March 7, 1932 (17th Parliament, 3rd Session)


James Shaver Woodsworth



The purpose of this bill is to attempt to clarify or remove some of the more objectionable subsections of section 98 of the criminal code. The first change is the insertion of the word "physical" before the word "force". According to the proposed amendment seizure of property can be made only after a search warrant has been issued, and such property may be confiscated only when the charges are proved. The burden of proof of innocence is removed from the accused. On a number of occasions the looseness of this wording has proven a difficulty, and for many years the Trades and Labour Congress of Canada has been protesting that this section should be altered. In 1920 a report was given to the congress concerning the present section. It was pointed out that upon one occasion a judge charging a jury had said:
Mr. Russell gave us his idea of a sympathetic strike. He said, "When a dispute originates between an employer and his employees, and when the labour organizations see that organization being beat, they come to their assistance by calling a strike to force their employers to bring force to bear upon the original disputants to make settlement." Force, force, force.
The report continues:
Any dictionary will show that "force" has a very wide meaning, covering influence, pressure and the like. If the statute meant physical force it would not go on to enumerate "violence" and "physical injury." It must therefore, have a different meaning from "violence" and "physical injury."
The proposed amendment would seek to clarify the subsection.
Then, subsection 2, to be repealed, reads as follows:
(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 Commissioner of the Royal Canadian Mounted Police, and may thereupon be forfeited to His Majesty.
The amendments I am introducing to-day do not touch the question of unlawful assembly. The one to which I am now referring merely seeks to safeguard those who are not members of an unlawful assembly but may easily enough, be inconvenienced or suffer hardship through the sections as they now stand. Provision is made that a search may be carried out after a warrant has been issued, but that there should be a search without any warrant, and a seizure without any conviction does not seem to be in keeping with the best British traditions.
Then, there are one or two sections which have to be renumbered. Into a discussion of those sections I will not at this time enter.
Then, subsection 4 to be repealed is as follows:
(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.
It seems quite unfair that in this way the burden of proof should be placed upon the accused. Any chance passer-by might stop to listen to a speaker on a street corner and might find that the speaker to whom he had been listening belonged to some unlawful association. At the present time there is no safeguard. Then, a person may pass on a piece of literature he has obtained, which action, in itself, would be considered proof that such person belonged to an unlawful association. To an innocent man such legislation is most unfair. To prove innocence would be next to impossible because such an accused person would not be in a position to bring proof from any member of an existing unlawful association.
Subsection 6 is amended by striking out the words "or is about to be" and also by inserting the words "if the charges are proven" before the words "may be forfeited to His Majesty" at the end of the subsection. At the present time the subsection reads as follows:
(6) If any judge of any superior or county court, police and stipendiary magistrate, or any justice of the peace, is satisfied by information on oath that there is reasonable 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,
Criminal Code

authorizing 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.
It would seem only fair that we should not charge a man or allow him to be charged with some crime which a magistrate may conceive is about to be committed. I submit, Mr. Speaker, that British tradition and practice relate only to crimes already committed. I do not think any magistrate, however clearheaded he may be, is in a position to say whether or not a crime is about to be committed. I would strike out that section. Further, I do not think a man should have his property confiscated until charges are proven. The insertion of the words "if the charges are proven" would take care of the difficulty I have mentioned.
Then subsection 9 provides merely for renumbering. I should like to read that subsection, because the next one to which I shall refer would not be understandable without first hearing subsection 9. It is as follows:
. Any person _wlio 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.
I am not now proposing that the clause I have just read should be changed-although I do think it should be changed. It is an integral part of the legislation concerning unlawful assemblies. A few days ago when I attempted to introduce an amendment regarding unlawful assemblies it was voted down, and I feel I would not be in harmony with the practices of this house if I were to introduce any matter the principle of which has already been decided upon. I do however urge the repeal of subsection 10, so that we may safeguard those who are not members of an unlawful assembly. It reads as follows:
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.

