s chagrin, McLachlan did not stand in the 1926 election, even though Mackenzie King had accepted Woodsworth’s demand for a straight two-way contest between Conservative and Labour candidates in the principal mining constituency. In his last electoral hurrah in 1935, two years before his death, McLachlan ran as a Communist Party candidate and attracted more than five thousand votes in a four-way contest. Some form of collaboration between McLachlan and Woodsworth might well have had a significant influence on the history of the Canadian left, but this kind of united front was less likely by 1935. The potential for a labour member of Parliament from industrial Cape Breton was ultimately realized with the election of coal miner Clarie Gillis for the Co-operative Commonwealth Federation in 1940.57 Meanwhile, during the course of 1926 Besco continued down the road to its final disintegration, soon to be superseded by a reorganized Dominion Steel and Coal Corporation. In retrospect, McLachlan’s trial for

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sedition was one episode in the continuing quest for a balance of power between labour and capital in industrial Canada, and the legal particularities of the case were conditioned by the larger terrain of economic, social, and political circumstances. At a time when the law allowed easy access to armed force in industrial disputes and offered no support for workers seeking union recognition, the case belongs to a transitional period in Canadian labour history when the limits of “industrial voluntarism” were becoming increasingly visible. The coal miners emerged from the 1920s somewhat divided and weakened, but, unlike most districts in the international union in this period, they had succeeded in maintaining union recognition. In the short term, the coal miners had failed in their efforts to assist the steelworkers. But when the steelworkers mounted another organizing drive in the 1930s, the new Liberal government recognized the danger of repeating the traumatic events of the 1920s. As a young lawyer, the future premier, Angus L. Macdonald, had been an assistant to Attorney General O’Hearn during the McLachlan case. As a Cape Bretoner, he had also worked as a labourer at the Sydney steel plant and as a student he had been influenced by the Catholic social gospel ideas of James Tompkins at St Francis Xavier University. When the time came, Premier Macdonald encouraged local labour leaders to petition for a Trade Union Act modelled on the New Deal’s 1935 Wagner Act. Prior to the adoption of Orderin-Council PC 1003 in 1944 and the subsequent post-war legislation, the Nova Scotia Trade Union Act (1937) was a breakthrough in Canadian labour law that promised to bring Canadian workers across the great divide separating the era of “labour’s war” from the age of “industrial legality.”58 Returning to McKay’s discussion of the construction of the liberal order in Canada, it is worth noting that he identifies the Cape Breton labour wars as a signal case among the challenges to liberalism in early-twentieth-century Canada. Such challenges led in turn to the reforms in public policy and labour relations that characterized the middle of the century. Angus L. Macdonald accordingly takes his place as one of the provincial agents of this passive revolution, much as Mackenzie King does at the level of federal policy.59 From this perspective, the case of The King vs. McLachlan remains a prime example of the relevance of social and political context in considering uses of the sedition charge. The law had been used not only to curtail freedom of speech but more pointedly to undermine and discredit the labour radicalism represented by labour leaders such as McLachlan. The actual statements in his letter to the locals were less objectionable than the support they represented for the rebellious steelworkers.

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In this respect, ironically, McLachlan might well have agreed with Justice Mellish that he was guilty of promoting dissatisfaction and disorder in the face of injustice. His transgressions were multiple ones that were at odds with the governing assumptions privileging property rights within the prevailing construction of the liberal order. From McLachlan’s point of view, his arrest and prosecution were but one chapter in a struggle over the relative priority of the rights of labour and capital in modern society. Like other notable episodes in the intersection between Canadian labour history and the law, the McLachlan case has many dramatic dimensions and legal complexities, but these should not obscure the larger process of historical change. Notes   1 Maritime Labor Herald (Glace Bay), 29 Dec. 1923; for the recording, see Cape Breton Island Protest Songs (Sydney, N.S.: Centre for Cape Breton Studies 2011).   2 Dawn Fraser, Echoes from Labor’s Wars: The Expanded Edition (Wreck Cove, N.S.: Breton Books 1992), 40–1; see also 20–30 for his extended verse, “The Case of Jim McLachlan,” which originally appeared in the Maritime Labor Herald, 16 Feb. 1924.   3 Barry Cahill, “Howe (1835), Dixon (1920), and McLachlan (1923): Comparative Perspectives on the Legal History of Sedition,” UNB Law Journal, 45 (1996): 281–307; Philip Girard, “The Supreme Court of Nova Scotia: Confederation to the Twenty-First Century,” in Philip Girard, Jim Phillips, and Barry Cahill, eds., Supreme Court of Nova Scotia, 1754–2004: From Imperial Bastion to Provincial Oracle (Toronto: University of Toronto Press/Osgoode Society for Canadian Legal History 2004), 164–6. Inevitably, the case also occupies a prominent place in the account of McLachlan’s life and times: see David Frank, J.B. McLachlan: A Biography (Toronto: James Lorimer 1999), especially chapters 7–8; for a shorter treatment, see “McLachlan, James Bryson,” Dictionary of Canadian Biography, 16, http://www.biographi.ca.   4 Desmond H. Brown and Barry Wright, “Codification, Public Order, and the Security Provisions of the Canadian Criminal Code, 1892,” in CST3, 546.   5 Judy Fudge and Eric Tucker, Labour before the Law: The Regulation of Workers’ Collective Action in Canada, 1900–1948 (Toronto: Oxford University Press 2001).   6 Ian McKay, “The Liberal Order Framework: A Prospectus for a Reconnaissance of Canadian History,” Canadian Historical Review, 81, no. 4 (2000): 617– 45. For discussion, see Jean-François Constant and Michel Ducharme, eds.,

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  7   8

  9

10 11

12

13 14 15 16

Liberalism and Hegemony: Debating the Liberal Revolution (Toronto: University of Toronto Press 2009). Statutes of Canada, 1919, ch. 5. Sydney Post, 18 Oct. 1923. The Howe comparison was good rhetorical strategy, but Harrington failed to pursue the comparison in the conduct of the defence. As successive acting editors of the Strike Bulletin, Fred Dixon and J.S. Woodsworth were charged with seditious libel during the Winnipeg General Strike in 1919. Dixon was acquitted by a jury after he delivered an eloquent defence of freedom of speech. The crown subsequently chose not to bring Woodsworth to trial. See Reinhold Kramer and Tom Mitchell, When the State Trembled: How A.J. Andrews and the Citizens’ Committee Broke the Winnipeg General Strike (Toronto: University of Toronto Press 2010). For context, see David Frank, “The Cape Breton Coal Industry and the Rise and Fall of the British Empire Steel Corporation,” Acadiensis, 7, no. 1 (1977): 3–34; and Ian McKay and Suzanne Morton, “The Maritimes: Expanding the Circle of Resistance,” in Craig Heron, ed., The Workers’ Revolt in Canada, 1917– 1925 (Toronto: University of Toronto Press 1998), 43–86. Pat Kelly, Scotland’s Radical Exports: The Scots Abroad – How They Shaped Politics and Trade Unions (Glasgow: Grimsay Press 2011), 110. See David Frank, McLachlan, ch. 6 and passim. The RCMP had opened a file on McLachlan as early as October 1919, having identified him as an articulate supporter of solidarity with the arrested leaders in Winnipeg. Maritime Labor Herald, 13 Jan. 1923; The Worker (Toronto), 1 March 1923; United Mine Workers’ Journal (Indianapolis), 1 and 15 Feb. and 22 June 1923. For developments in the international union, see John H.M. Laslett, ed., The United Mine Workers of America, 1890–1990: A Model of Industrial Solidarity? (University Park, PA: Penn State University Press 1996). LAC, Records of the Department of Labour, RG27, vol. 143, file 611.04:10, memorandum by E. McG. Quirk, 26 March 1923. LAC, W.L. Mackenzie King Papers. MG26 J1, 76159–60, Paul McNeil and J.B. McLachlan to King, 29 March 1923. Public Archives of Nova Scotia [PANS], E.H. Armstrong Papers, vol. 11A, file 15, 3828, G.H. Murray to Armstrong, 10 April 1923. Sydney Post, 15 and 19 May 1923; PANS, Armstrong Papers, W.J. O’Hearn to Armstrong, 20 May 1923. The raids were conducted on the strength of a warrant for the arrest of a visiting agitator, Malcolm Bruce. McLachlan considered this a pretext, since the police did not hesitate to search files, desks, bookcases, and cupboards and to seize documents. The use of this material in the McLachlan case was one of the grounds for appeal later filed by McLachlan’s defence lawyers.

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286  dav i d frank 17 Sydney Post, 28, 29, and 30 June and 3 and 4 July 1923; Maritime Labor Herald, 7 July 1923; “RCMP Weekly Summary Notes respecting Revolutionary Organizations and Agitators in Canada, No. 183,” LAC, King Papers, MG26 J4, vol. 89, 68755. A useful selection of interviews and documents is presented in “The 1923 Strike in Steel and the Miners’ Sympathetic Strike,” Cape Breton’s Magazine, 22 (1979). On the use of the police and armed forces, see Don Macgillivray, “Military Aid to the Civil Power: The Cape Breton Experience in the 1920s,” Acadiensis, 3, no. 2 (1974): 45–64. Military assistance was available when local authorities considered the maintenance of public order to be beyond their capacity; an endorsement by the province was not required prior to the Militia Act amendments in 1924, which were prompted in large part by the frequent use of military aid in the Cape Breton strikes. 18 LAC, Records of the Department of Justice, RG13 C2, vol. 1233, “The King vs. James B. McLachlan,” 4–5 [transcript of the case in the Supreme Court of Nova Scotia sitting as a Criminal Court of Appeal, 1923]. 19 Ibid., 45–7. 20 Sydney Post, 7 July 1923. 21 For the preliminary hearing, see PANS, RG39, “C” (HX), box 706, file B-164. See also Sydney Post, 7 and 9 July 1923; Dominion Law Reports, 4 (1923): 1047– 9. 22 The episode may be followed in LAC, King Papers, E.M. Macdonald to King, 16, 17, 21, and 22 July 1923; King to Macdonald, 17, 18, and 22 July 1923; and F.A. MacGregor to Macdonald, 20 July 1923. See also C.B. Wade, “History of District 26, United Mine Workers of America, 1919-1941” (unpublished manuscript, 1950), ch. 4, where the account is based on interviews with D.W. Morrison. 23 Sydney Post, 12 and 18 July 1923; United Mine Workers’ Journal, 1 Aug. 1923. On Lewis’s use of executive powers in this period to centralize authority and suppress opposition, see Laslett, ed., The United Mine Workers of America, and Melvyn Dubofsky and Warren Van Tine, John L. Lewis: A Biography (New York: Quadrangle/New York Times Book Co. 1977). 24 “Preliminary Hearing,” 8 July–20 August 1923; Sydney Post, 17 Aug. and 22 and 25 Sept. 1923. Change of venue was a controversial matter in the history of political trials because the defence could be disadvantaged in a trial heard by jurors unfamiliar with the local context of the alleged offences. 25 On the case of Malcolm Bruce, see Halifax Chronicle, 8 May 1923; Sydney Post, 30 May 1923; Sydney Record, 7 June 1923; and the account by Fraser, Echoes from Labour’s Wars, 31–7. 26 Sydney Post, 3 Oct. 1923. 27 Livingstone, a miner from Westville in Pictou County, counted himself a

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28 29

30 31

32

33 34 35 36 37 38 39

40

labour radical and at one stage supported the One Big Union; but he had been union president for less than a year and was less known to the general public than McLachlan. Livingstone’s case was held over to February 1924 and then to October 1924 but never prosecuted. “The King vs. McLachlan,” 4; Sydney Post, 16 Oct. 1923. Revised Statutes of Canada, 1906, vol. 3: 2453–4; Statutes of Canada, 1919, ch. 46, 307–10. The 1919 amendments also created a new section of the Criminal Code, s.97(a), which, like the repeal of s.133, also broadened the scope of seditious offences. Sydney Post, 16 Oct. 1923. Frank, J.B. McLachlan, 235–6. Opinions of Mellish are included in R.A. Kanigsberg, Trials and Tribulations of a Bluenose Barrister (Halifax: Petheric Press 1977), 36; and in an incomplete letter from Sydney to J.S. Woodsworth, 9 Feb. 1924, in LAC, J.S. Woodsworth Papers, MG27 III C7, vol. 11. For the earlier decisions, see “Mine Explosion in New Waterford, 1917,” Cape Breton’s Magazine, 21 (1978): 1–11; PANS, Records of the Supreme Court of Nova Scotia, “Opinion of Mellish, J., UMW et al. vs. Dominion Coal et al.,” 10 Jan. 1922; Maritime Labor Herald, 11 Feb. 1922. Russell, on the other hand, who also played a part in the 1923 McLachlan trial, was known as a progressive within the context of Nova Scotia liberalism; he was an early supporter of women’s suffrage, and his sister was for many years a prominent feminist and pacifist: see Sharon M.H. MacDonald, “A Passionate Voice for Equality, Justice, and Peace: Nova Scotia’s Mary Russell Chesley,” in Janet Guildford and Suzanne Morton, eds., Making up the State: Women in 20th-Century Atlantic Canada (Fredericton: Acadiensis Press 2010), 45–55. “The King vs. McLachlan,” 10–11 and 65. In the course of the trial, the defence also presented objections to the form of the indictment, to an irregularity in the selection of the jury, and to the admission in evidence of a book found in McLachlan’s home. Ibid., 9–14, 22–6, 28–34, 38–42, and 51–2. Ibid., 33, 45–7, 53–4, 58, and 60–4. Ibid., 15–22, 26–8, 34–8, 42–4, and 62–3. Ibid., 54–5. Sydney Post, 19 Oct. 1923. Interview with John A. Walker, Halifax, N.S., 23 Sept. 1976. See also Cahill, “Howe (1835), Dixon (1920), and McLachlan (1923).” Maritime Labor Herald, 21 Oct. 1921; Danny Samson, “The Making of a Cape Breton Coal Town: Dependent Development in Inverness, Nova Scotia, 1899– 1915,” MA thesis, University of New Brunswick 1988, 144–5. Frank, J.B. McLachlan, 105–6.

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288  dav i d frank 41 “The King vs. McLachlan,” 67–71. 42 Joseph A. Chisholm, “The King vs. Joseph Howe: Prosecution for Libel,” Canadian Bar Review, 13 (October 1935): 584–93; J.M. Beck, “‘A Fool for a Client’: The Trial of Joseph Howe,” Acadiensis, 3, no. 2 (1974): 27–44. The McLachlan jury included men with the following occupations: one accountant, two truckmen, two farmers, one grocer, one butcher, one messenger, one porter, one waiter, one barber, and one carpenter. 43 Sydney Post, 1 Nov. 1923. 44 Nova Scotia Law Reports, 56 (1924): 413–31; Canadian Criminal Cases, 41 (1924): 249–62. The first of these states, incorrectly, that Judge Mellish served as a member of the appeal court on this case. See also Girard, “Supreme Court of Nova Scotia,” 164–6. 45 Dominion Law Reports, 1 (1924): 1109–12; Crankshaw’s Criminal Code of Canada, 7th ed., 577. For letters to his daughter, see Frank, J.B. McLachlan, 336. 46 Sydney Post, 22 and 24 Oct. 1923; Nova Scotia, Royal Commission on Coal Mining Industry [Duncan Commission, 1925], “Minutes of Evidence,” 1085. 47 The Nova Scotia Workers’ Defence Committee, which may be considered a precursor of the Canadian Labour Defence League, raised more than $12,000 between July 1923 and January 1924 on behalf of McLachlan and others arrested in the industrial conflicts in 1923; Wade, “History of District 26,” ch. 4. 48 LAC, Records of the Department of Justice, RG13 C2, vol. 1233, file 25777, Phillippe [sic] Thompson to W.L. Mackenzie King, 5 Dec. 1923 (copy). 49 Maritime Labor Herald, 29 Dec. 1923; LAC, Woodsworth Papers, vol. 2, O.D. Skelton to Woodsworth, 28 March 1924; then dean of arts at Queen’s University, Skelton expressed surprise at the “mediaeval interpretation” of seditious libel that appeared to prevail in the case; also, he wondered why it was that strong statutory declarations prepared on behalf of the defendant regarding the disturbances in Sydney had not been offered in evidence. 50 LAC, Trades and Labour Congress of Canada Papers, Executive Council Minutes, MG28 i103, 11 and 12 Jan. 1924; Sydney Post, 15 Jan. 1924. The TLC leaders repeated their call to end the use of military aid to the civil power in labour disputes, and the King government that year introduced amendments to require support from provincial attorneys general in requesting the use of Dominion forces. 51 LAC, Records of the Department of Justice, RG13 C2, vol. 1233, file 25777, Charles Roland to Sir Lomer Gouin, 18 Dec. 1923. 52 LAC, King Papers, R.M. Wolvin to King, 10 Jan. 1924. 53 LAC, King Papers, T.L. Kelly to King (copy), 10 Jan. 1924; G.W. Kyte to E.J. McMurray, 18 Jan. 1924; McMurray, “Memorandum for Mr. Clarke,” 8 Jan. 1924. McLachlan was released from Dorchester Penitentiary on 5 March 1924

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54 55 56 57

58

59

on a ticket-of-leave that required him to report regularly to the local chief of police until his sentence formally expired on 30 Oct. 1925. Convicted in October, he was released in March, having served less than two months in penitentiary after the failure of his appeal. He was also in the Halifax jail continuously from the date of his conviction on 17 Oct. 1923 until his transfer to Dorchester on 8 Jan. 1924. Workers’ Weekly (Stellarton), 7 March 1924. Stenographic report of McLachlan speech, 4 April 1924, vol. 8, F11/2671, Armstrong Papers, PANS. Wade, “History of District 26,” ch. 6; Statutes of Nova Scotia, 1927, c.1, s.97. For detailed accounts, see Frank, J.B. McLachlan, passim, and “Working-Class Politics: The Election of J.B. McLachlan, 1916–1935,” in Kenneth Donovan, ed., The Island: New Perspectives on Cape Breton History, 1713–1990 (Fredericton/Sydney: Acadiensis Press/University College of Cape Breton Press 1990), 187–219, 288–92. “The Coming of the Trade Union Act (1937),” Cape Breton’s Magazine, 23 (August 1979), and George MacEachern: An Autobiography (Sydney: University College of Cape Breton Press 1987), 75–9. On Macdonald, see Stephen Henderson, Angus L. Macdonald: A Provincial Liberal (Toronto: University of Toronto Press 2007). For national developments, with an emphasis on the uneven multiplicity of “industrial pluralism,” see Fudge and Tucker, Labour before the Law, ch. 10 and passim. See Ian McKay, “The Canadian Passive Revolution, 1840–1950,” Capital and Class, 34, no. 3 (2010): 361–81.

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8 Red Scares and Repression in Quebec, 1919–391 ANDRÉE LÉVESQUE

On the 8th day of December, 1933, at the town of Rouyn in the district of Pontiac, Harry Leonard Raketti of Kirkland Lake, Ontario did speak seditious words, to wit: “do not listen to the ‘brass-buttons’ who smile to your face and pat you on the back: they are the spies and stool pigeons of the oppressors and are ready to shoot you when your back is turned – so I call three boos for the police,” contrary to art 34 of the Criminal Code.2

The accused was an immigrant, his speech was not unusual in radical circles, and the charge was the common one levelled against “agitators” in Quebec, where police surveillance was vigilant and authorities were quick to react to outbursts against the established order. The prosecution was only unusual in that it took place in Rouyn, in the northwest corner of Quebec, where working conditions were dismal and labour unrest frequent. Most legal responses to workers’ militancy occurred in Montreal, where the working class, although divided by ethnicity, language, and religion, had a long history of public demonstrations and workers’ parades, including a May Day celebration in 1906 when the police seized the red flag at the head of the parade while the crowd sang the Internationale.3 This chapter is divided in three main parts, each corresponding to a different period in the history of the Communist movement in Canada and to changes in the political complexion of governments. The first covers the period between 1920 and 1929, when the Communist Party of Canada

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(CPC) was trying to make inroads among the working class and the Liberals formed the government in Ottawa and in Quebec. After the “Red Scare” that accompanied the strikes of 1919, further repression was not in the forefront during the 1920s. The second part deals with the years 1929 to 1936 and is the most relevant to the topic of repression and trials. In 1929 the Communist International (Comintern) inaugurated the “Third Period” of communism, characterized by intransigence and militancy. The Conservative Party’s victory in the 1930 federal election marked the beginning of intense repression of radicals, and in Quebec the number of trials testifies to the extent of efforts to suppress communism. The third section spans the period from 1936 to the Second World War. It is marked by great changes in the world of communism, with the call for a common front against fascism, and it roughly corresponds to the re-election of W.L. Mackenzie King and the Liberals in Ottawa in 1935, while, in 1936, Maurice Duplessis and his Union Nationale formed the Quebec government. While the newly elected federal government lessened its anti-subversive activities by repealing section 98 of the Criminal Code, in Quebec the Duplessis government embarked on a vigorous anti-radical campaign. montreal, 1919–29 By the time the Communists arrived on the scene in Montreal after the First World War, there were already a number of socialist groups in Quebec, including the One Big Union (OBU), the Socialist Party, the Quebec section of the Canadian Labour Party, the Social Democratic Party, the Independent Workers Party, and the Montreal Labour Party. All were mobilized by the labour revolt of June 1919 that swept Montreal where workers took to the streets demanding the eight-hour day and supported strikers in Toronto and elsewhere.4 By mid-June, some twelve thousand workers were on strike in Montreal, but their unity soon faltered. Some socialists advocated a general strike, supported the Bolshevik Revolution, and cheered for the OBU, while others, especially craft unionists, shied away from radical militant action. The Montreal labour revolt provoked anti-Bolshevik outbursts, particularly from Catholics, who believed that their province was tasked with the special mission of halting communism in Canada. In March 1919 journalist Armand Lavergne declared, “The people of Quebec represent the only safeguard, the only unbreakable rampart against the Bolshevik socialist rush,” and a pamphlet published by the Jesuits’ École Sociale Populaire was entitled Catholic Unions: A Dam

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against Bolshevism.5 That self-imposed mission took precedence over civil liberties. In 1922 Canadian supporters of the Bolshevik Revolution and of the Third International emerged from the underground as the Workers’ Party of Canada. The party divided the country into organizational districts; Quebec formed the Second District, except for the northwest corner, which, along with northeast Ontario, belonged to the Fourth District. Throughout the decade, the RCMP reported on a number of meetings and some seditious speeches, there were sporadic attempts at launching a French newspaper, and some “revolutionary schools” engaged in labour education for children and adults. Those activities were closely monitored but seldom led to arrests.6 When the Workers Party was being set up in accordance with Comintern directives, Albert Saint-Martin, probably the best-known figure on the Left in Montreal, hoped to form an autonomous French section affiliated to the Comintern. Active in politics since the 1890s, Saint-Martin was one of the founders of the Montreal Labour Party and had been its candidate at a 1905 by-election, and then in 1908 he ran for the Socialist Party of Canada. A stenographer at the Quebec Superior Court, an ardent promoter of cooperatives, a freethinker, and a teacher of Esperanto, he helped organize May Day celebrations and was a popular orator who could draw crowds eager to hear about the red flag, the evolution of society, or the need for secular schools. His hopes for an autonomous Quebec Communist party were quashed by Moscow in 1923: there could not be more than one party per country. Undeterred, in 1925 Saint-Martin set up the Université ouvrière on an informal basis; it was officially founded when it received its charter in 1928 as an organization for labour education, the equivalent to an English-language Mechanics’ Institute. It could soon boast a large membership and was to compete for adherents with the official CPC.7 Eventually, in 1927, a French section of the Second District opened, headed by Évariste Dubé, a former president of the Université ouvrière, but with no autonomy from the Toronto centre. Hence, the Université ouvrière and the CPC formed the two bastions of the Left in Quebec. The former appealed to francophones, and the latter mainly to anglophones and immigrants.8 Even if Communists constantly denounced the populist character of the Université ouvrière,9 for the police its leaders and speakers were indeed Communists, and in the attorney general’s papers its activities are lumped together with those of the CPC. Yet the Left’s presence did not lead to formal repression. A period of quiescence followed the wave of protests that marked 1919 and the be-

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ginning of 1920. May Day parades stopped, marches seldom disturbed the peace prior to the late 1920s, and each year the number of strikes was lower than the pre-war level. The onset of the economic depression was to put an end to the calm social climate and trigger years of turmoil by workers and the unemployed. communism in its third period and the workers’ unity league, 1929–36 The Montreal Left and Anti-Communism To understand Communist activities in Canada, one has to place them in the framework of the different stages of the movement’s history. The Sixth Congress of the Comintern, in July 1928, took a radical turn, openly based on class struggle and the rejection of any collaboration with other parties of the Left. It inaugurated a wave of renewed activism for all the members of the Third International. In Canada, this meant the establishment of a Communist labour organization, the Workers Unity League (WUL), and an increased visibility in public spaces.10 The celebration of anniversaries and historical events, such as Lenin’s death on 21 January, International Women’s Day on 8 March, the Paris Commune on 18 March, and International Workers’ Day on 1 May, always had special meaning for the Left; Communists everywhere organized marches, public lectures, and picnics to commemorate these important moments in workers’ struggles. In Montreal, gatherings at the Labor Temple, at the Prince Arthur Hall, or outside in the Champs de Mars behind city hall attracted large crowds, were well attended by the police, and had serious consequences for the fiery speakers. At the May Day demonstration of 1930, four Communists were arrested for distributing subversive publications.11 During the electoral campaign of 1930, the Communist candidate Émery Samuel saw his meetings disrupted by the police, and Communist organizer and educator Georges Dubois was arrested and later deported to France, his country of origin, but not before he denounced the “horrible conditions in the immigration prison.”12 This most radical period of communism, with its inflammatory rhetoric, calls for class struggle, and labelling of all social-democratic parties as social fascists, was bound to elicit harsh repression. In Canada, this tumultuous phase of communism coincided with the election of R.B. Bennett’s Conservative government in August 1930, dislodging the Liberals in Ottawa. The new government embarked on an unprecedented crackdown

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on Communists, resorting to section 98 of the Criminal Code to target what it deemed to be seditious organizations. Arrested on various charges of sedition – seditious utterances, seditious propaganda, even seditious blasphemy – Communists risked twenty years in jail, and, if they were born overseas, as many were, summary deportation to their countries of origin – where fascism was often making steady inroads – was possible under the Immigration Act. After the election of the Bennett government, the number of deportations reached new heights.13 Yet, at the very time when they risked the most, hard-line party militants were actively engaged in union organizing – in certain years, the WUL launched more strikes than all the other union centrals together – and in staging public demonstrations, thus provoking what they termed “class terror.” In Quebec, some local peculiarities made the Communist witch-hunt particularly vicious and quite unrelated to Ottawa politics, even if the Conservative government now provided the province with the means to take concrete action against what was often considered an immediate threat. The Catholic Church and its alarmist denunciations of the Red Scare supplied powerful fuel to Quebec anti-communism. Starting in 1931, a succession of pastoral letters from Montreal Bishop Georges Gauthier, read from every pulpit in the diocese, warned against the Communist danger. For instance, on Sunday 25 January 1931, in all the churches of Montreal, priests read a pastoral letter on the menace of Bolshevism. During Lent of the same year, communism featured as the main theme for numerous sermons and retreats during the forty days of penance.14 Bishop Gauthier, who claimed that Communists were more concerned with persecuting Catholics than overthrowing capitalism, was particularly worried about the “new and less easily conceivable” inroads communism was making among French Canadians, and he specifically warned the unions of a Bolshevik presence in their ranks.15 Soon a veritable anti-Communist campaign was under way, while alarmed citizens joined journalists in expressing their outrage in Henri Bourassa’s Catholic newspaper Le Devoir. Especially after the founding of the Co-operative Commonwealth Federation (CCF), this crusade extended to socialism, denounced as a doctrine forbidden by the church.16 The numerous requests landing on the attorney general’s desk asking for the banning of the Communist Party and the closing of the Université ouvrière, two bodies that “want our destruction,” expressed a general sense of fear and immediacy out of proportion to the actual number of Montreal Communists, then estimated at around one hundred and fifty.17 This church-led campaign was strongly supported by the provincial Liberal government. Premier Louis-Alexandre Taschereau had been

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elected on a reformist platform in 1920 and had passed some progressive legislation at the beginning of the decade, but his reformism stopped short of tolerating any movement to the left of his own party, and, as attorney general, he was well positioned to lead those elements of the province intent on repressing radicals. In Quebec, the CPC vied for workers’ allegiance with the Université ouvrière. On Sunday morning, on Montcalm Street and on Craig Street just behind the courthouse, the Université ouvrière held weekly debates where Saint-Martin and other orators denounced capitalism and the Catholic Church and called for mass action. After the main speeches, anyone in the hall could speak for ten minutes, and, for many who appeared in front of an audience for the first time, this was the beginning of a life of activism. According to the police, the assemblies attracted as many as two thousand participants. In October 1932 Taschereau asked Maurice Lalonde, chief of the provincial police in Montreal, to hire a stenographer to transcribe the lectures given by Communists. In Montreal, this meant not only Communist speakers but also those of the Université ouvrière; a twenty-year-old woman working for the city regularly attended these meetings, assiduously taking down every word. Thanks to the paid stenographer in attendance, the texts of many lectures are now available in the archives.18 Few dealt directly with communism, and a large number were anti-clerical harangues denouncing the power and wealth of the church or Roman Catholic dogmas such as the Immaculate Conception. Unemployment and the economic situation were also popular topics, and one Mrs Ouimet, “a young brainless woman” according to the police, spoke on women’s rights.19 Informers hired by the provincial police sometimes give us a glimpse of the atmosphere on such occasions: “In that room, those in the audience look like true destitute[s], one feels sorry for them, poorly dressed and almost barefoot who ask each other something to smoke or to eat.”20 For the authorities, the attraction of these public assemblies and the messages expressed there made the Université ouvrière as much a threat to the Quebec social order as the CPC. Faced with what it considered a menace to the state, the Montreal police set up its anti-Communist squad, commonly known as the Red Squad, which soon hired its own informers.21 Undercover agents from the RCMP, the provincial police, and the city of Montreal tailed various individuals and ran into each other at meetings and rallies, sometimes returning to their headquarters with the music sheets of the Internationale and The Red Flag. One almost sympathizes with the police spy who had to attend countless meetings and commented that Louis Kon’s hour-and-a-half lecture on “Canada-USSR Relations” was “uninteresting.”22 The editor of Le

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Chômeur, the organ of the Central Committee of the Council of Unemployed, a Communist-front organization, was himself an infiltrator and informer. Another undercover agent temporarily became director of the Canadian Labour Defence League (CLDL).23 Surveillance intensified during the summer of 1932, and Bella Gordon, the Montreal secretary of the CLDL, was closely followed. Stool pigeons were paid $7 a day, a good wage during the Depression, and plain-clothes policemen and informers visited bookstores and printing shops, often after working hours, and attended numerous rallies on any day of the week including Christmas Day.24 When possible, the provincial police recruited polyglot immigrants, and two of the informers proved their worth by arresting John Weir and another man identified as James for distributing Communist propaganda in Russian and Ukrainian.25 Regular reports filed by Chief Lalonde found their way to the deputy attorney general, Charles Lanctôt, in Quebec City, but these must be read cautiously. The informants did not always grasp the subtleties of the Left or the obstacles of language. A report informed the attorney general that McGill University professors Frank R. Scott, Eugene Forsey, and the Reverend J.K. Gordon, all actively involved with the CCF, were “strong communist agitators.”26 On a number of occasions, meetings took place in Yiddish and the informant had to admit to not having understood a word.27 The provincial police and the RCMP worked hand in hand to enforce section 98. At that time the RCMP had an office in Montreal and was closely monitoring Communist activities in Quebec.28 The Quebec provincial police were eager for closer collaboration: Why, asked Chief Lalonde, were the forces that arrested several members of the Central Committee of the CPC in Toronto in 1931 not able to shut down the Worker, the Communist weekly on sale in Montreal? In March 1932 the Department of National Defence requested that the attorney general inform Ottawa of matters regarding Communist activities in Quebec.29 Taschereau was more than willing to comply since he wished Quebec to take measures similar to those taken in Toronto with the arrest, trial, and conviction of CPC leaders under section 98. He also wanted deportations to be easier to obtain. Lalonde, for his part, expressed the assumption that all Communist leaders were immigrants: “As I have mentioned to the Attorney General, it is only through close and systematic cooperation with the federal authorities, especially the department of Immigration, that we can hope to prevent serious troubles. The only immediate solution is that all the known communist leaders be deported.”30 In 1931 a report from the

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provincial police was forwarded to the Department of Immigration to facilitate deportations under sections 40 and 41 of the Immigration Act.31 Notwithstanding the fact that the attorney general knew that the Université ouvrière had no link with the CPC, it remained as important a target of repression as the official Communists. Indeed, it may have been deemed even more dangerous since it appealed to francophone workers, was very popular, and had a government charter as an institution providing education. Encouraged by the clergy, Catholic associations besieged the attorney general’s office demanding the repeal of the Université’s charter. As well, the Société Saint-Jean-Baptiste, the Association des voyageurs de commerce, the Knights of Columbus, the Société Saint-Vincentde-Paul, the Sunday Observance League, and the Maisonneuve labour club, as well as concerned individuals, wrote directly to the premier. To take but one of many examples, one U. Viau, confusing the Université ouvrière with the Communist Party of Canada, asked that its charter be repealed and that the authorities follow the example of Toronto, where Communist leaders were in prison. The Catholic women’s organization of Trois-Rivières, a town where there was hardly a Communist presence, added its voice to the collective hysteria and demanded not only that the Université’s charter be repealed but that the CPC be banned, its leaders arrested and deported, its propagandists fined, and its newspapers and pamphlets confiscated.32 Citizens denounced neighbours who might go swimming in the nude or who, as Jehovah’s Witnesses, distributed leaflets in the Laurentians. 33 One individual warned the government that the Université ouvrière intended to blow up banks and use the money it stole to buy votes at the next elections. A chapter of the Association catholique de la jeunesse canadienne-française34 conducted its own inquiry into communism in Montreal and sent a report to the Quebec government giving addresses of Communist meeting places. In a most alarming tone, it warned that there might be fifteen hundred Communists in Montreal, including three hundred French Canadians who were “dangerous by their audacity, their cunningness and their diabolical will, redoubtable by the means at their disposal, by what they have accomplished so far and by the considerable prestige they exercise over the abused, blinded and duped working masses.”35 At the beginning of the 1933 legislative session, Premier Taschereau announced a vigorous anti-Communist campaign. Saint-Jacques church had burned down and the leader of the opposition, Maurice Duplessis, wrongly implied that Communists were responsible. The premier reaffirmed his intention to act against the Université ouvrière, which was “no

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doubt a muscovite library.” In April, the legislature passed a law dissolving all libraries and requiring that each apply for a new charter in order to disqualify those among their number that were “bad.”36 This law was aimed directly at the Université ouvrière. The Quebec provincial police also turned to Ottawa for additional assistance in their fight against sedition. In April 1933 Deputy Attorney General Charles Lanctôt met with Superintendent Frederick J. Mead, head of the “C” Division of the RCMP, headquartered in Montreal, asking that his Ottawa colleagues use their right to seize material without a warrant. The RCMP superintendent had to explain that he could exercise that right only if there was a likelihood of revolution or insurrection, which was not really the case in Quebec. In his report of his conversation with Mead, Lanctôt made it clear that “Bella Gordon’s group” of Communists, who were “very active and very cautious, and had for lawyer the Jew Garber,” was the main target of repression. He also acknowledged that nothing linked the Université ouvrière to “Moscow’s agents.”37 On the other hand, the RCMP was eager that the local forces use their authority to seize Communist publications. No amount of surveillance, however, could stop the publication of the francophone Communist newspaper Vie ouvrière, which authorities deemed “outside the law and filled with sedition.” Vie ouvrière managed to come out eleven times between May 1933 and June 1934.38 In Quebec, section 98 of the Criminal Code was used more than once, if not to crush then at least to harass and deter Communist and other radical activities. In 1930, in response to what it called “class terror,” the Third International founded the International Red Aid, which in Canada was named the Canadian Labour Defence League. All those being arrested at the time for left-wing activities could ill afford a lawyer, could not put up bail, and were in need of advice on how to behave in court. The League provided support to these individuals, focusing particularly on foreign workers threatened with deportation. As a mass organization, it appealed to people outside the party, including civil libertarians of different allegiances, and it soon claimed to have twenty-five hundred members, the vast majority foreign-born.39 Apart from providing lawyers for the defence, the CLDL was very active in advising the accused on how to defend themselves in and outside the courtroom and on how to use the court to spread their message. At their plenary meeting on 11–12 July 1931, the members addressed the “increasing terror.” They stressed not so much the defence of arrested comrades but the importance of mass protest and of self-defence. The accused were encouraged to carry out their own defence, rather than seek “the best available lawyer,” and to pay fines only

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in exceptional cases. The struggle was to be political rather than legal, and directed against the law of sedition and of unlawful assembly.40 In 1934 a pamphlet entitled Workers’ Self-Defense in the Courts explained every step of the legal proceedings facing those arrested.41 Repression and restriction on freedom of expression elicited protests not only from Communists but also from other civil-rights advocates. Frank R. Scott, law professor at McGill University, complained in a letter to the Montreal Gazette about the loose definition of “sedition” in the Criminal Code. The next day, Montreal Chief of Police Hulbrit Langevin answered that seditious words included “all words contrary to law and justice,” a rather broad definition.42 The First Trials for Sedition The Communist Party of Canada On 19 January 1931, at 3 p.m., the Montreal police raided the Labor Temple on Saint-Dominique Street where the Unemployed Workers Association was holding a meeting attended by about three hundred people. At the beginning of the evening, a young Scotsman, Don Chalmers, pointed to the back of the hall and said: “There is a big husky stool pigeon in the back … he is working for those robbers of the city hall.” Indeed, constables L. Marion and J. Caron were taking down his talk.43 The economic depression had deepened to unpredicted levels, and the provincial government had just voted twenty million dollars for unemployed relief. Chalmers was followed by Dave Kashtan, Philippe Richer (who addressed the crowd in French), Fred Rose, and Tom Miller. They expressed their doubts as to how these funds would be used and their fear that the money would line the politicians’ pockets rather than help those who queued up at soup kitchens. They asked for more aid for the jobless, for the protection of unemployed tenants, and for an increase in the wages paid on public works. They also insisted on their right to protest without police interference. At the end of the evening, the speakers, together with three members of the public, were arrested and taken away in handcuffs, but not before there were some clashes with the police. The constables described what happened: “The police started to react and we had to defend ourselves with bludgeons against the aggressors who were hitting us with their fists.”44 Chalmers, Richer, Kashtan, Miller, and Rose were charged with sedition, uttering seditious words, unlawful assembly, and inciting a riot. Justice Charles A. Wilson of the Court of King’s Bench, who presided over their

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jury trial, dropped the sedition charge but the jury convicted them on the other counts.45 The young activists were sentenced to harsh terms that were served at the Bordeaux jail. Their lawyer, Michael Garber, of the firm Garber and Blumenstein, appealed the convictions to the Appeal Division of the Court of King’s Bench on the grounds that Judge Wilson had erred in trying them all together for the same offence, that he did not read the relevant section of the Criminal Code to the jury, that the proof was insufficient, and “that it was not uttering with seditious intent to point out the errors of the government of the country, and to try by legal means to effect change.” Justice Noël Dorion denied the appeal, saying that Justice Wilson “did better than cite the section: he explained this point so well that the jury no doubt understood it better than if the law had been read to them.” The verdict of the joint trial was upheld since the accused were deemed to have acted together and “incited the crowd to revolt against the established authority or against certain classes of society.”46 Special leave to appeal to the Supreme Court of Canada was granted by Justice Smith, in chambers, on the ground that on first sight the judgment conflicted with the judgment of the Ontario Court of Appeal in The King v. Buck. However, the Supreme Court of Canada denied the appeal in an oral judgment on the ground that there was no conflict.47 The prisoners’ presence at Bordeaux jail, in a suburb of Montreal, caused the prison governor some problems. On 15 November 1932 he wrote the attorney general asking to have four of the Communists transferred to the Quebec prison: the group had to be broken up because Miller had been overheard telling a visitor that all was well and he would not be there very long. This was construed as an intention to escape, and was corroborated by a “trustworthy man” who reported that there was “an association of people ready to do anything to help the five jailed individuals.”48 His comments could have been a reference to the efforts of the CLDL, which was seeking to get the prisoners released by having their sentence appealed. The prisoners were all set free between November 1932 and July 1933. Don Chalmers, who was born in Scotland, was sent back to his native country after serving his sentence.49 According to a militant at the time, these arrests, and those of the CPC leaders in Toronto, alarmed some comrades, who decided to keep a low profile while engaging in workers’ education in the evenings.50 But others were spurred to action and held more protest meetings under the auspices of the CLDL. Every year since 1924, Communists the world over marked the anniversary of Lenin’s death on 22 January. Thus, four days after the arrests of Chalmers et al. on 19 January, about twelve hundred people filled Prince

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Arthur Hall for the commemoration. The police broke up the meeting and arrested Philip Halperin (Halpern), editor of the Yiddish paper Der Kampf, and Leslie Morris, a Communist journalist from Toronto, while people chanted “Down with police terror! Long live communism!” Scuffles ensued and a chair landed on a constable’s head, provoking others to use their batons “in self-defence.” A number of people were injured and eighteen landed at the police station, including Don Chalmers and David Kashtan, who had just been released.51 Halperin and Morris were tried together for uttering seditious words on 23 January 1931 and were convicted to one year in prison with hard labour.52 In passing sentence, on 14 March 1932, Justice Wilson admonished Morris and explained his harsh sentence: “People who come here to preach Communist doctrines are going to be severely dealt with. We are a peace-loving race here in Quebec and we don’t want any young firebrands coming here to stir up trouble. You, Morris, said in the course of your speech at the Prince Arthur hall [sic] that the best way for people to get what they wanted was to use force. That is why I am adding the hard labor rider to my sentence. You will have to exert yourself at hard labor and that may have the effect of curbing some of your forceful tendencies.”53 Aged thirty-four, Morris was used to strenuous work, having worked in the coal mines of England and Wales, and he did not appear perturbed by the sentence.54 Michael Garber appealed the judgment on legal grounds: “In charging the accused of uttering seditious words, it merely names the offence, but does not give the elements of the offence, particularly the words alleged to have been uttered by the accused. The indictment is furthermore defective for the reason that it joins two accused in one count, charging an offence which is several and not joint, seeing that the accused did not utter the same words but delivered different speeches at different times.”55 When the appeal was heard on 12 January 1933, the crown moved: “Whereas the Appellant has filed no factum in support of his appeal; that the appeal be dismissed.”56 Garber had not pursued the matter because, in the meantime, the Supreme Court of Canada dismissed the appeal in the Chalmers case, where the defence’s arguments were the same as Garber’s.57 Morris served his sentence, and Halperin died in jail. Still, at the beginning of 1931, a third trial fuelled fear of communism in Quebec. In this climate of alarm and repression, the CLDL had invited J. Louis Engdahl, American secretary of the International Labor League, to speak in Montreal on the deportations of militant workers. The invitation was timely; protests against the recent arrests at the Labor Temple and at the Prince Arthur Hall were foremost in every comrade’s mind. The

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Montreal police were probably warned about Engdahl, a well-known figure in left circles. Born in the United States, he had been convicted under the Espionage Act for opposing his country’s entry in the war in 1917 (although the conviction was subsequently overturned); in 1926 he had been Communist candidate for governor of Illinois and, in 1930, for lieutenant governor of New York. The protest meeting of 30 January was well attended by some eight hundred to one thousand people, including about fifty members of the Montreal police “red squad.”58 According to Constable Joseph Caron’s notes, the chair, Bella Gordon, Montreal secretary of the CLDL, spoke for about fifteen minutes, calling the meeting to protest against “arrests, deportations and fake justice.” Engdahl did not speak long since after saying, according to the police, “I am here to start the revolution with you fellow workers, and help down the capitalists with its tool the government,” three constables forcibly removed him from the stage while he shouted “Start the revolution! Long live the revolution!” Both Engdahl and Gordon were charged with sedition.59 At trial, Gordon and Engdahl’s lawyer, Michael Garber, tried to discredit constable Caron’s notes, suggesting that he may have put words in Engdahl’s mouth. It was widely believed in the party that the arrests were a frame-up.60 Both Engdahl and Gordon were convicted. Engdahl went back to the United States, and Gordon was sent to prison pending her appeal, which she won the following spring.61 All told, by the end of 1931, in Quebec nine persons had faced or were facing trial on charges of sedition or uttering seditious words: Louis Engdahl, Bella Gordon, Leslie Morris, Philip Halperin, Tom Miller, David Kashtan, Don Chalmers, Philippe Richer, and Fred Rose. Following that winter’s crackdown, the CLDL found itself having to defend twenty-eight persons and put up bail bonds for a total of $12,000. While militants were arrested from Vancouver to Halifax, the harshest repression took place in Toronto in August 1931, when, as we have seen, federal, provincial, and municipal police raided the CPC Central Committee headquarters and arrested several of its leaders. They were convicted of being members of an illegal organization and sentenced to prison.62 As a result, the CPC was unequivocally deemed an illegal organization throughout Canada. In Quebec as elsewhere in Canada, the CLDL multiplied its protests against the arrests of CPC leaders in Toronto, increasing its membership with the influx of outraged defenders of civil rights. Repression fed Left activities in Montreal, and far from being inhibited by the numerous raids, the comrades used the court cases to popularize

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their cause. Protest assemblies were regularly held and their leaders were often arrested, tried, and convicted in municipal court. Appeals to provincial superior courts often followed. Those out on bail while their cases were appealed were not cowed. When greeted by their comrades, they gave speeches denouncing their sentences. For example, on 26 February 1932, two thousand people came to hear Don Chalmers and Charles Ouimet speak at a meeting at Prince Arthur Hall held to protest the arrest of a group of unemployed on their way to Quebec City to ask for aid. The Université ouvrière joined its voice to that of the CPC to protest these arrests and invited anglophone speakers Alex Gauld, Don Chalmers (out on bail), R. Wright, and M. Clement to its meetings.63 Fred Rose, waiting for his appeal, gave a speech protesting the deportation of a Toronto man (Daniel Malone).64 Emboldened by the clashes with the forces of order, the Communists held public events all through January 1931 either on behalf of the jobless and destitute or to protest arrests and deportation orders. On the 21st, the Montreal police dispersed about twenty unemployed men asking for work in front of city hall. Such events were referred to in the press as dangerous “gatherings of a considerable number” of Russians, Germans, and Poles led by Communists.65 Not all arrests led to spectacular trials. Most demonstrators – people who found themselves at the wrong place at the wrong time – appeared in the recorder’s court. This was the case for an unemployed man who was arrested together with the speakers at the Labor Temple. He had arrived in Montreal a year earlier and lived at the Meurling Refuge for unemployed men. The recorder’s court judge, Joseph-Amédée Thouin, condemned him to three months in jail with forced labour for having attempted to obstruct a police officer, plus an additional eight days for uttering threats. In passing sentence, Thouin commented that the accused “was not a victim of lack of work, but simply a lazy man whose main fault was to be heartless.” Thouin added, “People of this calibre can only do one thing, and that is to swell the ranks of the communists.”66 H. Frost, another unemployed man, was arrested on 7 July 1931 for distributing leaflets. The police found a formula for making bombs in his pocket. It seemed to have been a frame-up since the paper had the words nitro-glycerine and sulphur on it.67 These were not isolated cases; other men were charged with uttering seditious words in the Meurling Refuge. Unable to afford a lawyer, they were usually sentenced to jail.68 If speakers at Communist assemblies were the first targets of repression, printers and booksellers of Communist material were close seconds. Starting in 1933, at the outset of Taschereau’s campaign against Bolshevik

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activities, the police visited various bookshops, the most notorious being the Hidden Bookstore, asking for Communist publications that shop assistants gladly provided, only to find themselves questioned about the origins of such literature. The police seized various pamphlets and copies of Vie ouvrière, a new Communist newspaper, as seditious literature. On 25 January 1933 a raid on the Coopérative d’Imprimerie Spartakus resulted in the seizure of five thousand copies of Spartakus, “the organ of the unemployed party,” some copies of Saint-Martin’s pamphlet Sandwiches à la ‘shouashe’, and some music sheets of the Internationale.69 Université ouvrière Numerous police reports referred to Albert Saint-Martin as a Communist. For years, the police had been unsuccessfully trying to charge him with sedition and to close the Université ouvrière. In 1933 concerted efforts between the municipal and the provincial police finally brought results. On 21 February 1933 Saint-Martin was charged with blasphemous libel for his pamphlet Sandwiches à la ‘shouashe’, found guilty, fined $100 or three months in prison, and required to post a $500 bond to keep the peace.70 In June 1933 he faced another trial for seditious libel. Was the court really being serious when it questioned his mental health and ordered a medical report?71 At seventy, Saint-Martin was sound of mind, as the medical report showed, his speeches and writings were consistent with his socialist ideas, and he wanted nothing less than a revolution to help the working class, especially the unemployed. This may have been sufficient for many to think him insane. Despite posting a $500 bond twice to keep the peace, SaintMartin remained undeterred.72 In January 1934 he was asking the jobless and often homeless to get arrested in order to go to jail. In March he was an invited speaker at a CCF meeting presided over by J.S. Woodworth.73 A few days later, besides being charged with blasphemous libel for an article in Spartakus, he was charged again, this time with oral blasphemy and for “counsel[ling] the persons gathered together at 1408 Montcalm ... to commit an offence under paragraph E of section 238 and section 239 of the Criminal Code.” Saint-Martin appeared before the Court of King’s Bench where he pleaded not guilty to all the charges against him.74 One can only speculate as to why Chief Lalonde intervened with a letter to the deputy attorney general recommending clemency. Lanctôt contacted Premier Taschereau who, as attorney general, signed the nolle prosequi for the charge of oral blasphemy. Saint-Martin was convicted on the other charge of blasphemy but the sentence was light: a fine of $25 plus $66.70 in costs.75

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Gaston Pilon, a pillar of the Université ouvrière, was a maverick. Displaying a gift for oratory, his colourful speeches repeatedly denounced religion and the Catholic Church. Communists such as Stanley Bréhaut Ryerson considered him something of a buffoon and never took him very seriously, but even he had to admit that Pilon could draw a crowd that responded to his invectives against priests and nuns.76 Thanks to an infiltrator named Lavoie, in 1934 the police visited the Université ouvrière premises and took notes on the anti-religious, political, and indecent caricatures decorating the walls, which only confirmed the outrageous character of the place. One day, Pilon went too far: in a well-prepared lecture on the history of the papacy, he called the confessionals “the biggest brothels in the Church and the Vatican the largest brothel organization that ever existed.”77 Pilon was charged with blasphemous libel and pleaded guilty. On 21 June 1934 Judge Wilson sentenced him to one year of forced labour and a bond of $1,000 upon his release to keep the peace for one year.78 In jail Pilon “converted” and proceeded to denounce his former comrades.79 Communists had been right to keep their distance and to consider him unreliable. The tenacity shown by the authorities in tracking down Left radicals of various orientations starkly contrasted with the impunity granted the students who sacked the premises of the Université ouvrière in 1930, burning the piano, throwing out books, and causing damages of $6,000, or those who disrupted Communist assemblies, as did the Catholic Young Workers in the name of Christ the King in 1931.80 When Saint-Martin and Émile Godin were severely beaten up, the police intervened only when SaintMartin was on the ground and ready to be taken to hospital for serious head injuries.81 The same indifference from the authorities greeted the demolition of the Communist election headquarters by university students during the federal electoral campaign in September and October 1935.82 Rouyn-Noranda The Abitibi Frontier While Montreal was the scene of Left and Right agitation, in the northwestern corner of Quebec, Communists also led workers’ demonstrations and labour conflicts. Even if the CPC was bemoaning the lack of progress outside Montreal, the police kept a close eye on Quebec City, as well as on the industrial towns of Beauharnois, Thetford Mines, Cowansville, and Rouyn-Noranda, a lumber and mining centre in Abitibi.83 Here on

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Quebec’s frontier, their suspicions were well founded for the WUL set up the Lumber Workers Industrial Union (LWIU) as well as the Mine Workers Union of Canada (MWUC). Two natural resources formed the backbone of the economy in Abitibi – lumber and minerals, especially copper and gold – and in both industries the workforce lived and worked in appalling conditions. Lumbermen tended to be French Canadians; a minority were immigrants. Miners were largely Poles, Ukrainians, Finns, and Yugoslavs, with a sprinkling of French and English Canadians.84 French Canadian workers were usually single young men brought to this peripheral region from places as far away as Gaspé, or forced out of the city by unemployment. Others were poor farmers who made some cash in the winter by working in lumber camps. Most of them had had very little contact with the Communist movement, but some of the workers from central Europe had a background of radicalism and activism and were eager to use their experience in resisting exploitation. The Ukrainian and Finnish communities, for instance, were split between those who gathered around their church and those who attended the Labor Temple. The region’s large contingent of immigrants proved receptive to critiques of capitalism, and from 1925, when the Ukrainian Labor Temple opened in the newly founded city of less than one hundred people, there was a Communist presence in Rouyn. The hall was an active social centre, holding concerts, dances, recitals, and children’s classes in Ukrainian. Hundreds came to see the film The Miracle of Soldier Ivan, somehow smuggled in since it had been censured by the province of Quebec for making a mockery of miracles.85 The Temple hosted prominent comrades from Ontario and from Montreal, including CPC secretary Tim Buck, CLDL general secretary A.E. Smith, and CLDL secretary Bella Gordon.86 In Rouyn, Communists also established a local of the Unemployed Workers Association because the booming area attracted more workers than there were jobs in the mines and in the forest, and known “troublemakers” were promptly dismissed. As a result, there were unemployed men here as elsewhere during the Depression.87 Under the watchful eye of the police, the Abitibi mines and lumber camps were hotbeds of labour militancy. For instance, when one thousand people gathered in front of the Finnish Hall to celebrate May Day in 1932, the police declared the assembly unlawful, turned water hoses on the crowd, and arrested thirty-one “foreigners.”88 Workers rose first in the lumber camps in November 1933, and then the men working in the Noranda Mines downed their tools in June 1934.89

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The Lumberjacks’ Strike On 29 November 1933 some two hundred and fifty loggers along the Clerion River, about thirty miles from Rouyn-Noranda, presented their demands to their employer, Canadian International Paper (CIP); these demands included wage increases, access to a medical doctor, and better working conditions. The company rebuked the men, took security measures, and quickly hired scabs while the police banned any march of over ten people. The thirty-one-year-old staff-sergeant of the provincial police, Kenneth H. Turnbull, sent a note to the provincial police in Amos explaining that “the strike is a fairly delicate situation to handle and cannot be treated as a Communist affair as 80% of those involved are French Canadians who have absolutely no leaning towards Communism whatsoever.” He added: “Would like to have an opportunity to try out the new ‘gas’ equipment which you sent me but am afraid I am going to be disappointed,” referring to the tear gas he was to use a few days later.90 On 8 December, Harry Raketti, who introduced himself as the organizer for the LWIU, a union affiliated with the WUL, made his comments about the “brass buttons” – quoted at the beginning of this chapter – in front of an audience estimated at more than three thousand people gathered in the Ukrainian Labor Temple. He was arrested the next morning and charged under section 134 of the Criminal Code for uttering seditious words. The next day, Raketti’s comrade Jeanne Corbin visited him in jail and then addressed an assembly of strikers and their supporters in the Ukrainian Labor Temple. Standing under a photo of Lenin, Corbin, the twentyseven-year-old CLDL secretary in Timmins, Jerry Donahue, an organizer from the Kirkland region, and Ana Evanik, the militant wife of George Evanik, spoke words of encouragement to the lumbermen. Corbin, who was born in France, spoke in French and in English, denouncing the arrest of Raketti and encouraging the audience to join the picket line, adding that if need be “the women will go out to help them.”91 On Monday 11 December, while the strikers persisted in blocking the road to the camps, the CIP manager phoned Turnbull three times before the sergeant called L.-O. Tardif, a justice of the peace, who read the Riot Act twice, at 10:20 a.m. and at 10:52 a.m., after which Turnbull fired the first tear-gas cartridge. Others followed, then the police charged with their riot clubs “knocking down about 30 men in ten seconds.”92 As Turnbull reported later, “not a single man held back; in fact they vied with each other to see who might fall upon the rioters first.”93 Ten lumbermen were arrested immediately; about sixty-one were chased and arrested, many

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suffering head injuries; and a few others were arrested in town, making a total of seventy-seven. They were brought before the magistrate on 20 December on charges of illegal assembly and all were convicted: three got twelve months in jail, six got six months, and four got four months. Sixtyfour others, presumed to have acted in ignorance, received suspended sentences of six months.94 Corbin and others held another meeting on the evening of 11 December, the day the Riot Act was read, and were promptly arrested for encouraging the strikers to picket and preventing the scabs from going to the camps. The next day, Turnbull sent a telegram to inform the deputy attorney general of the arrests of various individuals, including Corbin, Raketti, Annie Evanik, and others, for having participated in an unlawful assembly. Charles Lanctôt answered from Quebec City that the agitators should be charged under section 98 if possible.95 In July 1934 the accused, including Jeanne Corbin, appeared in Ville-Marie, Témiscamingue, in front of Judge Nelson Pinder, charged with illegal assembly. Eighteen of them were convicted: sixteen were sentenced to two years in prison, one to eighteen months, and another to six months. One of the accused was convicted of loitering and was sentenced to two months in jail. On 11 December, a further charge – for abetting the strike – was laid against Jeanne Corbin. When she produced $1,000 bail two days later, Turnbull “at once” laid another charge under section 192 of the Criminal Code for failing to disperse under the Riot Act, and rearrested her. This time Corbin, or the CLDL on her behalf, could not produce the $2,500 bail. From the Noranda jail, Corbin wrote Beckie Buhay, Toronto secretary of the CLDL, asking for that sum and adding, “I never knew I was worth so much.”96 A copy of this letter made its way to the attorney general’s office via Turnbull. Corbin remained in the Noranda jail from 11 December until the preliminary hearing on 21 December. She chose a trial by jury and Michael Garber defended her at the Court of King’s Bench. Out on bail between 22 December and 22 January, she worked actively for the CLDL, recruiting members and, as Turnbull put it, “doing her best to stir up more trouble.”97 Corbin’s trial took place in Amos on 10 November 1934. Notwithstanding the attorney general’s wishes, the charge of sedition had been withdrawn, and Garber succeeded in having the charge of incitement to riot changed to incitement to illegal assembly. She was convicted and sentenced to three months in the Ville-Marie jail.98 The CLDL publicized Corbin’s trial and the trials of the other accused in the Communist press and at protest meetings held all over Canada. Years later Corbin was remembered as a heroine of the party.99

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As for Raketti, on 26 November 1934 his appearance in the Court of King’s Bench aroused much interest and the judge had to clear the room before the case was heard. An anglophone jury found Raketti guilty, and Justice Roméo Langlais sentenced him to eighteen months in jail, refusing to count the time spent in prison while awaiting trial towards completion of the sentence.100 Defence lawyer Michael Garber appealed Raketti’s conviction for seditious utterances and the sentence of eighteen months in prison on the grounds of insufficient evidence, claiming that there was no proof that his client spoke those words and errors on the part of the judge in his address to the jury. Appeal Court Judge J.M. Tellier overturned the seditious-utterances conviction on the basis that, although the words uttered were “condemnable,” they were not of a seditious nature. Raketti was freed on 14 May 1935, after serving eighteen months in jail, and deported to the United States, his native country.101 At the same meeting of 11 December at the Ukrainian Labor Temple, Jerry Donahue also encouraged the strikers. Like Corbin, he was charged with inciting the men to join an illegal assembly under section 98 and of being a member of an illegal assembly. Donahue awaited his trial in the Amos jail from December 1933 to July 1934, when his lawyer got him released on $500 bail. Donahue refused to have a lawyer when he appeared in front of the justice of the peace for the preliminary hearing on 30 April 1934. This was in line with the advice given by the CLDL to its members. The first charge was dropped but he still had to face trial for being a member of an illegal assembly. At his trial by jury, in November 1934, he was convicted for participating in an illegal assembly and sentenced to six months of forced labour.102 As for Ana Evanik, who was incarcerated from 11 to 21 December, the magistrate dismissed her case for lack of evidence.103 Noranda Mines No sooner had the lumbermen been quieted than the city’s attention shifted to the miners. In April 1934 Noranda Mines, fearing a strike, started to discharge those it had identified as agitators.104 The Communists organized events at the Finnish Hall and the Ukrainian Labor Temple, with local speakers and comrades from northeast Ontario and, just before May Day, with A.E. Smith.105 Given the recent troubles, the authorities were determined to quash any disturbance on May Day. After the mayor of Rouyn wrote the attorney general to inform him that he expected trouble on the 1st of May, Lanctôt asked the Liquor Commission not to

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allow the sale of alcoholic beverages on that day; he also asked local hotels, taverns, and grocery stores for their cooperation. The city authorities refused to grant the United Front May Day Committee permission to hold a march in Rouyn or Noranda.106 Despite Sergeant Turnbull’s assurance that he would be able to handle the expected troubles himself, the provincial police dispatched five men equipped with twelve rifles with twelve hundred rounds of ammunition, fifty steel helmets, four “C.N. Fast tears candles,” two smoke bombs, twelve no. 12 gauge tear-gas cartridges, five revolvers with five hundred cartridges, twelve leather rifle slings, and five truncheons. The provincial police also allowed Turnbull to recruit “special constables.”107 As well, the RCMP sent four constables. Fearing an influx of protesters, Turnbull and the Canadian National Railway police arranged to have all hoboes, drifters, and free-riders dragged off freight trains for about ten days. Given all these measures, Turnbull called that Tuesday “the quietest May Day ever known in Rouyn since 1930.”108 A few months after the lumbermen’s strike, the miners and workers at Noranda Mines, organized by the MWUC, struck for better working conditions and increased wages. In the region, they were known as Fros, for foreigners. Noranda Mines dominated the region and made Noranda a typical company town: it was exempt from municipal taxes and the president of the company also served as mayor of the city.109 In the midst of the Depression, the copper-producing company maintained its profits and shareholders collected their dividends. The harsh climate and dangerous working conditions did not discourage immigrants from making their way to the new Eldorado. Poles, Finns, Ukrainians, Austrians, and others from central Europe formed over half of the workforce in Noranda Mines and in the region as a whole. They were the Fros. The next largest groups were English Canadians, followed by the French Canadians. The MWUC started organizing in July 1933; a year later, its members were more than ready to take strike action. Miners worked six days a week and, in theory, eight hours a day – but in fact they also had to add two hours to go down into the mine and back. Miners complained of inadequate ventilation underground and air pollution in the foundry. They also asked for paid overtime and a 10 per cent raise in wages, which had been cut by 5 per cent in 1931.110 The manager, H.L. Roscoe, refused to negotiate with the MWUC and on 12 June 1934 the men stopped work and set up a picket line in front of the mine. As the foremen went recruiting among the unemployed of the city, there were skirmishes and some stones were thrown at a truck transporting the replacements.111 Two days into the strike, special constables were sworn in, while members of the provincial police and of the RCMP converged on Rouyn.

