Richard Bedford Bennett (Leader of the Official Opposition)
Except the one that got the fewest votes.
Mr. A. E. MacLEAN (Prince) moved that the recommendations contained in the first report of the joint committee of both houses on the printing of parliament, presented to the house on Wednesday, June 17, be concurred in. Motion agreed to.
Hon. ERNEST LAPOINTE (Minister of Justice) moved1 the second reading of Bill No. 96, to amend the criminal code. He said: I intend to discuss this bill on the second reading because of the principle involved in its main provision, namely, the repeal of section 98 of the criminal code. The repeal of that section was in the platforms of all the political parties during the recent election campaign, except the one led by my right hon: friend the leader of the opposition (Mr. Bennett).
Except the one that got the fewest votes.
Mr. LAPOINTE (Quebec East):
This in itself is an indication of what the public feeling was with regard to this statute. If the vote is analyzed it is obvious that the repeal of that section has been recommended by a tremendous majority of the electorate of Canada, all those who elected members of parliament that do not sit as supporters of my right hon. friend. It was an issue everywhere. In my own province the candidates supporting the then government made it the main topic of their campaign. As a matter of fact, my right hon. leader (Mr. Mackenzie King) and myself were represented as friends of the disorderly elements in Canada, and cartoons were profusely distributed, some of which I even showed to the house in the debate on the address. The repeal of section 98, I may add, was one of the planks of the Liberal party's platform, one of the fourteen points, and this is another instance of the redeeming of a pledge, which has given birth to the present bill.
May I first give to the house a brief history of this enactment. During the war, in Canada as well as in other countries engaged in the struggle, there were, under war measures acts here and' elsewhere, special rules, special regulations and special orders which were in themselves infringements of the liberty of the citizen. I do not complain about that, because in times of war such measures have to be
Criminal Code-Mr. Lapointe (Quebec East)
resorted to. But it must be done in such a way as to safeguard the liberties and the rights of private citizens. At all events, after the war was over, these enactments disappeared from the administration of other countries, but they were replaced in Canada in 1919 in section 98 of the criminal code. Hon. members will recall an agitation in Britain about that famous war time act called Dora-Defence of the Realm Act-which was finally repealed. The same thing happened everywhere. I call attention to some of the provisions of order in council P.C. 2384 of the Dominion of Canada, enacted under the War Measures Act.
Of what date, please?
Mr. LAPOINTE (Quebec East):
This one is dated September 25, 1918. In this order in council the provisions of section 98 are recited almost word for word, but always with this qualification at the end of every section of the order, "while Canada is engaged in war." You find that in section (b) of the order in council, which speaks of associations or organizations the purpose of which is to bring about any governmental, political, industrial or economic change-almost identical with the phraseology of section 98, but with these additional words: "while Canada is engaged in war." You find the same thing in section 3-"any person who, while Canada is engaged in war, shall act or profess to act as an officer of any such unlawful association." Section 4 says that anyone who has "at any time since the beginning of the present war been a member," and so forth; and if it be proved that since the beginning of the war he "attended meetings of an unlawful association" and so forth. Then section 6 refers to anyone who knowingly permits a meeting in his building, and so forth. These are virtually the same provisions as are included in section 98, with the addition of clauses for the purpose of reaching those in Canada who would impede the success of the war or refuse to obey the military laws of Canada during the war, and things of that kind, which seem to have been put in the order for the purpose of getting at those who refused to submit to military service or to conscription. These of course have disappeared. The order in council was for two purposes, for military service and for the purpose mentioned in the present section 98.