Now, Mr. Speaker, it is manifest that a man might very readily import a pamphlet from Great Britain and find that it came within the prohibited list described in the preceding subsection, in that it advocated force or was issued by an organization that under the previous sections was deemed an illegal organization. In that case the importer would be liable to a twenty-year penitentiary sentence. It is obviously absurd that such should be the case. In Great Britain there are no unlawful associations such as come within the scope of our Criminal Code. I might write a British publishing house, and they quite innocently might send me their literature, and on receiving that literature this subsection would render me liable to a twenty-year penitentiary term. The fact is that the word "force" is so loosely used in this act, and force has been so generally recognized as being justifiable on certain occasions, that there is a whole literature dealing with the use of force that might come under the ban. A recent writer in the Canadian Forum of Toronto has listed some of the books which would come within this section. He states:
To begin with there is a large and diverse group of works whose main object is to prove that in certain circumstances it is not only justifiable but a positive duty to use force to bring about a governmental change. The Spanish Jesuit, Mariana, devotes an entire chapter of his De Rege et Regis Institutione to a defence of tyrannicide. A whole host of Huguenot writers preach rebellion as a religious duty in such works as Duplessis-Mornay's Defence of Liberty Against Tyrants, Beza's Rights of Magistrates over their Subjects, and the anonymous, Whether it is Lawful for the People and the Nobility to take up Arms. So does the Roman Catholic Rossaeus (probably the Bishop of Senlis) in The True Powder of a Christian State. Buchanan, a Scots Presbyterian, follows suit in his De Jure Regni Apud Scotos; Milton contributes to the list no less than four works justifying the rebellion against Charles I (the two Defences of the People of England, Eikonoklastes, and the Tenure of Kings and Magistrates), and Locke's Treatise of Civil Government is a defence of the "glorious revolution" of 1688. Any competent political scientist could no doubt produce at a moment's notice a similar "Index" twice as long; but this random selection is sufficiently formidable.
Then there are other writings, which, while not exclusively or mainly concerned with the advocacy or defence of force, do nevertheless incidentally counsel it or praise historical instances of it. The writer continues:
Chief among these, of course, is the Bible, notably in the account of the revolt against Jeroboam in I Kings. The British and Foreign Bible Society had better take steps at once to issue special expurgated editions for Canadians only. Otherwise it may wake up to find itself

Criminal Code
an unlawful association. The early Greek writer Theognis (accessible to the unlearned in an English translation by the Rev. J. Banks), according to the New English Dictionary, is guilty, like Mariana, of advocating tyrannicide. Macaulay's History of England is another attempt to justify the revolution of 1688. Motley's Rise of the Dutch Republic and the Rev. J. N. Figgis' from Gerson to Grotius, contain glowing panegyrics on the revolt of the Netherlands against Spain. G. M. Trevelyan's England under the Stuarts traces all our liberties to the revolt against Charles I. A. W. Tilby's British North America, Sir George Trevelyan's American Revolutions, and George III and Charles Fox, Ramsay Muir's Short History of the British Commonwealth, Basil Williams' Life of Chatham, and the Cambridge History of the British Empire, are all so incautious as to praise the American revolution. Worst of all-'twas whispered in heaven, 'twas muttered in hell-the Ontario High School History of England (if my memory serves) quotes with gusto Chatham's "I rejoice that America has resisted." If these works fall victims to the new censorship, how many histories of the French revolution, the first Russian revolution of March, 1917, the Spanish revolution, and the Fascist march on Rome will escape?
When such a reputable journal calls attention to the serious dangers implicit in this section, it seems to me that it is not unreasonable that we should seek to safeguard the interests of the public at large. I ask also that subsection 11 be repealed. It reads as follows:
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, newspaper, periodical, pamphlet, picture, paper, circular, card, letter, writing, print, publication or document, as mentioned in this section, upon discovery of the same in the post office mails of Canada or in or upon any station, wharf, yard, car, track, 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 commissioner of the Royal Canadian Mounted Police.
This if thoroughly carried out would in effect turn all our post office and customs officials into a set of spies who would be constantly on the look out for some chance piece of literature of this class for confiscation, and our mails would never be safe. I would suggest that this is quite out of keeping with the very basis of our boasted British freedom.
I would point out again that this proposed amendment to section 98 does not touch the main principles embodied in that section. I should like to have seen the whole section repealed, but I am not at liberty to attempt such a repeal on this occasion. Under the circumstances the best I can do is to try to
introduce legislation which will at least safeguard the ordinary citizen who is not a member of any unlawful association against the dangers of this section, and ensure that to a certain extent our homes and liberties will be a little more secure.

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