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The strike lasted a week; the strikers were sacked and replaced, often by unemployed French Canadians. The organizers were arrested; thirty-four men were charged with inciting to riot or participating in a riot according to sections 89 and 90 of the Criminal Code, or simply for taking part in an unlawful assembly. Bail was set at the then astronomical sum of between $500 and $1,500. Michael Garber, again appointed by the CLDL, defended the strikers, who were tried and convicted by a jury, presided over by Justice Langlais.112 Those charged only with unlawful assembly got a sixmonth sentence at the district jail; the majority, accused of inciting riot or taking part in a riot, were given a stiff sentences of two years at Saint-Vincent-de-Paul penitentiary.113 Garber appealed the convictions on the basis of lack of evidence, incomplete or prejudicial instruction to the jury, and on points of law, but he was unsuccessful.114 Many of the men, recently arrived in Canada, were liable to be deported after serving their sentence. The heavy sentences provoked a wave of protests. A year after the event, five people, most of whom had no connection with the CPC or the CLDL, were charged and convicted of sedition for sending a strongly worded letter to Premier Taschereau protesting the imprisonment of miners in Amos.115 The arrests reveal the nervousness of the authorities when it came to any support for Communists, but they also show Taschereau’s determination to demonstrate that provincial Liberals were not soft on communism even if the repeal of section 98 was on the program of the federal Liberals. The third period in the history of Canadian communism, coinciding as it did with the Bennett years, proved the most costly for Communists and other radicals. Deportations and fear of deportations took their toll among immigrants. Arrests, intimidation, harassment, and especially the real threat of being cut off relief ensured that only the most determined risked attending meetings and public demonstrations. Yet thousands in Montreal took to the streets or flocked to the Université ouvrière, Prince Arthur Hall, and the Labor Temples, motivated by a sense of justice, a belief in the need for change, or often by their personal experience of the Depression. While high unemployment lasted until the end of the decade, the political scene shifted at the federal and at the provincial levels in 1935 and 1936, with direct consequences for the repression of social unrest. the red scare revisited, 1936–40 The federal Liberal victory of October 1935 resulted in the undoing of a number of Conservative policies. Of particular interest for the Left was the repeal of section 98 of the Criminal Code (although sedition remained

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a crime under the amended section 133), and, for immigrants, the sudden decrease in deportations.116 On the other hand, in Quebec, in August 1936, the Union Nationale replaced the discredited long-ruling Liberals and promised to take the necessary measures to extirpate communism from the province. Just as the Quebec government and the Catholic Church embarked on an aggressive anti-Communist crusade, the Communist movement worldwide changed course. In response to the threat of fascism in Europe, the Comintern took a bold turn towards a common front of all progressive elements. Gone were the days of non-cooperation with other groups on the Left, as Communist parties around the world abandoned their revolutionary rhetoric. In Canada, the WUL dismantled itself and instructed its members to join the international unions and turn their energies to the defeat of the forces of reaction. The repeal of section 98 in August 1936 caused consternation in Catholic circles, which organized a campaign to reinstate the crime of sedition and, at the provincial level, to pressure the government into adopting some legislation against communism. Cardinal Rodrigue Villeneuve was in the vanguard of those who protested against the repeal of section 98 and called on the federal government to stop the immigration of Communists.117 The cardinal was influential and supported Duplessis, and although there was an official separation of church and state, the premier, a devout Catholic conservative from Trois-Rivières, placed a crucifix above the speaker’s chair in the Legislative Assembly. In January 1937 Villeneuve put together a secret committee to study the extent of Communist activities in the province. The committee’s report to the premier recommended what was to become “An Act to Protect the Province against Communist Propaganda,” passed by the Legislative Assembly on 24 March 1937. The act, which became known as the Padlock Law, authorized police authorities to lock, for one year, any premises suspected of being used for the propagation of communism, and allowed the confiscation of literature, printing presses, and any other means of spreading Communist propaganda. People convicted under the law were liable to a year’s imprisonment. Nowhere were the terms Bolshevism or communism defined and there was no presumption of innocence. Defenders of civil rights were quick to point out that the law violated freedom of speech, of assembly, and of the press, and mobilized to seek its repeal. The Padlock Law was well timed, coming as it did four days after the publication of the anti-Communist papal encyclical Divini Redemptoris, widely commented upon in the media. As if to confirm the timeliness of the law, on 24 October 1936, some Communist leaflets were found inside

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the Legislative Assembly, a provocative gesture that prompted Maurice Duplessis to promise “energetic measures against this scum and those foreigners.”118 Quebec was not alone in its attempts to crush radicals that year: in Ontario, Premier Mitch Hepburn sent his volunteer police against the strikers at General Motors in Oshawa. Yet, as David Frank shows in his chapter in this volume, Nova Scotia adopted another tactic, partially accommodating some of the demands of the labour movement by passing the Nova Scotia Trade Union Act to pre-empt labour unrest. “We know that Christian civilization is in grave danger,” wrote the secretary of the Société Saint-Jean-Baptiste to Ernest Lapointe, the Canadian minister of justice.119 The premier, the cardinal, the Catholic unions, and the media all appeared to share such apocalyptic visions, but their discourse did not translate into more trials against Communists, largely because most owners of public halls refused to rent their premises to people suspected of being Communists. The exception was the legendary doctor Norman Bethune, who filled the Mont-Royal Arena in June 1937 on a fund-raising tour for Spanish orphans 120 The Padlock Law, like section 98, was pre-emptive; if there were few trials under the act, there was nevertheless a high level of intimidation, invasion of privacy, and interference with freedom of assembly. Places deemed to harbour Communist propaganda and printers, bookshop proprietors, and homes of Communists were raided and books were confiscated. In November 1937 the provincial police first targeted the office of the new Communist newspaper Clarté and its printer, Artistic Printing, following this up the next day with a visit to the home of the paper’s director, Jean Péron. They walked out with three boxes of files, letters, and other papers.121 In December, police raided the homes of Communist leaders Évariste Dubé, member of the Central Committee of the CPC, and Louis Kon, chairman of District no. 2 of the Friends of the Soviet Union, and of trade unionists Lea Roback, Berthe Caron, Lucien Dufour, and Fred Rose, the last of whom had been an unsuccessful Communist candidate in the 1935 elections. When the police entered the apartment of the editor of Clarté, Stanley Bréhaut Ryerson, then teaching at Sir George Williams College, they seized his notes and some forty books.122 All told, in 1938, the police paid some forty visits to the homes of Communist militants, offices of the Young Communist League, and unions affiliated with the Congress of Industrial Organizations (CIO).123 In this constant game of cat and mouse, it is astounding that Clarté, which was declared an illegal publication, had only two issues seized in two years. The general anti-Communist climate explains why the Lessard-Drouin

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trial aroused so much public interest in 1938. François-Xavier Lessard, a forty-two-year-old joiner and carpenter, and a contributor to Clarté, lived in Quebec City, where Communist activities were not as frequent as in Montreal and where most Communists were francophones. After a few raids on Lessard’s third-storey flat, the police seized a large amount of literature and correspondence, and on 21 July 1938 they padlocked his door. The Human Rights League may have wanted a test case when it allegedly advised Lessard to break the lock. Lessard did so the next evening, while two comrades prevented the police from getting out of their car parked in front of the house. Lessard was arrested for breaching the Padlock Law, and he and Joseph Drouin, who had obstructed the police, were charged with plotting to prevent the police from doing their duty. The Human Rights League put up bail and the two accused were free until their trial in October. At the assizes, their lawyers, Robert L. Calder and his colleagues Joseph K. Mergler and Gerald Coote, challenged the constitutionality of the law but to no avail.124 The jury, presided over by Justice Roméo Langlais, found the accused guilty and Langlais sentenced Lessard to two years’ imprisonment. Lawyers Calder and Lafontaine appealed to the Court of King’s Bench, where Noel Dorion and Antoine Rivard, the crown counsel, vehemently defended the constitutionality of the law: “The law does not create any new offence, said Rivard, it simply forbids a citizen to use his lodgings to propagate communism. The government has considered this propaganda a source of trouble and nuisance, and has wanted to prevent the development of crimes such as sedition.” The law, then, was simply a means of crime prevention.125 The court denied the appeal on the grounds that the accused were charged and convicted with conspiracy to resist and obstruct police officers and that it was not a defence to claim that the law was unconstitutional.126 After the passage of the Padlock Law, Communists, socialists, and civil libertarians of all stripes tried to have it declared unconstitutional. At a time of anti-fascist mobilization in response to the events in Europe, and when Communists were willing to unite their forces with other progressive elements, there was wide support even outside the party for denouncing the legislation.127 The Padlock Law was ultimately declared ultra vires in 1957.128 While the law was a great inconvenience to the radical forces in Quebec, it did not result in many trials and in fact inspired a number of protest meetings that worked in favour of recruiting, so that in the late thirties the CLDL counted thousands of members across Canada. We do not know how many meetings the Padlock Law prevented, but it did not stifle militancy, as witnessed, for instance, in the garment workers’ strikes

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of 1937, in which Communists such as Lea Roback played a prominent role.129 In times of economic uncertainty, when public agitation and radical rhetoric threaten the social order, alarm takes on an increasing importance in the public discourse, and the powers-that-be quickly take repressive action to safeguard their interests. Section 98 of the Criminal Code progressively lost its raison d’être, and those who opposed its repeal in 1936 were a minority in Canada. Not so in Quebec, where the Catholic Church, politicians, and a large section of the press kept alive the fear of imminent attacks on the state and the church by a demonized adversary. The Padlock Law was passed unanimously with the support of the majority of the population. One may question the sincerity of the belief that a Communist-led revolution was imminent in Quebec, or that a Communist conspiracy was responsible when a church burnt down, but the demagogic use of Red Scare served well the purposes of a political party like the Union Nationale and the designs of the Catholic Church. Communists did indeed want to threaten the social order; this was their avowed mission. Objectively, Quebec, with one of the most oppressed proletariats in Canada, should have been fertile ground for change: Weren’t French Canadians the “weak link” in the Canadian chain of capitalism? Albert Saint-Martin understood this as well as the CPC theorists, and his popularity, his ability to approach workers and unemployed in their own language, on subjects that touched them, showed that the “masses” could be moved, and that the authorities were right in considering him and his supporters as important if not more important than the official CPC. The criminalization of Left challenges to the established order proved an effective deterrent in that some militants were jailed and at times deported under section 98 and the Immigration Act, and Communist organizing became extremely difficult when premises risked being padlocked, halls closed, and private homes raided. Yet since activists are, at least theoretically, motivated by a sense of justice and self-righteousness, repression can also become a tool for propaganda rather than an obstacle to change. The numerous arrests in the early 1930s resulted in more meetings and protest demonstrations. Under the Padlock Law, protests came not just from the Communist Left but also from civil libertarians of all quarters, CCFers, and left-liberals. Repression never enjoyed unanimous support at any point in this whole period. Nonetheless, the Catholic Church, together with a number of politicians and intellectuals, kept alive a Red Scare that never abated in the inter-war period. What changed were the means used to defend the social order.

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N otes   1 Since I first worked in the Quebec judicial archives, Court of Sessions, and Court of King’s Bench, some thirty years ago, the archivists saw fit to prune their holdings. In the judicial district of Montreal, only 5 to 10 per cent of case records have been preserved. This explain why trial records that were accessible up to about ten years ago, like those concerning the trials of Communists in 1931, or of Albert Saint-Martin in 1934, have gone to the shredder. (Fortunately, I still have photocopies of some documents from the attorney general’s office in Quebec City.) Moreover, all index, plumitifs, and registres, as well as trial records since 1933, are unavailable without special permission. This is in consideration for people who now ask for pardons and want to have all trace of their record erased.   2 King v. Harry Leonard Raketti (November 1934), no. 1674, Pontiac, Court of King’s Bench (hereafter CKB). Tellingly, in Sergeant Turnbull’s first letter of affidavit, Rakett’s name was spelled Redketti.   3 Claude Larivière, Albert Saint-Martin, militant d’avant-garde (Montreal: Éditions coopératives Albert Saint-Martin 1979), 73–4.   4 Geoffrey Ewen, “Quebec: Class and Ethnicity,” in Craig Heron, ed., The Workers’ Revolt in Canada, 1919–1925 (Toronto : University of Toronto Press 1998), 110–11.   5 “Conférence d’A. Lavergne à l’Action française,” in J.-P. Archambault, Les syndicats catholiques: une digue contre le bolchevisme (Montreal: École sociale populaire 1919), 69–70.   6 Gregory S. Kealey and Reg Whitaker, eds., R.C.M.P. Security Bulletins: The Early Years, 1919–1929 (St John’s: Canadian Committee on Labour History 1994), 138, 222, 317.   7 The Université ouvrière got its charter under the Loi des bibliothèques et des instituts d’artisans, c.256, S.R.Q. 1925. The first administrators were Évariste Dubé, president, Télesphore Galarneau, treasurer, Conrad Dumas, secretary, Zotique Langlois, organizer, Louis Pelletier, Roméo Boisclair, Émile Godin, Charles Godin, and Albert Saint-Martin.   8 There was a francophone presence in the CPC. Jeanne Corbin was sent to Montreal from Toronto to help organize French Canadian workers; later, in 1937, Stanley Bréhaut Ryerson, after studying in Paris, settled in Montreal where he edited the French-language Communist paper Clarté. At least five francophones pursued their Marxist education at the Lenin School in Moscow.   9 Vie ouvrière, November 1933. Communist invectives increased after SaintMartin embraced disarmament and advocated passive resistance à la Gandhi.

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Red Scares and Repression in Quebec  317 10 See Stephen L. Endicott, Raising the Workers’ Flag: The Workers Unity League of Canada (Toronto: University of Toronto Press 2012). 11 Canada, Department of Labour, 20th Annual Report, 1930, 187; L’Ouvrier canadien, 15 May 1930; Andrée Lévesque, Virage à gauche interdit. Les communistes, les socialistes et leurs ennemis au Québec 1929–1939 (Montreal: Boréal 1984), 135. 12 The Worker, 30 July 1930; see also Lévesque, Virage, 50. 13 Although deportations for criminal causes were on the rise, the majority of deported were sick, physically or mentally. Barbara Roberts, Whence They Came: Deportation from Canada, 1900–1935 (Ottawa: University of Ottawa Press 1988), especially ch. 7 on “troublemakers” and Communists deported from 1930 to 1935, and ch. 8, which focuses on the so-called “redundant” deported in the 1930–5 period. 14 La Patrie, 22 Jan. 1931. In the same week, the newspaper reported the first of a series of anti-Communist lectures organized by the Cercle d’études sociales Caron and delivered by the chaplain of the Catholic unions. Also, the chaplain of the Société Saint-Jean-Baptiste recommended that all its sections hold anti-Communist meetings: Le Canada, 27 and 30 Jan. 1931. 15 Mgr Georges Gauthier, “Circulaire de l’archevêque-coadjuteur de Montréal,” Mandements, lettres pastorales, circulaires et autres documents, vol. 18 (Montreal: Arbour et Dupont 1940), 11 Jan. 1931, 165. 16 Lévesque, Virage, 122–3. 17 U. Viau to Premier L.-Alexandre Taschereau, 17 Feb. 1932, Bibliothèque et Archives nationales du Québec (hereafter BAnQ), Attorney General Papers (hereafter AGP). 18 “Communistes,” in “Rapport résumant les activités principales du département contre les communistes en 1932,” AGP, 31 Oct. 1932, 419/32; 1325–31– 722/33. 19 Gratton to L.-A. Taschereau, 1 March 1932, AGP E17. 20 “Communistes,” Montreal, G. Rioux to Maurice Lalonde, 31 Nov. 1932, follow-up on file AGP 419/32; 1325–31–722/33: “À cette salle ceux qui y assistent ont l’air de véritables miséreux et font pitié mal habillés et presque pieds-nu [sic] et se demandent entre eux de quoi fumer et manger.” 21 In its first year, the Red Squad attended 421 assemblies of the Third International, and 380 of the Second International; the next year, 802 and 381 respectively. City of Montreal, Police Annual Report 1933, 39; 1934, 39. Lévesque, Virage, 136. 22 Lalonde to Lantôt, 3 March 1934, AGP 506–1934. Kon was president of the Friends of the Soviet Union. 23 G.H.R. to Lalonde, 1 Aug. 1932, AGP 419/32; 15 Aug. 1932, 419/32. 24 Notes re. “Démonstration des sans-travail à Québec,” 31 July 1931, AGP

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25 26 27 28 29 30 31

32

33 34

35 36 37 38

4269–31. The director of the Canadian Labour Defence League in Montreal provided a free room where he received the comrades on whom he would then file a report; letter to Lalonde, 18 Jan. 1932; G.H.E. to Lalonde, 15 Aug. 1932, 419/32. Ernest Bertrand, c.r. to Lanctôt, 7 March 1933, 722/33, CKB, TP9, S2, SS1, BAnQ, Montreal; Lalonde to Lantôt, “Résultat d’un voyage à Montréal. Au sujet des activités communistes,” April 1933. Maurice C. Lalonde to Charles Lantôt, C.R , 7 March 1933, AGP 722–33, CC4-33. “Communistes,” Montreal, Rioux to Maurice Lalonde, 31 Nov. 1932, AGP 419/32; 1325–31–722/33. “Rapports d’enquêtes spéciales,” 20 April 1933; also reports in 1934, AGP 506, 1934. Graeme S. Mount, Canada’s Enemies: Spies and Spying in the Peaceable Kingdom (Toronto Dundurn Press 1993), 51. P.S. Benoit, Department of National Defence to Lanctôt, assistant attorney general, 31 March 1932, AGP 858/32. Lalonde to Lanctôt, 8 May 1931, AGP 656/31, 56/31, p. 9. Quebec Provincial Police, 2 Oct. 1931, 676–31, AGP. Section 40 specified the different grounds for deportation; section 41, amended in 1926, made noncitizens liable to deportation under section 40 even if they had been domiciled in Canada for over five years. Roberts, Whence They Came, 30–1, 129–30. See also Dennis Molinaro’s chapter in this volume. Viau to L.-Alexandre Taschereau, 17 Feb. 1932; “Association catholique de Trois-Rivières,” AGP 3249/31; anon., Lac Mégantic, and anon., to L.A. Taschereau, 1 Jan. 1933, AGP 419/32; 1325/31, 722/33. “Communistes,” Lac Mégantic, anon. to L.A. Taschereau, 1 Jan. 1933, AGP 419/32; 1325/31–722/33. ACJC was a youth organization, for fifteen to thirty year olds, founded in 1904 by, among others, the nationalist historian Lionel Groulx. Among the organizations asking for a repeal of the Université ouvrière’s charter, one finds the Catholic committee of the Conseil de l’Instruction publique, the Maisonneuve Workers’ Club, the Knights of Columbus, the Société Saint-Vincent-dePaul, the Association des voyageurs de commerce, the Union catholique des cultivateurs, and the insurance company La Sauvegarde. Adrien Gratton to L.A. Taschereau, 1 March 1932, AGP E17. Quebec, Legislative Assembly, 18th legislature, 2nd session, 27 March and 4 April 1933. Charles Lanctôt, “Résultat d’un voyage à Montréal. Au sujet des activités communistes,” April 1933, AGP; Montreal Gazette, 10 April 1933. Andrée Lévesque, Red Travellers: Jeanne Corbin and Her Comrades (Montreal

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39 40

41

42 43 44

45 46 47 48 49

50 51

52 53 54

55 56 57 58

and Kingston, ON: McGill-Queen’s University Press 2006), 91–4; correspondence, AGP 722/33. Archives of Ontario (AO), Attorney General of Ontario Papers (AGOP), 11C2876, p. 2. AGOP, 11C2869, p. 4; J. Petryshyn, “Class Conflict and Civil Liberties: The Origins and Activities of the Canadian Labour Defence League, 1925–1940,” Labour/Le Travail, 10 (1982): 39–63. CLDL, Workers’ Self-Defense in the Courts, 1934, LAC, MG28, IV, 4, vol. 61. The manual gave as an example the defence of Annie Buller, arrested in Estevan, Saskatchewan, in September of that year. Montreal Gazette, 3 Feb. 1931; Le Canada, 4 Feb. 1931. Montreal, Magistrate Court, November 1931, in AO, AGOP 11C2905. Le Canada, 20 Jan. 1931; AGP, FLDO, 11C 2905–2910, Procès-verbal de l’interrogatoire des constables L. Marion et J. Caron, 30 Jan. 1931. Author’s translation. This episode is related in Lévesque, Red Travellers, 74. Chalmers et al. v. King (1931) CKB TP9, S2, SS1, SSS7 no. 51, G.P. 599. Chalmers et al. v. King (1932) CKB, Q.R. 52 K.B. 244. David Chalmers et al. v. King, 26 March 1932, 1847/32, Notice of appeal, AGP 1847/32; Chalmers et al. v. the King [1933] SCR 196 (19 Oct. 1932). Correspondence, 3 Dec. 1932, AGP 7038–32. David Chalmers et al. v. King (26 March 1932), Notice of appeal, AGP 1847/32; Andrée Lévesque, “Du Rouge sur la Main pendant les années trente,” Bulletin des chercheurs et chercheuses en histoire du travail au Québec (RCHTQ) (spring 2002): 6. Marcel Fournier, Communisme et anticommunisme au Québec (1920–1950) (Montreal: Éditions coopératives Albert Saint-Martin 1979), 55. Le Canada, 24 Jan. 1931; La Patrie, 24 Jan. 1931; AGOP 11C2905, 11 Nov. 1931. Leslie Morris was to serve as general secretary of the CPC in 1962–4. Halperin had already been arrested for disorderly conduct in Toronto in 1929, in fact for speaking Yiddish in public. Lévesque, Red Travellers, 42 CKB, Montreal, Index 1931, no. 51, G.P. 599. Montreal Gazette, 15 March 1932. Between his arrest in 1931 and his sentence in 1933, Morris had run as United Front candidate in the Manitoba elections of June 1932. He had a long career in the Communist Party, succeeding Tim Buck as general secretary in 1962. “Amended notice of appeal on questions of law,” CKB, Leslie Morris v. The King (24 March 1932), no. 44, AGP TP12, S2, SS29, SSS8. Leslie Morris v. The King (1932), no. 44. Ibid. Montreal Daily Star, 31 Jan. 1931. Communists always maintained that it was

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59

60

61

62 63 64 65 66 67 68

69

70 71 72 73 74 75

a frame-up and that the police transcribed his notes after the meeting: La Patrie, 25 Feb. 1931; 2A0910, Jeanne Corbin to Tom Ewen, 1 March 1931, AGOP, Communist Party of Canada. Minutes of the trial in the Magistrate’s Court of Montreal found their way into the CPC archives seized by the Toronto police during the raid of August 1931. AGOP 11C2911. Engdahl died suddenly in Moscow in 1932 while on a trip concerning the liberation of the Scottsboro boys, nine African American teenagers accused of rape in Alabama, eight of whom were sentenced to death. CKB, Montreal (1913) Index, TP9, S1 SS1, SSS7, no. 76; TP9, S2, SS1, SSS7, no. 599. In May, Gordon and Engdahl’s appeal was successful, but there is no longer any trace of the trial itself. See Dennis Molinaro’s chapter in this volume. Letter to Maurice Lalonde, 2 March 1932, AGP 419/32. Letter to Maurice Lalonde, 1 Oct. 1932, AGP 419/32, 1325–31–722/33. Roberts, Whence They Came, 147. La Patrie, 21 Jan. 1931. Le Canada, 28 Jan. 1931. AGOP 11C2899. CKB, Montreal (1931) TP9, S2, SS1, SSS1, no. 1515. In February 1931 Peter Mozeppa was charged for uttering seditious words while trying to get boarders at the Meurling Refuge to sign a petition and participate in a demonstration asking for non-contributory unemployment insurance. He was found unfit to stand trial on account of insanity and sent to jail “until the pleasure of the Lieutenant Governor of the Province.” Albert Saint-Martin, Sandwiches “à la shouashe” (Montreal: Coopérative d’imprimerie Spartakus 1932), 25 pp. First published in the paper Spaartakus, this text takes the form of a trial where legislators and charity organizations are accused of killing the unemployed and of making them sick with shouashe, scraps of canned meat to be spread on bread, which was distributed in institutions. Court of Sessions of the Peace (hereafter CSP), Montreal (5 Feb. 1935) TP12, S2, SS29, no. 322. CKB, Montreal (21 June 1933) TP9, S2, SS1, G.P. 1558, no. 134; GP 774. CSP, Montreal (1933) TP12, S2, SS1, SSS1 no. 322. Lalonde to Lanctôt, 22 March 1934, AGP 506–34. At least in 1933 and 1935, the CCF was under surveillance and a police informant attended its meetings. CKB, Montreal (1934), G.P. 1557; TP9, S2, SS1, no. 118. Procureur au Palais de Justice de Montréal to L.A. Taschereau, 4 Feb. 1935, AGP 478–34; CKB Montreal (5 Feb. 1935), TP9, S2, SS1; 5770, no. 242.

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Red Scares and Repression in Quebec  321 76 77 78 79 80 81

82

83

84 85 86 87 88 89

90 91 92

93 94 95 96 97

Conversation with S.B. Ryerson, 1982. CKB, Montreal (1934) TP9, S2, SS1, no. 58, G.P. 15958. Lalonde to Lanctôt, 26 June 1934, AGP 478–34, CC3–34. Le Soleil, 29 Sept. 1934. Lalonde to Lanctôt, 26 June 1934, AGP 478–34, CC3–34. Claude Larivière, “Albert Saint-Martin, pionnier du socialisme,” Possibles, 1, nos. 3–4 (spring 1977): 210. Saint-Martin was less active publicly after this incident. He wrote a pamphlet entitled Frankenstein ou consommateurs (1939). Gregory S. Kealey and Reg Whitaker, eds., R.C.M.P. Security Bulletins: The Depression Years, pt. 2, 1935, 508, 539. Damage incurred on 5 October amounted to $200. Another attempt to wreck the Communist premises were stopped by the police a week later. Rapport sur le mouvement communiste dans la province de Québec, 1932, 419/32, AGP; Andrée Lévesque, “Le Québec et la monde communiste: Cowansville, 1931,” Revue d’histoire de l’Amérique française, 34, no. 2 ( 1980): 171–82. The Noranda strike is discussed in Lévesque, Red Travellers, 95–108. Quebec, Régie du cinéma, Bureau de censure, 1930, https://www.rcq.gouv. qc.ca/Documents/la_regie/Films%20censurés%201927-1936.pdf. Lalonde to Lanctôt, 8 May 1931, AGP 656–31, 56–31, p. 4. National Unemployed Association, Rouyn local council, to the town council, 5 Aug. and 1 Sept. 1931, AGP 656–31. Lévesque, Red Travellers, 98; Montreal Gazette, 17 May 1932. Guy Gaudreau, “Les causes d’une participation à la grève: grévistes et nongrévistes de la Noranda Mines Ltd, juin 1934,” Labour/Le Travail, 44 (fall 1999): 47–70. “Notes du S/Sgt. Turnbull, Rouyn,” 6 Dec. 1933, AGP 7212–33. King v. Jeanne Corbin, #1683, CKB, Pontiac (22 Jan. 1934). King v. Joseph Henry Jeremy Donahue (20 April, 4 Dec. 1934), CKB, Pontiac, no. 1807; Amos, no. 2477. For his action, Chief Lalonde, of the Provincial Police, recommended to the attorney general that Turnbull and his men be commended for their bravery and for “the best known exploit accomplished with such a small number.” Lalonde to Lantôt, 11 Jan. 1934, 7212–33. Kenneth H. Turnbull to Lanctôt, 6 Jan. 1934, AGP 7212–33. Ibid. Lanctôt to Turnbull, Quebec, 12 Dec. 1933, AGP 7212–33; 481/34; 737/34. Jeanne Corbin to Becky Buhay, Noranda, 14 Dec. 1933, AGP 7212–33; 481/34; 737/34. K.H. Turnbull to Lalonde, chief of Provincial Police, Rouyn, 9 Jan. 1934, AGP 7212–33; 481/34; 737/34. It was reported in the press that Corbin had been charged with sedition, but I found no evidence of this.

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322  a n d r é e lévesque   98 Lévesque, Red Travellers, 105.   99 She died of tuberculosis in 1944 and it was widely believed in Communist circles that she contracted the disease while in jail. 100 King v. Harry Leonard Raketti, CKB, Amos, District of Abitibi, no. 2383 (9 Nov. 1934). Judy Fudge and Eric Tucker, Labour before Law: The Regulation of Workers’ Collective Action in Canada, 1900–1948 (Toronto: Oxford University Press 2001), 172. 101 King v. Raketti, Notice of appeal, CKB, Amos, J.M. Tellier judgment (20 Dec. 1933); Quebec City, 14 May 1935, AGP no. 2903. 102 King v. Jerry Donahue (26 July 1934), CKB, Amos, no. 1807, sentence 4 Dec. 1934. 103 Turnbull to Lalonde, Rouyn, 8 Jan. 1934, AGP 7212–33; 481/34; 737/34. 104 Turnbull to Deputy Attorney General, 28 April 1934, AGP 2376–4. 105 Constable Gérard Monet to Department of Attorney General, 30 April 1934, AGP 2336–34. 106 Turnbull to Lanctôt, 20 April 1934; Romuald Gagné to Lanctôt, 19 April 1934; Lanctôt to Turnbull, 23 April 1934; Lanctôt to La Commission des Liqueurs, 23 April 1934, AGP S.P. 2637–34. 107 Provincial Police to Attorney General, 28 April 1934, AGP, no. 2385–34. 108 Turnbull to Lalonde, “May Day 1934 Rouyn and Noranda,” 15 May 1934, AGP, no. 2406–34. 109 Benoît Beaudry Gourd, Mines et syndicats en Abitibi-Témiscamingue 1910–1950, (Cahiers du Département d’histoire et de géographie, Travaux de recherche, no 2; Rouyn: Collège du Nord-Ouest 1981), 76–7; Marc Riopel, À travers le temps (Hudson, Q.C., 2004); Jean-Michel Catta, La grève des bûcherons de Rouyn, 1933 (Rouyn: Cahiers du département d’histoire et de géographie 1985). 110 Gourd, Mines et syndicats, 314. This strike is the subject of Évelyn Dumas, “La Grève des Fros”: Dans le sommeil de nos os (Montreal: Leméac 1971), 25–42, a work based on interviews with some of the participants. 111 King v. Sustar et al. (24 Nov. 1934), CKB, Pontiac, no. 2604. 112 King v. Mat Persil (27 Nov. 1934), CKB, Pontiac, no. 2605. 113 Turnbull v. George Evoniuk (13 Sept. 1934), no. 1850; King v. George Evoniuk (27 Nov. 1934), CKB, Amos. 114 King v. Sustar et al. (24 Nov. 1934), CKB, Pontiac, no. 2604; (20 Dec. 1934), King v. Karl Bacich; Eleniuk v. the King (10 Nov. 1934) CKB, Pontiac; Turnbull to the attorney general, 15 Dec. 1934, AGP S.P. 2637–34. 115 Kealey and Whitaker, eds., R.C.M.P. Security Bulletins: The Depression Years, pt. 2, 1935, 30 April 1935, 286, 602. 116 See Molinaro’s chapter in this volume.

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Red Scares and Repression in Quebec  323 117 Ernest Lapointe papers, LAC, MG27-III B10, vol. 39; Université du Québec à Trois-Rivières, Maurice Le Noblet Duplessis papers, P122, Rodrigue Villeneuve to Maurice Duplessis, 19 Jan. 1937. 118 Montreal Daily Star, 17 Oct. 1936. 119 Ernest Lapointe papers, Alphonse de la Rochelle to Ernest Lapointe, 26 March 1938, LAC, MG27-IIIB10, vol. 39, d. 18–2. 120 Le Canada, 15 June 1937. The crowd was estimated at over 7,800 people. These incidents are dealt with in Lévesque, “Du Rouge sur la ‘Main.’” 121 Clarté, 4 Dec. 1937. 122 Ibid., 1 Jan. 1938. 123 Fournier, Communisme et anticommunisme, 56. According to the Canadian Civil Liberties Union, between November 1937 and May 1938, there were 124 raids under the Padlock Law, and 532 books were seized as well as 5,000 copies of Clarté and 1,500 copies of the Clarion. For a list of the persons and organizations raided under the Padlock Law, see Canadian Civil Liberties Union, Bulletin, 1 (2 February 1938) 1; 3 (21 May 1939): 1. 124 Calder was vice-chairman of the Montreal branch of the Canadian Civil Liberties Union. Mergler was legal counsel. 125 Le Soleil, 21 July 1938; Montreal Gazette, 9 Aug. 1938; L’Action catholique, 29 Oct. 1938; Canadian Civil Liberties Union, Bulletin, 7 (January 1939): 2. The case was popularized by an anti-Communist campaigner who published a pamphlet on the subject: Édouard Laurent, Une enquête sur le communisme à Québec (Montreal: École Sociale Populaire, no. 303, April 1939). 126 Lessard and another v. The King (1939), Quebec Q.R. 67 CKB 448. 127 Eugene Forsey and Frank R. Scott waged their campaign against the Padlock Law in the pages of the Canadian Forum, while the Communist newspapers Daily Worker and Clarté kept denouncing the act. 128 In Switzman v. Elbling, [1957] SCR 285, the Supreme Court quashed the act as unconstitutional because it was beyond provincial jurisdiction. Frank Scott wrote the factum. Switzman’s lawyers were Albert Marcus and Abraham Feiner. 129 Andrée Lévesque, “Les midinettes de 1937: culture ouvrière, culture du genre, culture ethnique,” in Yvan Lamonde and Denis Saint-Jacques, eds., 1937 un tournant culturel (Quebec: Les Presses de l’Université Laval 2009), 71–87.

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9 Section 98: The Trial of Rex v. Buck et al. and the “State of Exception” in Canada, 1919–36 DENNIS G. MOLINARO

Section 98 of the Canadian Criminal Code was one of the most contentious and unusual provisions in Canada’s criminal law. Previous studies have dealt with section 98 in the context of civil rights, particularly how it was designed and administered to curtail the activities of organized labour and radical parties such as the Communist Party of Canada (CPC). There are few studies dealing with the broader effects of section 98, or of the law’s intimate connection to the War Measures Act (WMA) and the consequences of using such emergency powers in a time of peace.1 Section 98 was created in 1919 as a response to Canada’s labour revolt from 1917 to 1919, and was an identical copy of Order-in-Council PC 2384, a wartime measure that was designed to outlaw leftist groups during the First World War which were perceived to be a threat to Canada’s war effort and security.2 The effect of making this emergency wartime measure part of the Criminal Code was profound. Activity that was previously confined to a wartime emergency, that is, “political policing,” was now deemed acceptable in peacetime. The creation of section 98 marked a watershed in Canadian history whereby the government began, to borrow a phrase from Leo Panitch and Donald Swartz, a policy of “permanent exceptionalism” by extending former emergency measures to combat unacceptable political views.3 My contention is that section 98 was more than an extension of exceptional measures to outlaw seditious organizations and provide a wide ongoing mandate for “political policing”; it was also an attempt to regulate ac-

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ceptable political ideology and behaviours during peacetime. Such targeting of ideology implicitly helped set the boundaries of what political behaviours and ideologies were acceptable, and conversely, functioned as a method of nation building. Those political groups and associated affiliations that section 98 targeted were marked as illegitimate and excluded from the national community.4 In this chapter I re-examine section 98 and its importance to Canadian legal, labour, and immigration history. The chapter begins by revealing how section 98 was a legislated form of wartime executive orders under the WMA and was inserted by the government into the Criminal Code during the labour revolt as a means of preventing future unrest.5 I focus next on how the law functioned in the courts through a case study of the best-known section 98 trial, Rex v. Buck et al. in 1931, followed by an assessment of the fallout of the trial in terms of how it affected the CPC’s foreign-born members. While section 98 did not state that it was illegal to believe in ideologies like communism, it was directed at suppressing open expression of support for that ideology by individuals and organizations like the CPC. By attempting to curtail the expression of such radical ideas, the government hoped to stop their spread and discourage society from adopting them. Because no violent acts were committed by the accused in the Buck trial, the ideology of the accused served as the criminal act. With the trial concluded, the government engaged in a widespread deportation campaign targeting immigrants suspected of having ties to the CPC, even when deportation could result in torture or execution in the home country. I conclude by examining the movement to repeal section 98 and its mixed success. Notwithstanding the eventual repeal of section 98, the power to use the criminal law against unwanted political ideologies remained and could be resurrected in future emergencies. By re-examining section 98, historians can begin to see serious violations of civil liberties in Canadian history less as moments of crisis than as a systemic, recurring pattern along a continuum that began when section 98 enabled the “permanence of the temporary.”6 origins of an exceptional law In the latter stages of the First World War, the Union government led by Robert Borden found itself in a difficult position. The war had gone on longer than expected, government spending had increased, and demand for goods was high, accelerating inflation. Discontent with conscription

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was intense, particularly in Quebec, and the Bolshevik Revolution in Russia had inspired local socialists and anarchists to become more militant in opposition to the war and capitalism in general.7 During the First World War and for one year after, the country was governed through the War Measures Act, which was passed at the outbreak of the war in 1914.8 The act enabled the government to declare an emergency and then to issue decrees for war and security purposes, with no direct parliamentary oversight apart from ratification of the emergency.9 To counter the threat the government believed it faced at the hands of dangerous foreigners, that is, politically radical immigrants, Borden commissioned C.H. Cahan in 1918, a Montreal-based lawyer, to investigate the problem and devise a solution. Cahan reported that he believed foreign workers were “thoroughly saturated with the Socialistic doctrines which have been proclaimed by the Bolsheviki faction of Russia” and that the country was in danger of succumbing to a Russian-style revolution. He recommended new laws similar to the U.S. Espionage Act.10 Agreeing with Cahan, the government exercised its powers under the WMA and issued PC 2384 on 25 September 1918. This new order-in-council, as Gregory Kealey notes, was designed to repress left-wing activity during the later stages of the war.11 It allowed any organization to be labelled unlawful if it advocated economic or political change by force or violence, with force being undefined in the decree. Members of an unlawful organization could be jailed for wearing a badge or attending a meeting.12 The effect of PC 2384 was the mass arrest of members of a number of socialist and anarchist groups and individuals who opposed the government on everything from conscription to Canada’s role in the war and capitalism. The government considered expressions of such views as disloyal and counter-productive to the war effort. By outlawing groups and arresting individuals that expressed these ideas, the government hoped it could restore the population’s commitment to the war effort, which it believed to be fading as the war dragged on in part because of the actions of agitators. It also believed that, by taking action against these individuals and groups, it could prevent a Bolshevik Revolution from occurring in Canada.13 The labour revolt continued and intensified after the war. The government maintained wartime orders-in-council in the transition to peace well into 1919 but PC 2384 was repealed on 2 April 1919 for several reasons. The government recognized that the WMA as a wartime measure should not be relied upon in peacetime. PC 2384 in particular was contentious within Borden’s Union government. Some influential Liberals, such as Newton

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Rowell and Thomas Crearar, opposed the government’s heavy-handed approach, especially against groups such as the Social Democratic Party (SDP), which had been declared unlawful under PC 2384. Rowell did not believe that a labour political party that had existed “unmolested” for ten years should be outlawed because the government opposed its “ideas.”14 Yet, given the seriousness of the post-war threat of revolt, the government was convinced that something needed to be done for Canada’s long-term security.15 Many influential individuals, such as A.B. Perry, commissioner of the Royal North-West Mounted Police, Arthur Meighen, the acting minister of justice, and Hugh Guthrie, the solicitor general, favoured tough measures to deal with radicalism.16 In May 1919 Borden’s government put together a special committee on sedition to investigate its legal options. The committee decided in favour of the creation of a new Criminal Code provision, section 98.17 Guthrie presented the findings of the committee in the House on 6 June 1919. Guthrie stressed that a new situation had arisen, with many organizations carrying on dangerous propaganda that could prove to be a “serious menace to free institutions.” This was an international threat. Groups that threatened the United States and Europe were also active in Canada and needed to be controlled. They were Bolshevist organizations, “not native to the soil of this free country; for the most part they are foreign importations.” Guthrie concluded: “I believe the time has come when action should be taken by this Parliament to put in statutory form some, at least, of the provisions which did appear in those Orders-in-Council [PC 2384].” He believed that sedition was not well understood by many in Canada and could not agree with the offence being left undefined in the Criminal Code. The new section would add to the Code, he argued, making it more useful by defining, as Arthur Meighen put it decades later when referring to section 98’s creation, a particular type of sedition, namely communism.18 These proposed changes were part of a gradual transition in the state’s expectation of what Canada’s Criminal Code could achieve. The trend over the nineteenth century had increasingly shifted from “reactive to pre-emptive” in the way government dealt with political crimes. The conception of allegiance changed from what was formally a personal bond between the subject and the sovereign to loyalty to an “abstract state.” Within Britain and British North America there was, as Susan Binnie and Barry Wright point out, a “growing Lockean notion that criticism of authority was a right.”19 Seditious words, libels, and conspiracies were common law offences. This changed when the offences were legislatively

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restated in the 1892 Canadian Criminal Code, although the opportunity to set out a precise and limited modern definition of sedition was lost. In Sir John Thompson’s original codification bill, seditious intention was defined as an intention that sought to “bring into hatred or contempt” the governing authority, to “excite” citizens into “alteration of any matters of state” by unlawful means, or to promote “disaffection” or “ill-will” between classes.20 As Desmond Brown details, the necessity of a definition for sedition was challenged in the House. Louis Davies, for example, argued that sedition offences were intimately connected to the common law, which is “elastic and justly elastic. It is made by the prudence of the judges ... to suit the development of the people and the constitution.”21 A defined sedition law would cripple the ability of judges to weigh each case on its own merits, which an offence such as sedition demanded given the incredibly fine line between sedition and freedom of speech. While the concession left much in the hands of judicial discretion, the Code also included a saving clause as a reference point. Section 133 stated that no one could be found guilty of sedition for lawful criticism of the government.22 The special committee of 1919, however, recommended the removal of the saving clause, the effect of which would be to permit judges to interpret more expansively what might be captured by the definition of sedition. The government effectively blurred the line between sedition and free speech with the recommended amendments. There would be no reference to lawful criticism. In addition to amending the law of sedition, the government also introduced a new provision in the Criminal Code, section 98, which was nearly identical to PC 2384. The special committee aimed to make a sweeping wartime measure into a permanent feature of Canadian criminal law. The legislation was tabled in the House of Commons on 27 June 1919. It was passed with little debate and was introduced on 5 July in the Senate, where it also passed quickly, receiving royal assent on 7 July 1919.23 Three specific sections will be discussed in greater detail as they pertain to the key trials of the inter-war period: 98(1), which dealt with “unlawful organizations”; 98(3), which defined members or officers of unlawful organizations; and 98(8), which dealt with individual seditious actions. Section 98(1) was designed to outlaw radical political groups “whose professed purpose” was to “bring about any governmental, industrial or economic change” by the use of “force or violence” or any group that advocated or taught such beliefs.24 Parliament sought to target socialist or Communist groups with its expanded definition of sedition in section 98(1) but it created more questions than answers. Section 98 contained

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no definition of force. Labour groups opposed section 98, fearing that strikes would be classed as means of forcing economic change and unions as unlawful organizations. Justice Thomas Llewellyn Metcalfe’s closing remarks in the R.B. Russell trial following the Winnipeg General Strike reinforced their fears. Metcalfe considered strikes a way of using force to win concessions as well as inspiring terror.25 The section also contained no definition of “teaching” or “advocating.” Did an association have to actively advise its members to commit a violent act or did simply telling them there would be an eventual revolution, following Karl Marx, qualify as teaching or advocating? For instance, the CPC did indeed teach that the proletariat would overthrow the bourgeoisie in a revolution but Marx never stipulated that the revolution would be violent, only that it would occur when conditions were ripe. These were issues debated among CPC members and between Marxists, but section 98 did not take into account such nuances. A group that embraced the general view that a revolution was necessary and inevitable was potentially unlawful under this section. Subsection 3 of section 98 made it an offence for anyone to be a member or officer of such an organization.26 Yet no procedures in the Code set out how a group could be classified as unlawful other than by a judicial determination in the context of a trial. This omission created the potential for an individual to be charged with being a member or officer of an unlawful organization without the organization having been previously classified as such by a lawful authority. Such was the situation that leading members of the CPC faced in their November 1931 trial. Finally, subsection 8 extended section 98’s reach. Any person who “prints, publishes, edits, issues, circulates, sells, or offers for sale or distribution any book, newspaper, periodical, pamphlet, picture, paper, circular, card, letter, writing, print, publication or document of any kind” that taught or advocated the use of force to accomplish governmental change, if convicted, could face imprisonment for twenty years.27 The vagueness of the terms “force,” “teaching,” and “advocating” was thus extended to documents. An individual could be guilty under section 98(8) for simply sharing an unlawful article in a newspaper with another person or for sharing their socialist or Communist views with others if the discussion included Marx’s theories on revolution. Other subsections of section 98 were just as draconian. Section 98(2) allowed the RCMP to seize property suspected of belonging to an unlawful organization. Section 98(5) provided that anyone renting a hall to a group that was later found to be an unlawful organization could be fined $5,000 and face imprisonment. Section 98(11) made it a duty of any government worker in any department to seize any

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book or document covered by the section and turn it over immediately to the RCMP. This made civil servants an untrained body of intelligence gatherers for the government. Section 98 severely hampered an individual’s free speech and association largely because the terms in the section such as force, teaching, and advocating could be broadly interpreted by judges. Moreover, it facilitated convictions. Section 98(4) stipulated that, to prove membership in an unlawful association, the crown needed to establish only that a person had “attended meetings,” “spoken publicly in advocacy of an unlawful organization,” or “distributed literature.” These actions created a rebuttable presumption that the individual was a member of an unlawful organization.28 If an individual spoke out in support of an unlawful organization or attended a meeting of a group that was later found to be an unlawful organization, that person would be required to prove her or his innocence.29 In effect, an individual who believed in or sympathized with communism had to keep her or his political views secret. Significantly, section 98 was passed alongside amendments to section 41 of the Immigration Act, which targeted politically active, indigent, or non-conforming immigrants.30 The government possessed the power to deport immigrant radicals under the 1910 Immigration Act, but the 1919 amendments expanded that power to include British subjects with domicile.31 The section was identical to section 98 in its wording except that the determination of whether section 41 was violated was made in an administrative process free from the scrutiny of a court; the consequence was deportation. Thus, after 1919 the government had ample tools to target the “pernicious doctrines” of socialism, which it believed, as Senator James Lougheed stated in the Senate in 1919, was an ideology brought about “chiefly by aliens.”32 The two pieces of legislation would protect Canada from the spread of alien ideologies even if, as an editorial in the Halifax Chronicle stated, they had already infected some British-born and Canadians.33 Section 98 and Section 41 were, in essence, a wartime emergency law (PC 2384) enacted in peacetime to target and repress radical political organizations and ideologies like communism.34 The exceptional or emergency law now regulated the politics of all Canadians in everyday life. The exception was now the new normal.35 During the relative calm in labour relations during the 1920s, section 98 and section 41 remained on the books, despite numerous attempts at repeal by J.S. Woodsworth, leader of the Independent Labour Party, who was supported by the Liberals following the 1926 federal election. Although the House passed repeal legislation a number of times, the Senate

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always blocked it. The Conservatives maintained a majority in the Senate throughout the inter-war period but opposition to repeal was bipartisan. Fearing another Winnipeg General Strike or “red rebellion,” as many in the Senate put it, both Conservative and Liberal senators believed that the potential for unrest remained high and considered these laws as exceptional but necessary to prevent communism from being imported and spread across Canada.36 Woodsworth’s earliest attempts to repeal section 98 and the 1919 amendments to section 41 were delayed and deflected by the government as his bills languished in committees. It was only after the 1926 election that Mackenzie King promised Woodsworth that the Liberal government would do its best to support his repeal bills, but the undertaking was in exchange for progressive support for King’s minority government. The bills that passed the House after 1926, and until the Liberals lost the election to R.B. Bennett and the Conservatives in 1930, demanded section 98’s complete repeal. Given the Conservative majority in the Senate, King likely knew that these bills were destined to fail but he needed Woodsworth’s support to keep the government from falling. The issue never garnered the public’s attention as the debates received scant attention in the press.37 The onset of the Great Depression produced widespread unemployment and provided the CPC with fertile ground to recruit more members who had lost faith in capitalism. The CPC’s political strategy in 1929 was firmly in line with Moscow’s. The party believed that capitalism was in its “Third Period” and approaching its final phase. It followed that Communists around the world should prepare for the coming world revolution. Yet Moscow held back on actually ordering the party to engage in revolution. The emphasis was on building the party and ensuring that members were well disciplined. CPC supporters regularly clashed with police as they tried to organize the unemployed or hold demonstrations defending freedom of speech or protesting the government’s handling of the economic crisis.38 In March 1931 federal government officials in cooperation with their provincial counterparts in Ontario, where the CPC national headquarters were located, developed a strategy to silence the CPC and its supporters. On 11 August 1931 that plan was put into action when Toronto police arrested and charged nine leaders and members of the CPC for violating section 98 and section 133(a), the seditious-conspiracy section of the Code. The accused were Tim Buck, John Boychuk, Malcolm Bruce, Sam Carr, A.T. Hill, Tomo 2aôiñ, Tom Ewan, Mike Golinsky, and Matthew Popovich. All but 2aôiñ and Golinksy were considered high-ranking party

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Toronto Communists charged under section 98, 1931: Matthew Popovich, Tom Ewan, Tom Hill, John Boychuk, Mike Golinsky, Sam Carr, Tom 2aôiñ, and Tim Buck (absent, Malcolm Bruce). Source: Thomas Fisher Rare Book Library, University of Toronto, Kenny Collection.

members. The nine (who subsequently became eight when the charges against Golinsky were withdrawn) were initially indicted on two counts. The first count alleged that the accused were members of an unlawful organization, namely the CPC, and the second count stated that they were party to a seditious conspiracy (section 133[a]). The decision to charge the CPC members under section 98 stemmed from the lobbying of, among others, Mayor Ralph Webb of Winnipeg, a fervent anti-Communist, and the Employers’ Association of Manitoba, which met with federal ministers in April 1931 and strongly urged the government to adopt the recommendations of the U.S. Fish Commission, a body that had investigated

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communism in the United States and recommended ways of curtailing it. One of those recommendations was to declare illegal any group “advocating the overthrow of government by force or violence or affiliated with the Communist International (CI) at Moscow.” An added benefit of a successful section 98 prosecution was that, should the party be found to be unlawful, it would allow the government to begin deporting any foreignborn members under section 41.39 “and” or “or”? parliament’s intentions with section 98 In October 1931 the crown presented a copy of the indictment of the CPC leaders and of depositions taken at the preliminary hearing before Chief Justice John Edward Rose of the Ontario Court of Justice. Rose had requested the material in advance of the crown’s presentation to the grand jury in preliminary proceedings, apparently foreseeing problems with the indictment. The accused were charged with violating subsection 3 of section 98, pertaining to officers of an unlawful organization, and with being part of a seditious conspiracy (section 133[a]). When section 98 was created, the section contained an error since it referred to “any person who acts or professes to act as an officer of any such unlawful association, and who shall sell, speak, write or publish anything ...”40 Rose’s position was that membership in an unlawful organization was not an offence because the first “and” in the section was conjunctive. It was thus only an offence to be an officer in the organization and do one of the following enumerated things. Norman Sommerville, lead crown prosecutor in the Buck trial, was forced to confer with the deputy attorney general of Ontario, Edward Bayly, and fellow Toronto crown attorney Major Eric Norman Armour. They concluded that, while Rose was correct in a grammatical sense, it did not make a difference. The section would work, they argued, if the word “and” was read as a disjunctive “or.” Rose was not convinced and claimed that, if the crown decided to go ahead with the indictment, he would be forced to instruct the grand jury that it should be denied. The crown opted to defer submitting the indictment. Sommerville met with W. Stewart Edwards, the federal deputy minister of justice, who accepted Sommerville’s interpretation of section 98 and agreed to help prepare a history of the section for Rose in order to persuade him to see things as they did.41 Edwards’s briefing note outlined how section 98 had been modelled on PC 2384. That order-in-council originally used the word “or” instead of “and” throughout. For instance, it defined a member of an unlawful

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association as any person who “while Canada is engaged in war, shall act, or profess to act as an officer of any such unlawful organization or who shall sell, speak, write or publish anything.”42 Edwards’s focus was on what Parliament intended in drafting section 98 rather than what was actually drafted.43 Parliament intended to outlaw all unlawful organizations and activities related to them “or with the teaching or advocacy of the political doctrines of such an association,” such as communism.44 When Rose heard the crown’s arguments, he was still unconvinced.45 Joseph Sedgwick, Sommerville’s assistant prosecutor, proposed a solution, claiming that the crown could charge all the accused with being officers and members. Evidence could be submitted to prove the unlawfulness of the association, and, following an alteration of the subsection in the next parliamentary session, “proceedings could be taken against those who are mere members of the association, as was always intended.”46 The government’s goal was to ensnare the entire party and all its members with one trial, which was why the crown did not charge the accused under subsection 8. Since there was no procedure for establishing that an organization was unlawful in advance of a prosecution, the crown assumed that, by charging the accused under subsection 3, it would have the opportunity to prove the CPC’s unlawfulness in court. The indictment was revised to charge the group on three counts. The first count was for being officers of an unlawful organization and the second was for being members. The third count was for being party to a seditious conspiracy. It was presented to the grand jury and a true bill was handed down. a “small, ruthless, iron-disciplined group … with bayonet and rifle” The trial began on 2 November 1931 in the Ontario High Court of Justice, with Sommerville and Sedgwick prosecuting for the crown and Hugh J. Macdonald and Onie Brown representing the defendants. Tim Buck defended himself. Macdonald led the defence for the remaining accused, having been recommended to the CPC by the prominent labour lawyer J.L. Cohen. The grand-nephew of Prime Minister Sir John A. Macdonald, Hugh Macdonald was a graduate of Trinity College, Toronto, and held both an LLD and a PhD. A lawyer with experience comparable to that of Sommerville, Macdonald provided solid representation for the accused.47 Justice William H. Wright was the presiding judge, sixty-six at the time and known among his peers for his stern courtroom demeanour. In 1929 he presided over the sedition trial of another prominent CPC member,

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Arvo Vaara, the editor of the Finnish-language newspaper Vapaus in Sudbury. Vaara was found guilty by the jury after receiving judicial instructions that displayed Wright’s hostility to Communist ideology.48 The CPC trial was covered by newspapers across the country, with the most extensive coverage coming from the Ontario press. The accused were arraigned and pleaded not guilty, but the crown’s troubles with the indictment were not finished. Hugh Macdonald introduced a motion to quash the indictment, arguing that the section 98 charge of being a member of an unlawful association was not a sufficient statement of an offence. He argued that the real issue was the unlawfulness of the CPC and that, while section 98 listed ways that an association might be shown to be unlawful, there was no indication in the indictment of how the CPC was unlawful. No overt act was mentioned that would make the party fit this designation. How, he argued, had the CPC been an unlawful organization over the past ten years? Macdonald stated, “We are taken over a period of ten years without the faintest indication of what is going to be brought up against us.”49 Macdonald argued that this was unprecedented in Canada and England.50 Justice Wright maintained that the indictment was fine if the offence was stated in the language of the Code. Macdonald responded that, even if the judge held the indictment valid, the accused had a right to particulars and that in their absence it would be the equivalent of indicting one of them for a murder that had occurred sometime in the past ten years. He claimed the same issue applied to the count of seditious conspiracy, asking the court, “What was the conspiracy?”51 For Macdonald, this was a bigger issue than language. When Sommerville offered particulars for the third count, Wright stated that it would not satisfy Macdonald, who was arguing that the first two counts were “bad in law.”52 Macdonald agreed. Counts one and two, the two counts pertaining to section 98, were not offences at all. It was as if, as Macdonald stated, “the cart is put before the horse. How can association be tried ... without a statement of the real charge, the how of the crime that is alleged to have been committed?”53 He cited the case of Isaac Bainbridge, leader of the Social Democratic Party, who had been charged a decade earlier with seditious libel. In that case the count, in addition to using the language of the Code, stated the manner in which the crime was committed. Having only a list of two hundred possible exhibits, he argued that all the counts were far too broad for him to defend and should be quashed. Macdonald’s arguments might have held sway in normal circumstances but this was an exceptional trial. Sommerville argued that the first

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and second counts properly set out the offence because the section itself defined an unlawful association. He also cited section 852 of the Code, arguing that the indictment “may be made in popular language without any technical averments ... not essential to be proved.”54 He maintained that, because the nine were members of the CPC, the CPC was part of the CI, and the CI advocated sedition by intending to “incite ill will” between “his majesty’s subjects,” the accused were guilty of an offence. For the third count, the accused were charged with seditious conspiracy because of the CPC’s ties to the CI. This evidence would also demonstrate the party’s unlawfulness. Wright agreed that the first two counts adequately outlined the details of the offence and the crown submitted particulars for them.55 Macdonald was not satisfied with the crown’s particulars for the section 98 counts because they did not address his complaints – merely stating that the CPC was an unlawful organization as per section 98(1) and not demonstrating how it was unlawful. Despite his objections, Wright allowed the crown to proceed. It would be permitted to prove the accused guilty of belonging to an unlawful organization without first having the CPC legally classified as unlawful. The accused pleaded not guilty.56 The nine were denied bail by Wright on the ground that he did not trust that the accused would refrain from participating in an upcoming demonstration to protest the trial; it was after all a “very extraordinary proceeding.”57 Jury selection began on 3 November and produced a jury of the nine’s peers, largely trades workers and farmers.58 Sommerville delivered the opening address to the jury. His goal was to demonstrate how the CPC was linked to the CI and therefore should be regarded as an unlawful organization. He began by reading out to the jury section 98 as well as section 133(a). Sommerville emphasized the evil and treacherous nature of the CPC. He stressed that the trial was not about arguments, ideas, or theories but rather the “deliberate, long continued, subtle, Moscow controlled plot to overturn, by force of arms, by violence, by bloodshed, our institutions of church and state.” The CPC was not interested in peacefully gaining control of Parliament. It was a “small, ruthless, iron-disciplined group” that wanted to copy their Bolshevik heroes in Russia and “with bayonet and rifle” achieve the “bathing of the Country in a bath of blood.”59 This was a war against Parliament by foreign fighters and subversives. Sommerville detailed how the party was constructed and how it operated. He described the party’s tactics in demonstrations, tactics that he believed were designed to divide classes – with the CPC leading work-

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ers – and to turn “artificial situations into civil strife and revolution.” Yet Sommerville offered no evidence or examples of how the CPC was stirring up revolution. The largest protests and conflicts with police, leading up to the arrest of the accused, were demonstrations advocating state-run unemployment insurance and, in 1929, defending the right to free speech. There were no examples of revolutionary work that Sommerville could draw on in his opening address. Instead he relied principally on the ideology of the CPC.60 Sommerville claimed he would show that the CPC was an international party, of which Canada was an important section, and that the CPC did not act alone.61 His argument was that the CPC’s positions and theories were criminal acts, something made possible only because of section 98. In order to secure a conviction under section 98, Sommerville needed ideology to function as the actus reus. Sommerville first sought to prove the accused were officers of the party. The crown’s evidence was often inconsistent and was from police officers who arrested the accused on 11 August 1931. For instance, William Simpson, who arrested Matthew Popovich, claimed that he knew Popovich and John Boychuk to be leaders in the CPC because he witnessed them make several speeches at CPC gatherings, but during the hearing before the grand jury he had stated that he never saw Popovich give a speech.62 Neither Mike Golinsky nor Tomo 2aôiñ were on the original arrest warrant; both were arrested for admitting that they were Communists at the scene of the raids. All attempts by Macdonald to challenge the admission of this evidence were stymied.63 Court was adjourned until 10 a.m. the following day, when the crown presented its star witness in the case, RCMP Sergeant John Leopold. As historians such as Gregory Kealey and Steve Hewitt have documented, John Leopold worked as an undercover agent for the RCMP and penetrated the CPC as “Jack Esselwain,” eventually becoming head of the Regina branch of the party. He joined the party very early in its history, late in 1921, and was expelled in May 1928. Leopold was an atypical Mountie for his time, a Bohemian immigrant able to speak six eastern European languages. He could easily pass scrutiny as an immigrant radical, and, since undercover work was viewed as being un-British in police circles, a foreigner was perfect for the job.64 Leopold’s task was to help prove the accused’s standing in the party. He identified nearly all the accused as officers. His testimony focused on the CPC’s connection to the CI, key to proving the unlawfulness of the party and the seditious conspiracy.65 Leopold testified that some of the accused made trips to Moscow to attend congresses of the CI or for training,

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including Buck, Hill, and Bruce. He tried to link other groups to the CPC, such as the Young Communist League, and to prove that The Worker was the party’s paper. He claimed that Hill and Boychuk represented the Finnish and Ukrainian wings of the party and identified Tom Ewan as head of the party’s radical union organization, the Workers Unity League (WUL). The CPC-controlled WUL was a union-organizing body that advocated non-contributory unemployment insurance, sought to organize the unemployed, and create industrial unions that united workers across all trades in a given industry.66 A.E. Smith, head of the CPC-controlled Canadian Labour Defence League (CLDL), was called as a crown witness and examined by Sedgwick.67 He testified that Buck, Hill, Boychuk, Popovich, Ewan, Bruce, and Carr were all CPC leaders and part of the party’s political committee. He could not identify 2aôiñ as a CPC member, only as a member of Smith’s group. Like his co-accused Golinsky, 2aôiñ was neither a member of the Political Bureau that formed the party leadership nor a leader of any of the party’s subsidiary wings or organizations.68 The crown shifted its focus to the aims and tactics of the party to prove that it was an unlawful organization, and tried to introduce a booklet, seized from Boychuk’s home, that it claimed was the CPC’s constitution. Macdonald objected to its admission and argued that the booklet could not prove itself. He tied his objection to his earlier problem with the trial proceeding and claimed that the crown should first prove that the “communist party is an unlawful organization, because until that is done, membership is no offence ... the Crown cannot come in the back door.”69 He had been waiting for the crown to produce evidence of the CPC’s unlawfulness before proving his clients were members and officers of it. Macdonald believed that, even if the accused were proved to be members of the CPC, no offence had taken place if the CPC’s unlawfulness had not been demonstrated first. Paradoxically, the crown needed to prove that the accused were members of an organization in order to produce evidence of the organization’s unlawfulness. While Macdonald was opposed to such a roundabout method of establishing guilt, there was nothing to prevent the crown from using it. Doing so was in accordance with section 98, which, because it did not establish a separate procedure for proving that an organization was unlawful, made it possible, by implication, for that organization’s unlawfulness to be established at a trial of persons accused of being members. The crown’s strategy was accepted by Wright. Yet Wright agreed with Macdonald that the constitution of an organization could not be proved in such a way. Sommerville protested that

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there were no precedents to follow in proving a constitution since no other cases had fallen under this section of the Code, and such a ruling would create an obstacle to the introduction of all the documentary evidence seized. He argued that the documents seized at the organization’s headquarters should be allowed into evidence. Macdonald’s objection still applied in that there must be evidence to show that the document was what it claimed to be.70 But Wright disagreed, holding that a document that claimed to be a constitution of an organization and that was found in the organization’s headquarters, rather than in an individual’s home, should be considered to be prima facie evidence.71 The crown was allowed to submit the evidence, with Sergeant Leopold identifying the documents. Sommerville asked Leopold what the aims of the party were when it was first established. Leopold couched his answer in the language of section 98. He claimed that the CPC sought to organize workers to overthrow “the state and the social order.” When Sommerville asked how this would be done, Leopold answered that it would be accomplished by “violence and force.”72 Leopold also testified that in the early days of the party, before 1922, the CI assisted it financially, which bolstered the crown’s position that the CI had a direct influence on the CPC.73 Sommerville began reading Leopold sections from one of the earliest publications of the CPC in Canada, The Communist, including passages that detailed how the goal of the proletariat was to destroy “the entire machinery of the bourgeois state, including all the parliamentary institutions.”74 He continued to read for some time and highlighted more ideological jargon such as the phrase “Long Live the Proletarian Revolution!” After reading even more lengthy excerpts, Sommerville finally asked Leopold a simple question: “Was this the party you joined in the year 1921?” Leopold answered, “It is.”75 Sommerville and Sedgwick both read troves of party propaganda until the session ended for the day.76 After having bail for the accused approved, Macdonald expressed his frustration with the trial’s direction and Sommerville’s continual references to Communist propaganda and ideology. He asked Wright if it was appropriate for Sommerville to bring up all the teachings and doctrines of communism, that is something entirely out of the ordinary range of … Wright: I don’t think it goes that wide. Macdonald: ... As I understand it, that is where it will eventually come down. Wright: No, it is the object of this particular organization, not the general doctrines of communism.