In 1919, after the war, following the troubles that occurred in Winnipeg, the government of the day appointed a parliamentary committee to consider amendments to the criminal code, and that parliamentary committee brought in the report upon which section 98 was based. It has even been stated that this was unanimous. The former minister of justice,
[Mr. E. Lapointe.)
in the debate in this house in 1933, said that the report had been adopted by a majority of one. He even stated then that I was one of that majority, which was absolutely wrong, because I was not even a member of the committee. The late Hon. Charles Murphy was a member of that committee, and when the question was discussed in the House of Commons he spoke as follows-his words are in Hansard of 1919, page 3291:
There was in the committee a very sharp division of opinion as to the necessity of amending the criminal code, and there was a further division of opinion whether, in the event of the committee being of opinion that the criminal code with reference to sedition and seditious propaganda should be amended -in view of the numerous strikes and the general unrest throughout the country-this was the proper time to make such a report to the house and to induce a discussion of matters that would inevitably be discussed by reason of that report and of any action that might follow the introduction of that report. It was on the latter ground principally- coupled with the fact that an opinion prevailed that the present criminal code was ample to cover the class of cases to which the attention of the committee was directed
that a portion of the committee, including myself, shared the view that this was not the proper time to introduce such a report as that, the adoption of which has now been moved hy the Solicitor General.
However, section 98 was then enacted. Since then continuous attempts have been made for the repeal of that section. It is suggested occasionally, and it was suggested in the debate of 1933, that these applications come from disorderly elements. May I say that they come from all classes of the community, and more particularly from organized labour in Canada. The Trades and Labour Congress of Canada at every annual meeting has passed a resolution asking for the repeal of this section. While I was minister of the former government, whenever a delegation of the Trades and Labour Congress of Canada met the government of the day, the request was urgently pressed that section 98 should be repealed. All the railway brotherhoods, such as the engineers and conductors, have been asking the same thing. No one was more persevering in that demand and more eloquent in presenting it than Mr. Tom Moore, who was then president of the Trades and Labour Congress of Canada. Mr. Moore has, I believe, the confidence of everybody in Canada, including my right hon. friend and other hon. gentlemen opposite, who never missed an opportunity to appoint him to a responsible position where labour or social workers should be represented. I have myself presented to the house on four or five occasions a bill for the repeal of this section.
Criminal Code-Mr. Lapointe (Quebec East)
On two occasions the bills passed this house unanimously, and on the other occasions the debates were mild as regards the way they were conducted; but the bills were rejected by the other house.
What are the reasons for the repeal of section 98? First, we believe it is dangerous to perpetuate in peace time enactments which are war time measures and designed to meet special emergencies due to some extent to the natural panic which exists in time of war. The danger is mainly because of the precedent which'it creates. If it can be done, if we can put aside the ordinary rules of law on a matter of this kind, why not put them aside on other matters as well? And this creates a precedent that might be harmful under other circumstances. There are things in that section which are not susceptible of defence. To say that the police may authorize any private citizen, on mere suspicion, to search my home or the home of anyone in Canada because they suspect they may find literature which is objectionable, is contrary to all principles of law the world over. It is mere suspicion. I think everyone will agree that the separation of powers is a necessary guarantee in the administration of justice. It is not right that the police, who are entrusted with the duty of carrying into execution the orders of the court, should become the court itself. The police are clothed with some judicial powers when they are permitted to authorize any private citizen to search premises for the purpose of finding literature. This cannot be defended.
This has given rise to many incidents which certainly cannot be considered as fair. In western Canada during the war under the provisions of a similar order in council people of foreign language saw their bibles confiscated because they were printed in a language which the police could not understand.
And bibles in the English
language were confiscated also.
Mr. LAPOINTE (Quebec East):
I did not know that, but it makes the matter so much worse. A man was arrested because he had in his possession a copy of Plato's Republic. In the United States, under a similar provision, a man was arrested because he had in his possession some literature that happened to have been written by Thomas Jefferson, who was one of the authors of the declaration of independence and later president of the United States. When the man told that to the officer who arrested him the officer replied, "Well, we will take care of you now and we will get that man Jefferson afterwards."