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340  d e n n i s g . molinaro Macdonald: The general doctrines explain the objects. Wright: I don’t think it is that wide at all. The Crown has to bring it within definition of the criminal code. The whole question is, was it unlawful, or does it fall within the prohibitive objects mentioned in the code ... Macdonald: What is the Communist answer to the meaning the Crown puts on the expressions contained? Wright: That is quite right. Macdonald: That is, I assure your Lordship a very difficult question to meet. Wright: I am sure it is.77

The crown needed to prove only that the CPC material fell within the range of section 98, a simple task given that the propaganda of the CI and CPC continually mentioned the inevitable proletarian revolt. Wright ruled that documentary evidence and Communist theory were two separate things, which Macdonald knew was not true. After all, the Communist Manifesto was a crown exhibit. The general doctrines of communism, broadly speaking, did explain the objects, that is, the evidence. The ideology or theory of communism, as Macdonald correctly understood, could not be carved away from the CPC; it was its sole reason for being and thus it was on trial along with the CPC. Macdonald’s only option was to argue that Marxist ideology did not seek an immediate revolution but rather sought to predict it. He needed to prove that communism was an ideology, or a theory, and not a call to arms. Macdonald cross-examined Leopold on 5 November. His strategy was to paint him as an active Communist and not just an undercover police officer. He reminded Leopold of his early days in the labour movement when Leopold operated independently and was not in touch with his superiors about the CPC. He was also asked about his participation in a CPC-led demonstration, protesting the execution of the two anarchists Ferdinando Sacco and Bartolomeo Vanzetti, that occurred at the American Consulate in 1928. Leopold admitted to carrying a banner. He had little to say in answer to Macdonald’s claims.78 The remainder of the crown’s case focused on the CPC’s ties to the CI. Sommerville demonstrated how the CPC purged moderate members and toed the Moscow line in its daily activities. Its hostility to social democrats and more moderate labour groups as well as its attempts to discipline its language organizations were raised as examples. These organizations were bodies that represented the different ethnic wings in the party. Sommerville portrayed the CPC as a group full of aliens that endeavoured to replace the country’s bourgeois, British, and capitalist culture with one

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that was working class, foreign, and Communist. Numerous documents that provided examples of revolutionary language and Marx’s theories of scientific materialism were read in court. One of the last pieces of evidence for the crown was a publication known as the Vasiliev pamphlet.79 Sommerville’s strategy here resembled that of U.K. authorities moving against the Communist Party of Great Britain in 1924, when the fabricated Zinoviev letter was used to prove that Moscow was inciting revolution in the United Kingdom.80 For the crown, the Vasiliev pamphlet was the crucial link between the CI and the CPC in regard to the CPC’s actually trying to carry out revolution. Its recommendations detailed how Communist organizations could assist members in revolutionary actions. Vasiliev lamented the poor fighting skills of demonstrators, noting that, even when some members threw stones at police, this merely demonstrated that “our comrades don’t know how to throw stones.” It was not enough to throw a stone, he claimed; “it is important that that stone should hit its target.”81 The author recommended a regimen of stone-throwing practice for members. Sommerville wanted to link the pamphlet to the CPC through the testimony of police officers who had attended a demonstration in Toronto on 1 May 1931. Officer William Nursey of the Toronto police testified that on that occasion an unlawful assembly took place because stones were thrown during the demonstration. Macdonald objected, stating that Nursey had no evidence that any Communists threw stones, that the accused were at the demonstration, or how the unidentified stone thrower(s) were connected to the accused. Wright allowed the testimony.82 Sommerville concluded the case for the crown by reading more excerpts on Communist theory, this time from Bukharin’s ABC of Communism.83 The crown’s evidence rested largely on party documents and the testimony of Sergeant Leopold. The crux of the prosecution’s case was the CPC’s support for a proletarian revolution coupled with its close relationship to Moscow, making it an unlawful organization; hence its officers and members were guilty of belonging to an unlawful association. The crown did not have to prove that the CPC committed a violent act to obtain a conviction, merely that the CPC’s teachings, that is, the expression of its ideology, advocated violence. “a method of conceiving history” The case for the defence began on 6 November 1931, the same day the crown’s case concluded. Macdonald’s task was difficult. He would have to

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demonstrate that Communist ideology did not make the CPC an unlawful organization despite the fact that Communists believed in a worker-led revolution. But Macdonald did have some room to manoeuvre. He knew that the party’s ideas were on trial and that ideas are flexible and elastic. His strategy was to call the accused to the stand and challenge the crown’s interpretation of documents. The defence would admit that Communists supported revolution but maintain that this did not make the CPC an unlawful organization. For Communists, revolution was inevitable. Marxism, he argued, was simply a different way of interpreting history. Macdonald stated that the defence would go through the crown’s evidence and “explain it and indicate that it does not mean what it appears to mean.”84 Wright was sceptical: “How can any witness come and say that it [a document] does not mean this or that? That is for the jury.”85 Macdonald argued that the evidence before the court describes “what is, in effect, a philosophic system which puts into practice the doctrines of Marx and Engels and Lenin.” Wright would not allow this line of defence, stating that the trial was not about theory but about the evidence before the court. Yet, while he did not want to get into Communist theory, it was impossible not to, since every major Communist publication was a court exhibit, from the writings of Lenin and Bukharin to those of Karl Marx. Macdonald maintained that he should be permitted to explain expressions and terminology. Wright conceded that, if a term was unclear, it was fine for him to do so.86 Macdonald would have to rely on Wright and the crown’s limited knowledge of Communist ideology to convince the court that all the phrases he sought to challenge were ambiguous. Court resumed at noon on 6 November with Tim Buck taking the stand. Buck explained the formation of the CPC and its activities in the trade unions. Macdonald asked Buck whether violence was the result of CPC activities. He stated that it never was. Macdonald moved to the subject of Leopold’s role in the CPC. Buck testified that he knew Leopold as an active member of the party, not just a passive one.87 Macdonald next reread the CPC constitution (Exhibit 24). In particular, he read a phrase, “revolutionary Marxism,” and asked Buck to explain it. Wright interjected, stating that the interpretation of the constitution was for the jury alone to decide. But Macdonald argued: “Revolutionary Marxism, the expression in itself[,] is absolutely meaningless as it stands there, to any Jury.” Wright was forced to agree and permitted him to continue.88 Then Wright questioned Buck directly: “What is the meaning of revolutionary Marxism?” With enthusiasm Buck explained its meaning.

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Buck gave a detailed history of Marxism, describing it as a philosophy, and lost much of his audience in the process.89 He tried to simplify things. “Dialectical materialism, the law of value and surplus value and class struggle,” he explained, were the basis for Marx’s philosophy. He noted that, when CPC members used the term “revolutionary Marxism,” they were referring to a method of analysing the development of history, the state, and political economy.90 When Wright asked if it was only a method of analysis, Buck replied that Marxist philosophy carries its “own conclusions,” ones that are “revolutionary”; it is a “method of conceiving of history.” The testimony was fast becoming an academic discussion. Wright probed further: “Would not a short definition be, that this is an absolute change in the method of analyzing history?” Buck agreed, and Wright continued, “History economy and social change?” Buck added, “Just for clarity, almost absolute, with the difference: that the system that was here first, was built according to the system being our philosophy.” Wright asked, “In other words[,] evolutionary as well as revolutionary?” Buck agreed. Wright continued his exchange with Buck, getting to the heart of the issue for the court: “What kind of a revolution is this revolutionary Marxism? Is it violent or peaceful?” Buck had a difficult time providing a simple yes or no answer. He was being asked to categorize how a future proletarian revolution would come about. Would it be violent or peaceful? The testimony given in response to the question would be theoretical, and yet it would be evidence all the same. Buck tried to provide a detailed explanation of the purpose of “revolutionary Marxism” but Wright wanted a “yes” or “no” answer. Buck stated that the method of revolution was never prescribed by Marx. Revolution could be violent or peaceful; it depended, Buck said, “on the other party,” that is, the state.91 When asked about the CI being the highest command of the CPC, Buck did not deny it; in fact, he agreed.92 Macdonald questioned Buck about the Vasiliev pamphlet. Buck claimed that he had never read it, and that it must have come in the mail along with numerous other pamphlets that arrived regularly from the United States.93 He explained that the pamphlet had no binding authority over the CPC and was not an official document of the CI. But what did force or violence mean to the CPC? How did its interpretation connect to the historic inevitability of a Marxist revolution?94 Macdonald debated the issue with Wright and its relevance to section 98. He argued that, if violence did take place in some future revolution, it could not be directly tied to the CPC. 95 He claimed that Marx was prophetic; the CPC, in following

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Marxist theory, was preparing for the moment when revolution would arrive. In essence, it was similar to the “Second Coming” in Christian religious teachings. The debate continued, with the crown, defence, and judge trying to ascertain when the revolution would arrive, and who would be responsible for it if and when it came. All of these issues could have arisen only in a court dealing with a section 98 prosecution where ideas could be found to be criminal acts. More difficulties continued to arise for the defence. Wright ruled that Buck could speak only to his own individual opinion and not the party’s; Macdonald disagreed, arguing that, as party secretary, Buck could speak for the CPC.96 Macdonald pointed out that section 98 could “cut both ways.” If Buck was breaking the law for being a member of an “unlawful organization,” who should speak for the organization if one was found to be guilty of being a member of it? Surely it could only be the members, indeed the leader, of the organization? How could the organization speak for the membership and not the members for the organization? What was the organization without its members? Wright was firm on his ruling; the party secretary could not speak for the party. Sommerville’s cross-examination of Buck failed to yield much. Every attempt by Sommerville to challenge Buck on the violent nature of revolution was stymied. Buck held firm to the principle that revolution was an inevitable historic event.97 Tom Ewan testified next. Leader of the CPC’s militant WUL, Ewan was fiercely ideological. After denying that the CPC engaged in violence, Ewan also rejected the idea that the Vasiliev pamphlet was binding on the CPC or that the CPC sought to engage in violence. On the question of CI influence on the CPC, Ewan denied that the CPC received orders from Moscow, insisting that it received only guidance. Ewan was unwilling to admit that the CI exerted control over the party.98 Much to the chagrin of the defence, Ewan was more than eager to spar with Sommerville during his cross-examination, which continued for hours. Perhaps sensing Ewan’s eagerness to extol Communist ideology, Sommerville barraged Ewan with a slew of questions relating to Moscow “guidance” over the CPC. He cited examples such as when the CPC had a dispute with the Finnish members of the party over the Finnish labour paper Vapaus’s perceived opposition to following the new Moscow line in 1931. Sommerville accused Ewan of trying to strong-arm party members in the language groups. Ewan had much difficulty defending himself against Sommerville’s attack and it led him to use more party propaganda in his answers. On the issue of moderate unions, Ewan stated that they sought class peace. Sommerville replied: “And you do not believe in class

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peace?” Ewan: “No.” Sommerville: “And you develop as much resistance as possible on the part of the workers?” Ewan: “The maximum amount of resistance to starvation.”99 Ewan also claimed that he supported a workers’ defence corps. Wright pressed further: “Do you deny the right of the police to interfere with your demonstrations?” Ewan: “I think that we do.”100 For Ewan, the right of the CPC to express its politics in public superseded the authority of any law. During the court’s afternoon session, Sommerville continued questioning Ewan about the language organizations’ independence from both the CPC and the CI. Sommerville argued that, from time to time, the CPC complained to the CI about some of these organizations’ activities. He asked about a CPC complaint that Ukrainian members were singing “O Canada.” Ewan claimed that he did not remember the complaint, but that it was possible. Sommerville pressed on, saying that the CPC leadership was offended by the Ukrainians’ actions. Ewan claimed that he had no recollection of this, but he could not answer why the complaints ever went to Moscow to begin with.101 Sommerville next sought to target Ewan’s loyalty. He asked if the Soviet Union was considered the “Fatherland,” and if every member of the party was taught to be loyal to it. Ewan replied that loyalty to the Soviet Union was important to the party. Sommerville questioned where party members’ loyalties would lie in a hypothetical war between Canada and Russia and Ewan responded: “We advocate defence of the Soviet Union ... No matter who the aggressor against the Soviet Union is.”102 Ewan’s defence of the Soviet Union made it much more difficult for Macdonald to argue that the party was not a band of foreign subversives. A.T. Hill and Malcolm Bruce also testified for the defence. Hill, a member of the Finnish Organization of Canada, and Bruce, once editor of the party’s newspaper The Worker, both denied that the CPC engaged in violent activities or supported revolution. Bruce reinforced the defence’s case, arguing that communism was an ideology where revolution lay “in the lap of history.”103 Sommerville made little headway in his cross-examination. After a brief questioning of Golinsky, who testified that he had no significant role in the party, and a brief cross-examination, the crown withdrew the charges against him.104 2aôiñ did not take the stand; despite flimsy evidence of his status as an officer, the charges against him were not withdrawn. The case for the defence was now finished. Wright wanted to end the trial as quickly as possible and turned to Buck, asking if he wished to address the jury. Buck wanted more time to prepare but had no choice but to proceed. In an impromptu speech, he

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spoke to the jury for three hours. “Communism is on trial here today,” Buck told the jury. “If we are convicted, Canada will be the only Englishspeaking nation in the world in which the Communist party is illegal. The only country in the world with a democratic parliament which outlaws Communism is Japan.”105 After numerous interjections by Wright, Buck claimed: “World revolution does not mean merely the releasing of a horde of men with beards, but a release of all the forces which join together to destroy the system of imperialist capitalism.”106 Court resumed on the morning of 12 November with both Macdonald and Sommerville addressing the jury. Macdonald went first and highlighted the extraordinary nature of the trial. “These charges are of a new and unprecedented nature, not only in this court but in any British court,” Macdonald told the jury. He continued: “In any ordinary trial the accused would be charged with some certain act ... There can be no crime, broadly speaking, without criminal intent ... If men advocate a system of economics – socialism – ... that is not a crime ... This is simply an international body of men with similar views as of how they can best improve the lot of mankind.”107 For Macdonald, what was at issue in the trial was not the claim that “imperialist capitalists” were out to crush communism in Canada. It was the manner in which law was being used to influence an individual’s politics through the Criminal Code. While the party and the CI had simply wanted to use the trial for propaganda, Macdonald demonstrated throughout the trial how law was being used for political purposes. He was faced with an insurmountable task in defending the accused, and perhaps his vindication was to know that he could not possibly win an acquittal but that he could at least expose the trial and section 98 as inconsistent with the principles of British justice. Sommerville addressed the jury next. The jury’s duty, he argued, “is to save the state from the insidious teaching of Bolshevism.”108 The literature coming from the “red soil of Russia” was not a mere academic discussion; for Buck and his comrades, these documents meant real revolution. He reminded the jury of the secret formation of the CPC, playing up the foreign origins of the party: “Can you picture this foreigner from Latvia carrying out the orders of Moscow and meeting Buck, Popovich et al and thus organizing the CPC? Russian leadership, Russian chairman, Russian program, Russian money, and an entirely Russian conception.”109 According to this logic, the accused had aligned themselves with these foreigners and renounced their allegiance to Canada. There is, Sommerville stated, “but one CI, one Communist party throughout the world,” and all were members of it. Moscow called the shots. The party existed

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not to introduce reforms, Sommerville cautioned, but rather to “utilize these minor every day [sic] needs as a starting point from which to lead the working class to the revolutionary struggle for power.”110 Thus, the party in Moscow that overthrew the czar was the same party operating in Toronto and preparing to overthrow Parliament. Sommerville outlined the authority of the state for the jury. “It is the fundamental right of every state to preserve itself against attack from within as well as without and to punish those who abuse the freedom of the land.” The jury members, according to Sommerville, were the “guardians of the state.”111 Somerville warned the jury that to acquit these men would be to give approval to the teachings of Moscow. He called on the jury, in “the shadow of Remembrance day,” to help him in his war against communism by giving him “men to match my mountains ... men of courage, men of vision, men with wisdom ... Give me the men on this jury ... give me men who have devotion to the finest traditions of our race, and I’ll give you the men who will say that sedition shall not stalk the land.” Then with all the intensity he could muster, Somerville gravely warned the jury: “do not forget the question of the allegiance of these men to the fatherland.”112 The crown’s strategy throughout the trial was to portray the accused as traitors because they subscribed to a foreign and dangerous ideology and acted at the behest of Moscow. This argument was central to the crown’s ability to establish the blameworthiness of the accused, particularly for the count of seditious conspiracy, which was based solely on the CPC’s connections to the CI. These radicals were race-traitors who had betrayed their duty to be good moral citizens by being loyal to the wrong patriarch, the Soviet fatherland.113 The crown used a war narrative to appeal to the jury members’ sense of the patriotic duty that a Canadian citizen must uphold against those who violated it. With the crown portraying itself as the brave general, and the jury as his brave male soldiers, the jury would be the ones pushing back the foreign army and protecting the land and “race” of Canada. Sommerville was no doubt eager for the trial to wrap up on Remembrance Day to add further symbolism to his argument, but he had to settle instead for 13 November. In his charge to the jury, Wright stressed that what was important was whether the accused came under the language of the Code. In regard to section 98, Wright stated: “Something has been said here about this being an unusual law, a harsh law, and that a jury should struggle against convicting a man for violation of an unreasonable law ... whether it is harsh or not, it is the law ... it is the duty of every loyal Canadian citizen to peacefully submit to the law.”114

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Within two hours the jury returned a verdict of guilty on all three counts. When court resumed on 13 November, Macdonald asked for leniency, arguing that the eight were “political criminals, because their views on political questions bring them into conflict with the State.”115 In passing his sentence, Wright stated that the crimes were serious because of how the CPC “made special appeals to those who were not born in Canada and who were not versed perhaps in the spirit of Canadianism.” The eight were not political criminals, but they had committed “a species of treason” by striking “at the very foundation of our social and governmental fabric in this country.”116 Wright recommended deportation for the foreign-born. All but 2aôiñ received a five-year prison sentence for the first two counts and two years for the third, with the sentences to run concurrently. 2aôiñ’s lower standing in the party was acknowledged by Wright and he received two years for the first two counts and one year for the third. Macdonald informed the judge that there would be an appeal. The greatest crime of the accused, as Wright indicated, was their attempt to indoctrinate the foreign-born. Communism was not part of the spirit of Canadianism. The CPC was a perceived threat to the state’s hegemony and the state responded by invoking its repressive powers under section 98.117 Wright’s words also highlighted not just the exceptional status of the court and section 98 but the newly acquired status of CPC members as more than political criminals. They exemplified an entirely different class of criminal, one guilty of a “species of treason.” They were outcasts from the social fabric, a scourge on society.118 By outlawing the CPC, the criminal law helped the government to determine what political ideologies would be acceptable in Canada. Communism was not one of them. Moreover, because the CPC was an unlawful organization, the sale and distribution of its teachings, including the Communist Manifesto, was also unlawful and it would be a criminal act to attend party meetings.119 immigration act deportations and the supreme court appeal The convicted eight CPC members appealed the case but only the seditious-conspiracy conviction was overturned. The Ontario Court of Appeal, with Chief Justice William Mulock presiding, held that the indictment on that count did not adequately describe the alleged conspiracy. Moreover, the crown’s bill of particulars did not resolve the problem. However, given that the first two counts were the more serious charges, the judges concluded that dismissing the third count would have no bearing on the sentences.120

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As a result of the section 98 convictions, the CPC was legally branded as an unlawful organization and the government moved quickly against the CPC membership under the Immigration Act. Indeed, before the trial began, Colonel William Price, Ontario’s solicitor general, requested the names and addresses of known Communists from crown prosecutors across the country. It was an unusual step that demonstrated how determined the authorities were in prosecuting Communists. The information was sent to the RCMP and, immediately after the failed appeal, government authorities went to work rounding up foreign-born CPC members in order to have them deported. Immigrant radicals were pulled from their beds and whisked across the country to Halifax. To determine if the detainees met the requirements for being deported, they appeared before a Board of Inquiry which consisted of three individuals handpicked by the Immigration Department. The board acted as judge and jury in the cases. Deportation hearings involved summary administrative proceedings that entailed few of the procedural protections found in regular trials. Legal representation was compromised, the proceedings were closed to the public, and the rules governing the admissibility of evidence were more relaxed. The detainees had no right to challenge the evidence and could not call witnesses. Indeed, they had no right to remain silent as in criminal trials and could not refuse to be questioned by the department. Board members were not judges and many had no legal training. Separate deportation hearings were held for each of the individuals apprehended in the government’s round-up. Sergeant Leopold of the RCMP, the star witness in Buck et al., was called to testify in hearings concerning suspected Communists so he could identify the CPC as an illegal organization and, if possible, submit evidence about the detainees in order to establish their “undesirable” status under section 41.121 Of the eleven men who appeared before the board, ten were ordered deported, and one, found to be a Canadian citizen, was discharged. The deported men appealed the board’s decision to the minister of immigration, who chose not to intervene. Eight of them also brought a legal challenge that had made its way to the Supreme Court of Canada by October 1932. The CLDL challenged the right of the Immigration Department to detain individuals under section 41 of the Immigration Act.122 However, its applications for habeas corpus often failed, for such applications were required to be brought in the city where the deportee was held and the department often moved detained individuals around to skirt these challenges.123 Deportation was an administrative matter; thus, as long as the department followed its own procedures, created by regulations under the Immigration Act, legal challenges were nearly impossible to win, as

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was confirmed in the Supreme Court appeal. Lawyers, assisted by the CLDL, argued that the board had no jurisdiction because the grounds for proceeding against the men were so vague, and the charges so general, that the men were unable to mount a reasonable defence, adding that the lack of specific evidence in support of the charges was insufficient for a conviction in a criminal trial. The court ruled that the Immigration Act empowered the department to establish its own procedures, that the board was duly constituted, that the appellants were not entitled to the regular protections found in criminal or civil proceedings, and that questions of evidence were outside the court’s jurisdiction.124 The section 98 conviction of Buck et al. was thus a crucial step leading to the deportation of Communists. The deportations reinforced the cultural assumption about communism that were displayed during the trial, namely that Communists were foreign. As authors such as Gregory Kealey, Reg Whitaker, and Franca Iacovetta have argued, dissent was often equated by Canadian authorities with being foreign.125 Barbara Roberts estimates that several hundred immigrants were deported for political radicalism in 1932–3 alone, with one hundred of them being confirmed party members. Many of these individuals were knowingly sent by the Canadian government to countries where they could face torture or execution for their political beliefs.126 final cases and section 98’s repeal While foreign-born CPC members may have been easy targets, the government’s plan to target Communists across the country did not succeed as it had originally hoped. Agitation by the CLDL calling for the repeal of section 98 began during the trial and increased following its conclusion. The CPC was an unlawful organization in Ontario, but it was up to the individual provinces to decide whether they wanted to prosecute anyone under section 98. Even if crown prosecutors suspected that someone was a member, it still had to be proved, which could be costly and difficult especially if they moved en masse against all suspected CPC members. What’s more, the subsidiary groups connected to the CPC, such as the WUL and CLDL, operated as independent organizations whose members were not necessarily official CPC members. Proving that such groups were unlawful was very difficult since none advocated the overthrow of any government or economic system as expressly as the CPC did.127 It is not known how often section 98 was used after the Buck trial. Few section 98 prosecutions remain in the historical record, with transcripts

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existing for only two cases, the trial of Arthur Evans in Vernon, British Columbia, in 1933 and the pre-trial hearing of the On-to-Ottawa Trek leaders in Regina, Saskatchewan, in 1935. The case of Rex v. Evans was similar to the Buck trial insofar as it was based on Evans’s political beliefs. RCMP records reveal that the service, and the B.C. attorney general’s office, were interested in trying to find a way to curb communism in the province and end Evans’s organizing activities there for the WUL. No evidence was presented at trial to show that Evans taught or encouraged anyone to use force to overthrow the government. His utterances mentioning force were directed at the miners in attendance at organizing meetings, where he urged them to fight to defend their position by striking. He received a one-year prison sentence for violating section 98. 128 Such was the broad reach of section 98 that such innocuous statements could be construed by judges to mean that Evans was advocating armed rebellion against the government. By 1933, public pressure for the repeal of section 98 had begun to intensify thanks to the work of groups such as the CLDL and progressives in the House of Commons such as J.S. Woodsworth.129 The CLDL’s efforts after the trial of Buck et al. to free their comrades and repeal section 98 initially met with Moscow’s and the CI’s approval. Its intense advocacy work also began to attract a growing chorus of support from less radical leftists such as F.R. Scott, which validated the concerns of those who had opposed the law since its creation.130 In 1933 the CLDL stated in a letter to R.B. Bennett that it had managed to obtain the signatures of 200,000 people in support of Buck et al.’s release, an end to political deportations, and the repeal of section 98.131 The Liberal Party, which had sought section 98’s repeal throughout the 1920s, made that cause part of its platform, and, following the Liberals’ electoral win in 1935 Parliament passed Bill 96 on 23 June 1936, which repealed the measure in its entirety.132 However, the same bill also amended section 133, the sedition section of the Criminal Code, by inserting a “seditious intention” provision. The new section provided that anyone who “teaches or advocates, the use, without the authority of law, of force as a means of accomplishing any governmental change” was presumed to have a seditious intention. Bill 96 also reinserted the saving clause, removed in 1919 when section 98 was passed, which allowed for criticism of the government or the monarch if such criticism was done in good faith. And it reduced the maximum penalty for sedition from twenty to two years. Despite the repeal of section 98, the overall impact of Bill 96 was limited. The Code preserved the potential for Communist Party members to

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be charged in the future although one could not be prosecuted for being a member of an unlawful organization. The sedition offences that remained in the Criminal Code retained the sweeping reach they had before PC 2384 and its peacetime version in section 98. The restoration of the lawfulcriticism exception did not moderate the law, as the government claimed, but simply suspended the most egregious elements of the offence. Even with the saving clause restored, the amended section 133 could still allow for the prosecution of Communists based solely on the expression of their ideology. Furthermore, the powers that section 98 granted to the government continued to haunt Canadians in future emergencies.133 conclusion Section 98 originated as a wartime emergency measure, specifically designed to target radical leftist activity, and was transplanted into the Criminal Code after the war with a similar purpose in mind. Stopping the spread of communism was the section’s principal intent and its significance lies in the way in which it demonstrated how what was permitted during a time of war, namely “political policing,” became acceptable in peacetime. “Political policing” was made possible in Canada because former emergency measures became normalized. This was most plainly illustrated in Rex v. Buck et al. and Rex v. Evans where the heart of the crown’s case was the contention that the ideology of the accused was the criminal act for which they could be convicted. Section 98 worked in tandem with section 41 of the Immigration Act following Buck et al., enabling the government to deport foreign-born party members without a criminal trial. Section 133’s amendment further demonstrated the Canadian government’s policy of “permanent exceptionalism” with respect to the law’s role in dealing with communism. The most important issue regarding the section 98 trials was not whether or not they were fair, which they clearly weren’t, or whether they constituted violations of civil liberties, which they clearly did. It was the way in which a wartime emergency power had become a part of everyday Canadian society, allowing the government to equate the expression of ideas and thoughts with criminal acts. Appreciating the tendency on the part of authorities to make a “state of exception” a permanent condition in order to justify extending special measures sheds light on the story of section 98.134 That measure stands as a key example of how emergency measures in peacetime are increasingly normalized.135 Particularly in the aftermath of the Criminal Code amendments resulting from recent “Anti-Terrorism” bills, this story serves as a stark illustration of the permeable boundary between the normal and the exceptional.

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N otes   1 See, for instance, Dominique Clement, Canada’s Rights Revolution: Social Movements and Social Change, 1937–82 (Vancouver: UBC Press 2008); Eric M. Adams, “Canada’s ‘Newer Constitutional Law’ and the Idea of Constitutional Rights,” McGill Law Journal, 51 (2006): 435–74; Richard Fidler, “Proscribing Unlawful Associations: The Swift Rise and Agonizing Demise of Section 98” (Osgoode Law School, May 1984, unpublished). The sole published academic study on s.98 specifically is an article published in 1972. See J.B. Mackenzie, “Section 98 Criminal Code and Freedom of Expression in Canada,” Queen’s Law Journal, 4 (1972): 469–83. See also Desmond Brown’s work on sedition in “The Craftsmanship of Bias: Sedition and the Winnipeg Strike Trial 1919,” Manitoba Law Journal, 14, no. 1 (1984–5), and the discussion of s.98 in Brown’s The Genesis of the Canadian Criminal Code of 1892 (Toronto: University of Toronto Press 1989). One of the best-known examinations of the CPC trial is Lita-Rose Betcherman, The Little Band: The Clashes between the Communists and the Political and Legal Establishment in Canada, 1928–1932 (Ottawa: Deneau 1982).   2 The 1910 Immigration Act provided powers similar to those of PC 2384 in order to enable the government to deport politically radical immigrants. The significance of PC 2384 and s.98 lies in how those powers were greatly expanded to target citizens and immigrants alike, first in 1918 and then in 1919. Gregory Kealey, “State Repression of Labour and the Left in Canada, 1914–1920: The Impact of the First World War,” Canadian Historical Review, 73, no. 3 (1992): 281–314; Reg Whitaker, Gregory Kealey, and Andrew Parnaby, Secret Service: Political Policing in Canada from the Fenians to Fortress America (Toronto: University of Toronto Press 2012). For more on the Immigration Act in this period, see Barbara Roberts, From Whence They Came: Deportation from Canada 1900–1935 (Ottawa: University of Ottawa Press 1988); Ninette Kelley and Michael Trebilcock, The Making of the Mosaic: A History of Canadian Immigration Policy (Toronto: University of Toronto Press 1998).   3 Leo Panitch and Donald Swartz, The Assault on Trade Union Freedoms: From Consent to Coercion, 3rd ed. (Toronto: Garamond Press 2003).   4 The use of the criminal law to regulate political ideology is in keeping with the actions of law enforcement, which has engaged in “political policing” for much of Canada’s history. See Whitaker, Kealey, and Parnaby, Secret Service. For more on state power and the shaping of citizens, see Mariana Valverde, The Age of Light, Soap and Water: 19th Century Moral Reform in English Canada (Toronto: University of Toronto Press 1991); Enakshi Dua, “The Passage from Subjects to Aliens: Indian Migrants and the Racialization of Canadian Citizenship,” Sociologie et Sociétés, 31, no. 2 (1999): 145–62; Franca Iacovetta,

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  5

  6

  7

  8   9

Gatekeepers: Reshaping Immigrant Lives in Cold War Canada (Toronto: Between the Lines Press 2006). For more on the contradictions of emergency law in liberal democracies and its relationship to politics and government policy, see Rande W. Kostal, A Jurisprudence of Power (Oxford: Oxford University Press 2008); Kent Roach, The 9/11 Effect: Comparative Counter Terrorism (Cambridge: Cambridge University Press 2011), and September 11: Consequences for Canada (Durham, U.K.: Acumen Publishing 2003). The term was first used by Mathews and Albino in an article where they detailed their challenge to a law which was used to detain opponents of apartheid in South Africa if an officer suspected an individual of acting on behalf of unlawful organizations, particularly Nelson Mandela’s African National Congress. When the case came to the Appellate Division, the court refused to place any restrictions on the “legality of the detentions,” and, by doing so, according to the authors, it accepted the “permanence of the temporary,” placing South Africa in a permanent state of emergency where common laws could be passed that allowed the government to operate outside the rule of law. See A.S. Mathews and R.C. Albino, “The Permanence of the Temporary: An Examination of the 90 and 18 Day Detention Laws,” South African Law Journal, 83 (1966): 16–43; and David Dyzenhaus, “The Permanence of the Temporary: Can Emergency Powers be Normalized?” in Ronald J. Daniels, Patrick Macklem, and Kent Roach, eds., The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill (Toronto: University of Toronto Press 2001). Robert Craig Brown and Ramsay Cook, Canada 1896–1921: A Nation Transformed (Toronto: McClelland and Stewart, 1974), 232–4, 268–71, 310–12; J.L. Granatstein and J.L. Hitsman, Broken Promises: A History of Conscription in Canada (Toronto: Oxford University Press 1977); Martin F. Auger, “On the Brink of Civil War: The Canadian Government and the Suppression of the 1918 Quebec Easter Riots,” Canadian Historical Review, 89, no. 4 (2008): 503–40. The War Measures Act, S.C. 1914, c.2. The WMA was repealed and replaced by the Emergencies Act in 1988. See the Emergencies Act, S.C. 1988, c.29. For more on the changes to the War Measures Act before 1988, see Brown and Cook, Canada 1896–1921, 213; Murray Greenwood, “The Drafting and Passage of the War Measures Act in 1914 and 1927: Object Lessons in the Need for Vigilance,” in W. Wesley Pue and Barry Wright, eds., Canadian Perspectives on Law & Society: Issues in Legal History (Ottawa: Carleton University Press 1988), 291–327; M.L. Friedland, National Security: The Legal Dimensions: A Study Prepared for the Commission of Inquiry concerning Certain Activities of the Royal Canadian Mounted Police (Hull, QC: Minister of Supply and Services Canada 1980); Patricia Peppin, “Emergency Legislation and Rights in Canada:

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10

11 12 13

14

15

16

17 18 19

The War Measures Act and Civil Liberties,” Queen’s Law Journal, 18, no. 130 (1993): 129–90. Sir Robert Borden fonds, Cahan to Doherty, 14 Sept. 1918, LAC, 56668. Recommendations for new legislation that could reach the IWW came first from the Munitions Board in February 1918 and then from the police commissioner the following month. See Commissioner of Police to Doherty, 21 March 1918, LAC, MG26 H, vol. 104, reel C-4335, 56619. See also Brown, Genesis of the Canadian Criminal Code, 238. Craig Heron, ed., The Worker’s Revolt in Canada, 1917–1925 (Toronto: University of Toronto Press 1998). Canada, Proclamations and Orders in Council of the Imperial Government (Ottawa: Joseph de Labroquerie Taché 1919), lxxvii–lxxx. Donald Avery, Dangerous Foreigners: European Immigrant Workers and Labour Radicalism in Canada, 1896–1932 (Toronto: McClelland and Stewart 1979). See also Douglas Cruikshank and Gregory S. Kealey, “Strikes in Canada, 1891– 1950: I. Analysis,” Labour/Le Travail, 20 (fall 1987): 85–145, and Kealey, “State Repression”; Ian Milligan, “Sedition in Wartime Ontario: The Trials and Imprisonment of Isaac Bainbridge, 1917–1918,” Ontario History, 100, no. 2 (2008): 150–77. Originally section 98 was created as section 97(a) and (b) but was later renamed section 98 in the statutory revision of 1927. It will be referred to here as section 98 for consistency and clarity. Cahan stressed the need for a “public safety branch” and the importance of preserving PC 2384. See Cahan to Doherty, 14 Sept. 1918, LAC, MG26 H, vol. 104, reel C-4335, 56678–81; and Cahan to Doherty, 22 Oct. 1918, LAC, MG26 H, vol 104, reel C-4335, 56703. See Guthrie’s Special Report and Andrews’s further correspondence with Meighen in LAC, RG13, Accession 87–88/103, box 36, file 9-A-1688, pocket 2. A.B. Perry had recommended new sedition legislation similar to that passed in the United States in April 1919 to acting prime minister Sir Thomas White. See A.B. Perry to White, 2 April 1919, LAC, MG26 H, vol 104, reel C-4335, 56825. Cahan was opposed by other prominent government members such as Newton Rowell and Thomas Crerar. The conflict is discussed in Whitaker, Kealey, and Parnaby, Secret Service, 77–9. Guthrie to Meighen, 6 June 1919, LAC, RG13, Accession 87–88/103, box 36, file 9-A-1688, pocket 2. Canada, Debates: House of Commons Second Session Thirteenth Parliament Volume IV (Ottawa: J. De Labroquerie Taché 1919), 3285–90. Susan Binnie and Barry Wright, “Introduction: From State Trials to NationalSecirity Measures,” in CST3, 15–16.

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356  d e n n i s g . molinaro 20 Brown, Genesis of the Canadian Criminal Code, 140. See also Desmond H. Brown and Barry Wright, “Codificationon, Public Order and the Security Provisions of the Canadian Criminal Code, 1892,” in CST3, 540–6. 21 Brown, Genesis of the Canadian Criminal Code, 140. 22 Ibid., 140 and 153. 23 See Appendix C, doc. 10, in this volume; S.C. 1919, c.46. The original bill stipulated that the section would come into effect ninety days after assent. The House agreed on 1 October 1919 for the section to come into effect. See Canada, Debates 1919, 4661. 24 R.S.C. 1927, c.36. 25 For a discussion of his statements, see Canada, Debates of the House of Commons First Session Fifteenth Parliament (Ottawa: F.A. Acland 1926), 4073. 26 See Appendix C, doc. 10; R.S.C. 1927, c.36. 27 Ibid. 28 Ibid. 29 Ibid. 30 See Anders to Meighen, 4 June 1919, and Guthrie’s report in LAC, RG13, Accession 87–88/103, box 36, file 9-A-1688, pocket 2. See also Reinhold Kramer and Tom Mitchell’s research on how A.J. Andrews took an active role in guiding the creation of section 41 in When the State Trembled: How A.J. Andrews and the Citizen’s Committee Broke the Winnipeg General Strike (Toronto: University of Toronto Press 2010), ch. 6 and especially 140–5. 31 Immigration Act, S.C. 1910, c.27, s.41; An Act to Amend the Immigration Act, S.C. 1919, c.26, s.1. 32 James Lougheed, Canada, Debates of the Senate of the Dominion of Canada 1919 (Ottawa: J. De Labroquerie Taché 1919), 913. 33 “Freedom Not License,” Halifax Chronicle, 10 June 1919. 34 Parliament had drafted similar laws several years earlier where the intent was not explicitly stated in the legislation but was implied based on its use and the restrictions it posed. See, for instance, the “Continuous Journey” regulation of 1908 and the Canadian “Gentlemen’s Agreement” of 1907. Kelley and Trebilcock, The Making of the Mosaic, 145–9; Patricia Roy, A White Man’s Province: B.C. Politicians and Chinese and Japanese Immigrants, 1858–1914 (Vancouver: UBC Press 1989). 35 For more on the “state of exception” and liberal democracies, see Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel HellerRoazen (Stanford, CA: Stanford University Press 1995), and State of Exception, trans. Kevin Attell (Chicago: University of Chicago Press 2005). 36 Raoul Dandurand, Canada, Debates of the Senate (Ottawa: F.A. Acland 1926), 273.

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Section 98  357 37 See Canada, Debates of the House of Commons First Session Fourteenth Parliament (Ottawa: F.A. Acland 1922), 865, 3281–3; Debates of the House of Commons 1926, 643, 4071–3. 38 See Michael Horn, “Keeping Canada ‘Canadian’: Anti-Communism and Canadianism in Toronto, 1928–29,” Canada: A Historical Magazine, 3, no. 3 (1975). 39 For more on the Communist Party of Canada and its work among the unemployed, see John Manley, “‘Starve, Be Damned!’: Communists and Canada’s Urban Unemployed, 1929–39,” Canadian Historical Review, 79, no. 3 (1998): 466–91; Steven L. Endicott, Raising the Worker’s Flag: The Workers’ Unity League of Canada, 1930–1936 (Toronto: University of Toronto Press 2012); William Rodney, Soldiers of the International: A History of the Communist Party in Canada, 1919–1929 (Toronto: University of Toronto Press 1968); Norman Penner, Canadian Communism: The Stalin Years and Beyond (Toronto: Methuen 1988); Ian Angus, Canadian Bolsheviks: The Early Years of the Communist Party of Canada, 2nd ed. (Victoria: Trafford 2004); Ivan Avakumovic, The Communist Party in Canada: A History (Toronto: McClelland and Stewart 1975). For more on the federal government’s involvement in prosecuting the CPC, see Betcherman, The Little Band, ch. 14. Bennett often took a personal role in handing intelligence over to the RCMP. See, for instance, J.R. Smith to R.B. Bennett, 8 June 1932, LAC, R.B. Bennett papers [hereafter RBP], 93151; Employers Association of Manitoba to Bennett, 14 April 1931, LAC, RBP, 94525; Carrie M. Johnson to Bennett, 5 May 1931, LAC, RBP, 94579. 40 Canada, Criminal Code of Canada, s.98(3), Revised Statutes of Canada, vol. 1, 1927, 30. Emphasis added. 41 Joseph Sedgwick to Col. Price, attorney general of Ontario, re. Rex vs. Buck et al., 17 Oct. 1931, Archives of Ontario (AO), RG 4-32, file 3188/31, 30L0923-27. 42 Emphasis added. No document within the records of the trial is signed as being the brief Edwards produced to the grand jury. However, there is a letter from Sommerville to Sedgwick which includes a summary of the Court of Appeal arguments regarding Buck et al. Within that summary is a document that seems very likely, based on the content and description of the brief provided by Sedgwick in his letter to Price, to be the brief Edwards prepared. See Rex vs. Tim Buck et al. in “In the Court of Appeal of Ontario,” 19 Feb. 1932, AO, RG 4-32, file 3188/31. 43 Ibid. 44 Ibid. 45 Sedgwick’s letter describing the meeting and events does not explicitly state what type of meeting this was or whether defence lawyers were present. See n.41, Sedgwick to Price, 17 Oct. 1931. 46 Ibid.

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358  d e n n i s g . molinaro 47 For Cohen’s refusal to take the CPC case, see Laurel Sefton MacDowell, Renegade Lawyer: The Life of J.L. Cohen (Toronto: University of Toronto Press 2001), 41–5. For more on the Comintern’s desire for a show trial and its displeasure with the CPC’s “legal” defence, see “Resolution on the tasks of the CP of C,” LAC, Comintern fonds, fond 495, file 131, reel K-283. Backround information on lawyers in the trial is provided courtesy of the Archives of the Law Society of Upper Canada, Toronto. 48 J.S. Woodsworth protested against Wright’s instructions to the jury during a session of Parliament in 1929 in a more general discussion about police repression of radicals and free speech. See Debates of the House of Commons Third Session Sixteenth Parliament (Ottawa: F.C. Acland 1929), 2354–5. 49 Hugh Macdonald in Supreme Court of Ontario – Rex vs. Tim Buck et al., LAC, vol. 738, RG76-B-1-a 71–5, file 513173, 3. 50 Ibid. 51 Ibid., 7. 52 Ibid., 8. 53 Ibid. 54 Norman Sommerville, Rex vs. Tim Buck et al., 16. 55 “Bill of Particulars,” AO, RG4-32, file 3188/31. 56 Rex vs. Tim Buck et al., 22. 57 Henry Wright, Rex vs. Tim Buck et al., 27. 58 Information about jury selection appeared in the press, but it difficult to tell whether the crown attempted to pack the jury. Ninety-nine jurors were called and of the eighty-seven rejected the defence opposed seventy-five of them. In one instance, the crown wanted to have Hugh Aird, son of Sir John Aird, president of the Bank of Commerce, serve as a juror. The defence opposed his selection. See “Nearly 100 Rejected at Communist Trial,” Toronto Daily Star, 3 Nov. 1931; “Seven Reds Get Five Year Terms, One, Two,” Toronto Evening Telegram, 13 Nov. 1931. 59 Norman Sommerville, “Re: Buck et al., Opening to the Jury,” RG4-32, file 3188/31, 28L 0137. 60 Ibid. 61 Ibid., 28L 0138. 62 See John Nimmo’s testimony in Rex vs. Tim Buck et al., 71–5, and ibid., George Fish, 85–7. 63 George Fish in Rex vs. Tim Buck et al., 87. 64 Andrew Parnaby and Gregory S. Kealey, “How the ‘Reds’ Got Their Man: The Communist Party Unmasks an RCMP Spy,” Labour/Le Travail, 40 (fall 1997): 253–67; Steve Hewitt, “Royal Canadian Mounted Spy: The Secret Life of John Leopold/Jack Esselwain,” Intelligence and National Security, 15, no. 1 (2000): 144–68.

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Section 98  359 65 Rex vs. Tim Buck et al., 98. 66 Endicott, Raising the Workers’ Flag. 67 The CLDL sought to defend party supporters and members when they were arrested or faced with deportation. Unlike the CPC, one could be a member of the CLDL without being a Communist or CPC member and civil-libertarian activists and lawyers were associated with the group. 68 Unlike many of the others on trial, 2aôiñ had limited standing in the party and was never a leader. 69 Macdonald, Rex vs. Tim Buck et al., 116. 70 Ibid., 120. 71 Ibid. 72 John Leopold, Rex vs. Tim Buck et al., 125. 73 Ibid., 130–1. 74 Sommerville, Rex vs. Tim Buck et al., 168. Emphasis in original. 75 Leopold, Rex vs. Tim Buck et al., 170. 76 Rex vs. Tim Buck et al., 173–6. 77 Rex vs. Tim Buck et al., 199D-199E. 78 Rex vs. Tim Buck et al., 246–8. 79 A series of recommendations written by B. Vasiliev of the CI. 80 The Comintern had its suspicions that the Canadians were modelling their case on the U.K. prosecution, although in the U.K. case, unlike the Canadian one, the CPGB leaders were charged as individuals and the party itself was not outlawed as a result of the convictions of the leaders. See “The Imprisonment of the Leaders of the CP of C and the Declaration of the Illegality of the Party,” LAC, Comintern Fonds, fond 495, file 126. For more on the Zinoviev letter, see Gill Benentt, Churchill’s Man of Mystery (New York: Routledge 2007); Nigel West, At Her Majesty’s Secret Service: The Chiefs of Britain’s Intelligence Agency, MI6 (London: Greenhill Books 2006). 81 Rex vs. Tim Buck et al., 356–61. 82 Ibid. 83 Ibid., 365–7. 84 Macdonald, Rex vs. Tim Buck et al., 377. 85 Wright, Rex vs. Tim Buck et al., 377. 86 Ibid., 378. 87 Buck, Rex vs. Tim Buck et al., 402. 88 Macdonald, Rex vs. Tim Buck et al., 425. 89 Wright, Rex vs. Tim Buck et al., 426. 90 Buck, Rex vs. Tim Buck et al., 427. 91 Ibid., 429. 92 Ibid., 440. 93 Ibid., 441.

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360  d e n n i s g . molinaro   94 Rex vs. Tim Buck et al., 448–50.   95 Rex vs. Tim Buck et al., 452–3.   96 Macdonald, Rex vs. Tim Buck et al., 453.   97 Rex vs. Tim Buck et al., 472–3.   98 Ibid., 522.   99 Ewan, Rex vs. Tim Buck et al., 591. 100 Ibid., 598. 101 Ewan, Rex vs. Tim Buck et al., 607. 102 Rex vs. Tim Buck et al., 612. 103 Ibid., 735. 104 Ibid., 767. 105 “Canada May Set Precedent in Communism, Buck Says,” Toronto Daily Star, 11 Nov. 1931. There was truth in Buck’s statement. For instance, as indicated above in n.80, although the leaders of the Communist Party of Great Britain were charged with seditious conspiracy in 1925 and later convicted, the charges were against the individuals and the party itself was never classified as unlawful. According to F.R. Scott, after the Buck et al. trial and convictions, Canada joined Japan, Italy, Poland, and the more “reactionary Balkan states” in outlawing the Communist Party. See F.R. Scott, “The Trial of the Toronto Communists,” Queen’s Quarterly, 39 (1932): 512–27. 106 Tim Buck, An Indictment of Capitalism (Toronto: Canadian Labour Defence League 1932). 107 “Violence Said Alien to Eight Accused,” Toronto Daily Star, 12 Nov. 1931. 108 Norman Sommerville, “Trial Importance of Trial Position of Jury,” AO, RG432, file 3188/31, 28 L 0145. 109 Norman Sommerville, “Closing Address to the Jury,” AO, RG4-32, file 3188/31, 28 L0147. 110 Ibid., 28 L 0158. 111 Ibid., 28 L 0174. 112 Ibid., 28 L 0175. 113 For more on gender and the state, see Yasmeen Abu-Laban, Gendering the Nation-State: Canadian and Comparative Perspectives (Vancouver: UBC Press 2009). 114 Wright, Rex vs. Tim Buck et al., 783–4. 115 Macdonald, Rex vs. Tim Buck et al., 798. 116 Wright, Rex vs. Tim Buck et al., 800–2. 117 For more on hegemony and the state in the Canadian context, see Ian McKay, “The Liberal Order Framework: A Prospectus for a Reconnaissance of Canadian History,” Canadian Historical Review, 81, no. 4 (2000): 617–45. 118 Agamben has argued that individuals in a state of exception undertake the

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Section 98  361 status of a homo sacer, an individual simultaneously included and excluded from law. Agamben, Homo Sacer. 119 The sale of Communist material could warrant a section 98 charge after the Buck trial. For instance, in 1934 a number of booksellers in Montreal were reported to have plead guilty to violating section 98, presumably subsection 8, for distributing unlawful literature. The literature consisted of Communist texts and periodicals such as the labour paper La Vie Ouvriere and the CLDL paper Canadian Labour Defender. One vendor, Saul Feigelman, and his sister refused to plead guilty. Their case was publicized in the House of Commons by J.S. Woodsworth. No transcript exists of the trial in which Feigelman was found guilty. See Saul Feigelman, “Jailed for Selling La Vie Ouvriere,” 1 Dec. 1934, The Worker. The RCMP kept a close watch on the case; see “No. 711 Weekly Summary Report on Revolutionary Organizations and Agitators in Canada,” in Gregory Kealey and Reg Whitaker, eds., R.C.M.P. Security Bulletins: The Depression Years, pt. 1, 1933–1934 (St John’s: Canadian Committee on Labour History 1993), 89; “Police Grab Whole French Paper Issue,” The Worker, 12 May 1934; “La Vie Ouvriere Starts Campaign,” The Worker, 30 June 1934; Canada, Debates of the House of Commons Eighteenth Parliament First Session (Ottawa: J.G. Patenaude 1936), 4231–3. 120 “The King vs. Buck and Others: The Judgment of the Court of Appeal of Ontario concerning the Communist Party in Canada,” published by direction of W.H. Price, Attorney General for Ontario, LAC, RG13, vol. 2014, file 1484, 1932, 2, 16; “Communists Fail in Their Appeal Against Sentences,” Globe, 20 Feb. 1932. 121 See, for example, the case of Tomo 2aôiñ in Frederick P. Varco, “Memorandum for the Minister of Justice,” 1 Dec. 1933, LAC, RG13, vol. 2014, file 1484, 1932. As pointed out in Dennis Molinaro, “Species of Treason? Deportation and Nation-Building in the Case of Tomo 2aôiñ 1931–1934,” Canadian Historical Review, 91, 1 (2010), section 41 permitted the deportation of anyone who advocated the overthrow of government by force and violence. Membership in an unlawful organization like the CPC, or any group that the department believed was connected to the CPC, would make an individual eligible for deportation. 122 Roberts, Whence They Came, 29–36. 123 “Local Lawyer Retained for Man Held Here,” Halifax Chronicle, 29 Dec. 1933, in LAC, Record of CSIS, RG146, vol. 4670, file 96-A-00149. 124 See Roberts, Whence They Came, 140–8; Whitaker, Kealey, and Parnaby, Secret Service, 125–6; LAC, RG146, vol. 3322, “CPC-Radicals for Deportation, Summary of the Supreme Court Decision ‘re Immigration Act,’” prepared by V.J. LaChance, chief, Bureau of Records, 15 Oct. 1932.

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362  d e n n i s g . molinaro 125 Iacovetta, Gatekeepers, 201, 272; Reginald Whitaker, Double Standard: The Secret History of Canadian Immigration (Toronto: Lester and Orpen Dennys 1987), 187–9. For more on Communists as foreigners and the protection of British values and citizenship in this period, see Horn, “Keeping Canada ‘Canadian’”; Molinaro, “A Species of Treason?”; Whitaker, Kealey, and Parnaby, Secret Service, 142–4. 126 “Secret Deportation Plan Crowds Halifax: Penalty for Asking Repeal of Section 98 is Deportation Order,” Toronto Daily Star, 7 May 1932; Roberts, Whence They Came, chs. 7, 8. The RCMP warned the government about the risk of death or torture in sending Communists to their home countries. See J.W. Spalding to A.L. Jolliffe, 3 Dec. 1932, LAC, RG76-B-1-a, vol. 738, file 513057; Molinaro, “A Species of Treason?”; “Dan Chomicki Board of Inquiry, 6 May 1932, LAC, RG76-I-A-1, vol. 376, file 513111; “Communist Deportation from Canada for the Fiscal Year Ended Mar. 31, 1933,” LAC, RG26, vol. 16, 1; “Communist Deports for the Calendar Year 1933,” LAC, RG26, vol. 16. See also Whitaker, Kealey, and Parnaby, Secret Service, 122–6. For more on the legal debates of the period regarding deportations, see F.R. Scott, “Immigration Act – False Arrest – Illegal Treatment of Arrested Person [headnote],” Canadian Bar Review, 1 (1936): 62–7; Maxwell Cohen, “The Immigration Act and Limitations upon Judicial Power: Bail,” Canadian Bar Review, 14 (1936): 405–11; Moffatt Hancock, “Discharge of Deportees on Habeas Corpus,” Canadian Bar Review, 14 (1936): 116–36. 127 Reports of other cases appear in the Communist Worker. While trial dockets exist for some of these cases, trial transcripts from this period were purged in a number of archives across the country. Stories from the press document that a number of individuals often plead guilty to avoid lengthy sentences and trials. See Saul Feigelman’s account of his section 98 arrest and conviction in “Jailed for Selling La Vie Ouvriere,” The Worker, 1 Dec. 1934. 128 William John Thomson, Rex v. Evans, Arthur Evans fonds, University Archives of University of British Columbia, series B, file 2–7, 7–14. 129 Canada, Debates of the House of Commons Fourth Session Seventeenth Parliament (Ottawa: F C. Acland 1933), 2186–96. 130 See the “Freedom” section of Frank Underhill’s draft of the Regina Manifesto in “C.C.F. General 1932–1934, 1951,” F.R. Scott fonds, LAC, MG30-D211, vol. 12, file 8, reel H-1224. 131 CLDL to Prime Minister R.B. Bennett, 21 Feb. 1933, LAC, Comintern fonds, fond 495, file 154, reel K-286. For more on the CLDL, see J. Petryshyn, “Class Conflict and Civil Liberties: The Origins and Activities of the Canadian Labour Defense League, 1925–1940,” Labour/Le Travail, 10 (fall 1982): 39–63. 132 Governor General John Buchan, Baron of Tweedsmuir, “Governor General’s

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Section 98  363 Speech,” Debates of the Senate of the Dominion of Canada, First Session Eighteenth Parliament (Ottawa: J.O. Patenaude Printer 1936), 4156. 133 Section 98(1) appears to form the basis for Regulation 62 of the Defence of Canada Regulations, 1940. See R.S. Lambert, This Freedom: A Guide to Good Citizenship in a Time of War (Toronto: Canadian Association for Adult Education 1940), 9; sections 3 and 4 of the Public Order Regulations of 1970 issued by the Trudeau government during the October Crisis of 1970 also appear to draw on section 98(1) to outlaw the FLQ across the country. See Canada, Public Order Regulations, 16 Oct. 1970. Currently, the sedition section of the Criminal Code, section 59, subsections 4(a) and (b), stipulates that “every one shall be presumed to have a seditious intention who a) teaches or advocates b) publishes or circulates any writing that advocates, the use, without the authority of law, of force as a means of accomplishing a governmental change within Canada.” “Force” remains undefined in this section of the Criminal Code. See C.C.C. R.S.C., 1985, c. C-46, s.59(4)(a)(b). 134 Agamben, State of Exception. 135 Bill C-36 in 2001 amended the Criminal Code, the Official Secrets Act, the Canada Evidence Act, and the Proceeds of Crime Act, among others, to “combat terrorism.” See Canada, First Session Thirty-Seventh Parliament, Elizabeth II, 2001, 49–50. For more on the legal questions and debates surrounding the bill, see Daniels, Macklem, and Roach eds., The Security of Freedom.

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10 The Canadian State, Ethnicity, and Religious Non-Conformism: The Trials of Peter Petrovich Verigin J O H N M cL A R E N

On a cold winter’s day at the end of January 1933 in Prince Albert, Saskatchewan, a lone figure left the provincial jail, released early on a warrant from the governor general of Canada. The man, Peter Petrovich Verigin, “Chistiakov” or the Purger, the second leader of the Canadian Doukhobors, remained free for only a few minutes, as waiting Immigration officials quickly apprehended and whisked him away to board a train to Halifax under guard. The plan was to deport him to the Soviet Union. His lawyer, advised of these events by an observant Saskatoon Star-Phoenix reporter, immediately initiated a chase by air across the United States and Canada to counter this ploy by the federal government of R.B. Bennett.1 In Halifax, a judge released Verigin on a writ of habeas corpus because, in his opinion, the power to deport a convicted offender could be exercised only after he served his full term of imprisonment, which was not the case here. The Doukhobor leader survived another attempt to deport him later that year, this time from Winnipeg, on the ground that he been denied natural justice.2 He remained in Canada until his death in 1939, although these abortive official attempts to rid the country of him contributed palpably to the weakening of his leadership. The string of dramatic events associated with these deportation efforts leads to the complex story of one of the more bizarre episodes of the Canadian state’s strained relationships with its religious and ethnic minorities – an episode marked by the erratic behaviour of the Doukhobor leader,

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duplicity on the part of government in Canada, including elements of opéra bouffe, and a serious compromise of civil liberties. I will argue that the ham-fisted attempts to deport Peter P. Verigin were motivated by the federal government’s view, prompted by politicians in British Columbia and Saskatchewan, that his deportation would help solve the “Doukhobor problem.” This plan was part of a broader strategy to use the justice system to induce conformity to Canadian values among the Doukhobors, to force them to abide by Canadian law, and to submerge their culture. The sad outcome of these policies was decades of tension between Doukhobors and non-Doukhobors, especially in British Columbia. Reference is also made to the constitutional and legal context in which widespread deportation in the inter-war years took place, and the connection between the treatment meted out to Verigin, as a religious and cultural leader, and the experience of those deported, or threatened with it, because of their secular, political resistance to the Canadian state during the same period. The use of the law to force political, religious, and cultural conformity has been a discernible feature of nation building in Canada. Despite attempts to enshrine constitutionally linguistic rights and freedom of religion in education for the two “founding peoples,” the benefits to French Canadians and Roman Catholics in anglophone provinces were progressively eroded by restrictive provincial legislation and administrative ploys.3 The cultural subversion and linguistic destruction of First Nations communities, through the use of a widespread system of residential schools, was a central plank in Canada’s “Indian policy” for more than a century.4 Pacifist German-speaking religious communalists who sought to distance themselves from the social and economic demands of the state and the dominant community felt the sting of repressive legislation designed to induce educational and cultural conformity and undercut their commitment to communal agriculture.5 A desire to restrict radical religious non-conformity, strong in these instances, was also central to the state’s persecution of the Jehovah’s Witnesses, ethnically indistinguishable from the mainstream population.6 These themes are also reflected in other chapters in this volume. Repressive legal measures were not confined to matters of cultural or religious differences. There was wider enforcement of conformity to the dominant priorities of production and economic relations in this period as labour movements were also targeted with civil actions, criminal prosecutions, and procedures under naturalization and immigration legislation.

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the invitation, tensions, and legal encounters 1903–29 On 12 January 1925 Michael Cazakoff, first vice-president and general manager of the Christian Community of Universal Brotherhood (CCUB), the institutional embodiment of the orthodox Canadian Doukobor community, wrote to J. Bruce Walker of the Department of Immigration in Ottawa. He reported that the community had selected Peter Petrovich Verigin to succeed his father, Peter Vasilevich Verigin, as president of the CCUB and leader of the Doukhobors in Canada.7 Cazakoff sought letters of commendation to allow two members of the community, Harry Vereshagin and Nicolai Plotnikoff, to travel to the USSR to invite Peter Verigin the Younger to assume the leadership. The Immigration Department responded quickly and efficiently to Cazakoff’s request, issuing documentation and contacting its officials in London and Riga, Latvia, to provide all assistance to the Doukhobor emissaries.8 William Egan, the deputy minister of immigration, dispatched a letter to Peter P. Verigin on 17 February 1925 inviting him and his extended family to visit Canada and to stay, if he decided to accept the leadership offer.9 The positive response from the Mackenzie King government was, no doubt, prompted by a desire to re-establish strong and responsible leadership among the unpredictable Doukhobors (the “Spirit Wrestlers”). The Doukhobors, Russian-speaking religious dissenters who from time to time had practised communal farming in their homeland, were the victims of persecution in Russia where they had been branded as troublemakers and heretics for their suspicion of both secular and religious authority and for their pacifism.10 Accepted into Canada en masse at the turn of the nineteenth century as promising agricultural immigrants for the Prairies, they understood and later had confirmed that they were the beneficiaries of exceptions to homestead legislation, allowing some groups to settle and farm communally. Their experience of government in the early years in Canada after their arrival in 1899 was with the Dominion authorities in Ottawa. The Doukhobors had settled in the North-West Territories, in areas that later came under provincial jurisdiction (Saskatchewan) in 1905. They were quickly to find some of the challenges of life in a western liberal-bureaucratic state no less frustrating than those in autocratic Russia. In the absence of their leader, Peter Vasilevich Verigin, the “Lordly,” in exile in Siberia, tension developed over misunderstandings as to procedures for perfecting homestead rights, expectations of the authorities that the new immigrants would abide by vital-statistics laws, and the pres-

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ence of uniformed police, the North-West Mounted Police, as the primary agents of state authority.11 Doukhobor sensibilities were also bruised by the hostility of some members of the larger community.12 During this period of uncertainty, factionalism surfaced in the Doukhobor community. There developed a partial rift between the Community Doukhobors, the orthodox group loyal to Verigin and to the communalism that he preached from afar, and the Independents, who were inclined not to follow his every dictate, doubted his claim to divine inspiration, and were prepared to accommodate themselves to their new social, political, and economic circumstances.13 At the other end of the spectrum, a small group of zealots, the Sons of God, were preaching rejection of any accommodation with Mammon, abjuring animal husbandry and spreading their message in pilgrimages through Doukhobor villages.14 Conflict within the group caused anxieties in Ottawa as some politicians and bureaucrats began to doubt the wisdom of accepting the Doukhobors as immigrants. Verigin’s arrival in 1902 alleviated some of these concerns as his exercise of authority throughout the community brought former Independents back into the fold and trumped the excesses of the radicals, particularly their attraction to public nudity as a means of protest.15 Tension between the orthodox, now a comfortable majority of the Doukhobors, and Ottawa revived in 1906. In addition to an unresolved question of whether the immigrants would be required to swear the oath of allegiance when patenting their homesteads (a legislative requirement), a new bone of contention was created by the decision of the new minister of the interior, Frank Oliver, to reverse the understanding proclaimed by his predecessor, Clifford Sifton, that the immigrants were secure in holding and farming their land communally in Saskatchewan.16 Oliver was not well disposed to Slavic settlers, even less to communal working of the land. He bowed to pressure from non-Doukhobors to open up more land for settlement, and ordered land previously granted to the communalists, but not occupied, released for new homesteaders.17 This action was greeted by the majority of Doukhobors as a great breach of faith and yet another example of the perils of cooperating with and trusting earthly government. Ottawa’s volte-face and the bitterness it generated provided a basis for continuing to resist attempts by Canadian governments to force compliance with the law.18 Ironically, it was not Ottawa that was to feel the direct effect of this resistance. The Dominion government’s apparent perfidy induced Verigin to purchase in fee simple blocks of land in southeast British Columbia in 1907, to which a majority of the Doukhobor population then moved

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to live and work communally.19 Whether the newcomers stayed in Saskatchewan or repaired to British Columbia, the main point of reference in government and law was henceforth to be with the provincial authorities. It was in British Columbia where nativist sentiment was strong among the dominant society that the greater, more durable tension developed. Conflict between the Doukhobors and the B.C. government raged between 1911 and 1915 over the non-compliance of the migrants with the province’s public-health and compulsory-schooling laws. The government responded with legislation that exposed community assets to seizure for non-compliance. In 1915, under wartime pressures, Verigin and the government in Victoria reached a modus vivendi.20 However, in the wake of recriminations against so-called “shirkers” from the war effort, tensions revived between the Doukhobors and their neighbours in the Kootenays in the early 1920s.21 This time conflict arose over renewed enforcement of school-attendance laws and forfeiture of community property when fines were not paid, and the exaction of special levies from the Doukhobor community for school-building projects.22 Attempts to secure compliance with the truancy laws by the seizure of community property was met by a revival of radical protest, now more ominously manifested in school burnings as well as in displays of public nudity. With the exception of an ill-considered attempt to imprison several young Doukhobor men who raised conscientious objections to conscription during the war,23 and its barring of further immigration of communalists immediately after it,24 during this time Ottawa sought to distance itself from conflict between the Doukhobors and the provincial state and its supporters. The federal government’s stock responses were that the disputes were over matters within exclusive provincial jurisdiction or that nothing had happened that would warrant federal intervention.25 Occasionally Ottawa came down on the side of the Doukhobors.26 In British Columbia, Victoria ignored Verigin’s offer to assist the government in pursuing the zealots engaged in resistance on the schools issue.27 The provincial government was more interested in using the law to bring Community members to heel. During this period of pressure from without and upheaval from within, the Lordly, with eight others, Doukhobor and non-Doukhobor, was blown to pieces in an explosion on a Canadian Pacific train in the Kettle valley between Brilliant and Grand Forks, B.C., early on the morning of 24 October 1924.28 Prime Minister Mackenzie King’s office expressed regret and sympathy when it received news of the elder Verigin’s death.29 The speed with which Cazakoff’s request was accepted and processed suggests that Ot-

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tawa felt strongly that the vacuum in the Doukhobor leadership should be filled quickly and painlessly. Ottawa’s desire to ensure an orderly succession in the Doukhobor leadership may well have blinded it to potential problems with that succession within Canada. Cazakoff and Verigin’s nephew, Larion, had earlier written Mackenzie King imploring him not to admit Verigin Junior to Canada.30 The man, the communication suggested, would spread Bolshevik propaganda and persuade the Community to follow him back to the Soviet Union.31 King, sufficiently concerned by this letter, approved the suggestion of Colonel Cortland Starnes, commissioner of the RCMP and the head of Canada’s security service, to have the Mounties make discreet inquiries in the B.C. Doukhobor community.32 On the basis of these inquiries, Starnes agreed with the sentiments expressed in the Casakoff/Larion Verigin letter. However, any doubts in the prime minister’s office about the succession seem to have been resolved by news of the overwhelming election of Verigin the Younger by the Community meeting together in Brilliant, B.C., on 18 December 1924, and by a subsequent interview with Cazakoff in which he indicated that all objections to Verigin’s entry on his part were now withdrawn.33 RCMP records indicate that the force’s surveillance of the community continued, despite the resolution of the leadership issue.34 Events within Russia might also have given pause for thought about the character of the new leader. Verigin’s departure was significantly delayed in part because of his troubles with the Soviet authorities.35 In 1927 he had been stripped of his official status as leader of his community and head of the collective farm, and then a Workers’ Court convicted him for drunkenness and brawling and extorting money from the community and he was jailed and threatened with exile to Turkestan.36 Entreaties from Canadian Doukhobors to the USSR’s Central Executive Committee for his release ensued. However, the key intervention on Verigin’s behalf seems to have been that of Ivan Tregubov, an ageing disciple of the author and pacifist Leo Tolstoy, who persuaded the authorities that it would be cheaper to let him out of the country than consign him to exile within.37 The Soviets released Verigin on 1 September 1927 and he was admitted to Canada later that month.38 Ottawa officials would have viewed Verigin as the innocent victim of Bolshevik oppression, so that his imprisonment did not raise serious concern. As became apparent soon after his arrival in Canada, Peter Verigin, “Chistiakov-the Purger” as he described himself, was a complex and enigmatic figure. While endowed with intelligence and charm and, as his early management of financial affairs of the Community indicated, some

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Community Doukhobors at Brilliant, B.C., on the arrival of their new leader, 11 October 1927. Peter Verigin is standing third from right; Peter D. Makaroff seated on right. Source: Saskatchewan Archives Board, Photograph S-B5425.

business acumen, he was prone to outbursts of temper and addicted to gambling and excessive drinking.39 He justified these quirks of character in terms of his need to test the faith of followers and to deceive the authorities. To the most ardent supporters, his behaviour marked the new leader off from other mortals, proving beyond all doubt his divinity.40 His speeches were often rambling discourses, combining elements of practicality, the tenets of the faith, and mysticism. Although committed to promoting unity within the Community and understanding where possible with the state, Verigin found it increasingly difficult to pull together the three elements of the Doukhobor population: the Independents, the Orthodox, and the radicals, now identified as the Sons of Freedom. His attempts to restructure the whole Doukhobor

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community economically and socially as the Society of Named Doukhobors fizzled as it became apparent that links between the three groupings were sentimental rather than substantive, and as the radicals increasingly pursued their own agenda.41 In a well-intentioned move to recognize the importance of their spirituality and asceticism, Verigin praised the Sons of Freedom for keeping the ears of other Doukhobors open to the truth, and dubbed them “the ringing bells” of Doukhoborism.42 However, the radicals tended more and more to believe the opposite of everything Verigin said about relations with government. Thus, if he preached compromise on education, he meant resistance to state attempts to extend its educational system to Doukhobor children.43 Confusion about Verigin’s leadership and his motives in Doukhobor ranks also became magnified in the minds of non-Doukhobors. When the Sons of Freedom began executing what they took to be the leader’s plan for resistance to earthly government by burning schools and protesting in the nude in 1929 in both Saskatchewan and British Columbia,44 local politicians and members of the public quickly concluded that Verigin directed their actions. Pressure built up in some localities for the Dominion government to deport him.45 For the moment, the Immigration Department’s response was to reject these “speculations” as to Verigin’s connection with the Sons of Freedom: “There is absolutely no evidence submitted to us that Peter Veregin [sic] is deportable and although there may be some connection between the burning of the schoolhouses and the Doukhobor sect known as the Sons of Freedom, no evidence has been offered in support of the idea, and it would be a fine travesty on British justice to pick up Peter Veregin and deport him on the general complaint that troubles have occurred there and that Peter Veregin may be responsible for them.”46 the mounties and the anti-bolshevik card It was not only local politicians who were calling for action against Verigin. The RCMP, which was already doing undercover work among the Doukhobors, added its voice to the growing chorus favouring the leader’s expulsion.47 Superintendent W.P. Lindsay, the officer commanding the Southern District of Saskatchewan, wrote to headquarters in Ottawa in July 1929: “There does not seem to be any doubt that he [Verigin] is a dangerous Communist and is responsible for all the trouble we have had with the Doukhobors. It must be remembered that this Peter Verigin only came out to Canada after the Russian Revolution and must have been through the same. Furthermore, to the best of my recollection, at the time he came

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out the Soviets made no effort to prevent him, which would go to show that he was, at least, in sympathy with their views.”48 RCMP Commissioner Starnes endorsed these views in a letter to the deputy minister of immigration the following month.49 He pointed to the movement of Sons of Freedom zealots from British Columbia to Saskatchewan and what he described as the “petty insurrection” that had followed. Starnes agreed with Lindsay that deportation was the answer, and noted that the “Prime Minister” of Saskatchewan was pressuring Ottawa to take such action. Police “evidence” that Verigin was both a closet Bolshevik and a secret leader of the Sons of Freedom now struck a responsive chord in the Department of Immigration. As noted elsewhere in the volume, the department was committed to deporting “undesirables,” including political “troublemakers” and labour radicals, in the late 1920s and early 1930s, and the process relied heavily on RCMP information and tips.50 However, departmental officials responded to Starnes by stating that Verigin was not deportable, since to their knowledge he had done nothing illegal.51 The situation was to change dramatically after the election of the federal Conservative government of R.B. Bennett in 1930.52 By 1931, there was consensus in governmental circles in Ottawa, Regina, and Victoria, as well as among the non-Doukhobor population in parts of Saskatchewan and in the Kootenays, that Verigin was responsible for Sons of Freedom excesses and was himself an agent of Bolshevik subversion. Demands were being made that a tough line be taken against the sect, including, if possible, the deportation of the éminence grise behind them. The Bennett government was under intense pressure from the Tory government of Simon Fraser Tolmie in British Columbia and one of its own backbenchers, W.K. Esling, the member from Kootenay West, to show resolution.53 Both men were highly responsive to anti-Doukhobor sentiment in the province. No credence was apparently attached to the fact that Verigin had as early as 1928 undertaken to expel from the Community those committing crimes, and by the early 1930s he was making good on his promise by forcing Sons of Freedom families off Community land in the Kootenays.54 Adding urgency to the calls for action were reports that the leader was in the process of negotiating for another group of Doukhobors from the Soviet Union to settle in Canada.55 The Bennett government had already acted on a matter within its jurisdiction. In July 1931 Parliament amended section 205 of the Criminal Code to change public nudity from a summary-conviction offence with a maximum penalty of six months in prison to one with a maximum term of three years’ imprisonment, with prosecution subject to the attorney gen-

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eral’s consent.56 The government made no bones about the reason for the amendment. In introducing the changes, Hugh Guthrie, the minister of justice, indicated that he was responding to pressure from the western provinces by strengthening an existing section which had proved an ineffectual weapon against the Sons of Freedom.57 Addressing the Verigin problem remained difficult. In order to deport him, the Immigration Act required a Board of Inquiry appointed by the Department of Immigration to determine that he, as an alien without Canadian domicile, was a person within the “prohibited and undesirable classes.”58 One such class was people convicted of criminal offences in Canada. If the board recommended deportation, appeal to the minister was possible and formal authority to order “undesirables” deported was vested in cabinet. If the subject of a deportation order was serving a jail sentence, the minister of justice, acting on the request of the minister of immigration, had the power to direct the warden of that institution to deliver the person to a named Immigration officer for deportation “after the sentence or the term of imprisonment has expired.”59 Whether by chance or design, the opportunity to deport Verigin on this basis presented itself in 1932. orchestrating deportation Verigin foolishly became involved in a dispute with another Doukhobor, George Chutsoff, claiming that the latter was still indebted to him for $1,000 on a land purchase in Saskatchewan. Obsessive when it came to litigation, he sued Chutsoff instead of adhering to the rules of the Community that provided for internal resolution of disputes. Chief Justice James Thomas Brown heard the suit at the late fall sittings of the Court of Queen’s Bench in November 1931 in Yorkton, and rendered judgment for the defendant.60 Verigin, unwilling to accept this verdict, accused his adversary of perjury and laid an information to that effect. Chutsoff was committed for trial at a preliminary hearing late in January 1932. Subsequently, the crown charged Verigin first with tampering with witnesses prior to the civil action and then with perjury for giving false testimony at Chutsoff’s preliminary hearing.61 He was committed for trial on these charges. Chutsoff was acquitted at the May assizes in Yorkton. A jury found Verigin guilty of perjury on a single count of lying about his whereabouts during eight months in 1929.62 Justice D.M. McLean sentenced him to three years in the Prince Albert Penitentiary, a term the Court of Appeal reduced to eighteen months.63

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There is no doubt that the Tory-led coalition government of James Anderson in Regina was pressing Ottawa hard to get rid of Verigin but there is no extant evidence that the authorities actually conspired to produce a conviction. The attorney general of Saskatchewan, Major Malcolm MacPherson, denied that Peter Petrovich was being singled out for special treatment when representatives of the Community raised the matter with the government, noting that the police were in charge and had responded to serious allegations.64 It is possible that there was a tacit understanding between the attorney general’s department and the police that the latter should be vigilant to catch any slip-up by the Doukhobor leader if a criminal prosecution was possible, and not to give him the benefit of any doubt in exercising prosecutorial discretion. There is no denying, however, that whatever the government’s motives, Verigin invited this prosecution by his stubbornness and complete lack of judgment. Deportation of Verigin, the solution to the Doukhobor problem as conceived by both the provincial and federal authorities, was now possible, and plans were immediately launched. On 25July 1932 the Immigration Department issued a ministerial order under section 40 of the Immigration Act, stating: “That Peter Verigin, of Prince Albert, Saskatchewan is a person other than a Canadian citizen or person having a Canadian domicile, who has been convicted of a criminal offence in Canada and who has become an inmate of a gaol in Canada.”65 During this period Peter Makaroff, an Independent who was Canada’s first Doukhobor lawyer, represented Verigin. Makaroff was committed to serving his ethnic community in their engagements with the law, standing up against nativism in the legal profession, and had been appointed king’s counsel in 1932 “in part for his efforts at quelling some of the more rambunctious antics of the Sons of Freedom Doukhobors.”66 He was well aware that the Immigration authorities planned to deport his client, and appeared with Verigin at his deportation hearing on 25 August. Verigin was ordered deported,67 and Makaroff launched the appeal to the minister as allowed under the act.68 He also encouraged members of the Doukhobor community throughout the west, as well as friends outside the Community, including Dr Walter Charles Murray, the president of the University of Saskatchewan, to write Ottawa protesting the deportation order.69 What he did not know was that plans were afoot in Ottawa to hasten the process of deportation. In the summer of 1932 the chorus of calls for action on Verigin’s deportation from politicians and community groups in British Columbia intensified. The provincial government had that spring moved against the Sons

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of Freedom, making mass arrests of nude protesters, male and female, securing their imprisonment for the maximum three years, and transporting them to a special penal colony on Piers Island off Sidney, B.C., provided by the federal penitentiary service.70 The imprisonment of parents allowed provincial authorities to send Freedomite children to orphanages, industrial schools, and foster homes in the Lower Mainland and Victoria as part of an established plan to resocialize them.71 Meanwhile, Bennett and his cabinet had convinced themselves, with the help of the secret reports of the RCMP, that Verigin was both a Bolshevik and the leader of the Sons of Freedom. In their view, deportation to the Soviet Union was the only answer. The government was so obsessed with this objective that it rejected any counsel of moderation out of hand. Even the suggestion from Verigin’s great adversary, R.H. Pooley, attorney general of British Columbia, that he be allowed to remain in Canada on his release as a hostage for the good behaviour of the Sons was summarily dismissed.72 The fears expressed in various quarters that to return him to the USSR was to condemn him to death were entirely discounted.73 Timing was an important consideration. In the first place, Immigration officials wanted to be sure that Verigin was gone well before the date he would achieve domicile in Canada. Although section 4(3) of the Naturalization Act reposed absolute discretion in the secretary of state over whether to allow an alien to be naturalized, that power was qualified by sections 22–27, which allowed an individual to apply to a court to determine whether on the evidence he or she was fit for the status of subject. The department’s concern was presumably the possibility of delay by that process beyond the date that Verigin would achieve Canadian domicile in March 1933 (five years from date of landing plus time spent as an inmate in jail).74 More worrying at this stage, however, was uncertainty as to whether or for how long the Soviet authorities would agree to accept him back. Through the Canadian High Commission in London and the British Foreign Office, requests were made of the Soviet Embassy that Verigin be given the necessary passport to return.75 The Department of Immigration was informed by a telegram dated 3 December 1932 that the Soviet authorities had extended Verigin’s passport to 30 March 1933.76 Three days later, on 6 December, the minister of immigration, Wesley Gordon, denied the Doukhobor leader’s appeal of the order to deport him, which had been sitting in Ottawa since early September.77 Just as the minister, in a letter dated 13 December, was advising Makaroff that the appeal had been turned down, the department was moving into high gear to deport Verigin “in time.”78 The resolve of the department

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to act quickly against Verigin was no doubt strengthened by undercover reports from the Mounties on Verigin’s demeanour and conversations. A letter from RCMP Commissioner J.H. MacBrien to W. Egan, deputy minister of immigration, in mid­December 1932 described Verigin’s rage as terrific when he learned of the dismissal of his appeal. He was also reported as having ordered the formation of the new “Youth Doukhobor Communists.” Detective Sergeant James Wood, of the Prince Albert Division, in a report that accompanied MacBrien’s letter and on which it was based, suggested that the force had Russian-speaking snoops within constant earshot of the leader, including one who was listening in to all Verigin’s conversations in jail.79 Since 1906 the Department of Immigration had closely monitored immigrants and acquired some experience administering summary measures such as deportation. As seen elsewhere in this volume, such measures were extended during the First World War under the War Measures Act, and in its wake through amendments to the Criminal Code and Immigration Act, and applied widely to “enemy aliens,” political subversives, and unemployed workers.80 The post-war campaign against Communists and fellow travellers was stepped up with renewed vigour with the election of the Bennett government. In most deportation cases the Immigration Department and the Board of Inquiry operated free from the gaze of Parliament and without legal challenge in the courts because of a wide privative clause, section 19, which barred legal appeals.81 Additionally, the vast majority of potential deportees were not in a financial position to afford legal assistance. It was only in a relatively small number of high-profile cases that legal assistance could be provided to radical “alien” activists through a defence organization such as the Canadian Labour Defence League, and usually the most that could be achieved, even in these instances, was delay in deportation.82 In other cases, deportations occurred with such secrecy and speed that lawyers were unable to advise their clients before they were dispatched to uncertain and sometimes deadly futures.83 Verigin, for whom money was not a problem, was the exception who proved the rule. In January 1933 the details of the plan to deport Verigin at the moment of his release were put into place with the utmost secrecy. The assistant commissioner of immigration, R. Munroe, instructed the immigration inspector-in-charge in Halifax to arrange for a passage for Verigin to Europe on the S.S. Montcalm, due to sail on 4 February.84 The Immigration office in Winnipeg coordinated plans for Immigration officers to pick up the “deportee” in Prince Albert on 30 January and escort him to Halifax.85 A warrant for the detention of Verigin under section 43 of the Immigra-

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tion Act was secured from the Department of Justice, transmitted to the division commissioner of the Immigration Department in Winnipeg, and communicated to the warden of the provincial jail in Prince Albert, Saskatchewan.86 The federal government had decided that, if Verigin’s sentence was reduced in length as an act of clemency on the prerogative of the governor general, he could be immediately deported on his release. This initiative would obviate any potential issues associated with domicile or his status as a Soviet citizen. The Bennett government’s guile in this decision is evident in its reasons to the queen’s representative supporting clemency, which emphasized that more than five thousand Doukhobors had requested it.87 The final elements of the plan fell into place on 30 January when the governor general’s wishes on clemency were formally communicated to the Department of Immigration.88 The warden of the provincial jail and the sheriff in Prince Albert had already been alerted by wire to keep Verigin in custody until arrangements were made for deportation and to deliver him to an officer appointed by the deputy minister of immigration. Peter Verigin’s release occurred that same day. He was immediately detained by the waiting Immigration officials and began his journey across the country by train to Halifax. Peter Makaroff, who was working to persuade Ottawa to deport his client to Argentina or Costa Rica, was momentarily caught off-guard by this turn of events.89 However, he received word of the “springing” of Verigin through the city editor of the Saskatoon Star-Phoenix, who had been alerted by their correspondent in Prince Albert, Mrs J.D. Rose. There then ensued a dramatic chase as Makaroff and two Community Doukhobor representatives, Joe Shukin, the vice-president, and Semeon Reiben, Verigin’s personal secretary, pursued the leader and his captors.90 By a combination of transport, including a flight on United Airlines over midwestern and northeastern states then in the grip of a major storm and a chartered plane flying between Boston and Halifax, the trio arrived in Halifax on the morning of 4 February.91 During this chase Shukin had corresponded by telegram with Prime Minister Bennett’s office to ensure that he and his colleagues could interview Verigin before he was put aboard ship, ostensibly so that the leader could see to some final and urgent Community business.92 Assurances were given by the prime minister, who doubted, however, that Doukhobor representatives would be in time.93 They proved him wrong and on reaching Halifax proceeded immediately to challenge the deportation. Despite the eleventh-hour arrival, Makaroff, while en route, had already briefed a young Halifax lawyer, Lionel Ryan,

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and a seasoned counsel, J.J. Power, KC, who moved quickly into action. Early that afternoon Verigin’s legal team applied for and secured a writ of habeas corpus directed to the captain of the Montcalm to render up his detainee pending a show-cause hearing.94 The liner sailed minus its most notorious passenger. application for habeas corpus Justice Humphrey Mellish conducted the hearing on the habeas corpus application. He was a man who as a judge encouraged conflicting sentiments. As David Frank has amply shown in his chapter in this volume, Mellish was not considered a friend of organized labour, and certainly not of its more radical spokesmen.95 However, according to a colleague, Justice John Doull, in penning an obituary to him: “He was always happiest when his efforts were directed to the protection of the rights and liberties of the common man.”96 To oppose Verigin’s legal team, the Department of Immigration retained another senior counsel from the city, Charles Smith, confident that their case was in the best possible hands. To the consternation of the Bennett government, on 25 February, Justice Mellish granted the application for habeas corpus and ordered Verigin released from custody of the Immigration Department.97 The judge interpreted the wording of section 43(1) of the Immigration Act, directing the warden of a jail to deliver a prisoner to an authorized Immigration officer “after the sentence or term of imprisonment of such person has expired,” narrowly. The wording in the section contemplated only situations in which the prisoner had completed the sentence imposed on him at trial, which was not the case for Verigin, who had been granted clemency. Mellish went on to argue that where the executive reduced a sentence, the subject could be deported only if he or she had accepted this as a condition of the reduction. In this instance Verigin would have had to agree to an accelerated deportation, which he had not. The judge concluded: “In exercising this mercy by means of a pardon, the punishment is remitted but the sentence and period or term fixed for the punishment remain … Freedom from deportation is incident to the pardon, because deportation was incident to the imprisonment. In any view the prisoner is I think unlawfully detained and must be discharged.”98 Divining Mellish’s broader motivations in deciding the case as he did, that is, in favour of the freedom of the individual, can be no more than speculative, for the judgment itself gives no explicit clues. It may not be fanciful to suggest that, in common with other judges of that era, Mellish would likely have been disturbed by the usurping of common law decision making by administrative tribu-

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nals, in this case the Board of Inquiry under the Immigration Act, and thus inclined to give the narrowest possible interpretation to administrative powers under that legislation when a person’s liberty was at stake. Verigin may also have been fortunate that he was not a “labour troublemaker” and, against his will, was in danger of being consigned to outer darkness, without a trial.99 the supreme court reference Verigin’s release from jail meant that the time clock for domicile was ticking again and that the expiry date of the extension of his Soviet passport, 30 March, was just over a month away. Moreover, there was no appeal from Justice Mellish’s decision. The Immigration Department was now in a bind but the government remained determined that Verigin had to go, and not, as Makaroff, Shukin, and Reiben suggested as a compromise, to a third country but to the Soviet Union.100 Immediate steps were taken to prepare for a renewed deportation attempt and to secure further extension of Verigin’s passport.101 Following the advice of Charles Smith, its counsel in Halifax, the federal government used its power to seek a reference from the Supreme Court of Canada.102 Ottawa posed as a hypothetical question whether under the Immigration Act, section 43, a person granted a pardon under the royal prerogative involving early release from a prison sentence could be deported forthwith, regardless of that person’s lack of consent. The procedure moved with dispatch as the chief justice, Sir Lyman Poore Duff, rendered the Court’s opinion on 29 March.103 He reached the opposite conclusion to the Nova Scotian judge, asserting that early release as an act of clemency satisfied the reference to expiry of the prison term as the basis for deportation under section 43 of the act. Furthermore, said the chief justice, the exercise of the prerogative by the governor general in such a case did not depend on the consent of the convict in question. The fact that release at the end of a sentence or upon remission was treated by sections of the Criminal Code as tantamount to a pardon could not be taken as affecting the application of the power of deportation under the Immigration Act on expiry of sentence as a matter of administrative discretion. To do so would render the power to deport in these circumstances ineffectual.104 the deportation plan revived Armed with this favourable opinion by the highest court in the land, the Department of Immigration decided to mount a further deportation

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attempt. Verigin had facilitated this by leaving Nova Scotia at the beginning of March, to return to the west.105 Added to that, news arrived from London early in April that the Soviet ambassador had authorized the extension of Verigin’s passport for a further six months.106 It was calculated that, with the interruption caused by his jail sentence, Verigin would in the normal course of things secure domicile on 5 July 1933. The Department of Immigration was determined to get it right even if some time was consumed in planning. Early in April the department sought advice from the deputy minister of justice, W. Stewart Edwards, on how to deport Verigin successfully.107 Later the same month, the RCMP was instructed to keep close tabs on Verigin’s movements,108 an undertaking that they pursued with obvious relish and which was assisted by their earlier penetration of Verigin’s immediate coterie. The Doukhobor leader, for his part, tested the resolve of the department by announcing a pending visit to Mexico while tying his departure to an undertaking by Ottawa to let him return.109 Through May and early June 1933, the assistant commissioner of the RCMP, G.L. Jennings, forwarded reports to A. Joliffe, the commissioner of immigration, with the latest information on Verigin’s whereabouts.110 By early June, the plans for the second deportation attempt were in place with the blessing of the Department of Justice.111 The assistant commissioner of immigration had written to both C.E.S. Smith, the regional commissioner of immigration in Winnipeg, and Jennings of the Mounties with specific instructions about process, impressing on them the urgency of moving with expedition as Verigin was due to acquire domicile on 5 July.112 On 9 June the commanding officer of the Winnipeg detachment of the RCMP, T. Dann, transmitted a telegram to Commissioner Sir James MacBrien in Ottawa reporting, “Veregin [sic] arrested in Winnipeg and handed over to Immigration authorities.”113 The Department of Immigration’s plans were soon dashed. A deportation hearing had been hastily convened on 9 June.114 The hearing officer denied a request by Verigin’s Winnipeg lawyer, B. Dubienski, for an adjournment to allow for proper preparation.115 The lawyer immediately applied for a writ of habeas corpus, prompting C.E.S. Smith to wire Ottawa requesting “rush authority” to retain a solicitor to represent the department at the proceedings.116 Arthur Sullivan, senior counsel in Winnipeg, was retained by the department but, despite his efforts, Chief Justice Hugh Robson of the Manitoba Court of King’s Bench granted the writ on 13 June. This judge had the reputation of being liberal in his view of the rule of law, and was anxious to impress upon administrative tribunals

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the importance of observing the rules of natural justice.117 He accepted the argument of Verigin’s counsel that “the conduct of the proceeding before the board was not consistent with the fair hearing and trial which the law requires shall be accorded to a person detained for any cause.”118 Although the Doukhobor leader enjoyed little support among the members of the non-Doukhobor community in the two provinces concerned, press and public opinion had shifted and it was now the Bennett government and its deportation practices that were the objects of scrutiny and criticism. On 4 February, when the first deportation attempt had come to light, the Ottawa Citizen published an editorial deprecating the government’s insistence that the Doukhobor leader be deported to the Soviet Union where he might face death.119 Then, on the 27th, after Verigin’s release in Halifax, the Citizen published another editorial, this one criticizing the whole system of deportation. After noting that Verigin had proved an exception because he had the money to secure good legal advice and representation, the paper complained: “The wholesale and semi-secret deportation system which has grown up in Canada of late is causing grave misgivings to arise in the minds of Canadians. The Verigin case simply confirms some of their worst fears.”120 In its lead story on 15 June the same paper castigated the Department of Immigration for its methods, now laid bare by two judges in the space of six months in the case of a potential deportee who, in the writer’s view, did not warrant much in the way of sympathy: “The star chamber methods ... do no credit to Canada nor its officials. But it took an undesirable alien with cash and lawyers to bring the badness of the deportation system now employed into the light. How many nameless victims of the system, not able to hire airplanes, lawyers and bondsmen, have been rushed out of the country it would be interesting to know.”121Saturday Night was more caustic. In an editorial in its 24 June number headed “heraus mit verigin!” it upbraided Immigration Department officials: “The deportation officials of the so-called Immigration Department are somewhat in the position of the intoxicated gentleman who was three times thrown out of the dance hall. They have now been several times thrown out of the courts in which – much against their will, for they are not fond of courts – they have had to take Mr. Peter Verigin in their efforts to get him back to his native Russia; and it must surely be beginning to dawn upon them that the courts do not like their method of procedure.”122 This was not the sort of press and exposure that the Department of Immigration relished, as Immigration Commissioner Joliffe pointed out in a letter to C.E.S. Smith castigating the Winnipeg Board of Inquiry for its

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tactical error in not allowing an adjournment. Joliffe noted with asperity that “it was unfortunate that an opportunity was afforded to throw the [sic] most of the responsibility for the decision on departmental action, thus resulting in a great deal of adverse publicity in the Press.”123 Moreover, the date when Verigin’s domicile would be established was close and the dispiriting news arrived that the Soviet ambassador in London had advised the British Foreign Office on 13 June that Veregin was issued a passport in 1927 on the understanding that he was being banished from the USSR forever and that the previous extension of the passport to 30 September 1933 was no longer valid.124 It was now clear that there was no chance of persuading the Soviet authorities to take Verigin back.125 Immigration decided to desist from formal deportation, instead cherishing the hope that their bête noire would follow through with plans to leave Canada for a third country and so do their work for them. On 4 August, Deputy Minister of Immigration William Egan wrote to Sir James MacBrien, the commissioner of the RCMP, advising him that if Verigin chose to leave, he would forfeit his status and be prevented from re-entry on the ground of his criminal record.126 Egan requested that in the meantime the force keep an eye on the Doukhobor leader and advise the department if he left Canada so that Immigration officers at all border points could be alerted. As usual the Mounties were more than happy to oblige.127 The department’s wish was not to be granted. Although Verigin attempted in the summer of 1934 to secure a passport or letter of commendation from External Affairs to allow him to travel outside Canada and return, the application was rejected.128 Later that same year, the Immigration bureaucracy, at the suggestion of the RCMP commissioner, was persuaded that in order for Verigin to find a new home for the Doukhobors and facilitate their exodus, which was especially desirable in the case of the Sons of Freedom, they might have to permit him to travel abroad and return, but Verigin did not follow through after further requests in 1935 and 1937.129 Even though Verigin was convicted of three further offences – an assault in Castlegar, B.C., late in 1933;130 a further assault in Winnipeg later that year;131 and vagrancy and being drunk and disorderly in Castlegar in June 1937132 – the department did not institute steps to deport him, the view being that, since he was now domiciled in Canada, there was little chance of success. By 1937, Peter Verigin II’s days were numbered, his health in serious decline. He died of cancer of the liver and stomach on 11 February 1939, a tragic figure.133 Although he had successfully eluded deportation, his

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authority had been seriously eroded by the late 1930s.134 The Independents rejected his leadership and the Sons of Freedom withdrew further into asceticism. A disputed succession following Chistiakov’s death further alienated the Orthodox and Freedomite factions. John Verigin, Peter Petrovich’s grandson, held the ambiguous position of interim leader (or regent) of the Community in the absence of the former leader’s son, Peter “Iastrobov” Verigin III, the new leader, in the USSR.135 The grandson, lacking the traditional power of the leader’s position, suffered rejection by the Sons, who looked elsewhere for their leader and squabbled as to his identity.136 The latter saw themselves as the only group willing to champion traditional Doukhobor values in the face of actual or imagined persecution by the Canadian state and the external community. Both the Freedomite adults formerly incarcerated on Piers Island and in time their children who had been committed for resocialization became even more convinced of the need to resist Mammon, forcibly if necessary.137 The bells were to ring with greater intensity through the next thirty years! explanations Apart from being a “ripping yarn,” what broader legal and political significance do the abortive attempts to deport Peter Verigin II have? More particularly, what do the experience of the Doukhobors as a minority, assertive religious group and the strong, negative reaction to them by both governments and the Anglo-Canadian majority have to say about the state of civil liberties and freedom of religion in Canada in the inter-war period? As Barbara Roberts has noted, from 1906 the deportation law reflected “the increasingly arbitrary practices of the Department [of Immigration].”138 “Fundamentals of British justice, such as the right to trial by jury, had,” she asserts, “no legal place in the deportation process.”139 “The courts were specifically prohibited, by the broad privative section in the Immigration Act, from interfering as long as no illegalities were discernible.”140 Because the process was administrative, it was largely free from public scrutiny, and also from parliamentary monitoring (even had MPs been interested, which most were not). Roberts concludes: “There were few effective checks on the Department.”141 With this system in place, the department was able and willing to add to the classes of persons who were subject to deportation, targeting those guilty of conventional criminal conduct and immorality as well as those deemed to be undesirable immigrants, whether because of race and ethnicity (Chinese, Japanese, East

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Indians, and suspected enemy sympathizers such as Ukrainians) or dangerous political beliefs and affiliation, including anarchists and Communists and “fellow travellers” (however pejoratively defined).142 The reach and inscrutability of the system of deportation were most marked during the early 1930s, when Canadian governments and their electorates were wracked by fears about leftist subversive elements in Canadian society, the challenge to Canadian values and to the capitalist state that they ostensibly posed, and the broader and alarming implications of the possible victory of those sinister forces internationally for the future of empire.143 Complementing and supporting without question the arbitrary administrative system was an expansive structure of “political policing” centred on the reformed and powerful Royal Canadian Mounted Police and its operatives, from 1919 the eyes, ears, and masters of the internal security system of the country.144 In many ways, the attempts by the Department of Immigration to deport Peter Petrovich Verigin in 1933 fit well into this pattern of virtually unquestioned arbitrary state regulation and executive control. The paranoid mentality towards subversion and the wild speculation to which it gave rise led easily to an association of the Doukhobor form of religious and cultural communalism with Bolshevism by officials and security police alike. The combination of aggressive anti-statism on the part of most Doukhobors, their extreme religious iconoclasm, their apparent blind faith in their leader, and their attributed association with Bolshevism, as Russian-speaking émigrés, made them seem a particularly subversive presence within Canada. This was especially so when some engaged in public nudity as a form of mass protest or, worse still, in destructive activity in the form of torching CCUB and public facilities. This connection was confirmed in the political and bureaucratic mind when, from time to time, Doukhobor leaders expressed empathy with Bolshevik experiments with communalism, publicized their interest in a possible return of the Community to its homeland, announced plans to bring further groups of the faithful to Canada, or merely engaged in what seemed like radical working-class discourse in their external communications.145 In that sense the Canadian government’s treatment of Verigin the Younger has clear similarities to that accorded to members of ethnic populations, such as Finns, Jews, and other Slavic communities, which were considered breeding grounds for communism, and to union leaders, whether avowed Communists or those suspected of being so.146 The fact that it was the leader rather than a broader segment of the Doukhobor community that faced the ultimate penalty of deportation is probably explained by the length of

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the residence of most Doukhobors in Canada, and the adverse publicity and distinctive elements of communal outrage that would no doubt have attended attempts at a forced repatriation of this population or a defined segment of it to their country of origin. At that time, even deportation had pragmatic limitations.147 The Verigin case also demonstrates that Canadian laws, although expressly or implicitly excluded from application to deportation proceedings, still could provide some protection to those targeted for removal from Canada, especially when skilled legal counsel could be retained. The state of Canadian law during the early 1930s was admittedly a weak and unreliable crutch for a potential deportee. The Canadian constitution, as interpreted by the Judicial Committee of the Privy Council and the Supreme Court of Canada, provided no explicit rights to individuals, apart from limited explicit and narrowly defined concessions to the educational rights of Roman Catholics or Protestants and the linguistic rights of francophones.148 Accepted constitutional interpretation, with its obsession with the division of powers as the formal benchmark of legislative legitimacy under the British North America Act, left little or no room for the recognition of civil liberties in any broad sense, including freedom of religion. Official rhetoric and the occasional judicial pronouncement, often in dissent, had it that protection was afforded by the customs and traditions of English law and British justice.149 To the extent that these latter claims had any purchase in reality, it was the existence of the prerogative writ of habeas corpus that provided a slender reed of hope to deportees, and the skill of counsel in exposing an arbitrary element and a resulting defect in the basis of detention for purpose of deportation that provided the court with a justification to order the person released from custody.150 None of these formal protections guaranteed freedom from further attempts to deport that individual, as Verigin Junior discovered. Moreover, the literature on political deportations during that era shows that Immigration Department officials could be astute in accelerating hearings and moving deportees to insulate the government from habeas corpus challenges by lawyers.151 In terms of the failure of the two attempts by the Immigration Department to deport Peter Petrovich, he was assisted by the alertness, skill, and resources of his counsel, Peter Makaroff. As Ross Lambertson has demonstrated, in the inter-war period in Canada, the advocacy of civil liberties and equality rights was more the work of individuals (at a political and academic level, individuals such as Frank Scott of McGill, and at a representational level, counsel such as Montreal’s R.L. Calder) than of

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organizations.152 There were exceptions, not least the Canadian Labour Defence League, although it relied for its legal work less on specialists than on sympathetic barristers ready to take on cases on behalf of unpopular causes.153 Makaroff (as well as Dubienski) were in this category and in this case their client’s ability to pay was not an issue, unlike most people subject to deportation orders. Their challenge was in dealing with his mercurial character and violent temper, as well as his resistance to paying for legal representation, which he felt was less than satisfactory, when presented with their accounts. Makaroff is particularly interesting because he straddled the divide between the worlds of the law and a cultural minority.154 From a community that had deep suspicion of lawyers as agents of Mammon, but from a family that valued education and room for individual development, he reserved some of his professional skill and energies for explaining the mysteries of Canadian law to his community and using it, where possible, to protect members from the law’s more oppressive features. His beliefs and instincts as a Doukhobor were reflected both in his adherence to the community’s values where he felt them beneficial to society at large – for instance, in his life-long espousal of pacifism – and in his attraction to left-wing politics as an instrument for improving the lot of the marginalized in Canada in general. As his disenchantment with Verigin’s antics and his withdrawal from serving him during the deportation challenges demonstrates, his commitment to serving the needs of his ethnic community was balanced by a strong, ethical sense of the limits of client and lawyer identification. As one faithful to the core, as he saw it, of his ethnic heritage, Makaroff provides an interesting early example of a particular type of Canadian civil-libertarian advocacy that has its roots in the challenges to ethnic minorities posed by arbitrary state action. Consciously or unconsciously, many others have followed in his footsteps in the decades since. In the final analysis, while Peter Petrovich Verigin was spared deportation to the Soviet Union, the machinations of the Canadian state to rid the country of him contributed to the crumbling of his leadership. However, far from that situation resolving tensions between the Doukhobors and Canadian governments and their electorates, it exacerbated them for fifty or more years. This examination of the case of Verigin the Younger contributes to an understanding of the extent and diversity of the largely unimpeded reach and sting of Ottawa’s power to remove undesirables from the country in the cause of “responsible” nation building, and the extent to which the weak prescriptions of the law against abuses of power and process in the deportation system could be turned to protective effect

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by lawyers who embodied strong civil-libertarian impulses, decisiveness, and shrewd advocacy skills. Notes   1 Koozma Tarasoff, Plakun Trava: The Doukhobors (Grand Forks, B.C.: Mir Publication Society 1982), 150–1; George Woodcock and Ivan Avakumovic, The Doukhobors (London: Faber and Faber 1968), 299–300.   2 Tarasoff and Woodcock and Avakumovic do not discuss the later deportation attempt or its legal rationale.   3 See, e.g., R. Craig Brown ed., Minorities, Schools and Politics (Toronto: University of Toronto Press 1969); Paul Crunican, Priests and Politicians: Manitoba Schools and the Election of 1896 (Toronto: University of Toronto Press 1974); Douglas Schmeiser, Civil Liberties in Canada (Oxford: Oxford University Press 1964), 125–95; G. Bale, “Law, Politics and the Manitoba School Question: Supreme Court and Privy Council,” Canadian Bar Review, 63 (1985): 461; J. Watt, “Anti-Catholic Nativism in Canada: The Protestant Protective Association,” Canadian Historical Review, 67 (1967): 45.   4 J.R. Miller, Shingwauk’s Vision: A History of Native Residential Schools (Toronto: University of Toronto Press 1996); John S. Milloy, A National Crime: The Canadian Government and the Residential School System 1879–1986 (Winnipeg: University of Manitoba Press 1999); E. Brian Titley, A Narrow Vision: Duncan Campbell Scott and the Administration of Indian Affairs in Canada (Vancouver: UBC Press 1986), 75–93; Mark Abley, Conversations with a Dead Man: The Legacy of Duncan Campbell Scott (Vancouver: Douglas and McIntyre 2013).   5 William Janzen, Limits on Liberty: The Experience of Mennonite, Hutterite and Doukhobor Communities in Canada (Toronto: University of Toronto Press 1990), 88–115, 142–61.   6 William Kaplan, The Jehovah’s Witnesses and Their Fight for Civil Rights (Toronto: University of Toronto Press 1989).   7 LAC, RG76, Department of Immigration, vol. 739, 527744, pt. 1, Cazakoff to Walker, 12 Jan. 1925.   8 LAC, RG76, 527744, pt. 1, W. Egan, deputy minister of immigration, to W.R. Little, director of European immigration, Canadian High Commission, London, and to A.O. Petersen, immigration officer in Riga, Latvia, 17 Feb. 1925.   9 Ibid., Egan to Verigin, 17 Feb. 1925. 10 For the early history of the sect, see, Tarasoff, Plakun Trava, 1–3; Woodcock and Avakamovic, The Doukhobors, 17–34; and A. Palmieri, “The Russian

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11 12 13 14

15 16

17 18

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21 22 23 24 25

Doukhobors and Their Religious Teachings,” Harvard Theological Review, 8 (1915): 62. Tarasoff, Plakun Trava, 36–7; Woodcock and Avakumovic, The Doukhobors, 133–7. Woodcock and Avakumovic, The Doukhobors, 164–5. On the emergence of the Independents, see Tarasoff, Plakun Trava, 76–7; Woodcock and Avakumovic, The Doukhobors, 156–60. For explanations of these radical impulses, see Tarasoff, Plakun Trava, 67–76; Woodcock and Avakumovic, The Doukhobors, 166–81; and Andrew Donkov, ed., Leo Tolstoy–Peter Verigin Correspondence (Ottawa: Legas 1995), 46–51. Woodcock and Avakumovic, The Doukhobors, 193–8. In 1902 the minister of the interior, Clifford Sifton, recognized the right of the Doukhobors to cultivate communally, although they would be required to make individual entries for land. See Janzen, Limits on Liberty, 36–50. Ibid., 50–7. Woodcock and Avakumovic, The Doukhobors, 221–2. In subsequent recitations of grievances by various Doukhobor groups, this was typically cited as the first breach of faith by Canadian authorities. See, e.g., letter from Christian Community of Universal Brotherhood (CCUB) to J.D. MacLean, minister of finance of British Columbia, 10 March 1925, British Columbia Record and Archives Service (BCARS), GR 441, Premier John Oliver papers, vol. 246, file 13. Tarasoff, Plakun Trava, 99–116; Woodcock and Avakumovic, The Doukhobors, 225–45. On the vital-statistics and school-attendance issues in British Columbia, see Janzen, Limits on Liberty, 123–32; M. Ashworth, The Forces Which Shaped Them (Vancouver: New Star Books 1979), 135–49; Tarasoff, Plakun Trava, 117–30; John McLaren, “Creating ‘Slaves of Satan’ or ‘New Canadians’?: The Law, Education and the Socialization of Doukhobor Children,” in Hamar Foster and John McLaren, eds., Essays in the History of Canadian Law, Volume VI, British Columbia and the Yukon (Vancouver: UBC Press/Osgoode Society for Canadian Legal History 1995), 352–85. Woodcock and Avakumovic, The Doukhobors, 253; Tarasoff, Plakun Trava, 128. Janzen, Limits on Liberty, 130–2; Tarasoff, Plakun Trava, 128–9. Woodcock and Avakumovic, The Doukhobors, 242; Janzen, Limits on Liberty, 172, 174–5, 180. Tarasoff, Plakun Trava, 128. In the case of the Doukhobors, this order was not repealed until 1926. See, e.g., a letter to W.W. Cory, deputy minister of the interior, from Premier Oliver, 8 Aug. 1919, requesting the deportation of the Doukhobors from Can-

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26

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ada as “undesirable citizens” following a report of destruction of property by one Doukhobor in the Kootenays. Cory responded that the effective cutting off of relations with Russia barred the return of individuals to that country, and expressed doubts about the legality of such a step. LAC, Immigration, RG76, vol. 185, file 65101–10. See Woodcock and Avakumovic, The Doukhobors, 253–4, and Tarasoff, Plakun Trava, 127–8, on attempts in Grand Forks to force Doukhobors to forfeit land for soldier resettlement. See Woodcock and Avakamovic, The Doukhobors, 255–6. The investigation of this tragic event was botched by the British Columbia Provincial Police. Most commentators viewed the explosion as deliberate although the coroner’s jury could not make up its mind. On the various theories, see Woodcock and Avakumovic, The Doukhobors, 257–8. LAC, MG26, Mackenzie King papers, J1, vol. 108 (reel C2263), 83456 (telegram from Prime Minister King to M. Cazakoff expressing his sympathy with the Doukhobor community, 1 Nov. 1924). A wire that same day to King from Cazakoff reveals that the prime minister had already expressed his sympathy to Larion Verigin, a nephew of the slain leader, on 30 October (83455). Ibid., 83457. Ibid. LAC, MG26, J1, King papers, vol. 123 (reel C2272), 93241, Starnes to F.A. MacGregor, private secretary to Prime Minister King, 15 Nov. 1924, acknowledging receipt of copy of the Cazakoff/L. Verigin letter. Starnes suggested that sinister forces were at work seeking to lure Doukhobors back to Russia. King reported by letter to Cazakoff on 6 Dec. 1924 that he had instructed the “Dominion Secret Service” to make “careful and discreet inquiries” into the problem raised in the Cazakoff/L. Verigin letter. LAC MG26, J1, King papers (reel C2274), 106878, F.A. MacGregor to Starnes, report on an interview with Cazakoff the previous day, 17 Feb. 1925. See LAC, RG18, vol. 3313, 1925 HQ-1131-E-1, reports re: Conditions in Doukhobor Communities in British Columbia, from R.S. Knight, assistant commissioner, commanding the B.C. District, 17 March and 11 April 1925. Peter Petrovich’s father married Evodokia Kotelnikova in 1879 just before he was taken into the household of Lukeria Kalmykova, the leader of the Doukhobors, to be groomed for the succession. Lukeria ordered Peter Vasilevich to divorce Evodokia although she was pregnant with young Peter. When the father travelled to Canada in 1902, his former wife and her family were left behind (Tarasoff, Plakun Trava, 14–16, 140). See also E. Dunn, “Canadian and Soviet Doukhobors: An Examination of the Mechanisms of Cultural Change,” Canadian Slavic Studies, 4 (1970): 300.

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390  j o h n m c laren 36 Tarasoff, Plakun Trava, 141; Woodcock and Avakumovic, The Doukhobors, 281–2. 37 See LAC, RG76, Verigin Immigration File, vol. 739, 527744, pt. 1, petition from representatives of the Doukhobor Brotherhood in Canada to the Central Executive Committee, Union of Socialist Soviet Republics, 31 May 1927, for the release of Verigin from jail. On the role of Tregubov, see Tarasoff, Plakun Trava, 142; Woodcock and Avakumovic, The Doukhobors, 282–3. 38 He was accompanied by Pavel Biryukov, Tolstoy’s biographer. His mother, Evodokia, had already migrated late in 1925. Other members of his family, including his wife and grandson, John, came out in 1928, but not his son, Peter, who remained in the Soviet Union. 39 On the mercurial character of Verigin II, see Tarasoff, Plakun Trava, 142–4; Woodcock and Avakumovic, The Doukhobors, 286–8. 40 Tarasoff, Plakun Trava, 144; Woodcock and Avakumovic, The Doukhobors, 288. 41 Tarasoff, Plakun Trava, 144–7; Woodcock and Avakumovic, The Doukhobors, 289–92. 42 Tarasoff, Plakun Trava, 144; Woodcock and Avakumovic, The Doukhobors, 291. 43 Woodcock and Avakumovic, The Doukhobors. On Verigin’s conciliatory comment on education upon arrival, see Tarasoff, Plakun Trava, 142. As much later evidence suggests, Verigin’s attempts at accommodation of the Sons of Freedom were at the centre of ongoing strained relations between the radicals and orthodox. See Gregory C. Cran, Negotiating Buck Naked: Doukhobors, Public Policy and Conflict Resolution (Vancouver: UBC Press 2006). 44 Janzen, Limits on Liberty, 121–2, 133. 45 See, e.g., LAC, RG76, Verigin Immigration File, vol. 739, 527744, pt. 1, Mayor Jackett of Yorkton to Minister of Immigration Robert Forke, 23 July 1929; and letter of 30 July from the mayor and local businessmen. 46 Ibid., memorandum from F.C. Blair, assistant deputy minister of immigration, to W.G. Egan, deputy minister, 29 July 1929. 47 See n.32. There is in fact evidence that surveillance was taking place much earlier. Correspondence exists from 1919 indicating that Verigin the Lordly was being watched by the RNWMP. For this material, see Canadian Security Intelligence Service (CSIS), uncatalogued RCMP file on Peter Verigin II – Correspondence, 13 April–8 Aug. 1919. 48 LAC, RG76, Verigin File, pt. 1., report from Lindsay to Col. Cortland Starnes, RCMP commissioner, 27 July 1929. 49 Ibid., Starnes to W.G. Egan, deputy minister of immigration, 8 Aug. 1929. Starnes noted that Lindsay’s views were confirmed by a report from Superintendent A.B. Allard of Winnipeg who had reported on a meeting of Communists in that city at which Doukhobors were present and encouraged by their

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hosts to join the movement, and one from Corporal Ward of the Kamsack detachment suggesting that Verigin was encouraging unrest among the Sons of Freedom. See ibid., report from Allard, 2 Aug. 1929, and report from Ward, 30 July 1929. See Barbara Roberts, Whence They Came: Deportation from Canada 1900–1935 (Ottawa: University of Ottawa Press 1988), 125–94; Reg Whitaker, Gregory S. Kealey, and Andrew Parnaby, Secret Service: Political Policing in Canada from the Fenians to Fortress America (Toronto: University of Toronto Press 2012), 93–131; and J. Petryshyn, “Class Conflict and Civil Liberties: The Origins and Activities of the Canadian Labour Defence League, Labour, 10 (1982): 39. LAC, RG76, Verigin File, pt. 1, Egan to Starnes, 15 Aug. 1929. The Mackenzie King government had not been immune from suggestions from the government of British Columbia in particular that a wholesale deportation of Doukhobors should be instituted. See LAC, MG26, J1, King papers, vol. 211, reel C2318, 155983–6, telegram from B.C. Premier Simon Fraser Tolmie, 8 May 1930, and letter in response from King, 13 May 1930. In the latter the prime minister points out that almost all Doukhobors have acquired domicile in Canada and are therefore not deportable. LAC, MG26, R.B. Bennett papers, box 367, file 1-206, reel M1072, 242660-71, contains the minutes of a meeting, on 25 Sept. 1931, at which representations were made to Premier Tolmie, his cabinet, and Senator Robertson, federal minister of labour, by residents of Grand Forks concerning the “Doukhobor problem.” Tarasoff, Plakun Trava, 132 See LAC, MG26, Bennett papers, box 367, vol. II, file 1-206, reel M 1072, 242687, Nelson Board of Trade to R.B. Bennett, 8 Aug. 1931; 242689, West Kootenay Central Farmers Institute to prime minister, 18 Aug. 1931; 242691, Loyal Orange Association of Vancouver to R.B. Bennett, 18 Aug. 1931; and Woodcock and Avakumovic, The Doukhobors, 295–7. Criminal Code Amendment Act, S.C. 1931, c.28, s.2 (adding s.205A to Code). See John McLaren, “The Despicable Crime of Nudity: Law, the State, and Civil Protest among the Sons of Freedom Sect of Doukhobors, 1899–1935,” Journal of the West, 38 (1999): 27–33. With the notable exception of the intervention of J.S. Woodsworth, who protested the tendency to lump all Doukhobors together as mindless zealots, the debates were notable for their histrionics on the government side (especially from W.W. Esling) and levity elsewhere in the House. A Mr. Pouliot remarked: “The Ku Klux Klan should lend their nightshirts to the Doukhobors.” For the debates, see H.C. Debates, 10 July 1931, 3619; 23 July 1931, 4131–6; 24 July 4143–8; Senate Debates, 29 July 1931, 494–6.

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392  j o h n m c laren 58 The Immigration Act, R.S.C. 1927, c.93, as amended 1928 S.C., c.29, c.1. 59 Section 41 included in the classes of “prohibited or undesirable immigrants”: members or affiliates of organizations “entertaining or teaching disbelief in or opposition to organized government.” While a case might have been made out against Verigin under that category, on the basis of the belief that he was the leader of the Sons of Freedom, a criminal conviction must have seemed a much firmer basis on which to proceed. 60 Yorkton Enterprise, 20 Nov. 1931, 1. 61 Ibid., 2 Feb. 1932, 1, for an account of Verigin’s arraignment for tampering with witnesses, and 19 February for an account of his preliminary hearing. The Enterprise reported on 15 March 1932 that Verigin had been charged with perjury (also making reference to concern in the Doukhobor community that the federal government would feel moved to deport him). On 1 April the paper reported that after a preliminary hearing he had been sent up for trial at the assizes on this new count. 62 Verigin had testified that for all that time he had been out of Saskatchewan, in British Columbia, and that therefore it was impossible for Chutsoff to have paid him in person. His doctor gave evidence that he had treated him in Yorkton, and two Doukhobors that he had been present at a wedding in Verigin, Saskatchewan, during this period. See Yorkton Enterprise, 5 May 1932, 1, 3, 6. 63 On the sentence, see Yorkton Enterprise, 10 May 1932, 1, 7, and Report of Trial Judge to the Saskatchewan Court of Appeal, 26 May 1932, together with trial transcript, 142–6, Saskatchewan Court of Appeal Registry, Regina, file 56 GA. For the appeal, see LAC, RG76, Verigin File, pt. l, report from provost staff, Regina Station RCMP, 20 June 1932, referring to judgment of Court of Appeal (Chief Justice Haultain and Justices Martin and McKenzie), dated 6 June. 64 See Saskatchewan Archives Board, Minutes of Meeting between Members of the Saskatchewan Government and Representatives of Named Doukobors headed by Mr. J.G. Bondoreff, Parliament Buildings, Regina, 23 March 1932, 3–5. 65 LAC, RG76, Verigin File, pt. 1, Form I.&C. 210, under s.42 of the act. Interestingly, an order had been issued on 2 June but was withdrawn in light of the results of the appeal by Verigin of his conviction and the concern of the Immigration Department to see that the process was court-proof; see ibid., Commissioner of Immigration Joliffe, Ottawa, to Division Commissioner C.E.S. Smith, Winnipeg, 25 July 1932. 66 See W.H. McConnell, “Peter G. Makaroff, Q.C.: Canada’s First Doukhobor Lawyer,” Saskatchewan History, 44 (1992): 85. Makaroff came from a family that settled in the Blaine Lake area of Saskatchewan. He graduated in law at the University of Saskatchewan in 1918, gravitated increasingly into labour politics around 1933, and, as noted in Bill Waiser’s chapter in this volume,

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67 68 69

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became the leading defence counsel for the On-to Ottawa trekkers prosecuted in Regina. LAC, RG76, Verigin File, pt. l, Record of Hearing before Board of Inquiry, Provincial Jail, Prince Albert, Saskatchewan, 23 Aug. 1932. Ibid., Notice of Appeal, Form C, I.&C. 94, 23 Aug. 1932, followed by letter from Makaroff to Wesley Gordon, minister of immigration, 25 August. Ibid., Anton Papoff, Yorkton, Saskatchewan, to W. Gordon, 3 Sept. 1932; telegram from Society of Named Doukhobors, Blaine Lake, Saskatchewan, to Gordon, 10 September; letter from Mrs A. Morozoff, Doukhobor Women, Yorkton, Saskatchewan, to Gordon, 7 September. See also LAC, MG26, Bennett papers, box 367, file C-200-V, reel M1073, 259067, Dr Walter T. Murray, president of the University of Saskatchewan, arguing against deportation. Tarasoff, Plakun Trava, 132; Woodcock and Avakumovic, The Doukhobors, 316– 19. As Tarasoff notes, all the adults arrested in the Kootenays were sentenced to maximum three-year terms. By contrast, in eastern Saskatchewan, only twelve men received penitentiary terms, while most protesters drew much shorter sentences or discharges. See Saskatchewan Archives Board (SAB), RG769, Police Magistrates’ Files, 1922–1968, Return of Magistrate Alexander MacDonald, Yorkton, 1931–1932 (1.77.6); and John McLaren, “The Law and Public Nudity: Prairie and West Coast Reactions to the Sons of Freedom, 1929–32,” in Louis A. Knafla and John Swainger, eds., Law and Societies in the Canadian Prairie West, 1670–1940 (Vancouver: UBC Press 2005), 309–22. Janzen, Limits on Liberty, 133–5. In a telegram from R.H. Pooley, the attorney general of British Columbia, to Prime Minister R.B. Bennett, 3 July 1931, the former announced the intention of the provincial government to take children of renegade Doukhobor parents and place them in schools on the coast: LAC, MG26, Bennett papers, box 367, vol. II, file 1-206, reel M1072, 242676. On the issue of the custody of the children, see R. Hooper, “Custodial Care of Doukhobor Children in British Columbia 1929–1933” (MA thesis, Social Work, UBC 1947). LAC, RG76, Verigin File, vol. 739, 527744, pt. l, telegram from R.H. Pooley to Hugh Guthrie, minister of justice, 29 Sept. 1932, and letter in response from W. Gordon, acting minister of immigration, 6 Oct. 1932. Pooley was clearly worried how deportation might play among the Doukhobors in the Kootenays. Gordon’s letter associates Verigin with the Sons and asserts that there will be no improvement in the “Doukhobor troubles” while Peter the Younger is at the helm. Ibid. The telegram from Pooley voiced this concern. See also W. Gordon to F.C. Wilson, agent of attorney general of Saskatchewan, 14 Nov. 1932, dismissing the suggested danger of execution as a ploy to avoid deportation and

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indicating that, if Verigin behaved himself, he was in little danger of incurring the death penalty in the Soviet Union. The Naturalization Act, RSC 1927, c.138. Delay might be related to a decision of the court unfavourable to the department, or merely lack of expedition in the hearing of the application. LAC, RG76, Verigin File, pt. I, letter from assistant deputy minister of immigration to director of emigration, Canadian High Commission, London, 21 Oct. 1932; telegram from the Department of Immigration, Ottawa, to the High Commission, London, 23 Nov. 1932. At this point there seems to have been little or no consideration given to the fact that the Soviets might not have wanted Verigin back. On 12 September, in reporting on the Board of Inquiry in August to the commissioner of immigration in Ottawa, C.E.S. Smith, the division commissioner of immigration in Winnipeg, noted that Makaroff as counsel for Verigin had claimed that his client’s Soviet passport did not give him the right to return. Ibid., telegram from the High Commission, London, to Department of Immigration, Ottawa, 3 Dec. 1932. Ibid., decision of minister of immigration and colonization, 6 Dec. 1932. The latter merely rehearsed the events from Verigin’s admission to the deportation order, and dismissed the appeal. It was not for want of trying that Makaroff and Verigin had been endeavouring to get an answer out of Gordon: ibid., P. Verigin to minister of immigration, 8 Oct. 1932, indicating that his representatives, with Peter Makaroff, will be in Ottawa to explain his position on 15 October; telegram from Makaroff to Gordon, 27 Oct. 1932, requesting decision on the appeal (with letter mailed same day); petition from Peter Verigin to R.B. Bennett, 27 Oct. 1932, seeking a delay in his deportation. Ibid., Gordon to Makaroff, 13 Dec. 1932. This communication acknowledges for the first time receiving the lawyer’s letter and Verigin’s petition of late October. Gordon indicates that after due deliberation there is no reason to interfere with the deportation process. He goes on to say that “it is proposed to proceed with deportation to Russia as soon as he is available for the purpose.” Gordon was prepared to allow Verigin’s wife to accompany him. Ibid., MacBrien to Egan, 15 Dec. 1932, with accompanying report from Wood. Roberts, Whence They Came, 53–123; Whitaker, Kealey, and Parnaby, Secret Service, 38–89. See chapters by Bohdan Kordan and Dennis Molinaro in this volume. Roberts, Whence They Came, 125–58; Whittaker, Kealey, and Parnaby, Secret Service, 93–138. See also Lita-Rose Bechterman, The Little Band: The Clashes between the Communists and the Canadian Establishment 1928–1932 (Ottawa: De-

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neau 1982); S. Imai, “Deportation in the Depression,” Queen’s Law Journal, 7 (1981): 66. Petryshyn, “Class Conflict and Civil Liberties.” See the case of Tomo Cacic, a Communist activist of Croatian heritage, convicted of and imprisoned for being a member of a proscribed organization under section 98 of the then Criminal Code and of seditious conspiracy, who was deported from Halifax to Yugoslavia. He was only spared a potentially perilous fate in that country by labour activists in Britain who were able to acquire for him a Soviet passport, and his own ingenuity in jumping train in Belgium and travelling to Moscow: Dennis C. Molinaro, “‘A Species of Treason?’ Deportation and Nation Building in the Case of Tomo Cacic, 1931–1934,” Canadian Historical Review, 91 (2010): 61–85, at 79–82. See also Molinaro’s chapter in this volume. LAC, RG76, Verigin File, vol. 1, assistant commissioner of immigration to Grant, 23 Jan. 1933. Ibid., telegram from C.E.S. Smith, division commissioner, Winnipeg, 23 Jan. 1933. Ibid., warrant of the deputy minister of immigration and colonization to division commissioner, Winnipeg, under the Immigration Act, section 43, directing him to take custody of Peter Verigin after his release from the Saskatchewan Provincial Jail, 24 Jan. 1933. Ibid., Commissioner of Immigration Joliffe to M.P. Gallagher, chief of Remissions Branch, Department of Justice, 13 Dec. 1932. Ibid., G. Emond, under-secretary of state, to commissioner of immigration, 30 Jan. 1933. See LAC, RG76, Verigin File, pt. l, Makaroff to W. Gordon, 21 Nov. 1932, requesting Verigin’s passport and other documents, and indicating that the leader, if deported, would prefer to go to Mexico; SAB, A28, Peter Makaroff papers, I-4, Doukhobors 1927–1969 (2), Makaroff to Isaac Mason, an English Quaker of his acquaintance, in which the lawyer points to the resolve of Ottawa to send Verigin back to the USSR but suggests that it might be possible to steer him to Mexico. When Makaroff learned of the government’s ploy, he wired Commissioner of Immigration Joliffe indicating that passports of Argentina and Costa Rica had almost been procured and that Peter Verigin had been planning a voluntary departure. Ibid., 31 Jan. 1933. Tarasoff, Plakun Trava, 150–1; Woodcock and Avakumovic, The Doukhobors, 299. Makaroff, on hearing of the “springing” of Verigin, had immediately wired the prime minister about the predicted adverse reaction among the Doukhobors, and asking that he be allowed to see Verigin in Winnipeg in order to allow him to tie up his affairs: LAC, MG26, Bennett papers, box 367,

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396  j o h n m c laren reel M1073, 259077, telegram Makaroff to Bennett, 31 Jan. 1933. This request was denied by telegram from Bennett, dated the same day.   91 Having been rebuffed by Bennett, Makaroff headed for Winnipeg by train where he met up with Semeon Reibin. They then flew to Boston. Joe Shukin of the Orthodox Community was also heading east by air from British Columbia to Boston.   92 LAC, MG26, Bennett papers, box 367, reel M1073, 259080–8.   93 Ibid., telegrams Bennett to Shukin, 3 Feb. 1933, 259086 and 259088. See also LAC, RG76, Verigin file, pt. l, letter from assistant commissioner of immigration to G.L. Mott, acting immigration inspector-in-charge, Halifax, advising that Makaroff, Shukin, and Reibin are flying from Winnipeg to Halifax and requesting him to make arrangements for them to meet Verigin to conduct any necessary business prior to the latter’s departure.   94 On Verigin’s grudging part in these strategies, see SAB, John Bondareff papers, S­A292, I48, Makaroff to John Bondareff, 26 Feb. 1934.   95 See also Philip Girard, “The Supreme Court of Nova Scotia: Confederation to the Twenty-first Century,” in Philip Girard, Jim Phillips, and Barry Cahill, eds., The Supreme Court of Nova Scotia, 1754–2004: From Imperial Bastion to Provincial Oracle (Toronto: University of Toronto Press/Osgoode Society for Canadian Legal History 2004), 140–203, at 164–6; and R. Blake Brown, “Mellish, Humphrey Pickard Wolfgang,” Dictionary of Canadian Biography, 16, http:// www.biographi.ca/en/bio/mellish_humphrey_pickard_wolfgang_16E .html.   96 See the Halifax Mail obituary, 19 June 1937. See also Public Archives of Nova Scotia (PANS), MG100, vol. 188, no. 24.   97 The decision is reported as Re Verigin (1933), 59 Canadian Criminal Cases 315 (NSSC).   98 Ibid., 319.   99 The grouchy attitude of Canadian judges, like their English counterparts, towards the administrative state is addressed in R.C.B. Risk, A History of Canadian Legal Thought: Collected Essays, ed., G. Blaine Baker and Jim Phillips (Toronto: University of Toronto Press/Osgoode Society for Canadian Legal History 2006), 346–8, 372–80. 100 The trio wrote to Commissioner of Immigration Joliffe to this effect on Chateau Laurier notepaper on 1 March 1933: LAC, RG76, Verigin file, pt. 2. 101 On the advice of Smith, who counselled the department to be ready with the power to grab Verigin if he left Nova Scotia, a Form E Order to leave Canada was made out on the authority of the governor general-in-council on 25 February: LAC, RG76, Verigin File, pt. 2, Smith to Joliffe. 102 See LAC, RG76, Verigin File, pt. 2. A letter from Charles Smith to Com-

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The Trials of Peter Petrovich Verigin  397 missioner Joliffe, 20 Feb. 1933, in the wake of the hearing before Mellish, had raised the very real possibility that the judge would decide against the government. In that event counsel warned against trying to rearrest in Nova Scotia since this would be treated as a contempt. In his opinion, an orderin-council should be passed ordering Verigin to leave Canada shortly on pain of arrest, but he also recommended taking the precaution of seeking a reference on the issue from the Supreme Court of Canada. The department acceded to both pieces of advice. 103 In the Matter of a Reference as to the Effect of the Exercise by His Excellency the Governor General of the Royal Prerogative of Mercy upon Deportation Proceedings [1933] S.C.R. 269. 104 For favourable press comment, see Montreal Gazette, 31 March 1933. 105 LAC, RG76, Verigin File, pt. 2, telegram from Inspector Grant to Deputy Commissioner of Immigration Munroe, 3 March 1933, reporting that Verigin left Halifax by train for Winnipeg. 106 The Department of Immigration had wired the High Commission in London on 15 March requesting that the Soviet embassy be sounded out about a further extension of the passport. Ottawa received a wire on 5 April from the High Commission that M. Maisky had been pleased to extend the passport of Verigin “for a further period of six months.” Ibid. 107 LAC, RG76, Verigin File, pt. 2, Edwards to Commissioner Joliffe, 7 April 1933, responding to latter’s letter of 4 April. Edwards recommended proceeding under the order-in-council of 25 February rather than de novo. He also advised that, if Verigin started habeas corpus proceedings, Justice should be immediately consulted so that counsel could be instructed. 108 Ibid., Assistant Commissioner of Immigration Munroe to Col. J. Spalding, deputy commissioner of RCMP, 29 April 1933. 109 Ibid., circular from C.E.S. Smith, division commissioner of immigration, Winnipeg, 1 May 1933. See also report in the Toronto Globe, 6 May 1933. 110 LAC, RG76, Verigin File, pt. 2, Jennings to W. Egan, deputy minister of immigration, 15 May, referring to a secret report of 5 May, presumably from a mole, and enclosing a further report from Sergeant Mortimer of “F” Division, Regina, 6 May; memorandum from assistant commissioner, RCMP, to Joliffe, relaying message from Jennings about further movements of Verigin, 2 June 1933. 111 Earlier Edwards had changed his mind on the procedure to be used in a second deportation attempt, on reflection favouring de novo proceedings, since this would obviate turning over Verigin’s passport to him: ibid., Edwards to Joliffe, 12 May 1933. Joliffe wrote to Edwards, 1 June 1988, acknowledging receipt of the memorandum from the Department of Justice which outlined

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398  j o h n m c laren the essential steps to be taken in proceeding with a court-proof deportation hearing. The memo had referred to the judgment of Chief Justice Duff and Justice Lamont in Samejima v. The King [1932] S.C.R. 640 setting out the essentials for the grant of an effective deportation order. He added that further proceedings would be executed by the RCMP under a ministerial order and the hearing officer would be invested with proper authority under the Immigration Act. The hearing would have available all the necessary material and documents necessary to prove conviction by and the sentence of the courts in Verigin’s case. 112 Ibid., letters dated 6 June 1933. Other factors no doubt played a part in the desire of the Department of Immigration to move speedily. For example, in a letter from Assistant Commissioner Jennings of the RCMP to Joliffe, 2 June, the former transmitted a report from the British Columbia Provincial Police that Verigin was claiming that his son was on the way from Russia. 113 Ibid. See also letter from Dann dated 9 June. 114 Both the Winnipeg Free Press and the Winnipeg Tribune reported on 10 June that Verigin had been ordered deported by the board of three chaired by C.E.S. Smith. 115 By this time there had been a falling out between Verigin and Peter Makaroff, the Doukhobor lawyer from Saskatoon. The former, in the middle of examinations for discovery in an action against the lawyer who defended him on the perjury charge in 1932, dropped the case, and accused Makaroff of having forced him into launching the action. Makaroff had immediately withdrawn his services. See SAB, A28, Makaroff papers, I-4, Doukhobors File 1927–1969 (2), Makaroff to S.F. Reiben, 20 May 1933. 116 LAC, RG76, Verigin File, pt. 2, Smith to Joliffe, 10 June 1933. 117 See Dale Brawn, The Court of Queen’s Bench of Manitoba, 1870–1950: A Biographical History (Toronto: University of Toronto Press/Osgoode Society for Canadian Legal History 2006), 232–46. Robson served on the Court of King’s Bench, 1910–12, and the Court of Appeal, 1930–44, and had demonstrated sympathy for civil-liberties arguments, both on and off the bench. 118 The decision is reported as In Re Verigin [1933] 2 W.W.R. 409 (Man.K.B.). The hearing of the habeas corpus application is reported in the Winnipeg Free Press, 14 June 1933. 119 Ottawa Citizen, 4 Feb. 1933. 120 Ibid., 27 Feb. 1933. 121 Ibid., 15 June 1933. The editor of the Winnipeg Tribune, by contrast, contented himself with the view that these methods were authorized by statute and designed to facilitate automatic deportation, and described Verigin’s behaviour as “a compound of mediaeval Russian landlord and Elmer Gantry.” See editorial, 12 June 1933.