This shows the objection there is to a change of this kind in our legal system with regard to crimes. During the debate in 1933 I charged that this invasion of private homes had taken place during the course of that debate, and the then Minister of Justice agreed, but said it had happened only once. Well, once is too often; it should not have happened at all. If the provision was taken advantage of only once surely that is an additional reason for striking it out of the statute.
May I refer also to the presumption of guilt which appears here. A man is seen at a meeting of one of these so-called illegal associations, and he is presumed guilty. If he does not prove that he is not guilty he is liable to be sentenced to gaol for twenty years, and apart from that there are other objectionable features. It is prohibited, under possible penalty of twenty years, to import any book in which there may be something which defends revolution. Some people were afraid that the reading of a book in which the war of independence between England and the United States was justified would render them liable to imprisonment for twenty years under this section. I took the trouble to look up the legislation of a great many countries, and I did not find in any country provision for imprisonment for such a long period. Even under the war order in council the maximum penalty was five years, but because of that panic in 1919 a man who merely had a book in his possession might be sent to gaol for twenty years.
There is no sense of proportion in an enactment of this kind. I showed that provision to an eminent professor of law of the university of Paris only two months ago. He said to me, "This is a blot on the statutes of any land," and it is. We have said that we must protect ourselves against disorderly elements. I repeat what I have said many times before: We have in the criminal code, which is based on the common law of England, all the provisions which make English law and British justice sufficient to meet all emergencies. The common law relating to sedition is already in our criminal code and always has been. Section 133 says:
133. Seditious words are words expressive of a seditious intention.
2. A seditious libel is a libel expressive of a seditious intention.
3. A seditious conspiracy is an agreement between two or more persons to carry into execution a seditious intention.
Then section 134 states:
Everyone is guilty of an indictable offence and liable to imprisonment for a term of not more than twenty years-
Criminal Code-Mr. Lapointe (Quebec East)
That is the same as in England.
-who speaks any seditious words or publishes any seditious libel or is a party to any seditious conspiracy.
This crime of sedation has 'been discussed in Great Britain on many, many occasions. The commissioners who wrote the English draft code inserted a definition of some kind as to what constitutes sedition and what constitutes seditious words or seditious intentions. But after prolonged debate in the British .parliament it was decided* that it would be better to keep the word "sedition" not defined expressly but rather left there to meet all occasions and to apply to all cases where order is disturbed* or where there may be danger in the land. When our own criminal code was enacted the same debate took place. There were some who wanted to define the offence of sedition more specifically but the parliament of Canada of that time, in its judgment, thought it better to follow the English practice and to remain with the common law operation in that regard.
May I read what constitutes sedition in the English and Empire Digest, 15th volume, at page 633:
An intention to excite ill-will between different classes of Her Majesty's subjects may be seditious intention; whether or not it is so in any particular case must be decided upon by the jury after taking into consideration all the circumstances of the case. Sedition embraces everything, whether by word, deed, or writing, which is calculated to disturb the tranquillity of the state, and lead ignorant persons to subvert the government and laws of the empire.
Where in a prosecution for uttering seditious words with intent to incite to riot, it is proved that previously to the happening of a riot, seditious words were spoken, it is a question for the jury whether or not such rioting was directly or indirectly attributable to the seditious words proved to have been spoken.
A meeting lawfully convened may become an unlawful meeting if during its course seditious words are spoken of such a nature as to produce a breach of the peace, and those who do anything to assist the speakers in producing upon the audience the natural effect of their words will be guilty of uttering seditious words as well as those who spoke the words.
Then at page 634:
Held: guilty of sedition and unlawful
assembly; a speech urging the people to form themselves into unlawful associations, and inciting the insurrection, unlawful assemblies, breaches of the peace, and the forcible obstruction of the execution of the law is seditious, the circumstances of the time being such that the public peace is likely to be thereby endangered. A meeting convened to hear such a speech is an unlawful assembly so far as those are concerned who are parties to calling it or attending it for that purpose.
What court was that?
fMr. E. Lapointe.]
Mr. LAPOINTE (Quebec East):
This is the King v. Jones (1848), 6 State Transactions, N.S., 783. But it is the same thing throughout the history of criminal law in England. There is a multiplicity of decisions to the same effect. In Halsbury's Laws of England, second edition, volume 9, sedition is defined at page 302:
Sedition is a misdemeanour at common law consisting of acts done, words spoken and published, or writings capable of being a libel published, in each case with a seditious intention.
Where the words are oral the offence is called the speaking of seditious words; where the words are written, the offence is called the publication of seditious libel; where two or more combine for the furtherance of a seditious intention the offence is called seditious conspiracy.
At page 303:
Every person is guilty of the common law misdemeanour of speaking seditious words-
And this applies to us.
who speaks and published words with a seditious intention.
Every person is guilty of the common law misdeameanour of seditious libel who publishes matter contained in anything capable of being a libel, with a seditious intention.
There the punishment is fixed at not exceeding two years. What I find in those decisions is rather that in Great Britain it has to be something constituting an overt act, not merely an opinion which people might hold. It is not until it is transformed into an overt act which might be dangerous to the peace of the state that it becomes an offence. The principle in that regard cannot be better expressed than in the words of Thomas Erskine in his celebrated speech on the trial of Thomas Paine. He said:
His opinions were adverse to our system- but I maintain that opinion is free, and that conduct alone is amenable to the law.
May I also quote what Macaulay said in his Essays on Hallam:
To punish a man because he has committed a crime, or because he is believed, though unjustly, to have committed a crime, is not persecution. To punish a man because we infer from the nature of some doctrine which lie holds, or from the conduct of other persons who hold the same doctrines with him, that he will commit a crime, is persecution, and is, in every case, foolish and wicked.
I wish I had with me the words of a court in India where seventy people were convicted for seditious conspiracy. The chief justice took the pains to say:
These men are not punished for their opinions; the are punished for the deeds and the actions which they committed.
Coming back to Great Britain, the only exception, if it is an exception, was in 1934
Criminal Code-Mr. Lapointe (Quebec East)
when a special act was passed called the Incitement to Disaffection Act. This applied only to propaganda to seduce members of His Majesty's forces from their duty or allegiance to His Majesty. It was specially provided therein that the possession of any document could not be held as a presumption of guilt. The crown or the prosecution had to establish the guilt of the accused persons. And yet this apparently inoffensive legislation was challenged in the House of Commons and even in the House of Lords during the session of 1934, and anyone who wishes to consult the debates of the British parliament will find that no question was so extensively discussed as this one. There was strong opposition to anything which was a change from ordinary laws, for instance with regard to search warrants, although there was nothing there which could be compared to section 98. Nobody could be authorized merely by the police to go and search the home, but it was then stated that it was the thin end of the wedge and against all principles of British justice that this should be done. I mention that just to show how strong the feeling is in Great Britain with regard to the liberties of the subject.
May I say here and now why I propose to add a few words to section 133. I do not think they are necessary, but it is merely to make it clearer that nobody can by words or writing preach the use of force to bring about governmental changes. I do it because in some of the judgments the courts seem to have required that it must be proved that the words or the teachings were strong enough to lead to disturbance of order and trouble. This is merely to make it absolutely clear that nobody should be allowed to teach the use of force to bring about change of government in Canada.
I have said that war regulations should not be converted into peace statutes. The order in council which I have quoted shows that the liberties of the citizens were infringed. In time of war this has to be done, but to do it in time of peace is a precedent which should not be created. Liberty is like the air; we appreciate its value more when we are deprived of it. To govern is to foresee. After all it is possible that there may come a government with views and ideals different from those entertained by hon. members opposite and by myself, and they could use the precedent so created to prevent the freedom of the people in other directions. I remember reading two years ago about a prominent socialist in the British parliament who sat on the extreme left of the movement -as a matter of fact he was expelled afterwards from the labour unions-who said he was in favour of the then very restrictive orders in council prompted by the government because they would be precedents to be used by a socialist government in England for the purpose of doing away with the supremacy of parliament. Precedents are dangerous, and if this thing could be done in the present instance, surely other governments could use the same methods in other instances. The citizens of Canada and those of Great Britain have the right to be free in their own homes. It has been stated often that an Englishman's home is his castle; even the king cannot enter there without due process of law. This condition must be preserved in Canada as well as in England.