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The Trials of Peter Petrovich Verigin  399 122 Saturday Night, 24 June 1933. 123 LAC, RG76, Verigin File, pt. 2, Joliffe to Smith, 22 June 1933. In a report on events in Winnipeg, dated 13 June, Smith had attempted to justify the actions of the board in terms of a fear that if the adjournment requested by counsel for Verigin had been granted, it would have provided them with an opportunity to have applied for a writ of prohibition. This, he felt, would probably have issued, delaying the hearing and thereby allowing Verigin to establish domicile. Joliffe clearly thought otherwise. He did not read the transcript of the hearing as suggesting that counsel for Verigin would have moved for a writ of prohibition. Moreover, even if they had, he could not imagine that a judge would allow this device to be used to subvert the powers of the department under the Immigration Act. For Joliffe, any concerns of this sort were outweighed by the dangers of perceived procedural impropriety. 124 Ibid., copy of letter from Maisky to British secretary of state for foreign affairs, 12 June 1933. 125 The Department of Immigration had a Russian-speaking member of its staff based in Quebec City, Inspector Good, analyse Verigin’s passport. The latter seems to have felt that the annotation on the document stating that the Doukhobor leader was being deported from the USSR might have been added later than 1927. See ibid., Good to department, 13 July 1933. Ironically, there seems to have been no doubt in the minds of Verigin himself and his former counsel, Makaroff, that Verigin had been effectively deported from the Soviet Union in 1927. Makaroff said so specifically in representing his client before the original deportation hearing in August 1932. This had been noted by the hearing officer, C.E.S. Smith, and reported to Ottawa. 126 Ibid., Egan to MacBrien, 5 Aug. 1933. Egan had received a letter from Assistant Commissioner Jennings of the RCMP, dated 31 July, indicating that Verigin had plans to visit South America and assuming that it would be difficult to prevent him from returning now that he had acquired domicile. Jennings took heart because the community seemed to be more divided than ever. He also included a report from Sergeant Wood which detailed from the accounts of Special Agent 881 (a mole) Verigin’s application for a certificate of entry to Uruguay. Wood also reported his concern about the spread of “Bolshevik propaganda” among the Doukhobor community. 127 Ibid., Superintendent Darling to Egan, 8 Aug. 1933, indicating that officers commanding the western provinces have been instructed to “keep in touch with the movements of Peter Verigin and telegraph any information as to this man’s leaving Canada and his probable destination.” 128 Ibid., T. Magdelery, deputy minister of immigration, to O.D. Skelton, undersecretary of state for external affairs, 11 June 1934, indicating the position

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400  j o h n m c laren of Immigration that if Verigin leaves the country everything will be done to keep him out. 129 LAC, RG76, Verigin Files, pt. 2, memorandum from Acting Deputy Minister Blair to W.A. Gordon, minister of immigration. Behind the scenes the department was indicating that it would be happy to see Verigin go to South America to set up a new colony and to return to make arrangements for the Sons of Freedom to accompany him there. See letter from the new Liberal minister of immigration, T.A. Crerar, to T.C. Davis, the Liberal attorney general of Saskatchewan, 26 March 1936. The Dominion government led by R.B. Bennett was voted out of office in 1935. The Saskatchewan coalition government led by Tory James Anderson ended in 1934 with the victory of the Liberals in the election of that year. 130 Ibid., Superintendent Darling, RCMP, to Joliffe, 13 Nov. 1933. Verigin was fined $10 plus $35 in costs. 131 Ibid., notice of dismissal of appeal by the Manitoba Court of Appeal, dated 12 March 1935, of conviction for assault handed down on 15 Dec. 1935. The sentence was two months’ hard labour in Headingly Jail. 132 Nelson Times, 14 June 1937. Report on unsuccessful appeal by Verigin against conviction in Castlegar for vagrancy. The sentence of a $50 fine and three months’ hard labour in the Nelson jail was affirmed. 133 See Winnipeg Free Press, 11 Feb. 1939. 134 See SAB, A28 Makaroff papers, I-4, Doukhobors File (2) 1927–1969, for a revealing comment in a letter, dated 23 June 1933, from Verigin’s former lawyer to Semeon Reiben suggesting that the leader’s avoiding deportation in Winnipeg was, perhaps, a mixed blessing to the Community. On the problems created for the Community by the Depression, government insensitivity to those problems, and Verigin’s weakening leadership, see Woodcock and Avakumovic, The Doukhobors, 297–307. 135 See Woodcock and Avakumovic, The Doukhobors, 307, for the account of this compromise. 136 Ibid., 321–31, for the tangled story of the leadership bids of John Lebedoff, Michael Verigin (“Archangel”), and Stephan Sorokin. 137 On the subsequent history of the Doukhobors, see Woodcock and Avakumovic, The Doukhobors, 319–61. 138 Roberts, Whence They Came, 11. 139 Ibid. 140 Ibid. The relevant section in the act, R.S.C., 1928, c.93, was 23. 141 Roberts, Whence They Came, 12. 142 Ibid., 12–26. 143 Ibid., 125–8; Molinaro, “‘A Species of Treason.’” 144 Whittaker, Kealey, and Parnaby, Secret Service, 93–131.

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The Trials of Peter Petrovich Verigin  401 145 It is ironic that the only Doukhobor who was found to have worked for the Soviets, Emma Voikin, imprisoned in 1946 in the wake of the Gouzenko defection for passing on diplomatic communications to the Russia embassy in Ottawa, was of an Independent Doukhobor background. In explaining her conduct, she indicated that, having survived the Depression and the tragedy of the death of her husband and only child, she had developed serious doubts about the alleged superiority of life in a Western democracy. See J. Callwood, Emma (Toronto: Stoddart 1984). 146 See Roberts, Whence They Came, 125–58; Molinaro, “‘A Species of Treason’” and his chapter in this volume; Betcherman, The Little Band. 147 The actual and attempted “voluntary repatriation” of Japanese Canadians at the end of the Second World War was to cast doubts on even this assertion; see Ken Adachi, The Enemy That Never Was: A History of Japanese Canadians (Toronto: McClelland and Stewart 1991), 303–19; Patricia Roy, J.L. Granatstein, Masako Iino, and Hiroko Takamura, Mutual Hostages: Canadians and Japanese during the Second World War (Toronto: University of Toronto Press 1990), 139–91. 148 On the sanitization of the Canadian constitution and its effects on civil liberties, and specifically the case of Quong Wing v. The King (1914) 49 S.C.R. 440, see James W. St. G. Walker, “Race,” Rights and the Law in the Supreme Court of Canada: Historical Case Studies (Toronto: University of Toronto Press/Osgoode Society for Canadian Legal History 1997), 51–121. 149 See Ross Lambertson, Repression and Resistance: Canadian Human Rights Activists, 1930–1960 (Toronto: University of Toronto Press 2005), 16–24, on the rhetorical connections, and for a dissenting judgment, see that of Justice Idington in Quong Wing, 450–9. 150 On the historical evolution of habeas corpus, see Paul D. Halliday, Habeas Corpus: From England to Empire (Cambridge, MA: Belknap Press 2012). 151 See in particular Petryshyn, “Class Conflict and Civil Liberties,” and Molinaro, “‘A Species of Treason,’” 77–82. 152 Lambertson, Repression and Resistance, 24–67. The author notes the political difficulties with creating organizations that contained Communists on the one hand and social democrats, liberals, and even conservatives on the other. 153 See Petryshyn, “Class Conflict and Civil Liberties.” The Canadian Labour Defence League did retain radical lawyer J.L. Cohen for a time as counsel between 1927 and 1931, but there was a parting of the ways over levels of remuneration of his work; see Laurel Sefton MacDowell, Renegade Lawyer: The Life of J.L. Cohen (Toronto: University of Toronto Press/Osgoode Society for Canadian Legal History 2001), 31–53. 154 McConnell, “Peter G. Makaroff Q.C.”

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11 Wiping out the Stain: The On-to-Ottawa Trek, the Regina Riot, and the Search for Answers B I L L WA I S E R

The massive clean-up from the Dominion Day Regina Riot was barely under way when the Saskatchewan government appointed a commission of inquiry. It was expected that the hearings would last only a few weeks before a report into how the On-to-Ottawa Trek had gone so terribly wrong would be issued by the end of the summer. But the federal government of R.B. Bennett not only challenged the authority of the province to appoint federal judges to any such investigation, it also insisted that the best way to secure answers was through the prosecution of the trek leaders and those who had been charged with rioting and assault. In fact, while the start of the provincial inquiry was delayed until the late fall, a series of preliminary hearings were quickly convened to determine which people should be sent to trial. At these proceedings, and later before the commission hearings, lawyers acting on behalf of the Bennett government sought to portray the On-to-Ottawa Trek as a revolutionary movement aimed at the throat of Canada: the leaders were diehard Communist agitators bent on sowing dissent and fomenting chaos, while those who had committed violent crimes were little better than thugs who had no respect for the laws of the country. This blinkered depiction of the trek and riot discredited the trek’s campaign for work and wages and the improvement of relief-camp conditions – the very reason for going to Ottawa. It also made it difficult to unravel exactly what had happened in Regina. If the trek was Communist-inspired and Communist-led, then it naturally followed that the trekkers were to blame for the Dominion Day trouble on Market

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Square and the downtown streets. There was no room for any other explanation, let alone hard questions about the actions of the Bennett government and the two police forces (Royal Canadian Mounted Police and Regina City Police). It was a simple, convenient way of looking at the riot, and one that gained widespread currency in the months ahead. the on-to-ottawa trek and regina riot That the On-to-Ottawa Trek even reached Regina was testimony to how the Canadian government had so miserably failed the country’s single homeless unemployed during the Great Depression. In early April 1935 hundreds of dissatisfied, disillusioned men walked out of federally run relief camps throughout British Columbia and descended on Vancouver in a bold attempt to reverse their dead-end lives and bring about some kind of “work for wages” program. The walkout had been coordinated by Arthur “Slim” Evans, the district organizer for the Communist Workers’ Unity League. Evans wanted to use the growing unrest in the Department of National Defence (DND) camps – he consistently called them “slave” camps – to challenge the R.B. Bennett Conservative government and its handling of the unemployment crisis. Working with the leaders of the Relief Camp Workers’ Union, a Communist organization active in the camps almost since their creation, Evans called on the men to leave the camps and go “on strike” in Vancouver until seven demands were met: a “work and wages” program, with a minimum wage of fifty cents per hour for unskilled workers; workers’ compensation; the end of DND control of the camps and blacklisting of discharged workers; elected camp committees; non-contributory unemployment insurance; the right to vote for all camp workers; and the repeal of section 98 of the Criminal Code and related federal legislation used against workers. These demands, especially work and wages, would become a rallying cry for men for the next three months.1 Hundreds of relief-camp workers descended on Vancouver in early April 1935 and stubbornly held their ground for almost two months. Nothing was resolved, though. Nor did anything happen, including an anticipated showdown with police authorities. Part of the reason was the behaviour of the men, coached by their leaders to avoid trouble at any cost. But more important was the iron reluctance of both the federal and provincial governments to assume responsibility for the strikers and do something about the occupation of the city. The Bennett administration refused to negotiate or provide support, claimed that the men fell under

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provincial jurisdiction once they left the DND camps, and declared that Ottawa would become involved only if British Columbia requested assistance. The province, on the other hand, blamed the men’s presence in Vancouver on federal policies and refused to do anything that would precipitate a clash with the strikers. Ironically, this jurisdictional wrangling served to confirm what the relief-camps workers had been complaining about since the first days of camp operations: that no one cared about their welfare.2 At first, the “strikers,” as they were dubbed, eked out a hand-to-mouth existence, thanks to the sympathy and kindness of Vancouver’s citizens. But, as the stalemate dragged on week after numbing week, more and more men slipped away from an increasingly hopeless situation. It was at this critical juncture that someone suggested a trek to Ottawa to galvanize the strikers’ flagging spirits. Arthur Evans claimed that he was the originator of the idea that the men take their grievances to Ottawa and confront the Bennett government. Trekker Ron Liversedge, on the other hand, attributed the proposal to a nameless striker who stood up at the special meeting and calmly suggested, “Let us go to them.”3 Whatever its source, the men embraced the trek as the answer to their dilemma. The Communist Party of Canada had a different view. A front-page editorial in The Worker, carrying the headline “Trek to Ottawa Not Advisable,” warned that the battleground was in Vancouver and that to leave the city would lead to “the liquidation of the strike.”4 If anything, party leader Tim Buck argued, the relief-camp men and the Vancouver working class should form a united front to further the militant struggle. The strikers, however, had been fed a steady diet of this rhetoric for weeks and had nothing to show for it. At least, in going to Ottawa, they could force the Bennett government to deal with their grievances. But the trek was a bigger gamble than the walkout. Ottawa was more than three thousand miles away by rail, and the strikers had less than $1,000 in their pockets to help get them there. Nor could they expect much help along the way, if their Vancouver experience was any indication. An estimated one thousand On-to-Ottawa trekkers left Vancouver by freight train over a two-night period in early June. No attempt was made to stop them. Police and government authorities confidently assumed that the proposed trek was nothing more than a desperate bid to prevent the collapse of the Vancouver strike and that the resolve of the men would melt away like the snow in the interior mountains. Even Prime Minister R.B. Bennett, convinced that the Communists had misplayed their hand, announced that his Conservative administration would simply watch

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from the sidelines. There was no apparent need to do anything; the near breakdown of the trek at Kamloops seemed to suggest that it was nothing more than a crazy scheme. But the same kind of organizing zeal that had kept the strike going in Vancouver soon took over, and various committees now worked to ensure that the trek ran as smoothly as possible under the leadership of Jack Cosgrove, a Great War veteran and now trek marshal. The men also came to realize that they would never reach their goal, never get to Ottawa, unless they came together as a disciplined unit. They were no longer an aimless group of individuals, hitching a ride on a train, headed for nowhere, but men with a cause – and a mission. Just as the freight train the men were riding gained momentum as it rumbled down the Albertan foothills onto the Prairies, so too did the trek as it headed towards Calgary. In fact, the trek assumed a symbolic significance once it reached the prime minister’s home riding. The sheer audacity of the men stirred the imagination of those who had suffered through five terrible years of drought and depressed wheat prices. Here were hundreds of young men – who could have been their own sons – headed to Ottawa to tell the country’s political leaders that they were not doing enough to help ease the hardship and deprivation. The Bennett government, however, saw things differently, especially after the trekkers held local relief officers hostage until the provincial government agreed to provide meals for a few days. While many ordinary people understood their sense of frustration and growing impatience, the federal government saw only an army of single homeless unemployed who had nothing to lose and could be expected to do anything. Though people were struck by their youth and referred to them as “our boys,” the government regarded them as easy targets of Communist propaganda. And whereas people appreciated their good behaviour and no-nonsense organization, the government feared that the trek’s outward appearance as a peaceful, orderly protest was only a mask for their real, more sinister, motives. As the trek continued east from Calgary, the federal government began to make plans to bring it to an end. A sense of urgency now informed Ottawa’s response. Not only had the ranks of the trekkers swollen to fifteen hundred because of a number of new recruits from Alberta, but hundreds more were expected to join in Winnipeg.5 It was while the men were resting in Medicine Hat – still in Alberta – that the Bennett government moved to put an end to the trek. On 11 June, Regina-based RCMP Assistant Commissioner S.T. Wood personally advised Saskatchewan Premier James Gardiner that a decision had been made to stop the trek in Regina. In the House of Commons during the following days, Hugh Guthrie, the

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minister of justice, branded the trek a Communist plot to disturb “the peace, order and good government of Canada,” a characterization that signalled Ottawa’s view that it had the legal authority to displace provincial jurisdiction over law enforcement and prosecutions. A stunned Gardiner protested the lack of consultation, but he was powerless to do much more, especially given the speed at which events were moving. In a telegram to the premier later that same day, W.A. Mather of the Canadian Pacific Railway declared the men to be trespassers and asked for the “assistance and cooperation of your Province ... to put an end to this practice.” Colonel Wood returned to the legislature the next morning to report to the premier that his orders were now official and that the Mounted Police were to remove the trekkers from the trains and place them in a special holding camp. Gardiner, still angry about the turn of events, responded that any police action would surely lead to violence, and that the real tragedy would be that the trouble would be none of Saskatchewan’s doing. He also mused out loud that, if the railway companies refused to carry the men beyond Regina, the province might arrange to take them by car and truck to the Manitoba border.6 Gardiner next moved to engage the prime minister. After consulting with his cabinet, he sent a tersely worded telegram to Ottawa challenging the federal government’s authority to use the Mounted Police to stop the trekkers. “CPR delivered these men in Saskatchewan en route to Ottawa,” he summed up the government’s position, “and we expect them to carry them through.” Gardiner then huddled with Mayor Cornelius Rink, the Regina police chief, and J.W. Estey, the acting attorney general, while waiting for Bennett’s response. It was not long in coming. By midafternoon, the prime minister had wired Regina, calmly noting that the request to stop the trekkers had come from the railways and asking for the province’s cooperation in putting an end to their illegal riding of trains. This notion that the trek, after making it through the mountains without interference, was now breaking the law as it headed across the Prairies strained the premier’s credulity. He dispatched a second wire to Ottawa that went directly to the heart of Bennett’s credibility. According to information that the Saskatchewan government had gathered, the men were not in any sense trespassers and stopping them really had nothing to do with unlawful travel. He sent a similar message to the CPR’s Mather, who had come to Regina to meet with the premier and present the company’s case for the removal of the trekkers. Gardiner suggested that the railway company had a duty to “carry these men through this Province in view of the fact that they do not belong here.” Finally, he issued a press release

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that reproduced the exchange of telegrams between Regina and Ottawa, and invoked Bennett’s public pledge, only days earlier, that Ottawa would get involved only at the specific request of a province. “He has never been asked by this province to interfere,” Gardiner growled, “and we would ask him to keep his hands off the policing of this province.”7 Premier Gardiner was right. Prime Minister Bennett had effectively tied his hands with his statement in the House of Commons on 7 June that he would not interfere with the trek unless a province asked for help. He had to settle upon another reason, then, for federal involvement, and at a meeting on the morning of 11 June – the same day that Wood met with Gardiner – it was decided to find the trekkers in violation of the Railway Act, a federal statute. This plan would only work, though, if the two national railways declared the men to be trespassers – something they readily agreed to do, no matter how contradictory it appeared after they had carried the men through the mountains and across Alberta. Additionally, the government needed a place to stop the trek, and Regina, the home of the RCMP training depot and several hundred Mounties, seemed the most logical place. That the men would not get there for a few days also gave the Mounted Police some much needed time to get ready. There is no evidence to suggest, however, that the federal government deliberately chose Regina because it was the home of a Liberal government. Granted, the chance to cause Gardiner a little distress was tempting, but Bennett was more interested in a quick resolution of the problem, not opening a war on a new front. Still, the premier’s behaviour meant that he could not be trusted as an ally in dealing with the trekkers.8 Despite Gardiner’s opposition, Ottawa continued to push the interpretation that the trekkers were trespassers and hence guilty of travelling illegally. Early on the morning of Thursday, 13 June, the day before the trek was expected to reach Regina, Bennett wired Gardiner that he had been “apparently ... misinformed” about the men riding on the trains. Both national railways also took issue with the premier’s reading of the situation and categorically denied that they had offered any assistance to the trek. An indignant Mather inaccurately claimed that the CPR had not “stopped any train at any place or at any time to permit or facilitate these men reaching Regina in a body.” But Gardiner’s continuing insistence that he had evidence to the contrary revealed the weakness of the federal position – how did several hundred men, riding in public view atop boxcars, manage to get as far as they did?9 The other glaring difficulty for Bennett was that Saskatchewan – not Ottawa – exercised control over the RCMP in the province. Under the terms

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of a 1928 agreement, the Mounties not only took over provincial policing duties from the Saskatchewan Provincial Police but enforced the Canadian Criminal Code at the instruction of provincial authorities. This jurisdictional question – whether Ottawa in fact had the authority to order the Mounted Police to stop the trek in Regina – had dogged the Bennett government from the beginning of its operation against the trek. The prime minister had even sought the advice of the Justice Department. It was the Bennett government’s need to justify Ottawa’s intervention that led to federal Justice Minister Hugh Guthrie going before the House of Commons on the afternoon of 13 June and declaring the trek to be the handiwork of the Communists. The men were not ordinary trespassers. They were a Red-infested movement – an unemployed army of Communist foot soldiers – defying “the laws of the country.” Guthrie also tackled the question of who had control of the RCMP in Saskatchewan, noting that there was a special provision in the agreement with the province giving the Mounted Police the authority to enforce Dominion statutes. Since the men had been trespassing upon railway property since leaving Vancouver and were therefore in clear violation of the federal Railway Act, Ottawa could use the Mounties to pull the men from the trains before there was “serious damage to life and property.” These arguments were designed to provide a kind of legal wedge for federal intervention. But, ironically, there was really no great need to worry about the Saskatchewan government causing problems. That very morning, RCMP Assistant Commissioner Wood had written Ottawa headquarters, reporting that, despite the premier’s bellyaching, he had “received no direct instructions from the AttorneyGeneral of the Province to withhold any action in preventing relief camp workers from proceeding east.”10 The trekkers first learned about the government’s decision when they reached Swift Current on 12 June. Determined not to be intimidated, the men pushed on to Moose Jaw, where they were warmly greeted later that same day by hundreds of curious citizens gathered at the train station and along the streets. It was that very reception that deeply troubled Ottawa. In the early morning hours of 14 June, the trekkers started for Regina, where their train was met by the RCMP who, under federal orders to stop the trek from proceeding any farther, escorted the men to their new temporary home at the Regina Exhibition Grounds. For the next two weeks in the Saskatchewan capital, the Mounted Police and the trekkers played a tense game of brinkmanship, daring each other to make the first move. By the end of June, however, the men had grudgingly conceded that there was no way out of Regina – both the railway and roads were blocked – and that it would be foolhardy to engage the Mounties.

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Ending the impasse, though, proved equally elusive. The Bennett government insisted that the trek be disbanded on its terms – through a special holding facility on the outskirts of the city. But when the men balked at the proposal, seeing it as a trap, RCMP Assistant Commissioner Wood threatened tougher action – even going as far as to suggest that the federal government was prepared to declare a national emergency in dealing with the trek. This declaration, coming from the senior Mountie in Regina, alarmed both the Gardiner government and the trek leadership. But even though such a step was not taken – Wood was simply being over-exuberant – it appeared that the Bennett government had run out of patience and was prepared to end the trek by whatever means necessary. The means was forthcoming on the afternoon of 1 July, coincidentally Dominion Day, when two Regina lawyers, working with the local RCMP, decided that there was enough evidence to charge the trek leaders with being members of an unlawful association under section 98 of the Criminal Code. Commissioner Wood thereupon decided to execute the arrest warrants immediately. The RCMP would pluck the leaders from a public rally planned for Regina’s Market Square that evening. And to ensure that the plan went smoothly, Wood asked for assistance from the Regina City Police. The Mounties would make the arrests during the meeting, while the city police, in a coordinated action, were to clear the square, forcibly if necessary. But the raid quickly degenerated into a pitched battle between the police and trekkers and citizens, which spilled over into the streets of downtown Regina. Order was not restored until the early hours of the next day, but only after the city police emptied their guns directly into a crowd of rioters. The toll from the riot was two dead11 – not one, as usually reported – hundreds injured, and thousands of dollars of damage to the city. Over the next few days, the Saskatchewan government took the initiative to get the trekkers out of the province as soon as possible. Premier Gardiner had never wanted the men on the Exhibition Grounds and regarded their continued presence in the capital as a nagging reminder of how the Bennett government had usurped provincial authority. He also seemed to believe that Regina could not begin to recover from the Dominion Day debacle until the trekkers were on their way, and with them, the possibility of any further trouble. But no sooner had the fighting stopped, than the finger-pointing started. The trekkers denounced the police for attacking a peaceful rally, while the police accused the trekkers of coming to the meeting armed and ready for battle. The federal and provincial governments, in the meantime, opened a new front in their continuing war of words – this time over Saskatchewan’s decision to pay to send the trekkers back home or to their camps. Nor was Gardiner prepared, once

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Regina Riot, Dominion Day, 1 July 1935. Source: LAC, Royal Canadian Mounted Police Fonds, Regina Riot photograph no. 4.

the men had left Regina, to dismiss the riot as an unfortunate incident and try to put it behind him. The Bennett government had foisted the trek on Saskatchewan and had to be held accountable for what had happened. There had to be some kind of reckoning – in the form of an official provincial inquiry. Sadly, though, in the weeks and months after the trek and riot, no one seemed ready to set aside their differences and begin the search for answers, preferring instead to cling to their own version of the events, regardless of the cost to the truth. preliminary hearings trump inquiry commission On 10 July 1935, just five days after the trekkers had finally left Regina, Saskatchewan Attorney General Tommy Davis formally established a three-person inquiry into the Regina Riot. It was to be an ambitious undertaking. The commission was to examine every aspect of the month-long history of the trek from the time it left Vancouver until its disbandment from Regina. Put quite simply, in the words of the order-in-council, it was

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to be “the most complete and exhaustive inquiry possible.” The justices who were to lead the investigation into “all facts and circumstances” surrounding the trek and riot were James Thomas Brown, William Melville Martin, and Algernon Ernest Doak. All three men were Liberal in politics. Brown, for example, ran unsuccessfully for a seat in the House of Commons in 1908, while Martin had spent eight years in Ottawa as the MP for Regina before resigning to serve as Saskatchewan’s second premier from 1916 to 1922. They were also respected, experienced jurists. Brown, who would chair the commission, was chief justice of the Court of King’s Bench in Saskatchewan – a position he held for a remarkable thirty-nine years. The other two commissioners were equally qualified: Justice Martin had sat on the Saskatchewan Court of Appeal since his resignation as premier, while Doak, an expert on practice and procedure, was a long-time district court judge for Prince Albert.12 The appointment of the provincial inquiry was widely applauded in Regina – even by those who had lined up on opposite sides of the trek. Not only did citizens want to understand how a peaceful rally had degenerated into a riot, but there were all kinds of rumours circulating in the city that required investigation – such as the suggestion that the actual number of dead was being deliberately hidden from the public. The Regina Leader-Post claimed that it was in the public interest to uncover the facts “so far as they are obtainable, and appraised by those competent to deal with evidence ... Certainly, there is much to be known.” E.C. Leslie, one of the two Regina lawyers who had been hired by the federal government to work with the RCMP and helped draw up the arrest warrants for the trek leaders on 1 July, also welcomed the commission. “The public reaction is not as favourable as one would expect,” he told a Conservative friend in Ottawa, “but in my opinion ... when all the evidence comes out I think public opinion will be changed.” Even the RCMP appeared ready to cooperate and asked the Justice Department to arrange for legal representation at the hearings scheduled to commence on 17 July.13 The Bennett government, on the other hand, was extremely wary of washing its dirty laundry in public, especially when it would soon have to go before the electorate to renew its mandate. James Bryant, a former cabinet minister in the J.T.M. Anderson provincial government, had warned Prime Minister Bennett about the danger ahead for the Conservative Party when word of the commission first leaked out: “Dice loaded for political effect[,] advisable to figure contra scheme before Gardiner announcement made.” Coming up with an alternative, though, was secondary to stopping the provincial inquiry from going forward. Hugh Guthrie, the federal

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minister of justice, consequently lost little time in throwing up an apparent constitutional roadblock. While insisting that Ottawa wanted answers too, Guthrie advised Davis that the appointment of federal judges to the riot commission required the prior approval of the Bennett government and that the hearings would have to be postponed until the province submitted the necessary request. He also wrote Chief Justice Brown and asked whether it was appropriate for a provincial inquiry to consider the actions of the Dominion government in dealing with a national crisis. This federal intervention prompted the three commissioners to ask the Gardiner government to be released from their appointments. Davis not only refused the request but questioned Guthrie’s motives, particularly when similar appointments to provincial commissions had never been contested by Ottawa in the past. “No objection whatsoever ... has ever been raised on this point,” he rebuked his federal counterpart for trying to claim jurisdiction in this matter, “and we shall continue to assert this right.” Guthrie was plainly wrong, and Davis knew it.14 While Davis and Guthrie shadow-boxed over the commission, attention turned to punishing those trekkers who had been arrested in Regina. On the afternoon of Wednesday, 3 July, an identification parade was held at the RCMP barracks. All of the men being detained by the two police forces after the riot were lined up in two long rows and assigned numbers, while groups of policemen who were on duty that night and a few citizen witnesses took turns going from man to man and picking out anybody they recognized.15 The line-up took the better part of the afternoon and resulted in 118 men being charged nominally with vagrancy until riotrelated charges could be worked up. Most were trekkers, but a handful of Regina citizens were also detained. Because of the numbers involved, the men were taken in batches by van to the city courthouse over the next few days, where they briefly appeared before Magistrate R.E. Turnbull, were formally charged, and then remanded until the following week. Thomas Newlove, who had had a private law practice in the city since 1923, had been retained by the new Citizens’ Defence Committee to serve as defence counsel at the arraignment hearings. He had been on Market Square during the police raid and had watched the ensuing riot from a safe distance. Leslie and F.B. Bagshaw, who handled provincial criminal prosecutions and had earlier advised the RCMP that there was enough evidence to proceed against the trek leaders, initially acted for the crown. At the request of the attorney general’s office, they were soon joined by another veteran local prosecutor Herbert Sampson because of the number of defendants awaiting trial. Sampson’s appointment threatened to open

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up a new wound in the ongoing feud between the federal and provincial governments. “But we finally ironed it out and we are all acting together,” reported Leslie a few days later. This cooperation was the only instance where Ottawa and Regina seemed to be able to work together on a trek-related matter. But the Bennett government really had no choice. Any trials resulting from charges laid by the prosecutors would fall under provincial jurisdiction. Besides, it was in Ottawa’s interest to cooperate to ensure that the trials were held and the rioters convicted before any inquiry got under way.16 On Saturday, 6 July, after securing additional information from the police and assessing each case, the prosecution team withdrew sixty-one vagrancy charges. That still left more than fifty men in custody, thanks to the addition of several trekkers who had been released from hospital during the week only to be immediately arrested by the police. Preliminary hearings were held before City Magistrate Turnbull the following week, from Tuesday to Friday, and resulted in thirty-eight men being committed to trial on charges of inciting to riot and/or assault. All but three of the accused – Regina residents Carl Johnson, Stanley MacKinnon, and John Gallinger – were trekkers. One, Joe Belabeck, who had been found hiding under a car the morning after the riot, was a lame fifteen-year-old from Manitoba. Most of the prosecution witnesses were either city or Mounted Policemen, who were given wide discretion in what they could report. But when defence counsel Newlove tried to ask about police violence, Turnbull ruled the question out of order and struck from the record. He also denied Newlove extra time to prepare some of the cases. “We can’t hold them up,” countered crown prosecutor Sampson at one point, “because we have a lot of others to get rid of.” This apparent bias carried over into the bail hearings the following week. The accused men were to stand trial in September and appeared before Judge A.G. Farrell in the district court to elect trial by judge or jury and apply for bail. At the first hearing, Sampson recommended that bail be set at $1,500 for each of the men. But Farrell would not hear of it. Claiming they were all “wandering Jews and floaters” who might try to skip trial, he granted bail ranging from $2,000 to $4,000.17 The other trekkers waiting to learn their fate in early July were leaders Arthur Evans and George Black, who had been arrested at the Market Square meeting, and Ivan Bell, Ernest Edwards, and trek marshal Jack Cosgrove, who had been held since 27 June when they tried to break through the police blockade. These men would be tried in the RCMP court, not the city police court, because the municipal police had jurisdiction in their

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municipality only while the RCMP looked after everything else. Thus, there were two magistrate systems in Regina (and elsewhere) and two systems of prosecution in Saskatchewan until the 1970s. Evans and Black made their first court appearance the morning after the riot. Arraigned separately from the rioters on different charges before police magistrate Walter Scott in the RCMP court,18 while Mounties in riot gear stood guard around the building, the pair were remanded for a week. They made another brief court appearance on 9 July and then again three days later – only this time with the other three accused. The crown alleged that, under section 98 of the Criminal Code, Evans, Black, and Cosgrove were officers and members, and Bell and Edwards members, of an unlawful association – namely, the Relief Camp Workers’ Union. Magistrate Scott then agreed to adjourn the preliminary hearing for another week in order to give the lawyers a chance to clear the heavy load of riot-related cases they were also handling before the city police court. The prosecution, however, had another reason for the delay. Bagshaw and Leslie wanted to try prominent trekker Matt Shaw, who had left for Ontario just before the Market Square meeting, as part of the same case. But at the time of the 12 July hearing, he was sitting in a Toronto jail after being picked on the warrant that had been issued just before the riot. Sampson, who had a remarkable grasp of the Criminal Code, questioned the decision to bring Shaw back to Regina. “There is not sufficient evidence,” he concluded after reviewing the file, “upon which a case could reasonably be made out against Shaw ... in reference to acts or words committed or spoken by him in Saskatchewan.” The prosecutor’s assessment would prove prophetic but Shaw was returned nonetheless.19 The preliminary hearing of the six trekkers was played out against a strong anti-Communist backdrop. Former Winnipeg mayor Ralph Webb, declaring that the Gardiner government had not been tough enough on communism, called for a group of “red-blooded citizens to drive the reds out ... we will have to take the law into our hands.” The Orange Lodge of Silton, Saskatchewan, meanwhile, saw “no difference between what Louis Riel did in 1885 and those people in Regina last week”; one member accused the trek of “trying to destroy the Christian church, home life, law and order.” The mood in Regina was one of anticipation, if not curiosity – people unable to find a place in the small courtroom lined up three-deep in the back alley and listened through the open windows. Even Tim Buck, the national leader of the Communist Party, made a brief appearance in the courtroom. Proceedings commenced at 11:00 a.m. on Friday, 19 July, but were immediately adjourned three hours to allow for the arrival of

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Shaw who would not reach Regina until noon. When the court reconvened in the afternoon, the amended charges were read, and Bagshaw explained that the crown intended to show that the Relief Camp Workers’ Union of Canada was an illegal organization with direct links to the Communist Party of Canada. Thirty witnesses, at least half Mounted policemen, were called over the course of the six-day trial. Many gave evidence about the intimidation tactics of the trek and the damage caused by the riot. But it fell largely to the last witness, RCMP Sergeant John Leopold, to connect the campers’ union with the Communist Party. Leopold had performed a similar function in Toronto in 1931 when he was the star witness against eight Communists, including Buck, in the section 98 trials examined in Dennis Molinaro’s chapter. He had also cut his teeth as an undercover agent – disguised as a Communist organizer – in Regina in the 1920s. But that was the problem with his evidence. Defence counsel Newlove protested that the documents Leopold tendered did not relate to the period covered by the charges against the six men. Magistrate Scott, however, seemed to be swayed by the prosecution argument that the Communist Party was still an unlawful association, and on 1 August he committed the accused – except for Bell – to trial in September. Four days later before Judge Farrell, Evans had his bail set at $10,000, Black, Cosgrove, and Shaw at $7,000, and Edwards at $6,000.20 With the preliminary hearings out of the way, Saskatchewan Attorney General Tommy Davis wrote the minister of justice on 13 August and formally asked that the Bennett government withdraw its objection to the use of federal judges in the riot inquiry. But four days later, before the deadlock could be resolved, Prime Minister Bennett called a general election for 14 October. The prime minister’s announcement meant that the Regina trials, scheduled to start on 10 September, would become campaign fodder. And Bennett, fighting for his political survival, was ready to use the Evans trial and those of the other trekkers as part of a broader law-and-order message designed to put the Mackenzie King Liberals on the defensive, especially since they were calling for the repeal of section 98. “I have been told that the police record of one of the leaders [Evans] is being made available, “the prime minister’s secretary confided to a Conservative candidate. “He is definitely a bad lot, and this will be very helpful when we are on the hustings.” There was good political reason, then, for the Saskatchewan government to delay the trials, especially since Gardiner expected to jump to federal politics and a cabinet post once Bennett had been swept from office. (Gardiner was later elected in a federal by-election and would serve an unprecedented twenty-two years as

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minister of agriculture.) Davis consequently announced on 2 September that all of the trials would be set over to the January sitting of the King’s Court Bench on the pretext that the defence counsel required more time to prepare the cases. He also indicated, in a bald-faced attempt to make the Conservatives squirm a bit during the election campaign, that the riot commission would go forward. Less than three weeks later, Davis made good on this pledge and told a news conference that the inquiry would start on 12 November. Somewhat surprisingly, though, he suggested that the hearings would not last more than ten days.21 the regina riot inquiry commission The decisive defeat of the Bennett Conservatives in the October 1935 general election removed any federal objection to the provincial inquiry. The new Liberal minister of justice, Ernest Lapointe, maintained that it was “our duty” to determine “what the facts are with regard to those unfortunate troubles.” There was some confusion, though, over the scope of the commission. Saskatchewan Attorney General Tommy Davis, seemingly having second thoughts about the inquiry’s broad mandate, said there was no need to hold sittings in other provinces. But he was contradicted by G.H. (Bert) Yule, one of two legal counsel for the commission, who indicated that the trek would be probed from start to finish. The Department of Justice also provoked a small tempest when Bagshaw, a known Conservative who had been advising the RCMP on criminal matters with Leslie since late June, was replaced only days before the start of the inquiry by Bamm Hogarth, a distinguished local lawyer and president of the Regina Liberal Association. Defeated Conservative MP Frank Turnbull, knowing that Yule was also a Liberal organizer, immediately wired Bennett: “Looks like an attempt to convict your government.” The former prime minister agreed and, in an angry letter to Lapointe, damned the commission as not only “clearly political” but “prejudicial” to the upcoming trials. He also wondered how a province could appoint federal judges to investigate the actions of the federal government. The justice minister simply replied that the appointment of two lawyers of different political colours to represent his department and the Mounted Police was “a guarantee of complete impartiality ... the ends of justice will be effectively served.”22 After a four-month delay, the Regina Riot Inquiry Commission officially opened at the courthouse at 10 a.m. on Tuesday, 12 November. Yule and Lucien Tourigny, from Saskatoon and Shaunavon respectively, served as commission counsel, while Herbert Sampson was hired to rep-

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resent the Regina City Police and defend their actions on the night of the riot. Frank J.G. Cunningham, who had practised law in the city since 1928, had replaced Newlove as counsel for the trekkers and been granted official standing before the commission; like many other Regina citizens, he had watched the downtown rioting from the relative safety of a rooftop. Chief Justice Brown began by instructing the secretary to read the provincial proclamation establishing the inquiry and then announced, to the surprise of many, that the hearings would be recessed a week in order to give the two federal lawyers more time to prepare – neither Hogarth nor Leslie were even in the courtroom at the time. When the inquiry resumed a week later, Cunningham argued that the hearings should actually start in Vancouver – since the relief-camp strike and trek had originated there – before considering evidence in Regina. But Yule, who had a reputation for seeing the entire case before him, suggested instead that the commission proceed as far as it could in Regina and leave the question of going to Vancouver to be resolved at some future date. He also proposed to deal with the evidence in two parts: first, the trek, from the time it left Vancouver up until the Market Square meeting on 1 July, and then the riot itself. All parties agreed.23 The first of 359 witnesses to appear before the commission was RCMP Constable Frank Kusch of Vancouver. It was immediately apparent during his cross-examination how the lawyers for the trekkers and government intended to portray events. Cunningham sought to demonstrate that Ottawa had made no attempt to stop the men from leaving Vancouver and that the Canadian Pacific Railway proved a cooperative carrier, while Hogarth tried to make a link between the Relief Camp Workers’ Union and the Communist Party and paint the trek as a revolutionary movement prepared to use force to get its way. Over the next few days, Cunningham, with Evans sitting at his side, worked at developing the idea that the men were orderly and well behaved – even after they had been stopped in Regina – and that Ottawa was the intransigent party. Here, he got unexpected support from Yule and chairman Brown, who both wondered why it made any difference if the trekkers disbanded from the stadium or the new Lumsden camp. Cyril Burgess, a senior official with the federal Department of Finance in Regina who had been called upon to represent the federal government during the trekkers’ stay in Regina, also testified that Evans had announced during their Dominion Day meeting, in the presence of Colonel Wood of the RCMP, that he intended to take the same disbandment plan to the provincial government. This statement was potentially damaging, in that Wood appeared to order the arrest of the trek

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leaders at the same time that Saskatchewan was considering the trekkers’ proposal. The government lawyers, however, did not see things as being so neat and simple. During his pointed questioning of Jimmy Gardiner, for example, Leslie insisted that Ottawa had every right to use the RCMP to stop the trekkers from trespassing and took issue with the former premier’s statement that Saskatchewan could have resolved the matter if left alone. He also got Tommy Davis to admit that Colonel Wood was in an “impossible situation.”24 Evans took the witness stand on 26 November, in what would be the first of five days of testimony. Cunningham wanted the trek leader to talk about the conditions in the camps that led to the strike and trek, but Justice Brown ruled that such evidence was beyond the scope of the commission. They could deal only with the time the trek left Vancouver. Hogarth came up against this same wall when he attempted to show in his questioning of Evans that the Communists were behind the trek. “The whole idea,” Brown lectured Hogarth, “is to investigate how these men left ... the facts and circumstances ... Not their reason!” This narrow interpretation of the inquiry’s mandate could do only harm to the federal government’s case. But during his fourth day on the stand, against the wishes of Cunningham, Evans proudly admitted that he was a member of the Communist Party and that the On-to-Ottawa Trek had been his idea. Evans later claimed that there was no connection between the Relief Camp Worker’s Union and the trekkers, but the damage had been done. At the start of a new day of testimony, Hogarth mockingly wondered whether Evans would take the oath of allegiance or sing the national anthem. Leslie also played up this link between the Communists and the trek during his examination of George Black, who had been arrested with Evans at the Market Square meeting. He accused the trekker of resorting to any means necessary, including using citizens as human shields, to see that the trek got to Ottawa. Black gamely responded that the real pawns were the RCMP.25 Despite Evans’s declaration before the commission, the government lawyers were still worried about the strength of their case. In a letter to Bennett’s private secretary in December, Leslie reported that there seemed to be “an undercurrent of feeling” that Ottawa had asked the railways to complain about the trekkers. “So far I have been afraid to probe it very deeply,” he told Rod Finlayson. “Naturally I would prefer that the actual request did in fact come from the railways.” Leslie also wanted access to the information that Bennett had used to declare the trek a Communist movement and even suggested that the former prime minister might want to appear before the inquiry to clarify a few issues. But Finlayson

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quickly rejected the idea. Hogarth experienced similar difficulties with the Mounted Police. While working up the case, he learned that the Mounties had decided to move against the trekkers largely because of the reports they were receiving from the CPR secret agent who had successfully infiltrated the trekker organization. The police, however, refused to divulge the identity of the agent, let alone allow him to give evidence at the commission – because he was still working undercover. Hogarth considered the man’s evidence crucial, going as far as to advise the deputy minister of justice: “I am a little fearful of the successful defence of the Mounted Police in this investigation should he not come forward as witness.” But the Mounties would not give him up, and as a compromise, the agent’s reports were placed confidentially before the commission.26 On 9 December, just before the lunch recess of the fifteenth day of the hearings, the commission finally heard its first evidence about the riot when the Reverend Harry Upton was called to recount what he had seen on Market Square. There followed dozens of witnesses, mostly Regina citizens, who described in graphic, at times shocking, detail how the city and Mounted police had stormed a peaceful meeting, sending hundreds of people running for safety. Many also talked about how the combined police forces showed no restraint when the battle spilled downtown. Trekker George Phillips even showed off his gunshot wounds. There were also those who challenged the prosecution version of the trek and riot. Harold Kritzwiser, a Leader-Post reporter, for example, spent two weeks with “the boys” and never heard them discussing communism, the overthrow of the government, or the kidnapping of the prime minister.27 This testimony, lasting several weeks, seemed to take Hogarth and Leslie by surprise, and they called on Colonel Wood to make available any Mounted policeman who was there that night and could rebut some of the more damaging statements. It also made the assistant commissioner’s appearance before the commission all that more important, since he would have to justify police action on the night of the riot. As a precaution, Wood called on Chief Martin Bruton at the Regina police station two days after Christmas and claimed that he “was not sure regarding time [that] certain events took place.” He did suggest, though, that the Mounted Police had come to the assistance of the city police at Market Square – effectively absolving himself and the force of any responsibility for the botched raid – and that the Mountie units became involved in the fighting only after the crowd started to throw missiles. Wood also instructed his men to investigate any person who publicly claimed to have been hurt by the Mounted Police. In particular, Constable Henry Cooper, one of the two undercover

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policemen who had spent time with the trekkers, looked into George Phillips’s story by visiting General Hospital and interviewing the doctors who attended to his wounded legs. Evidently, at least one of the extracted bullets – from a Mountie revolver – was given to Inspector Fred Toop of the Regina City Police.28 Colonel Wood spent four days on the stand, starting on 20 January 1936. Resolute and self-assured, he testified that he suspected from the beginning that the trek was a revolutionary movement, organized and directed by the Communist Party. He also maintained that his force had to move quickly against the trek leadership because of the disturbing reports provided by police agents. Cunningham tried to puncture Wood’s version of events by challenging the reliability of his informants – had not Sergeant Leopold been recently demoted for drunkenness? He also sarcastically wondered whether Regina’s senior Mountie had studied police methods in Germany or Russia. But Cunningham stepped over the line when he asked Wood to provide a copy of RCMP instructions on crowd control. Justice Brown reacted as if some great indiscretion had been committed. “You have got to realize,” he chastised the counsel for the trekkers, “that the Royal Canadian Mounted Police Force of Canada ... are a sacred thing not to be looked into and criticized or examined by the public generally.”29 Perhaps the most anticipated testimony at the inquiry – at least for Regina citizens – was that of the city police. Many people wanted to know why the police attacked the Market Square meeting and later fired their guns into a crowd during the skirmishing downtown. Chief Martin Bruton appeared on the afternoon of 4 February and, under questioning by Sampson, told the commission that he had taken instructions from the RCMP and was told to send his men onto the square at the sound of the whistle and clear a passage for the plainclothesmen making the arrests. Inspector Duncan McDougall, who headed the police column, offered the same explanation. Curiously, none of the constables claimed to have struck anyone on the way to the speaker’s platform – the crowd apparently parted like the proverbial Red Sea. McDougall did, however, admit that his men had used their sidearms in two locations, but only in self-defence. He also insisted that the shooting of people in other parts of the downtown was not done by his men. This evidence raised questions about the RCMP testimony, but Cunningham had little opportunity to exploit the inconsistencies. The inquiry had already sat for more than fifty days and Brown and his fellow commissioners were growing weary. When Hogarth, for example, recommended a day of hearings in Toronto, in addition to those now scheduled for Vancouver and Calgary, Brown

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cut him off: “I am afraid we cannot do that ... We cannot keep this commission open for ever.” Cunningham was similarly treated when he asked that the RCMP commissioner, the former prime minister, and the former minister of justice be called to give evidence. “I don’t think we will waste our time on that,” ruled Brown. The Regina hearings were recessed for ten days while Doak and Tourigny took testimony in Vancouver and Calgary in late February. The last witness in Regina was heard on 9 March, almost four months from the start of the inquiry – and over eight thousand pages of testimony later.30 Closing arguments took the better part of four days. Working in tandem, Hogarth and Leslie zeroed in on Evans and his Communist allies, branding the leaders of the trek as “wolves in sheep’s clothing.” They also charged that Premier Gardiner had failed to appreciate the gravity of the situation – the railways had practically been forced to carry the trekkers – and that he had engaged in a kind of political gamesmanship by trying to move the men along to Ottawa. The Bennett government, on the other hand, had been right in stopping the trek in Regina and refusing to negotiate with known Communists. So too had the RCMP been correct in deciding to arrest the leaders at Market Square – it was the trekkers who initiated the violence and carried the fighting to the downtown streets. Sampson’s closing address dovetailed nicely with the federal version of events. Insisting that the Regina City Police were assisting a Mountie operation the night of the riot, he dismissed the stories of police beatings as “unbelievable” or “pure fiction,” while defending the two shooting incidents as “entirely justifiable.” For Sampson, the task of the commission was a simple one: choosing between the testimony of city constables who were simply doing their job and that of some “very prejudiced persons.” Cunningham spoke last and at length. He challenged the federal contention that the trek was a revolutionary movement. If it was such a threat to law and order, then why were the men well behaved and well supported? He also accused the Mounted Police of overreacting. They were the ones who had moved into the crowd on the square even though there had been no sign of trouble. They were the ones who had terrorized people downtown, even using their revolvers, and then denied any wrongdoing. But the biggest tragedy, according to Cunningham, was that the trek could have been disbanded without incident had the federal government not been so heavy-handed or so hard-hearted.31 The three commissioners were expected to need at least a month to wade through the fifty-three volumes of evidence and prepare their report. Some involved, though, seemed to believe that the judges had already

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made up their minds. “I am well satisfied with the course of the investigation,” Colonel Wood advised the commissioner, “and believe that we have effectively established in the minds of the Commissioners and the public that this trek was a revolutionary movement.” Leslie agreed. “I do not see how they can quarrel with the actions of your Government,” he wrote the former prime minister at the completion of the hearings. The federal minister of justice also seemed to tip his hand in the House of Commons when Bennett continued to complain about the possible impact of the commission on the pending trials. “I believe that the evidence ... will rather be a justification of what the police did,” Lapointe responded, “and will clarify certain issues which were perhaps dangerous.” Although the minister was immediately accused of prejudicing the inquiry, the commissioners themselves had made no secret of their profound dislike of Evans and his methods. At one point during the hearings, after learning that the trek leader had written a public letter critical of the commission, an exasperated Brown had exploded: “Mr. Evans seems to have gone insane with the idea of his own importance ... I don’t think it is gaol where Mr. Evans will go. I think perhaps one day he will go to asylum instead.”32 the regina riot trials After several delays, the Regina Riot trials finally opened on 14 April before Justice Hector Y. MacDonald in the city police court. Sampson, occasionally spelled by Bagshaw, handled the prosecution, while Peter G. Makaroff, Canada’s first Doukhobor lawyer, served as lead defence counsel. Makaroff, a prominent Saskatoon social and peace activist and failed Co-operative Commonwealth Federation (CCF) provincial candidate, had recently defended Doukhobor leader Peter Verigin and, as recounted in John McLaren’s chapter, successfully foiled elaborate federal government attempts to deport Verigin. Makaroff had been contacted by the defence committee within days of the riot to see whether he would handle the trials. He shared the defence duties with his law-school colleague, Emmett Hall, a conservative with strong sympathies for the underdog, who would go on to be a Supreme Court of Canada justice and a father of Canadian Medicare. He had also coaxed Tom Newlove, who had handled the preliminary hearings, into providing assistance given his familiarity with the cases. All three would be vilified by the Regina legal community for representing the trekkers.33 The defence had high hopes once the trials started. Just six weeks earlier, after consulting with Herbert Sampson and commission counsel Bert

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Yule, Tommy Davis had formally withdrawn the charges under section 98 against Evans and the other four men. Their trial, after two postponements, had been scheduled to go ahead on 11 March, around the same time that the commission was expected to draw to a close. But there was not enough Saskatchewan evidence to warrant proceeding with the charges – something that RCMP Assistant Commissioner Wood had known in late June 1935 when he was being encouraged by the commissioner to arrest the trek leaders. He had actually warned Ottawa that the trekkers had been cagey about what they said publicly in Regina and that it had been necessary to secure evidence against the men and the trek from outside the province. But the RCMP went ahead with the arrests anyway, in anticipation of charges that would never be pursued.34 The significance of the dropping of the section 98 charges – probably as a result of the election of the Mackenzie King Liberals – seemed to get lost in the fact that there were still twenty-two trekkers and two citizens on trial on riot and assault charges. Makaroff and Hall chose to defend their clients by pinning the blame for the riot on the city and Mounted police forces. The Market Square meeting had been a peaceful gathering until the police moved to arrest the trek leaders. The strategy enjoyed some unexpected success during the first trial when Judge MacDonald ruled that the evidence did not justify the rioting charge against Joe Mottl and Sidney Stevens – the mere assembly of the crowd did not mean that they had a common purpose to disturb the peace. But MacDonald refused to accept the argument that the men were acting in self-defence when they fought with RCMP Constable Francis and ordered the assault charges to go forward to the jury. He also rejected the defence counsel’s motion that jurors who were known to have given evidence before the riot commission be dismissed from hearing the case. “If we wait to get jurymen without human frailty,” the judge snapped, “we will never have them.”35 Jury-packing, the crown’s management of jury selection and composition, was a long-established concern in political trials and politically sensitive cases, and many examples may be found in the Canadian State Trials series. MacDonald’s abrupt rejection of the defence concerns about juror bias confirmed an unpromising turn in the proceedings. In subsequent trials, Makaroff and Hall continued to argue that the brutal police break-up of the meeting was the real crime. How long would the RCMP commissioner keep his job, Makaroff asked the jury, if one hundred policemen had attacked the shareholders’ meeting of the Royal Bank of Canada in Toronto? But Judge MacDonald disputed the analogy, instructing the jury to consider whether people could take the law into

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their own hands and attack those sworn to defend the peace. The pair wrangled again when Makaroff called on Saskatchewan cabinet minister George Spence to describe how the provincial cabinet had been meeting when the riot erupted. MacDonald ruled the testimony irrelevant and, over Makaroff’s objections, told Spence to step down from the witness box. The atmosphere in the court eventually became so caustic – with frequent interruptions from the bench and constant challenges in response – that MacDonald threatened Makaroff with “extreme measures.”36 The behaviour of the defendants – charged with rioting and/or assault – did not help their cases. Indeed, their months languishing in jail, waiting to go to trial, had only aggravated their sense of persecution. When Joe Mynnie was asked to enter a plea, he shouted: “Not guilty and the whole Dominion knows it.” John Wedin was equally adamant about his innocence. “More than two million words have been heard in the riot commission to prove the police started the riot,“ he announced to the applause of a fellow trekker seated in the courtroom. “I don’t see any reason to be here at all.” He also challenged the fairness of his trial after he was found guilty. “I think it very easy to find anyone guilty on perjured evidence. It’s a cinch,” he bluntly told the judge. “I can’t expect any mercy. I’m proud of it.” MacDonald coolly sentenced Wedin to eighteen months – the longest for any of the convicted men. Eight others were handed sentences from six to twelve months, in addition to the time they had already spent in jail. One, Kenneth Forsythe, a freckle-faced young Scot, faced possible deportation under the Immigration Act. Nine other trekkers had charges dropped, while five were acquitted. Joe Belabeck was granted a suspended sentence in juvenile court – but only after his age had been confirmed.37 the commission report Four days after the last trekker trial, on Saturday, 16 May, the provincial government released the Regina Riot Inquiry Commission report. E.C. Leslie, relying on information from friends inside the government, had predicted: “It will be all right, except that it won’t condemn Gardiner.” It was an accurate assessment but, as it turned out, unnecessarily cautious – the 311-page report was much more one-sided than Leslie imagined. Bowing to the prerogatives of law and order, the commissioners declared that the federal government was entirely “justified” in stopping the trek in Regina, given that it was led by a notorious Communist agitator and dominated by a number of “vicious characters.” They also maintained that the trekkers had been prepared for trouble that evening, as evidenced