I come now to another phase of the matter. Those who hold the views I hold on this question have been and are being charged with friendship towards the communistic element. I am not a friend of the communists, and those who say that know I am not. I abhor, I hate the teachings and ideals of communism. But I want to fight them in a successful way, and I believe the way to fight them successfully is by argument, by attempting to have social justice everywhere and sound policies of administration. In 1934 I had the honour of being invited to take part in an anti-communistic campaign in Montreal. Obviously those who were in charge of the social work had a little more confidence in me than some of my opponents seem to have. On that occasion I used this language, which I shall translate:
To ensure our political stability as well as our economic stability, to victoriously repel the attacks of the trouble makers we must rely not so much on the criminal code, the officers of justice and the gaols as upon the personal dignity, the individual effort and the social cooperation which are the substance and soul of a free nation. The adepts of the strong manner to the contrary notwithstanding ideas, whether they are good or bad, cannot be killed with guns or machine guns. There must be an enlightened acceptation of the changes to make and the reforms to accomplish to take away the weapons which certain abuses and certain mistakes have placed in the hands of the enemies of order.
The Reverend Father Levesque, one of the most energetic social workers in Canada, spoke at the same meeting as follows:
Indeed it is good, even necessary, to attack communism in the front line by unmasking its errors, stigmatizing its vices and unveiling its nefarious consequences. But far more sure is the old strategy which endeavours to block the progress of an evil, to suppress the causes which determine the birth of that evil and finally its development. Communism was born of the misery of the people, and if our people sink in misery we cannot prevent
Criminal Code-Mr. Lapointe (Quebec East)
them from turning towards the apostles of Moscow, as though they were saviours. Thence the necessity of just and fair social reforms.
Sir, peace, prosperity, decent living conditions and religious and moral ideals will fight communism or wrong ideals with a greater degree of success than -will concentration camps, arbitrary imprisonment and oppressive laws. A few days ago I was reading these words of an American university president:
No radical has ever been made in the United States by radical propaganda. The people who make radicals here are those who refuse to recognize the reality of change.
May I add that perhaps we are at fault in that regard, too, and that conditions which permit a small group of men to get together with a little sum of money, which with the help of privileges and of protective laws and insufficient social legislation became $15,000,000 after a few years, are productive of communism. Communism cannot implant itself in a country like Canada unless we refuse to give to our institutions a spirit of social economy and political justice. The Canadian labourer is not a communist. If he is given the choice he will always choose free labour, with a prospect of gain and his freedom, rather than being part of a huge mass where neither he nor his labour is free.
May I ask any fair-minded man in Canada whether section 98 has prevented any person from being a communist? I have been told there are some who claim they are communists because of section 98. But there is one ipatent fact: A man named Tim Buck was sent to gaol because of a breach of section 98. The government which enacted the legislation was responsible for his release after he had served only half his term. The first thing he did upon release was to hold meetings in Montreal, Toronto and Ottawa challenging any person to arrest him again and saying that he would' continue the fight. What good did that do? As a matter of fact he ran for parliament. Did section 98 prevent communist candidates from appearing against other candidates in the last election? If the section is useless, why keep it? Laws that are not favoured by public opinion do not achieve any good, and as an instance of that I would refer to the late prohibition laws in- some of the provinces. I never found as much antagonism on the part of Canadians to that legislation as I did when two years ago I took part in a debate at the University of Toronto conducted along parliamentary lines. The debaters were divided, as Conservatives and Liberals, and of course there were men who belonged to the communist, fabian and fascist groups. At the
[Mr. E. Lapoinfe.l
opening of the debate they were considered to be on my side. I was conducting the debate for Liberalism, with two young university students, and there were three university boys on the other side attacking Liberalism. One of my partners unfortunately said something that did not please my partners behind me who were not straight Liberals, and they rose and crossed the floor to the other side. I had to exert myself to get them back in order that we should have a majority vote, and we did have a majority in the end, but what struck me was the discussion on section 98, and the interest that all the university men there took in that provision. Nobody excused it. The Conservative debaters tried to fasten it on the Liberals and claimed that we were responsible for it, and1 I think it was so everywhere. How can you keep on the statutes a provision which is friendly to nobody and which everybody repudiates?