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by the “speed” and “ferocity” of their attack on the square; in contrast, the police had acted with “courage” and “restraint,” employing no more force than necessary. To support these conclusions, the commissioners found testimony about police brutality to be “unreliable” or “half-truths,” as well as dismissing injuries as “trivial.” They even attributed Millar’s death to a blow from a trekker club. The federal government and the police, however, were not completely exonerated. The commissioners believed that Ottawa should have given Colonel Wood greater freedom to reach a disbandment arrangement with Evans and thereby avoid possible trouble. And in what amounted to little more than a slap on the wrist of the RCMP, they also wondered about the “expediency of effecting the arrests on the market square.” In the end, though, it was the trekkers – and not the police – who showed bad judgment in placing their cause in the hands of Communists. “The leaders ... gave the whole movement a colour and character which condemned it from its inception,” the report concluded, “and which caused it to be branded as dangerous by those in authority ... responsible for the preservation of the peace, order, and good government of the country.”38 Coming almost a year after the trek and the riot and costing $27,600 (the equivalent of the monthly allowance for over 5,500 relief-camp workers), the commission report was expected to provide some much needed perspective on one of the ugliest incidents of the Depression and, it was hoped, defuse labour tensions and federal-provincial conflict. Certainly, there were those who contested the findings. Former Prime Minister Bennett, for example, scoffed at the suggestion that “long-distance negotiations” had aggravated the situation. “I never believed that those Judges should undertake this work,” he ranted to a Regina colleague even before he had read the report. Peter Makaroff, on the other hand, countered that it was the utter hopelessness of the situation – and not Evans and a handful of Communist organizers – that drove the men to walk out of the federal relief camps in British Columbia and head to Ottawa with their grievances. ”Men do not trek because they are agitated,” he bluntly informed a Saskatoon press conference. “History proves that humanity does not move because of a few so-called agitators. The causes of treks go deeper into the economic forces of life.” The general response to the report, though, was that the three judges had provided a realistic assessment of the trek and riot – as evidenced by the reaction of Regina’s two competing daily newspapers. The Daily Star headlined the commission argument that the RCMP had prevented a “far worse riot” in Ottawa by stopping the trek in Regina. Similarly, the Leader-Post not only acknowledged that

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the trek was clearly the work of the Communists, but endorsed the finding that the city and Mounted police were simply doing their duty. “The police forces acted under orders,” the paper observed, “which is what police forces must do.” This acceptance of the commission report, a willingness to embrace it as the final word, might seem short-sighted. But the spectre of communism seemed to blunt any desire to probe beneath the surface. So too did the memory of the fighting on the streets of Regina on Dominion Day when police battled trekkers and citizens. It was much easier to see the trek and riot as unfortunate, regrettable, even misguided – but most of all, thankfully over.39 The On-to-Ottawa Trek had one simple goal: to force the Bennett government to do something about the miserable plight of Canada’s reliefcamp workers. Since federal authorities had stubbornly refused for weeks to negotiate with the strikers in Vancouver, the men boldly decided to go to Ottawa and turn their campaign for work and wages into a national crusade. They wanted an end to their empty, seemingly hopeless lives and looked to the federal government to bring about a better deal for them and thousands of others who had been shunted to the margins of society by the Depression. But the fighting between the trekkers and the police effectively quashed any flickering hope that the men would get to Ottawa. In fact, the riot did more than kill the trek. It sullied the public image of the men, as well as throwing into doubt their purpose in setting off for Ottawa. It was a bitter, profoundly disappointing outcome –one that supporters of the trekkers were determined to set right by raising difficult questions about what had really happened in Regina. But, even though the new Mackenzie King government was uneasy with the way the trek had been handled, it was not about to open old wounds once the trials were over and the commission had reported. Nor was it prepared to admit any misjudgment or wrongdoing that might weaken the integrity and reputation of the Royal Canadian Mounted Police. It was far easier for the Liberal government to do nothing, to let the On-to-Ottawa Trek and Regina Riot be simply remembered as the legacy of the Bennett years –albeit at the expense of the trekkers and their cause. appealing the convictions Once the commission report had been released, a new Citizens’ Defence Movement set its sights on having the convictions overturned or at the very least the sentences reduced for the eight trekkers who had been found guilty of rioting and assault. To help fund the men’s appeals, it

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sponsored a liberty draw, selling tickets for a chesterfield suite valued at $100. But the draw date, originally set for 30 May 1936, had to be repeatedly postponed because of the lack of sales. The Regina office also produced a six-page pamphlet, “Has Justice Been Served?” which maintained that the Royal Canadian Mounted Police were “the guilty ones” and that the trekkers had been “sentenced to jail terms for no other reason than to justify the police action on Dominion Day on Regina’s Market Square.” Excerpts from several letters and telegrams – entered as exhibits at the commission hearings – confirmed that the Mounted Police had the trekkers by the jugular in late June 1935 and moved against them at the very time they were negotiating a way out of Regina with the Saskatchewan government. In fact, the pamphlet’s findings stood in stark contrast to the commission report – even though they were based on the same evidence. “We appeal to you to support ... these cases,” the pamphlet exhorted. “By wiping out the stain of Regina, July 1, 1935, upon the pages of Canadian history, you will be laying the foundations for your own security in the future ... Democracy and justice must be maintained in Canada!”40 The appeal hearings began on Monday, 15 June, a year less a day from the time the trekkers had arrived in Regina. First to be heard were the cases of Joe Mottl and Sidney Stevens, who had each been sentenced to seven months at hard labour for assaulting a Mounted policeman during the fighting on Market Square. Peter Makaroff, who continued to represent the men, took issue with the judge’s instructions to the jury and asked that the convictions be overturned. But the court dismissed both appeals in the early afternoon. Chief Justice Frederick Haultain, the former territorial premier, considered Makaroff’s objections to be “absolutely frivolous” and “without merit,” even chiding him at one point for going through the evidence with a microscope, while Mr Justice P.H. Gordon commented that the men had been given a “wonderful trial.” This sense that the appeals were futile carried over into the next day’s hearings. When court resumed Tuesday morning, Haultain announced that Jack Wedin’s appeal had been rejected as well. A frustrated Makaroff immediately advised the court that he was abandoning his appeal against conviction in the remaining five cases, but intended to proceed with a plea for reduced sentences. The results were little different. Four trekkers – Jack Kyle, Kellett Cole, Fred Nogami, and John Gallinger – had their sentences upheld, while Kenneth Forsyth, who was waiting deportation, had his sentence cut from six to three months, but only because he had already spent four months in jail before being bailed out. Chief Justice Haultain believed that the convicted trekkers had been treated leniently under the circumstances. “We

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have every sympathy for the men and the conditions they find themselves in,” he told the court at the end of the two-day hearings. “But at the same time, it appears that they allowed themselves to be led away by leaders, agitators – I almost might say scoundrels ... Men will get nothing in this country by force and violence.”41 parliament has the final word The Citizens’ Defence Movement was naturally disappointed by the appeal hearings and issued a public statement that came dangerously close to questioning the integrity of the court. But instead of continuing to push for the remission of the sentences in Saskatchewan, Makaroff, along with Jack King, hurriedly left for Ottawa, where they hoped to meet with the justice minister before Parliament adjourned for the summer. Making a direct appeal to the new Liberal government had been contemplated by the defence movement for weeks – it was only a matter of timing. There was no guarantee, though, that Ernest Lapointe would see the men, let alone consider their request. CCF leader J.S. Woodsworth, trying to establish his party’s pre-eminence on the left, thought it was fruitless. “From the Ottawa end this kind of thing has very little value,” he warned. “The capital is every week crowded with delegations of all kinds. One more hardly attracts any attention.” Woodsworth’s reluctance was likely a result of his own party’s frustration in trying to get Lapointe to pass judgment on the actions of the former Bennett government. For the past few months, M.J. Coldwell and Tommy Douglas, two of the new CCF MPs from Saskatchewan, had been patiently waiting for the department estimates to be tabled so that they could raise the matter of the riot in the House of Commons. In the meantime, on 6 May, Douglas submitted a formal motion for copies of all Mounted Police and Department of Justice correspondence relating to the trekkers’ three-week stay in Regina. Lapointe strenuously objected to the release of secret police communications but reluctantly agreed to provide all non-confidential departmental material. The defence movement tried to fill in the gaps. In mid-May, Jack King sent Douglas the full transcript of the riot commission evidence of former premier Jimmy Gardiner, Attorney General Tommy Davis, and RCMP Commissioner Wood. “It might be well to put this Hon. Gentleman on the spot,” King advised in reference to Gardiner, now the federal minister of Agriculture. “For at least if he has not changed his stripes, he most certainly has permitted them to fade out of sight.” His most acerbic remarks, though, were reserved for “Sub-Fuhrer Wood” and “Big Chin

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MacBrien” and all their “Ducky” messages. “Light the fuse and let her go,” he urged Douglas.42 The Opposition finally got its chance to discuss the circumstances behind the Regina Riot during a review of defence expenditures in the House on 19 June. But the debate was not between the government and the CCF, but with former Prime Minister R.B. Bennett, who continued to equate the trek with communism. When Coldwell attempted to pin the blame for the riot on a botched police raid, a thin-skinned Bennett countered that the Mounties were attacked when they attempted to serve arrest warrants for the trek leaders. The issue resurfaced the next day during a special Saturday sitting – but this time, Douglas, who had been in Regina the night of the riot, spoke on behalf of the trekkers. “The point we fail to see,” he told the House during a discussion of federal relief support, “is that agitators do not stir up trouble. It is economic dissatisfaction and insecurity that provide the material which enables agitators to make trouble.” He continued over Bennett’s interjections: “The solution lies in giving these young men opportunities to live ... but unfortunately we do not do that; unfortunately we refuse to realize the urgency and dangerous nature of the situation until it is upon us. Then a catastrophe occurs for which no one wishes to accept the blame.” Douglas concluded by calling on the King government “to be prepared to see the men’s point of view ... the actual conditions under which these men are living ... I am asking that we attempt to spend money in trying to clean up the situation rather than to whitewash it.”43 Makaroff and King met with Justice Minister Lapointe and the prime minister that same day. Armed with a two-page brief that attributed the riot to an “entirely unwarranted and inexcusable attack” on “a peaceful public meeting,” they appealed for the immediate release of the eight convicted trekkers. “These young men are not criminals,” the pair insisted, ”and they should therefore be absolved from any further punishment.” It is not known what the two Liberal ministers said at the meeting or whether they indicated how the government might respond to the request. But Lapointe had always been extremely wary of saying or doing anything that might be interpreted in Quebec as being sympathetic to communism. Nor was he prepared to tie the hands of the Mounted Police in responding to dissent, even though he had once complained that the RCMP were becoming too militaristic. He had insisted, for example, on personally screening all Justice Department documents about the trek and riot before they were released to Douglas.44 The prime minister’s thinking about the trek and riot, on the other hand, had come full circle since returning to power. The day after the Dominion

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Day riot, King had confided to his diary that the Regina debacle was symbolic of Bennett’s years in office: “This tragedy ... discloses the complete failure of his government to provide work and solve the unemployment problem.” He repeated these remarks the next day at caucus, admonishing his members that unemployment, not communism, was the real issue behind the trek and that Bennett was trying to use the threat of subversion to divert attention away from his sorry record. In fact, two days later, King was now regretting that he had not spoken in defence of the trekkers during the Commons debate on the riot. “I should have made one of the great speeches of my life,” he noted in his diary on 5 July 1935. “Had I been faithful to that end, I would have had a veritable crown of life.” But once his return to office seemed a certainty, King had a change of heart. Just before the election was called, he confessed to Tommy Davis that the riot “has increased rather than lessened the problems with which a new Liberal government will be faced.” And from King’s perspective, it was preferable to ignore this particular problem by pretending that his government was hamstrung by the decisions of the provincial commission and the criminal courts. It was a political strategy identical to that pursued by Bennett in the spring of 1935 when he insisted that the Vancouver relief-camp strikers were a provincial problem.45 Makaroff and King got an answer to their appeal – albeit indirectly – on Monday, the day before the parliamentary session came to an end. During the afternoon sitting, Woodsworth used the debate on Department of Justice estimates to shoehorn in a damning critique of the riot commission report, culminating in a call for an official investigation into the behaviour of the RCMP. As a kind of postscript, he suggested that the government recognize one of the old traditions associated with the king’s birthday (to be celebrated the next day) and grant the imprisoned trekkers clemency, thus demonstrating the government’s benevolence without calling the justice of the proceedings into question. “The victims of those blunders are still in gaol,” Woodsworth observed. “I suggest that we try to wipe out these blunders as far as is possible by a gesture of generosity towards those who have been the victims.” Lapointe responded later that evening, reading selectively from those sections of the commission report that heralded the Mounted Police for their conduct and composure during the riot. He then added, almost sanctimoniously, “We must do our best to strengthen the hands of those who have, after all, to maintain peace and order in Canada ... I do not think the country has to be humiliated in any way by the part played by those who had to take responsibility at that time.”46

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The Lapointe statement ended any hope of seeing the men released – or for that matter, seeing the riot investigated any further. Despite any misgivings about what had happened on the streets of Regina, the King government chose to stand by the Mounted Police and their use of force to break up the trek. The needs of the state – in other words, the Liberal Party – took precedence over the plight of the men, no matter how justifiable their grievances might have been. Even the normally volatile Jimmy Gardiner, who was still irked by how his province had been treated, played along with the political game. When Bennett renewed his complaint about the legitimacy of the provincial investigation, in an apparent attempt to cross swords with the former Saskatchewan premier, Gardiner calmly explained to the House that the commission had been established “to clear up the whole matter. It has been cleared up ... fairly satisfactorily to all parties concerned. I have nothing further to say.” The Liberal government could not be accused, though, of standing still. On the last day of the session, 23 June, it repealed section 98 of the Criminal Code – as it had promised during the 1935 election campaign. One week later, it accepted the recommendation of a Department of Labour committee and announced the closure of all federal relief camps.47 conclusion Although the Saskatchewan government held a public inquiry and almost two dozen trekkers went to trial, the full truth about the events surrounding the On-to-Ottawa Trek and the Regina Riot was sacrificed in favour of a simpler, more comfortable conclusion: the trek constituted a threat to the cherished Canadian principles of law and order, and, as such, it had to be stopped by any means and at any cost. This conclusion was not surprising, given the apparently radical nature of the event. But it missed the broader significance of the trek. Far from being a sinister Communist plot, the march eastward captured the profound sense of crisis that gripped the country during the 1930s. The individual stories of the trekkers – the feelings of personal failure and utter despair – could have been the stories of many other ordinary Canadians. It was as if their own Depression experiences were being played out before them as the men headed to Ottawa to confront the prime minister over his relief policies. The Bennett government and the RCMP, however, refused to look beyond the Communist rhetoric of the trek leaders to see the real motivation for the movement. They failed to understand why people from different backgrounds and political sympathies readily identified with “the boys” and what they

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were doing. Instead, the government and the police chose brute force over a reasonable solution to the Regina impasse and provoked one of the worst riots in twentieth-century Canadian history. This tragic outcome certainly made the trek appear to be a revolutionary movement. But the revolution it sought was a better deal for the thousands of single, homeless unemployed who faced an empty, hopeless future in federal relief camps during the Depression. That was the real crime – and it would have gone largely unnoticed if not for the On-to-Ottawa Trek. Notes   1 V. Howard, “We Were the Salt of the Earth!” The On-to-Ottawa Trek and the Regina Riot (Regina: Canadian Plains Research Center 1985), 14–27. On section 98, see Dennis Molinaro’s chapter in this volume.   2 J. Struthers, No Fault of Their Own: Unemployment and the Canadian Welfare State, 1914–1941 (Toronto: University of Toronto Press 1983), 137.   3 R. Liversedge, Recollections of the On to Ottawa Trek (Toronto: McClelland and Stewart 1973), 83.   4 The Worker, 1 June 1935.   5 The exact number of trekkers is a matter of debate. At the Regina Riot Inquiry Commission (RRIC), defence lawyer Frank Cunningham reported that either 2,014 or 2,016 men arrived in Regina that morning. The two Regina daily newspapers offered different estimates: 1,500 or 2,000. Saskatchewan Archives Board (hereafter SAB), Regina Riot Inquiry Commission, vol. 2, 148; vol. 3, 50; Regina Leader-Post, 14 June 1935; Regina Daily Star, 14 June 1935. Since roughly 1,350 trekkers had been counted in Moose Jaw, it is possible that their numbers might have reached 1,500 by the time they reached Regina.   6 SAB, James Gardiner papers, f.46, “Unemployed On-to-Ottawa Trek,” W.A Mather to J.G. Gardiner, 11 June 1935; RRIC, vol. 2, 120, 137; vol. 4, 48–50; vol. 36, 111; exhibit 168, S.T. Wood to J.H. MacBrien, 13 June 1935.   7 Anyone associated with the trek reported that the CPR did whatever it could to facilitate the movement of the men eastward. Gardiner papers, f.46, “Unemployed On-to-Ottawa Trek,” J.G. Gardiner to R.B. Bennett, 12 June 1935; R.B. Bennett to J.G. Gardiner, 12 June 1935; J.G. Gardiner to R.B. Bennett, 12 June 1935; J.G. Gardiner to W.A. Mather, 12 June 1935; J.G. Gardiner press release, 12 June 1935. The release was published almost verbatim in the Regina Leader-Post that same day.   8 RRIC, vol. 36, 110; G.M. Stone, “The Regina Riot: 1935” (MA thesis, University of Saskatchewan 1967), 45, 124–5. Although the author has not found any

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minutes of the 11 June Ottawa meeting, the Gardiner papers confirm that such a meeting took place, as does his interview with a Toronto Daily Star reporter on 13 June. See Gardiner papers, f.46, “Unemployed On-to-Ottawa Trek,” J.G. Gardiner to R.B. Bennett, 13 June 1935; Toronto Daily Star, 13 June 1935. The RCMP had responsibility for enforcing federal statutes but, under the military aid to the civil power provisions as amended a decade earlier, local requests for military assistance required provincial endorsement: see David Frank’s chapter in this volume. Gardiner papers, f.46, “Unemployed On-to-Ottawa Trek,” R.B Bennett to J.G. Gardiner, 13 June 1935; S.J. Hungerford to J.G. Gardiner, 12 June 1935; W.A. Mather to J.G. Gardiner, 13 June 1935. In a telegram to Prime Minister Bennett that same day, Edward Beatty, president of the CPR, reported that “the Company had not done anything” to assist the trekkers. LAC, Manuscript Division, R.B. Bennett papers, 496584, E.W. Beatty to R.B. Bennett, 13 June 1935. Canada, House of Commons Debates, 13 June 1935, 3592; RRIC, exhibit 168, S.T. Wood to J.H. MacBrien, 13 June 1935.The Mounties exercised policing duties in the province until the creation of the Saskatchewan Provincial Police in 1916 but from 1928 the province began contracting out policing with the RCMP. The second victim was trekker Nick Schaack, who died several weeks later from a blow to the head. See B. Waiser, “Victim Number Two,” The Beaver, August-September 2003, 26–8. Saskatchewan, Saskatchewan Gazette, 31 July 1935, 2–3; W.H. McConnell, Prairie Justice (Calgary: Burroughs and Company 1980), 207–8. RRIC, vol. 16, 165, 46, 112; LAC, Government Archives Division, Canadian Security Intelligence Service, RG146, f.93-A-00086, pt. 2, S.T. Wood to J.H. MacBrien, 10 July 1935; f.98-A-00229, pt. 3, S.T. Wood to T.C. Davis, 16 Nov. 1935; Regina Leader-Post, 6 July 1935; Bennett papers, 492949–52, E.C. Leslie to M.A. MacPherson, 6 July 1935. The suggestion that the subject matter of the provincial inquiry was an encroachment on federal jurisdiction was unwarranted. In fact, there is considerable overlap in the division of powers. Under section 91(27), the federal Parliament has jurisdiction over criminal law, but under section 92(14), the provinces have jurisdiction over the administration of justice in the province, which presumably would sanction the provincial riot commission. Bennett papers, 492912, J.F. Bryant to R.B. Bennett, 5 July 1935; Regina Leader-Post, 16 July 1935. The newspaper carried copies of the correspondence between Davis and Guthrie over the establishment of the commission. RG146, f.98-A-00230, S.T. Wood to J.H. MacBrien, 5 July 1935; RRIC, vol. 22, 64-5; vol. 45, 91–2; Rex v. Mottl and Stevens, 123–4.

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434  b i l l waiser 16 Regina Leader-Post, 3 July, 4 July 1935; RRIC, vol. 21, 72; Bennett papers, 492249–51, E.C. Leslie to M.A. MacPherson, 6 July 1935. 17 Regina Leader-Post, 9 July, 10 July, 13 July, 16 July, 18 July 1935. 18 There was a separate RCMP court in Regina to handle provincial and federal prosecutions. 19 Regina Leader-Post, 2 July, 9 July, 12 July 1935; RG146, f.98-A-00230, H.E. Sampson to T.C. Davis, 13 July 1935. 20 Regina Leader-Post, 13 July, 20 July, 22 July, 31 July 1935; RRIC, Rex v. Bell et al., 6–9, 719, 710–11, 726. 21 SAB, J.G. King papers, f.13; Bennett papers, 496826, A.E. Millar to J.S. Stewart, 15 Aug. 1935; Regina Leader-Post, 3 Sept., 21 Sept. 1935. 22 Bennett papers, 539212, F.W. Turnbull to R.B. Bennett, 9 Nov. 1935; 539214– 15, R.B Bennett to E. Lapointe, 20 Nov. 1935; 539227, E. Lapointe to R.B. Bennett, 22 Nov. 1935; Regina Leader-Post, 6 Sept., 25 Oct., 4 Dec. 1935. Months later, Leslie provided a strong endorsement of Hogarth’s performance. “I do not think,” he privately wrote the former prime minister, “that anyone could have evinced greater zeal in digging up and presenting every bit of evidence to justify the actions of the Police or of the Government of that day.” 23 RRIC, vol. 1, 7–8; vol. 2, 22–3; vol. 28, 110. 24 Ibid., vol. 2, 60, 100–1; vol. 3, 80–8; vol. 4, 194–6; vol. 6, 75–8. 25 Ibid., vol. 7, 93–5; vol. 10, 17, 28–9, 145; vol. 11, 109; vol. 13, 60. 26 Bennett papers, 539223, E.C. Leslie to R.K. Finlayson, 17 Dec. 1935; 539225, R.K. Finlayson to E.C. Leslie, 23 Dec. 1935; RG146, f.98-A-00230, J.H. MacBrien to deputy minister of justice, 20 Dec. 1935. 27 RRIC, vol. 16, 76; vol. 23, 52; vol. 24, 107–8. 28 Regina City Police, RCMP docket file, M.J. Bruton notes, n.d.; RG 146, f.93A-00086, pt. 1, H. Cooper, “Illegal Travelling on Trains, 1935,” 11 Dec. 1935; S.T. Wood to J.H. MacBrien, 19 Jan. 1936. 29 RRIC, vol. 38, 43, 60, 91; vol. 40, 112–13. 30 Ibid., vol. 46, 126; vol. 47, 6, 70; vol. 50, 72, 74. 31 Regina Leader-Post, 9 March, 10 March, 11 March 1936. 32 RG146, f.93-A-00086, pt. 1, S.T. Wood to J.H. MacBrien, 25 Jan. 1936; Bennett papers, 539244–5, E.C. Leslie to R.B. Bennett, 16 March 1936; Canada, House of Commons, Debates, 10 Feb. 1936, 65, 124–5, 11 Feb. 1936, 269, 18 Feb. 1936, 268–9; RRIC, vol. 34, 81–3. 33 King papers, f.5, f.6, f.13, “CDC minutes,” 10 July 1935; Regina Leader-Post, 14 April 1936; W.H. McConnell, Prairie Justice, 75–6; D. Gruending, Emmett Hall: Establishment Radical (Toronto: Macmillan of Canada 1985), 28–32. 34 Regina Leader-Post, 28 Feb. 1936. 35 RRIC, Rex v. Mottl and Stevens, 1: 506–7.

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Wiping out the Stain  435 36 Regina Leader-Post, 24 April, 29 April 1936. 37 Regina Leader-Post, 23 April, 24 April, 28 April, 29 April 1936. 38 Bennett papers, 539247–9, E.C. Leslie to R.B. Bennett, 27 April 1936; RRIC, pt. 2, Report, 93, 111, 115–16, 119, 125, 128, 140, 149, 153, 157, 233, 251, 276, 288, 292, 304, 311. The riot commission report was transmitted to the provincial government on 23 April 1936. 39 Bennett papers, 539254, R.B. Bennett to F.W. Turnbull, 5 June 1936; Regina Leader-Post, 20 May 1936; Regina Daily Star, 16 May 1936; Saskatchewan Journals, 2 March 1937, 206. 40 SAB, J.G. King papers, f.5, J.G. King, “Liberty Draw,” 25 April 1936; f.16, “Has Justice Been Served” pamphlet, n.d. The pamphlet stated that the riot resulted in three deaths. 41 Regina Leader-Post, 15 June, 16 June, 17 June 1936. For an example of the appeal statements for the convicted trekkers, see SAB, Court of Appeal Dockets, Sidney Stevens notice of appeal, 12 May 1936. All seven appeal statements were virtually the same. On 24 July 1936 the Department of Immigration and Colonization refused a request from Makaroff to suspend Forsyth’s deportation order. King papers, f.20, W.J. Bratt to P. Makaroff, 24 July 1936. 42 King papers, f.7, J.G. King to M.J. Coldwell, 17 June 1936; f.20, M.J. Coldwell to A. Evans, 20 Feb. 1936; J.S. Woodsworth to A. Brounstein, 4 June 1936; J.G. King to T.C. Douglas, 8 May 1936, T.C. Douglas to J.G. King 18 May 1936; Debates, 6 May 1936, 2554–5; Regina Leader-Post, 17 June 1936. 43 Debates, 19 June 1936, 2990–1; 20 June 1936, 4004–6. 44 Debates, 15 Feb. 1935, 858; King papers, f.20, J.G. King and P. G. Makaroff to W.L. Mackenzie King and Ernest Lapointe, 20 June 1936; RG146, f.98-A-00230, J.H. MacBrien to L.P. Picard, 17 June 1936. 45 LAC, Manuscript Division, W.L.M. King papers, King diaries, 2 July, 3 July, 5 July 1935; vol. 205, W.L.M. King to T.C. Davis, 26 July 1935. 46 Debates, 22 June 1936, 4059–64, 4078–9. 47 Ibid., 4082; Stone, “The Regina Riot: 1935,” 115–16.

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APPENDICES Archival Research and Supporting Documents

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Appendix A Archival Sources and User Challenges at Library and Archives Canada JUDI CUMMING*

Library and Archives Canada (LAC) houses both public and private archival holdings relating to the themes in Canadian State Trials, Volume IV (CST4). Private archives include the records of prime ministers and other notable individuals and organizations. Although extensive public (government) records provide source material for this volume, there is unprocessed material in backlog including, for example, 5,200 boxes of Justice records1 and “approximately 24,000 boxes of military records, some of them on microfilm and some dating back as far as 1890.”2 LAC is aware of and intends to “eliminate the Government of Canada’s documentary heritage backlog by December 2015.”3 Together, public and private archival records in one institution provide an unparalleled array of primary source material for CST4. To provide information about the content of archival holdings, LAC created “Archives Search,” a database of general descriptions of all archival fonds4 together with detailed descriptions known as finding aids which describe files or documents. A listing of relevant public and private fonds located in Archives Search will be provided here. In addition, some of the research advantages and challenges of the online environment will be examined. It should be noted, however, that court records of trials are not normally found in LAC although documentation on criminal trials related to the themes of CST4 will be highlighted. Archival sources that are pertinent to CST4 include those that document the Winnipeg General Strike, a major event that prompted a

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response by government to a perceived security threat. In a 1990 study of strike sources, Ken Kehler and Alvin Esau described some government holdings at LAC.5 The authors also referred to access restrictions that may confront the researcher, particularly for the records of the Department of Justice. They observed that, “although existing studies examine the role of the Dominion government in the maintenance of law and order … the role of the Department of Justice has gone largely untouched”6 because Justice records were closed to research prior to the advent of legislation in 1983 relating to freedom of information.7 Describing part of a Justice accession, an RCMP file, and other material,8 the authors noted that their listing of archival records pertaining to the strike was not complete. This is especially so since relevant private fonds and some government sources acquired by LAC prior to this study were not examined by them. advantages and challenges to access and retrieve archival holdings Access to public records is governed by the Access to Information Act and the Privacy Act (ATIP) that came into force on 1 July 1983 “to provide a means of access to the operational records of government.”9 The act provides mandatory exemptions, for example, against the release of documents containing information of a confidential nature received from another government, information obtained by the RCMP while operating as a provincial or municipal police force, and personal, third-party, and other information that is protected by federal legislation.10 Discretionary exemptions include “information whose release could harm federal-provincial relations … the conduct of international affairs, the defence of Canada or [its] allies, or the prevention, or suppression of subversive activities.”11 In addition, some public records are excluded from ATIP, such as cabinet documents, e.g., “submissions to Cabinet, decisions of Cabinet … for [a period of] twenty years after any document’s creation (after which time it may be examined under ATIP).”12 Also excluded from the legislation are private papers “placed in the National Archives by bodies not identified … as government ‘institutions’ … [and] documents and papers donated … by an individual, such as a retired minister of the Crown.”13 LAC can undertake short- and long-term ATIP reviews for researchers. “Short-term ATIP reviews of archival documents involving less than 15 files and/or 3,000 pages will be done within 30 days of receipt of the request on a first-received, first-served basis.”14 After such a review, if

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LAC is unable to open restricted files as requested, a formal ATIP request may be prepared by the researcher as per instructions on the website.15 LAC also conducts block reviews, “a risk-based process focussed on the sensitivity, age and subject matter of the records to open large blocks of files as quickly as possible.”16 Despite the usage of block reviews, there are still many historically important public records that have been withheld under ATIP. One such case is the security file of the late Tommy Douglas consisting of 1,142 pages, amassed by the former RCMP security service.17 Approximately 700 pages have been opened for research pursuant to ATIP requests.18 The released material “shows [that] the Mounties shadowed Douglas from the late 1930s to shortly before his death in 1986 … [and that they] were … interested in Douglas’s links to the peace movement and the Communist Party.”19 Jim Bronskill petitioned the Federal Court20 to have the Douglas file more fully opened than had been done through a block review at LAC pursuant to certain ATIP requests. “Federal Court Justice Simon Noel ruled that Library and Archives Canada failed to take into account its mandate to make historically significant documents accessible to Canadians,”21 and he prepared a list of documents as an annex to his judgment “listing the page numbers which contained information he believed should be further disclosed.”22 However, the federal government appealed Noel’s decision to the Federal Court of Appeal, which then struck down Noel’s decision and annex.23 The Canadian Security Intelligence Service (CSIS) told the court that the remaining documentation must continue to be withheld because its “uncensored release would … jeopardiz[e] the lives of confidential informants and compromis[e] the agency’s ability to conduct secret surveillance.”24 The Supreme Court has declined to hear an appeal regarding the file.25 Access to private records of an individual or organization is decided upon through agreements between the donor of archival material and its recipient, LAC. A restricted access file (RAF) is linked to the fonds description on LAC’s website to provide researchers with information on access conditions for all volumes before a visit to the institution. Access conditions include restrictions or closure for portions of a private fonds that contain information about living persons or that are subject to solicitor-client privilege. Such restrictions conform with LAC’s access policy. Access conditions are codified for an entire archival unit and/or linked to

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specific containers of documents or microfilm reels, including, for example, 90: Open; 32: restricted by law (public records); 18: restricted (private records); 10: closed (private records); 96: restrictions vary; and 90NA: open but unavailable for consultation. The 90NA is usually applied to archival records that have been copied in another format. Archives Search is a database integrating the description of all media found in hierarchically structured archival fonds including a general overview of the fonds along with linked series, subseries, and item or file descriptions that are attached to series or subseries. See: http://www.bac-lac. gc.ca/eng/Pages/home.aspx and “Discover the Collection” to locate Archives Search and specialized databases. Searching by source in Archives Search. Archives Search labels each fonds as either “government” (public) or “private,” enabling researchers to search by public or private source as an alternative to searching the entire database. However, there are occasional anomalies in what constitutes a government fonds or a private one. Infrequently, public records have been alienated from their public origins and absorbed into a private fonds, e.g., records from the Department of External Affairs in the Norman Robertson fonds. Prime ministerial records document public functions and activities as well as private life, but they are regarded as private rather than public fonds because the accumulated papers and media material retained by the prime minister are subsequently donated either by the prime minister or other private individuals to LAC. Moreover, ministerial records are “distinguished … from the records of departments over which ministers preside.”26 For example, the private fonds of A.G.L. McNaughton includes ministerial files of the minister of national defence. Finally, copied records of foreign governments, e.g., the United Kingdom and France, and nonfederal governments, e.g., Saskatchewan royal commission records, are identified as private. Researchers need to be aware of anomalies in the concept of public and private fonds when searching by source. Archival reference numbers and former archival reference numbers are used for the citation of sources and to retrieve containers. Textual public and private records used to be catalogued either by Record Group (RG) or by Manuscript Group (MG). An RG was assigned to each federal body with a notable exception, RG33, which was reserved for all federal royal commissions. The MG system classified the more diverse private archival fonds by subject matter, chronology, provenance, etc. Together, the RGs

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and MGs provided intellectual control of holdings and permitted the orderly publication of their description in general inventories in an era that preceded the automation of the description of archives.27 The RGs and MGs are now known as “Former archival reference numbers” (FAR) in Archives Search since that classification system of call numbers was replaced by the randomly generated “Archival Reference Number” (ARC) in 1999. Textual fonds acquired before the introduction of the ARC now have either an RG or an MG call number and an ARC number. Although researchers may retrieve a container of a public fonds by the root of the ARC number and a volume number, for example, R196, vol. 1035,28 the MG call number must be used to retrieve containers of older private textual fonds and accruals to them up to 2007.29 Finding Aids provide descriptions of files or documents (items) in a fonds. Many of them were created before the era of automation and are being converted to a digital format to allow them to be linked hierarchically to either a fonds or series. Newer finding aids are created online and are directly linked hierarchically to a series or subseries description. government fonds, 1914–39, for

canadian state trials ,

volume iv

The abbreviated descriptions below do not replace full descriptions in Archives Search that include all volume numbers, microfilm reel numbers, coded access conditions, administrative histories, and the hierarchical structure of the entire fonds. Former Archival Reference numbers (RGs) and their corresponding Archival Reference numbers (ARCs) are provided below, e.g., RG6-E and R174-45-6-E. Microfilmed government records may, in many cases, gradually become available in digitized form on a separate website.30 The Government of Canada Files database, an ArchiviaNet reference tool, provides file description of many government bodies and complements searches in the Archives Search database. Government textual finding aids that might only be available at LAC in hard copy contain the RG number, e.g., Record Group 6, Finding aid 6–13. Some finding aids are restricted. Department of the Secretary of State of Canada fonds [1848–1996]. Established at Confederation, this department was originally the official channel of communication between the Dominion of Canada and the government of Great Britain. The following series and subseries are of interest:

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Chief Press Censor, 1915–1920, 33.2 metres of textual records. RG6-E, R174-45-6-E. Arranged numerically, this series of subject files relates to censorship restrictions in Canada, subversive elements, public opinion, and war propaganda. Examples of file titles include: Alien press in Canada, 1916–1918; German espionage activity, 1916; pro-German writings, 1915–1919; etc. File description can be sorted online. Finding aid 6–13 lists microfilm reel and volume numbers, titles, and outside dates. Microfilmed copies of this series have been digitized and are available for consultation on the Heritage Canadiana website. Microfilm and digitized records are code 90: Open. Textual records are code 32: restricted by law. Wartime records, 1914–1951, 6.1 metres of textual records. RG6-H, R17458-4-E, vols. 751–811. As the secretary of state was already responsible for citizenship and naturalization and therefore aliens in Canada, he fulfilled several functions relating to the First and Second World Wars such as the role of custodian of enemy property and the proper treatment of prisoners of war by the terms of the Geneva Convention. There are four subseries for this series including the following two subseries: First World War records, 1914–1920, 2.2 metres of textual records. RG6H-3, R174-61-4-E, vols. 791–801. This subseries includes orders-in-council, despatches, and correspondence on enemy aliens and trading with the enemy. Code 90: Open. Custodian of Enemy Property and Internment Operations records, 1914– 1951, 3 metres of textual records. RG6-H-1, R174-59-6-E, vols. 751–80 and 819. Consisting of certificates of release from internment, this subseries includes links to digitized certificates. File descriptions can be sorted online. Finding aid 6–21. Code 90: Open. See also: Office of the Custodian of Enemy Property fonds, 1891–1977, RG117. Department of Justice fonds, 1796–2001. This department has had responsibilities pertaining to law enforcement and reform, e.g., the Office of Solicitor General, the Criminal Code, the North West Mounted Police, and the Dominion Police. It includes series or subseries of interest. Numbered central registry files, 1845–1959, 205.4 m of textual records, 179 microfilm reels. RG13-A-2, etc.; R188-39-8-E. This subseries of legal opinions and the drafting and interpreting of legislation includes source material on interned aliens, an Aliens Restrictions Bill, conscientious objectors,

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a report on trials of military defaulters in the province of Quebec, seditious remarks, the Communist Party, etc.31 File description can be sorted online. Finding aid 13–2 is a box list. Textual records on microfilm and architectural, cartographic, and photographic material are code 90: Open. Legal opinions and material of precedential value, 1863–1963, 72.6 metres of textual records. RG13, R188-43-X-E, vols. 2368–96. This central registry subseries includes files on applications to the Supreme Court of Canada for writs of habeas corpus32 and the Regina Riot Inquiry Commission on Relief Camps, etc.33 File descriptions of the subseries can be sorted online. Finding aid 13–37, pts. 1–7, is an annotated, chronological, computergenerated list of files consisting of subjects, dates, and volume numbers. Microfilm reels T-10190 to T-10368. Code 90: Open. See also: Royal Commission Inquiring into the Regina Riot of 1 July 1935 fonds. World War I despatches from the Colonial Office, 1914–1920, 0.6 metres of textual records. RG13-F-8, R188-66-0-E, vols. 1368–70. This series consists of British despatches referred to the minister of justice on wartime concerns, e.g., prisoners of war, enemy aliens, and censorship. Finding aid 13–28 is of limited use. Code 90: Open. Civil and tax litigation case files, 1863–1934. This subseries of the Legal Branch series includes the accession: Civil Litigation Registry Files and Property Registry Files, RG13-A-7, Accession 1987-88/103. File A-1688 in box 36, pockets 1 and 2, consists of correspondence, telegrams, affidavits, resolutions etc., regarding the Winnipeg General Strike. Correspondents include Justice Minister C.J. Doherty, Arthur Meighen, [A.J.] Andrews,34 and others, and relates to the prosecution of strikers, the protection of workers, and the changing situation in Winnipeg.35 There is also correspondence from the Womens’ Labour League, the Dominion Labour Party, the Winnipeg TLC, the Metal Trades Council, the Vancouver TLC, etc.36 Finding aid 13–32 is of limited use. File A-1688 is code 90: Open.37 Dominion Police fonds, 1872–1919, 2.9 metres of textual records. Established in 1868, the force worked with other law-enforcement agencies during the First World War to supervise and regulate “enemy aliens” and to gather intelligence information regarding possible acts of sabotage. Dominion Police records regarding security services were moved to the Royal Canadian Mounted Police (RCMP) and, after 1984, to the Canadian Security and Intelligence Service (CSIS).

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Royal Canadian Mounted Police fonds, 1868–1999. The North West Mounted Police and later the Royal North West Mounted Police (1904) became the RCMP in 1919 and absorbed the Dominion Police Service and its functions. As a result of the MacDonald Commission, many security and intelligence functions were assumed by CSIS. RCMP records on matters of security and intelligence dated prior to 1984 were placed in the CSIS fonds. Criminal Investigation Branch series, 1902–2006, 72.1 metres of textual records and media material. RG18-F-2, R196-152-8-E, various volumes. This series relates to criminal activity monitored by the RCMP but also includes files related to security threats such as the Winnipeg General Strike, enemy aliens, subversion, the Ku Klux Klan, labour unrest, Bolshevism, etc. File descriptions of the series can be sorted online. Finding aids 18–12 and 18–23 are computer-generated paper file lists for vols. 2165–75 and 2447, and for vols. 3222–313a, 3547, and 5949 respectively. Code 90: Open. Security records series, 1919–1964, 3.5 metres of textual records. RG18F-3, R196-153-X-E, vols. 3314–17 and 3516–33. Most security service files were transferred to CSIS but this series remains with the RCMP in three subseries as follows: Subject files, 1919–1940, 0.2 metres of textual records. RG18-F-3, R196-1553-E. The file “Winnipeg General Strike and Riot,” vol. 3314, File HV-1, Pts. 1 to 10, was selectively described in Kehler and Esau’s study of the Winnipeg General Strike including daily summaries of all court proceedings.38 Textual records, code 90: Open. Printed works collection, 1920–1964, mainly 1930s and 1940s, 1.8 metres of textual records. RG18-F-3, R196-156-5-E, vols. 3516–33. This subseries consists mostly of seized newspapers, magazines, bulletins, pamphlets, and tracts published by ethnic, religious, and labour organizations. Finding aid 18–24 is a computer-generated list. Textual records, code 90: Open. Registry files, 1940–1946, a subseries of the Security files, Second World War. RCMP Security Bulletins on subversive activity were sent to prime ministers and cabinet ministers. They were edited by Gregory S. Kealey and Reg Whitaker and published by the Committee on Canadian Labour His-

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tory. The first volume, entitled R.C.M.P. Security Bulletins: The Early Years, 1919–1929,39 deals with the political instability that followed the First World War, strikes and incitement to strike, sabotage, revolutionary organizations and agitators, Communism and the Communist Party of Canada and other political groups, Depression unemployment, and immigrant groups such as Finns, Jews, Russians, and Ukrainians. The volumes may be found in some university libraries and online at the University of New Brunswick: http://journals.hil.unb.ca/index.php/RCMP. See also private fonds: Norman A. Robertson for RCMP bulletins. Canadian Security Intelligence Service fonds, 1919–93. In 1984 many of the security and intelligence functions carried out by the RCMP were assumed by CSIS, which reports to government on threats to the security of Canada: espionage and sabotage, foreign-influenced activity, political violence, terrorism, and subversion. Registry records, 1919–1993, 1355.9 metres of textual records and microfiche. RG146-A, R929-2-8-E, vols. 1–6041. Files of the former Security Service of the RCMP relate to individuals and organizations in the labour movement and include material on protests, strikes, and demonstrations. Code 32: restricted by law. Finding aid 146–3 (paper) is a list of photocopied, public-use files opened through formal Access to Information requests for CSIS files. A public-use file is often not as complete as the original archival CSIS file. Examples of some of the files described in this finding aid include: prosecution of strike leaders in the Winnipeg General Strike, 1919–1921; Workers’ Unity League, 1931–1936; the use of military and civilian forces during the Winnipeg General Strike, 1919; personal-history files of Bolshevists and agitators in the Winnipeg Strike, 1919–1925; left-wing groups, 1925–1940; Regina Riot of 1935; unemployment demonstrations, 1930s; League for Democratic Rights, 1934–1956; and Canadians in the Spanish Civil War, 1936–1939. Finding aid 146–3, part 2 (paper) is a ledger for Access to Information Released Documents. Examples: Workers Party of Canada, International Workers of the World, One Big Union, 1919–1929; J.S. Woodsworth, 1920– 1930, etc. Finding aid 146-4 (paper) is a restricted finding aid for which severed

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copies may be available. It lists published newspapers and articles, places of publication, dates, and volume numbers. Files may include reviews and translations. Finding aid 146–8 (paper) is an alphabetical listing of titles of registry files with outside dates but not volume or file numbers. See the full general description of the Registry records online for more information about these and other CSIS finding aids. Department of Militia and Defence fonds, 1847–1960, predominantly 1867–1922. The possibility of invasion by victorious Union armies from the American Civil War and the Fenian raids were contributing factors in the need for better defence. The first Militia Act for the Dominion of Canada created the Department of Militia and Defence in 1868. It includes the following series: Canadian Expeditionary Force in Siberia, 1918–1919, 4.4 metres of textual records. RG9-III-A-3, R180-130-7-E, vols. 358 and 378. This series consists of numbered and unnumbered subject files from GHQ, Base Headquarters and Record Office, Force Headquarters at Vladivostock, etc., and includes intelligence summaries (vol. 358), records of courts martial and courts of inquiry (vol. 378). Finding aid 9–30 is a file list. Code 90: Open. Department of National Defence fonds. The Department was created in 1923 under the National Defence Act at which time the Department of Militia and Defence, the Naval Service, and the Air Board were integrated into it. Judge Advocate General, 1909–1996, 1.2 metres of textual records. RG24B-9, R112-380-5-E, vols. 6642–7. This series contains legal opinions and rulings of the Judge Advocate General for the Army, the Royal Canadian Navy, and the Royal Canadian Air Force. Finding aid 24–166 references files on aid to civil power, the Quebec riots of 1918, the Winnipeg General Strike, unlawful assemblies, prisoners of war, the War Measures Act, powers of the governor-in-council, habeas corpus, and Defence of Canada Order of 1917. Vols. 6642–6 are code 90: open; vol. 6647, code 32: restricted by law. Military district records, 1907–1938, 1.5 metres of textual records. RG24C-8, R112-137-7-E, various volumes. This series consists of records which

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represent filing systems from the eleven districts in existence from 1907 until the Second World War. The files include material on internment camps in Canada, prisoners of war and their internment,40 orders-incouncil regarding habeas corpus proceedings in the Supreme Court of Alberta, July 1918;41 intelligence literature and reports on the movement of foreigners, the enlistment of French Canadians under the Military Service Act, and aliens and alien labour. Also included are files concerning permanent force troops in aid of civil power regarding the Cape Breton strike, 1922–6;42 anti-conscription activities and disturbances, the Quebec Riot of 1918, troops and the arrest of rioters,43 the Military Service Act and disturbances at Vaudreuil and Quebec, seditious literature, revolutionary propaganda, conscientious objectors, etc. File descriptions of the series can be sorted online. Also finding aid 24–377 (electronic). Some volumes are code 32; some are 90: Open. Cross-references to some related series and files of the Department of National Defence Series: Director of Naval Intelligence, 1915–1946, RG24-D-4. Series: Staff Officer, Intelligence West Coast, 1912–1953, RG24-D-11-4. File no. 363-46-1, General Strike, Winnipeg, Manitoba – 1919, RG24-C-1, reel C5052. Department of External Affairs fonds, 1803–1995. Formed in 1909, the department’s responsibilities were expanded during the First and Second World Wars. Its name was later changed to Foreign Affairs and International Trade Canada (DFAIT).44 1939 Central Registry, 1909–1940, 190.22 metres of textual records. RG25A-3-a, R219-100-6-E. This series is the main departmental registry system. Its file numbers are arranged consecutively within each year, but not according to subject matter, and the records reflect most aspects of the department’s operations from its beginnings until after the Second World War. Included are files on the treatment of enemy subjects as prisoners of war, the registration and internment of aliens of enemy nationality, press censorship, trading with the enemy, Defence of the Realm and alien restrictions, the repatriation of prisoners of war, and the treatment of enemy aliens after the First World War. Over 10,000 file descriptions of this series can be sorted online. Finding aid 25–4 lists files by volume and year. Microfilm of this series has been digitized and is available on the Heritage Canadiana website. Microfilm and digitized records, code 90: Open.

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Department of Labour fonds, 1882–1997. Established in 1900 with specific duties related to statistical data and the appointment of arbitrators and conciliators, the department’s duties were expanded during the century. For example, the Unemployment Relief Commission initially operated under the minister of labour in 1930. Near the end of the century, Labour’s duties were transferred to Human Resources Development. Unemployment Relief Commission, 1918–1953, 50.6 metres of textual records, 1 photo. RG27-H-1, R224-92-2-E, various volumes. The commission administered unemployment-relief acts passed by Parliament during the Great Depression. This series of central registry files relates to relief measures undertaken by the federal government ca. 1930 to 1942. Medical records of individuals injured during the Regina Riot of 1935, information on the transient problem, and unrest in the camps are included. Other files deal with organizations, e.g., the Workers’ Unity League. File descriptions of this series can be sorted online. Finding aid 27–29 lists files in vols. 38, 52–4, and 613–14 and includes a computer-generated list of vols. 2020– 2271. Code 90: Open. See also: R.B. Bennett fonds and the Andrew G.L. McNaughton collection. Winnipeg General Strike scrapbooks is a subseries of the Press Clipping Unit series, 1919–1920, 0.6 metres of textual records. RG27-G-1, R224-739-E, vols. 55–61. Twenty-four scrapbooks of newspaper clippings were assembled by the Clipping Bureau on the strike and sedition trials as follows: vol. 55, Montreal Gazette and Toronto Star; vols. 56–8, editorials by Maritime, Ontario, and Quebec newspapers as well as Winnipeg, Lakehead, and New York newspapers and the Christian Science Monitor. Vols. 58–61 relate to the sedition trials in Winnipeg, 1919–20. Microfilm reels C-4246 to C-4248, code 90: Open. The microfilmed scrapbooks have been digitized and are available on the Heritage Canadiana website. See also various private fonds on Winnipeg General Strike, e.g., J.S. Woodsworth, etc. Commission to inquire into the state of industrial relations in Canada, RG27, vol. 3353, files 21–26.45 These records consist of transcripts of hearings held in Victoria and Vancouver in April 1919 and are briefly described in finding aid 27–37 but not in Archives Search. Access code is assumed to be 90: Open. See also: Commission to Inquire into and Report upon Industrial Relations in Canada fonds.

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Strikes and lockout files, a subseries of the Economics and Research Branch series, contains a file titled “Winnipeg General Strike – Winnipeg, Manitoba,” 1919–51. RG27-D-2, R224-76-4-E, vol. 2272, file no. 19 (184); account of the strike, vol. 2342, 1916–20. Material is code 90: Open. Commission to Inquire into and Report upon Industrial Relations in Canada fonds, [1919], 4 microfilm reels, RG33-95, R1176-0-0-E. Following the First World War, Canada was faced with a period of severe labour unrest and this commission sought to discover whether or not the unrest resulted from legitimate grievances or radical agitation. Hearings of the commission were held in twenty-eight towns and cities in Canada from 26 April to 13 June 1919. Subsequently, the commission recommended means for a permanent improvement in relations between employers and employees. Finding aid 33–95 is a handwritten file list. Microfilm shelf lists identify reels M-1980 to M-1982, vols. 1–4, but not reel M-6425. Microfilm is code 90: Open. Office of the Custodian of Enemy Property fonds, 1891–1977, 324.42 metres of textual records; 182 microfilm reels, RG117, R1213-0-9-E. British statutes of 1914 and 1915 forbidding payments to persons and organizations in enemy countries were confirmed in Canada through the passage of the War Measures Act of 1914 and an order-in-council.46 In 1916 Canada’s Consolidated Orders Respecting Trading with the Enemy “further delineated the regulations applicable in Canada.”47 The Office of the Custodian was established in 1920.48 Most of the extant files dealing with seizure and liquidation of enemy property during the First World War are of a financial nature and constitute only 13.2 metres of records out of the total quantity produced by the custodian during the two world wars. Therefore, “the completeness of the custodian’s records is doubtful.”49 The series Clearing Office, 1920–1939, RG117-B-1 or R1213-18-6-E, vols. 275–6, has file descriptions. Code 90: open. Finding aid 117–3 is a typed file list. private fonds, 1914–39, relating to

canadian state trials ,

volume iv

The abbreviated descriptions below do not replace the full descriptions found in Archives Search which include all volume and microfilm reel numbers, biographical sketches of persons or administrative histories of organizations, access conditions, and an outline of the hierarchical

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structure of the fonds. All textual material identified below must be retrieved using the MG call number.50 Media material, e.g., photographs, requires the ARC number, also called the R number, for retrieval. Original textual records are withdrawn from circulation when they have been microfilmed, digitized, or copied in another format. Microfilmed fonds or collections are gradually being digitized and made available on the Heritage Canadiana website. Specialized databases include the Prime Ministers’ fonds database in ArchiviaNet which may be searched by subject, correspondent, or keyword to locate specific documents or files in many prime ministerial papers including those mentioned here. canadian prime ministers and other public figures Sir Robert Laird Borden fonds, 1784–1960, 41.419 metres of textual records, 776 photographs and other media material. MG26-H text, R61130-X-E media. The Borden ministry, 1911–7, was dominated by the naval issue and the First World War. The conscription issue led to the formation in October 1917 of the Union Government, which was sustained by a large majority in the federal election later that year. Some of the scanned Borden finding aids have been linked to the description of the fonds online and some of them are available on microfilm. Controlled vocabulary was used to create subject headings and the following are examples of subjects in the Prime Ministers’ fonds database: WWI – Subversive activities, Law Enforcement, WWI – Unlawful Associations, WWI – Prohibited Languages, Aliens, WWI – Enemy Propaganda, Quebec Riots, WWI – Conscientious objectors, WWI – Internment Camps, Winnipeg General Strike, etc. The original Borden papers were microfilmed and later digitized and are available online on the Heritage Canadiana website. Code 90: Open. Arthur Meighen fonds, 1878–1974, 27.6 metres of textual records. MG26-I. Meighen became prime minister upon Borden’s retirement in 1920 but his governments were short-lived and there are gaps in the fonds. A scanned finding aid in the form of a file list by series is linked to the fonds description. The Prime Ministers’ fonds database describes these records at the document level, e.g., Winnipeg General Strike, Riots, WWI – Aliens, Labour unrest, etc. The microfilmed, digitized Meighen papers are available on the Heritage Canadiana website. Code 90: Open. R.B. Bennett fonds, 1878–1947, textual records on microfilm only, 597

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reels. MG26-K. Bennett was prime minister from 1930 to 1935 and was also responsible for Finance, 1930–2, and External Affairs, 1930–5. The five-part finding aid in hard copy is described in Archives Search but not linked to the fonds description. Pts. 1–4 are, however, available on microfilm. The Prime Ministers’ fonds database provides file descriptions rather than descriptions of each document, with such topics as: Relief camps, Communists, RCMP, Regina riot, Padlock law, On to Ottawa Trek, etc. The microfilmed, digitized Bennett papers are available on the Heritage Canadiana website. Code 90: Open. William Lyon Mackenzie King, 1874–1950, 315.89 metres of textual records; 25,455 photographs and other media material. MG26-J text, R103830-6-E media. King was prime minister from 1921 until the Liberal Party’s defeat in 1930 except for three months in 1926. Returning to office in 1935, he retired as prime minister in November 1948. His fonds documents many aspects of the first half of the twentieth century. Some of the scanned finding aids for textual records have been linked online to the appropriate series description. Documents have also been described online by series. Media finding aids and online description are available for photographs, sound recordings, moving images, medallic material, and art. The Prime Ministers’ database describes the King papers at the document level with many references to state security, espionage, sedition, the Winnipeg General Strike, labour unrest, the Communist Party, the Regina riot, aliens, sedition, Doukhobors, the Padlock Act, etc. The microfilmed, digitized King papers are available on the Heritage Canadiana website, by series. Access code: 96, restrictions vary. Norman A. Robertson fonds, 1915–1981, 3.3 metres of textual records, 2 photographs. MG30-E163 text, R2481-0-X-E media. Robertson joined the Department of External Affairs in 1929 and was appointed under-secretary of state for external affairs in 1941. His records include departmental records, vols. 4–14 and 19, with material on Communist, Nazi and fascist organizations and propaganda, 1933–6, in vol. 12. Records of the InterDepartmental Committee on Internment Cases, 1939–41, relate to enemy aliens, press censorship, subversive activity, Ukrainian groups, and Defence of Canada regulations, vols. 12–14 and 19. There is RCMP correspondence and Weekly Intelligence Summaries, nos. 5 to 9, from 20 November to 18 December 1939. Files in vols. 12–14 that contain sensitive personal information were removed and placed in restricted vol. 19. Copies of the sensitive files minus the personal information have been restored to vols.

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12–14 for the use of researchers. The scanned finding aid is linked to the fonds description. Relevant material, code 90: Open. Andrew G.L. McNaughton collection, 1764–1966, 48.89 metres of textual records, 1,603 photographs, film reels, audio reels. MG30-E133 text, R2689-0-6-E media. An officer in the First World War, McNaughton joined the regular army in 1920, becoming chief of the general staff in 1929. In 1932 he presented a proposal to the prime minister for the creation of relief camps to house homeless and unemployed men. The McNaughton collection contains nearly 500 files on the relief camps, its legislative program, and a final report on the relief scheme administered by the Department of National Defence.51 Some files relate to disturbances and arrests.52 The scanned finding aid describes these files in detail and is linked to the fonds description. The unemployment relief files, vols. 17–99, are code 90: Open. cross-references to fonds of other public figures Sir William Thomas White fonds, 1911–1937, 2.11 metres of textual records, 3 medals, MG 27-IID18, R4279-0-1-E. White was minister of finance, 1911–19. The scanned finding aid has been linked to the fonds description and refers to the Winnipeg General Strike and First World War. Code 90: Open. Joseph Wesley Flavelle fonds, 1896–1938, 8.1 metres of textual records, 13 photographs, MG30-A16, R1449-0-5-E. Flavelle was chairman of the Imperial Munitions Board. The scanned finding aid has been linked to the fonds description and refers to munitions and alien labour, etc. Code 90: Open. Albert Edward Kemp fonds, 1856–1942, 21.5 metres of textual records, 103 photographs, 3 maps, MG27-IID9, R4276-0-X-E. Kemp was minister of militia and defence, 1916–17, and minister of overseas forces of Canada in the United Kingdom, 1917–20. The scanned finding aid has been linked to the fonds description and includes references to conscription, censorship, disturbances, 1919; prisoners of war, propaganda among soldiers, etc.53 Code 90: Open. Loring Cheney Christie fonds, 1900–1972, 2.91 metres of textual records, MG 30-E44. Lawyer and diplomat, Christie was Borden’s chief expert on

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international problems during the First World War. The scanned finding aid has been linked to the fonds description and refers to files on Canadian foreign policy including the treatment of alien enemies and aliens, a lengthy memorandum on “The Naturalization Act” of 12 June 1914, and suggested legislation authorizing the naturalization of aliens who were honourably discharged from the Canadian Expeditionary Force.54 The Christie papers on microfilm have been digitized and are available on the Heritage Canadiana website. Microfilm and digitized records are code 90: Open. british classes of records on microfilm Colonial Office. CO 537. Supplementary, Original Correspondence, 1832– 1922, MG11-CO537, vols. 22–1172, microfilm. This class includes a few documents relating to naval intelligence in Canada, 1914; a naval intelligence organization, the application of the Defence of the Realm Act, and “propaganda peace policy.” The finding aid lists all microfilmed volumes copied. An online finding aid can be sorted. Code 90: Open. Colonial Office. CO 616. Dominions (War of 1914–1918), Original Correspondence, MG11-CO616, microfilm reels B-3960 to B-4018. This class is the wartime version of CO 42 and contains First World War correspondence of the dominions and other colonial governments, the Colonial Office, and other British government departments. CO 616 relates primarily to economic and trade problems and the allocation of resources for the war effort. Canada’s wartime problems included censorship and a policy on enemy aliens residing in Canada. The online finding aid is limited but CO 616 has indexes to individual volumes. Code 90: Open. CO 752. Dominions (War of 1914–1918) Register of Correspondence and CO 753. Dominions (War of 1914–1918) Register of Out-Letters, reels B-4019 to B-4023 and B-4024 to B-4026 act as finding aids for CO 616. Code 90: Open. private fonds relating to the winnipeg general strike David Jay Bercuson fonds, 1969, 2 audio reels, 5.5 cm of textual records. R719-0-8-E media, MG31-B7 text. Professor Bercuson’s publications include Confrontation at Winnipeg.55 His fonds consists of interviews recorded in 1969 with former labour leaders and members of the special

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police forces concerning the Winnipeg General Strike. There is a finding aid for the sound recordings. Textual records: vol. 1, code 18: restricted; vol. 2, code 90: Open; sound recordings, code 90: Open. Michael Dupuis, 1971–1972, 1.5 cm of textual records, 2 audio reels. MG31B10 text, R6094-0-3-E media. Thesis research on journalists covering the Winnipeg General Strike. Code 90: Open. Charles F. Gray fonds, 1898–1947, 10 cm of textual records, 377 photographs, 2 film reels. MG30-A83 text, R1498-0-9-E media. Gray was Winnipeg’s mayor in 1919 during the General Strike. His fonds contains exhibit items entered as evidence by the crown during the trials of the leaders of the Strike, correspondence of the Winnipeg Trades and Labour Council and the Strike Committee, and a film on the strike. There are finding aids for media material. Textual records and moving images are code 90: Open; photographs: code 96 – restrictions vary; copyright has expired on photographs more than fifty years old. Abraham Heaps fonds, 1913–1954, 15 cm of textual records and media material. MG27-IIIC22 text, R4749-0-2-E media. Heaps was a member of Parliament and a founder of the Co-operative Commonwealth Federation (CCF). Incarcerated as one of the leaders of the Winnipeg General Strike, he was later acquitted of sedition charges. His papers include notes on the Winnipeg General Strike, reel H-2271. The Heaps papers on microfilm have been digitized and are available on the Heritage Canadiana website. Code 90: Open. David Millar fonds, 1880–1973, 7,213 photographs, 119 audio reels, 41.4 cm of textual records. R5813-0-3-E media, MG31-B6 text. Dr Millar has created numerous projects on oral history and published works on Canadian labour history. His fonds consists of research material and interviews concerning western Canada and the Winnipeg General Strike; photographs of the strike, and material relating to the National Film Board’s production of a film on the strike. Finding aids exist for photographs and sound recordings. Photographs: code 95, study only, no copying; sound recordings: permission of copyright holder for copying; textual records: code 96, restrictions vary. Richard A. Rigg, 1918–1953, 1.8 cm of textual records. MG30-A45. Rigg was a Winnipeg alderman, a member of the Legislative Assembly, 1915–

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17, and secretary of the Winnipeg Trades and Labour Council, 1909–17. He held senior positions in the Department of Labour, 1919–40. His fonds relates to labour and strikes and includes a digitized five-page letter from Tom Murray, lawyer, on strike action. Code 90: Open. Harry Walsh fonds, 1918–1975, MG30-E255, vol. 2. Walsh was a lawyer who fought against capital punishment and was active in the Jewish community. His fonds includes copies of the Western Labor News, 1920, relating to E.J. McMurray (solicitor general) and the Winnipeg General Strike trials. Code 18: restricted.56 J.S. Woodsworth fonds, ca. 1868–1976, 3.67 metres of textual records, 299 photographs. MG27-IIIC7 text, R5904-0-1-E media. Woodsworth was a Methodist minister, a member of Parliament representing the Manitoba Independent Labour Party, and leader of the CCF. He was arrested in June 1919 and charged with seditious libel for editorials written during the Winnipeg General Strike. The papers consist of correspondence, subject files, diaries, notebooks, lectures, speeches, personal papers, scrapbooks, etc. The subject files contain some material on the Winnipeg General Strike, the Padlock Act, and a bill of indictment against Woodsworth for seditious libel against the RNWMP. Microfilm reels H-2272 to H-2277, vols. 5–10, code 90: Open. The personal papers series includes Woodsworth’s five-page account of his incarceration and are available on microfilm reels H-2278 and H-2280, vols. 15–17, code 90: Open. The scanned textual finding aid is linked to the fonds description. The microfilmed papers have been digitized and are available on the Heritage Canadiana website. Code 90: Open. Photographs are code 96, varying restrictions. other private fonds Communist Party of Canada (CPC), 1905–1982, 16.75 metres of textual records, 38 microfilm reels and media material. MG28-IV4 text, R31370-5-E media. An organized Communist Party of Canada (CPC) was repeatedly declared illegal by the government of Canada, first under the War Measures Act in 1918, then by the Bennett government in 1931 using section 98 of the Criminal Code, and again in 1940 under the Defence of Canada Regulations, by order-in-council (PC 2363) and the War Measures Act. The CPC remained an underground organization until the 1924

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convention when the Workers’ Party of Canada officially became the CPC. After it was outlawed in 1940, its name was changed to the Labor-Progressive Party – the name by which it was known until 1959. The CPC fonds contains files on the trial of Tim Buck, relief camps, trade unions, and the Winnipeg General Strike, as well as published material on a variety of issues related to CST4, including books and pamphlets on court proceedings and the work of the Winnipeg Labor Defence Committee and the Canadian Labor Defence League. The finding aid for vols. 1–81 is available only at LAC.57 Online, the finding aid for textual records starts at vol. 82. There are media finding aids also. Textual records and sound recordings, code 18: restricted; other media material, code 90: Open. Researchers must consult the microfilm reels for vols. 1–81. Some microfilmed material has been made available on the Heritage Canadiana site. Co-operative Commonwealth Federation and the New Democratic Party fonds, 1905-1983, 83.7 metres of textual records, 1,117 photographs and other media material. MG28-IV1 text, R3239-0-9-E media. The CCF was founded in 1932, uniting various farm, labour, and socialist groups. The CCF papers contain material on the Canadian Labour Defence League, 1933–36, vol. 363. The scanned finding aid is linked to the fonds and is accompanied by a detailed subject guide. Microfilmed material has been digitized and is available on the Heritage Canadiana website. Textual records: 96, varying restrictions; vol. 363, code 90: Open. Digitized microfilmed records are code 90: Open. Frank and Libbie Park fonds, 1866–1997, 8.125 metres of textual records. MG 31-K9 text, R4846-0-X-E media. The Parks were active in peace organizations and the Labor-Progressive Party/Communist Party of Canada. Their papers contain a series on civil liberties relating to the Regina Riot of 1935, the Padlock Act, and labour court cases. The scanned finding aid for textual records is linked to the fonds description. Textual records are code 18: restricted; photographs, code 90: Open. Royal Commission inquiring into the Regina Riot of 1 July 1935 fonds, 1935–1936, microfilm reels M-1186 to M-1187 and M-1956. MG9-K2 text. As noted in the chapter by Bill Waiser in this volume, the Saskatchewan Royal Commission was convened as a result of the riot during which leaders of the relief-camp strikers of the On-to-Ottawa Trek were arrested. Chaired by Chief Justice J.T. Brown, the commission reported its findings

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on 23 April 1936. The original records are located in the Saskatchewan Archives Board. The finding aid is found in the microfilm shelf list of the “M” reels as follows: reel M-1186 contains the report of the commission, exhibits, factums, and record of proceedings, vols. 1–13; reel M-1187 is a record of proceedings, vols. 14–38; reel M-1188 is a record of proceedings, vols. 39–53, and Regina Leader-Post and Regina Daily Star information. Reel M-1956 contains the coroner’s inquest into the death of a Regina police detective, Charles Miller, during the riot, on 11 July, 38 pages; preliminary hearings of Rex vs. a number of persons for disturbing the peace, assault of police officers and rioting. The reel also contains other court proceedings, a factum, cross-examinations, inquiry index of witnesses, and list of exhibits filed and exhibits, nos. 1–307. Code 90: Open. Francis Reginald Scott, 1832–1936, 22.75 metres of textual records, 2 microfilm reels and media material. MG30-D211 text, R5822-0-4-E media. Scott was a poet, lawyer, and university professor active in the CCF. The fonds consists of subject files, personal papers, printed material, etc. Textual records, vols. 1–79 were microfilmed and digitized. It includes files on the Canadian Labour Defence League, vols. 7–8, reel H-1219. Other material available only on microfilm are scrapbooks which contain reference to the trial of Tim Buck, 1931; Doukhobors, censorship, police, and sedition, reel M-3733. The finding aid was scanned and linked to the fonds description. Microfilmed, digitized material is available on the Heritage Canadiana website. Code 90: Open. Cross-references to other private archival fonds of possible interest Tim Buck collection, 1895–1973, MG32-G3 text, R5826-0-3-E media. Labour and the Communist Party. Finding aid online. Canadian Trotskyist Movement fonds, 1920–2005, MG28-IV11 text, R9194-0-2-E media. Workers Party of Canada, etc. Finding aids online. Communist International fonds, 1921–1943, MG10-K3 text. R3137-0-5-E media. Communist Party of Canada and the Workers Party. Finding aids online. Independent Labour Party of Manitoba. Centre Winnipeg Branch fonds, 1920–1923, MG28-IV6 text. 285 pages, photocopied. Minutes of the executive and general meetings, Dec. 1920 to Sept. 1923. J.E. Rea collection, 1969–1970, MG31-B11 text. 137 pages, photocopied. Transcripts of interviews dealing with Winnipeg politics from the 1920s to the 1940s.