May I also call attention to this fact. Why should there be talk only of communists when it comes to this question? The fascists, the nazis in Germany, are just as violent when it comes to change of government as the communists. There is no question of that. Let me tell you, Mr. Speaker, that I am not in favour of the German or the Italian concentration camps any more than I am in favour of the Russian ones. They are all bad' when it comes -to preventing people from expressing their views. In those countries criticism of the head of the government is treason. Well, I would not like to have those conditions in Canada, and I think that we have in the criminal code, under the sedition sections, quite enough to meet the fascists and the nazis as well as the communists; for I include them all in my reprobation.
May I call attention, Mr. Speaker, to some who who do not like section 98? May I tell them they are also included in the hate of some people who -are the protagonists of the strong methods. At the present time in the city of Detroit there is a new order called the Black Legion, which wants to have its ideas prevail by force -everywhere, even to the extent of killing people, if necessary, and they want to do it not only to the communists but to the Catholics and the Jews as well. No, Mr. Speaker, liberty is the theory and the doctrine on which our nation has been based and predicated, and we must not do anything that will remove any guarantees we have that our citizens will not be subjected to any prosecution without the ordinary and due British process of law.
Criminal Code-Mr. Woodsworth
Benjamin Franklin said once, and I agree with this idea, that those who are ready to sacrifice liberty for the purpose of achieving some temporary safety deserve neither liberty nor safety. British justice, which holds every man innocent until he is proved guilty, is the surest safeguard against excesses, whether coming from communists or fascists, or an arbitrary dictatorship, whether from the left or from the right. We submit this legislation, Mr. Speaker, not 'because we sympathize with the revolutionaries but because we love and desire to protect the law abiding and the truth seeking citizens of this country.
Mr. J. S. WOODSWORTH (Winnipeg North Centre):
Mr. Speaker, as many members of this house know, this is a matter in w-hich I have been for many years very keenly interested, and I must congratulate the government on having introduced a measure providing for the repeal of section 98 of the criminal code. I think perhaps I most admire the Liberals when they are pleading for political liberty; on those occasions they show themselves to the very best advantage.
Section 98 has been used particularly against the communists in Canada. Perhaps it is not necessary for me to say that I am not a member of the communist party, and that I do not agree with many of its principles and methods, but I do not believe in putting my political opponents in gaol. I do not believe in depriving any section of the community of their rights as Canadian citizens.
The outstanding case, as the Minister of Justice (Mr. Lapointe) has said, in which this legislation was used, was that of the communists wrho were tried in Ontario. An appeal was taken, which was argued on February 13 and 14, 1932. The unanimous judgment of the court, upholding the conviction charges under section 98 of the criminal code, was delivered on February 19. The first part of the judgment deals with the legal argument advanced on the appeal as to the sufficiency of the indictment, and it then proceeds to deal with the evidence as follows-I quote one paragraph:
The evidence proves that the communist party of Canada is a member of the Communist International of Russia and that instead of determining its own policies, purposes, teachings and aims, it adopted and adopts those of the Communist International, and, therefore. whatever are the policies, purposes, teachings and aims of the Communist International are also automatically those of the communist party of Canada.