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conclusion Despite budgetary cuts and personnel losses, Library and Archives Canada is developing innovative ways to provide reference services that include very rich online information about its holdings. Hierarchical linkage of item and file description to the various series, subseries, and sub-subseries of a fonds provides both general and detailed information about the contents of archival units in a single, hierarchically designed description. Moreover, media material that accompanies textual records and textual records that accompany media material are all described together, allowing researchers to view information about archival units in their entirety across all media. The institution is also enhancing accessibility to archival holdings – parts of a fonds or a whole fonds – by digitizing microfilmed copies of unrestricted, original records that are in the custody of LAC. As this program proceeds, more and more of LAC’s holdings can be made available on the Internet. However, a staggering amount of LAC’s holdings, both public and private, have been microfilmed and this process may take some time. And what about original records that have not been microfilmed? In the meantime, LAC has terminated its long-standing service, called variously the inter-library loan service or the inter-institutional loan service, of lending microfilmed holdings to clients through local cultural institutions. Microfilming of original archival holdings at LAC started in 1950 and was carried out with the purpose of making archival holdings widely available nationally and internationally. The trade-off was a somewhat reduced legibility from the original document to the black and white replication of it. With the current programme of digitizing microfilmed holdings, a second reduction in legibility and actual content may occur from first-generation original documents, to the second-generation microfilm, to a third-generation digital representation of originals on microfilm, particularly if the microfilming was poorly done.58 In cases where the third-generation representation of archival documents is insufficiently legible and possibly lacking some text or imagery, researchers may want to view the microfilm or original documents. Accessing government records that are restricted remains burdensome because of the exemptions and exceptions inherent in ATIP legislation. Some government records continue to be restricted even though they document historical events and persons in Canada’s distant past. ATIP has not been updated and was created before the digital era.

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N otes I wish to thank Daniel German and Paulette Dozois at LAC for their guidance regarding government archives.   1 “2014 Fall Report of the Auditor General,” ch. 7, LAC, www.oag-bvg.gc.ca/ internet/English/parl_oag_201411_e_39950.html.   2 Ibid., digital page 8 of 20.   3 Ibid., 10.   4 A fonds consists of the records, in any format, of a creator such as an organization, person, or family and provides the framework for arrangement and description hierarchically, e.g., general description, series, subseries, and file and item descriptions.   5 Ken Kehler and Alvin A.J. Esau, Famous Manitoba Trials: The Winnipeg General Strike Trials: Research Resource ([Winnipeg]: Legal Research Institute of University of Manitoba, ca. 1990).   6 Ibid., 12.   7 Ibid., 12–13.   8 Department of Justice fonds, RG13, Accession 1987–88/103, box 36, file A-1688, Pockets 1 and 2. There is also information on the contents of RCMP, RG18, vol. 3314, file HV-1.   9 Daniel German, “Access and Privacy Legislation and the National Archives, 1983–1993: A Decade of ATIP,” Archivaria, 39 (spring 1995): 197. 10 Ibid., 200–1. 11 Ibid., 201. 12 Ibid., 203. 13 Ibid. 14 “Legislative Restrictions: Records of the Government of Canada, Access to Information and Privacy,” http://www.collectionscanada.gc.ca/thepublic/005-6010-e.html. 15 Ibid. 16 Ibid. 17 Joan Bryden, “The Fight over Tommy Douglas Intelligence File Not About History: Feds,” http://www.globalnews.ca/fight+over+tommy+dougles+int elligence+file+not+about+history+feds/6442802670-stor. 18 Ibid. 19 Ibid. 20 Federal Court of Canada. Docket: T-1680-09, Citation: 2011 FC 983, Ottawa, Ontario, 11 Aug. 2011.

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462  ju d i c umming 21 Toronto Star, http://thestar.com/news/canada/2012/12/09-tommydouglas-intelligence-dossier-battle-goes-to-supreme-court. 22 Ibid. 23 Ibid. 24 Bryden, “The Fight over Tommy Douglas Intelligence File.” 25 The Supreme Court of Canada declines to review the case presented by Jim Bronskill. http://blogs.ottawacitizen.com/2013/03/29/1930s-spy-files-ontommy-douglas-to-remain-secret-to-protect-canadian-intelligence-and-spygathering-methods. 26 Richard J. Bazillion, “Access to Departmental Records, Cabinet Documents, and Ministerial Papers in Canada,” American Archivist, 43, no. 2 (1980): 151. 27 Examples of the RGs and MGs: RG18: RCMP; MG30: Manuscripts of the First Half of the Twentieth Century (Economic, Scientific, Social, Cultural, and Professional and Public Life). 28 Information on the Archival Reference Number for public records was obtained from Daniel German. 29 After 2007 accruals that are acquired for existing fonds with an MG call number will have only a randomly generated archival reference number. In such fonds there will be two call numbers: an MG number for the initial acquisition and all accruals up to 2007; and after 2007, only an archival reference number for newer accruals. This information was provided by Peter Delottinville, director, Political and Social Division, and Normand Laplante, manager, Social Archives, Library and Archives Canada. 30 Digitization is under way for government fonds or particular series in a fonds that have already been microfilmed by LAC. The digitized, microfilmed holdings appear on the Heritage Canadiana website. 31 These references were found in one folder of the finding aid, vols. 236 and 237. 32 George Edwin Gray’s application to the Supreme Court of Canada regarding his detention on charges of refusing to obey the orders of a superior officer while on military service, 1918–07–10. Also, writs of habeas corpus for Norman Earl Lewis, 1918–06–18, and Max Perlman, n.d., vol. 2445, files A-1509, A-1501, and A-1503-1. 33 Regina Riot Inquiry Commission, vols. 2554–7, file 135657: review of actions taken by the strikers, the Regina City Police, and the RCMP. 34 Alfred Joseph Andrews was a barrister and founding member of the Citizens’ Committee of 1000. 35 Kehler and Esau, Famous Manitoba Trials, Master List. 36 Ibid.

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Archival Sources and User Challenges  463 37 Correspondence and other material in file A-1688, box 36, consists of documentation on the Winnipeg General Strike. On my informal request to LAC, this file was reviewed and subsequently opened for consultation by researchers. To view this material, the researcher should request that the file be placed in an interim box. The remaining files in box 36, and all other boxes in the accession, remain coded 32: restricted by law. 38 Kehler and Esau, Famous Manitoba Trials, 166–8. 39 Published in January 1994. 40 Department of National Defence fonds, Military district records, RG24-C-8, digitized letter of naturalized immigrant from Austria to Captain Adams, Citadel, Halifax, saying that he would not be a threat to his new home, Canada. 41 Ibid., RG24-C-8, box 4688, file MD13-02-A7-6. 42 Ibid., RG24-C-8, vols. 1–5 in boxes 4472–3. 43 Ibid., RG24-C-8, boxes 4516–17. 44 At this time, the current name of the department has not been updated in the database Archives Search. 45 No discernible Archival Reference Number was found. 46 Judith Roberts-Moore, “The Office of the Custodian of Enemy Property: An Overview of the Office and its Records, 1920–1952,” Archivaria, 22 (summer 1986): 95. 47 Ibid., 96. 48 Ibid. 49 Ibid., 100. 50 Where a private fonds contains only textual records, only the MG call number is provided. If a fonds also contains media material, both the MG call number and the R number for media material appear. 51 The unemployment relief records may have been alienated from the Department of National Defence. 52 Andrew George Latta McNaughton fonds, MG30-E133, vols. 57, 58, 60, and 61 provide examples of files that relate to disturbances in the relief camps. 53 The finding aid for the A.E. Kemp fonds is not the original finding aid which was produced many decades ago. It is a computer-generated listing, apparently at the item level, with access code 90 and information. 54 Loring Cheney Christie fonds, MG30-E44, vol. 2, files 3 and 4; and W.C.P. 460 (Secret) Home Office, vol. 4, file 13, microfilm reels C-3876 and C-3877. 55 David Jay Bercuson, Confrontation at Winnipeg: Labour, Industrial Relations and the General Strike (Montreal and Kingston, ON: McGill-Queen’s University Press 1974). 56 Access to the Harry Walsh fonds requires the permission of Mr Walsh. However, he died on 10 April 2013.

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464  ju d i c umming 57 Communist Party of Canada fonds MG28-IV4, vols. 8, 9, 38, 46, 47, 49, 50 to 52, 60–1, etc. 58 For a discussion of an actual case where second and later generation documents obstructed legal research and where microfilm was viewed as “looking through a window” at originals, see Patricia Kennedy, “Treaty Texts: When Can We Trust the Written Word?,” SSHARE Newsletter, vol. 3, no. 1 (springsummer) 1995.

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Appendix B A Note on Access-to-Information Challenges PAT R I C I A I . M c M A H O N

That a chapter on conscription in the First World War would give rise to a series of protracted challenges under Access to Information and Privacy legislation (ATIP) was unforeseen when research began on the Gray case. There were no foreign governments to contend with or obvious issues of national security. The individuals involved were long dead. Because some research involved files from Justice Canada (then the Department of Justice), there were potential claims for solicitor-client privilege, but privilege is a discretionary ground for withholding materials under the legislation. Even if privilege applied to some documents, after almost one hundred years, there was no reason to think that Justice and Library Archives Canada (LAC) would not waive it and release the information for the sake of broadening our understanding of a key moment in Canadian history. That assumption was wrong. In December 2011 I requested the Justice case file on George Gray. Within days, a letter arrived from a senior access analyst with LAC notifying me that Justice, the original custodian of the records, had asked for an extension of up to fifty days to provide the materials, a right to which it was entitled by law. I received the file approximately six weeks later. Justice withheld four pages – documents from July and August 1918 – on the grounds of solicitor-client privilege. In March 2012 I filed a complaint with the Office of the Information Commissioner (OIC) to obtain those pages. The first of those documents was a memorandum dated 17 July 1918 and sent by F.P. Varcoe, a junior lawyer with the department involved in

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the preparation of Gray’s case, to E.L. Newcombe, the deputy minister of justice. The second was a memorandum from Varcoe to Newcombe dated 29 August 1918. In March 2013 LAC exercised its discretion to release the August 1918 memorandum.1 From Varcoe to Newcombe, the memorandum indicated that Gray had been sent to Kingston Penitentiary after his sentence was commuted from life to ten years in prison, and sought permission to have someone ask Gray if he were now willing to enter military service and thus be released from prison. At this time, the OIC stated that it was going to close the file on the first document (i.e., the one dated 17 July 1918) because Justice had refused to waive solicitor-client privilege. I asked it to reconsider the decision, and suggested that the privilege Justice claimed was more properly litigation privilege because the documents had been created for the purposes of litigation. Finally, in March 2015, the OIC persuaded LAC to exercise its discretion to waive privilege and release the document dated 17 July 1918. Between 2013 and 2015, the discussion moved from what Justice would permit to what LAC would authorize. The contents of the July 1918 document inspired great speculation given its timing (the day an order-in-council was issued requiring the court to take jurisdiction of Gray’s case, which was heard the following day) and the length of time it took to secure its production.2 The memorandum turned out to be a short assessment of the definition of “commitment” pursuant to section 62 of the Supreme Court of Canada Act, the provision that conferred jurisdiction on the court to hear Gray’s petition for habeas. Varcoe concluded that the court could take a broad approach to the meaning of the word “commitment.” Despite this confidence, the government still passed the secret order-in-council that required the Supreme Court of Canada to take jurisdiction of the case. More troubling are the difficulties encountered trying to obtain documents relating to the case of Norman Lewis. The Justice case file on Lewis was requested in October 2012. Within a few days, LAC sent an email stating that the file had been “informally reviewed” by an analyst who had decided that the entire file would be withheld because it “contains personal information which is protected by the legislation.” I filed a formal ATIP request in November 2012 and was notified in mid-December that LAC required an additional ninety days to review the file because consultation with Justice was necessary. Mid-March came and went. Finally, at the beginning of August 2013, I contacted the review officer at LAC, who revealed that Justice had promised a response to LAC by mid-July. Given that none was forthcoming, I immediately filed a complaint with

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A Note on Access-to-Information Challenges  467

the OIC regarding the lack of timeliness of the review. Some documents from the Lewis file were finally obtained in October 2013. This time, LAC, in consultation with Justice, withheld a significant number of pages under solicitor-client privilege, many of which appear to be similar to documents that were released without quibble from the Gray file. As a result, I filed a fresh complaint with the OIC to have the heavily redacted documents reviewed. My research into these cases has raised a number of issues relating to the ATIP regime. The initial refusal to release the Lewis file due to privacy concerns was patently absurd. For a nominal fee, anyone can access the hundreds of thousands of personnel files of Canadian Expeditionary Forces members available on LAC’s website. Files for both Gray and Lewis were easily obtained in this manner although each contained highly personal information, including medical records and salary information for the duration of their service. There were no legitimate privacy concerns about the information contained in the Lewis file, and it is disappointing that a formal review process, requiring eleven months to complete, was necessary. The claim for solicitor-client privilege within these records is more complicated. The exercise of solicitor-client privilege under section 23 of the Access to Information and Privacy Act is discretionary. This form of privilege survives in perpetuity. Although privilege serves the reasonable policy purpose of encouraging full and frank disclosure between client and solicitor in traditional legal disputes involving private parties, it is not clear that government departments, particularly Justice, should be able to make such a claim in all circumstances for all time. Justice created records, particularly case files, that are of significant historical interest to the public, which has a right to know what sort of activities have been undertaken by Canada’s chief legal officers, ostensibly on behalf of the people of Canada. No other government department has the opportunity to withhold its documents on such broad, virtually unchallengeable grounds. Many historical files are now in the custody of LAC, which must consult with Justice about their release. In this situation, it appears LAC is excessively deferential to claims by Justice that a document must be withheld as privileged. Moreover, in the case of Gray and Lewis, it is unlikely that the withheld documents are subject to solicitor-client privilege in any event. In each, the department opened its file specifically to deal with litigation undertaken and resolved in 1918. That privilege is more properly litigation privilege, which the Supreme Court of Canada said in Blank v. Canada [2006] 2 SCR 319, SCC 39 does not survive beyond the reasonable

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resolution of the litigation. These cases were dealt with almost one hundred years ago. It is disappointing that Justice would try to maintain a claim of privilege after the passage of so much time, and even more troubling that LAC would permit the claim to stand as a reasonable exercise of discretion. Further, there is no consistency in the administration of the ATIP regime, even within the same originating department on the same subject. Many of the types of materials made available from the Gray file were withheld from the Lewis file. This includes discussions of strategy between lawyers at Justice and outside counsel retained for the purposes of argument and fee arrangements. With the Lewis file, the reviewer even went so far as to redact telegrams, which obviously could not have been sent with any expectation of confidentiality or privacy. The OIC deals inconsistently with the same subject matter. There appears to be no coordination among OIC staff to have a single person deal with the complaints involving a single subject at preliminary stages. For example, the complaint to the OIC was dealt with quickly for the Gray file (that is, the OIC investigated the complaint with LAC and Justice), but the complaint with respect to the Lewis file was stuck in a “triage” queue because, as staff explained in January 2014, it has been classified as a “regular” complaint (in part, one suspects, because so many pages were improperly withheld in the first instance). Even though I filed the Lewis complaint with the OIC at the beginning of November 2012, and provided ample background information linking it to the ongoing Gray file, the case was not assigned to an investigator until late April 2015. This means that, until April 2015, the Lewis complaint had not even been reviewed by the OIC, let alone by LAC in consultation with Justice. Whereas the Gray complaint was turned over quickly to the government department responsible for withholding the documents, the Lewis complaint languished with the very institution that is supposed to guard against abuses under the ATIP regime. The OIC explained that it had an overwhelming number of complaints to review and insufficient resources to do so. The ATIP process is unnecessarily cumbersome. The request had to go through LAC as the custodians of the documents, even though the records originated with Justice and Justice had to be consulted about the release. LAC gave the impression that Justice was responsible for determining access, but the information commissioner has said that LAC was the ultimate decision maker and exercised its discretion unreasonably in denying access to the Gray document ultimately released in March 2015. That is, LAC may consult with Justice about whether it is reasonable to maintain a particular claim of solicitor-client privilege, but the ultimate decision to

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release or withhold a document rests with LAC. In practical terms, there may be a problem with LAC being excessively deferential to Justice when dealing with documents over which Justice originally had custody. Once researchers file complaints with the OIC, they are entirely dependent on the OIC to make representations on their behalf to the government department responsible for withholding the document. The OIC serves as an advocate for access to documents free of charge, but it is mostly concerned about process and tends to look at documents within a vacuum. Although the OIC asks complainants to provide relevant background details, there is only so much information a researcher can provide when one knows neither the substance of the document that has been withheld nor details of the grounds upon which it is withheld. Because the act does not require government departments to justify decisions to withhold particular documents beyond citing a statutory provision, researchers are at a significant disadvantage when trying to make a case for their release. The ATIP process is supposed to be an efficient, inexpensive way to make government documents available to the public, but it falls short despite the best of intentions of most access analysts. Time and persistence are required on the part of researchers seeking disclosure. There can be insufficient coordination of requests or complaints involving similar topics or from particular researchers. For example, until recently, there was no coordination of the appeals in Gray and Lewis despite the fact that the complaints were filed by one researcher and the files involved the same subject. One hopeful development in this situation is the fact that the investigator who was assigned to Lewis in April 2015 is the same person who was involved in the Gray case. Nor do researchers receive sufficient information to allow them to make a meaningful challenge to a decision to withhold a document. Under the Rules of Civil Procedure that govern judicial proceedings, documents withheld for privilege are listed in a table and typically include sufficient information to permit a party to challenge a decision. Parties can cross-examine or examine on an affidavit of documents. No such protections exist under ATIP. Researchers are left to speculate – as I did – about why a government department is unwilling to waive a claim of solicitor-client privilege, or even whether the claim is rightly asserted to begin with. Researchers need more information. At a more basic level, the government must provide sufficient resources to employ the appropriate number of staff to review applications in the departments and agencies covered by the legislation, including the OIC. Without these resources, there can be no adequate, informed access to government information. It is inconceivable that the agency tasked with

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handling complaints about improperly withheld government documents can have a three-year backlog to even assign complaints to investigators, let alone review and resolve them. Notes 1 According to the Office of the Information Commission, although Justice Canada was the original custodian of the files, when the files were transferred to LAC in 1990 pursuant to a Records Disposition Authority, LAC became the primary custodian of the documents and thus the ultimate decision maker with respect to any release under ATIP. Justice might recommend to LAC that the document be withheld under solicitor-client privilege, but LAC, as custodian of the document, was the ultimate decision maker required to exercise discretion under section 23 of ATIP. 2 Aside from wondering whether the memorandum assessed the validity of the court’s jurisdiction under the Supreme Court of Canada Act, I questioned if Varcoe had discussed options for responding to a negative decision from the court, including but not limited to the issuance of an order-in-council to overrule the decision, something the government did earlier in July to overrule the Alberta court’s decision in Lewis.

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Appendix C Supporting Documents

list of documents   1. War Measures Act, 1914, Geo. V, c.2 (S.C.)   2. Editors’ note: Judicial review of the War Measures Act, 1914   3. Proclamation respecting immigrants of German or AustroHungarian nationality, 15 August 1914   4. Public notice to alien enemies, 2 September 1914   5. PC Order-in-Council 2721 (respecting enemy aliens, 28 October 1914)   6. Habeas corpus regulations – Military Service Act, 8 July 1918 (Gray petition)   7. PC Order-in-Council 1795 (Gray petition, 17 July 1918)   8. Memorandum to the deputy minister of justice (Varco to Newcombe, 17 July 1918)   9. Regulations (unlawful associations, promoting change by unlawful

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means) under the War Measures Act, 1914, 25 September 1918 (PC 2384, proclamations and orders-in-council) 10. Sections 97(a) and 97(b) amending the Criminal Code, 1919 (renumbered as s.98 in 1927) 11. Memorandum to the prime minister re. repeal of s.98 of the Criminal Code [n.d.] 12. Particulars supporting charges of seditious conspiracy against leaders of the Winnipeg General Strike, January 1920 13. Judge’s charge to jury in the McLachlan trial, Nova Scotia, 1923 14. Excerpts from Quebec Court of Appeal judgment upholding a conviction for resisting and obstructing a peace officer while enforcing the “Padlock Law” 1. war measures act, 1914, geo. v, c.2 (s.c.) An Act to Confer Certain Powers upon the Governor in Council and to amend the Immigration Act [assented to 22 August 1914]. His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: – 1. This Act may be cited as The War Measures Act, 1914. 2. All acts and things done or omitted to be done prior to the passing of this Act and on or after the first day of August, A.D. 1914, by or under the authority of or ratified by, – (a) His Majesty the King in Council; (b) any Minister or officer of His Majesty’s Imperial Government; (c) the Governor in Council; (d) Minister or officer of the Government of Canada; (e) any other authority or person; which, had they been done or omitted after the passing of this Act, would have been authorized by this Act or by orders or regulations hereunder, shall be deemed to have been done or omitted under the authority of this Act, and are hereby declared to have been lawfully done or omitted. 3. The provisions of sections 6, 10, 11 and 13 of this Act shall only be in force during war, invasion or insurrection, real or apprehended.

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Supporting Documents  473 4. The issue of a proclamation by His Majesty, or under the authority of the Governor in Council shall be conclusive evidence that war, invasion, or insurrection, real or apprehended, exists and has existed for any period of time therein stated, and of its continuance, until by the issue of a further proclamation it is declared that the war, invasion or insurrection no longer exists. 5. It is hereby declared that war has continuously existed since the fourth day of August, 1914, and shall be deemed to exist until the Governor in Council by proclama­tion published in The Canada Gazette declares that it no longer exists; but any and all proceedings instituted or commenced by or under the authority of the Governor in Council before the issue of such last mentioned proclamation, the continuance of which he may authorize, may be carried on and concluded as if the said proclamation had not issued. 6. The Governor in Council shall have power to do and authorize such acts and things, and to make from time to time such orders and regulations, as he may by reason of the existence of real or apprehended war, invasion or insurrection deem necessary or advisable for the security, defence, peace, order and welfare of Canada; and for greater certainty, but not so as to restrict the generality of the foregoing terms, it is hereby declared that the powers of the Governor in Council shall extend to all matters coming within the classes of subjects hereinafter enumerated, that is to say: – (a) censorship and the control and suppression of publications, writings, maps, plans, photographs, communications and means of communication; (b) arrest, detention, exclusion and deportation; (c) control of the harbours, ports and territorial waters of Canada and the movements of vessels; (d) transportation by land, air, or water and the control of the transport of persons and things; (e) trading, exportation, importation, production and manufacture; (f) appropriation, control, forfeiture and disposition of property and of the use thereof. 2. All orders and regulations made under this section shall have the force of law, and shall be enforced in such manner and by such courts, officers and authorities as the Governor in Council may prescribe, and may be varied, extended or revoked by any subsequent order or regulation; but if any order or regulation is varied, extended or revoked, neither the previous operation thereof nor anything duly done thereunder, shall be affected thereby, nor shall any right, privilege, obligation or liability acquired, accrued, accruing or incurred thereunder be affected by such variation, extension or revocation. 7. Whenever any property or the use thereof has been appropriated by His

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474  Supporting Documents Majesty under the provisions of this Act, or any order in council, order or regulation made thereunder, and compensation is to be made therefor and has not been agreed upon, the claim shall be referred by the Minister of Justice to the Exchequer Court, or to a Superior or County Court of the province within which the claim arises, or to a judge of any such court. 8. Any ship or vessel used or moved, or any goods, wares or merchandise dealt with, contrary to any order or regulation made under this Act, may be seized and detained and shall be liable to forfeiture, at the instance of the Minister of Justice, upon proceedings in the Exchequer Court of Canada or in any Superior Court. 9. Every court mentioned in the two preceding sections shall have power to make rules governing the procedure upon any reference made to, or proceedings taken before, such court or a judge thereof under the said sections. 10. The Governor in Council may prescribe the penalties that may be imposed for violations of orders and regulations made under this Act, but no such penalty shall exceed a fine of five thousand dollars or imprisonment for any term not exceeding five years, or both fine and imprisonment, and may also prescribe whether such penalty be imposed upon summary conviction or upon indictment. 11. No person who is held for deportation under this Act or under any regulation made thereunder, or is under arrest or detention as an alien enemy, or upon suspicion that he is an alien enemy, to prevent his departure from Canada, shall be released upon bail or otherwise discharged or tried, without the consent of the Minister of Justice. 12. Section 3 of the Immigration Act, chapter 27 of the statutes of 1910, is amended by adding thereto the following subsection: – “2. No resident of Canada, whether he is a Canadian citizen or not, and whether he has a Canadian domicile or not, who leaves Canada to perform any military or other service for any country then at war with His Majesty, or for the purpose of aiding or abetting in any way His Majesty’s enemies, shall be permitted to land in Canada, or remain therein, except with the permission of the Minister. If any such person is also prosecuted for any offence of which he may have been guilty, he shall be liable to undergo any punishment imposed upon him under such prosecution before he is deported.” 13. Notwithstanding the provisions of section 8 of the Royal Northwest Mounted Police Act, Revised Statutes, 1906, chapter 91, the Governor in Council may from time to time authorize the appointment of such number of constables, supernumerary constables, scouts and boys, in addition to the numbers limited by the said section, as he thinks necessary.

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Supporting Documents  475

2. editors’ note: judicial review of the war measures act, 1914 The War Measures Act (WMA) was considered by the Supreme Court of Canada in Re George Edwin Gray (1918) 57 S.C.R. 150 and by the Judicial Committee of the Privy Council in Fort Frances Pulp and Power Co. v. Manitoba Free Press Co. [1923] A.C. 695. Aspects of the Supreme Court decision are examined in the chapters by Patricia McMahon and Peter McDermott in this volume. The Privy Council decision has received considerable attention from Canadian constitutional scholars in the context of a larger series of precedents about federal and provincial powers. Judicial review in response to legal challenges to the WMA and its regulations following invocations in the Second World War and the 1970 October Crisis will be examined in detail in the next volume of Canadian State Trials. In all cases, the higher courts have tended to defer to the emergency executive powers of the federal government, a pattern clearly demonstrated by Gray and Fort Frances. In Gray the Supreme Court of Canada considered the validity of the delegation of legislative power, under a WMA proclamation of real or apprehended war, invasion, or insurrection, to the executive branch of government in order to make such orders and regulations necessary or advisable for the security, defence, peace, order, and welfare of Canada. The Court upheld the transfer of the legislative authority of Parliament to the federal cabinet for the duration of the proclaimed emergency. The reasons for judgment ranged widely on the scope of the WMA, and while the four opinions in support of the majority conclusion indicated that such delegation was not an absolute abandonment of Parliament’s powers, no principle of constitutional law was referred to, or articulated, beyond circular reference to the sweeping provisions of the act itself, which might be considered to limit or regulate the delegation. Fort Frances concerned the Dominion Parliament’s jurisdiction to enact the WMA rather than the temporary delegation of its authority to the executive, the matter considered in Gray. Understanding the scope of Parliament’s powers, under section 91 of the Constitution Act, 1867, to make laws for the “peace order and good government of Canada” (POGG) as a residual federal legislative power over matters not falling under provincial jurisdiction, entails an exploration of the complex history of judicial review of Canadian federalism in which Viscount Haldane’s contributions to a series of Privy Council decisions are prominent (see, e.g., Frederick Vaughan, Viscount Haldane: ‘The Wicked Stepfather of the Canadian Constitution’ [Osgoode Society/University of Toronto Press 2010]). Haldane favoured a narrow approach to POGG, rejecting broader “national dimensions” or even “national concern” considerations for the federal power and an expansive

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476  Supporting Documents approach to provincial powers, similar to his approach to other Constitution Act, 1867, section 91 and 92 issues. In his view, POGG should be understood exclusively as an emergency power, and not otherwise used to interfere with provincial powers. His approach was further articulated in Fort Frances, a challenge to a price-control regime established under the WMA which continued temporarily after the war. Haldane held that, in a “sufficiently great emergency” such as war, the POGG power could authorize laws which would normally be exclusively within provincial jurisdiction: “In the event of war, when the national life may require for its preservation the employment of very exceptional means, the provision of peace order and good government for the country as a whole may involve effort on behalf of the whole nation ... in sufficiently great emergency such as that arising out of war, there is implied the power to deal adequately with that emergency for the safety of the Dominion as a whole” (697). Haldane also deferred to the federal government on the continuation of wartime measures in peacetime, adding that very clear evidence would be required to justify the court “overruling the decision of the Government that exceptional measures were still requisite” (706).

3. proclamation respecting immigrants of german or austro-hungarian nationality, 15 august 1914 Whereas a state of war exists between the United Kingdom of Great Britain and Ireland and the German Empire, and the Austro-Hungarian Monarchy; And whereas certain instructions have been received from His Majesty’s Government in connection with the arrest and detention of subjects in Canada of the German Empire and of the Austro-Hungarian Monarchy and particularly of those who attempt to leave Canada; And whereas there are many persons of German and Austro-Hungarian nationality quietly pursuing their usual avocations in various parts of Canada, and it is desirable that such persons should be allowed to continue in such avocations without interruption, – Now Know Ye that by and with the advice of Our Privy Council for Canada, We do by these presents proclaim and direct as follows: – 1. That all persons in Canada of German or Austro-Hungarian nationality so long as they quietly pursue their ordinary avocations be allowed to continue to enjoy the protection of the law and be accorded the respect and consideration due to peaceful and law-abiding citizens; and that they be not arrested, detained or interfered with, unless there is reasonable ground to believe that they are engaged in espionage, or engaging or attempting to engage in acts of a hostile nature, or are giving or attempting to give information to the enemy, or unless they otherwise contravene any law, order in council or proclamation.

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Supporting Documents  477 2. That (a) All German or Austrian or Austro-Hungarian officers, soldiers or reservists who attempt to leave Canada; (b) All subjects of the German Empire or of the Austro-Hungarian Monarchy in Canada engaged or attempting to engage in espionage or acts of a hostile nature, or giving or attempting to give information to the enemy, or assisting or attempting to assist the enemy, or who are on reasonable grounds suspected of doing or attempting to do any of the said acts; be arrested and detained. 3. That in addition to and without affecting the power already vested in the Militia in that behalf power to effect the arrest and detention of all or any person or persons coming within any of the classes mentioned in paragraph (2) hereof be vested in the Chief Commissioner and the commissioners and constables of the Dominion Police Force; the Commissioner, officers and constables of the Royal North West Mounted Police; and such other persons as may be authorized so to do by the Chief Commissioner of Dominion Police. 4. That such authorities and officers mentioned in paragraph (3) hereof, or the militia be authorized to release any such person so arrested or detained as aforesaid of whose reliability they may be satisfied on his signing an undertaking in the form following: Undertaking. I........................................................................................................................................... at present of...................................................................................................................... in the Province of............................................................................................................. in the Dominion of Canada do hereby declare that I am a German (an Austro-Hungarian) subject; I now in consideration of my exemption from detention as a subject of Germany (Austria-Hungary), do hereby undertake and promise that I will report to such official and upon such terms as the Canadian authorities may from time to time prescribe; that I will carefully observe the laws of the United Kingdom of Great Britain and Ireland and of Canada and such rules as may be especially laid down for my conduct; that I will strictly abstain from taking up arms and from doing any act of hostility towards the Government of this Country, and that, except with the permission of the officer under whose surveillance I may be placed, I will strictly abstain from communicating to anyone whomsoever any information respecting the existing war or the movement of troops, or the military preparations which the Authorities of Canada or Great Britain may make, or as respects the resources of Canada, and that I will do no act that might be of

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478  Supporting Documents injury to the Dominion of Canada or the United Kingdom of Great Britain and Ireland and the Dominions and possessions thereof. Dated this ………………… day of ………………………………… 1914. WITNESS,........................................................................... 5. That any such person so arrested and detained as aforesaid, of whose reliability the officer or authority making the arrest is not satisfied, or who refuses to sign such undertaking or having signed same fails to abide by its terms, be interned by such authorities and officers or militia according to the usages and laws of war in such places as may be provided by the militia, and that if it be deemed necessary that guards be placed on persons so interned, such guards be furnished by the active militia of Canada on the request of such authorities or officers to officers commanding divisional areas and districts. 6. That all such authorities and officers or militia who may exercise any of the powers above mentioned be directed to report in each case to the Chief Commissioner of Dominion Police stating the name, address and occupation of the person detained or paroled, the date and place of detention and generally the circumstances of the arrest and detention and all such information as may be necessary or useful for the purpose of record and identification. Of all which our loving subjects and all others whom these presents may concern, are hereby required to take notice and to govern themselves accordingly. Source: Canada. Department of the Secretary of State, Copies of Proclamations, Orders in Council and Documents Relating to the European War (Ottawa, 1915), 49–52.

4. public notice to alien enemies, 2 september 1914 It has come to the attention of the Government that many persons of German and Austro-Hungarian nationality who are residents of Canada are apprehensive for their safety at the present time. In particular the suggestion seems to be that they fear some action on the part of the Government which might deprive them of their freedom to hold property or to carry on business. These apprehensions, if they exist, are quite unfounded. The policy of the Government is embodied in a Proclamation published in The Canada Gazette on 15th August. In accordance with this Proclamation restrictive measures will be taken only in cases where officers, soldiers or reservists of the German Empire or of the Austro-Hungarian Monarchy attempt to leave Canada or where subjects of such nationalities engage or attempt to engage in espionage

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Supporting Documents  479 or acts of a hostile nature or to give information to or otherwise assist the King’s enemies. Even where persons are arrested or detained on the grounds indicated they may be released on signing an undertaking to abstain from acts injurious to the Dominion or the Empire. The Proclamation after stating that “there are many persons of German and Austro-Hungarian nationality quietly pursuing their usual avocations in various parts of Canada and that it is desirable that such persons should be allowed to continue in such avocations without interruption,” directs as follows: – “That all persons in Canada of German or Austro-Hungarian nationality, so long as they quietly pursue their ordinary avocations be allowed to continue to enjoy the protection of the law and be accorded the respect and consideration due to peaceful and law-abiding citizens; and that they not be arrested, detained or interfered with, unless there is reasonable ground to believe that they are engaged in espionage, or engaging or attempting to engage in acts of a hostile nature, or are giving or attempting to give information to the enemy, or unless they otherwise contravene any law, order in council or proclamation.” Thus all such persons so long as they respect the law are entitled to its protection and have nothing to fear. Source: Extra Canada Gazette, 2 September 1914.

5. pc order-in-council 2721 (respecting enemy aliens, 28 october 1914) The Committee of the Privy Council have had before them a report, dated 28th October, 1914, from the Minister of Justice, stating that it is expedient and necessary to take measures to prevent espionage and also to prevent alien enemies in Canada who are likely to render effective military assistance to the enemy from returning to the enemy’s service, and to provide for the proper supervision and control of such aliens as may be so prevented from leaving Canada, and the detention under proper conditions and maintenance where required of such aforesaid aliens as it may be found necessary to intern as prisoners of war, and that it is likewise desirable considering the lack of opportunity for employment that aliens of enemy nationality who are not likely to add to the strength of the enemy’s forces and who desire and have the means to leave the country be permitted to do so. The Minister observes that it is considered probable that aliens of both classes will be found grouped in particular localities, principally within or in the immediate neighbourhood of the large cities and towns, – The Minister, therefore, recommends that it be enacted by the Governor in Council under the authority of the War Measures Act as follows: –

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480  Supporting Documents (1) One or more offices of registration shall be established in such cities, towns and other places as may be from time to time designed by the Minister of Justice, and an officer shall be appointed by the Governor in Council for each of the offices so established who shall be called ‘Registrars of Alien Enemies.” (2) The Registrars shall be under the immediate direction of the Chief Commissioner of Dominion Police who shall exercise general supervision over them in the performance of their duties and to whom they shall report as may be required. The Minister shall appoint such assistants to such registrars, clerks and other officers as may be necessary for the proper carrying out of the provisions of the present order. (3) It shall be the duty of a registrar to examine each alien of enemy nationality attending before him, and to register in a book to be provided for the purpose the name, age, nationality, place of residence in Canada and in the country of nationality, occupation, desire or intention to leave Canada and the names of the wife and children (if any) in Canada of every such alien and such other particulars necessary for identification of such alien of enemy nationality or otherwise as may seem advisable. (4) Every alien of enemy nationality residing or being within any of the cities, towns or places so designated as aforesaid or within twenty miles thereof, shall as soon as possible after the publication in the Canada Gazette of a proclamation designating such city, town or place as one wherein a registry office is to be established under this ordinance, attend before the registrar or one of the registrars, for the city, town or place within or near which he is or resides and truly answer such questions with regard to his nationality, age, residence, occupation, family intention or desire to leave Canada, destination, liability and intention as to military service, and otherwise, as may be lawfully put to him by the registrar. (5) No alien of enemy nationality shall be permitted to leave Canada without an exeat from a registrar; provided that the Chief Commissioner of Dominion Police may in any case, grant or cancel an exeat to an alien of enemy nationality who is registered. (6) The registrar may issue an exeat to an alien of enemy nationality if satisfied upon the examination and registry that such alien of enemy nationality will not materially assist, by active service, information or otherwise, the forces of the enemy. (7) If it appears to the registrar that any alien of enemy nationality who is not permitted to leave Canada may consistently with the public safety be suffered to remain at large, such alien of enemy nationality shall be required to declare whether or not he desires and has the means to remain in Canada conformably to the laws and customs of the country, subject to obligation to report monthly to the Chief of Police of the city where or in the neighbourhood of which he is registered. If yes,

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Supporting Documents  481 such alien of enemy nationality may be permitted his liberty, subject to the conditions aforesaid and the provisions of this ordinance. If nay, he shall be interned as a prisoner of war. The registrar shall report to the Chief of Police the names and addresses of those who elect to remain at liberty. Any alien of enemy nationality who in the judgment of the registrar cannot consistently with the public safety be allowed at large shall be interned as a prisoner of war. (8) If any alien of enemy nationality who is by the terms of this ordinance required to register, fails to do so within one month after publication of the proclamation referred to in section 4 of this ordinance or within seven days after the date when he shall by reason of his residence come within the description of those required to registered, whichever date shall be last, or if he refuse or fail to answer truly any of the questions put by the registrar, or if, being registered he fail to report as hereinbefore required or to observe any of the conditions on which he is permitted to be at liberty, he shall in addition to any other penalty to which he may be therefor by law liable be subject to internment as a prisoner of war. (9) Where any alien of enemy nationality interned under the provisions of this order has wife or children living with and dependent on him, such wife and children shall be permitted to accompany him. (10) Such provision as may be necessary for the maintenance of aliens of enemy nationality interned as prisoners of war shall be made by the military authorities who may require such prisoners to do and perform such work as may be by them prescribed. (11) No alien of enemy nationality who is required to register shall be naturalized unless in addition to other requirements he produces and files with his application a duly certified certificate of a registrar that he is registered pursuant to the provisions of this ordinance and that his application for naturalization is approved by the registrar. The Committee submits the same for approval. Source: Extra Canada Gazette, 28 October 1914.

6. habeas corpus regulations – military service act, 8 july 1918 (gray petition) Ottawa, 8th July, 1918      [000046] TO HIS EXCELLENCY THE GOVERNOR GENERAL IN COUNCIL: The undersigned has the honour to report that in the view of the urgent demand for men to reinforce the Canadian Expeditionary Force, and for the due administration of the Military Service Act 1917, and the regulations subsequently passed under the authority of that Act or of the War Measures Act, 1914, or otherwise,

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482  Supporting Documents providing for the raising of men for military service, it is necessary and expedient that provision should be made for the speedy determination of any questions which may arise upon Habeas Corpus, or proceedings by way of Habeas Corpus, touching the competency or right of such proceedings, or right of such proceedings, or the legality of military command, discipline, control, custody and subjection to military law, or the liability to military service, of men who have been or may be drafted or taken in the execution or intended execution of the powers conferred by the first mentioned statute and the regulations aforesaid. It is obviously expedient and desirable in the public interest to provide for an appeal in such cases to the Supreme Court of Canada to be heard and determined by the most speedy procedure which will be compatible with the ends of justice. Accordingly the undersigned recommends for sanction by Your Excellency in Council under the powers conferred by the War Measures Act, 1914, or under any other powers existing in this behalf, the following REGULATIONS. 1. Notwithstanding any law, practice or procedure to the contrary, an appeal shall lie to the Supreme Court of Canada on behalf of the Crown represented by the Attorney General of Canada from any judgment or order of any judge of the Supreme Court of Canada, or of any provincial court, or judge of any provincial court, in any case of proceedings for or upon a Writ of Habeas Corpus, or in the nature of Habeas Corpus, whereby it is adjudged or ordered that a Writ of Habeas Corpus, or an order in the nature of a writ, shall issue for the purpose of enquiring into or trying the legality of the subjection to military law, discipline, control, restraint, detention or custody, or the liability to military service of any man embodied in or drafted, recruited or taken for military service in the Canadian Expeditionary Force, or subjected to military law, discipline or control, or held or detained by or in the custody of the military authorities of Canada, or any of them, in the execution, or intended execution, of the powers conferred by the Military Service Act, 1917, or by the regulations of the Governor in Council subsequently passed under the authority of that Act, or of the War Measures Act, 1914, or otherwise, or whereby it is adjudged or ordered that any such man is or shall be free, discharged or released from the subjection, discipline, control, restraint, detention or custody or liability to military service aforesaid. 2. Such appeal may be asserted by notice of the appeal by the Attorney General of Canada, or a solicitor representing the Attorney General, to be served upon the man or his solicitor, within thirty days from the date of the judgment or order which is the subject of the appeal. 3. Immediately after the assertion of any such appeal in the manner aforesaid the Chief Justice, or the senior puisne judge of the Supreme Court of Canada act-

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Supporting Documents  483 ing in his place, as the case may be, shall convene the court for the purpose of hearing the appeal at the earliest convenient time, whether in or out of vacation, and the Registrar of the court shall cause a notice to be inserted in the Canada Gazette of the special session, so-called, as provided by the rules of the court respecting special sessions. 4. Notice of the hearing of the appeal shall be served at least five days before the date of the special session. 5. The appeal may be heard on a written case, certified under the seal of the court appealed from, which shall contain the material before the court or judge appealed from, including all judgments and opinions pronounced and orders issued in the case, but without factums or any further preliminary delays or proceedings, except as the Supreme Court may otherwise direct. 6. It shall not be a valid objection to any such appeal or to the hearings or determination of the appeal that the man whose liability to military service, restraint, detention or custody is in question is not within the jurisdiction of the court or judge appealed from, or within the jurisdiction of the Supreme Court of Canada. 7. If the judgment or order appealed from be reversed the registrar shall, in addition to the duties devolving upon him in ordinary cases of appeals in Habeas Corpus proceedings, certify a copy of the judgment to the Registrar or Deputy Registrar under the Military Service Act, 1917, of the Province or district in which the man is registered for the purposes of the said Act, or in which, pursuant to the said Act and regulations, the man should have registered. 8. An appeal under these regulations shall operate to stay the proceedings upon the judgment or order appealed from pending the appeal and until the final determination thereof. 9. These regulations shall apply, not only to future cases, but also to all cases now pending in any provincial court or before a judge of any provincial court, and as well to all cases which have been heretofore determined or which have passed into judgment in or before any of the provincial courts or judges. 10. These regulations shall continue in force during the present war with Germany, and no longer. Humbly submitted, Minister of Justice [000049]

7. pc order-in-council 1795 (gray petition, 17 july 1918) AT THE GOVERNMENT HOUSE AT OTTAWA [000171] Wednesday, the Seventeenth day of July, 1918. PRESENT: HIS EXCELLENCY THE GOVERNOR GENERAL IN COUNCIL,

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484  Supporting Documents WHEREAS an application was made to the Honourable Mr. Justice Anglin of the Supreme Court of Canada for the issue of a Writ of Habeas Corpus ad subjiciendum on behalf of one George Edwin Gray for the purpose of an inquiry into the case of the commitment and detention of the said Gray, alleged to be a deserter of the First Depot Battalion, First Central Ontario Regiment of the Canadian Expeditionary Force, in military custody: AND WHEREAS Mr. Justice Anglin upon the hearing ordered that the application should be referred to the full court at a special sitting to be convoked, and a special sittings of the court has been ordered accordingly for 18th instant, at which the said application is set down for hearing; AND WHEREAS this application involves questions of great public importance and urgency connected with the administration of the Military Service Act, 1917 and regulations, and the powers of the Governor in Council under the War Measures Act, 1914, and it is of the utmost importance to the effective carrying on of the military operations necessitated by the present war, that these questions should be heard and finally adjudicated by the ultimate court of appeal in Canada with the least possible delay. THEREFORE, for the avoidance of doubts or any preliminary questions affecting the authority of the court to proceed in the circumstances to hear and determine the said application, His Excellency the Governor General in Council, on the recommendation of the Minister of Justice and under the powers conferred upon His Excellency in Council by the War Measures Act, 1914, or any other power existing in that behalf, is pleased to sanction and doth hereby sanction the following Regulation: – REGULATION: The Supreme Court of Canada shall have jurisdiction to hear and determine at the special sitting of the court to be held at Ottawa on Thursday, the 18th day of July, 1918, or at any other sitting to which the hearing may be adjourned, the application for the issue of a Writ of Habeas Corpus ad subjiciendum on behalf of George Edwin Gray, now pending before the said Court, upon reference by Mr. Justice Anglin, and it shall be the duty of the Court to hear the said application and to determine the same, and all questions that may arise at the hearing relevant to the said application, or to the powers of the Governor in Council, under the War Measures Act, 1914, as soon as the ends of justice will permit, and the judgment of the Supreme Court so rendered upon the said application and questions shall be binding and conclusive upon all courts, magistrates and judicial tribunals in Canada. Clerk of the Privy Council.    [000173]

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Supporting Documents  485

8. memorandum to deputy minister of justice (varcoe to newcombe, 17 july 1918) MEMORANDUM FOR THE DEPUTY MINISTER: In re Gray. July 17 I have examined the following cases reported in the Supreme Court with a view to determining the effect of the word “commitment” in section 62 of the Supreme Court Act: In re Poltvin, 1891, Case. D. 327 (not reported). This was a case of a commitment by a coroner on a charge of murder. Strong J. seems to have entertained no doubt that such detention was within the meaning of the word “commitment.” It should be noted however that the writ was refused on the ground that murder, the offence in question, is not a statutory offence. This view was supported by the Court in the case in re Sproule, 12 S.C.R. 140, Fournier and Henry, JJ. dissenting, their view being that the words of section 62 were intended merely to exclude an enquiry into the cause of commitment for the infraction of a provincial law. In re Trepanier, 12 S.C.R. 111. In this case the question in issue was whether certiorari was available, the applicant having been convicted by a magistrate. Ritchie, C.J. at p. 120 said: “We are to have concurrent jurisdiction with the court or judges of the several provinces to issue a writ of habeas corpus for the purpose of enquiry into the cause of commitment in any criminal case under any act of the Parliament of Canada … Assuming that we may issue a writ of certiorari under the authority of the Ontario statute, which I am by no means prepared to admit, we are not bound to do so, but it is a matter discretionary with the judge as where he has reasonable grounds for thinking the magistrate or court has acted without jurisdiction, or by way of illustration, where there has been no conviction as where a magistrate has committed a party for trial and it is alleged there is no evidence of a criminal offence sufficient to warrant the committing or detaining of the prisoner, etc.” Strong J. said at p. 126: “I have no doubt that under this section 51(now 62) if a prisoner was brought before the court on a writ of habeas corpus and the return to the writ showed he was in custody not under any conviction by a court or magistrate but under a commitment for trial, then the judge might if the materials for the purpose

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486  Supporting Documents could be got before the judge, consider and determine whether it would or it would not be proper to take bail.” In re Sproule the application was made after a conviction for murder. In Words and Phrases the term “commitment” “merely described the process by which a person is confined under the order of a court at any time before or after final sentence. ‘Commitment’ has in law a well-defined meaning and signifies the act of sending an accused or convicted person to prison. The ‘commitment’ is the sending of a person charged with an offence to prison to await his being held to answer.” In Words and Phrases a discussion of the word contained in Hawkins’ Pleas of the Crown is referred to. Hawkins, Vol. 2, says at p. 175: “It is certain that the privy council or any one or two of them, or secretary of state may lawfully commit persons for treason and for other offences against the state as in all ages they have done. Howell was committed and Hellyard by Secretary Walsingham and it was determined that where the commitment is not by the whole council the cause must be expressed in the warrant.” And at p. 179: “It (the commitment) ought to set forth the crime alleged whether the commitment be by the privy council or any other authority.” I have also to refer to the Ontario statute called the Lunacy Act, R.S.O. 1914, chapter 68, which provides by section 3: “3(1) Subject to the provisions of the Hospitals for the Insane Act the court shall have all the powers, jurisdiction and authority of His Majesty over and in reaction to the persons and estates of lunatics including the care and the commitment of the custody of lunatics and of their persons and estates.” The Hospitals for the Insane Act, R.S.O. 295 provides by section 15 that a justice may direct “that such alleged insane person be confined in some such safe and comfortable place or in the custody of the constable or other person who apprehended him or such other safe custody as the justice deems fit until the question of his sanity is determined.”

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Supporting Documents  487 A form is provided for this order known as a warrant of committal for safe custody. It appears therefore that the word “commitment” is not limited in its meaning to the order of a civil court committing a convicted person to prison. F.P.V. [see Appendix B]

9. regulations (unlawful associations, promoting change by unlawful means) under the war measures act, 1914, 25 september 1918 (pc 2384, proclamations and orders-in-council) Unlawful Associations P.C. 2384–September 25, 1918–His Excellency the Governor General in Council, on recommendation of the Minister of Justice, and under the powers conferred by the War Measures Act, 1914, or otherwise existing in that behalf, is pleased to sanction and doth hereby sanction the following regulations: – 1. In and for the purposes of these regulations, or of any amending or further regulations relating to the matters herein provided for, unless there be something repugnant in the subject matter or context (a) “Minister” means the Minister of Justice, and includes the Deputy Minister of Justice. (b) Where it is provided that any offence shall be punishable by fine and imprisonment it shall be competent to the court adjudging the punishment to impose either fine and imprisonment or both fine and imprisonment within the limits specified according to the discretion of the convicting magistrate. (c) The provisions of The Interpretation Act, Revised Statutes of Canada, 1906, chapter 1, shall apply. 2. The following associations, organizations, societies or groups are hereby declared to be and shall while Canada is engaged in war be deemed to be unlawful associations, viz:­ (a) The Industrial Workers of the World; The Russian Social Democratic Party; The Russian Revolutionary Group; The Russian Social Revolutionists; The Russian Workers Union; The Ukrainian Revolutionary Group; The Ukrainian Social Democratic Party; The Social Democratic Party;

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488  Supporting Documents The Social Labour Party; Group of Social Democrats of Bolsheviki; Group of Social Democrats of Anarchists; The Workers International Industrial Union; Chinese Nationalist League; Chinese Labour Association; (b) Any association, organization, society or corporation, one of whose purposes or professed purposes is to bring about any governmental, political, social, industrial, or economic change within Canada by the use of force violence or physical injury to person or property, or by threats of such injury, or which teaches, advocates, advises or defends the use of force, violence, or physical injury to person or property or threats of such injury in order to accomplish such change or for any other purpose, or which shall by any means prosecute or pursue such purpose or professed purpose, or shall so teach, advocate, advise or defend while Canada is engaged in war; (c) Any association which the Governor in Council by notice published in the Canada Gazette declares to be an unlawful association or within the description of the last preceding paragraph. 3. Any person who, while Canada is engaged in war, shall act, or profess to act as an officer of any such unlawful association, or who shall sell, speak, write or publish anything, as the representative or professed representative of any such unlawful association or become or continue to be a member thereof, or wear, carry or cause to be displayed upon or about his person or elsewhere, any badge, insignia, emblem, banner, motto, pennant, card, or other device whatsoever, indicating or intended to show or suggest that he is a member of or in anywise associated with any such unlawful association, or who shall contribute anything as dues, or otherwise to it or to any one for it, or who shall solicit subscriptions or contributions therefor, shall be guilty of an offence against these regulations, punishable by imprisonment for not less than one year and not more than five years. 4. In any prosecution under this Act, if it be proved that the person charged has at any time since the beginning of the present war been a member of an unlawful association, it shall be presumed in the absence of proof to the contrary that he was and continued to be a member thereof at all times material to the case; and if it be proved that the person charged since the beginning of the war repeatedly: (a) attended meetings of an unlawful association; or (b) spoke publicly in advocacy of an unlawful association; or

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Supporting Documents  489 (c) distributed literature of an unlawful association it shall be presumed in the absence of proof to the contrary that he is a member of such unlawful association. 5. Where in any prosecution any question of unlawful intent or purpose is in issue the fact that the accused is a member of an unlawful association which practises, advocates, or incites with that intent or purpose shall be relevant to the issue. 6. Any owner, lessee, agent, or superintendent of any building, room, premises or place, who while Canada is engaged in war, knowingly permits therein any meeting of an unlawful association, or of any subsidiary association or branch. or committee thereof, or any assemblage of persons who teach, advocate, advise or defend the use without authority of law, of force violence, or physical injury to person or property, or threats of such injury, shall be guilty of an offence against these regulations, punishable by fine of not more than $5,000 and imprisonment for not more than five years. 7. (1) Any property, real or personal, belonging or suspected to belong to an unlawful association, or held or suspected to be held by any person for, or on behalf thereof may, without warrant be seized or taken possession of by any person thereunto authorized by the Minister or by the Chief Commissioner of Dominion Police, and may thereupon be forfeited to His Majesty. (2) Any books, newspapers, periodicals, pamphlets, pictures, papers, circulars, cards, letters, writings, prints, handbills, posters, publications or documents of any kind issued by or on behalf of an unlawful association or advocating its propaganda may, without warrant, be seized or taken possession of by any peace officer, police officer or constable, or by any person thereunto authorized by the Minister, and may thereupon be forfeited to His Majesty. (3) Any person thereunto authorized may without warrant at any hour of the day or night, with such assistance as he may require, break into and enter any premises or place owned or suspected to be owned or occupied by an unlawful association, or in which any member of an unlawful association is or is believed to be, and seize any articles, books, documents or papers found therein which belong or are suspected to belong to, or to be used or intended to be used for the purpose of any unlawful association or for any prohibited or unlawful purpose, and the same may thereupon be forfeited to His Majesty. 8. Any person who, while Canada is engaged in war, knowingly prints, publishes, edits, issues, circulates, sells, offers for sale, or distributes any book, newspapers,

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490  Supporting Documents periodical, pamphlet, picture, paper, circular, card, letter, writing, print, publication or document of any kind in which is taught, advocated, advised or defended or who shall in any manner teach, advocate, advise or defend the use, without authority of law, of force, violence, or physical injury of person or property, or threats of such injury as a means of accomplishing any governmental, political, social, industrial or economic change or otherwise, shall be guilty of an offence against these regulations punishable by imprisonment for not more than five years and not less than one year. 9. No meeting or assemblage of any kind except church meetings or meetings for religious services only, shall be held in Canada during the present war at which the proceedings or any part thereof are conducted in the language of any of the languages of any country or portion of any country with which Canada is at war, or in the language or any of the languages of Russia, Ukraine or Finland, and any person wilfully attending or taking part in any meeting prohibited as aforesaid by this section shall be guilty of an offence against these regulations punishable by a fine of not more than $5,000 and imprisonment for not more than five years, and if found committing such offence may be apprehended without warrant by any peace officer, police officer or constable and taken before any magistrate having jurisdiction to be dealt with according to law. 10. Any person who during the present war wilfully attends or takes part in any meeting or assemblage of persons (a) At which the doctrines or propaganda of an unlawful association are advocated or defended; or (b) At which false reports or statements are made which may interfere, or tend to interfere with the operation or success of the military or naval forces of Canada or the Empire or its Allies, or which may cause, or incite or tend to cause or incite sedition, disloyalty, insubordination, mutiny or refusal of duty in the military or naval forces of Canada, or obstruct or interfere with the recruiting or enlistment services of Canada or whereby injury or mischief is likely to be occasioned to any public interest; or (c) At which any seditious, disloyal, profane, scurrilous or abusive language is uttered as to the established form of government of Canada or as to the military or naval forces or flags of Canada or of the Empire or its Allies or the uniform of the military or naval forces of Canada or of the Empire or its Allies; or (d) At which any language is uttered tending to bring the established form of government of Canada or her military or naval forces or the flags of Canada or of the Empire or its Allies into contempt, scorn contumely or disrepute; or

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Supporting Documents  491 (e) At which any language is uttered which may tend to incite, provoke or encourage resistance to Canada or the Empire or its Allies, or to promote the cause of its or their enemies, or which may tend to urge, incite or encourage any curtailment of production in Canada of any things or products necessary or essential to the prosecution of the war; or (f) At which any language is uttered which may tend to cause disaffection to His Majesty or to prejudice the relations of His Majesty with any foreign state, or to assist or encourage His Majesty’s enemies or otherwise prevent, embarrass or hinder the successful prosecution of any war in which Canada is engaged; or (g) Who by any act supports or favours the cause of any country with which Canada is at war or opposes the cause for which Canada is at war; shall be guilty of an offence against these regulations punishable by imprisonment for not more than five years and not less than one year. …

10. sections 97(a) and 97(b) amending the criminal code, 1919 (renumbered as s.98 in 1927) 9–10 GEORGE V. CHAP. 46. An Act to amend the Criminal Code [Assented to 7th July, 1919] His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: – 1. The following sections are inserted immediately after section ninety-seven of the Criminal Code, chapter one hundred and forty-six of the Revised Statutes of Canada: – 97A. (1) Any association, organization, society or corporation, whose professed purpose or one of whose purposes is to bring about any governmental, industrial or economic change within Canada by use of force, violence or physical injury to person or property, or by threats of such injury, or which teaches, advocates, advises or defends the use of force, violence, terrorism, or physical injury to person or property, or threats of such injury, in order to accomplish such change, or for any other purpose, or which shall by any means prosecute or pursue such purpose or professed purpose, or shall so teach, advocate, advise or defend, shall be an unlawful association.