I think it should be clearly recognized, as it has not been clearly recognized by the majority, that the communists in Toronto
were not accused and were not convicted of any overt act of violence, nor were they accused or convicted of advocating violence. They were accused and convicted simply of belonging to a certain political organization, which was affiliated with an organization in Russia which did under certain circumstances advocate violence. That does not seem to be in harmony with the rights of the subject here in Canada. If mere affiliation is to be the basis, I wondered the other day when I read an advertisement in the Montreal Gazette of June 13, 1936, whether some other organizations might not be brought into this category. Here is an advertisement reading, Trips to the Soviet Union. Canadian Pacific, general representatives of Intourist, Inc. in Canada. I am not a lawyer but I am inclined to think that if the Canadian Pacific Railway Company had a less prominent position in Canada it might under this legislation be very well charged with being in affiliation with the Intourist agency of Russia which in turn is a recognized agency of the soviet government. That is the kind of argument that was used in Ontario with regard to the communists.
But the effect of this kind of legislation does not stop here. I hold in my hand a pamphlet entitled Communism in Canada, by Superintendent F. J. Mead, reprinted by the anti-Communist League of Canada, Flinflon, Manitoba, with the permission of Major General Sir J. H. MacBrien, of the Royal Canadian Mounted Police. I should like to know under what authority Major General Sir J. H. MacBrien permits-let me repeat that, permits-the publication of certain documents. And this document was used as campaign literature in the recent election in Manitoba. I was in Flinflon, and I may say that the whole community there is controlled by an American company, the manager of which is not a Canadian citizen; although he has been resident in Canada for some years he has never yet taken out Canadian citizenship, and yet on occasion he has presumed to say whether or not candidates for election to the dominion parliament shall or shall not hold meetings in that community. And we have this kind of literature published because presumably communism is an illegal organization in Canada
I take it the Ontario court judgment makes it illegal.
Think of the situation that results. As the Minister of Justice points out, it is nothing less than farcical. Communists belonging to an illegal organization have been running as candidates for parliament, as my hon. friend from Winnipeg North (Mr. Heaps) and my hon. friend from Vancouver East (Mr. Maclnnis) know very well.
Criminal Code-Mr. Woodsworth
And lota of others.
Yes, and lots of others all over the country. It is ridiculous that men should be declared criminals, that the communist party should be declared an illegal organization, and yet the government should permit them to run as candidates for parliament, openly to conduct a paper which can be found in the files of this library, and to hold meetings throughout the country. I say it is a farcical situation. I submit that if the communist party is illegal, then its papers, speeches and all that kind of thing should be considered illegal. But I venture to say that the government dare not press that point to its logical conclusion.
Let me give another instance of what this involves in practice. This came under my notice a few months ago. There was a small book shop in Montreal conducted by a Mr. Feigelman.
I have his personal address but that is immaterial; it is Montreal. He and his sister conducted this little book stall. He himself was an art student. On January 15, 1934, the police raided his shop under orders from Chief Louis Jargaille. His sister was in the shop. He states that quantities of books, magazines and newspapers were seized by the constables. When asked the reason, Constable Forget replied: "We are seizing all seditious literature under section 98 of the criminal code." The process of confiscation proceeded and copies of E. P. Oppen-heim's books were seized. When asked why the latter were being taken one of the constables replied, "I don't read." This man and his sister appeared in court on January 16. Several other news dealers were arrested. They pleaded guilty under section 98 and were released on suspended sentence. This particular man Feigelman seemed to be more honest than the rest and he pleaded not guilty. He was expelled from the art school which he had been attending, and for a period between January 20 and October 17 he and his sister went through the monotonous procedure of frequently appearing in court, .being compelled to close their shop for half days. At each appearance they pleaded not guilty and in each instance were remanded. The trial finally took place in the fall session of the king's bench, Mr. Justice Loranger being the judge.
A queer way of pronouncing these names.