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492  Supporting Documents (2) Any property, real or personal, belonging or suspected to belong to an unlawful association, or held or suspected to be held by any person for or on behalf thereof may, without warrant, be seized or taken possession of by any person thereunto authorized by the Chief Commissioner of Dominion Police or by the Commissioner of the Royal Northwest Mounted Police, and may thereupon be forfeited to His Majesty. (3) Any person who acts or professes to act as an officer of any such unlawful association, and who shall sell, speak, write or publish anything as the representative or professed representative of any such unlawful association, or become and continue to be a member thereof, or wear, carry or cause to be displayed upon or about his person or elsewhere, any badge, insignia, emblem, banner, motto, pennant, card, button or other device whatsoever, indicating or intended to show or suggest that he is a member of or in anywise associated with any such unlawful association, or who shall contribute anything as dues or otherwise, to it or to any one for it, or who shall solicit subscriptions or contributions for it, shall be guilty of an offence and liable to imprisonment for not more than twenty years. (4) In any prosecution under this section, if it be proved that the person charged has (a) attended meetings of an unlawful association; or, (b) spoken publicly in advocacy of an unlawful association; or, (c) distributed literature of an unlawful association by circulation through the Post Office mails of Canada, or otherwise; it shall be presumed, in the absence of proof to the contrary, that he is a member of such unlawful association. (5) Any owner, lessee, agent or superintendent of any building, room, premises or place, who knowingly permits therein any meeting of an unlawful association or any subsidiary association or branch or committee thereof, or any assemblage of persons who teach, advocate, advise or defend the use, without authority of the law, of force, violence or physical injury to person or property, or threats of such injury, shall be guilty of an offence under this section and shall be liable to a fine of not more than five thousand dollars or to imprisonment for not more than five years, or to both fine and imprisonment. (6) If any judge of any superior or county court, police or stipendiary magistrate, or any justice of the peace, is satisfied by information on oath that there is reason­ able ground for suspecting that any contravention of this section has been or is about to be committed, he may issue a search warrant under his hand, authoriz-

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Supporting Documents  493 ing any peace officer, police officer, or constable, with such assistance as he may require, to enter at any time any premises or place mentioned in the warrant, and to search such premises or place, and every person found therein, and to seize and carry away any books, periodicals, pamphlets, pictures, papers, circulars, cards, letters, writings, prints, handbills, posters, publications or documents which are found on or in such premises or place, or in the possession of any person therein at the time of such search, and the same, when so seized may be carried away and may be forfeited to His Majesty. … 97B (1) Any person who prints, publishes, edits, issues, circulates, sells, or offers for sale or distribution any book, newspaper, periodical, pamphlet, picture, paper, circular, card, letter, writing, print, publication or document of any kind, in which is taught, advocated, advised or defended, or who shall in any manner teach, advocate, or advise or defend the use, without authority of law, of force, violence, terrorism, or physical injury to person or property, or threats of such injury, as a means of accomplishing any governmental, industrial or economic change, or otherwise, shall be guilty of an offence and liable to imprisonment for not more than twenty years. (2) Any person who circulates or attempts to circulate­ or distribute any book, newspaper, periodical, pamphlet, picture, paper, circular, card, letter, writing, print, publication, or document of any kind, as described in this section by mailing the same or causing the same to be mailed or posted in any Post Office, letter box, or other mail receptacle in Canada, shall be guilty of an offence, and shall be liable to imprisonment for not more than twenty years. (3) Any person who imports into Canada from any other country, or attempts to import by, or through any means whatsoever, any book, newspaper, periodical, pamphlet, picture, paper, circular, card, letter, writing, print, publication or document of any kind as described in this section, shall be guilty of an offence and shall be liable to imprisonment for not more than twenty years. (4) It shall be the duty of every person in the employment of His Majesty in respect of His Government of Canada, either in the Post Office Department, or in any other Department to seize and take possession of any book, news­ paper, periodical, pamphlet, picture, paper, circular, card, letter, writing, print, publication or document, as mentioned in the last preceding section, upon discovery of the same in the Post Office mails of Canada or in or upon any station, wharf, yard, car,

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494  Supporting Documents truck, motor or other vehicle, steamboat or other vessel upon which the same may be found and when so seized and taken, without delay to transmit the same, together with the envelopes, coverings and wrappings attached thereto, to the Chief Commissioner of Dominion Police, or to the Commissioner of the Royal Northwest Mounted Police. Editors’ note: Sections 97(a) and 97(b) were subsequently renumbered in the 1927 statutory revision as section 98, which is how they are frequently referred to, including in the chapter by Dennis Molinaro in this volume.

11. memorandum to the prime minister re. repeal of s.98 of the criminal code [n.d.] MEMORANDUM FOR THE PRIME MINISTER Re: Bill to amend the Criminal Code The most important amendments contained in the Bill are clauses 1 and 4 which respectively repeal section 98 (unlawful associations) and add a new subsection to section 133 (seditious intention). Section 98 is quoted in the Explanatory Notes to the Bill and is shortly to the effect that any organization whose professed purpose is to bring about any governmental, industrial or economic change by use of force shall be an unlawful association and makes it an offence, punishable by imprisonment for twenty years, for a person to be a member thereof. Section 133 defines seditious words as words expressive of a seditious intention and the proposed new subsection without limiting the generality of this definition specifically provides that a seditious intention shall be presumed where any person publishes or circulates any writing in which is advocated, or teaches or advocates, the use, without the authority of law, of force as a means of accomplishing any governmental change. It may be suggested that this amendment is not necessary on the grounds that the Common Law definition already covers sucha [sic] case, however, it is considered very doubtful whether this is a correct interpretation and it is in order to remove this doubt and make the law perfectly clear on this point that the amendment is suggested. The other amendments proposed in the Bill are of a minor nature as hereinafter indicated: … Signed, W. Steward Edwards, Deputy Minister of Justice No date. LAC, King Papers, C112106

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Supporting Documents  495

12. particulars supporting charges of seditious conspiracy against leaders of the winnipeg general strike, january 1920 Editors’ note: The following document was prepared in response to repeated requests by the lawyers for the Winnipeg strike leaders for particulars supporting the charges of seditious conspiracy. In January 1920 A.J. Andrews finally produced the particulars. This document is a remarkable account of the Committee of 1000’s view of Canadian labour radicalism at the time. It is also the source for the title of the chapter by Kramer and Mitchell. In the third response, Andrews attributes authorship of a diagram that appeared in the Western Labor News in April 1919 to Daniel de Leon. IN THE COURT OF KING’S BENCH THE KING Against WILLIAM IVENS, RICHARD J. JOHNS, ROBERT B. RUSSELL, WILLIAM A. PRITCHARD, John QUEEN, A.A. HEAPS, GEORGE ARMSTRONG AND R.E. BRAY. PARTICULARS In reply to the demand for particulars herein dated January 17th, 1920, the Crown does not admit that the present defendants are entitled to particulars in view of the case presented and the evidence adduced in the trial of Robert B. Russell, one of the defendants named in this indictment and in view further of the late stage of the proceedings and the late date of the demand. 1. What was the seditious intention? Answer: – the seditious intention is the intention set out in each of the first six counts of the indictment and overt acts thereof are set out in Counts 2 to 5 inclusive and have been given in evidence at the trial of the said Robert B. Russell. 2. Whose was the seditious intention? Answer: – The seditious intention in each count is that of the accused and others [long list of names omitted] who assisted, sided and abetted in the carrying out of the seditious intention aforesaid. 3. When was the seditious intention originated? Answer: The Crown cannot say the exact time when the seditious intention originated but it now appears that it had come into being before 1910 when Daniel de Leon drew up the diagram of organization which Lenine and Trotsky used for

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496  Supporting Documents establishing Soviet Government in Russia a copy of which diagram was forwarded by Rose Henderson of Montreal to the defendant Robert B. Russell in April, 1919, which was published on the first page of the issue of the Western Labor News of April 25th, 1919, which weekly newspaper was published by the Winnipeg Trades & Labor Council, which included the accused A. A. Heape and others named above. The press committee in charge of said newspaper included the defendants Robert B. Russell and William Ivans as well as R. Robinson, H. G. Veitch, G. Barlow and others, and of which newspaper the accused William Ivans was editor and the accused John Queen was advertising manager. At the time of the commencement of the Great War the accused Russell, Queen, Armstrong and Pritchard, and F. J. Dixon and Sam Blumenburg, among others manifested seditious intentions by speeches and writings. The said seditious intentions have grown in extent and virulence as time has gone on since, and the original conspirators have been joined from time to time by others named above and still others unknown. Prior to the Trades and Labor Congress held in Quebec in September, 1918, it showed itself in an attempt to get control by the reds of the said congress and to have resolutions passed and measures taken looking towards and which would assist in the carrying out of the seditious intention set out in the indictment; and further, on the failure to have such resolutions passed and measures taken by and at said Congress, the said seditious intention was manifested in the meeting of Western delegates during or immediately after the sessions of said Congress and the resolve to call a conference in Western Canada, nominally of labor men of Canada or Western Canada, but in reality, of Reds, dishonestly masquerading as labor men, for the purpose of imposing on organized labor in Canada or Western Canada the I.W.W. under the alias of the O.B.U. and fastening upon organized labor the red doctrine and the immoral destructive and revolutionary principles of the Communists and Red Socialists, more properly called the Socialist Party of Canada, which doctrines and principles are directed to wipe out all sentiments of faith in God, respect for fellow men, sanctity of marriage and the family, love of country, regard for life and property, in a word all principles of religion and nationality and to overturn and subvert the present system of constitutional government of the Dominion of Canada, by force, in order to bring about a condition of chaos and tyranny such as exists in Russia and to give control of the Dominion of Canada or a part thereof to the ambitious conspirators under the guise of a so-called government by the workers, or the dictatorship of the proletariat. The said seditious intention further manifested itself in the activities of the Socialist Party of Canada and its members in seditious literature and propaganda disseminated by them and correspondence carried on by them between themselves and others, for the purpose of furthering the said seditious intention set out in the indictment and directed towards the obtaining control of true labor

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Supporting Documents  497 organizations by the Reds and for the purpose of the Reds and through this control to use such labor organizations by mass action and other means, to obtain control of the Government in Canada and also the control of all industries and of capital, for a section of the community which they term “the workers.” And as a further means of carrying out the seditious intention set forth in the said indictment to obtain control of various Trades and Labor Councils and other labor organizations and through such control to use the meeting of the Alberta Federation of Labor at Medicine Hat early in the year 1919, the United Mine Workers, District 18, Convention at Calgary in February, 1919, and the British Columbia Federation of Labor Conference at Calgary in March, 1919, for the purpose of packing the so-called Western Labor Conference at Calgary with so called Reds and dishonest supporters of the said conspirators and thereby to form a new and unlawful organization to be called the “One Big Union.” The formation of such organizations was arranged and provided for at such Conference at Calgary together with provision for literature, speeches and other propaganda and correspondence with various reds and labor men, for the purpose of forwarding the formation and organization of the said One Big Union throughout the Dominion of Canada and of calling strikes and general strikes for the purpose of assisting and carrying out the formation and organization of the said One Big Union and compelling compliances with its demands, and thereby furthering or carrying out the said seditious intention set forth in the said indictment. And the said seditious intention further manifested itself in the calling of a general sympathetic strike in Winnipeg, commencing on the 15th day of May, 1919, particulars of which said strike are set out in the said indictment, and extending the said strike to embrace many cities and other places throughout the whole of Western Canada as well as certain places in Eastern Canada, all in furtherance of the said seditious intention; and the persons above named and others from the inception of the said seditious intention from time to time joined in the conspiracy and sided and abetted the execution thereof but at what exact dates any of the said persons joined in the said conspiracy or began to assist in carrying it into execution the Crown cannot at present state. 4. When did the accused agree and conspire? Answer: – The particulars asked for in this question are contained in the answer to Question 5. The accused Johns prior to the Quebec Congress above referred to was a co-conspirator with the said Russell named in the indictment and the accused Armstrong, the accused Ivens and the accused Queen were parties to the said conspiracy prior to the Walker Theatre meeting of the 22nd December, 1918. The accused Pritchard was a party to the said conspiracy long prior to the Western Labor Conference at Calgary in March, 1919, which he attended as a delegate, the accused Heaps was a party to the said conspiracy prior to the Winnipeg Strike of

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498  Supporting Documents May 15th, 1919 in which he aided, abetted and assisted, the accused Bray also was a party to the said conspiracy during the said strike. 5. Where did the accused agree and conspire? Answer: – The accused conspired at various and diverse places in the Dominion of Canada, including the City of Quebec in the Province of Quebec, the City of Winnipeg in the Province of Manitoba, the cities of Edmonton and Calgary in the Province of Alberta and the City of Vancouver in the Province of British Columbia. 6. What was the nature of the Conspiracy? Answer: – The nature of the conspiracy is set out in the indictment. 7. What was the Conspiracy? Answer: – The conspiracy is set out in the indictment. 8. At what time did each of the accused become a party to the conspiracy? Answer: – This had already been answered in the particulars given in answer to Question 5. 9. What other persons known to the Crown besides the accused were parties to the conspiracy and when did they agree with the accused as to the conspiracy? Answer: – The particulars here asked for are given in the answer to Questions 2 & 3. Because of the late date of the demand and the limited time at the Crown’s disposal these particulars cannot be given in greater detail. The Crown also intimates that the particulars herein, for the most part, came to the notice of the Crown during the progress of the trial of Robert B. Russell under the indictment herein and in view of the late date of the demand and the consequent impossibility of going into these with complete detail, the Crown reserves to itself the right to adduce further evidence as the case proceeds. The Crown also calls the attention of the accused to the particulars furnished by the evidence at the preliminary investigation of this case and also the trial of Robert B. Russell, the facts adduced at which are already within the knowledge of counsel for the accused. DATED at WINNIPEG this 20th day of January, A.D. 1920. ALFRED JOSEPH ANDREW. Counsel for the Crown. Source: Provincial Archives of Manitoba, M1413.

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Supporting Documents  499

13. judge’s charge to jury in the m c lachlan trial, nova scotia, 1923 MELLISH, J. Gentlemen of the Jury: This is an indictment for sedition, and sedition has been defined as follows: – “Sedition, whether by words spoken or written, or by conduct, is a misdemeanour indictable at common law, punishable by fine and imprisonment. It embraces all those practices, whether by word, deed, or writing, which fall short of high treason, but directly tend to have for their object to excite discontent or dissatisfaction; to excite ill-will between different classes of the King’s subjects; to create public disturbance, or to lead to civil war; to bring into hatred or contempt the sovereign of the government, the laws or constitution of the realm, and generally all endeavours to promote public disorder.” The Statute has been referred to in regard to sedition. The Code, Section 132, I will read to you: – “Seditious words are words expressive of a seditious intention.” “A seditious libel is a libel expressive of a seditious intention.” Then Section 133: – “No one shall be deemed to have a seditious intention only because he intends in good faith, – (a) to show that His Majesty has been misled or mistaken in his measures; or, (b) to point out errors or defects in the government or constitution of the United Kingdom, or of any part of it, or of Canada or any province thereof, or in either House of Parliament of the United Kingdom or of Canada, or in any legislature, or in the administration of justice; or to excite His Majesty’s subjects to attempt to procure, by lawful means, the alteration of any matter in the state; or, to point out, in order to their removal, matters which are producing or have a tendency to produce feelings of hatred and ill-will between different classes of His Majesty’s subjects.”

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500  Supporting Documents It was formerly two years, but within recent years it has been increased to twenty years; apparently our legislators thought that this change should be made in the legislation, so that the law as it now stands is possibly more modern than you may have been led to believe by the very eloquent addresses to which you have listened; it is within a few years that the Statute has been so amended. Now, in dealing with this case, the accused is charged, you will remember, with publishing at Halifax, and with publishing at Thorburn, in the County of Pictou, and also with publishing at Glace Bay, in the County of Cape Breton. As to the publication of this article, which I need not read to you again, in Glace Bay, there is apparently no question. It was prepared by the accused and handed to the young lady, Miss McKeigan, who was called as a witness, and that in itself was a publication. Then it was further published, not by the hand of the accused, but by other parties, apparently with the accused’s knowledge, and handed to Mr. McDougall, an officer of the British Empire Steel Corporation at Sydney. It was also published as it appears by the young lady’s evidence to all “Locals,” – that is, the local unions of the United Mine Workers of America who constitute District No. 26; And you heard the evidence of the gentleman from Thorburn who said it was published there, so that there seems to be no question as to the publication. Then in regard to the publication in Halifax – the indictment is in three counts, Glace Bay, Halifax and Thorburn – it got to Halifax, and I don’t think it unreasonable to say that when a document of that kind once became distributed in the way McLachlan intended it should be distributed that he would naturally expect it would be published all over Nova Scotia and get into the newspapers also; that would probably be a matter for your consideration – but in regard to the two other places there seems to be no doubt whatever that the document was published in Glace Bay and Thorburn. Is this article seditious? That is, is it a document calculated to have such results as come under the definition of sedition which I have read to you? It is [sic] calculated to bring the government of the country – not the Liberal Party, or any other Party – but the government into contempt? That is a matter for your consideration, whether it was so intended. It is capable of a seditious construction I may tell you, gentlemen; and the next question for you is whether it was intended that the construction should be put upon it. That is a question for you. The facts of this case are entirely for you: All I can tell you is it is capable of a seditious construction and then it is for you to consider whether that construction should be put upon it under the particular circumstances of this case. The object of this article is to be considered. What was the object? Apparently to have the Provincial Police and the military withdrawn from Sydney. The Government of Nova Scotia, it is said in this article, is the guilty and responsible party for this crime, that is for the act as I understand the article of having the Provincial Police in Sydney, and the object apparently of this article was to have the military and the police withdrawn from

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Supporting Documents  501 the City of Sydney. For what purpose? You are told by counsel for the defence that the police were there to break the strike. Was that the purpose for which the police were there? Or were the police there to maintain order? What interest had the Glace Bay miners in having the police removed from Sydney? We are told they are a separate concern altogether. Why was the Glace Bay miner interferring [sic] in the Steel strike at Sydney? They say, to get the police and military removed. What for? That is for you to consider, when you consider the intention of this article. Was it to give the strikers a free hand to do as they had been doing before? That is a question for you to consider, as to whether this document was intended to operate and incite people against law and order, – the orderly government of the community by the executive of the government. Then, as going to the prisoner’s intention, you are to consider his opinions, and those of the party whom he represents. They, in the year 1922, I think it was, at Truro, passed a resolution, as follows: “That we proclaim openly to all the World that we are out for the complete overthrow of the capitalist system and capitalist state, peaceably if we may, forcibly if we must, and we call on all workers, soldiers” – how are soldiers consistent with their duty to complete the overthrow of the state? – “and minor law officers in Canada to join us in liberating labour.” This resolution was passed by the party, or by the delegates of the party of which he is a paid official and executive. Perhaps that will throw some light on the object and intention of this article when you have to determine whether you should hold it to be seditious in this case or not, and as to whether it was published with that intent. Then we have the literature, seditious literature, in his house, which by itself might not be of much weight, but which you are entitled to consider when you come to determine his intention under all the circumstances of the case. It is a matter of sheer indifference so far as you are concerned by what means that document was obtained; whether lawfully or unlawfully is another question. It is here, and that is all we have to do with in that regard. It appears strange to my mind, but remember, gentlemen, that you are trying this case, and any expression of opinion that I may give as to the facts is intended merely to assist you, and unless it agrees with your own good judgment under the evidence, don’t take my judgment, – you are not answerable to me but to your own consciences, and you have to act in accordance with the oaths you have taken, – you are the masters of the facts, and the sole masters in this case, and if I express any opinion in regard to it don’t take my opinion; it has been a difficult question to my mind to determine why the strikers, or why the labouring man, if they intend to pursue lawful means to get their rights, and the redressing of their wrongs – and I am far from saying they have none – why, if they wanted these wrongs redressed by lawful means, they should want the removal of the police and the military. I leave that question with you; that is for you to consider.

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502  Supporting Documents I want you to consider this also: That the action of the Provincial Police in doing what they did is not directly before you and I don’t think it has very much bearing on this case. We have the conditions in Sydney before the police came there, and we have the conditions after they came there: and it is perhaps clear that they restored order: There was disorder before, and they restored order. That may be for you to consider, but as to the particular things they did in bringing that about, whether they trampled this one or that one under, whether they broke anyone’s head, or whether they exceeded the reasonable demands of the situation in dealing with the crowd there at that time is not, I think, a matter of very much importance. If a policeman exceeds his duty, if a policeman treats a prisoner or anyone else with brutality, there is redress: the Criminal Code may give redress, and the civil law can give redress, and it will be for you to consider if these policemen were guilty, and I am not saying whether they were or not, whether the ordinary modes of procedure for redressing wrongs should not have been resorted to in order to get redress rather than that eight or ten thousand men should be brought out on strike. You have heard something of women and children: of course, women and children are to be protected; everybody has to be protected – protected by law. Is that the way to punish a Provincial Police officer, by calling out ten thousand men on strike and cutting off the supply of coal possibly to the Province of Nova Scotia, and possibly creating more or less distress not only to the miners themselves but possibly to some other people in the community. The miners are not the only people interested in having coal raised. It is for you to consider that. Something has been said about Mr. Gray. Mr. Gray is not on trial. Take one case at a time. Whether Mr. Gray is prosecuted or not has nothing to do with this case. As I infer from the evidence, this article did appear in the MORNING CHRONICLE, and a great deal more appeared, as I understand the evidence, with it. It all depends upon the setting in which that article would appear. However, that is not for your consideration – the Gray case. This is the McLachlan case, and I don’t think you need worry about Mr. Gray’s case. Gentlemen, labouring men, workmen, are entitled to respect and entitled to good will with the rest of the community. Some of the finest names in history are those of men who at some time of their life were labouring men: indeed, you find men of that class even from the servile labour in days when there was such. The labouring man is entitled to respect, and he is entitled to good will as one of ourselves and as a member of our community, but the labouring men in the world, however, don’t do all the work that is necessary in this world; and the rest of the community – the other honest people in this community are entitled to the good will and respect of the labouring men. That is all I need to say to you on that subject. There are dishonest people and bad people in all classes of the community; perhaps unfortunately labouring men, from their circumstances, are subject to more temptations. I need not elaborate on these social questions. It is for you

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Supporting Documents  503 men of the world, who are familiar with affairs, and I leave this case in your hands to deal with it according your oaths, after instructions I have given you and after hearing very eloquent and able addresses on behalf of the prisoner and from His Majesty’s Attorney General. I need not tell you – but I tell it to every jury, unless it slips my memory – that of course, in this, as in all criminal cases, the burden is on the Crown to prove the case against the prisoner, and to satisfy you beyond all reasonable doubt that he has committed the crime with which he is charged. Source: LAC, Records of the Department of Justice, RG13 C2, vol. 1233, “The King vs. James B. McLachlan,” 67–71 [transcript of the case in the Supreme Court of Nova Scotia sitting as a Criminal Court of Appeal, 1923].

14. excerpts from quebec court of appeal judgment upholding a conviction for resisting and obstructing a peace officer while enforcing the “padlock law” Lessard and Another v. Regem [1939] Rapports Judiciaires de Québec 448 APPEAL from a verdict of the Jury at the Assizes of the Court of King’s Bench (Crown Side) (Quebec, October, 1938), and of the sentence of Mr. Justice Langlais, presiding over said Court. The appeal is dismissed. Mr. Justice HALL. Although this appeal has been given some publicity as one concerning the constitutionality of the so-called “Padlock Act,” the charge upon which the appellants were tried was simply conspiracy to resist and obstruct a Peace Officer in the execution of his duty. (Cr. C. 168.) The appellants seek to introduce the question of the constitutionality of the Act on the contention that, since the Act itself was ultra vires of the Legislature, it is invalid, has no legal effect, and can create no right, obligation or duty, from which it necessarily follows that the Attorney General and his officers had no duty or right to padlock the appellant Lessard’s house, and that the officers guarding it were mere trespassers, whom the appellants, therefore, had a right to resist and obstruct. The relevant sections of the “Act to protect the Province against communistic propaganda” (1937, 1 Geo. VI, ch. 11) are the following: 3. It shall be illegal for any person, who possesses or occupies a house within the Province, to use it or allow any person to make use of it to propagate communism or bolshevism by any means whatsoever. 4. The Attorney General upon satisfactory proof that an infringement of section

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504  Supporting Documents 3 has been committed, may order the closing of the house against its use for any purpose whatsoever for a period of not more than one year; the closing order shall be registered at the registry office of the registration division wherein is situated such house, upon production of a copy of such order certified by the Attorney General. 12. It shall be unlawful to print, to publish, in any manner whatsoever or to distribute in the Province any newspaper, periodical, pamphlet, circular, document or writing whatsoever propagating or tending to propagate communism or bolshevism. 14. Any constable or Peace Officer, upon instruction of the Attorney General of his substitute or of a person authorized by him for the purpose, may seize and confiscate any newspaper, periodical, pamphlet, circular, document, or writing whatsoever, printed, published, or distributed in contravention of section 12 and the Attorney General may order the destroying thereof. It appears from the evidence that, in the month of May, the Attorney General issued an order authorizing one of the Provincial police Galibois to search the premises no. 31 rue Mazenod, where the appellant Lessard had his dwelling, and there to seize all documents and pamphlets “à tendances communistes et bolchéviques.” It may be noted in passing, although not directly relevant to the present proceedings, that this order or warrant went somewhat further than the Act itself, which does not make a crime the mere possession of communistic literature. What constitutes the offence against which the Act is directed, is the propagation of communism or bolshevism. The constable, however, had no right to question the definite orders received from his superior officers, and, on the 30th of May, Galibois seized several framed portraits, pamphlets, and a great many documents which are communistic in character, and it was doubtless assumed that the appellant Lessard could have had them in his possession only for the purpose, and with the intention of propagating communism. It is also irrelevant, in the present connection, to criticize the seizure and confiscation, on the ground that some of the articles seized, notably portraits of the late Louis Joseph Papineau, and one François Morin, a Canadian who died for the cause of democracy in Spain, were not communistic. The present appeal makes no attack upon that original search warrant. It is evident from the circumstances that the Attorney General, having been notified of the general character of the documents seized, considered that there was satisfactory proof that an infringement of section 3 had been committed, that is, that the person in occupation of the house in question was using it “to propagate

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Supporting Documents  505 communism or bolshevism,” and, on the 13th June, he issued the warrant ordering that the premises in question should be padlocked for the period of one year. After a preliminary notice to the occupants, the dwelling was padlocked on the 21st of July, and guards placed to prevent any access to the premises. The appellant admits that he solicited the assistance of his friends to enable him to enter the premises, and, in pursuance of this agreement, the appellant Drouin, with another man, temporarily imprisoned the constables on guard in their motorcar by twisting a wire about the handles of the doors in order to make it difficult for them to get out. Taking advantage of the distraction of the constables, the appellant Lessard forced his way into the padlocked premises and was there arrested. There was, without any possible doubt, a conspiracy to obstruct a peace officer in the execution of his duty, but it is contended by the appellant that the police constables were mere trespassers because the so-called Padlock Act was ultra vires of the Provincial Legislature, and that, consequently, the warrant issued thereunder was not a valid authorization empowering the constable to guard the premises to prevent any interference with the padlock or seals. It was clearly impossible for the constable to presume to disregard the instructions of a warrant which, on its face, was valid, and which was issued under the authority of a Provincial Statute. The appellant further contends that he was forced to resort to a breach of section 168 of the Criminal Code, because there was no other manner in which he could bring to the attention of the Courts the question of the constitutionality of the Padlock Act. But, in support of this argument, he relies solely on the fact that the Act itself indicates the procedure that may be followed by the owner of the house, and provides no machinery for a tenant to attack the seizure and confiscation of his property. The Civil Law of the Province provides rules of which the appellant Lessard might have taken advantage to attack the legality of that seizure and confiscation, in the application of which it would have been possible to raise the question of constitutionality of the Act. The appellant, instead of proceeding in a legal manner, took the law into his own hands, and was guilty of an admitted breach of a definite provision of the Criminal Code. I concur with Mr. Justice Letourneau in the opinion that, in the present issues, the question of the constitutionality of the so-called Padlock Act is irrelevant, and that the appeal should be dismissed. M. le juge LETOURNEAU [Editors’ Translation] …

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506  Supporting Documents For my part … I believe that a law should be obeyed as long as it exists and as long as it has not been put aside; and this implies, in my view, that the officers charged with applying or with ensuring a law is observed have a right to the respect and to the authority of an officer “on duty” which tends to protect and uphold article 168 of the Criminal Code. … Under the constitutional Act that governs the country, the law remains the law even if outside the powers of the province that has enacted it, for as long as it has not been withdrawn or put aside by a competent tribunal. And this is all that one reproaches it for in sum, for being ultra vires the law of the Province. In the case at hand, not only has the unconstitutionality that the appellants invoke not been decided upon but it must be recognized that nothing has been done to reach this goal. … This is enough for me to conclude that it was the offense foreseen in Article 168 of the Criminal Code. And because the appellants conspired to commit this offense – there was intent because they obtained the help asked for – we must say that in law nothing conflicts with the finding that the appellants are guilty. I do not plan to ratify or otherwise approve the part of the address of the judge to the jury where he tries at the end to justify the particular law and brings out the danger of previous intrigues of the accused Lessard and of certain of his accomplices. I have to recognize that this was intended to impress the jury and there would be room to regret this part of the address if we were not facing a case where manifestly the verdict could not be other than what it has been. … I refuse the appeal. [Chief Justice Tellier and Justices Bernier and Casgrain concurred in the result.]

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Index

Abitibi unrest. See Communist movements aliens. See enemy aliens Australia, war statutes Canadian, comparison to, 87–9 War Precautions Act, 1914–15 invalid aspects, 80 naturalized Germans, application to, 79 powers under, 79 Bolshevism Catholic anti-Bolshevik stance, 291–2 fears of, 326 RCMP position against, 371–3 seditious-conspiracy trials and, 225–6, 239 sympathies for, rise of, 186, 187 Verigin, Peter, as agent of, 372 British government authority. See enemy aliens British subjects. See naturalized British subjects Canadian Labour Defence League, 26, 296, 298 Cape Breton. See seditious libel, Cape Breton cases Catholic Church anti-Bolshevik stance, 291–2

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anti-Communist/socialist campaign/ agitation, 294, 312, 315 civilian surveillance, 13–16, 18, 296 coal miners’ strike. See seditious libel, Cape Breton cases Communist movements. See also Criminal Code, s.98 Abitibi unrest ethnic mix of workforce, 306 generally, 305–6 immigrant workers, sympathies of, 306 labour militancy in, 306 lumberjack strike, 307–9 Lumber Workers Industrial Union, 306 Mine Workers Union of Canada, 306, 310 Noranda Mines unrest criminal charges against strike   leaders, 311 ethnic mix of workforce, 310 police preparation, 309–10 strike action, 310–11 Ukrainian Labor Temple, 306 anti-Communist protests/violence, 305 Communist Party of Canada illegality of, declaration re, 303, 348–9

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508  Index Communist movements (Continued) Montreal, in, 292 objectives of, 315 unemployment, demonstrations re, 303 Communist publications, seizures of, 303–4 generally, 6, 290–1, 311 Montreal (1919–29), in Catholic anti-Bolshevik stance, 291–2 Communist Party of Canada, activities of, 292 June 1919 labour revolt, 291 Saint-Martin, Albert, 292 socialist groups, 291 Université ouvrière, establishment of, 292 Workers’ Party of Canada, establishment of, 292 Montreal (1929–36), in Canadian Labour Defence League, founding of, 26, 298 Catholic Church anti-Communist/ socialist campaign, 294 civil-rights advocates, protests of, 299 Criminal Code, s.98, seditious   organizations arrests under, 294 enforcement of, 296, 298 trials. See trials demonstrations and marches, 293 federal government crackdown, 293–4 police anti-Communist squad, establishment of, 295 police spies/informants, activities of, 295–6 Sixth Congress of the Comintern, context of, 293 Taschereau, Premier Louis-Alexandre deportation of immigrants, urging   of, 296 1931 anti-Communist campaign,   297–8 support for Church campaign,   294–5 Université ouvrière. See Université ouvrière

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Workers Unity League, establishment of, 293 Padlock Law. See Padlock Law Pilon, Gaston, blasphemous libel charges against, 305 Red Scare (1936–40) Catholic Church anti-Communist agitation, 312, 315 generally, 315 labour unrest, police measures against, 313 Padlock Law. See Padlock Law repeal of Criminal Code, s.98, 311–12 protests re, 312, 315 Saint-Martin, Albert blasphemous libel, charges of, 304 role of, 304 sedition offences repeal of Criminal Code, s.98, 311–12 trials CLDL deportation protest meeting arrests, 301–2 Labour Temple arrests, 299–300 Prince Arthur Hall arrests, 299–300 Toronto CPC raids, 302 Université ouvrière confusion with Communist Party, 297 debates, police monitoring of, 295 denunciation of activities of, 297 establishment of, 292 Pilon, Gaston, role of, 305 Saint-Martin, Albert, role of, 304 Communist Party of Canada. See Communist movements conscription. See also Siberian Expeditionary Force Borden government measures, opposition to, 138–40 Canadian Expeditionary Force, initial enthusiasm re, 135 exemptions revocation Supreme Court of Canada ruling re validity, 133 French Canadian opposition to, 5, 17–19, 136, 189 generally, 17–19 Gray, George Edwin. See Gray conscription case

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Index  509 Lewis, Norman, case re, 133, 134, 141–2, 465–70 Military Service Act eligibility classes, 137 enactment of, 136 exemption categories and procedures, 137–8 exemption rejection appeal procedure, 138 rationale for, 137 revocation of exemptions under, 132–3, 142 orders-in-council revoking exemptions Department of Justice conflicts of interest, 143 regulations re, 142 Supreme Court of Canada appeals, 142–3 pending election context, 136 political problem of, use of courts re, 133 rural/farm opposition to, 136, 138–40 Wartime Elections Act and. See naturalized British subjects War Measures Act conscription exemption, revocation orders under, 133 introduction of, 136 court-martials conscription and. See conscription Siberian Expeditionary Force. See Siberian Expeditionary Force Criminal Code, s.98. See also Communist movements, Montreal (1929–36) in; Regina Riot Bolshevik revolution fears, 326 Communist Party of Canada arrest of leaders. See Rex v. Buck et al. use against, generally, 324 1892 Canadian Criminal Code, 328 emergency powers origin of, 324 generally, 324–5, 352 governmental change publications advocating force, offence re, 329 Guthrie, Hugh, promotion of, 327 Immigration Act, s.41 amendments and, 330–1

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deportation of foreign-born CPC members, 349–50 labour revolt, fear of post-WWI, 5–6, 326–7 “lawful criticism,” deletion of, 328 membership in unlawful organization, offence re, 329 Order-in-Council PC 2384 arrests under, 326 context of, 326 as copy of, 324 origins of, 324 repeal of, reasons for, 326 “permanent exceptionalism,” as policy of, 324, 330, 352 political policing, as tool of, 324, 352 post-Buck case use of, 350–1 repeal efforts, 331, 351 repeal of, 311–12 Rex v. Buck et al. Buck, testimony of, 342–4 charges, 332–4 closing addresses, 346–7 crown evidence, 337–41 defence case, 441–6 Ewan, Tom, testimony of, 344–5 government strategy, 334 guilty verdicts, 348 indictment, 333–4 jury charge, 347–8 lawyers at, 334 opening addresses, 336 preliminary hearing, depositions at, 333 unlawfulness of CPC evidence re, 338–41 issue re, 335–6 Vasiliev pamphlet, 341, 343 sedition, common law definition, 328 “unlawful organizations” provisions advocacy/publication offence, 329 convictions under, facilitation of, 330 membership in, offence re, 329 offence re, 328–30 rental of hall to, 329 seizure of property, 329

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510  Index Criminal Code, ss.132/133 “lawful criticism” clause, 9, 328 pemissive scope of, 276 seditious-intention provision, 351, 352 deportation CLDL deportation protest meeting, arrests, 301–2 Doukobors, of. See Doukobors Immigration Act, s.41 amendments and, 330–1 deportation of foreign-born CPC members, 349–50 immigrants, of, 296 powers, use of, 22 Doukobors B.C. government, conflict with, 368 Christian Community of Universal Brotherhood, 366 civil-liberty issues, 385–6 community schisms, 367, 370–1, 383 deportation efforts re Verigin, 364, 373–8 deportation order, appeal of, 375 deportation procedures, generally, 376 government plans, 376–8, 380–1 habeas corpus application, 378–9 Makaroff, Peter, role of, 374, 377, 385–6 naturalization, timing issue, 375, 379–80 natural-justice rules, ruling re, 380–1 perjury conviction, 373 public/press criticism of deportation procedures, 381 release from prison, timing of, 377 Saskatchewan government pressure, 374 SCC reference re early prison release, 379 Winnipeg Board of Inquiry, adjournment issue, 380 deportation law anti-communism context, 384 civil-liberty issues, 385–6 class system, 383 habeas corpus challenges to, 385 racial/ethnic discrimination, 384

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Doukobors (Continued) shielded practices of Immigration Department, 383 experience with Canadian government, 366–7 generally, 364–5 issues with Canadian government, 367 leadership issues, 366–7, 369, 383 Makaroff, Peter, 374, 377, 385–6 non-conformity, 365 non-Doukhobor community, attitudes of, 371 public nudity offence, amendments to, 372–3 RCMP, anti-Bolshevik position of, 371–3 schools issue, 368 Sons of Freedom incendiary and naked protests by, 371–2 mass arrests of, 375 Verigin, Peter Petrovich Bolshevik agent, perception as, 372 character of, 369 death of, 382 deportation efforts. See deportation efforts re Verigin leadership invitation, 366, 369 opposition to, 369 passport, efforts to acquire, 382 Soviet authorities, trouble with, 369 unity, efforts to achieve, 370–1 enemy aliens Alien Restriction Act, 1914, application in Canada, 72 Australian vs. Canadian statutory regimes, 87–9 Bradley, W.H., reports of, 45–6 British imperial authority, 71–2 census records re, 73 Colonial Laws Validity Act, 1865, application of, 80, 82 Colonial Office directives re, 80–2 German espionage, 81–2 influence of, 80–1 competing for jobs, internment consequence, 64

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Index  511 15 June 1915 Order-in-Council PC 1502, 64 constitutional issues, generally, 71–2 disenfranchisement. See naturalized British subjects 15 August 1914 Proclamation Respecting Immigrants of German or AustroHungarian Nationality. See 15 August 1914 proclamation generally, 42–3 habeas corpus, availability of, 82–4 Britain, in, 83 Canada, in, 83 New Zealand, in, 84 Re Gusetu case, 82, 84 standing issue, 83–4 variable application, 82 Hughes, Col. Sam, concerns of, 51 illegal crossing to U.S. by, attempted, 47 indignities of being identified as, 61–2 internment issue, generally, 54–5 interment of. See internment Kinsale, Rev. M.C., concerns of, 46 McDonald, Sir Hugh J., concerns of, 46 Official Secrets Act, application of, 81–2 public anxiety re, 54 sufferings of, 44–51 economic downturn, effects on, 47–9 employment discrimination, 48–9, 51 feeding and housing issues, 50 government relief, lack of, 48 squalid living conditions, 49–50 unemployment issue. See unemployed state of threat posed by, apprehension of, 50–1 2 September 1914 general proclamation, intention of, 75 unemployed state of, 48–54 Borden, Prime Minister, concerns of, 53 British government, position of, 53 control and maintenance proposals, 52 federal government concerns, 53 federal government response. See Order-in-Council PC 2721 internment proposal, 52 Meighen, Aurthur, proposals of, 52

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Shaughnessy, Sir Thomas, concerns of, 52 War Measures Act. See War Measures Act espionage, generally, 13–16, 18, 296 15 August 1914 proclamation apprehension/detention re hostile acts, 44 defensive purpose of, 44 failure of, 62 no-harm document, signing of, 55 travel prohibition under, 43–4 Gray conscription case appeal to Privy Council, issues re, 152–4 archival access-to-information issues, 465–70 background to, 132–5 constitutional implications, 157 court-martial context, 133, 140–1 exemption rejection appeal, 138 habeas corpus petition. See also In re Gray Department of Justice arrangement for, 143–7 government test case, as, 134, 141, 143 secrecy re, 154 In re Gray, 133, 147–52 copies of decision, issues re, 153–4 divided bench, 147 front-page news, as, 147 issues, 147–8 jurisdiction issue, 150, 151 lawyers, 147 Lewis case, references to, 149 orders-in-council, arguments re use of, 148–50 reasons, 150–2 War Measures Act argument, 149, 152 judicial dispute/confusion following, 152–4 Justice Canada privilege claim, 134–5, 465–70 literature re, 134 military service, 156

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512  Index Gray conscription case (Continued) Military Service Act exemptions, revocation of, 132–3 Newcombe, Leslie, role of, 143–5, 147– 51, 153–7 political consequences, 157 prison sentence, 156 17 July order-in-council, 146, 154–5 sources re, 134–5 Varcoe, F.P., role of, 141, 143–4, 156–7 habeas corpus Doukobors, re, 378–9, 385 enemy aliens, application re. See enemy aliens Gray conscription case, in. See Gray conscription case Immigration Act generally. See Deportation shielded practices of Immigration Department, 383 Winnipeg General Strike leaders and, 220–1 internment civilian prisoners of war, forced conscription of, 77 Hague Convention provisions re, 77 military organization re, 77 military reservists on neutral ships, detention of, 77 Order-in-Council PC 2721. See Order-inCouncil PC 2721 Otter, Maj.-General Sir William, 77 Re Beranek case, 76 registrar’s decision, limited judicial review of, 76 6 November 1914 order-in-council, 77 28 October 1914 order-in-council, 76 labour unrest. See Canadian Labour Defence League; Communist movements; Criminal Code, s.98; radicalism, political and labour; seditious-conspiracy trials; Siberian Expeditionary Force Library and Archives Canada holdings

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access and retrieval issues access conditions, 441–2 archives search, 442 finding aids, 443 private records, 441 public records, 440–1 reference numbers, 442 searching by source, 442 Archives Search database, 439 British classes of records on microfilm, 455 Canadian prime ministers/public figures, listing, 452–4 generally, 460 government fonds, listing, 443–51 Justice Canada files, issues re, 465–70 private fonds, 451, 455, 457–9 public figures, cross-references to fonds of, 454–5 Winnipeg General Strike, 439–40, 450, 455 Military Service Act. See conscription; Gray conscription case; World War I Montreal. See Communist movements naturalized British subjects. See also Orderin-Council PC 2721 British Nationality and Status of Aliens Act, 1914, effects of, 79 detention without trial, 77–8 disenfranchisement Australia, in, 86–7 Canada, in. See Wartime Elections Act, 1917 German Delbruck Law, effects of, 78 internment of, 78–9 naturalized Germans, 78 Wartime Elections Act, 1917 conscription issue and, 85 effects of, 84–5 exemptions, 86 generally, 5 opposition criticism of, 85 reactions outside Canada, 85–6 Noranda Mines unrest. See Communist movements

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Index  513 On-to-Ottawa Trek. See Regina Riot Order-in-Council PC 2721 approval of, 55 arrests under, reasons for, 59 content of, 55–6 dualism of, 58 enemy-alien reaction to, 60 internment under altruistic measure, as, 65 camps, wilderness locations of, 63 discipline and punishment, 63 management and control basis, 63 moral gloss over, 64–5 numbers interred, 63 press criticism of, 65 work requirement, 63 naturalization efforts increase in, 61 Mueller, Professor P.W., case of, 61–2 referees requirement, addition of, 61 objective of, public announcement re, 56–7 police duties under, 58–9 press representations of, 57–8 prisoner-of-war category, extension of, 57 registrars, duties under, 58–9 registration offices, locations of, 59 registration and report requirements, 60–1, 62 related orders-in-council, 56 security dimension of, 56–7 seditious-utterance prosecutions and, 60 supervision and control aspects, 58 unemployment-relief aspects, 57 Padlock Law effects on radicalism, 314 enforcement of, 313–14 introduction of, 312 invalidity of, declaration re, 314 Lessard, Francois-Xavier, trial of, 314 pre-emptive nature of, 313 prisoners of war. See enemy aliens radicalism, political and labour Canadian Labour Defense League, founding of, 26

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deportation powers, use of, 22 Industrial Disputes Investigations Act, enforcement of, 21 legal powers, use of, 21 militia/police, use of, 24–5 municipal governments, role of, 24 political offences, prosecutions for, 22 public order, use of criminal laws re, 23 undercover surveillance, 25 Red Scare. See Communist movements Regina Riot CCF MPs, efforts to obtain government documents, 428 Citizens’ Defence Movement, 412, 426, 428 Commission report conclusions in, 424 reaction to, 425–6 described, 409 Evans, Arthur, 403, 404, 413, 418 Gardiner, Premier actions of, 405–6 conflict with Bennett, Prime Minister, 405–8 generally, 431–2 inquiry re closing arguments, 421 commencement, political controversy, 416 counsel at, 416–17 establishment of, 410 Evans, Arthur, testimony of, 418 evidence at, 418–21 federal government opposition to, 412 judges leading, 411 reaction to appointment, 411 report. See Commission report scope of, 410–11, 416 witnesses, 417 On-to-Ottawa Trek alleged Communist leadership of, 402, 408 CPC opposition, 404 federal government decision to arrest, 405–6 leaders of, 403, 413–15 National Defence camps, 403 Railway Act violation strategy, 407

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514  Index Regina Riot (Continued) Regina, impasse in, 408 participants, perceptions of, 405 Vancouver strike, 403 RCMP control of, 408 use of against trekkers, 408 RCMP court proceedings adjournment, reasons for, 414 anti-Communist background, 414 defence counsel, 412 preliminary court appearances, 414 preliminary hearing, 413–15 release of convicted trekkers, failure re, 429 Relief Camp Workers’ Union, 403, 414 significance of, 431–2 trials conduct of, 423–4 convictions, 424 appeal of, 426–8 defence lawyers, 422 defence strategy, 423 delay of, 415–16 RCMP court proceedings. See RCMP court proceedings s.98 charges, dropping of, 423 sentences, 424 verdicts, 424 unlawful association (Criminal Code, s.98) charges, 409, 414, 423 research issue. See Library and Archives Canada holdings Royal Canadian Mounted Police. See Regina Riot security law, generally, 9–10 seditious-conspiracy trials Andrews, A.J. arrest of strike leaders by, 222 conduct of prosecutions and trial by, 231–42 evidence gathering by, 227–9 legal adviser to federal government, as, 218 Meighen, Arthur, consultation with, 218–19, 225, 229, 231–5 royal commission, request for, 231

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arrests. See Winnipeg General Strike, context of Bolshevik conspiracy particulars, 225–6 Citizens’ Committee Andrews, A.J. See Andrews, A.J. Bolshevik conspiracy strategy of, 225–6, 239 Consolidated Orders Respecting Censorship, prosecution under, 229–30 criminal law, confusion re administration of, 219 Dixon, Fred, arrest of, 233–5 Doherty, Charles, funding scheme of, 235–7 evidence-gathering procedures, 224, 227–9 generally, 217, 242–4 Johnson, T.H., role of, 218–20, 241–2 Mathers Commission, example of, 230 Meighen, Arthur censorship prosecution, refusal to act re, 229–30 consultations with Andrews, J.A., 218–19, 225, 229, 231–5 criminal prosecution, refusal re, 231–3 prosecutorial authority Andrews, J.A., actions of, 232–4 discretion, exercise of, 219–20 federal government, refusal to prosecute, 231–4 provincial government, refusal to prosecute, 232, 234 royal commission, calls for, 230–1 searches and seizures nationwide, 227–9 strike leaders, re, 224 trials acquittal, 242 challenge re impartiality of Citizens’ lawyer, 241 charge to jury, 240 charges, framing of, 238–9 convictions, 240, 242 evidence, 239–40 federal funding, 235–7, 242 jury, selection of, 237–8, 240–1 “proof of common purpose,” significance of, 239

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Index  515 “state” trial, presentation as, 238 Winnipeg General Strike, context of Citizens’ Committee, activities of. See Citizens’ Committee strike leaders, arrest of citizen’s arrest basis, 223 Criminal Code basis, 221–3 Immigration Act basis for, 220–1 organized labour protests, 224–5 Reames, Albert, information basis   of, 223–4 searches and seizures, authorization   for, 224 Woodsworth, J.S., arrest of, 233–5 seditious intention. See Criminal Code, ss.132/133 seditious libel, Cape Breton cases appeal hearing, 278–9 Besco described, 263 disintegration of, 282 police force of, 273 Bolshevism, as case against, 277 Byng of Vimy, Lord discussion with union leaders, 269 tour of, 269 circular letter to local unions circulation of, 267 text of, 267 coal miners’ strike, context of generally, 263 1925 strike, 281–2 provincial government measures, 265 generally, 261–3 liberal order in Canada, construction of, 262, 283–4 McLachlan, James Bryson arrest of, 267 background, 263–4 candidate in federal and provincial elections, as, 264, 282 charges against, 268 circular letter to local unions, 267 coal miner leader, status as, 264 Maritime Labor Herald, as editor of, 281 post-imprisonment reception of, 280–1 release from prison, opposition to, 280

Wright-Tucker-Binnie_4944_507_(Index).indd 515

trial and conviction of. See trial United Mine Workers of America, position in, 263 Workers’ Party of Canada, membership, 264 Nova Scotia Trade Union Act (1937), 283 political trial, contemporary perceptions as, 279 Privy Council, leave to appeal to, 279 sedition, loose definition of, 262 seizure of union literature, 266 steel plant workers military interventions, 266 strike by, 266 union recognition, struggle for, 265–6 trial bail issue, 268 charges, 271 conviction, 277 defence cross-examinations, 274 generally, 263 indictment, 271 jury charge, 276 jury’s verdict, 277 McLachlan, muted conduct of, 275 Mellish, Justice Humphrey R. background of, 272 preliminary rulings of, 273 preliminary hearing, 270 prosecution evidence, 273 seditious-libel charge, significance of, 272 sentence, 277 venue issues, 270–1 Woodsworth, J.S., support of, 280, 282 seditious utterances, offence of Alberta cases anti-war speech, 103–4 Cohen, George, case of, 106–7, 110 Elmer, Herman, case re, 103–4 Felton, Oscar, case of, 107–8 incitement to steal, 102, 104 McConnell, William, case re, 102–3 Trainor, Arthur, case of, 107, 110–11 behavioural standards/expectations, context of, 98, 112–14 British jurisprudence, 101 Cohen, George, case of, 106–7, 110

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516  Index seditious utterances, offence of (Continued) Criminal Code provision, 102 Felton, Oscar, case of, 107–8 generally, 97–100, 120–1 Lusitania sinking anti-German reaction to, 105–6 support for, sedition charges and, 107, 111, 112 Manshrick, Albert, case of, 112–14 jury charge issues, 112–14 North-West Rebellion context, 101 post-WWI unease, 118–21 toleration, limits to, 120–1 seditious intention, definitions common law, 101–2 context and local meaning approach, 108, 110 draft 1892 Criminal Code, 102 generally, 116 Stephen, Sir Leslie, 101, 276 Smyk, Peter, case of, 119–20 socialist-agitation cases, 114–18 politicized “troublemakers” context, 118 Reid, John, 114–18 Stuart, Justice Charles, judicial activism of, 108–11, 119–20 Trainor, Arthur, case of, 107, 110–11 World War I context, generally, 97–100 Alberta cases, 100 behavioural standards/expectations, context of, 98, 112–14 criticism of war, context of, 99 judiciary, perceived role of, 98–9 prosecutions, 1914–18 statistics, 99 western Canada labour context, 98 Siberian Expeditionary Force commanding officers, 176 conscript element, 177 court-martial proceedings contrasts with 1837 Rebellion proceedings, 197 fairness issues, 195 guidelines governing, 194 ill treatment of accused, 195, 199 Laplante, Alfred, proceedings against, 195–6 legal procedure, 194

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officer panel presiding, 195 quasi-inquisitorial nature of, 194 sentences, 196–7, 198–9 soldiers subject to, identities of, 193–4 subsequent release of convicted soldiers, 199 testimony, 195–8 delay, issue of, 182–3 French Canadian conscripts anti-conscription sentiment, 189 class divisions and, 189, 190 companies of, 177–8, 187 court-martial proceedings against. See court-martial proceedings described, 172–3 generally, 172, 176, 199–202 labour protests against, 177, 182–6 BC Federationist reports, 183, 185 Federated Labour Party, formation of, 183 labour agitation, 183–6 soldier-labour unity, rise of, 186 legality of, 181–8 Crerar, T.A., concerns of, 181–2 press opposition to expedition, 182 White, Sir Thomas, concerns of, 181 mutiny. See Victoria, mutiny in purpose of, 176 recruitment for, 177 regiments constituting, 176 Siberian Sapper newspaper, 200 soldiers constituting, described, 176 259th Battalion. See also Victoria, Willows Camp assembly Aldershot Camp, described, 178–9 commanding officer, 177 dissent and disease in, 178–9 soldiers comprising, origins of, 177 Spanish influenza, effects on recruitment, 178 Victoria mutiny in, 188–93 accounts of, 188–9, 191–2 BC Federationist reports, 192 class antagonism, 189 denials of, 191 evidence of, limitations in, 189 labour movement reports, 192

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Index  517 military censorship, effects of, 190 officers’ reports, 193 press reports, 190–1 regimental record accounts, 189 Willows Camp assembly. See Willows Camp assembly Vladivostok. See court-martial proceedings war weariness, effects of, 180–1 Willows Camp assembly Bolshevik sympathies, rise of, 186, 187 discipline, 187–8 discontent, 186–7 Russian troops, presence of, 181, 186–7 Spanish influenza, effects of, 179–81 training regime, 181 Sons of Freedom. See Doukobors surveillance, 13–16, 18, 30, 298, 369 Université ouvrière. See Communist movements Victoria mutiny. See Siberian Expeditionary Force Vladivostok court-martial. See Siberian Expeditionary Force War Measures Act broad scope of, 54, 73–4 conscription exemption, revocation orders under, 133 constitutionality of, affirmation of, 73 enactment of, 54, 73 generally, 10–13, 74 In re Gray and, 149, 152 internment purpose of, 54 internment pursuant to. See internment introduction of, 136

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orders under. See Order-in-Council PC 2721 parliamentary scrutiny of, lack of, 73 Wartime Elections Act. See naturalized British subjects Winnipeg General Strike. See seditiousconspiracy trials World War I Bolshevik Revolution. See Bolshevism Canadian economy, effect on, 5 Canadian Expeditionary Force (Siberia). See Siberian Expeditionary Force conscription. See conscription described, generally death sentences, 174 flexibility of, 174 generally, 4, 19–20 Militia Act (1906), 174 officers, exercise by, 174 Military Service Act, passage of Gray case. See Gray conscription case protest re, 175 Russian Civil War. See Bolshevism seditious utterances. See seditious utterances, offence of Siberian Expeditionary Force. See Siberian Expeditionary Force social unrest during, 173, 174 anti-German riots, 174 Calgary riots, 174 demobilization riots, 174–5 Victoria riots, 174 soldier unrest, 173 Vladivostok court-martial. See Siberian Expeditionary Force War Measures Act. See War Measures Act

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publications of the osgoode society for canadian legal history 2015 Barry Wright, Eric Tucker, and Susan Binnie, eds., Canadian State Trials, Volume IV: Security, Dissent, and the Limits of Toleration in War and Peace, 1914–1939 David Fraser, “Honorary Protestants”: The Jewish School Question in Montreal, 1867–1997 C. Ian Kyer, A Thirty Years War: The Failed Public/Private Partnership that Spurred the Creation of the Toronto Transit Commission, 1891–1921 Dale Gibson, Law, Life, and Government at Red River: Settlement and Governance, 1812–1872 2014 Christopher Moore, The Court of Appeal for Ontario: Defining the Right of Appeal, 1792–2013 Paul Craven, Petty Justice: Low Law and the Sessions System in Charlotte County, New Brunswick, 1785–1867 Thomas GW Telfer, Ruin and Redemption: The Struggle for a Canadian Bankruptcy Law, 1867–1919 Dominique Clément, Equality Deferred: Sex Discrimination and British Columbia’s Human Rights State, 1953–1984 2013 Roy McMurtry, Memoirs and Reflections Charlotte Gray, The Massey Murder: A Maid, Her Master, and the Trial that Shocked a Nation C. Ian Kyer, Lawyers, Families, and Businesses: The Shaping of a Bay Street Law Firm, Faskens 1863‒1963 G. Blaine Baker and Donald Fyson, eds., Essays in the History of Canadian Law, Volume XI: Quebec and the Canadas 2012 R. Blake Brown, Arming and Disarming: A History of Gun Control in Canada Eric Tucker, James Muir, and Bruce Ziff, eds., Property on Trial: Canadian Cases in Context Shelley Gavigan, Hunger, Horses, and Government Men: Criminal Law on the Aboriginal Plains, 1870–1905 Barrington Walker, ed., The African Canadian Legal Odyssey: Historical Essays 2011 Robert J. Sharpe, The Lazier Murder: Prince Edward County, 1884 Philip Girard, Lawyers and Legal Culture in British North America: Beamish Murdoch of Halifax John McLaren, Dewigged, Bothered, and Bewildered: British Colonial Judges on Trial, 1800–1900 Lesley Erickson, Westward Bound: Sex, Violence, the Law, and the Making of a Settler Society

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2010 Judy Fudge and Eric Tucker, eds., Work on Trial: Canadian Labour Law Struggles Christopher Moore, The British Columbia Court of Appeal: The First Hundred Years Frederick Vaughan, Viscount Haldane: ‘The Wicked Step-father of the Canadian Constitution’ Barrington Walker, Race on Trial: Black Defendants in Ontario’s Criminal Courts, 1858–1958 2009 William Kaplan, Canadian Maverick: The Life and Times of Ivan C. Rand R. Blake Brown, A Trying Question: The Jury in Nineteenth-Century Canada Barry Wright and Susan Binnie, eds., Canadian State Trials, Volume III: Political Trials and Security Measures, 1840–1914 Robert J. Sharpe, The Last Day, the Last Hour: The Currie Libel Trial (paperback edition with a new preface) 2008 Constance Backhouse, Carnal Crimes: Sexual Assault Law in Canada, 1900–1975 Jim Phillips, R. Roy McMurtry, and John T. Saywell, eds., Essays in the History of Canadian Law, Volume X: A Tribute to Peter N. Oliver Greg Taylor, The Law of the Land: The Advent of the Torrens System in Canada Hamar Foster, Benjamin Berger, and A.R. Buck, eds., The Grand Experiment: Law and Legal Culture in British Settler Societies 2007 Robert Sharpe and Patricia McMahon, The Persons Case: The Origins and Legacy of the Fight for Legal Personhood Lori Chambers, Misconceptions: Unmarried Motherhood and the Ontario Children of Unmarried Parents Act, 1921–1969 Jonathan Swainger, ed., A History of the Supreme Court of Alberta Martin Friedland, My Life in Crime and Other Academic Adventures 2006 Donald Fyson, Magistrates, Police, and People: Everyday Criminal Justice in Quebec and Lower Canada, 1764–1837 Dale Brawn, The Court of Queen’s Bench of Manitoba, 1870–1950: A Biographical History R.C.B. Risk, A History of Canadian Legal Thought: Collected Essays, edited and introduced by G. Blaine Baker and Jim Phillips 2005 Philip Girard, Bora Laskin: Bringing Law to Life Christopher English, ed., Essays in the History of Canadian Law: Volume IX – Two Islands: Newfoundland and Prince Edward Island Fred Kaufman, Searching for Justice: An Autobiography 2004 Philip Girard, Jim Phillips, and Barry Cahill, eds., The Supreme Court of Nova Scotia, 1754–2004: From Imperial Bastion to Provincial Oracle

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2003 2002 2001 2000 1999 1998 1997

Frederick Vaughan, Aggressive in Pursuit: The Life of Justice Emmett Hall John D. Honsberger, Osgoode Hall: An Illustrated History Constance Backhouse and Nancy Backhouse, The Heiress versus the Establishment: Mrs Campbell’s Campaign for Legal Justice Robert Sharpe and Kent Roach, Brian Dickson: A Judge’s Journey Jerry Bannister, The Rule of the Admirals: Law, Custom, and Naval Government in Newfoundland, 1699–1832 George Finlayson, John J. Robinette, Peerless Mentor: An Appreciation Peter Oliver, The Conventional Man: The Diaries of Ontario Chief Justice Robert A. Harrison, 1856–1878 John T. Saywell, The Lawmakers: Judicial Power and the Shaping of Canadian Federalism Patrick Brode, Courted and Abandoned: Seduction in Canadian Law David Murray, Colonial Justice: Justice, Morality, and Crime in the Niagara District, 1791–1849 F. Murray Greenwood and Barry Wright, eds., Canadian State Trials, Volume II: Rebellion and Invasion in the Canadas, 1837–1839 Ellen Anderson, Judging Bertha Wilson: Law as Large as Life Judy Fudge and Eric Tucker, Labour before the Law: The Regulation of Workers’ Collective Action in Canada, 1900–1948 Laurel Sefton MacDowell, Renegade Lawyer: The Life of J.L. Cohen Barry Cahill, ‘The Thousandth Man’: A Biography of James McGregor Stewart A.B. McKillop, The Spinster and the Prophet: Florence Deeks, H.G. Wells, and the Mystery of the Purloined Past Beverley Boissery and F. Murray Greenwood, Uncertain Justice: Canadian Women and Capital Punishment Bruce Ziff, Unforeseen Legacies: Reuben Wells Leonard and the Leonard Foundation Trust Constance Backhouse, Colour-Coded: A Legal History of Racism in Canada, 1900–1950 G. Blaine Baker and Jim Phillips, eds., Essays in the History of Canadian Law: Volume VIII – In Honour of R.C.B. Risk Richard W. Pound, Chief Justice W.R. Jackett: By the Law of the Land David Vanek, Fulfilment: Memoirs of a Criminal Court Judge Sidney Harring, White Man’s Law: Native People in Nineteenth-Century Canadian Jurisprudence Peter Oliver, ‘Terror to Evil-Doers’: Prisons and Punishments in NineteenthCentury Ontario James W.St.G. Walker, ‘Race,’ Rights and the Law in the Supreme Court of Canada: Historical Case Studies

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1996 1995 1994 1993 1992 1991 1990 1989 1988

Lori Chambers, Married Women and Property Law in Victorian Ontario Patrick Brode, Casual Slaughters and Accidental Judgments: Canadian War Crimes and Prosecutions, 1944–1948 Ian Bushnell, The Federal Court of Canada: A History, 1875–1992 Carol Wilton, ed., Essays in the History of Canadian Law: Volume VII – Inside the Law: Canadian Law Firms in Historical Perspective William Kaplan, Bad Judgment: The Case of Mr Justice Leo A. Landreville Murray Greenwood and Barry Wright, eds., Canadian State Trials: Volume I – Law, Politics, and Security Measures, 1608–1837 David Williams, Just Lawyers: Seven Portraits Hamar Foster and John McLaren, eds., Essays in the History of Canadian Law: Volume VI – British Columbia and the Yukon W.H. Morrow, ed., Northern Justice: The Memoirs of Mr Justice William G. Morrow Beverley Boissery, A Deep Sense of Wrong: The Treason, Trials, and Transportation to New South Wales of Lower Canadian Rebels after the 1838 Rebellion Patrick Boyer, A Passion for Justice: The Legacy of James Chalmers McRuer Charles Pullen, The Life and Times of Arthur Maloney: The Last of the Tribunes Jim Phillips, Tina Loo, and Susan Lewthwaite, eds., Essays in the History of Canadian Law: Volume V – Crime and Criminal Justice Brian Young, The Politics of Codification: The Lower Canadian Civil Code of 1866 Greg Marquis, Policing Canada’s Century: A History of the Canadian Association of Chiefs of Police Murray Greenwood, Legacies of Fear: Law and Politics in Quebec in the Era of the French Revolution Brendan O’Brien, Speedy Justice: The Tragic Last Voyage of His Majesty’s Vessel Speedy Robert Fraser, ed., Provincial Justice: Upper Canadian Legal Portraits from the Dictionary of Canadian Biography Constance Backhouse, Petticoats and Prejudice: Women and Law in Nineteenth-Century Canada Philip Girard and Jim Phillips, eds., Essays in the History of Canadian Law: Volume III – Nova Scotia Carol Wilton, ed., Essays in the History of Canadian Law: Volume IV – Beyond the Law: Lawyers and Business in Canada, 1830–1930 Desmond Brown, The Genesis of the Canadian Criminal Code of 1892 Patrick Brode, The Odyssey of John Anderson Robert Sharpe, The Last Day, the Last Hour: The Currie Libel Trial John D. Arnup, Middleton: The Beloved Judge

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1987 C. Ian Kyer and Jerome Bickenbach, The Fiercest Debate: Cecil A. Wright, the Benchers, and Legal Education in Ontario, 1923–1957 1986 Paul Romney, Mr Attorney: The Attorney General for Ontario in Court, Cabinet, and Legislature, 1791–1899 Martin Friedland, The Case of Valentine Shortis: A True Story of Crime and Politics in Canada 1985 James Snell and Frederick Vaughan, The Supreme Court of Canada: History of the Institution 1984 Patrick Brode, Sir John Beverley Robinson: Bone and Sinew of the Compact David Williams, Duff: A Life in the Law 1983 David H. Flaherty, ed., Essays in the History of Canadian Law: Volume II 1982 Marion MacRae and Anthony Adamson, Cornerstones of Order: Courthouses and Town Halls of Ontario, 1784–1914 1981 David H. Flaherty, ed., Essays in the History of Canadian Law: Volume I

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