Yes, the pronunciation is bad; I quite recognize that. The result was that Feigelman was sentenced to one month in gaol, his sister being given
suspended sentence. I should like to read a few sentences from the charge of Mr. Justice Loranger to the jury:
We are here in Canada, inhabiting a Christian country, and we have been brought up in that way, and we have no need of those doctrines which are godless, such as communism and all such doctrines, which are spread before our youth, before our young men and girls.
I read in one of the papers which have been filed here. La Vie Ouvrier, just one sentence which I will translate:
"We must follow the teaching of Lenin, and particularly his teaching of state which he has shown us to be a good one . .. follow his lesson as regards the materialistic war which we must transform into a civil war."
Is that sedition or not? Trying to induce one class of people to war against another, and trying to put capital against the working classes?
It has been decided by the court of appeal in Ontario, and you will have seen it in the papers, that these men of the Communist party have tried again and again to have this article removed from our criminal code by the parliament of Canada, but up to the present parliament has refused to strike out article 98 of the code, which is the protection of our people against such doctrines.
I am quite sure the Minister of Justice will appreciate that. Again:
And this young girl, who seems to be intelligent, knew well these particular pamphlets concerning communism, and where they were, because the constable asked when he went in there for communistic papers, and she took him to the rear of the store and showed him a table and said "Here they are." She knew where they were, and if you or I had been there and had asked for communist literature, she knew where it was, and they were openly offering these to the people, and that is against the law.
What law, may I ask? I know of no such law. I ask the Minister of Justice if there is a law under which communist literature is prohibited. And yet this is how the judge charged the jury. Later he continued:
It is for you to appreciate whether these books, papers, cards, etc. are of such a character as are forbidden by law.
And one other:
On the other hand if you are convinced that the papers are of such a character as I have already said, and that they should not be published and circulated, it is your duty to say so. The court has nothing to do with that.
If those jurymen were at all like the ordinary jurymen I know, they would take that to mean, "Here you have some communist literature; all communist literature is bad; the communists are an ungodly party; we are a Christian country; if you think it is a bad thing to have this literature around, condemn these people." In my own words as a layman, that is practically what the charge to
Criminal Code-Point of Order
the jury meant, and the defendants were convicted. May I supplement the statement of the Minister of Justice by quoting the well known words of Lord Camden?
Where is the written law that gives any magistrate such a power?
He is referring to that of search.
I can safely . answer, there is none, and therefore it is too much for us without authority to pronounce a practice legal which would be subversive of all the comforts of society.... If suspicion at large should be a ground of search, especially in the case of libels
That is, seditious publications.
-whose home would be safe?
The minister has taken the responsibility of urging the repeal of this section, but unfortunately, in my judgment, what he gives with one hand he partly takes away with the other. When he previously introduced, a bill of this kind he said:
We have already in the code sufficient protection in the matter of sedition.
And he referred to sections 87, unlawful assemblies; section 130, regarding sedition, oaths or engagements in societies; 132, against seditious words, libel and conspiracy; 135, against libel on foreign sovereigns; 136, against publishing false news. If we then had sufficient protection, as he said, in the criminal code, I ask him why it is necessary to strengthen the criminal code at this time. It seems to me that the proposed section 4 goes altogether too far. Let me read, it:
Without limiting the generality of the meaning of the expression "seditious intention" everyone shall be presumed to have a seditious intention who publishes or circulates any writing, printing or document in which it is advocated, or who teaches or advocates the use. without the authority of law, of force, as a means of accomplishing any governmental change.
That is very sweeping indeed; it would rule out a very large proportion of the literature which we find on our library shelves to-day. If the minister really wished to carry out what he stated was his intention, he would at least add the words: "in Canada." He used those words when he presented the case; I do not know why he did not incorporate them into the section itself. A man might advocate change by force in Russia or in Italy and yet not advocate change by force in Canada. The provision as it stands is very wide indeed and lends itself to serious abuse. Let me read this passage: