Canadian State Trials, Volume V: World War, Cold War, and Challenges to Sovereignty, 1939–1990 9781487546052

Table of contents :
Contents
Foreword
Preface
Acknowledgments
Contributors
Introduction: World War, Cold War, and Challenges to Sovereignty
1 Constitutional Wrongs: The Wartime Constitution and Japanese Canadians, c. 1942–6
2 Prosecuting Kurt Meyer: The Abbaye d’Ardenne War Crimes Trial
3 The Gouzenko Affair: From Star Chamber to the Court Room
4 The Enemy Within: A Review and Comparison of Early Cold War Canadian and American Spy Trials
5 Labour versus the Injunction: Insights into the Surveillance State and Public Order Policing during the 1966 Lenkurt Electric Strike
6 The FLQ and Judicial Guerrilla Warfare, 1963–72
7 The 1971 Trial of the Montreal Five: Seditious Conspiracy and the FLQ
8 The McDonald Commission Investigates the RCMP Security Service, 1977–83
9 Standoffs at Meares and Lyell Islands: Protest, Injunctions, and the Indigenous Land Question in British Columbia, 1984–5
10 Sovereignty and Legality in the Pines: The Oka Crisis of 1990
11 Epilogue: The Canadian State Trials Series in Retrospect
Appendix 1 Previous Titles in the Canadian State Trials Series
Appendix 2 Supporting Document: Chapter 1, Adams, Stanger-Ross, and the Landscapes of Injustice Research Collective
Appendix 3 Supporting Document: Chapter 3, Whitaker
Appendix 4 Supporting Document: Chapter 7, Pacione
Index

Citation preview

CANADIAN STATE TRIALS VOLUME V WORLD WAR, COLD WAR, AND CHALLENGES TO SOVEREIGNTY, 1939–1990

PATRONS OF THE SOCIETY

Professor Constance Backhouse Blake, Cassels & Graydon LLP Chernos, Flaherty, Svonkin, LLP Gowling WLG Hull & Hull LLP Mr. Wayne Kerr McCarthy Tetrault Osler, Hoskin & Harcourt LLP Pape Chaudhury Paliare Roland Rosenberg Rothstein LLP Professor Richard Risk and Gail Morrison The Hon. Robert Sharpe 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

Canadian State Trials volume v

World War, Cold War, and Challenges to Sovereignty, 1939–1990 Edited by B A R R Y W R I G H T , S U S A N B I N N I E , and ERIC TUCKER

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

© Osgoode Society for Canadian Legal History 2022 Toronto Buffalo London utorontopress.com Printed in the U.S.A. ISBN 978-1-4875-4603-8 (cloth) ISBN 978-1-4875-4604-5 (EPUB) ISBN 978-1-4875-4605-2 (PDF)

Library and Archives Canada Cataloguing in Publication Title: Canadian state trials. Names: Greenwood, F. Murray (Frank Murray), 1935–2000 editor. | Wright, Barry, 1957– editor. | Binnie, Susan W. S. (Susan Wendy Strickland), 1941– editor. | Tucker, Eric, 1951– editor. | Osgoode Society for Canadian Legal History, issuing body. Series: Osgoode Society for Canadian Legal History series. Description: Series statement: Osgoode Society for Canadian Legal History | Includes bibliographical references and indexes. | Content: v. 5. World War, Cold War, and challenges to sovereignty, 1939–1990. Identifers: Canadiana (print) 969311354 revv | Canadiana (ebook) 2022028153X | Canadiana (ebook) 2022028153X | ISBN 9781487546038 (v. 5 ; cloth) | ISBN 9781487546045 (v. 5 ; EPUB) | ISBN 9781487546052 (v. 5 ; PDF) Subjects: LCSH: Trials (Political crimes and offenses) – Canada – History. | LCSH: Political crimes and offenses – Canada – History. Classifcation: LCC KE226.P6 C35 1996 | LCC KE226* | DDC 345.71/009 – dc22

We wish to acknowledge the land on which the University of Toronto Press operates. This land is the traditional territory of the Wendat, the Anishnaabeg, the Haudenosaunee, the Métis, and the Mississaugas of the Credit First Nation. University of Toronto Press acknowledges the fnancial support of the Government of Canada, the Canada Council for the Arts, and the Ontario Arts Council, an agency of the Government of Ontario, for its publishing activities.

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

Contents

Foreword

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Preface by Douglas Hay

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Acknowledgments

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Contributors

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Introduction: World War, Cold War, and Challenges to Sovereignty barry wright, susan binnie, and eric tucker 1 Constitutional Wrongs: The Wartime Constitution and Japanese Canadians, c. 1942–6 eric m. adams, jordan stanger-ross, and the landscapes of injustice research collective 2 Prosecuting Kurt Meyer: The Abbaye d’Ardenne War Crimes Trial craig forcese 3 The Gouzenko Affair: From Star Chamber to the Court Room reg whitaker 4 The Enemy Within: A Review and Comparison of Early Cold War Canadian and American Spy Trials barbara j. falk and tyler wentzell

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87 125

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Contents

5 Labour versus the Injunction: Insights into the Surveillance State and Public Order Policing during the 1966 Lenkurt Electric Strike chris madsen 6 The FLQ and Judicial Guerrilla Warfare, 1963–72 jean-philippe warren

228 279

7 The 1971 Trial of the Montreal Five: Seditious Conspiracy and the FLQ darren pacione

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8 The McDonald Commission Investigates the RCMP Security Service, 1977–83 c. ian kyer

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9 Standoffs at Meares and Lyell Islands: Protest, Injunctions, and the Indigenous Land Question in British Columbia, 1984–5 benjamin isitt

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10 Sovereignty and Legality in the Pines: The Oka Crisis of 1990 mark d. walters

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11 Epilogue: The Canadian State Trials Series in Retrospect barry wright

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Appendices 1. Previous Titles in the Canadian State Trials Series

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2. Supporting Document: Chapter 1, Adams, Stanger-Ross, and the Landscapes of Injustice Research Collective

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3. Supporting Document: Chapter 3, Whitaker

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4. Supporting Document: Chapter 7, Pacione

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Index

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Foreword

The Osgoode Society published the frst volume of Canadian State Trials, dealing with the period from the early seventeenth century to the 1830s, in 1996. One of the two editors of that volume was Professor Barry Wright, who has been a co-editor for every subsequent volume. This is the ffth and fnal volume of the Canadian State Trials series, which spans almost the entirety of Canadian history. The Society, and the Canadian legal historical community, owe a profound debt of thanks to Professor Wright in particular, his various co-editors (the late Murray Greenwood, Susan Binnie and Eric Tucker), and the 58 contributors who produced one or more essays in the series. This volume examines political trials and national security measures from 1939 to 1990. It covers experiences during the Second World War and its immediate aftermath – the use of the War Measures Act to register enemy aliens, and Japanese Canadian property confscations, relocations and internment. It also analyses immediate post war and Cold War events – deportations, war crimes proceedings, and the Gouzenko Affair. The fnal set of essays set in context the political and legal responses to the FLQ and the October Crisis, labour strikes and unrest, and Indigenous resistance in the form of the Oka crisis. Like all the preceding volumes, Canadian State Trials Volume Five provides insights into the tensions within the rule of law, between executive authority and civil liberties, and between state sovereignty and self-determination. 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 offcials 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 since 1981 to 117, in all felds of legal history – the courts, the judiciary, and the legal profession, as well as the history of crime and punishment, women and law, law and economy, the legal treatment of Indigenous peoples and ethnic minorities, and famous cases and signifcant trials in all areas of the law. Current directors of the Osgoode Society for Canadian Legal History are Constance Backhouse, Heidi Bohaker, Bevin Brookbank, Shantona Chaudhury, David Chernos, Paul Davis, Theresa Donnelly, Linda Silver Dranoff, Timothy Hill, Ian Hull, Trisha Jackson, Mahmud Jamal, Waleed Malik, Rachel McMillan, Roy McMurtry, Dana Peebles, Paul Schabas, Robert Sharpe, Jon Silver, Alex Smith, Lorne Sossin, Mary Stokes, Michael Tulloch, and John Wilkinson.

Preface

This, the last of fve substantial volumes, completes a twenty-six-year project on the Canadian state, its law, and its administration of justice – and injustice. From lèse-Majesté in seventeenth-century New France to the Oka Crisis of 1990, more than ffty historians have explored Canadian governments’ handling of a central issue for all governments: how to deal with domestic and foreign enemies of the state and with violent and more peaceful protests against offcial policies. In short, subversion, treason, sedition, and “disorder.” But the achievement of the Canadian State Trials series is wider still. For what governments call “riotous disorder,” or even treason, may be passionately defended by those who commit such offences (and some witnesses, including historians) as legitimate demands for a democratic voice, or for human rights, or for justice – or for all three. These volumes illuminate the social and political origins of such challenges to state power over four centuries, as well as the many attempts and many legal tools used by Canadian governments to defect, control, and repress popular protest, sedition, and treason. The task for historians is challenging. The law is complex and frequently changing, the historical context of popular dissent equally fuid, and the relations of these matters to the “rule of law” never simple. These volumes are authoritative accounts of both famous and (until now) obscure passages in this long history. Many years ago, I met a former British governor (frst of Jamaica, then Cyprus), and we fell to talking about executions, particularly those to punish treason and breaches of emergency legislation, as well as political

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murders. My knowledge of the matter was historical and theoretical. His was intensely practical. He said that the most nerve-racking question a colonial governor can face is whether to carry out a death sentence. Not, I gathered, so much from moral scruples (although he had them), but because it was so diffcult to predict the likely political effects.1 This problem for rulers, whether under martial law or constitutional government, arises many times in these fve volumes, not least in the 1885 case of an elected member of Parliament, Louis Riel – although Prime Minister Macdonald did not agonize very much about hanging him. But similar calculations lay behind other decisions than those of whether to execute. Deporting the Acadians in 1755 and seizing their property; imprisoning without trial francophone and anglophone Quebec critics of the government during the American and French revolutions, and executing an American spying for the French; hanging rebels against British rule in Upper Canada and Lower Canada in 1814 and 1838, and transporting many more to Australia’s penal colonies; ending the 1870 resistance at Red River, and suppressing the Northwest resistance of Indigenous bands in 1885 with military force and executions; imprisoning and deporting “enemy aliens” in both world wars, and also Canadian citizens, notably Japanese Canadians in the Second World War, who (like the Acadians) lost their property; jailing and deporting trade unionists (including naturalized Canadians) in the suppression of the 1919 Winnipeg General Strike and leaders of organized labour and migrant groups in the years following to the early 1930s – these are only a sampling of the best-known instances. All are given defnitive treatment in Canadian State Trials. The editors and authors illuminate many more that are less well-known or have never before been researched. Canadian governments, before and after responsible government, sought to protect the state from subversion – or feared subversion, including “apprehended insurrection”. The State Trials project goes beyond trials and the executive suspension of liberties characteristic of earlier centuries to examine the increasing surveillance by “political policing” in the nineteenth and twentieth centuries; the use of military justice against civilians as well as soldiers; and the critical importance of exceptional wartime measures. A leading theme is our long history, as a settler society, of suspecting and legally stigmatizing immigrant American and European and Asian populations during wars. The injustices that often resulted are dwarfed by the impact of the legal systems (and cultural assumptions) of white incomers on the First Nations who alone peopled for many thousands of years what is now Canada. Volume III is a crucial account of the

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massive cultural, economic, and social consequences of that impact. It can only be read as a history that moved from a partial coexistence to brutal conquest and theft. And as explored in this volume, Indigenous resistance and struggles to overcome the legacies of colonialism continue. Criminal cases and state policies are important, in this and other instances, because their legacy is lasting. The stigma of criminal prosecution leaves deep residues. Emotional damage is multigenerational; long cultural consequences are racism and its tangle of unexpressed contempt and overt unfairness. The later Victorians’ contempt for “inferior races” (incidentally shared by the mandarins of the British Colonial Offce governing the rest of the empire) and the federal government’s determination in 1885 to quell all resistance were expressed in print, in warfare, and on the scaffold. The trials and especially the executions of eight Aboriginal men for murder after the 1885 “rebellion” were part of the strategy. Assistant Commissioner of Indian Affairs Hayter Reed stated fatly, “I am desirous of having the Indians witness it – No sound thrashing having been given them I think a sight of this sort will cause them to meditate for many a day.” Prime Minister Macdonald concurred, ordering that the executions (he had hoped for more) should be “as public as allowed by law.” In 1869, Parliament had enacted a statute prohibiting public executions, as demoralizing and unnecessary in a “civilized” society. The solution at Fort Battleford was a gallows twenty feet high. A Mountie eyewitness remembered decades later, “This had the effect of giving an uninterrupted view from all sides … Hundreds of Indians from the many reserves were gathered to witness the execution, and I am sure that very few of the surrounding settlers failed to be present.” The eight emerged from the guardhouse chanting their death song, each guarded by two large constables, then “the bolt that launches the eight into eternity slips and the bodies fall the full length of the rope.” The witness concluded, “How is it that sounds and smells live in our memory when taste, feeling, and sight are forgotten? I can hear that death chant yet, and the drop of bodies, when I can easily forget what they look like.”2 As I write this, Canadians are showing some signs of accepting the truth of this part of our past, as they learn more about the small graves surrounding the residential schools established after 1885 to complete the conquest, and take imperfect steps toward restitution and reconciliation. Canadian State Trials is essential reading for our understanding. In the aftermath of the October Crisis of 1970 the idea for Canadian State Trials began to jell. The late Murray Greenwood, a lawyer and historian of Quebec state trials of the 1790s, was astounded in 1970 to see the War

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Measures Act used to repress an “apprehended insurrection” in Quebec against the Canadian state. He was less astounded when he reviewed the longer history. The Canadian state had nullifed civil liberties the same way, many times, both before and after Confederation.3 Meanwhile work by Barry Wright (a subsequent colleague and collaborator) revealed much more detail of state handling of dissent in Upper Canada.4 They both published extensively in the area, but their greatest achievement was creating the series of which you hold Volume V. After Murray’s death, Susan Binnie and then Eric Tucker, experts in the history of Canadian law and protest, joined Barry as co-editors for later volumes. The editors conceived and realized a new kind of “State Trials,” one that contrasts with the venerable English series described in the introduction to Volume I. Rather than reprinting verbatim famous trials and constitutional documents with a commentary, they found historians expert in the legal events and their governmental and popular contexts. To their critical, carefully argued accounts based on primary sources are added selected original documents of special signifcance, printed as Appendices. Recruiting contributors, advising on their drafts, and providing thoughtful introductions to the fve volumes, the editors made Canadian State Trials a reality. It is an enormous contribution to our understanding of the law, its history, the nature of Canadian government, and the deep roots of popular protest and historical injustice in Canada today. This State Trials is also a citizen’s guide, what Eric Adams and Jordan Stanger-Ross describe as an “anti-canon” of civil liberties, a compendium of the times when state legal power created great and lasting injustices. In the concluding words of their chapter, describing the Canadian government’s prolonged attack on citizens of Japanese descent during and after the Second World War, “The legal history of Japanese Canadians reminds us that the wartime constitution tends to dispense its protections and harms in unequal fashion. Neither legal history nor the anti-canon will save us, but they may help to better prepare us for the inevitable constitutional challenges that await.”5 Indeed, new and continuing challenges to the constitutional order are unfolding as this is being written. First Nations and their allies are demanding a new constitutional order, while defying the authority of the Canadian state to authorize pipelines and logging, especially on Indigenous lands. Climate change accelerates, and governments and corporations seem unable to begin or even envisage a credible shift from fossil fuels, a goal that will require major changes to the economic order. This order in recent decades has witnessed huge increases in inequalities of income and wealth, contributing to a context

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ripe for high levels of social confict. In the past two years, during the frst world pandemic since 1918, protests have also been prompted by discontent with public health regulations and loss of employment. As this was written a “freedom convoy” blockaded the streets of the national capital for several weeks, and related protests occurred in other cities and at various border crossings. There were calls in the press for sedition prosecutions and the use of the Canadian armed forces in their historical role of “aid to the civil power.” Failure to enforce existing criminal laws led the federal government to invoke the Emergencies Act, enacted in 1988 to replace the War Measures Act but never before used. It was the frst and so far the only imposition of exceptional emergency powers since the use of the War Measures Act in October 1970. Meanwhile riots and occupations in response to racialized policing, inaction on environmental problems, and other issues, increasingly preoccupy governments in the United States, the United Kingdom, Europe and elsewhere. The future will bring us new “State Trials.” They will use existing state powers, but probably also others we have not yet seen, or imagined. Douglas Hay FRSC, Professor Emeritus and Senior Scholar Osgoode Hall Law School and Department of History, York University NOTES 1 Hugh Mackintosh Foot, Baron Caradon (1907–1990), in October 1979. The British executed nineteen-year-old Cyprus guerrilla Evagoras Pallikarides on 14 March 1957 for possession of a frearm; Foot became governor on 3 December. For his extraordinary experience with pardons, see his memoir, A Start in Freedom (New York: Harper and Row, 1964), 177 ff. 2 Sidney L. Harring, White Man’s Law: Native People in Nineteenth-Century Canadian Jurisprudence (Toronto: Osgoode Society, 1998), 249; Cyril Greenland, “The Last Public Execution in Canada: Eight Skeletons in the Closet of the Canadian Justice System,” Criminal Law Quarterly 29 (1987): 415–20; Carolyn Strange, “The Lottery of Death: Capital Punishment 1867–1986,” Manitoba Law Journal 23 (1995): 603. 3 F. Murray Greenwood, “L’insurrection apréhendrée et l’administration de la justice au Canada: le point de vue d’un historien,” RHAF, vol. 34, no. 1 (juin 1980): 57–93.

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4 James Barry Wright, “Law, State, and Dissent in Upper Canada, 1804–1838” (PhD diss., Osgoode Hall Law School, York University, 1989). 5 See chapter 1 of this volume by Eric M. Adams, Jordan Stanger-Ross, and the Landscapes of Injustice Research Collective, “Constitutional Wrongs: The Wartime Constitution and Japanese Canadians, c. 1942–6.”

Acknowledgments

This ffth and fnal volume in the Canadian State Trials series brings readers to the Second World War and the post-war era, including the Cold War, the October Crisis, and the 1990 Oka Crisis. The series was conceived by the late Murray Greenwood almost ffty years ago. Inspired by the Cobbett–Howells series of English State Trials, Murray and Barry Wright developed this distinctive Canadian series with its orientation toward modern standards of historical and legal scholarship. Barry was joined by Susan Binnie as co-editor beginning with Volume III and Eric Tucker beginning with Volume IV. The result has been an excellent and productive collaboration with our outstanding teams of contributors throughout the series. For Volume V, we wish to recognize the authors’ generosity in offering their scholarship and their patience in responding to our numerous suggestions and requests, as well as their assistance in refning volume themes and strengthening the coherence of this book. We remain deeply indebted to our contributors whose expertise and dedication has made the Canadian State Trials series possible. The previous volumes in this series (Volume I, 1608–1837; Volume II, 1837–1839; Volume III, 1840–1914; Volume IV, 1914–1939) examined trials for the classic political offences of treason and sedition and looked at related security measures such as suspensions of habeas corpus, deportations, and civilians subject to military justice. Volume V 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

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the state. Our aim is to provide a representative and relatively comprehensive examination of Canadian experiences with these matters, placed in broader historical and comparative context. The period covered in this volume is a very different time than British North America and the Dominion of Canada in the nineteenth century. Canada emerged as an independent actor on the world stage in the twentieth century but colonial legacies continued to have an impact. Challenges to the state, and perceived threats to it, continued to be met by political trials and national security measures. The invocation of the War Measures Act at the start of the Second World War empowered the Canadian government to exercise extraordinary powers and restrictions on civil liberties, experienced most acutely by Canadians of Japanese origin. Igor Gouzenko’s defection from the Russian embassy in Ottawa in September 1945 placed Canada on centre stage at the outset of the Cold War, and the secret commission of inquiry and spy trials that followed again raised questions about judicial deference to government in matters of security. The overreach of security laws and discretionary powers during the Cold War was refected in responses to labour militancy and growing resistance around the status of Quebec and Indigenous nations. The challenge of Quebec’s independence movement reached a crisis point in October 1970 when the War Measures Act was again invoked. Indigenous challenges to settler claims continued to grow in the late twentieth century. The series has received unfagging support from the Osgoode Society for Canadian Legal History, frst under the late editor-in-chief Peter Oliver and then under his successor Jim Phillips, who has guided us since Volume III with insight, an excellent critical eye, and sound advice. Roy McMurtry and Robert Sharpe have shown superb leadership of this important organization. Marilyn Macfarlane was a supportive administrator for the frst four volumes, and Amanda Campbell has continued that important work. The anonymous readers for the Osgoode Society, University of Toronto Press, and the Humanities and Social Sciences Federation of Canada provided detailed assessments and made suggestions that improved the manuscript. Hamar Foster, Douglas Hay, and others also provided valuable suggestions. Len Husband and the production team at University of Toronto Press again did a superb job steering the manuscript from review to published book. We are also grateful to Christine Robertson, who led the production process, Matthew Kudelka, who brought order to our wayward written expression and references, and Michael Bunn,

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who once more applied his expertise to produce an index in short order. Many others played an important role in shaping this volume. In particular, we wish to thank Mary Margaret Johnston-Miller, Art Archivist, Specialized Media Section, at Library and Archives Canada for her excellent suggestions. Barry Wright would like to acknowledge the support and patience of his family, Meredith, Edward, William, and Pippa as this volume took shape. Susan Binnie is grateful to her family and friends for their support. She wishes to acknowledge the work of her co-editors and the leadership shown by Barry Wright in moving this fnal volume to fruition. Eric Tucker would like to recognize his family and friends, who provided crucial support, especially during the COVID-19 pandemic restrictions that limited social interactions, his co-editors, and particularly Barry Wright who has provided leadership throughout the project and this Volume in particular.

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Contributors

Eric M. Adams is a professor at the University of Alberta, Faculty of Law. He publishes widely in the felds of constitutional law, legal history, employment law, human rights, and legal education. His work engages with all aspects of Canadian constitutional law, theory, and history, including studies of the classic cases Christie v York, Roncarelli v Duplessis, Nakashima v Canada, and R v Drybones. He has written extensively on the legal history of Japanese Canadians and is working on a book project on the exile of Japanese Canadians with Jordan Stanger-Ross. Susan Binnie is a legal historian whose research has focused on the history of crime and criminal justice in Canada. She is co-editor of several volumes of legal history essays, including three in the Canadian State Trials series, and has published in two collections. Her PhD was on the development of Canadian criminal law between 1867 and 1892. She has taught criminology and the history of criminal justice at three universities and worked as the Law Society of Ontario’s legal-historical research coordinator. Barbara J. Falk is a professor in the Department of Defence Studies at the Canadian Forces College/Royal Military College of Canada. Her primary research focus is on political trials, particularly in the persecution and prosecution of domestic dissent at times of international confict. She is the author of The Dilemmas of Dissidence: Citizen Intellectuals and

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Philosopher Kings (2003) and Political Trials: Causes and Categories (2008). She is currently writing a book on comparative political trials across the East–West divide during the early Cold War. Craig Forcese is a professor at the University of Ottawa, Faculty of Law, specializing in international and national security law. He is the author of Destroying the Caroline: The Frontier Raid That Reshaped the Right to War (2018) and National Security Law (with Leah West, 2nd ed. 2020). Benjamin Isitt is a historian and legal scholar based in Lekwungen territory (Victoria, British Columbia). His research interests focus on the relationship between social movements and states in the modern world, with particular attention to class, ecology, and decolonization in Canadian, trans-Pacifc, and global contexts. He is the author of several books including From Victoria to Vladivostok (2010), Militant Minority (2011), and Able to Lead (2021). In addition to his scholarly work, Isitt serves the public as a city councillor and regional director in Victoria. C. Ian Kyer is a historian and lawyer living in Toronto. He has a PhD in Medieval European history. Today his historical interests focus on late nineteenth- and early twentieth-century Ontario legal history. He worked for the McDonald Commission while in law school. Chris Madsen is a professor in the Department of Defence Studies at the Canadian Forces College and Royal Military College of Canada in Toronto, Ontario. He teaches military offcers and senior public servants on the National Security Programme and the Joint Command and Staff Programme. His books include Another Kind of Justice: Canadian Military Law from Confederation to Somalia, Military Law and Operations, and Kurt Meyer on Trial: A Documentary Record (co-edited with Whitney Lackenbauer). He researches military support to federal law enforcement, national security policing, and gendarmerie like the Royal Canadian Mounted Police. Darren Pacione holds a PhD in legal studies from Carleton University, where his research and archival work focused on the history of Front de libération du Québec (FLQ) criminal trials. He has taught Canadian legal history courses at Carleton and published in the Dalhousie Law Journal and Québec Studies. He is a research offcer in the collective bargaining branch of the Public Service Alliance of Canada.

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Jordan Stanger-Ross is a professor of history at the University of Victoria. He was Project Director of the Landscapes of Injustice SSHRC partnership project (2014–22), which examined the dispossession of Japanese Canadians. His previous publications in the area include Witness to Loss (2017) and Landscapes of Injustice: A New Perspective on the Internment and Dispossession of Japanese Canadians (2020). He is also co-author, with Eric Adams, of a book in progress on the expulsion of 4,000 Japanese Canadians to Japan in 1946. Eric Tucker is a Professor Emeritus at Osgoode Hall Law School, York University, Toronto. He has written extensively on labour and employment law, with a particular focus on their history, including Administering Danger in the Workplace (1990) and Labour Before the Law (with Judy Fudge 2004). More recently, he co-authored Closing the Enforcement Gap (2020) and co-edited The Class Politics of Law (2019). He is a co-editor of Volume IV of this series. Mark D. Walters is a professor and Dean of Law at Queen’s University. He researches and publishes in the areas of public and constitutional law, legal history, and legal theory, with a special emphasis on the rights of Indigenous peoples, institutional structures, and the history of legal ideas. He is the author of A.V. Dicey and the Common Law Constitutional Tradition: A Legal Turn of Mind (2020). Jean-Philippe Warren is a professor of sociology at Concordia University. He has written extensively in the area of the history of ideas, culture, and social change in French Canada and Quebec. As a result of his research work, he has received numerous awards, including the Canada Prize of the Federation for the Humanities and Social Sciences, the Governor General’s Award, and the Founders’ Award of the Canadian Association for the History of Education. He is a Fellow of the Royal Society of Canada. Tyler Wentzell is an SJD candidate at the University of Toronto Faculty of Law and the Osgoode Society’s 2021 R. Roy McMurtry Fellow in Legal History. His research focuses on the rule of law in times of emergency, policing dissent, and transnational illiberal movements. He is the author of Not for King or Country: Edward Cecil-Smith, the Communist Party of Canada, and the Spanish Civil War (2020). He teaches at the Canadian Forces College.

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Reg Whitaker is Distinguished Research Professor Emeritus at York University and Adjunct Professor of Political Science at the University of Victoria. He has written extensively on Canadian politics, history, and national security issues and is the author or co-author of more than a dozen books, among them Cold War Canada: The Making of a National Insecurity State 1945–1957 (1994), Canada and the Cold War (2003), and Secret Service: Political Policing in Canada from the Fenians to Fortress North America (2012). Barry Wright is a Professor Emeritus of law and history at Carleton University. He co-edited Volumes I and II of the Canadian State Trials series with the late Murray Greenwood, Volume III with Susan Binnie, and Volume IV with Eric Tucker and Susan Binnie. In addition to his scholarship on political trials and national security measures in Canadian history, his research and publications focus on comparative criminal law reform and colonial governance in the nineteenth century British Empire.

CANADIAN STATE TRIALS VOLUME V WORLD WAR, COLD WAR, AND CHALLENGES TO SOVEREIGNTY, 1939–1990

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Introduction: World War, Cold War, and Challenges to Sovereignty B A R R Y W R I G H T, S U S A N B I N N I E , AND ERIC TUCKER

The fnal volume of the Canadian State Trials series examines the period from 1939 to the close of the twentieth century, during which time Canada again mobilized for world war, participated in the atomic age and related Cold War security initiatives, and confronted new movements for self-determination as well as demands for sovereignty. Governments responded to perceived security threats associated with such developments in a variety of ways, including through renewed national security laws and related proceedings, as well as the prosecution of political crimes, the traditional focus of state trials. Our series has examined Canadian experiences with political trials and national security measures, an aspect of the complex relationship between law and politics that refects government attempts to protect the political and broader prevailing economic and social orders. Legal responses to real and perceived threats to the state have traditionally included prosecutions for treason and sedition – the “classic” state trials offences – supplemented in the nineteenth and twentieth centuries by new public order offences, national security laws, and the development of intelligence operations and political and public order policing. The introductions to the previous four Canadian State Trials volumes have adjusted our terms of reference to account for such developments as the series has moved from the colonial period to modern Canada. And, as seen in previous volumes, political trials do not just protect the existing order; trials also became a terrain of political resistance, especially as defences became

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more sophisticated during the nineteenth century. The courts could be a platform for opposition causes, providing opportunities to express grievances and challenge authority, and such “counter-hegemonic” resistance in the courtroom often extended from cases involving prosecution of “high” political offences to more “routine” criminal offences committed for political purposes. Our aim has been to provide a comprehensive and contextualized picture of Canada’s rich, sometimes neglected, historical record in this area. The introduction to Volume I of our series explored “state trials” as a genre in constitutional and legal literature, principally found in edited collections that focused on treason and sedition cases as epitomized by Howell’s A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanours, a series initiated in 1809.1 Since that time, legal responses to real and perceived threats to state security have become more varied, with emergent public order offences and modern national security measures. Modern scholarly conventions and expectations for the study of political trials have also changed. The political and legal theorist Otto Kirchheimer, who is referred to in several chapters in this volume, has developed a helpful typology of the chief types of modern political trials that includes trials for the classic political offences, trials for more routine criminal offences committed for political purposes, and yet other forms of political legal proceedings.2 Historians have recently been drawn to the study of political trials, not only as an important measure of government responses to transgressive political behaviour and movements of resistance, but also as part of a broader “economy” of political reaction encompassing persuasion as well as coercion. Differences in forms of state repression and the complexity of legal responses to real and perceived security threats have been illuminated, including different forms of the exercise of coercive authority in the courtroom. The study of state trials broadly conceived in this manner also includes careful attention to how those who challenged state authority in the frst place responded to the ensuing political and legal reactions. The interplay between political trials and popular responses to them is seen to contribute to the development of public and popular political consciousness in the broader “public sphere.”3 Chapter 11, the epilogue in this volume, examines the themes of our series and includes a retrospective survey of Volumes I to IV.4 In brief, Volumes I and II explored the extensive record of trials for treason and sedition and suspensions of habeas corpus in British North America. Trials for treason and sedition continued in late nineteenth- and early

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twentieth-century Canada, but Volume III also examined the development of new public order measures – which accompanied the modernization of the colonial state after the 1837–8 rebellions – and the consolidation of these and crimes against the state (including new offcial secrets and espionage laws) in the 1892 Canadian Criminal Code. Volume IV considered resort to older measures as well as the development and use of new ones, most notably the War Measures Act (WMA). New ways of managing real and perceived security threats, as well as more refned forms of legal regulation, supplemented and displaced government reliance on reactive prosecutions, but the classic political offences of treason and sedition remained, and still remain, part of Canada’s Criminal Code. These various state legal responses have guided our selection of topics for this volume, but as always, we are attentive to the ways in which they develop in the circumstances of the period. Thus, this volume examines the further development of laws related to espionage and surveys the development of intelligence and counter-intelligence operations, as well as political policing during the early Cold War era. The purging of Communists from the labour movement was renewed during this time, and the reach of Security Branch policing was extended into the public service, defence-related industries, immigration processes and migrant associations, and the universities. As we also see, public order policing was refned within more routine policing operations in response to collective actions by labour activists and other groups, including Indigenous protesters and their allies.5 an overview Volume V opens with the Second World War, during which Canada again participated in global confict with a commitment to modern “total war” that had wide-ranging consequences for civilians as well as the military. The chapter by Eric Adams and Jordan Stanger-Ross examines the domestic reach and devastating impact of the War Measures Act on Japanese Canadians. Craig Forcese explores Canada’s ultimately curtailed investigations and prosecutions of war criminals in the European theatres at the end of the Second World War. Canada was at centre stage during the opening of the atomic age and the beginning of what was later called the Cold War when, in September 1945, Igor Gouzenko defected from the Russian embassy in Ottawa, carrying with him evidence of an extensive Soviet spy network. A secret commission formed to investigate the alleged spy ring in Canada, the application of the Offcial Secrets Act,

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1939, and the spy trials that followed are examined in chapters by Reg Whitaker and Barbara Falk and Tyler Wentzell. Also, the end of the war witnessed a surge of labour militancy and the introduction of statutory collective bargaining schemes across Canada. These left the regulation of labour picketing largely to the common law courts, where hostility to workers’ collective action was deeply entrenched, and to the discretion of police, who favoured the protection of employers’ property and trade rights. Chris Madsen’s study of the Lenkurt Electric strike in 1966 illustrates these responses as well as the RCMP’s development of public order policing. The volume turns to what is regarded by many as Canada’s most serious post-war security crisis, the Quebec independence movement’s challenge to the Canadian state. Members of the Front de libération du Québec (FLQ), a radical movement for Quebec independence, committed a variety of crimes to advance their political aims. The series of trials from 1963 to 1972 that followed are surveyed in Jean-Philippe Warren’s chapter. Events culminated in the October Crisis of 1970, when, in response to political kidnappings, the government directly invoked the War Measures Act (WMA) for the frst time on the ground of apprehended insurrection rather than war. The resort to the WMA and the prosecution of the leaders of the FLQ for seditious conspiracy is the focus of Darren Pacione’s chapter. The overreach of RCMP political policing in Quebec and elsewhere in the decade that followed led to the McDonald Commission of 1981, examined in Ian Kyer’s chapter. Injunctions, public order policing, and contempt proceedings, often used to contain labour militancy, became the favoured state response to stand-offs involving Indigenous assertion of rights and resistance to settler interests. Benjamin Isitt’s chapter on the 1984 and 1985 Meares and Lyell Island protests in British Columbia illustrates this pattern, as does Mark Walters’s chapter on the 1990 Oka Crisis near Montreal. The state’s response to Indigenous people’s occupation of land they claimed as their own at Oka escalated into a massive show of force by the Sûreté du Québec, followed by the largest deployment of troops in response to Indigenous resistance since the 1885 North-West Rebellion. The latter chapters on legal responses to struggles against colonial legacies and movements of self-determination raise larger questions going forward. Such forces from within (as well as new globalizing forces from without) present challenges to the sovereignty of the Canadian state. Can sovereignty be divided? Can multiple sovereignties and allegiances be blended or accommodated? Where does this leave political offences

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and national security laws, premised as they are on the sovereign state’s exclusive powers to use repressive force to protect the established order and public institutions, in situations in which rights of citizenship also involve reciprocal obligations of allegiance? This volume raises these diffcult questions around sovereignty without attempting to resolve them. As with our previous volumes, and indeed like most edited collections, this volume selectively examines rather than comprehensively studies all relevant security-related events and issues during the period. The volume seeks to illuminate the legal aspects of experiences with the War Measures Act, the transition from World War to Cold War, the development of political and public order policing, and resistance to authority and colonization. All of these matters warrant further research. The fve following sections provide a more detailed look at the historical and legal contexts for the chapters outlined above. the historical and legal settings for the chapters The Second World War Period Canada entered the Second World War with formidable legal and national security resources, notably the War Measures Act, which was designed to expand government powers in times of national emergency. The WMA was enacted in 1914 as emergency executive-enabling legislation and effectively precluded the need to enact specifc temporary emergency legislation – to suspend habeas corpus, for example, or to enable martial law and military justice. The WMA could be invoked or brought into effect simply upon proclamation of war or apprehended insurrection. Once a proclamation was ratifed by Parliament, legislative powers were delegated to the cabinet as executive council to enact and implement any appropriate defence and security orders or issue related regulations for the duration of the emergency. Amendments in 1927 confrmed that the WMA had not expired in November 1918 when the First World War ended and clarifed the Act’s potential for peacetime proclamation and application in situations of “apprehended insurrection” (which was to prove signifcant in response to the 1970 October Crisis).6 Moreover, wartime executive orders could be sustained post-war through “emergency transition” legislation. Certain wartime powers and executive orders under the WMA remained in effect after 1918, and also after 1945 and the end of the Second World War, as we see in chapters 1, 2, and 3.

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The WMA was proclaimed a second time at the beginning of September 1939, at which time the cabinet in Ottawa issued Defence of Canada Regulations and executive orders setting out compulsory registration of enemy aliens, the arrest of German citizens, and the suspension of habeas corpus for identifed groups.7 The internment of more than 500 Italian Canadians and nearly 1,000 German Canadians with suspected Fascist/ Nazi affliations or sympathies soon followed. In addition to exercising wide censorship powers, the minister of justice was given the authority to hold anyone without charge or trial who acted in any manner prejudicial to the safety of the state. Jewish refugees were refused entry, and pacifst Mennonites, other conscientious objectors, and those critical of government were arrested and detained. Wartime measures extended beyond enemy aliens and the silencing of dissent to reach deeply into the fabric of Canadian society. In addition to banning the Communist Party, many prominent trade unionists were detained for violating Defence of Canada Regulations.8 Trade with the enemy was prohibited, and wage and price controls were put in place, to be administered by a new Wartime Prices and Trades Board. Given the urgent need to supply the United Kingdom with equipment and goods ranging from airplanes to food, the government sought to avoid the infationary pressures and social unrest experienced in the First World War by quickly establishing direct control of the economy. Price controls put pressure on businesses and farmers, and production geared to wartime needs resulted in shortages for consumers; however, labour bore the brunt of the controls because of the arbitrary management of wages. The federal government sought to contain industrial confict by extending the application of the Industrial Disputes Investigation Act to all war industries while empowering the minister of labour to designate industries as such under the WMA. This executive order effectively superseded the patchwork of provincial collective bargaining laws; it also required unions and employers to submit their disputes to conciliation boards that applied the government’s wage controls.9 In a further exercise of wartime controls, property confscations were extended widely, most notoriously to Japanese Canadians, who lost all of their business and personal possessions without any compensation, but also to other groups, including the Kettle and Stoney Point First Nation near Sarnia, who were obliged in 1942 to surrender part of their lands for military use. Those lands were not returned to them after the war.10 Nothing, however, exceeded the repressive reach and impact of the extreme war measures taken against Canadian residents of Japanese

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ancestry from the end of 1941 through to the immediate post-war period, detailed in the frst chapter by Adams, Stanger-Ross, and the Landscapes of Injustice Research Collective. As seen in the previous volume, Ukrainian Canadians and others originating from enemy nations were subject to registration, restrictions, and indefnite detention in labour camps during the First World War,11 but measures against Japanese Canadians were taken much further. While discriminatory measures against persons of Japanese ancestry predated the war, these were quickly escalated when Japan entered the war in December 1941. Around 22,000 residents of Japanese ancestry were registered by the federal government, and their movements were restricted. Over the following year they faced an intensifying series of measures, including property confscations, and those residing in British Columbia were placed in internment camps or exiled to farms east of the Rocky Mountains. As was the case following the First World War, certain wartime orders remained in effect after the war ended through a series of emergency transition acts.12 As a result, measures against Japanese Canadians continued and were used to facilitate the enforcement of coerced repatriation “agreements,” resulting in post-war deportations to Japan after 1945. Legal challenges to the government’s actions failed in the 1947 Japanese Canadians Deportation case. Previous judicial review of the WMA by the Supreme Court of Canada in 1917 and by the Judicial Committee of the Privy Council (JCPC) in 1923 upheld the delegation of legislative powers from Parliament to cabinet as executive council and confrmed the federal government’s jurisdiction to enact the WMA under its “peace, order and good government” powers, including in matters falling under provincial jurisdiction.13 As the authors of chapter 1 discuss, in 1947 the JCPC reiterated and expanded on its 1923 decision that upheld the validity of continuing wartime measures and the post-war extension of federal emergency powers, by emphasizing that judges must defer to determinations by the executive that such measures were necessary.14 Canada’s sending of troops to Europe to fght with the Allies against Germany during the Second World War formed a signifcant part of its war effort. About 1 million men and women participated in the Canadian armed forces – more than 700,000 served in the army out of a total population of 11 million.15 About 237,000 Canadian troops participated in campaigns in northwest Europe.16 Although Canada again fought under British command, one specifc and law-related example of its increasing independence was in the feld of military discipline: Canada began to conduct its own military trials in Europe instead of relying on British courts

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martial. While death sentences as a result of military trials dropped markedly,17 this was a result of new understandings of wartime combat stress. Canada soon began to follow revised British military law, which stopped imposing capital sentences on soldiers found to have committed serious offences, including desertion. In the area of war crimes trials, Canada at frst appeared unwilling to participate in the new approach proposed by its Allies.18 As Craig Forcese recounts in his chapter on the war crimes trial of the SS Major General Kurt Meyer, in 1942 the Canadian government declined to involve itself in preparations with other Allied countries for war crimes trials. However, in 1944, after the Allies created a permanent court of inquiry, Canada belatedly assigned an army lawyer to that body, and in 1945 he convinced his superiors to create the frst Canadian War Crimes Unit in order to participate in post-war trials conducted in Europe by Allied countries.19 Forcese’s chapter on the trial of Kurt Meyer concerns some of the captured Canadian soldiers who fought as part of the Allied invasion of France or “Operation Overlord” in 1944–5. (About 14,000 of the approximately 130,000 soldiers who landed on the beaches on 6 June, “D-Day,” were Canadian.20) Soldiers from various countries, including Canada, were captured by German regiments during heavy fghting in northern France,21 and by 1944, even before Germany surrendered, an inquiry had been launched into the fate of missing prisoners of war, including Canadians.22 Suspicions that at least one German regiment in the region had a policy of murdering captured soldiers were verifed after the war. Forcese’s chapter examines this background as well as subsequent efforts by Canadian offcials to undertake the frst Canadian war crimes prosecution of those responsible, including Kurt Meyer. The preparations for the prosecution of Meyer, the resulting trial and its outcome, and the abandonment of other proposed prosecutions of Germans accused of wartime offences against Canadian soldiers in Europe all shed light on Canada’s limited efforts and the challenges involved in seeking justice for the victims of these war crimes. The Early Cold War Period in Canada Igor Gouzenko’s September 1945 defection in Ottawa and the revelations of a Soviet spy ring in Canada with UK and US connections played a key role in triggering the “Cold War” between the West and Russia. The Cold War, which continued for decades, justifed an increasingly harsh culture

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of government secrecy in Canada that affected the public service and extended to scientifc research, defence-related industries, and beyond. The Gouzenko affair had signifcant legal effects as well. In addition to spy trials under the Offcial Secrets Act (OSA), it prompted espionagerelated amendments to the Canadian Criminal Code and the elaboration of security operations, including counter-intelligence and the extension of political policing, as surveyed later in this section.23 The Kellock–Taschereau Commission was created in 1945 pursuant to the same temporary emergency transition legislation relied upon to continue post-war measures against Japanese Canadians.24 The Commission was given sweeping investigative powers to identify suspects connected to the alleged Soviet spy ring and to determine the application of the OSA for subsequent proceedings. Canada had enacted its own Offcial Secrets Act in 1939, originating in late nineteenth-century breach of offcial trust and espionage legislation and the UK Offcial Secrets Act, 1911, which was passed as imperial legislation. The modernizing additions to the law had refned legal responses to espionage by adding spying offences, and they further enforced government secrecy by creating a new offence of unlawful disclosure or “leakage.” The sweeping provisions of the OSA extended liability for these offences beyond government workers and contractors, supported security vetting and surveillance, and had a chilling effect on the press and access to government information.25 In the immediate wake of Gouzenko’s revelations, the Act provided the legal foundation for most of Canada’s spy trials. As the chapter by Whitaker details, the Royal Commission was created by way of a secret order-in-council (PC 411) and headed by two judges of the Supreme Court of Canada. It was given a broad mandate to report on possible misconduct by public offcials and others in positions of trust relating to the communication of secret and confdential information to agents of foreign powers, and it had wide powers to investigate, collect evidence, and recommend prosecutions.26 The proceedings were closed to the public and, as Whitaker describes them, were reminiscent of the Court of Star Chamber.27 The extraordinary powers exercised by Justices Kellock and Taschereau gave them full latitude to determine procedures and report misconduct as well as the authority to collect evidence in secret proceedings and to make recommendations that individuals be criminally charged and prosecuted for violations of the OSA. Their fndings were designed to infuence not only Crown prosecutors but also trial judges in the ensuing cases. As a result, two of Canada’s senior judges contributed to the blurring of prosecutorial and judicial functions and thereby defed

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formal constitutional claims of judicial independence – in particular, the separation of judicial from government powers. Eighteen persons were named as spies, and most of them were Canadians, including Communist member of Parliament Fred Rose. Many of the Canadian accused were prosecuted for conspiracy to commit espionage offences under section 3 of the OSA, and the prosecutions made use of the Act’s procedural expedients of reverse onus and in camera proceedings. Whitaker’s chapter highlights a selection of cases that fowed directly from the Commission’s recommendations; the following chapter by Falk and Wentzell then provides an account of all Offcial Secrets Act trials over the ensuing years and compares them with the US spy trials of the period. The Gouzenko affair also led to investigations and spy trials in the UK, the frst of these being the trial of British scientist Alan Nunn May under the UK Offcial Secrets Act for his participation in the Canadian spy ring.28 As the deportations of Japanese Canadians and the Gouzenko affair demonstrate, wartime exceptionalism – the effects of special legislation enacted for wartime application – continued and became the norm during the Cold War in several respects. In its report, the Kellock–Taschereau Commission had advised that wide police powers could continue to be exercised under the 1942 Defence of Canada Regulations, which remained in force through the emergency transition legislation, and which allowed for indefnite and preventative detentions with no limit on the length of time police might hold persons reasonably suspected of being about to commit an offence under the OSA. The judges’ expansive interpretation of section 11 of the Act fully authorized covert surveillance by the RCMP without warrants, and this practice continued into the 1980s. The judges also recommended that the OSA be reviewed in light of the proceedings, and this resulted in some minor amendments to the Act in 1950.29 Many other law reforms followed as Canada moved further into the Cold War period in the early 1950s, and these considerably enhanced the government’s abilities to combat espionage. Prior to 1939, security operations in Canada did not venture far into the realm of “counter-intelligence,” the assessment of intelligence, for example for the purposes of spreading disinformation, and for covert actions against foreign powers to combat sabotage and espionage. This changed with the development of the atomic bomb. The political and public order offences in the Canadian Criminal Code had barely changed since 1892,30 but as a new phase of the Cold War opened in 1950 with Canadian soldiers fghting in the Korean confict, there were some amendments. The defnition of treason was expanded to include not only assisting enemies

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during wartime but also assisting any armed forces engaged in hostilities with Canadian forces (thereby including the Korean confict).31 A Royal Commission, appointed to review the Criminal Code, proposed further amendments to the political offences, which were implemented in the 1953–4 revisions. These “modernized” the language of the existing treason provisions and restored espionage offences to the Code, which had been absorbed into the Offcial Secrets Act in 1939, giving rise to new overlaps and inconsistencies between the Code and the OSA.32 As revisited in this volume’s epilogue, studies in Volume III of the series refer to early intelligence operations (intelligencers and informers) that predated Confederation and had been developed in response to the threat posed by the Fenians. These operations became the responsibility of the Dominion Police, which coordinated with British intelligence services.33 As examined in Volume IV, the amalgamation of the RNWMP and the Dominion Police in the wake of the Winnipeg General Strike led to the development of a dedicated Security Branch within the RCMP. It focused on undercover operations, which included surveillance of labour and immigrant organizations and the collection of evidence for prosecutions under section 98 of the Criminal Code and for summary deportations under sections 41 and 42 of the Immigration Act. The 1936 repeal of section 98 of the Criminal Code did not bring an end to political policing by this branch, and at the outset of the Cold War, the RCMP’s security operations were renewed and expanded. In the same way that many of the wartime regulations, developed for wartime circumstances, were continued to 1951 by emergency transition acts, government committees developed for wartime security purposes continued as Cold War committees. As the Kellock-Taschereau Commission commenced its investigations in late 1945, the wartime National Security Panel was reconvened with representatives from the Privy Council Offce, the Department of External Affairs, the military, and the RCMP to advise government and coordinate security issues. By 1946 the Committee had developed procedures for classifcation of government information, directives for RCMP security screening of public employees and immigrants, and policies to guide the transition of wartime surveillance and intelligence operations to deal with perceived Cold War challenges. International intelligence networks were reconstituted to deal with the new Cold War adversaries. Surveillance and intelligence operations had been developed in the areas of code-breaking, signals intelligence, electronic surveillance, and information-sharing with allies as Canada contributed to the Second World War British war effort. In 1945 the Canadian

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side to these wartime operations found a new home in the Communications Branch of the National Research Council, and by the late 1940s these operations involved growing collaboration and intelligence-sharing with other allied foreign security agencies with minimal government oversight and review.34 In the hardening climate of the Cold War, the RCMP was directed to develop plans for eventualities. The Security Branch suggested a plan for interning thousands of Communists, sympathizers, and their families should war occur with the Soviet Union (Operation PROFUNC). A major project that came to fruition was the launch of the FEATHERBED program to investigate, in liaison with US and UK security agencies, diplomats and high-ranking public servants and government fgures, targeting those with suspected Communist sympathies or other ascribed “character weaknesses,” notably homosexuality.35 In addition to vetting public servants, the RCMP extended surveillance of research scientists beyond the National Research Council and investigated the political reliability of persons employed by companies with government or defence contracts and others who were engaged in classifed work. The RCMP acquired additional powers as a result of the PICNIC program. Launched by a secret Privy Council order (PC 3486) issued in July 1951, PICNIC enabled the RCMP to engage in covert phone tapping against individuals, organizations, and foreign governments.36 Although the temporary Emergency Powers Act, 1951,37 was less sweeping than the emergency transition act regulations that preceded it, twenty-four security-related orders in council affecting the RCMP and other government agencies and security committees were issued under its authority. Political policing, in both covert and publicly visible forms, reached deeply into the labour movement. The RCMP’s covert anti-Communist operations, which included the compilation of “Red Lists” by Security Branch agents and informers from 1919 to the 1930s, were reactivated, renewed, and supplemented, a development examined further in the following section. Surveillance of immigrant groups undertaken during the interwar years was elaborated in new forms to manage post-war migration. RCMP agents were placed in all Canadian visa offces and liaised with foreign police and security forces, and immigration and passport screening was tightened. Immigrant, refugee, and displaced persons organizations were subject to secret surveillance and intelligence-gathering. Political policing extended to the universities. In 1968, continuing concerns about covert RCMP activities on campuses were directly addressed by the Canadian Association of University Teachers, headed by Bora

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Laskin, then on the Law Faculty at the University of Toronto. The undertaking in the resulting Pearson–Laskin Accord was that RCMP activities at universities were to be limited to investigation of criminal offences and inquiries necessary for security clearances required for public service work. The accord was reiterated in the recommendations of the Mackenzie Commission the following year.38 As will be seen in the section below on Quebec, these modest gestures toward limits on political policing in the late 1960s were abandoned in the wake of the 1970 October Crisis as a decade-long wave of unregulated political policing, including the “RCMP dirty tricks” campaign allegedly employing illegal and criminal actions, led to creation of the McDonald Commission, examined in Ian Kyer’s chapter described below.39 Constructing and Enforcing “Responsible Unionism” in Post-War Canada Government secrecy, security vetting, and surveillance were not confned to public servants, scientists, and those coming to Canada from elsewhere. Offcial concerns extended into the private sector and, as was the case in the 1920s and 1930s, also reached deeply into the labour movement. As seen in the previous volume of Canadian State Trials, Communists were a focus of political policing under the Criminal Code and the Immigration Act from the period of the Winnipeg General Strike to the repeal of section 98 in 1936. After that time, Prime Minister Mackenzie King initiated new governmental policies that further developed regulatory approaches to labour confict, accompanied by the encouragement and support of “responsible” union leaders who embraced “corporatist” or cooperative orientations in their dealings with employers. These leaders were encouraged to marginalize or purge labour radicals from within their ranks. As noted earlier, the WMA had a signifcant impact on labour during the Second World War. While the federal government’s initial response tilted heavily in the direction of coercion, by the middle years of the war growing labour militancy had forced the government to accept the need to shift toward policies that accommodated some of the movement’s key demands, ultimately resulting in PC 1003 in 1944. That order established a state-sponsored collective bargaining scheme that compelled employers to recognize and bargain with unions that had established majority support through government-administered procedures but also narrowly limited the circumstances in which unions could lawfully strike. PC 1003 remained in force after the end of the war, and renewed labour militancy meant that its features favoured by government would be replicated in

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federal and provincial legislation enacted in 1948 after provincial jurisdiction was re-established.40 New collective bargaining schemes, based on the Wagner Act model in the US, included the same compromise by entrenching the requirement for employers to recognize and bargain with responsible trade unions that had won majority support in exchange for sharp limits on unions’ freedom to strike. Acceptance of this political compromise varied considerably over time, and by province and industry, but the adoption of these statutory regimes did not eliminate labour confict or prevent growing militancy around wages, infation, and jobs. The traditional hostility of the courts to workers’ collective action continued, and policing focused on the protection of employers’ property and trade rights and the enforcement of court orders. At the same time, rapid developments in the Cold War renewed government concerns about Communist infuences in the labour movement, which were addressed by working cooperatively with anti-Communist, social democratic trade union leadership to purge more radical elements and by the renewed deployment of political policing. The RCMP, as noted, updated its “Red lists” and funnelled that information back to union leaders to assist them in their purges.41 Communists were expelled from labour organizations as US-based international unions increased their representation of Canadian industrial workers. The Canada Congress of Labour, one of Canada’s largest union confederations, prohibited Communists from holding leadership positions in any of its member unions. Communists were also purged from small craft unions belonging to the rival Trades and Labour Congress. Informal rough justice, similar to operations in the US that were allegedly sometimes supported by organized crime, helped crush Communist-led unions such as the Canadian Seaman’s Union.42 The enactment of statutory collective bargaining regimes and the marginalization of labour radicals within unions did not in practice curb strikes and other forms of labour militancy. These ebbed and fowed over the following decades despite the fact that when labour militants challenged the boundaries of industrial legality, they often faced a coercive response. In the 1960s and 1970s the RCMP developed new, militarized approaches to public order policing, at times in coordination with its Security Branch’s political policing operations. This form of public order policing became the norm, particularly where regular policing, which falls under provincial jurisdiction, was contracted out to the RCMP. The phenomenon is described in Chris Madsen’s chapter on the 1966 Lenkurt strike in British Columbia. The Lenkurt workers were represented by the International

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Brotherhood of Electrical Workers, which had removed Communist activists such as George Gee and worked closely with the RCMP to monitor future radical infuences. As Madsen recounts, despite the purge, Lenkurt workers engaged in an unauthorized strike, and the company, headquartered in the US, obtained a court injunction to allow non-unionized replacement workers to access the site. Striking workers defed the injunction with the support of the BC labour movement, which resulted in RCMP interventions to enforce the injunction and contempt proceedings against the resisting strikers and their supporters. Although the measures were successful in this particular case, growing opposition to the use of labour injunctions and to reliance on police to break picket lines resulted in changes in police tactics as well as legislation limiting the courts’ powers to issue injunctions in labour disputes.43 Quebec and Legal Responses to Separatism As examined in Volumes I and II of the series and revisited in the volume epilogue, offcial anxieties about the security of British rule in Quebec long predated the 1837–8 Rebellion. While the British North America Act, 1867, had reinforced the cultural protections in the Quebec Act of 1774, and the Durham and Sydenham reforms had addressed concerns about the stability of colonial government in the wake of the rebellions, responses in Quebec to the trial of Louis Riel and other divisive events in the late nineteenth century highlighted the anger and insecurity felt in Quebec over francophone rights and autonomy. In the twentieth century, an era of conservative nationalism under the Union Nationale of Maurice Duplessis, followed by a period of modernizing liberalism in the 1950s and early 1960s led by reformers including Jean Lesage and Pierre Trudeau, failed to extinguish demands for further self-determination and movements for independence. Quebec nationalists committed to independence formed new movements. One of these, the souverainistes, became in 1968 a founding element within the social democratic–oriented Parti Québecois (PQ), led by René Lévesque, which was committed to eventual separation from Canada; to that end, it would work as a political party within the existing state to maximize Quebec’s autonomous powers. The more radical indépendantistes, who formed various groups, most notably the Front de libération du Québec (FLQ), committed to rapid revolutionary separation, using political violence if necessary. The FLQ drew direct inspiration from contemporary liberation struggles in Algeria, Cuba, and Vietnam as well as the

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civil rights movement in the US. The continuing struggle against AngloCanadian political and economic domination in Quebec was also inspired by local historical episodes of resistance, notably the patriote rebellions of 1837–8. The FLQ began a campaign of violence in the 1960s, carried out by a number of independent cells or autonomous activist networks. The frst wave of violent actions, beginning in 1963, involved bombings of regimental armouries and damage to other symbols of British and anglophone domination. The second, from 1966 to 1969, expanded its bombing targets to include symbols of international capitalism such as factories, corporate headquarters, and the Montreal Stock Exchange, while the third and fnal wave in 1970 escalated to the kidnapping of British Trade Commissioner James Cross and the kidnapping and murder of Quebec labour minister Pierre Laporte. These actions resulted in well over 100 criminal trials of FLQ members between 1963 and 1972.44 The FLQ trials refect the two main categories of political trials set out in Kirchheimer’s typology of modern political trials.45 The trials examined in the chapter by Jean-Phillipe Warren were for property offences and offences of violence; in effect, as in Kirchheimer’s analysis, the offences were typically criminal but were committed for political ends. In contrast, the prosecution of the Montreal Five was for the offence of seditious conspiracy, a political offence or crime against the state, typical of classic state trials. The trials showed that much could go wrong for the provincial government that initiated them. First, the courtrooms provided a powerful public platform for the FLQ cause, and the trial proceedings presented opportunities for counter-hegemonic tactics by the accused that frustrated government attempts to portray FLQ members as mere criminals. Failed prosecutions and successful appeals became embarrassing setbacks that discredited government. Second, where there were convictions, harsh sentences demonstrated FLQ claims of state injustice and could thereby increase popular support for the independence cause. We note that, although the cases surveyed by Warren in his chapter involved prosecutions for property offences and offences of violence rather than for political crimes, they were far from routine criminal cases, in which justice for victims is the primary aim. The prosecutions were signifcantly about protecting public order, existing institutions, and established interests. There were clear national security dimensions to these cases, in that the state’s aim was to discredit the independence movement as a mere criminal organization.

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Matters escalated with the kidnapping of Cross and Laporte. As examined in the chapter by Pacione, the Quebec government recognized that developments had exceeded its capacity to control the situation. This led Quebec to request military aid to the civil power and later to seek further federal assistance. The federal government responded by proclaiming the WMA on the grounds of “apprehended insurrection” – for the frst and only time in Canadian history – and by immediately issuing executive public order regulations that had retroactive effect. The orders expanded police powers, suspended habeas corpus, and outlawed the FLQ, but they failed to save Laporte’s life. Nearly 500 people suspected of being FLQ activists were arrested and placed under indefnite detention, but most were eventually released without charge and relatively few were prosecuted for Criminal Code offences or public order offences created under the emergency regulations. However, the public order regulations criminalized the FLQ, and on that basis the perceived leaders of the movement could be prosecuted for the political offence of seditious conspiracy. Later, members of the FLQ cells responsible for murdering Laporte and for kidnapping Cross were tried for the Criminal Code offences of murder and kidnapping. Jean-Philippe Warren’s overview of the FLQ trials from 1963 to 1972 describes what he terms judicial guerilla warfare (la guérilla judiciare), and the defendants’ increasingly effective exploitation of the public platform of the proceedings to highlight their grievances and their cause. By the late 1960s some FLQ accused had developed sophisticated courtroom responses that balanced self-representation with legal representation, exploiting tactical opportunities for political messaging together with conventional legal defences. Claims of political and economic injustice and questions about the political legitimacy of the court’s jurisdiction were voiced directly by defendants; at the same time, more conventional defences were raised (assisted by counsel) that involved due process claims and cast reasonable doubt on the Crown’s cases. Warren refers to the most prominent of these trials, which included the one arising from the LaGrenade bombing (which killed a worker and led to the 1967 extradition of Pierre Vallières and Charles Gagnon and the complex manslaughter trials that followed in 1968–9), as well as the 1969 trial that led to the conviction of Pierre-Paul Geoffroy (who received multiple life sentences on an unprecedented number of counts for a series of bombings, including a major explosion at the Montreal Stock Exchange) and the 1971–2 kidnapping and murder trials. Darren Pacione’s study of the seditious conspiracy prosecution of the FLQ leadership demonstrates the mature development of the FLQ’s

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political and legal counter-hegemonic strategy in the courtroom. The “Montreal Five” were tried for being the leaders of a seditious prohibited organization rather than for a specifc criminal act – a move made possible, Pacione argues, by the “state of exception” created by the WMA. He suggests that these events produced a situation analogous to that of the 1919 Winnipeg General Strike, which had been followed by seditious conspiracy prosecutions as well as the passage of section 98, which, until 1936, criminalized organizations seeking revolutionary changes to the political and economic order.46 As both Warren and Pacione note, subsidiary contempt of court proceedings, which had become increasingly frequent in response to the FLQ members’ trial tactics by the late 1960s, were a prominent feature of the 1971 and 1972 trials. Presiding judges brought contempt charges against the accused, counsel, and defence witnesses, and twenty men and women were convicted of contempt a total of sixty times. Provoking contempt charges became an important aspect of judicial guerrilla warfare, the aim of which was to discredit the judiciary as contempt proceedings put judges in the position of presiding over their own causes. The resulting courtroom spectacles reinforced FLQ claims that the judges were biased in favour of government and that the trials did not comply with the rule of law that the Crown and the judiciary claimed to be upholding.47 Some reforms were introduced following the end of the FLQ trials to address the injustices they revealed. For example, the conviction of women for contempt, for protesting in court against the prohibition in Quebec of female jurors in criminal trials, generated momentum to end this discriminatory rule. However, challenges to the constitutionality of the WMA, and to the federal government’s authority to pass emergency measures that violated due process, failed in 1971.48 The following year, the federal government declared its intent to revise the WMA, but it did not do so until 1988, when the WMA was replaced by the Emergencies Act, a major revision that accompanied the announcement of redress for Japanese Canadians for their treatment in the 1940s.49 Other negative consequences of the October Crisis later became apparent, as the RCMP undercover Security Branch embarked on a decade-long wave of unregulated political policing operations. As detailed in Ian Kyer’s chapter in this volume, revelations of RCMP “dirty tricks,” which included alleged criminal and illegal acts, prompted the appointment of the McDonald Commission in 1981. The Commission undertook a long-overdue comprehensive review of

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Canada’s national security operations. The RCMP’s security operations had always lacked a legislative mandate and had little accountability, a situation made worse by overlaps, ambiguities, and dated provisions in Canada’s laws related to national security. However, the Commission’s fndings and recommendations failed to satisfy a range of critics. Civil libertarians viewed the failure to hold the RCMP accountable for its violations of law, and the lack of justice for victims of its activities, as a “whitewash.” At the same time, some in the security establishment and conservative political and legal circles suggested that the RCMP must have the latitude to operate “above the law” in order to protect Canada’s security. The McDonald Commission’s work led to the reorganization of Canada’s security and intelligence operations and the provision of legislated mandates under the 1984 Canadian Security Intelligence Services Act and the Security Offences Act. The changes included regular reporting to the minister, periodic review, and a civilian oversight committee for the newly created Canadian Security Intelligence Service.50 Responses to Indigenous Resistance The chapters by Ben Isitt and Mark Walters examine legal responses to Indigenous resistance in the decade after the enactment of the Constitution Act, 1982. Canada’s constitution was “patriated” with the introduction of domestic constitutional amendment processes, rights were entrenched with the Charter of Rights and Freedoms, and section 35 further recognized existing Indigenous and treaty rights, along with recognition of the 1763 Royal Proclamation as part of Canada’s constitution.51 Historians, legal scholars, and activists debate the true meaning, continuing signifcance, and reach of the Royal Proclamation, and indeed whether section 35 entails more than land claims and related customary rights and includes rights to self-government and perhaps even sovereignty.52 The belated recognition in 1982 of the constitutional status of Indigenous rights, thought to be protected by the Crown’s trusteeship of those rights more than two hundred years earlier, nonetheless meant they could no longer be ignored or dismissed by Canadian legislatures and courts. Despite the recent accommodations, continuing state responses to specifc instances of Indigenous resistance as examined in the Isitt and Walters chapters refect a pattern similar to the one examined by Madsen, of injunctions (in these cases requested from the courts by settler interests), contempt proceedings (when court orders are defed), and reliance on public order policing

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to support legal interventions. In the case of the 1990 Mohawk stand-off at Oka, Quebec, such legal measures failed and were followed by resort to military aid to the civil power under the provisions of the National Defence Act. These recent experiences of Indigenous resistance, and others, are connected to a complex history of repressive and regulatory legal responses that touch on matters ranging from the state’s response to the 1885 North-West Rebellion to land claims and administration of the Indian Act. We offer a brief overview of this context before turning to the chapters by Isitt and Walters. As detailed in Volume III and revisited in this volume’s epilogue, the 1885 rebellion refected large-scale, coordinated Métis and First Nations resistance to the imposition of a European colonial order and the changes that settlement and new development priorities brought to Canada’s northwest. There had been many instances of Indigenous resistance to the imposition of a European colonial order before this time. These were often met by repressive responses in the form of often unprosecuted trader and settler violence against Indigenous people, direct state violence, and on occasion, legal responses and criminal trials.53 The treason trials that followed the events of 1885 demonstrated that government authorities had come to see Indigenous resistance as a serious national security concern. Métis leader Louis Riel was convicted of high treason and executed; his Métis associates and First Nations leaders pleaded guilty to the lesser offence of “treason felony” to avoid risking Riel’s fate.54 The roots of many of these conficts, including the 1885 rebellion, were found in Indigenous understandings that their rights and customs were recognized in nation-to-nation relations and agreements thought to be protected under the 1763 Royal Proclamation and later treaties.55 These were neglected by the colonial and later Canadian legislatures and courts as Indigenous communities and their traditional uses of the land were displaced by European settlers. In the east, strategic alliances and trade relations between Britain and Indigenous nations declined rapidly in importance after the War of 1812. Local legal regimes refected new economic and other settler interests, operating on the assumption that Crown lands not explicitly ceded by treaty were open and available for exploitation as Indigenous populations were confned to marginal territories.56 The Crown’s Indigenous responsibilities were unilaterally transferred – without Indigenous consultation – from London to Ottawa in 1867. Ottawa exercised its new jurisdiction by “negotiating” numbered treaties from 1871. These were primarily on the prairies (and involved huge territories and unfair concessions), and were accompanied by the

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formation of the North-West Mounted Police (1873) and the passage of the Indian Act (1876). A mix of paternalistic, regulatory, and repressive interventions expedited the settlement of land claims, undermined First Nations and Métis autonomy, marginalized or transformed Indigenous customs, cultures, livelihoods, and identity in accordance with European concepts of civilization, and minimized disruption of European settlement and economic development. These ambitious policy goals were resisted, most notably in 1885. Complaints about settler uses of Crown lands made through petitions and other forms of political organization had little impact on public policies, which refected the state’s development priorities and what was in effect a colonizing agenda. Broad sovereign immunity (until well into the twentieth century, lawsuits against the Crown were proscribed unless the Crown granted permission) promoted further neglect of treaty obligations.57 Colonizing bureaucracies were further strengthened in the twentieth century, and as stated, more recent manifestations of active resistance have been met by court injunctions, criminal proceedings, public order policing, and even military responses. In eastern Canada, instances have included long-standing controversies over the status, governance, and expropriation of disputed customary lands involving the Five Nations of the Iroquois Confederacy, the Six Nations of the Grand River, and many others.58 In the Prairie west, where numbered treaties were signed, many were concluded at a time when Indigenous populations, having been reduced to desperate circumstances, pleaded to “take treaty.” There were also vast areas farther west where no treaties were concluded but Indigenous populations nevertheless were confned to small reserves within their traditional lands, with fshing and hunting rights eroded and title beyond reservation boundaries ignored, without negotiation, settlement, or compensation. The case of the Nisga’a, which lasted a century, is a prominent example of persistent Indigenous efforts to reassert control over traditional lands. Their struggle for rights, thought to be protected under the Proclamation, helped move these issues into the courts and build political support for inclusion of these matters in the 1982 constitutional changes. The Nisga’a chiefs had pressed their demands for recognition of land rights in 1887, but the British Columbia government was unresponsive. The Nisga’a formed a land committee in 1890, and its legal and political work culminated in an unsuccessful petition to the Privy Council in the UK in 1913. In 1927 the Canadian government amended the Indian Act by making it an offence for anyone to raise funds for a claim against the government

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without the government’s permission. This meant that raising money to retain a lawyer to press legal claims was effectively prohibited, and more broadly, legal actions and political organization against government were suppressed.59 Government policies began to shift after the Second World War, as refected in approaches to land claims involving contested treaties that extinguished title or compromised Indigenous rights (such as those in the Mackenzie District of the Northwest Territories). In 1951 the government repealed the 1927 restriction on advocacy, and modest movement toward a comprehensive land claims policy followed, until it was interrupted by the federal government’s 1969 White Paper, which explicitly called into question recognition of inherent Indigenous rights and special status. Two years before this, the Nisga’a Tribal Council, led by Frank Calder with the assistance of lawyer Thomas Berger, launched the Calder case asking the courts to recognize that title to their lands had never been lawfully extinguished. The case was dismissed at trial and by the BC Court of Appeal, where it was held that if Indigenous title ever existed, it had long been extinguished. In the Supreme Court of Canada, six of seven judges recognized Indigenous title and associated rights in Canadian law but ruled against the Nisga’a in the specifc case.60 Nonetheless, the SCC’s general recognition of the existence of Indigenous rights marked an important departure from assertions in the 1969 White Paper and earlier court rulings. The decision provided a foundation on which subsequent courts would expand recognition of Indigenous title.61 Government efforts were renewed to develop a modern comprehensive land claims negotiation process, and momentum developed for explicit recognition of Indigenous rights which was made in the Charter and section 35 of the Constitution Act, 1982. The belated constitutional recognition of rights earlier thought protected under the Royal Proclamation meant that Indigenous claims, extending to rights to self-government and arguably even sovereignty, could no longer be ignored or dismissed by legislatures and courts. Despite these advances, and model settlements such as the 1999 Nisga’a Treaty, many issues remain unresolved. Challenges are being raised around the practical realization of self-government and the implications of multiple sovereignties, which are never far from the surface when Indigenous rights are asserted, whether in legislatures, administrative bureaucracies, or the courts. As the Meares and Lyell Island blockades demonstrate – and the 1990 Oka stand-off even more dramatically so – struggles for these rights, where they run contrary to injunctions granted to settler interests and therefore violate the law, continue to be

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met by repressive state responses based on rule-of-law, public order, and national security justifcations. Benjamin Isitt’s chapter on the Meares and Lyell blockades in response to the expansion of “settler” logging operations illustrates the pattern of repressive responses to Indigenous challenges to settler property claims and the complexities of contested legality in western Canada. In the case of Meares Island, resource extraction was successfully halted for the frst time on the basis of a yet unresolved land claim. By contrast, at Lyell Island the company’s injunction was granted and enforced, although the Haida generated signifcant publicity and support for their cause even though they proceeded without legal counsel. Mark Walters’s examination of the 1990 crisis at Oka, where there had been long-standing confict over traditional Mohawk lands, demonstrates the failure of the usual response of court injunctions, public order policing, and contempt proceedings, which led to a provincial request for military aid to the civil power. Military force ended the Oka stand-off, and Mohawk warriors were eventually prosecuted for a number of criminal offences. The resort to preferred indictments, as well as verdicts according to conscience or jury nullifcation, demonstrate that these trials may be considered political trials, a refection of the second category of political trial in Kirchheimer’s typology noted earlier, namely non-political criminal offences committed for political purposes. In this respect, the Oka trials show parallels with the FLQ trials examined by Warren. Recent Indigenous struggles thus refect some positive developments, but at the same time a continued resort to state repression where resistance interferes with established interests, exceeds offcial toleration, or can otherwise be characterized as unlawful. It is also evident that drawing an arbitrary distinction between regulatory and repressive responses to Indigenous resistance is artifcial given the complexity of Indigenous encounters with the Canadian state. Indeed, as refected in the Indian Act and its administration, a complex mix of repressive and regulatory elements has been part of Ottawa’s exercise of jurisdiction over Indigenous affairs from the outset. And Indigenous assertions of rights against impingements and treaty violations go beyond a simple binary of civil land claims cases and stand-offs that prompted the kinds of public order and security measures examined here. While the remarkable limitations on political advocacy and legal counsel from 1927 to 1951 are long past, a spirit of government paternalism persists that frustrates the assertion of Indigenous rights. This can prompt blockades, stand-offs, and other forms of direct action, which are then considered not only violations of

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the law but also criminal offences that threaten public order. In effect, struggles for Indigenous rights and self-determination entail a complex overlapping array of legal responses related to the bureaucratic administration of Indigenous affairs, civil land claims cases, regulatory offences, and, more recently, section 35 arguments.62 The more repressive state responses examined in the Isitt and Walters chapters are part of a wide array of legal responses and cannot be understood in isolation from other more regulatory and civil legal responses, regardless of the varied specifc circumstances entailed. It may be argued, as Walters suggests, that the Canadian state is today struggling to come to terms with the possibility of multiple political and legal orders. A number of questions follow from this. Is there potential for a transformative political conception of state/Indigenous relations by way of section 35, a new and expansive approach to constitutional undertakings arguably agreed to more than 250 years ago, or will there be confict and government responses that refect an uncompromising adherence to a unitary European conception of the sovereign state? Can sovereignty be divided into some form of blended sovereignty? This concept raises further questions. For instance, what would be the hierarchy of sovereignty? Who is a member of a sub-sovereign community, entitled to its rights but also under the obligations of its authority and governed by its laws? How would conficts of rights and obligations be resolved? What would be the position of Indigenous people who no longer live on their traditional lands, participate in their traditional communities, or identify themselves with their nations of origin? Faced with such practical challenges and complexities, the courts appear to draw a frm line on Indigenous rights where claims may entail the full conceptual and practical implications of sovereignty. The singular, overarching sovereignty and authority of the Canadian state is maintained, while Indigenous rights are accorded special constitutional status within the state, and Indigenous people are treated as a distinct minority with special rights and partial autonomy and self-government conceded by the state. Sovereign authority delegates powers as an exercise of its sovereignty, but this is not divided or blended sovereignty. It remains to be seen whether the frustration of Indigenous aspirations will fuel further resistance met by repressive legal responses and prosecutions for criminal offences, including public order and political offences and security measures. These matters raise diffcult issues about political and legal challenges to the legitimacy of the Canadian state. They are

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posed not only by Indigenous struggles but also in different ways by the sovereignty-association aspirations promoted through established political processes by the Parti Québecois and Bloc Québecois and by the FLQ’s violent struggle for independence from the Canadian state. Indigenous and francophone struggles for self-determination refect historical shifts between advocacy for greater autonomy and self-government within the existing political and legal structures, on the one hand, and active resistance and at times violent challenges to state authority, which are likely to be met by repressive state responses, on the other. It is unclear whether future accommodations will be suffcient to meet the aspirations of many members of these nations and whether these will entail some form of blended sovereignty, if such a concept is possible. The responses to the two independence referendums in Quebec, by the Supreme Court of Canada in the Secession Reference and by the federal government’s Clarity Act, are attempts to establish constitutional political and legal rules for the peaceful resolution of challenges to the ultimate sovereignty of the Canadian state, but their terms have never been tested.63 It could be argued that the modern Canadian state itself developed out of growing autonomy and self-government within the British empire, sparked in signifcant part by the Canadian experiences during the “age of revolutions,” notably the 1837–8 rebellions, which are revisited in the epilogue to this volume. These formative experiences in Canadian political culture and institutional development suggest some basis for optimism about the possibility of accommodation. However, the gradual evolution of the independent Canadian state, including cultural accommodations and protections, responsible cabinet government, and Confederation, has refected the interests of local elites supported by the liberalizing concessions of a geographically distant imperial power, not those of marginalized communities. It remains to be seen how effectively the 1982 constitutional changes and subsequent accommodations will support aspirations for self-determination. In the twenty-frst century, contested and divided sovereignties from below and broader global forces are challenging the prospects of the unifed modern sovereign state, and such pressures are not unique to Canada.64 This in turn raises questions about the laws designed to protect sovereign authority, the safety of the state, and public order, about the legitimacy, shape and administration of political offences, and about national security laws in the future. These laws are premised on the state’s exclusive repressive powers to protect a shared public order and common public institutions and the reciprocal obligations of allegiance that

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accompany the rights and privileges of citizenship. Is this the end of state trials, or will they continue, perhaps in different forms and over different claims? NOTES 1 See F. Murray Greenwood and Barry Wright, “Introduction: State Trials, the Rule of Law, and Executive Powers in Early Canada,” in Canadian State Trials Volume I: Law, Politics, and Security Measures, 1608–1937 (herafter CST1), ed. Greenwood and Wright (Toronto: University of Toronto Press, 1996), 3–8, which explains the provenance of the term (to distinguish government prosecutions from routine criminal cases, which remained mostly privately prosecuted until the nineteenth century). The term is somewhat of a misnomer in the Canadian context since public prosecutions became the norm at an earlier point in British North America. Rather than presenting verbatim trial records annotated with critical commentary, selected Canadian cases and experiences with modern national security responses are examined by historians and legal scholars in interpretative analytical essays. These are situated in a political context, and, where relevant, in social, economic, and comparative contexts, and are also informed by recent scholarship that takes into account developments of the modern state and political cultures, as well as other complexities not considered during the Howells’ time. These matters are revisited at greater length in the epilogue chapter of this volume. 2 See Otto Kirchheimer, Political Justice: The Use of Legal Procedure for Political Ends (Princeton: Princeton University Press, 1961), and more recent legal and political scholarship infuenced by his typology of political trials. Kirchheimer, part of the “Frankfurt School,” fed Nazi Germany for the United States. At the time of his death in 1965, Erich Hula (a former colleague from the New School for Social Research) wrote: “He drew on many periods of history and various political systems ... for the purpose of illustrating and exploring the chief types of political trials, the reasons for instituting them, the ways in which they operate, and the role of the several participants in these trials” (Social Research 33, no. 1 [Spring 1966]: 4–7). In addition to trials for political offences such as treason and sedition and trials for routine offences committed with political aims, his other categories include show trials designed to discredit political opponents and trials during regime transition. For an example of more recent scholarship on political trials

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and the administration of modern national security measures, see Jens Meierhenrich and Devin O. Pendas, eds., Political Trials in Theory and History (Cambridge: Cambridge University Press, 2017). 3 See volume epilogue for the infuence of E.P. Thompson’s work – on the administration of criminal law in eighteenth-century England (Whigs and Hunters: The Origins of the Black Act (Harmondsworth: Penguin, 1977, esp. 262–7) – which suggests that the rule of law constrained the repressive reach of law. For more recent historical scholarship on political trials during the “age of revolutions” see John Barrell, Imagining the King’s Death: Figurative Treason, Fantasies of Regicide, 1793–1796 (Oxford: Oxford University Press, 2000); and Michael T. Davis, Emma Macleod, and Gordon Pentland, eds., Political Trials in an Age of Revolutions: Britain and the North Atlantic, 1793–1848 (London: Palgrave Macmillan, 2019). The concept of the “public sphere” as developed by Jürgen Habermas has been applied by some historians (see, e.g., C. Calhoun, ed., Habermas and the Public Sphere [Cambridge MA: Harvard University Press, 1992]) to describe the growing popular engagement with public affairs, literacy, and new ideas of citizenship and deliberative democracy during the “age of revolutions.” Recent historical scholarship has also led to new assessments of constitutional, political, and colonial histories and reassessed the later twentieth-century tendency to treat political trials as minor aspect of local narratives about political development and liberation and self-determination struggles, by drawing attention to global ‘networks’or movements. There is better understanding of matters such as the infuence of republican ideas circulating during the “age of revolutions,” and the local infuence of British offcials and legal personnel under London’s supervision in British colonial settings. Recent scholarship has also further explored the similarities and differences between experiences on matters such as settler diasporas and Indigenous resistance to colonization. 4 See also the volume Appendix for a listing of chapter titles in previous volumes. 5 The concept of political policing and its importance to the surveillance of perceived security threats, and the enforcement of security-related provisions of the Canadian Criminal Code as well as other national security laws and executive regulations, are examined in detail in R. Whitaker, G. Kealey, and A. Parnaby, Secret Service: Political Policing in Canada from the Fenians to Fortress America (Toronto: University of Toronto Press, 2012). On undercover “special branch” political policing and its relationship to other intelligence operations, see also Christopher Andrew, Her Majesty’s Secret Service: The Making of the British Intelligence Community (London: Heinemann, 1985). Public order policing was separate but not unrelated to

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the mostly undercover “special branch” activities. The refnement of public order policing approaches within the RCMP’s uniformed routine policing operations is examined in the Madsen chapter. For the legislative history of the WMA, see Barry Wright, Eric Tucker, and Susan Binnie, “Introduction: War Measures and the Repression of Radicalism,” in CST4, 10–13; see also F. Murray Greenwood, “The Drafting and Passage of the War Measures Act in 1914 and 1927: Object Lessons in the Need for Vigilance,” in Canadian Perspectives on Law and Society: Issues in Legal History, ed. W. Wesley Pue and Barry Wright (Ottawa: Carleton University Press, 1988), 291. As “permanent” emergency executive-enabling legislation, the WMA differed from the UK’s temporary Defence of the Realm Act and reliance on prerogative powers as well as from Australia’s sole reliance on temporary wartime legislation – see Peter McDermott, “Enemy Aliens in the First World War: Legal and Constitutional Issues” CST4, 71. The emergency orders were retroactive to 25 August, well before the declaration of war. Belligerency on the part of the Dominions was automatic upon the British declaration, but a separate declaration was made for symbolic reasons and to establish a constitutional claim of Canada’s right to make a sovereign choice in matters of war – see F.R. Scott, “The End of Dominion Status” (1945) 23 Canadian Bar Review, 734 at 736–7. Detained labour leaders included CCFers such as Charles Millard, leader of the Steel Workers Organizing Committee, and George Burt, a leader of the Canadian branch of the United Auto Workers – see Judy Fudge and Eric Tucker, Labour before the Law (Toronto: Oxford University Press, 2001), 228–33; and Reg Whitaker, “Offcial Repression of Communism during World War II” (1986) 17 Labour / Le Travail 135. See, e.g., PC 8253 (October 1941), PC 5963 (July 1942), PC 9384 (December 1943). Wage controls continued post-war through the effect of transition legislation, e.g., PC 348 (February 1946). While federal wage and labour orders ran contrary to the JCPC decision in Toronto Electric Commissioners v. Snider et al. [1925] 2 D.L.R. 5, and collective bargaining and labour disputes for most industries fell under provincial jurisdiction, the JCPC upheld wide emergency powers – see note 13 below. Fudge and Tucker, Labour before the Law, 235–45. This expropriation was one of the historical grievances that helped precipitate the Ipperwash standoff in 1995, inspired in part by the events at Oka in 1990 examined in the Walters chapter in this volume. See Bodhan S. Kordan, “They Will Be Dangerous: Security and the Control of Enemy Aliens, 1914,” CST4, 42.

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12 Legislation supporting the continuation of orders originally issued under the WMA after the Second World War ended: National Emergency Transitional Powers Act (9–10 Geo. VI), S.C. 1945, c.25; Continuation of Transitional Measures Act (11 Geo. VI), S.C. 1947, c.16; further continued in amended form by S.C. 1948, c.5, S.C. 1949, c.3 and S.C. 1950, c.6; Emergency Powers Act (15 Geo. VI) S.C. 1951 c.5. The Emergencies Powers Act took effect in March 1951 (and expired in May 1954) and was accompanied by amendments to the Criminal Code discussed in the text below. As noted in Volume IV, emergency transition legislation in 1918 and 1919 sustained wartime orders outlawing labour and immigrant organizations and expanded the reach of sedition, and later resulted in legislative amendments to the Criminal Code (amendments to sedition and the criminalizing of revolutionary organizations in what became section 98) and the Immigration Act (section 41 and 42 summary deportation powers) – see Dennis G. Molinaro, “Section 98: The Trial of Rex v. Buck et al. and the ‘State of Exception’ in Canada, 1919–36,” in CST4, 324. In a similar fashion, when the War Measures Act ceased to be in effect in December 1970, many of the emergency regulations were continued under the authority of the Public Order (Temporary Provisions) Act, Stat. Can. 1970–71–72, c.2. 13 See Fort Francis Pulp and Power Co. v. Manitoba Free Press [1923] App Cas 695; In re George Edwin Gray (1918) 57 SCR 150. See also Patricia I. McMahon, “Conscription and the Courts: The Case of George Edwin Gray, 1918,” CST4, 132; “Editors’ Note: Judicial Review of the War Measures Act, 1914,” CST4, 475. In the 1923 decision, Viscount Haldane broke from the JCPC’s usual decentralizing approach to federalism cases and its narrow approach to federal residual powers, which had rejected national dimension or national concern justifcations under “peace, order and good government.” But the former British war minister approved reliance on it as an emergency power, which he defned expansively, including continuation of war measures into peacetime should government provide evidence that exceptional measures were still required. 14 “But very clear evidence that an emergency has not arisen, or that the emergency no longer exists, is required to justify the judiciary, even though the question is one of ultra vires, in overruling the decision of the Parliament of the Dominion that exceptional measures were required or were still required. To this may be added as a corollary that it is not pertinent to the judiciary to consider the wisdom or the propriety of the particular policy which is embodied in the emergency legislation. Determination of the policy to be followed is exclusively a matter for the Parliament of the Dominion and those to whom it has delegated its power.” Co-Operative Committee on

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Japanese Canadian v. Attorney General of Canada [1947] App Cas 87 at 101–2. Other challenges to the War Measures Act in the Canadian courts during this period included Ex p. Sullivan (1941) 75 C.C.C. 70 (Ont. S.C.); Re Steele (1942) 77 C.C.C. 307 (Ont. S.C.); and Re Carriere (1942) 79 C.C.C. 329 (Que. S.C.). The case was much criticized (see Bora Laskin, “Peace, Order and Good Government Re-examined” (1947) 25 Canadian Bar Review, 1054) and lent momentum to the campaign by Frank Scott and others to end JCPC appeals. As noted below at note 47, the pattern of judicial deference continued in the wake of the October Crisis: R. v. Gagnon and Vallières (1971) 14 C.R.N.S. 321 (Que. C.A); H. Marx, “The ‘Apprehended Insurrection’ of October 1970 and the Judicial Function” (1972) U.B.C. Law Review, 55. Major revisions to the WMA were belatedly made in 1988 when it became the Emergencies Act (S.C. 1988, c.29). Ramsay Cook, “The Triumphs and Trials of Materialism,” in The Illustrated History of Canada, ed. Craig Brown (Toronto: Lester, 1991), 458. See https://www.thecanadianencyclopaedia.ca/en/article/second-world -war. See also Jonathan Fennell, Fighting the People’s War: The British and Commonwealth Armies and the Second World War (Cambridge: Cambridge University Press, 2019), 71. Approximately half of Canada’s army ... “never left the country” (en.wikipaedia.org./wiki/Canada_in_World_War_II). From twenty-fve executions during the First World War to one execution during the Second World War. See Jean-Pierre Gagnon, L’Histoire du Royal 22e Régiment (Québec: Les Presses de l’université Laval, 1986); and Craig Forcese’s chapter in this volume. As included in the Allies’ Moscow declaration of 1943 and the Potsdam Declaration of 1945. Few war crimes trials had taken place after the First World War, and those trials took place in German courts with German prosecutors by arrangement with the US and the UK. See Forcese chapter. Note that Forcese states that Australia, New Zealand, and India participated in the planning stages of the UNWCC beginning in 1942. At the end of the war in Europe, the Nuremberg Trials of leading Nazis were conducted by an international tribunal consisting of representatives of the UK, US, Russia, and France, and trials continued there until 1949. Other, lesser trials, including some where the offences charged had taken place in specifc geographical locations, were conducted by the country whose troops had been directly affected. Hence Canada’s prosecution of Kurt Meyer, whose trial took place at Aurich, Germany, and the attempted prosecutions of others accused of murdering Canadian RAF pilots. However, in the war’s Pacifc theatre, war crimes committed against Canadian troops were presided over by British-led

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courts martial, although Canadian prosecutors were involved where victims were Canadian, as in Hong Kong. Figures reported in different sources for troops landing on D-Day vary considerably, ranging from a total of 130,000 (Fennel, 492) to 156,000 (https:dday.com), with Canadian troop fgures ranging from a low of 14,000 to as high as 21,000. Lower fgures have been used. Fennell, 471–2. As Forcese explains, it was conducted by offcers of the Supreme Headquarters Allied Expeditionary Force. SHAEF was under the command of General Eisenhower, who ordered the inquiry. See, generally, on the early Cold War in Canada, Reg Whitaker and Gary Marcuse, Cold War Canada: The Making of a National Insecurity State, 1945–57 (Toronto: University of Toronto Press, 1996); Dominique Clément, “The Royal Commission on Espionage and the Spy Trials of 1946–9: A Case Study in Parliamentary Supremacy” (2010) 11 Journal of the Canadian Historical Association, 151; Amy Knight, How the Cold War Began: The Gouzenko Affair and the Hunt for Soviet Spies (Toronto: McClelland and Stewart, 2005). See note 12 above. Statutes of Canada, 1939, c.49. This background is examined in detail in Volumes III and IV of the series and is revisited in the volume epilogue: see Desmond H. Brown and Barry Wright, “Codifcation, Public Order, and the Security Provisions of the Canadian Criminal Code, 1892,” in CST3, 532–4. As noted in that chapter, the OSA originated in UK breach of offcial trust legislation frst passed in 1889, was adopted by the Dominion of Canada the following year, and was included in the 1892 Canadian Criminal Code. Opposition to further protection of offcial secrets was overcome during the build-up to the First World War with the passage of the comprehensive Offcial Secrets Act, 1911, enacted as imperial legislation and thus applicable to Canada. Liability for spying and leakage was broadened, and reverse onus and in camera expedients were introduced for the trial of offences under the Act. The older Criminal Code provisions were retained but later dropped when Canada passed its own Offcial Secrets Act in 1939, which combined the UK 1911 Act and 1920 UK amendments (which further elaborated the espionage offences to incorporate the temporary Defence of the Realm regulations). See also Martin L. Friedland, National Security: The Legal Dimensions, A Study Prepared for the Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police [McDonald Commission] (Ottawa: Queen’s Printer, 1979), 31–4. “The Report of the Royal Commission Appointed under Order in Council P.C. 411 of February 5, 1946 to investigate the facts relating to and the

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circumstances surrounding the communication by public offcials and other persons in position of trust of secret and confdential information to agents of a foreign power” [Kellock–Taschereau Commission] (Ottawa, 1946). The Commission was given special privileges, immunities, and powers set out in the wartime order-in-council PC 1639 (1942). See also W. Eggleston, “The Report of the Royal Commission on Espionage” (1946) 53 Queen’s Quarterly, 369; M.H. Fyffe, “Some Legal Aspects of the Report of the Royal Commission on Espionage” (1946) 24 Canadian Bar Review, 777; Clément, “The Royal Commission on Espionage”; Knight, How the Cold War Began. 27 Under the Tudors and the Stuarts, the Court of Star Chamber increasingly diverged from the thirty-ninth clause of the Magna Carta (no person will be proceeded against by force except by lawful judgement of peers or by the law of the land). Under Charles I it was used to coercively enforce criminal laws against sedition and religious dissent, and came into contention for its arbitrary and secret proceedings, punishment without due process, and the political manipulation of the administration of justice. The Court was abolished in 1689 and was much denounced by English State Trials editors such as the Howells. 28 See the Falk and Wentzell chapter on the international implications of the spy ring revelations, especially in the United States. Nunn May was named by the Kellock–Taschereau Commission for having passed on atomic secrets while working at research facilities in Canada and was tried in London in 1946, convicted, and sentenced to ten years. His trial at the Old Bailey followed on the heels of the treason convictions of William Joyce (“Lord Haw Haw”) and John Amery for their collaboration with the Nazis. These trials refected the rapid transition from World War to Cold War and to what Rebecca West called the “new meaning” of treason. West’s articles in The New Yorker on the treason and espionage trials at the outset of the atomic age, in which the Royal Commission’s investigations fgured prominently, were elaborated into her book The Meaning of Treason (New York: Viking, 1947). Her later book, The New Meaning of Treason (New York: Viking, 1964), included the convictions in the early 1950s of Klaus Fuchs in the UK and the Rosenbergs in the US. 29 The OSA was again amended in 1974 and 1985 and revised in 2001 and is now known as the Security of Information Act. On the 2001 reforms, see amendments under the Anti-Terrorism Act S.C. (2001) c.41 part 2 sections 24–31. The espionage and leakage offences have been retained, and references to terrorist aims have been added to the section 3 espionage offences (political, religious, or ideological advocacy for the beneft of a foreign entity or terrorist group). Greater clarity, with the aim of conformity to the Charter

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of Rights, was brought to the section 4 leakage offences. The public at large are now liable only to a summary offence of leakage and may claim a public interest defence; also, designated government personnel are liable to the indictable version of the offences. The changes are similar to the major 1986 amendments to the UK Act, which refected the recommendations of Lord Franks’s departmental committee and its 1978 White Paper. Apart from a minor amendment to sedition with the addition of section 98 (repealed in 1936) and the replacement of sections 77 and 78 by the Offcial Secrets Act in 1939, the Criminal Code provisions were the same as those originally enacted in 1892. See Brown and Wright, CST3, 516, note 25 above, and the volume epilogue at notes 42 and 43 and conclusion. S.C. 1951, c.47. A new sabotage offence and the offence of advising disloyalty or insubordination in members of the armed forces or RCMP were also added. The 1953–4 revisions modifed the penalties and also updated the language for the treason offences set out in the 1892 Code. As seen in Brown and Wright, CST3, 529–32, these provisions preserved the three classic “heads” of high treason (plotting the death of the sovereign, levying war or armed insurrection, or assisting enemies at war), which were punishable by death, and also included the lesser treason felony offence (conspiracy to commit high treason, punishable by life), as well as the lawless aggression offence (developed in 1838 and 1866 to deal with border raiders who did not owe allegiance). Justice Minister Stuart Garson echoed Rebecca West (see note 28 above) commenting on the fndings of the Royal Commission when introducing the amendment, “This new sort of treason is in line with the great change which has come over the offence of treason from what it was in feudal days when it might have been an act of disloyalty to a personal king. But today there could be disclosure of information with regard to the H-bomb or the atomic bomb ... consequences much more serious for the state than even a personal attack upon the monarch” (House of Commons, Debates 1953–4, vol. 4, 3668). The 1953–4 revisions also introduced new espionage offences that overlapped with the Offcial Secrets Act. The overlaps and related inconsistencies of language, procedure, and penalties were identifed in the report of the 1969 Mackenzie Committee (see note 38 below) and elaborated in Martin Friedland’s 1979 report to the McDonald Commission (National Security: The Legal Dimensions). See David A. Wilson, “The D’Arcy McGee Affair and the Suspension of Habeas Corpus,” CST3, 85; A. Parnaby and G.S. Kealey with K. Niergarth, “High-Handed, Impolite, and Empire-Breaking Actions: Radicalism, AntiImperialism, and Political Policing in Canada, 1860–1914,” CST3, 483; and,

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more generally, Whitaker, Kealey, and Parnaby, Secret Service: Political Policing in Canada. See Order-in-Council PC 54/3535 (1945). These signals surveillance, counter-intelligence, and intelligence-sharing operations became the responsibility of the Department of National Defence in 1975 in the form of the Communications Security Establishment (CSE) (Order-in-Council no. 75–195, 1975). These operations were only publicly acknowledged by the federal government in 1995 after the publication of Mike Frost’s revelations that the CSE also monitored Canadians by way of intelligence-sharing with sister organizations – see Mike Frost with Michel Gratton, Spyworld: How the CSE Spies on Canadians and the World (Toronto: Doubleday, 1995). Section 102 of the 2001 Anti-Terrorism Act amended the National Defence Act to create an explicit legislative mandate for the CSE and some oversight by way of a commissioner regularly reporting to the minister. With a judicial warrant, CSE can also give support to law enforcement under pt 4, for collection of intelligence from Canadians. These operations have assumed a yet larger role in the recent “war on terrorism” and “cyber-security” practices in Canada’s participation in the “Five Eyes” intelligence-sharing network with the UK, US, Australia and New Zealand – see Dennis G. Molinaro, ed., The Bridge in the Parks: The Five Eyes and Cold War Canada (Toronto: University of Toronto Press, 2021). See Whitaker, Kealey, and Parnaby, Secret Service: Political Policing in Canada, 179–267. See also Gary Kinsmen, The Canadian War on Queers: National Security as Sexual Regulation (Vancouver: UBC Press, 2010); and R. Whitaker, “Fighting the Cold War on the Home Front: America, Britain, Australia, and Canada,” The Socialist Register 1984, 24 at 54–6. See Dennis Molinaro, “‘In the feld of espionage, there’s no such thing as peacetime’: The Offcial Secrets Act and the PICNIC Wiretapping Program” (2017) 98 Canadian Historical Review, 457. Emergency Powers Act, S.C. 1951 c.5. In 1966, in the wake of the Munsinger affair, other security scandals, and growing concerns about RCMP operations, the Pearson government appointed the Mackenzie Commission. The Commission’s abridged recommendations on security operations were released three years later (Report of the Royal Commission on Security, 1969). “Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police” [McDonald Commission] (Ottawa, 1981). The Canadian Security Intelligence Service Act, S.C. 1984 c.21, replaced the RCMP security branch with a civilian intelligence agency with an explicit legislative mandate that set out operational powers and responsibilities in relation to government

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41 42

43 44

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departments and enhanced accountability to Parliament (including sunset clauses), regular departmental administrative operational reviews, and independent review (Security Intelligence Review Committee), which would also hear complaints. CSIS would take over intelligence-gathering and assessment and security clearances, but the RCMP would continue to conduct security-related criminal investigations and to play a role in intelligence operations outside of Canada, in addition to Communications Security Establishment (National Defence) operations in surveillance and intelligencesharing. Peter S. McInnis, Harnessing Labour Confrontation: Shaping the Postwar Settlement in Canada, 1943–1950 (Toronto: University of Toronto Press, 2002); Fudge and Tucker, Labour, 265–301. Irving Abella, Nationalism, Communism, and Canadian Labour (Toronto: University of Toronto Press, 1973); Whitaker, Cold War Canada, 310–63. The exporting of Cold War American labour practices and federal interventions into the internal affairs of unions (the 1947 Taft Hartley Act) had an impact on Canada, one that also extended to the UK and Australia. In 1946 the British Special Branch renewed the deployment of agents into militant unions and the Home Offce ordered unions to compile lists of Communist front supporters; in 1947 the Labour Party Secretary openly called upon all trade unions to purge Communists. A labour party was also in power in post-war Australia but quickly tried to distance itself from radical elements in the union movement. It lost the general election in 1949 to the Liberals, who had campaigned on declaring Communist organizations illegal. The new Menzies government brought a series of sedition prosecutions against leading Communists (Burns v Ransley, R v Sharkey) and then in 1950 introduced the Communist Dissolution Bill, later ruled ultra vires by the Australian High Court – see Whitaker, “Fighting the Cold War on the Home Front,” 29–51; and on the Dissolution Bill saga in Australia, see G. Winterton, Seeing Red: The Communist Dissolution Act and Referendum, 1951 (Melbourne, 1992). Bryan D. Palmer, Canada’s 1960s (Toronto: University of Toronto Press, 2009), 223–4. For an excellent overview, with interviews of activists and those affected, see the 2020 CBC podcast series produced by Geoff Turner, Recall: How to Start a Revolution, www.cbc.ca. See Kirchheimer, Political Justice, esp. ch. 3, “Political Trials,” 46. See D. Molinaro, “Section 98,” CST4, 324. Robert Lemieux and Bernard Mergler, both of whom studied law at McGill with Frank Scott (a prominent civil libertarian who had defended

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Communists from the 1930s to the 1950s) were the leading defence counsel for the FLQ, and Lemieux was himself prosecuted for seditious conspiracy as one of the Five. After that prosecution collapsed, Lemieux continued to defend FLQ accused in other trials, and at the end of Paul Rose’s 1972 trial for the kidnapping and murder of Pierre Laporte, Justice Mathieux sentenced Lemieux to two and a half years’ imprisonment for multiple contempt of court convictions, accumulated from his 1967 defences of Vallières and Gagnon through to Rose’s trial. As detailed in the Pacione chapter, the Quebec Court of Appeal reduced the sentence to six months. Following his release, Lemieux was professionally disciplined by the Barreau du Quebec, which considered disbarring him but instead suspended him for conduct unftting to the honour and dignity of the legal profession. The Criminal Code sets out offences related to obstruction of justice and disobeying court orders, but the wide common law powers of the courts are otherwise preserved to punish, as contempt, disruption of judicial proceedings and defance of, or affronts to, judicial authority (“scandalizing” the courts). See D. Hay, “Contempt by Scandalizing the Court: A Political History of the First Hundred Years” (1987) 25 Osgoode Hall Law Journal, 431; Law Reform Commission of Canada Working Paper 20 (Ottawa, 1977); and Law Reform Commission of Canada, Report 17 (Ottawa, 1982). 48 See notes 13 and 14 above. The Quebec courts deferred entirely to the earlier high court decisions on the WMA – see R. v. Gagnon and Vallières (1971) 14 C.R.N.S. 321 (Que. C.A.). See also H. Marx, “The ‘Apprehended Insurrection’ of October 1970 and the Judicial Function” (1972) U.B.C. Law Review, 55. The retroactive effect of the emergency orders meant that arrested and indefnitely detained suspects could not contest their detention by renouncing their membership in the outlawed FLQ. Moreover, the 1970 emergency orders regulations and Public Order Act regulations specifed that anything done under their authority would not be considered an infringement of the Bill of Rights. The WMA was then amended to explicitly exempt it from the Bill of Rights – see Statutes of Canada. 1970–71–72, c.2. See also Marx, “The Emergency Power and Civil Liberties”; M.L. Friedland, “Trial under the War Measures Act: Can Crime be Retroactive?,” Globe and Mail, 28 October 1970; Friedland, National Security: The Legal Dimensions, 110–13; and W. Tarnopolsky, “Emergency Powers and Civil Liberties” (1972) 15 Canadian Public Administration, 194. 49 In 1972 the federal government announced its intention to reform the War Measures Act and later prepared a bill, but it slipped from the legislative agenda during the 1970s and early 1980s due to a government focus on other pressing security reforms. The Emergencies Act S.C. 1988, c.29, preserves the

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model of permanent emergency executive enabling legislation, a departure from the usual emergency legislative responses in Westminster systems. It expands the existing two categories under the WMA to four types of emergencies. However, the Charter of Rights is applicable, parliamentary review is enhanced, and the reach of executive orders is limited within three of the designated emergencies, short of war. See Friedland, National Security, 113–14; L.E. Weinrib, “Situations of Emergency in Canadian Constitutional Law,” in (1990) Contemporary Law: Canadian Reports to the 1990 International Congress of Comparative Law, 466; and, on its relation to more recent security legislation, Weinrib, “Terrorism’s Challenge to the Constitutional Order,” in The Security of Freedom: Essays on Canada’s Anti-terrorism Bill, ed. R.J. Daniels, P. Macklem and K. Roach (Toronto: University of Toronto Press, 2001), 93. 50 See note 39 above on the McDonald Commission and the 1984 Canadian Security Intelligence Service legislation, which includes security offences falling under its legislative mandate. 51 On the different views of the constitutional signifcance of the Proclamation, see notes 52 and 55 below. The 1763 Proclamation is not cited in the constitutional schedule set out in section 52(2) of the Constitution Act, 1982, although it is referred to in section 25 in conjunction with section 35. The Judicial Committee of the Privy Council recognized the Proclamation as the source of “Indian interest” in the land in St. Catherines Milling and Lumber Company v the Queen (1888) 14 App Cas 46, but at the “will and pleasure of the Crown,” so it could be set aside at any time. This position was reiterated by the Supreme Court of Canada in R v Guerin [1984] 2 SCR 335, which, however, added that Indigenous rights also originated in their occupation of their traditional lands, recognized at common law. A number of decisions interpreted this authority to read that “existing aboriginal and treaty rights” in section 35 were subject to the Crown’s pleasure, but the Supreme Court of Canada in R v Sparrow [1990] 1 SCR 1075 moved away from the courts’ restrictive approach to Indigenous rights under the Proclamation with wide interpretation of section 35, holding that Indigenous rights could only be abrogated under a high threshold of justifcation. Whether section 35 displaces the Proclamation altogether, or simply the long-established position of the courts that viewed the reach of the Proclamation as entirely at the discretion of the Crown, is debated. 52 See, e.g., H. Foster, “The Royal Proclamation of 1763 in British Columbia: An Indigenous Magna Carta’s Chequered Canadian Career,” in Challenges to Authority and the Recognition of Rights: From Magna Carta to Modernity, ed. C. MacMillan and K.J.M. Smith (Cambridge: Cambridge University Press, 2018), 269. Sparrow (ibid) suggests that the Proclamation is effectively displaced by

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section 35, and that, unconstrained by the earlier Proclamation jurisprudence, the courts are able to hold legislatures more to account on Indigenous issues. While judges take great care around precedents, historians do not face the practical constraints of legal precedents and authoritative dispute resolution and are free to question the sovereign authority of the state. Historians deal with forms of historical evidence and speculation that may well not be admissible in court, and they recognize the challenges of determining historical understandings muddied by subsequent nineteenth-century developments and decisions such as St. Catherines Milling. They recognize the vagueness of the Proclamation, its contested meanings, and the possibility that it was more than a Royal edict, with grand treaty elements refecting nation-to-nations agreement. But historians also face the challenges of avoiding “presentism” and simplifying complexities (including assessment of past injustices with assumptions based on current understandings of rights). Legal and historical scholarship can be in tension with activist arguments that Indigenous nations never surrendered their rights of self-government and sovereignty. 53 See, e.g., Hamar Foster, “Long-Distance Justice: The Criminal Jurisdiction of the Canadian Courts West of the Canadas, 1763–1859” (1990) 34 American Journal of Legal History, 1–48. There were no courts in the territories west of Upper Canada until the colony of British Columbia was established in 1854, and territorial magistrates started to be appointed mid-century. London attempted to deal with trader-on-trader and trader-on-settler violence, and issues were raised during Hudson’s Bay Company charter renewals. 54 See Bob Beal and B. Wright, “Summary and Incompetent Justice: Legal Response to the 1885 Crisis,” in CST3, 353; J.M. Bumsted, “Another Look at the Riel Trial for Treason,” in CST3, 411; Bill Waiser, “The White Man Governs: The 1885 Indian Trials,” in CST3, 451; and discussion in this volume’s epilogue. 55 See John Borrows, “Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self Government,” in Aboriginal and Treaty Rights in Canada, ed. M. Asch (Vancouver: UBC Press, 1997). Borrows presents evidence and convincingly argues that the Proclamation was understood by Indigenous communities as a nation-to-nations grand treaty and that it was presented to them in those terms. Concluded the same year that francophone residents in Quebec were confrmed as British subjects in the Treaty of Paris, the Proclamation was a unilateral edict of George III, and on this basis some legal scholars argue that the Proclamation did not contemplate Indigenous rights and self-government and that Indigenous communities were wards of the Crown, living under its protection. Aspects of the Proclamation, including restrictions on permanent European settlement west of the Appalachian

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Mountains, apart from a trading presence (one of the grievances leading to the revolt in the American colonies), suggest otherwise. Borrows’s research on the Proclamation and the Treaty of Niagara (completed the following year with several Indigenous nations) supports the view that the Proclamation was an undertaking by the Crown to protect Indigenous rights as well as customs of self-governance, to be held in trust, and that these could only be altered (extinguished or modifed) by way of subsidiary treaties completed with local bands that traditionally used the territory in question. In this sense it could be understood as a recognition of Indigenous sovereignty. Resource extraction, agriculture, and settlement were permitted, and challenges were suppressed – see note 57 below. Colonial and later provincial legislation granted access to minerals, timber, and other resources on Crown lands and also granted licences of occupation. Such access was converted to more secure forms of ownership if the land was improved for agricultural uses and permanent settlement. The courts usually upheld these legislative interventions, ignoring the 1763 Proclamation in relation to unceded lands, or approaching treaty rights in a manner that favoured settler interests. Restrictions on petitions against the Crown were not confned to Indigenous claims and were only eased with the passage of Crown liability legislation. On status of the Nations Confederacy as “allies” of the British Crown, see Logan v Styres (1959) 20 DLR (2d), 416; on governance controversies, see Isaac v Davey (1974) 51 DLR (3d) 170 (see also A.G. Ontario v Bear Island Foundation, [1991] 3 CNLR 79). There had been a long history of Mohawk resistance, including a series of arson trials of Mohawk warriors in the late 1870s for their refusal to allow frefghters access to a newly constructed Catholic seminary. Their resistance around the expropriations for the construction of the St Lawrence Seaway in the 1950s included a direct petition to the Crown and a refusal to recognize the authority of the Canadian government, as that authority had been unilaterally transferred from London to Ottawa in 1867 without Indigenous consultation or reference to the 1763 Proclamation. Section 149A (renumbered section 141 in Indian Act revisions later that year) prohibited counsel for all treaty-related claims but did not prevent lawyers from being retained in individual civil claims or as defence counsel in criminal cases. In a letter to the Advocate (July 2019, 615–17), Hamar Foster refers to two prosecutions in British Columbia, one against Arthur O’Meara, who had acted for the Nisga’a and had annoyed the federal Indian Department for nearly two decades, and another against John Elliot, who sought funds to revive the Allied Tribes title claims against the Crown. In Foster’s interviews with Indigenous elders in the early 1980s, all indicated

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that they understood that the prohibition made it illegal not only to hire lawyers and raise money for land claims, but also to hold meetings to discuss such claims. 60 Calder v British Columbia (AG) [1973] SCR 313. The combined result of the trial and the appeal to the BC Court of Appeal was that Indigenous title had never been recognized in BC, and even if it had, all such rights were implicitly extinguished by colonial laws before Confederation. In the Supreme Court of Canada, six of seven judges ruled that Indigenous title was part of Canadian law, but they split 3–3 on whether Nisga’a title had been extinguished. However, the merits were not considered because, since the Nisga’a had not obtained BC’s permission to sue, a seventh judge ruled the case was not properly before the court, and the three who had found that title had been extinguished agreed. Therefore, the Nisga’a lost the appeal on this procedural ground. Negotiations between the federal government and the Nisga’a Tribal Council began in 1976, the BC government joined them in 1990, and the three parties reached agreement in principle in 1996. This led to a detailed agreement, the Nisga’a Treaty of 1999, that included self-government and control of 2,000 square kilometres of ancestral territory. This process, which had begun more than one hundred years earlier, serves today as a model for other modern treaties. On the background and details of the Nisga’s saga and the Calder case, see Hamar Foster, Heather Raven, and Jeremy Webber eds., Let Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights (Vancouver: UBC Press, 2007) 61 The reach of Indigenous title has been further articulated by the Supreme Court of Canada in Guerin (see note 51); Delgamuukw v British Columbia [1997] 3 SCR 1010; and Tsilhqot’in Nation v British Columbia [2014] 2 SCR 257. R v Van der Peet [1996] 2 SCR 507 elaborated on Indigenous constitutional status, but this case and Sparrow (note 51) also suggest the limits of the courts’ interpretation of the reach of section 35, by establishing a legal framework that focuses on Indigenous rights rather than Indigenous sovereignty. 62 The editors are grateful to Hamar Foster for his comments on this section and to Joshua Nichols and Benjamin Ralston for sharing their insights into the diverse but interconnected regulatory and repressive responses to Indigenous struggles. There is also a rich array of cases on quasi-criminal regulatory offences that contradict customary fshing, hunting, and other Indigenous uses of the land such as Van der Peet and Sparrow. These cases and Delgamuukw (see ibid) effectively disposed of government and settler interest arguments that Indigenous title could be implicitly extinguished, or that government regulation of Indigenous rights amounted to extinguishment, so that section 35 includes such regulated rights.

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63 Re Secession of Quebec [1998] 2 SCR 217; “An Act to give effect to the requirement of clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference,” Statutes of Canada 2000, c.26. 64 For insightful refections on the history of the idea of sovereignty and its current challenges, see Peter H. Russell, Sovereignty: The Biography of a Claim (Toronto: University of Toronto Press, 2021). The editors are grateful to Reg Whitaker for sharing his helpful thoughts on the sovereignty challenges and the shifts, refected in both the struggles of Indigenous nations and in Quebec, between lawful advocacy and accommodations on one hand, and active resistance considered unlawful and met by state repression on the other. We also thank our volume contributors for their specifc suggestions for other sections of this chapter.

1 Constitutional Wrongs: The Wartime Constitution and Japanese Canadians, c. 1942–6 E R I C M . A D A M S , J O R D A N S TA N G E R - R O S S , AND THE LANDSCAPES OF INJUSTICE RESEARCH COLLECTIVE*

The exile of Moichiro and Tsuma Tonomura and their four children, George, Betty, Jean, and John, to Japan, alongside nearly 4,000 other citizens and residents of Canada marked the culmination of years of state-imposed and judicially sanctioned denials of human rights on racial grounds. Throughout the 1940s, under the purported authority of the War Measures Act (WMA), the Canadian government enacted a series of repressive and harmful measures against persons of the “Japanese race,” including registration, mass uprooting, displacement, internment, incarceration, dispossession, and, fnally, in 1946, exile from Canada.1 The Tonomura family experienced all of the harms and indignities of a racist legal regime premised on a fundamental disregard for their interests, humanity, and well-being. This chapter explains how these constitutional wrongs occurred and details the largely unsuccessful efforts of Japanese Canadians to challenge them in court. It is a story of the failures of Canadian constitutional law.2 Moichiro Tonomura was born in Japan’s Shiga Prefecture, near Kyoto, in 1898. At ffteen, he joined his parents in Vancouver, and shortly after, the family purchased twenty-fve acres of land on the unceded territory of the Stó:lo Nation along the Fraser River, making his family some of the frst Japanese immigrants to farm in Canada. Moichiro cleared stumps, harvested fruit, and, by the 1920s, began to reap the profts of his family’s labours. In 1928, he returned to Japan to marry Tsuma, a woman from a village near his own. Tsuma returned with Moichiro to the family farm, where the couple raised four children. In 1942, when Canada declared war

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on Japan and uprooted Japanese Canadians, Moichiro refused to leave the land his family had cleared and the house his father had built. Along with other Japanese Canadians who resisted, Moichiro was arrested by the RCMP and then imprisoned deep in the Ontario wilderness. His family did not see him for four years. Tsuma and her children were taken to Lemon Creek, a feld of tents and hastily constructed shacks in the interior of British Columbia. Finally reunited in 1946, the Tonomuras joined thousands of other Japanese Canadians compelled by the Canadian government to leave Canada and accept exile to war-devastated Japan. In Japan, the family travelled by rail to Moichiro’s ancestral village of Kondo, wrapping scarves around their faces to shield against the engine smoke that blew in through the train’s bombed-out windows. The Tonomuras’ diffcult life of exile in Japan had begun.3 Like many of the Japanese Canadians living in exile, the Tonomura family sought to return home to Canada. Moichiro and Tsuma’s eldest son, George, succeeded frst. Having been born in Canada in 1928, he retained Canadian citizenship, and by 1955 he had left Japan and returned to Vancouver, hoping to be able to sponsor his parents. On 23 February 1955, Moichiro received a disappointing letter from the Canadian embassy in Tokyo.4 “Because you repatriated from Canada after the war,” Moichiro read, “you have lost Canadian citizenship.” Rumours that Canadian children could sponsor their parents, the letter continued, were false. Moichiro and Tsuma would have to apply to immigrate to Canada like any other non-resident.5 For the Tonomuras, the constitutional wrongs of exile endured. The exile was the product of a racist legal regime imposed on Japanese Canadians for nearly a decade: thousands of pages of executive orders-incouncil passed in large and unwieldy batches, often undergoing little scrutiny except by the bureaucrats who wrote them and the Japanese Canadians who struggled under their harsh, unfair, and repressive terms. This chapter explores the nature of this regime from three interrelated perspectives: (1) the constitutional power of lawmaking authorized under the WMA during and after war, (2) the creation and enforcement of the discriminatory legal categories central to the regime’s operation, and (3) the legal challenges to these constitutional abuses. Our frst task is to draw back the curtain on the sources of this unjust legal regime and to place them in the context of what we call the wartime constitution. In the second part, we trace the troubling and contested use of race as a basis for this regime. Third, we examine the failure of courts to prevent even the most extreme violations of Japanese Canadians’ constitutional and legal rights. Under the powerful hold of the

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wartime constitution, Japanese Canadians’ demands for legal accountability could not overcome judicial deference to executive authority in a time of real, perceived, and concocted security concerns. the wartime constitution Despite his hopes that war might be avoided, William Lyon Mackenzie King awoke on 1 September 1939 to the news that Germany had invaded Poland. In emergency meetings that followed, cabinet proclaimed an apprehended state of war and invoked the broad legislative authority conferred under the WMA. The Act enabled the cabinet to “do and authorize such acts and things ... as [it] may by reason of the existence of real or apprehended war ... deem necessary or advisable for the security, defence, peace, order and welfare of Canada.”6 Among its powers, the Act authorized “censorship and the control and suppression of publications,” “arrest, detention, exclusion and deportation,” “control of the transport of persons and things,” power over “trading, exportation, importation, production and manufacture,” and “appropriation, control, forfeiture and disposition of property.”7 In the words of one government source, the WMA granted “the Executive ample authority to take pretty well whatever action might be found to be necessary to meet the exigencies of war.”8 It also authorized law to be made in shadows, or, at least, under the dim offce lights of civil servants. During the Second World War, the executive orders pertaining to Japanese Canadians enacted by cabinet under the WMA would not be subject to parliamentary debate or scrutiny, and there would be very little media commentary outside of the reporting done within the Japanese Canadian community. Judicial decisions emerging out of the First World War placed the constitutionality of the WMA beyond doubt. During that confict, judges had stressed unfettered executive discretion and near complete judicial deference to executive decision-making in matters of state security.9 Chief Justice Fitzpatrick explained “that parliament intended ... to clothe the executive with the widest powers in time of danger ... the language of [of the Act] contains unlimited powers.” “Our legislators,” the Chief Justice concluded, “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.”10 In 1923, the Judicial Committee of the Privy Council (JCPC) similarly authorized the Act as the valid exercise of federal emergency powers affording the

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executive “considerable freedom” to determine the nature and duration of measures to deal with that emergency.11 “In the event of war,” Lord Haldane noted, “the national life may require for its preservation the employment of very exceptional means ... in which the interests of individuals may have to be subordinated to that of the community.”12 It was a theme government lawmakers, lawyers, and judges frequently invoked in justifying the racist harms imposed on Japanese Canadians during and after the Second World War. In early 1941, many months before Canada had declared war on Japan, the federal government’s “Committee on Orientals in British Columbia” ordered the RCMP to establish a registration system for Japanese Canadians with accompanying identifcation cards. In December 1941, as Canada entered the Pacifc theatre of war, registration became mandatory for all members of “the Japanese race,” with fnes and imprisonment for failing to comply.13 Subsequent orders imposed curfews and seized and impounded boats, radios, and cars.14 On 4 March 1942, citing the necessity of “the security and defence of Canada,” Order 1665 established the British Columbia Security Commission (BCSC) “to plan, supervise and direct” the uprooting of Japanese Canadians from a vast “protected area” encompassing 160 kilometres from the coast into the interior.15 Between March and October 1942, RCMP offcers arrived on the doorsteps of Japanese Canadian families, supervising their uprooting to Vancouver’s Hastings Park. Upon arrival, men and women were separated (the latter forced to sleep in the converted animal stables of the Pacifc National Exhibition) while they waited for trains to take them to internment camps in the provincial interior, incarceration work camps, or dilapidated housing, often converted animal barns, on farms in Alberta and Manitoba. In the process, federal offcials cleared Japanese Canadians from Vancouver’s Powell Street neighbourhood, destroying a large and thriving community of homes and businesses, schools and sports leagues. The mass uprooting of Japanese Canadians created the immediate problem of what to do with the possessions and empty properties Japanese Canadians had been forced to leave behind. Order 1665 provided that all property owned by Japanese Canadians within the protected area would vest in a Custodian, the Secretary of State. Suspicious of government intentions, Japanese Canadians demanded greater legal protection for their homes and belongings.16 Offcials amended Order 1665 to make more explicit the promise to protect and return the property seized. Starting in 1943, and over the ensuing decade, offcials broke that promise and

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More than 100 federal employees oversaw the uprooting, dispossession, and exile of Japanese Canadians living within 100 miles of the coast, and the post-war exile of many; in this photo of a government offce, clerks fle records of the 8,000 Japanese Canadians detained at Hastings Park, Vancouver, in 1942. Leonard Frank, Alex Eastwood collection, Nikkei National Museum, 1994.69.3.37

sold every home they had taken, along with tens of thousands of personal possessions.17 By forcing the sale of their homes, the government rendered Japanese Canadians placeless; the government then sought to solve this problem of their own creation through exile and forced dispersal.18 In 1945, offcials toured internment sites pressuring Canadians of Japanese descent, most of them either born in Canada or naturalized British subjects of Canada, to sign forms indicating a “desire to relinquish

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my British nationality” in order to “effect my repatriation to Japan.”19 Deprived of their homes and property and given no assurance that they might ever return to live in their former communities, send their children to school, resume their previous occupations, or continue their businesses, many thousands opted to accept Canada’s offer of exile. Others had no legal say at all: wives and children under sixteen had to follow the decisions of their husbands and fathers. Thus began the exile of thousands of Canadians on racial grounds. The orders authorizing the uprooting, internment, dispossession, and exile of Japanese Canadians represented only a fraction of the executive orders enacted under the WMA during the war. Cabinet issued sweeping executive orders and defence regulations authorizing the government to intern Canadians, censor speech, declare groups illegal, and arrest and detain individuals without charge or trial.20 By the end of the war, the government had interned, in addition to Japanese Canadians, more than two thousand individuals, fned thousands of others, banned hundreds of newspapers and periodicals, and seized thousands of pamphlets.21 Outlawing virtually all forms of antiwar dissent, the Defence of Canada Regulations enabled the secretary of state to censor publications that “would or might be prejudicial to the safety of the State or the effcient prosecution of the war,” and authorized the minister of justice to order the detention of any person to prevent him or her “from acting in any manner prejudicial to the public safety or the safety of the State.” Following a similar model enacted in the United Kingdom, most forms of detention could not be appealed to the courts, but only to an advisory committee appointed by the minister.22 Other regulations prohibited statements or documents deemed prejudicial to the war effort, and declared a number of organizations illegal, including the Communist Party of Canada and the Jehovah’s Witnesses because members of both had questioned Canada’s participation in the war. The regulations presumed, “in the absence of proof to the contrary,” that an individual was a member of an illegal organization if he or she attended meetings, spoke publicly, or distributed literature for a group the government deemed illegal. Canada’s wartime constitution, as detainees and other persecuted individuals and groups would discover, offered little to protect their civil liberties. The First World War jurisprudence had already established the most pronounced feature of the wartime constitution: judicial deference to executive decisions in the name of national security. In the early days of the Second World War, the Exchequer Court of Canada stressed the

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need to factor in security concerns when interpreting wartime legislation. “When you come to interpret [a] ... war measure,” the Court held: the objects of the same must be held strictly in mind, and such measure must be given a construction which will best secure the end their authors had in mind. One must consider not only the wording of the war measure but also their purposes, the motives which led to their enactment, and the conditions prevailing at the time. In time of war particularly the substance of things must prevail over form, and usually all technicalities must be swept aside.23

Canadian courts interpreting the Defence of Canada Regulations overlooked more than technicalities. In R v Stewart, the Ontario Court of Appeal dispensed entirely with the common law requirement of mens rea. “[I]t is not a defence,” the Court held, “to say that what was done was done in ignorance or without intending any harm.”24 In securing conviction, the Court wrote, the Crown did not have to “show intention or a guilty mind on the part of the accused.”25 In a case rejecting an application of habeas corpus to the Defence of Canada Regulations, the Ontario Supreme Court revived the dictum that “[w]ar could not be carried on according to the principles of Magna Carta.”26 Several courts stressed explicitly that crisis demanded the sacrifce of individual liberties. For the Quebec Superior Court, war required “the rationing of liberty.”27 Justice Ellis noted that “most, if not all, laws are a restraint, and a necessary restraint, on personal conduct and liberty. War increases that restraint.”28 But restraint, other judges stressed, did not mean that rights and liberties had disappeared. “Freedom of speech is not abolished among us,” the Ontario Court of Appeal wrote, “and is restrained only in so far as is deemed necessary for the good in the emergency of war.”29 “Even though, for the moment, we are governed by Order in Council,” the Ontario Supreme Court noted, “the spirit [of the law] remains unchanged.”30 The Ontario Supreme Court explained that limiting rights ultimately protected them. “Opposing ... the objects of the enemy,” the Court stated, ultimately ensured preservation of “the freedom and liberties of the citizens of the Dominion.”31 In general, the deference to the executive embedded in the judicial conception of the wartime constitution did not draw the concern of the Canadian legal profession or the attention of legal scholars. One eccentric exception was the relentless criticism of Canadian wartime bureaucracy offered by Robert Michael Willes Chitty, who railed against “the nefarious workings of ... tyranny under which government, law, and justice

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masquerade in this era of bureaucracy run riot.”32 Chitty blamed lawyers for their complacency in allowing the administrative state – “with these octopus arms of bureaucracy” – to interfere in the everyday affairs of Canadians.33 He cajoled lawyers to reclaim their historic role as “the guardians of liberty under the rule of law” and “the chosen champions of civil rights.”34 But Chitty had in mind the business interests of his clients, not civil liberties abuses generally. In his many wartime columns criticizing government power, Chitty never once mentioned the government’s treatment of Japanese Canadians.35 By 1943, a vast range of war measures had been implemented. Anticipating possible constitutional challenges, the federal government now sought to put its best case forward with a reference case to the Supreme Court of Canada. Aiming to discourage challenges of more controversial war measures in the lower courts, the government requested the Court’s opinion on the constitutional validity of a set of wartime regulations regarding the manufacture, distribution, and use of chemicals. The “methods of control” under review, the government noted, were “identical to those adopted in other felds in connection with the conduct of the war.”36 The Chemicals Reference would determine the legality of Canada’s wartime administrative state, including, from the government’s point of view, the repressive measures taken against Japanese Canadians. The government strategy worked. In his judgment, Chief Justice Duff noted in passing that the “duty of the Governor in Council is to safeguard the supreme interests of the state.”37 In concurring overlapping judgments, the Court advised that the chemical regulations were fully constitutional since precedent had already placed the constitutional validity of the WMA beyond doubt. Accordingly, any executive orders falling within the WMA’s capacious terms “may have the effect of an Act of Parliament.”38 This conception of the wartime constitution, and the use of executive powers within it, would resurface when Japanese Canadians attempted to challenge the legality of their dispossession and exile. the law “of the japanese race” Today, most observers acknowledge the racism of the laws directed against Japanese Canadians in the 1940s. The 1988 federal apology and redress settlement, as well as decades of community activism, scholarship, and literature, have established their internment, dispossession, and exile as archetypes of Canadian wrongs, alongside Residential Schools and the taxation and exclusion of Chinese immigrants. In

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retrospect, we can see the ways in which the racism embedded in state colonialism helped fuel notions of white supremacy that triumphed over human rights during the internment era.39 Nonetheless, the foundational racism of the uprooting, internment, dispossession, and exile of Japanese Canadians should not obscure the contested and troubled choices that government actors made as they inscribed race in law as the most important category in Canada’s treatment of Japanese Canadians. Of course, doing so was not a new legal development. The racism and white supremacy inherent in legislating by race had defned relations with Indigenous peoples for many decades, and explicit legislated discrimination against Asian Canadians had long been a staple of lawmaking in British Columbia. Yet legislating by race during the Second World War led some to express discomfort about their roles in crafting and administering regulations that, to quote one offcial, “ape the Nuremberg laws.”40 Despite such misgivings, Canada’s internment of Japanese Canadians explicitly employed race as its dominant category of organization and focus. The choice to govern Japanese Canadians based on race contrasts starkly with the laws applied to “enemy aliens” of European origin. On 7 December 1941, Order 9591, issued on the same day as Canada’s declaration of war on Japan, amended the Defence of Canada Regulations to widen the information collected by local authorities on “all persons”: (a) born in territories which were under the sovereignty or control of the German Reich on September 3, 1939, or (b) born in territories which were under the sovereignty or control of Italy on June 10, 1940, or (c) of the Japanese race other than citizens of the United States of America who are not British subjects.41 “Of the Japanese race” is conspicuous within this defnition of suspect populations. Canadian lawmakers never contemplated the legalized repression of every person of the “German race” or the “Italian race.” Instead, for whites, birth origins and citizenship delimited the application of the law. Canada deemed Europeans as threats if they had been born in places subject to enemy control and had not yet become naturalized British subjects (a questionable assumption in its own right), or if they had demonstrated active support for fascism or enemy powers. By contrast, “Japanese” was treated as a heritable identity, inherently threatening, and inescapable.

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Recognizing that matters of race could be complicated, the order specifed that “‘person of the Japanese race’ shall include a person not wholly of the Japanese race if his father or mother is of the Japanese race.” This defnition spirals backwards in time; if the race of fathers and mothers is defned by their parentage, then being “of the Japanese race” extends across generations as a permanent inheritance and marker. Alongside the blatancy of this racism, however, cabinet appeared to recognize at this early stage that Japanese Canadians should not be defned by race alone. As with people born in Italy or Germany, Japanese were required to report to local authorities only if they were neither citizens of the United States nor British subjects of Canada (i.e., they were not born in Canada or had not been naturalized). In practice, all Japanese Canadian adults had already been forced to register with the RCMP. Nonetheless, the amendments to the Defence of Canada Regulations, passed moments before the declaration of war on Japan, seemed to suggest that Canada might conceive of citizenship as conferring signifcant legal protections to Japanese Canadians. It was not to be. The subsequent decisions of cabinet to privilege race over citizenship in relation to Japanese Canadians followed decades of precedent. Since 1895, British Columbia’s legislature had explicitly disqualifed Japanese Canadians from voting, and by the 1940s hundreds of discriminatory laws had accumulated, compromising the citizenship of British Columbians on the basis of race.42 As they sought jobs or housing, reported to work or school, read newspapers, and moved through their communities, Japanese Canadians felt the burden of a society structured by assertions of racial hierarchy. Provincial law banned them from holding public offce, serving on juries, voting at public school meetings, taking provincial or municipal employment, labouring on a range of specifc industrial and infrastructural projects, operating certain machinery, holding liquor licences, or pursuing careers in law, pharmacy, or policing.43 It was impossible to escape the legal disabilities and affronts to human dignity imposed by British Columbia’s racist legal regime. While courts disallowed British Columbia’s repeated efforts to impose racist immigration laws as an ultra vires invasion of federal jurisdiction, the federal government imposed policies with similar ends, accommodating racist rioting in Vancouver in 1907 by strictly limiting further immigration from Japan.44 The federal government also extended racial disenfranchisement to federal elections by restricting eligibility to vote to provincial voter lists. When Tomekichi Homma challenged his provincial disenfranchisement, the JCPC upheld British Columbia’s racist

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voting law, reasoning that the prohibition on voting had nothing to do with federal jurisdiction over naturalization since “[a] child of Japanese parentage born in Vancouver City ... would be equally excluded from the possession of the franchise.”45 Racism, the Privy Council implied, was a perfectly valid constitutional aim of provincial law. Delegates from British Columbia’s Japanese Canadian community travelled to Ottawa in 1936 to entreat parliamentarians to retract the racist limits placed on their full political participation, to no avail. For Japanese Canadians, decades of building community in Canada could not overcome the twisted logic of white supremacy and its judicial sanction.46 Despite the legacy of racism, the federal cabinet might still have chosen a less discriminatory path during the Second World War. The law by which the federal government destroyed the Japanese Canadian presence in the fshing industry offers some sense of the alternatives. In December 1941, as one of Canada’s frst acts in the Pacifc War, the Canadian government seized and impounded Japanese Canadian– owned fshing vessels. On 13 January 1942, Order 288 authorized a special committee to sell the seized fshing vessels, a decision that had devastating consequences in its own right and set a precedent for the future government sale of all Japanese Canadian–owned property. The forced sale of fshing vessels left lingering scars and destroyed an iconic way of communal life. Order 288 was wrong, yet it contemplated Japanese Canadians not as a “race” but rather as a group sharing a national origin. Motivated by a report of the Ministry of Fisheries “that the defence and security of Canada has made necessary the immobilization of fshing vessels owned by people of Japanese origin,” the order nonetheless asserted that “the owners of these vessels ... are Canadian citizens whose productive power, by virtue of this ownership, contributed signifcantly to the fshing industry.” Here were people named in law as citizens, a status that demanded consideration. Order 288 promised “due regard for the equity of the Japanese Canadian owners.”47 Citizenship, ownership, and the principles of natural justice appeared to matter to cabinet, at least initially. The recognition of Japanese Canadian owners as citizens and contributors to Canadian industry in the preamble of Order 288 had consequences for the terms that followed. The order authorized a special committee of three, including one Japanese Canadian, Kishizo Kimura, to “make such arrangements as will make it possible for the present owners ... to freely negotiate for charters, leases, or sales” of their vessels.48 The committee was not created to force sales without the consent of owners (which would

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later become the standard operating procedure of the dispossession), but rather to arrange the use of vessels with the consent of owners. The point is not to exonerate Order 288 or its authors. It caused lasting harm and set a dangerous precedent. Starting in May 1942, the committee ignored its terms of reference and forced the sale of vessels without the consent of owners, an action that federal offcials later acknowledged was illegal.49 Nonetheless, Order 288 initially suggested that citizenship had a role to play, albeit in an already racialized context. That the “politics of racism,” to use Sunahara’s important phrase, ultimately foreclosed this path should not obscure its initial prospects.50 The tragedy of Canada’s domestic wartime policy was, in part, that the government failed to undertake a more limited action in relation to those Japanese Canadians with respect to which it had specifc (even if still spurious) security concerns, as was the case with German and Italian Canadians. Instead, offcials chose to reassert the monolithic primacy of race. As we shall see, what a racist politics made possible, the judges of the wartime constitution would make legal. Cabinet issued the defnitive order enshrining race as the organizing category of Japanese Canadian internment in March 1942. During the two preceding months, lobbying by British Columbia politicians and fearmongering by local offcials made a limited internment politically untenable in the eyes of federal offcials.51 All of the nearly 22,000 Japanese Canadians living within 160 kilometres of the coast would be forced out of their homes.52 Order-in-Council 1665 empowered the British Columbia Security Commission to direct the mass displacement of “all persons of the Japanese race.”53 In the months that followed, Canada began a seven-year mass internment of people on racial grounds, three-quarters of them born or naturalized Canadians. Even in the midst of a racialized internment, at least some offcials continued to see Japanese Canadians as British subjects entitled to certain rights. Indeed, John Erskine Read, the author of the frst draft of Order 1665 and legal adviser for the Department of External Affairs, was appalled by a subsequent revision to the law, which included a clause vesting the property of Japanese Canadians in the complete “control and management” of the Custodian of Enemy Property.54 Read, who had authored the prior order governing the sale of fshing vessels, saw the vesting in Order 1665 as a fagrant violation of citizenship. In a memo to his supervisor Norman Robertson, Under Secretary of State, External Affairs, Read excoriated the version that ultimately became law for “abandoning completely” the principle of “fairness.”55 Emphasizing that Japanese Canadians were

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British subjects, Read saw Order 1665 as a betrayal of the common law of natural justice. “It strips [Japanese Canadians] of every cent they may have in their pockets or in the banks,” Read wrote, “it takes the clothes off their backs and removes the tools of their trade: fountain pens from their pockets, books from their libraries; and hands them all over to the tender mercies of the Custodian.”56 Read had drafted the orders authorizing the uprooting, which he justifed as necessities of war, but the confscation of property, he argued, had “nothing whatever to do with security.”57 His objections refected his view of Japanese Canadians and their rights. He could not countenance a law that made “no attempt to set up machinery that would enable the property of these British subjects to be sold so as to preserve and protect their interests.”58 For Read, “Japanese Canadians” remained British subjects who retained rights in property that required protection in law. Read’s arguments failed: British subjects or not, all “persons of the Japanese race” would be dispossessed under Order 1665. This failure to protect Japanese Canadians’ property was a pivotal moment in the unfolding of the internment. With rare exceptions, all property the government seized was sold without consent. Homes, farms, businesses, personal belongings – everything was gone in a few short years, despite the owners’ protests. As the end of the war came clearly into view in 1945, and the United States prepared to end its incarceration of people of Japanese descent, offcials in Canada invoked the forced sale of property to explain another draconian measure: the continuation of internment into the post-war period. Rationalization for peacetime internment emerged in discussions among bureaucrats. Looking to the United States, Robert Gordon Robertson, a future Clerk of the Privy Council, then a young staffer in External Affairs, imagined that Canada, like its neighbour, might initiate a process to allow “Japanese [Canadians] to return to the Coast as soon as possible after examination and vetting.” Those who “passed’’ assessments of their loyalty might soon, Robertson suggested, “return to their homes” in British Columbia.59 Arthur MacNamara, the deputy minister of labour, charged with overseeing internment, dismissed this idea as “impracticable”: “I do not believe,” he wrote, “the situation in the United States is a parallel one. In the frst place the property of Japanese on the United States west coast was not sold except with the consent of the owner.”60 The dispossession in Canada was so complete that offcials could not imagine where Japanese Canadians would go if set free.61 They had no homes to which to return. Prime Minister Mackenzie King shared this concern. Endorsing MacNamara’s position as “timely,” King instructed

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that the proposal to extend the internment to the post-war be “followed up as suggested.”62 Word from on high apparently ended further discussion; internment policy now proceeded on the basis of a post-war solution that included an enduring ban on any return to the Pacifc Coast. Japanese Canadians were not permitted full freedom of movement within Canada until April 1949, at which point the Second World War had been over for nearly four years. As the internment lingered on, offcials grappled with what they termed the “Japanese problem,” namely what the fnal disposition of the population would be. Clearly, internment could not continue forever. Yet Japanese Canadians could not return to their former homes. One facet of the “solution” was forced dispersal of the population across Canada. The other was the mass exile of Japanese Canadians to Japan.63 Exile, like the policies that preceded it, raised questions of defnition and scope: who, precisely, would be expelled? In the spring of 1944, as plans for the exile commenced in earnest, leading offcials from the Ministries of Justice, Labour, and External Affairs and the Offce of the Secretary of State all agreed that a “substantial reduction” of the Japanese Canadian population was desirable.64 However, with much of the population already forcibly relocated east, offcials could not contemplate the forced expulsion of all “persons of the Japanese race.” Instead, they confronted the problem of how to draw invidious divisions among thousands of people and devise categories by which to implement unreasonable aims. As Gordon Robertson candidly acknowledged in his memoirs, civil servants remained attuned to the prejudices of the broader public and, more importantly, the government.65 Accordingly, offcials like Hugh Keenleyside, who had previously advised that Canada’s treatment of Japanese Canadians had been unnecessary and unjust, were removed from infuence (in Keenleyside’s case by appointing him Ambassador to Mexico), while offcials who supported discriminatory policies found themselves promoted.66 One policy option was to exile Japanese Canadians deemed to be disloyal. But loyalty was a deceptively diffcult category to apply. Deputy minister of labour Arthur MacNamara worried that Japanese Canadians would falsely declare loyalty to Canada for economic reasons.67 Norman Robertson, deputy minister of external affairs, agreed that declarations were futile and suggested that Japanese Canadians be judged by their deeds: those whose actions demonstrated disloyalty to Canada should be exiled. However, despite substantial provocation, very few Japanese Canadians had acted in ways that could be construed as disloyal, so even Robertson conceded that this standard, if faithfully applied, could not

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achieve the aim of mass expulsion.68 In the Department of Labour, A.H. Brown thought that citizenship could serve as a barometer of loyalty: for all those who retained Japanese nationality, “it must be assumed that his loyalties and interest are with Japan.”69 By contrast, Ephraim Coleman, Under Secretary of State, believed that “many Canadian-born Japanese were more undesirable than ... Japanese Nationals.”70 In short, offcials could come to no workable consensus. By October, Gordon Robertson, who was increasingly responsible for drafting the policy, opposed a formal concept of loyalty as a basis for exile, preferring instead a fexible inquiry into the “closeness of association with Canada, sympathy for Canada and assimilation in matters of conduct.”71 Given such disagreements, offcials ultimately settled on another approach entirely: encouraging Japanese Canadians to “volunteer” for exile to Japan. Here, again, was another triumph in racist categorization. The government would not attempt to make distinctions among Japanese Canadians; instead, all Japanese Canadians could be pressured to accept exile. In the spring of 1944, Norman Robertson recommended that the government establish an “assisted emigration” program “as soon and as extensively as possible – assisting all persons of Japanese race to leave Canada who wished to do so.”72 In the fall of 1944, Gordon Robertson reiterated this preference, suggesting a policy whereby “Japanese persons could be encouraged to give voluntary indication of a desire to go to Japan after the war.” He envisioned “generous” incentives (comprised largely of permitting “voluntary” exiles to access their own property and the proceeds of the sales thereof, a freedom denied to other internees) that might achieve this end.73 In early 1945, offcials moved to implement this approach. Those in charge of “Japanese placement” toured internment camps in March, presenting two options: Japanese Canadians could relocate immediately to uncertain fates and future discrimination in eastern Canada, or they could remain where they were, having signed “applications” for future exile to Japan. Despite the obvious duress of the situation, offcials sought to maintain the pretence of free choice. After meeting internees, the lead placement offcer, Tom Pickersgill, summarized, “I emphasized that the signing of these applications was strictly voluntary. No pressure whatsoever was being exerted.”74 Many Japanese Canadians were given assurances that they could later revoke their signatures.75 That said, the government was executing the initiative to achieve one result: maximum “applications” for exile. Internees were given a dismal portrait of the alternative. As Pickersgill explained, “Those ... who do not sign know the facts and the

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diffculties ahead.” Among these diffculties, he emphasized that racism in eastern Canada was “fairly universal” and would “undoubtedly” make employment there “more diffcult.”76 After visiting internment sites to inform Japanese Canadians about their options, Pickersgill was cautiously optimistic that the he had accomplished his objective: “While I am still reserving judgement,” he wrote to MacNamara, “the impressions given to me during this trip, suggest that there will be a substantial percentage of the Japanese ... signing the applications.”77 From the government’s perspective, it was a job well done. When RCMP offcers followed in April circulating the applications for exile, a majority of Japanese Canadians signed. At Lemon Creek, where close to 2,000 Japanese Canadians endured harsh winters in a remote feld, 87 per cent “volunteered” for exile. So too did 95 per cent of the men forced to labour on the Yellowhead–Blue River Highway between British Columbia and Alberta. In total, 70 per cent of Japanese Canadians still interned in British Columbia signed the forms (or had forms signed on their behalf in the case of wives and children). Almost half of the pre-war coastal population of Japanese Canadians, 10,347 people, were slated for “voluntary” exile.78 Perhaps for appearances’ sake, the government still proceeded to enact Order 7357 in December 1945 authorizing a commission to investigate the “activities” and “loyalty” of all Japanese Canadians (including British subjects) as well as “the extent of [their] co-operation with the Government.”79 No such commission was ever formed. The government’s energies were consumed throughout 1946 in carrying out the exile of the “voluntary” signatories. The exiling of families began in the spring of 1946. “As dusk began to set along the waterfront on 31 May 1946, former U.S. troopship SS Marine Angel slipped its mooring from Pier A and started on a long trip to Japan,” reported the New Canadian, a Japanese Canadian community newspaper. At 10:00 p.m., the “ship slowly made its way through the calm waters of Burrard Inlet. The city was bright with neon lights refected in the waters of the inlet. They seemed to bid us farewell,” a passenger wrote.80 As Vancouver’s lights, and then those of the Lions Gate Bridge, dimmed and fnally disappeared into an ocean of darkness, hundreds of Canadians faced an uncertain future. Some, certainly, would have been relieved to leave Canada and its deprivations behind, but all would have worried about what lay ahead. The Marine Angel’s path across the Pacifc would be followed by other ships carrying thousands more exiled people and families, until the last ship, carrying some 400 Japanese Canadians, left British Columbia on 24 December

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1946.81 In all, Canada would exile 3,964 men, women, and children before the expulsions were halted. One of those ships carried the Tonomura family – Moichiro, Tsuma, George, Betty, Jean, and John – into exile. They were all aboard because policymakers, whatever their misgivings and internal debates, had crafted a legal regime that determined whether they belonged in Canada on the basis of their race. That regime began with their registration and uprooting, then their incarceration, internment, and dispossession, and culminated in their exile. That such a system could do so much harm resulted also from the failure of courts to see people like the Tonomuras in any terms but racial ones. challenging constitutional wrongs Japanese Canadians had long resisted the racist laws that confronted them in Canada. In 1897, identifying himself as a “loyal citizen of Canada,” K.T. Takahashi wrote a pamphlet demanding equal treatment. “I ... declare most emphatically,” he wrote, “that we are lawfully and legally the citizens of Canada, and that we shall consider any law which may be passed to vitiate this our sacred status, as both unjust, tyrannical and unconstitutional.”82 Early in the twentieth century, Tomekichi Homma, with the support and coordination of the growing community of naturalized Canadians of Japanese origin, launched his ultimately unsuccessful constitutional challenge to British Columbia’s discriminatory election laws.83 In the decades that followed, Japanese Canadians initiated campaigns in and out of court challenging racism. Japanese Canadians who had served with the Canadian military in the First World War pressed for citizenship rights,84 and in the early 1930s, Munetaka Samejima successfully fought his threatened deportation to the Supreme Court of Canada, exposing the racist undercurrents of Canadian deportation law.85 It was this tradition of resistance that Thomas Shoyama, editor of the New Canadian, had in mind when he reminded his Japanese Canadian readers during the Second World War of the community’s “long and continuous struggle ... for our rights as Canadian citizens.”86 The wartime dispossession of Japanese Canadians would generate the same resistance. After the government issued Order 469 in January 1943 authorizing the sale of all property of Japanese Canadians held by the Custodian, leaders in the Japanese Canadian community demanded clarifcation and assurance from the federal government that their property would be protected as promised. When it became clear that the government

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intended to sell all of it without consent, Dr Kozo Shimotakahara, from his internment camp, formed the Amalgamated Property Owners’ Association (APOA) to collect whatever little monies interned and dispossessed families could spare in order to hire lawyers to challenge the government’s seizure and sale of their property.87 By the end of May 1943, the APOA had retained the Vancouver law frm of Thomas Grantham Norris and J. Arthur MacLennan to press their claim.88 The case against the government’s dispossession of property posed a number of substantive and procedural diffculties. The ancient shield of Crown immunity within the common law stipulated that the Crown could not be sued without its consent.89 Likewise, the Trading with the Enemy Regulations provided that the Custodian could not be sued without his consent. Finally, as the APOA’s lawyer, Art MacLennan, pointed out, a reference case concerning the constitutionality of the orders of dispossession and sale would require the cooperation of either the provincial or federal government.90 The frst of these procedural hurdles was cleared when the government granted the APOA permission to sue the Crown. Thus, on 1 June 1943, MacLennan fled a Petition of Right in the Exchequer Court of Canada seeking an injunction against property sales and challenging the constitutionality of orders that “[cast] aside the rights of a citizen under conditions not related to the effcient prosecution of the war.”91 To fully challenge the orders of dispossession and forced sale, the APOA put forward four litigants: Eikichi Nakashima, a naturalized British subject; Tadao Wakabayashi, a British subject by Canadian birth; and Jitaro and Takejiro Tanaka, Japanese nationals resident in Canada.92 Their selection refected a deliberate attempt to place the matter of citizenship directly before the court. All had homes and possessions that had been seized and were being held by the Custodian. Disputing the authority of the Custodian to “sell, liquidate or otherwise dispose of the said property against the wishes and desires of the [original owners],” the petition asserted that the Custodian had acquired the property of Japanese Canadians under the terms of a trust to hold, protect, and return the property.93 In the alternative, the petition alleged that the orders of dispossession and sale, individually or collectively, fell beyond the powers allocated by the WMA and were therefore unconstitutional. The petition sought a declaration of constitutional invalidity, a declaration that the Custodian was a trustee of the dispossessed Japanese Canadian property owners, and an injunction restraining the sale of their property.94 As the Custodian sold seized properties, Japanese Canadians continued to wait for the case to be heard. When a hearing was fnally scheduled in

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Ottawa at the end of May 1944, MacLennan explained to his clients that the delay “had been caused by the pressure of duties of Department of Justice offcials entrusted with the handling of the case.”95 Indeed, the case had attracted the attention of the highest offcials in the Department of Justice. Defending the government’s measures would be Frederick Percy Varcoe, the deputy minister of justice, along with David W. Mundell, a leading government constitutional lawyer. Varcoe was well acquainted with the orders at issue, as the Department of Justice had overseen their drafting. Varcoe was also familiar with the judge hearing the case; as deputy minister, he had been responsible for the mechanics of Justice Joseph Thorarinn Thorson’s recent appointment. Justice Thorson had been Dean of the Manitoba Law School before entering public life as a Liberal member of Parliament. In 1941, Mackenzie King had appointed Thorson minister of national war service, and in the fall of 1942, a cabinet colleague, Louis St Laurent, recommended that Thorson be appointed president of the Exchequer Court of Canada.96 Varcoe’s frst argument before Justice Thorson proposed to end the case before it began, claiming that “this is not a proper action against His Majesty because the Custodian is not His Majesty or the servant or agent of His Majesty.”97 In the alternative, Varcoe argued that the orders of dispossession and forced sale created no trust. As to the constitutional validity of the orders, Varcoe drew upon the deference to executive authority inherent in the wartime constitution exemplifed in the Supreme Court’s 1943 judgment in the Chemicals Reference to stress that the question was beyond judicial competence to review. Varcoe relied on Chief Justice Duff’s comments in the case emphasizing the “plenary discretion” afforded by the WMA and doubting “that it is competent to any court to canvass the considerations which have, or may have, led [the Governor General in Council] to deem such Regulations necessary or advisable for the transcendent objects set forth.” “The authority and duty of passing on that question,” Chief Justice Duff had stated, “are committed to those who are responsible for the security of the country – the Executive Government itself.”98 Varcoe would surely have suspected such an argument to fnd favour with Thorson, who had been a wartime cabinet minister in that executive only two years previously. In response, MacLennan, on behalf of his Japanese Canadian clients, challenged Varcoe’s interpretation of unlimited executive power under the wartime constitution. He argued that since “the liquidation of the properties has no conceivable relationship to the prosecution of the war,” any order authorizing the sale of the property of Japanese Canadians

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must be ultra vires since the WMA could only confer powers arising as a result of the emergency of war.99 Without saying so explicitly, MacLennan impressed upon Justice Thorson the continuing constraints of the rule of law in wartime. Even emergency legislation, MacLennan argued, could only lawfully empower state action in accordance with the purpose and conditions for which that legislation had been enacted. MacLennan pointed out that a careful reading of the Chemicals Reference reinforced the availability of judicial review even in times of war, drawing attention to Chief Justice Duff’s concession that in some cases “the plain terms of the order in council itself” may indicate that the order was not deemed “necessary or advisable by reason of the existence of war.”100 MacLennan also found support in a 1920 Supreme Court decision in which a majority struck down a federal order made during the First World War setting the price of newsprint as bearing insuffcient connection “to the perils actual or possible of real or apprehended war ... or ... to the prosecution of the war or the objects of it.”101 MacLennan argued that the sale of property “does not add one iota to the object of winning the war or the security of Canada” and was therefore similarly unconstitutional.102 In the alternative, if the power of sale was constitutionally valid, MacLennan argued, such sales could only be legal if they complied with the terms of the legal trust forged by the orders themselves to protect the property and interests of Japanese Canadians. Three years passed with no decision in Nakashima from Justice Thorson. During that time, the government completed the bulk of its sales (excluding the properties at issue in the Nakashima case), the Second World War ended, and the government began to exile Japanese Canadians to Japan. “Inquiries in Ottawa as to why the decision has not been handed down,” the New Canadian reported, “draw a blank.”103 In the House of Commons, Angus MacInnis, the CCF member of Parliament for Vancouver East, asked the Liberal justice minister to explain how a decision could take three years to complete. “I regret that condition of affairs,” the minister admitted, offering only that “[s]ome judges were slower than others ... and perhaps some took more pains than others.”104 Justice Thorson fnally released his decision on 28 August 1947 – a short twenty-one paragraphs that had taken him three years and three months to write and release. Nakashima, Wakabayashi, and the Tanaka brothers had lost. Justice Thorson began his reasons by noting that the different citizenship status of the litigants was immaterial: “the answer in any one case will be equally applicable in the others.”105 It was race, after all, that tied the litigants together as one in the eyes of the law. Turning to the issue

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of whether the legal claim had been properly initiated, he noted that the proceedings assumed that the Custodian held the property “as the servant of the Crown.”106 That, Thorson held, was a fatal error. Emphasizing the Custodian’s wide discretion in dealing with property and its independence from government, he held that the Custodian could be characterized neither as the Crown nor as its servant.107 The plaintiffs should have sued the Custodian directly and not the Crown via a petition of right, he concluded. Despite declaring that “this ends the matter,” Justice Thorson noted in obiter that all the necessary conditions of the WMA had been satisfed by the orders at issue. “It is, therefore,” he held, “not open to the Court to question the validity of the Order in Council empowering the Custodian to sell the properties vested in him.”108 “The Court has no right,” he continued, “to substitute its opinion of what is necessary or advisable for that of the Governor in Council or to question the validity of an order so made.”109 “The Custodian has,” Thorson concluded, “the lawful right to liquidate, sell, or otherwise dispose of the property vested in him.”110 As to the question of whether the Custodian was a trustee, he declared that since the Custodian was not a servant of the Crown the question need not be answered. Dismissing the case, he ordered Nakashima, Wakabayashi, and Tanaka to pay the government’s legal costs. Justice Thorson’s handling of the case and his reasoning raise a number of concerns. First, even under the looser approach to the separation of powers of the period, Thorson should have recused himself, given his membership in the cabinet that had produced several of the executive orders under review and the available alternative of having the other Justice of the Exchequer Court hear the case. The common law was clear that “no person shall act as a Judge in any case ... in which he has, or may reasonably appear to have, any interest or bias ... . This great principle of our law applies to all cases without exception in which a person is called upon to act judicially.”111 Second, the delay in releasing the decision, especially given the stakes for the vulnerable litigants, was particularly callous and unjust. At the very least, Thorson should have agreed with the request to issue an injunction preventing sales until the legality of the Custodian’s actions could be determined. Third, Thorson was wrong to uncritically accept the government’s distinction between the Custodian and the Crown for the purposes of the proceedings. Given the petition of right’s origins in equity, it was open to Thorson to ground jurisdiction on the fact that his court provided the only avenue for the petitioners to question the Custodian’s authority to dispose of the seized property. Justice Thorson was also too quick to dismiss MacLennan’s constitutional argument.

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Cabinet may have preferred the forced sale of Japanese Canadian–owned property and the permanent exclusion of Japanese Canadians from British Columbia as policy matters, but the WMA only authorized orders justifed as advancing the security, defence, peace, order, and welfare of Canada. And even if the orders were valid, Thorson should have taken seriously the provisions of the orders themselves that promised to protect the property the Custodian had seized. In the United States Supreme Court, Justice Murphy’s famous dissent in Korematsu noted that the internment of Japanese Americans on racial grounds “goes over ‘the very brink of constitutional power’ and falls squarely into the ugly abyss of racism.”112 Justice Thorson did nothing to avoid that abyss in Canada. “Parliament,” Thorson noted, “has left the decision as to the necessity or advisability of ... an order for the security, defence, peace, order and welfare of Canada, not to the Court, but to the Governor in Council.” Such decisions could not be second-guessed by judges, he held, a matter “conclusively settled” by the JCPC’s decision upholding the constitutionality of the exile of Japanese Canadians that had been decided in the interim. The exile case had begun in the attempt by thousands of prospective Japanese Canadian exiles to rescind their requests and remain in Canada after the war had ended. The Government of Canada was determined to press ahead with its desired policy objective: the removal of as many Japanese Canadians from Canada as possible. Given the coercion and duress that led to the signing of exile requests, the preamble to Order 7355 disingenuously noted that “during the course of the war with Japan certain Japanese nationals manifested their sympathy with or support of Japan by making requests for repatriation to Japan.”113 The order devised categories of Canadians, each to be treated differently according to whether individuals were born in Canada, naturalized in Canada, or simply resident in Canada. Japanese nationals would be exiled regardless of their wishes; naturalized British subjects of Canada could remain in Canada if they had revoked their exile request prior to Japan’s offcial surrender on 2 September 1945; those born in Canada could rescind their exile at any point before receiving their offcial exile orders; and wives and children under sixteen would be exiled regardless of their choice alongside their husbands or fathers.114 Since the power to exile citizens remained a point of legal uncertainty, a subsequent order stipulated that exiled naturalized persons would cease to be either British subjects or Canadian nationals and be deemed “unft for permanent residence in Canada.”115

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Japanese Canadians seeking to challenge the constitutionality of these orders were joined by a growing number of supporters in the liberal press and civil society condemning both the legality and morality of exile.116 Pressure from the Cooperative Committee on Japanese Canadians (CCJC) – a coalition of concerned churches, civil liberties groups, and labour unions – and growing criticism in the media, alongside the likelihood of applications for habeas corpus from Japanese Canadians facing exile, convinced the federal government to seek a reference opinion from the Supreme Court on the constitutionality of the proposed scheme.117 “Thus the question of Canada’s Japanese passes,” an editorial in the Vancouver Daily Province hoped, “from the realm of prejudice and politics into the realm of law. It is well that this should be so. Great principles are involved and it is important that action touching these principles should be taken only after mature consideration and with the highest judicial sanction.”118 To argue those great principles, the CCJC retained prominent civil liberties lawyer F. Andrew Brewin and one of Canada’s leading litigators, John Robert Cartwright.119 Joining Cartwright and Brewin was Art MacLennan, the lawyer from the Nakashima case. Their factum argued that “a statute even in war time should be interpreted in favour of the liberty of the subject.”120 With that overarching principle in mind, they challenged the concept of “race” as too vague to be enforced and argued that deportation, by defnition, could not apply to citizens. Secondary arguments vaguely hinted that the impugned orders contravened unnamed principles of international law. Without the concepts or language of human rights to grab hold of, the lawyers approached the case as a matter of the more familiar legal terrain of statutory interpretation. The Supreme Court’s judgment in the case, Re Persons of the Japanese Race, issued in February 1946, teetered on the boundary between Canada’s wartime constitution and the coming age of human rights. A majority of Justices struck down the provisions of the orders authorizing the expulsion of wives and children. In dissent, Chief Justice Rinfret and Justices Kerwin and Taschereau would have found the exile orders constitutional in their entirety. They fxed on the disloyalty exhibited by Japanese Canadians in requesting exile but added that in any event, the Court could not question the decisions of the executive in the exercise of its wartime powers. Indeed, in Justice Hudson’s concurring opinion, the requests for exile demonstrated that for Japanese Canadians “ties of race are stronger than the obligations of nationality.”121 Nonetheless, an inchoate idea of citizenship and human rights began to emerge in a heterogeneous majority

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comprised of Justices Kellock, Estey, Hudson, and Rand.122 In cursory fashion, Kellock found the orders defcient for failing to disclose why the exile of wives and children was “necessary or advisable,” while Estey, in an opinion endorsed by Hudson, suggested, without elaboration, that the citizenship of the wives and children “entitled [them] to remain in Canada.”123 Justice Rand went further, taking tentative steps toward a constitutional theory of rights and citizenship that would become famous in the decade that followed.124 Rand reasoned that naturalized and natural-born Japanese Canadians possessed “citizenship rights” that could not be bounded by race.125 “I must deal with this case,” he observed, “as if, instead of a Canadian national of Japanese origin, I were dealing with that of a natural born Canadian national of English extraction who sympathized with Mosley or a French-Canadian national who supported Pétain or an IrishCanadian national who thought de Valera’s course justifed.”126 The analogy was, of course, a false one; it also fell into the lazy trap of linking Japanese Canadians by association with fascists and revolutionaries. Paradoxically, the analogy also suggested that the rule of law should transcend prejudice. Citizenship, Justice Rand intimated, entailed the promise of at least formal equality before the law. Less abstractly, Rand held that the exile of “natural born British subjects” was an act of “unrecognized legal character” and therefore not among the powers authorized by the WMA.127 “Parliament,” Rand argued, “in enacting the War Measures Act must have contemplated, as a fundamental assumption underlying the statute, the delegation of legislative power of a strictly legal character only ... What is proposed here is not juridical.”128 In constraining government measures even to this limited extent, Rand and the fellow members of the majority offered a subtle challenge to the assumption of unchecked executive power in times of war and, for the frst time, exposed the racism of internment-era law to glancing judicial scrutiny. Canada appealed. The JCPC, then in the twilight of its role atop the Canadian judicial hierarchy, heard the case in June 1946. The respondent’s case was now largely in Brewin’s hands. MacLennan had stayed behind in Canada, and Cartwright had stepped aside in order to accept Ottawa’s offer to lead the prosecution of the Canadians accused of spying for the Soviets before a secret Royal Commission (examined by Reg Whitaker in this volume). As was the custom for Canadian cases at the JCPC, Brewin secured the assistance of British barristers, in this case Christopher Shawcross and Geoffrey Wilson. The counsel table for the other parties had changed too. Representing Canada was a team comprised of Montreal

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lawyer Hugh E O’Donnell, Frank Gahan, a Canadian member of the English bar, and Wilbur Roy Jackett, a rising star in the Department of Justice. British Columbia was represented by Gordon Wismer, Attorney General of British Columbia, with assistance from Geffrey Hollis Crispin of the English bar.129 Hearing the case was a panel of judges of extensive experience and lauded competence. Viscount Simon, the former Lord Chancellor, presided, joined by Lords Robert Wright, Augustus Uthwatt, Samuel Porter, and the recently retired former Chief Justice of Canada, Sir Lyman Duff. The JCPC dispelled the notion that citizenship status or rights had any role to play in judicial review of executive decision-making in wartime or its aftermath. In upholding the constitutionality of the exile orders in their entirety, the Lords stressed the sovereignty of Parliament, not the rights of individuals. Lord Wright, who authored the JCPC’s decision in the exile case, had also been in the majority in Liversidge v Anderson, the controversial House of Lords decision upholding the legality of wartime detention in the United Kingdom.130 We know from private communications that Lord Simon was sympathetic to Wright’s opinion in Liversidge, and, as a former member of the British cabinet, had drafted Britain’s wartime internment orders during the First World War.131 And, of course, Duff had written his own defence of wartime executive deference in the Chemicals Reference not three years earlier. We will never know whether Lords Porter or Uthwatt harboured different views on the matter, since, by tradition, the Privy Council only spoke with a unanimous voice. “The Parliament of the Dominion in a suffciently great emergency,” Lord Wright wrote for the Committee, “such as that arising out of war, has power to deal adequately with that emergency for the safety of the Dominion as a whole. The interests of the Dominion are to be protected and it rests with the Parliament of the Dominion to protect them. What those interests are the Parliament of the Dominion must be left with considerable freedom to judge.”132 That freedom, the Lords found, included “the making of Orders for deportation of any person whatever be his nationality.”133 Exile on racial grounds – and, by implication, the preceding wartime orders of uprooting, internment, incarceration, and dispossession – were constitutional on the rationale of the near total deference embedded in the wartime constitution. Citing the JCPC’s decision in the exile case several years later, Justice Rand conceded “there is virtually no limitation to the scope of legislative action which Parliament, considering it necessary, may take for the defence of the country.”134 Even before the JCPC issued its judgment, the

F. Andrew Brewin was retained by the Cooperative Committee on Japanese Canadians in 1946 to challenge the legality of the executive expulsion orders before the Supreme Court and the Judicial Committee of the Privy Council; he is pictured here for appearance before the JCPC in London. Brewin Family collection

Lord Robert Alderson Wright wrote the JCPC’s decision upholding the constitutionality of Canada’s executive orders exiling Japanese Canadians Public domain

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Japanese Canadian community had experienced enough of the wartime constitution to prepare for disappointment. “It is well to remember that the fght through the legal channels though of utmost importance at this stage,” the editors of the New Canadian wrote in February 1946, “is not the only way in which we may hope to secure justice for the Japanese Canadians ... We must continue the fght because we believe in the justice of our cause, and because we frmly believe that there is in Canada a thing called democracy.”135 More than most, the Japanese Canadian community understood that legal cases, even at the highest courts of appeal, were not the only mechanisms for change. In the aftermath of the Privy Council’s decision, events took an unexpected turn. The mainstream Canadian press continued to decry the exile as wrong. “The legal right to do a thing does not necessarily give it moral sanction,” an editorial in the Globe and Mail argued. The exile policy was “still wrong, unjust, and unCanadian ... The deportation order drowns all affrmations of the security and protection of Canadian citizenship, and it is a shocking symbol of the abuse of power.”136 The JCPC’s upholding of the constitutionality of the exile orders now made the “case for a Canadian Bill of Rights ... unanswerable,” the Winnipeg Free Press argued: “If the present government ... is prepared under pressure from the racialists ... to commit this morally indefensible act – what guarantee can there be for the future? ... Clearly the right course is by amendment to the British North America act to safeguard for all time our basic liberties.”137 The exile policy also led the Vancouver Daily Province to advocate for “a constitutionalised Bill of Rights.”138 So did the Toronto Daily Star and Ottawa’s Evening Citizen.139 The ending of the war, the emergence of a post-war international human rights discourse, and a growing sense that all citizens were vulnerable to the wartime constitution’s deference to executive power had changed the political landscape. Entrenched equality rights gained traction as a constitutional idea in mainstream civil society when discrimination based on race could be reimagined as a threat to the rights of all. The political momentum behind the emerging language of constitutional rights eventually engulfed the government’s exile of Japanese Canadians. In late 1946, Mackenzie King’s Liberals abandoned the policy, although not before exiling nearly 4,000 Japanese Canadians to Japan. In the decades that followed, advocates of constitutional rights frequently invoked the experience of Japanese Canadians to support their demands for entrenched constitutional rights, emphasizing especially the postwar exile, which was easier to recognize as devoid of a national security

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rationale. Prime Minister Diefenbaker did so repeatedly in his ultimately successful campaign to enact the statutory Canadian Bill of Rights.140 Even the Liberals eventually conceded that “with the wisdom of hindsight ... we do not believe that certain of [the government’s] actions were really necessary, or that they should be repeated in any similar situation in the future.”141 Although the Japanese Canadian community lost their legal challenges to their wartime oppression, the constitutional ideals they drew upon ultimately changed post-war Canada.142 conclusions Canada’s wartime constitution made possible the uprooting, internment, incarceration, dispossession, and exile of Tsuma and Moichiro Tonomura and their children, like so many thousands of others. Responsibility for the countless discriminatory harms and senseless miseries inficted upon Japanese Canadians on racial grounds lies with politicians, offcials, the media, the broader public, and lawyers and judges too. The law had failed to protect a vulnerable community against such assaults. These harms continued to infict their damage on Japanese Canadian families and their community long after the government lifted the last of its racist restrictions on Japanese Canadians in 1949. The damage was permanent: homes and farms had been sold to others, education had been abandoned, businesses had been lost, and possessions had been irretrievably scattered. Vancouver’s Powell Street neighbourhood did not return. Nor did discrimination in employment, housing, and services disappear, despite the post-war talk of rights. While explicit discrimination on the basis of race largely disappeared from formal legal enactments, it persisted in public and private conduct among employers, landlords, businesses, and governments. For the Tonomura family, like others forced into exile, the road to return to Canada was beset by hurdles erected by the continuing power of bureaucratic exclusion, offciousness, and callousness regarding those unjustly stripped of citizenship. For Moichiro and Tsuma Tonomura, the exile was long. All but their youngest child had left Japan by 1968, when the Canadian government fnally permitted them to return home.143 The wrongs committed by the Canadian state in times of crisis have been an enduring theme of the Canadian State Trials series, and this volume is no exception. The repressive legal regime imposed on Japanese Canadians by the Canadian government is not the only example, of course, of racist law and constitutional wrongs in Canadian legal history, but that particular regime is notable for its origins in wartime, its specious connections to

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Like many Japanese Canadians exiled for the supposed security of the country, Moichiro and Tsuma Tonomura sought for years to resume their lives in Canada. In 1968 they were able to return to Vancouver, where they are pictured outside their home. Photograph courtesy of Marlene Tonomura

security concerns, and its duration for years beyond the end of international hostilities. More than that, it was a regime of harmful cascading consequences in which government purported to solve problems of its own creation with further racist denials of dignity and extension of new harms. In these respects, the Canadian experience was distinct from the American. In Canada, executive orders authorizing uprooting and displacement led to orders seizing and selling property, which led to a policy and orders of exile. Canadian courts largely upheld the regime and sanctioned its repressive harms. The Exchequer Court in Nakashima upheld the orders authorizing the forced sale of everything Japanese Canadians owned that they could not carry with them when they were uprooted. The Supreme Court’s questioning of some aspects of the orders of exile was

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ultimately overturned by a Privy Council appeal that held that the legality of the regime was essentially beyond question. This was the high water mark of the wartime constitution’s excessive stance of deference to executive decision-making no matter how tenuous and absurd the claim to national security. In the end, it was a regime stopped not by law but rather by a post-war public awakening to the sheer force of its moral wrongness. We close this chapter with an appeal to integrate the history of constitutional wrongs experienced by Japanese Canadians more directly into the history of twentieth-century Canadian law. The legal profession has tended to ignore and downplay the constitutional failures in Canada’s past. By contrast, American constitutional law arguably pivots as much around its famous anti-canon – cases like Dred Scott, Plessy, and Korematsu – as it does around its shining precedents of virtue. The anti-canon, as Jamal Greene puts it, “map[s] out the land mines of the American constitutional order, and thereby help[s] to constitute that order: we are what we are not.”144 An irony lies at the heart of the use of such cases to mark what we are not, for they are equally compelling records of what we very much are, or at the very least, have been. There is wide agreement that the US constitutional anti-canon features a roster of judicial decisions that every American law student encounters, every American lawyer knows, and every US judge understands should be cited solely with reference to their wrongness. Canada’s constitutional anti-canon, if it exists at all, lies in shadow. Our suspicion is that many Canadian scholars and lawyers could easily list at least some of the cases of the US anti-canon, and perhaps even Korematsu, but that efforts to construct a Canadian list would produce either blank stares or disparate lists drawn from the Charter era. There are negative implications, we think, for a Canadian constitutional law insuffciently attuned to its historical injustices. There are good reasons to avoid the kind of reifcation and distorting effects a canon or anti-canon can impose on constitutional jurisprudence; cases tend to complications, partiality, and ambiguities that are not well captured by characterization as pantomime heroes and villains. Yet there are costs associated with an aversion to teaching, studying, and knowing Canada’s past constitutional failures as displayed in the racist legal regime imposed on Japanese Canadians and the judicial decisions that sustained it in Nakashima and Reference re Persons of the Japanese Race. One of those costs is an absence of humility. It is important for those working in law to appreciate the role of law and legal professionals in crafting, delivering, and sanctioning constitutional wrongs. Perhaps more importantly, studying the anti-canon requires us to confront

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the ways in which Canada’s internment-era laws, and the cases that upheld them, confgured race as impervious to notions of citizenship, equality, or basic fairness, even within a system formally committed to the rule of law. Finally, in this century, as in the last, the law will face its greatest tests of justice in moments of anxiety, stress, and insecurity. The legal history of Japanese Canadians reminds us that the wartime constitution tends to dispense its protections and harms in unequal fashion. Neither legal history nor the anti-canon will save us, but they may help better prepare us for the inevitable constitutional challenges that await. NOTES * The authors thank the volume editors for inviting this contribution and for their careful reading of the chapter in draft form. Our thanks also to Kaitlin Findlay, Eiji Okawa, and Lisa Uyeda for support in identifying archival materials and to Fumiko Miyahara for translation of key documents. Thank you to the Landscapes of Injustice research collective; as the collective coauthorship credit denotes, this work would have been impossible without the individuals and organizations of the research collective undertaking the hard work of multidisciplinary collaboration. 1 See Jordan Stanger-Ross, ed., Landscapes of Injustice: A New Perspective on the Internment and Dispossession of Japanese Canadians (Montreal and Kingston: McGill-Queen’s University Press, 2020); Ann Gomer Sunahara, The Politics of Racism: The Uprooting of Japanese Canadians during the Second World War, 2nd ed. (Ottawa: Ann Sunahara, 2000); Ken Adachi, The Enemy That Never Was (Toronto: McClelland and Stewart, 1976); and Mona Oikawa, Cartographies of Violence: Japanese Canadian Women, Memory, and the Subjects of the Internment (Toronto: University of Toronto Press, 2012). At the end of October 1942, the Canadian government reported having interned and incarcerated 21,460 Japanese Canadians, over 90 per cent of the Japanese Canadian population (Adachi, The Enemy that Never Was, 415, 413). In this manuscript we follow the convention of including, in the term “internment,” Japanese Canadians who received permission to relocate to sites outside the government-administered camps, including those who were permitted to live in eastern cities such as Toronto and Montreal. Until 1949, provisions of the internment continued to apply to such individuals and families, including the prohibition on their return to the Pacifc coast. This usage follows the common practice in the scholarship, as well as the Oxford English Dictionary defnition of the verb

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3 4 5 6 7 8 9

10

11 12 13 14

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“to intern” as the act of confning people “within the limits of country, area, or other place, esp. for political or military reasons; spec. (originally) to oblige (a person) to reside within prescribed limits.” Parts of this chapter have appeared in other forms and in combination with other material in our prior publications. See, in particular, Adams et al., “Promises of Law.” Marlene Tonomura, “The Tonomura Family,” Tonomura Family Collection, Nikkei National Museum, 1995.125.2.55. Letter from Canadian Embassy (Tokyo) regarding Rieko’s citizenship status, 23 February 1955, Tonomura Family Collection. Letter from Canadian Embassy (Tokyo) regarding Rieko’s citizenship status, 23 February 1955, Tonomura Family Collection. War Measures Act, RSC 1927, c.206, s.3 [WMA]. Ibid. Interdepartmental Committee on Emergency Legislation, Report (Ottawa: King’s Printer, 1939). Barry Wright, Eric Tucker, and Susan Binnie, “Introduction,” in CST4, ch. 3 at 10–13; and “Editors’ Note: Judicial Review of the War Measures Act, 1914,” in CST4, 475–6. For the history of the Act, 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 Canadian Perspectives on Law and Society: Issues in Legal History, ed. W.W. Pue and B. Wright (Ottawa: Carleton University Press, 1988), 291. Re Gray [1918] 57 SCR 150 at 166 [Re Gray]. See also Patricia I. McMahon, “Conscription and the Courts: The Case of George Edwin Gray, 1918,” in CST4, 132. Fort Frances Pulp and Power Co. v. Manitoba Free Press Co. (1923) A.C. 695 at 705 [Fort Frances]. Ibid. at 700. PC 1941–9760 (1941), Ottawa, LAC (RG2-A-1-a, vol. 1741, fle 2468G). Jordan Stanger-Ross and Pamela Sugiman, eds., Witness to Loss: Race, Culpability, and Memory in the Dispossession of Japanese Canadians (Montreal and Kingston: McGill-Queen’s University Press, 2017). PC 1942–1665 (1942) s.10(1), LAC (RG2-A-1-a, vol. 1750, fle 2516G) [Order 1665]. In addition to powers to “require by order any person of the Japanese race, in any protected area in British Columbia ... to leave his place of residence and proceed to any other place within or without the protected area,” the order granted the Commission the power to “make orders respecting the conduct, activities, and discipline of any person evacuated under the provisions of these Regulations” (ss.11(1), (2)).

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16 Adams et al., “Promises of Law.” 17 Adams et al., “Promises of Law.” 18 This argument, elaborated below, is also articulated in terms of path dependency in Jordan Stanger-Ross and Matt James, “Social Accountability after Political Apologies,” in Landscapes of Injustice, 454–84. 19 “Declaration,” n.d., fle 23–2-2–7, vol. 641, RG 27, LAC. 20 PC 2483 (3 September 1939), Proclamations and Orders in Council (Ottawa: King’s Printer, 1940) at 27. The regulations themselves were published separately as Canada, Defence of Canada Regulations (Ottawa: King’s Printer, 1939). The DOCR were amended throughout the war, and additional consolidations were published in 1940, 1941, and 1942. PC 2363, 8 June 1940, Canada, Proclamations and Orders in Council, vol. 2 (Ottawa: King’s Printer, 1940) at 108–9. 21 Ross Lambertson, “The Second World War: Civil Liberties at Risk,” in Repression and Resistance: Canadian Human Rights Activists, 1930–1960 (Toronto: University of Toronto Press, 2005), 69. For the history of internment in wartime Britain, see A.W.B. Simpson, In the Highest Degree Odious: Detentions without Trial in Wartime Britain (Oxford: Clarendon Press, 1992). 22 For a comparative history of wartime measures in Canada, the UK, and Australia during the First World War, see Peter McDermott, “Enemy Aliens in the First World War: Legal and Constitutional Issues,” in CST4. 23 Spitz v Secretary of State of Canada, [1939] 2 DLR 546 at 549 (Ex Co). The House of Lords articulated a similar approach to wartime legislation in the famous detention case Liversidge v Anderson [1942] AC 206 at 251. Lord Macmillan reasoned:[I]n a time of emergency when the life of the whole nation is at stake it may well be that a regulation for the defence of the realm may quite properly have a meaning which because of its drastic invasion of the liberty of the subject the courts would be slow to attribute to a peace time measure. The purpose of the regulation is to ensure public safety, and it is right so to interpret emergency legislation as to promote rather than to defeat its effcacy for the defence of the realm. 24 R v Stewart (1940), 73 Can CC 141 at 145 (Ont CA). 25 Ibid. at 144 (Ont CA). In R v Bronny (1940), 74 Can CC 154, the British Columbia Court of Appeal cited Stewart in holding that it was appropriate to “infer” “sinister” motives on the part of the accused in the face of evidence to the contrary. 26 Ex parte Sullivan (1941), 75 Can CC 70 at 75 (Ont. SC), quoting Ronnfelt v Phillips (1918), 35 TLR. There were occasional judicial voices of opposition, but they were exceptional. McDonald, CJBC protested that “I, for one, do not conceive it to be my duty, even in wartime, to try to work out some deep-

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27 28 29 30 31

32

33 34 35

36 37 38

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hidden and ingenious construction which would give to the Regulation that meaning which is the most disadvantageous to the accused.” His colleagues in the majority convicted: R v Paul (1943), 80 Can CC 356 at 358 (BCCA). See also R v Demorest (1941), 75 CCC 360 (Sask. Dist. Ct). Re Carriere (1942), 79 Can CC 329 at 333 (QSC). R v Ravenor (1941), 75 Can CC 294 at 299 (BC Co. Ct.). R v Stewart (1940), 73 Can CC 141 at 147 (Ont. CA). Ex parte Sullivan (1941), 75 Can CC 70 at 77 (Ont. SC). R v Burt (1941), 75 Can CC 55 at 59–60 (Ont. SC). In convicting a dissenter for antiwar comments, in R v Coffn, [1940] WWR 592 at 604 (Alta. Pol. Co.), a magistrate noted that if “every Britisher held his views he would not have the privilege of questioning even in peace time the things which in my opinion he is prohibited from challenging during the period these Regulations are in force.” R.M.W. Chitty, “Inter Alia: The Devious Workings of Bureaucracy” (1943–4) 13 Fortnightly LJ 209 at 209. See Eric M. Adams, “‘Guardians of Liberty’: R.M.W. Chitty and the Wartime Idea of Constitutional Rights,” in The Promise and Perils of Law: Lawyers in Canadian History, ed. Constance Backhouse and W. Wesley Pue (Toronto: Irwin, 2009). R.M.W. Chitty, “Inter Alia: Discussion of the Functions of War-Time Emergency Boards” (1941–2) 11 Fortnightly LJ 209 at 209. R.M.W. Chitty, “Inter Alia: The Shortcomings of the Profession as the Guardian of Liberty” (1942–3) 12 Fortnightly LJ 81 at 82. In the spring of 1942, the Financial Post asked eighteen prominent Canadians – political fgures, church leaders, and academics: “What Ought to Be Done with Our Japanese?” Constitutional scholar Frank Scott alone urged that “war hysteria” not lead to “ill-advised and undemocratic treatment of Canadianborn Japanese,” while ffteen favoured immediate expulsion from British Columbia, if not the country. Until the issue of mass exile to Japan took on greater controversy, Scott’s brief caution represented the high water mark of the legal profession’s public engagement with the government’s policy of uprooting, internment, and dispossession: Financial Post (21 March 1942), 3. On the shift caused by the proposed exile, see Stephanie Bangarth, Voices Raised in Protest: Defending North American Citizens of Japanese Ancestry, 1942–49 (Vancouver: UBC Press, 2008). Reference As to the Validity of the Regulations in relation to Chemicals [1943] SCR 1 at 4 [Chemicals Reference]. Ibid. Ibid. at 9, per Duff, CJC. Duff cited Fort Frances and Re Grey in support of the Act’s constitutionality.

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39 Jordan Stanger-Ross, “Introduction,” in Landscapes of Injustice: A New Perspective on Internment and Dispossession of Japanese Canadians, ed. Ross (Montreal and Kingston: McGill-Queen’s University Press, 2020); Laura Ishiguro, Nicole Yakashiro, and Will Archibald, “Settler Colonialism and Japanese Canadian History,” Landscapes of Injustice Working Paper, September 2017, https://www.landscapesofnjustice.com/wp-content /uploads/2018/02/Working- Paper-3-Settler-Colonialism-and-Japanese -Canadian-History.pdf. 40 Robert Gordon Robertson, Memorandum for J.E. Read, 30 October 1945, fle 104(s), pt 2.2, vol. 5761, RG 25, LAC. 41 Order-in-council 1941–9491, vol. 1741, RG 2, LAC. 42 In 1871, the British Columbia legislature frst disqualifed “Chinese or Indians” from voting: The Qualifcation and Registration of Voters Act, 1871, SBC 1872, c.39, s.13, as amended by Provincial Voters Amendment Act, 1895, SBC 1895, c.20, s.2. See Patricia E. Roy, “Citizens without Votes: East Asians in British Columbia, 1872–1947,” in Ethnicity, Power and Politics in Canada, ed. Jorgen Dahlie and Tissa Fernando (Toronto: Methuen, 1981), 151, 152. 43 H.F. Angus, “The Legal Status in British Columbia of Residents of Oriental Race and Their Descendants” (1931) 9 CBR 1. 44 The federal government disallowed a number of discriminatory laws as unconstitutionally invading the federal Parliament’s exclusive jurisdiction over “Naturalization and Aliens,” and courts struck down several others as either contrary to the division of powers or in confict with existing federal law. See Union Colliery Co v Bryden, [1899] AC 580 (JCPC); Re Nakane and Okazake (1908) 13 BCR 370; In re Employment of Aliens, [1922] 63 SCR 293. Between 1884 and 1908 the federal government disallowed virtually all of the near-annual legislative attempts by the British Columbia legislature to prohibit immigration into the province by Asian migrants by either express prohibition or the imposition of a mandatory English-language test. See Bruce Ryder, “Racism and the Constitution: The Constitutional Fate of British Columbia Anti-Asian Immigration Legislation, 1884–1909” Osgoode Hall Law Journal 29 (1991) 619. 45 Cunningham v Tomey Homma [1903] AC 151 (PC). “No Japanese Need Apply to Be Voters,” the Vancouver Daily Province informed readers, qtd in Geiger-Adams, “Writing Racial Barriers into Law,” at 31. See Andrea Geiger-Adams, “Writing Racial Barriers into Law: Upholding BC’s Denial of the Vote to its Japanese Canadian Citizens, Homma v Cunningham, 1902,” in Nikkei in the Pacifc Northwest: Japanese Americans and Japanese Canadians in the Twentieth Century, ed. Gail M. Nomura and Louis Fiset (Seattle: University of Washington Press, 2005), 21.

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46 “Alien citizenship,” Mae M. Ngai argues, “spoke to a condition of racial otherness, a badge of foreignness that could not be shed.” Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America (Princeton: Princeton University Press, 2004), 8. 47 Order-in-council PC 1942–288, vol 1744, fle 2484, RG2 A-1-a, LAC. 48 Ibid. On Kimura’s role, see Stanger-Ross and Sugiman, eds., Witness to Loss, n14. 49 “Japanese Fishing Vessels,” submitted to the Japanese Property Claims Commission, 13 February 1948, Offce of the Custodian of Enemy Property: Vancouver Offce, RG117 (microflm reel C-9434, images 458–477), Canadiana Héritage (heritage.canadiana.ca). For the admission of the illegality of the sales, see https://heritage.canadiana.ca/view/oocihm.lac _reel_c9434/463?r=0&s=2. 50 Sunahara, Politics of Racism, n1. 51 See Sunahara, Politics of Racism, chs. 2–3; and Patricia Roy, The Triumph of Citizenship: The Japanese and Chinese in Canada, 1941–67 (Vancouver: UBC Press, 2007), ch. 1. 52 At the end of October 1942, the Canadian government reported having interned and incarcerated 21,460 Japanese Canadians. That was over 90 per cent of the total Japanese Canadian population. Adachi, The Enemy that Never Was, 415, 413. 53 PC 1942–1665 (1942) s.10(1), LAC (RG2-A-1-a, vol. 1750, fle 2516G) [Order 1665]. 54 Read studied at Dalhousie, Columbia, and then Oxford as a Rhodes Scholar, and briefy practised law before joining Dalhousie, where he specialized in property law. After the war, Read would go on to a distinguished judicial career on the International Court of Justice. 55 Note for the Undersecretary of State for External Affairs, 2 March 1942, vol. 3005, fle 3464-q-40, RG 25, LAC. 56 See note 55 above. 57 See note 55 above. 58 See note 55 above. 59 Letter to A. MacNamara drafted by RGR (Robert Gordon Robertson), 9 July 1945, vol. 5761, fle 104s, pt 2.1, RG 25, LAC. 60 A. MacNamara to N.R. Robertson, 17 July 1945, vol. 5761, fle 104s, pt 2.1, RG 25, LAC. For MacNamara, the “impracticality” of Japanese Canadian freedom was also a matter of differing constitutional cultures. “Japanese Americans,” he wrote, “are more thoroughly Americanized ... and ... the rights of an American citizen as guaranteed by the Constitution are more frmly established in the public consciousness than in this country.” While

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63 64

65 66 67

68 69 70

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MacNamara underestimated both the ongoing compromise of US citizenship on the basis of race and the forthcoming mobilization of Canadian civil society groups to protest enduring mistreatment of Japanese Canadians, his assessment of Canada’s wartime constitutional culture helped shape the postwar policy. On property losses in the United States, see Leonard Broom and Ruth Riemer, Removal and Return: The Socio-Economic Effects of the War on Japanese Americans (Berkeley: University of California Press, 1973 [1949]); and Frank S. Arnold, Michael C. Barth, and Gilah Langer, Economic Losses of Ethnic Japanese as a Result of Exclusion and Detention, 1942–1946 (Washington, DC: ICF Incorporated, 1983). Prime Minister to Robertson, 12 July 1945, vol. 5761, fle 104s, pt 2.1, RG 25, LAC. Federal/provincial negotiations at the close of the war weighed heavily in these considerations. King’s concern to smooth demobilization of the economy, in particular, eclipsed any consideration of the rights of Japanese Canadians. Stanger-Ross and James, “Social Accountability,” 467. Robert Gordon Robertson, Policy with Regard to Japanese in Canada (meeting minutes), 12 April 1944, vol. 1, fle 12, MG 31 E87, LAC. There had been prior public and policy discussion of exile before this date, but no policy had been set in motion. For earlier discussion, see, e.g., “Conference to Discuss Segregation and Repatriation of Japanese,” October 1943, vol. 641, fle 23–2-2–7, pt 1, RG 27, LAC. Gordon Robertson, Memoirs of a Very Civil Servant: Mackenzie King to Pierre Trudeau (Toronto: University of Toronto Press, 2000), 42–3. Robertson, Memoirs, 42–3. See also Sunahara, Politics of Racism, 15–16, 101. ARM (Arthur R. MacNamara) Memo, Policy with regard to Japanese in Canada, 22 March 1944, vol. 5761, fle 104s, pt 1.1, RG 25, LAC. Offcials in this period were consistently concerned about the appearance of discrimination, even as they admitted to formulating discriminatory policies. MacNamara suggested that the appearance of discrimination would hamper post-war diplomatic relations with “Asiatic countries.” Other offcials worried about the domestic political implications of overt racism. Robert Gordon Robertson, Policy with Regard to Japanese in Canada (meeting minutes), 12 April 1944, vol. 1, fle 12, MG 31 E87, LAC. A.H. Brown to Norman Robertson, 5 September 1944, vol. 5761, fle 104s, pt 1.2, RG 25, LAC. Robert Gordon Robertson, Policy with Regard to Japanese in Canada (meeting minutes), 12 April 1944, vol. 1, fle 12, MG 31 E87, LAC.

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71 R.G. Robertson to Dave [W. Mundell, ministry of justice], 18 October 1944, vol. 5761, fle 104s, pt 1.2, RG 25, LAC. 72 Robert Gordon Robertson, Policy with Regard to Japanese in Canada (meeting minutes), 12 April 1944, vol. 1, fle 12, MG 31 E87, LAC. 73 RGR (Robert G. Robertson), 25 September 1944, vol. 5761, fle 104s, pt 1.2, RG 25, LAC. 74 T.B. Pickersgill to Arthur MacNamara, 28 March 1945, vol. 5761, fle 104s, pt 2.1, RG 25, LAC. 75 Sunahara, Politics of Racism, 107. 76 T.B. Pickersgill to Arthur MacNamara, 28 March 1945, vol. 5761, fle 104s, pt 2.1, RG 25, LAC. 77 As note 76 above. 78 Repatriation Results at Lemon Creek, 27 April 1945, vol. 5761, fle 104s, pt 2.1, RG 25, LAC; J.M. Wardle to Mr MacNamara, 13 June 1945, vol. 5761, fle 104s, pt 2.1, RG 25, LAC. 79 PC 7357 (15 December 1945), Statutory Orders and Regulations 1945, vol. IV (Ottawa: King’s Printer, 1946). 80 “Experience on S.S. Marine Angel Is Described in Airmail Letter,” The New Canadian, 29 June 1946, 1; “Repatriates to Leave Canada May 31,” The New Canadian, 11 May 1946; “330 in Tashme Prepare to Sail on First Boat,” The New Canadian, 4 May 1946, 1. 81 “Third Repatriate Group Leaves Canada on Liner General Meigs,” The New Canadian, 10 August 1946, 1; “S.S. Marine Falcon Leaves on October 2 with 500 Repatriates,” The New Canadian, 5 October 1946, 1; “400 Repats Leave Christmas Eve with Chinese Fellow Passengers,” The New Canadian, 4 January 1947, 1. 82 K.T. Takahashi, The Anti-Japanese Petition: Appeal in Protest against a Threatened Prosecution (Montreal: Gazette Printing, 1897), 3. 83 Cunningham v Tomey Homma, [1903] AC 151 (PC). 84 “Until now,” stated Iku Kumagawa, a First World War soldier, “Japanese Canadians have not been treated well here. But this [volunteering] will put future provincial governments in a position where they cannot deny Japanese their rights.” Qtd in Lyle Dick, “Sergeant Masumi Mitsui and the Japanese Canadian War Memorial: Intersections of National, Cultural, and Personal Memory,” Canadian Historical Review 91 (2010): 435, 444. See also Roy Ito, We Went to War: The Story of the Japanese Canadians Who Served during the First and Second World Wars (Stittsville: Canada’s Wings, 1984). Veterans achieved a partial success when British Columbia extended the provincial franchise to Japanese Canadian veterans in 1931, a legal change that provided the right to vote to a few but also reinforced the idea that

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86 87

88

89

90 91 92

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race remained the presumptive category under which Japanese Canadians would be defned. Samejima v Canada, [1932] SCR 640. See also Eric M. Adams, “‘Equally Applicable to Scotsmen’: Racism, Equality, and Habeas Corpus in the Legal History of Japanese Canadians,” in Landscapes of Injustice. “Our Fights for Justice,” The New Canadian, 12 June 1943, 2. “United Action of Evacuees Sought to Aid Test Case,” The New Canadian, 10 April 1943, 1. The APOA called upon all “real property owners anxious to retain their interest in their homes, land and buildings” to defray the anticipated legal costs of $8,500 and to fght for “an issue fundamental and basic to Canadian democracy.” “Test Case Receiving Support from Evacuees across Canada,” The New Canadia, 17 April 1943, 1; “Launch Fund Campaign – Ten Per Cent of Taxes Asked,” The New Canadian, 1 May 1943, 1. By the mid-1930s Norris had begun to represent Eikichi Kagetsu, owner of a highly successful lumber business: Thomas Norris fonds, UBC_RBSC, box 13 (fle 13–1) and box 31 (fle 31–17). Since Norris had agreed to serve as Deputy Judge Advocate General for the Twenty-First Army Group for the duration of the war, the case went to his junior partner, Art MacLennan. Petition of Right Act 1876, SC 1876, c.27. See generally Peter W. Hogg, Patrick J. Monahan, & Wade K. Wright, Liability of the Crown, 4th ed. (Toronto: Carswell, 2011), 4–5, 8. As the authors explain, “the reason why the King could not be sued in the royal courts was the feudal principle that a lord could not be sued in his own court.” “Property Sale to Begin This Week Warns Custodian,” The New Canadian, 29 May 1943, 1. “Property Owners Give Go-Ahead Signal for Action,” The New Canadian, 5 June 1943, 1. At the start of the war, around 23,000 of the total population of 25,000 Japanese Canadians lived in British Columbia. Of British Columbia’s population of Canadians of Japanese descent, around 7,200 were Japanese nationals, 2,400 were naturalized Canadians, and 13,400 were Canadian by birth. H.F. Angus, “The Effect of the War on Oriental Minorities in Canada” (1941) 7:4 Can J of Econ Poli Sci 506 at 506. Until the passage of the Canadian Citizenship Act created the legal status of Canadian citizenship in 1946, Canadians had status as British subjects and naturalized Canadians under the Naturalization Act, RSC 1927, c.138 and the Canadian Nationals Act, RSC 1927, c.21. Petition of Right, fled 13 October 1943.

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94 The New Canadian continued its coverage of the case, including quoting at length for its readers the legal arguments drawn from the Petitions of Right. See “Japanese Property Bids Very Slow: Case Likely to Be Held in Vancouver September,” The New Canadian, 31 July 1943, 1. 95 “Court to Rule If Sale of Property Is Constitutional,” The New Canadian, 13 May 1944, 1. 96 Ian Bushnell, The Federal Court of Canada: A History, 1875–1992 (Toronto: University of Toronto Press for the Osgoode Society for Canadian Legal History, 1997) at 124–5. See also W. Kristjanson, “Hon Joseph Thorarinn Thorson” (1978) 37 The Icelandic Canadian 13. 97 An incomplete transcript of the hearing is contained in the Nakashima case fle, Ottawa, LAC (R14188, vol 2186, fle 20087, 20088, 20089. 98 Chemicals Reference at 12. In upholding a similarly broad granting of discretion authorizing curfews imposed upon Japanese Americans in the “Military Area,” the United States Supreme Court held that “[s]ince the Constitution commits to the Executive and to Congress the exercise of the war power in all the vicissitudes and conditions of warfare, it has necessarily given them wide scope for the exercise of judgement and discretion in determining the nature and extent of the threatened injury or danger and in the selection of the means for resisting it.” Hirabayashi v United States, 320 US 81 1943 at 93. 99 Adams and Stanger-Ross, “Promises,” 723. 100 Chemicals Reference, at 144. 101 Re Price Bros and The Board of Commerce of Canada, [1920] 60 SCR 265 at 272, 54 DLR 286. Duff J (as he then was) stated: “I think such orders are reviewable, in this sense that when in a proper proceeding the validity of them is called into question, it is the duty of a court of justice to consider and decide whether the conditions of jurisdiction are fulflled and if they are not being fulflled, to pronounce the sentence of the law upon the illegal order.” On the economic theory animating the Court’s decision, see B.J. Hibbits, “A Bridle for Leviathan: The Supreme Court and The Board of Commerce” (1989) 21:1 Ottawa L Rev 65. 102 Adams and Stanger-Ross, “Promises,” 724. 103 “One for the Lawyers,” The New Canadian, 22 February 1947, 2. 104 Harvey Hickey, “Ilsley in Quandary as MP’s Score Exchequer Court’s Judgment Delays,” Globe and Mail, 2 July 1944, 10. 105 Nakashima v Canada, [1947] Ex CR 486 [Nakashima]. 106 Ibid. at 491. 107 Ibid. at 492, 495, 498. 108 Ibid. at 502.

84 109 110 111 112 113 114 115 116

117

118 119

120 121

122 123 124 125 126

e r ic m. a da ms , jo r da n sta n ger-ros s , et al.

Ibid. at 504. Ibid. Nicholas v Graham, [1937] 3 DLR (MKB) 795 at 799. Korematsu v United States, 323 US 214 (1944), 65 S Ct 193 [Korematsu]. PC 7355 (15 December 1945), Statutory Orders and Regulations 1945, Vol. IV (Ottawa: King’s Printer, 1946) 365. As note 113 above. PC 7356 (15 December 1945), Statutory Orders and Regulations 1945, Vol. IV (Ottawa: King’s Printer, 1946), 365; see also volume appendix. “We Will Regret Racialism,” Winnipeg Free Press, 19 September 1945, 13; “Have We Shoddy Citizenship?,” Winnipeg Free Press, 28 September 1945, 11; “Threat to Canadian Liberty,” Winnipeg Free Press, 6 October 1945, 17; “A Bill of Rights Needed,” Winnipeg Free Press, 20 October 1945, 17; “Unworthy of Canada,” Globe and Mail, 14 January 1946, 6. In the mounting rhetoric against the exile, the Globe likened the government’s “discriminatory treatment of Canadians of Japanese origin” to “whole deportation, Nazi fashion.” Bangarth, Voices Raised in Protest; Ross Lambertson, “The JapaneseDeportation Issue,” in Repression and Resistance: Canadian Human Rights Activists, 1930–1960 (Toronto: University of Toronto Press, 2005). For an early indication of opposition to the government’s treatment of Japanese Canadians, see L. McL. Atkinson, “The Japanese Controversy Is Reviving Liberalism” Saturday Night, 15 July 1944, 6. “Deportation Challenged,” Vancouver Daily Province, 29 December 1945, 4. On John Cartwright and his complicated approach to civil liberties and human rights, see Eric M. Adams, “Judicial Agency and Anxiety: A Constitutional History of R v Drybones” (2018) 39 National Journal of Constitutional Law 63. Supreme Court of Canada Archives, Factum of the CCJC, fle no. 07240. Reference as to the Validity of Orders in Council of the 15th Day of December, 1945 (P.C. 7355, 7356 and 7357) in Relation to Persons of the Japanese Race, [1946] SCR 248 [Japanese Reference]. As note 121 above. As note 121 above at 309, 321–2. Eric M. Adams, “Building a Law of Human Rights: Roncarelli v Duplessis in Canadian Constitutional Culture” (2010) 55 McGill LJ 437. Japanese Reference at 289. Japanese Reference at 290. Rand’s references, which did not require explanation to his war-weary audience, were to Oswald Mosely, the leader of Britain’s fascist movement; Phillippe Pétain, the head of state of France’s

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127 128 129

130 131

132 133 134 135 136 137 138 139

140

141 142 143

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Vichy regime; and Éamon de Valera, leader of the Irish independence movement. On a similar analogy drawn by Chief Justice Duff, see Adams, “‘Equally Applicable to Scotsmen.’” Japanese Reference at 290. As note 127 above. “Attorney General to Support Deportation Before Privy Council,” The New Canadian, 13 April 1946, 1; “Former Attorney General Gordon Wismer 80, Dies,” Vancouver Sun, 30 December 1968; “Mr. G.H. Crispin,” The Times, 22 April 1976. Liversidge v Anderson, [1942] AC 206 (HL). Lord Simon had recused himself from sitting on Liversidge, but we know that as Lord Chancellor he was offended by, and tried to persuade Lord Atkin to remove, portions of Atkin’s trenchant dissent. Viscount Simon, Retrospect: The Memoirs of the Rt. Hon. Viscount Simon (London: Hutchinson, 1952), 104. On his correspondence with Lord Atkin regarding Liversidge, see R.F.V. Heuston, “Liversidge v Anderson in Retrospect” (1970) 86 LQR 33 at 43–6. Co-operative Committee on Japanese Canadians v Attorney-General of Canada, [1947] 1 D.L.R. 577 at 585 (PC). As 132 above at 590. Reference as to the Validity of the Wartime Leasehold Regulations [1950] S.C.R. 124 at 145. “We Must Continue the Fight,” The New Canadian, 23 February 1946, 2. “Remove the Stain,” Globe and Mail, 4 December 1946, 6. “Morally Indefensible,” Winnipeg Free Press, 7 December 1946, 17. “It Touches All of Us,” Vancouver Daily Province, 21 February 1946, 4. See also “Cloud on Citizenship,” Vancouver Daily Province, 3 December 1946, 4. “Need for Rein on Cabinet Seen in Jap Deportations,” Toronto Daily Star, 22 January 1947, 2; “The Dominion Should Lead,” Toronto Daily Star, 22 February 1947, 4; “Power to Exile Canadians,” The Evening Citizen, 3 December 1946, 28. SC 1960, c.44. See Christopher MacLennan, Toward the Charter: Canadians and the Demand for a National Bill of Rights, 1929–1960 (Montreal and Kingston: McGill-Queen’s University Press, 2003). House of Commons, Debates, 24th Parl., 3rd Sess., vol. 5, 1 July 1960, at 5651 (Lester B. Pearson). Eric M. Adams, “Constitutional Stories: Japanese Canadians and the Constitution of Canada” (2018) 35 Australasian Canadian Studies 3. Marlene Tonomura, “The Tonomura Family,” Tonomura Family Collection. See generally Audrey Kobayashi, Reuben Rose-Redwood, Sonja Aagesen,

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and the Landscapes of Injustice Research Collective, “Exile: Mapping the Migratory Patterns of Japanese Canadians Exiled to Japan in 1946,” Journal of American Ethnic History 37, no. 4 (Summer 2018): 73–89; Tatsuo Kage, Uprooted Again: Japanese Canadians Move to Japan after World War II (Vancouver: Ti-Jean Press, 2012). 144 Jamal Greene, “The Anticanon” (2011) 125 Harv L Rev 379 at 381.

2 Prosecuting Kurt Meyer: The Abbaye d’Ardenne War Crimes Trial CRAIG FORCESE*

Between 7 and 17 June 1944, the German 12th SS Panzer Division (Hitler Jugend) executed 156 soldiers of the 3rd Canadian Infantry Division, who had been captured in the frst ten days after the D-Day landings. The murders varied from on-the-spot battlefeld executions to “cold, calculated, and systematic acts of mass murder.”1 After the war, Canadian authorities tried only one man – SS Major General Kurt Meyer – for two score of these murders. That trial and the subsequent treatment of Meyer fuelled consternation and controversy in Canada. The trial represented the high water mark in Canada’s brief foray into war crimes trials after the Second World War – and tested law and procedure in a manner with modern echoes. It also marked a step toward greater Canadian autonomy in matters of military law. Canada was surprisingly wary of the relatively novel concept of war crimes trials. When persuaded to participate, however, it was anxious to chart an independent path in prosecuting German war criminals who had contributed to the murder of Canadian soldiers. In this fashion, its conduct echoed its assumption of control over courts martial of its own soldiers in the Second World War – a pattern that began to emerge after the First World War.2 This chapter examines this pivotal Meyer war crime trial. It was Canada’s frst experiment with its own war crimes proceedings. (The other serious war crimes committed against Canadians in the Second World War, including those in the Pacifc Theatre, were dealt with by British military tribunals.) The case is illustrative of a wide array of legal issues

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in military justice. Other, excellent works offer detailed treatments of the events leading to Meyer’s trial, its conduct, and the aftermath.3 This chapter reviews these events but focuses especially on legal debates about the trial process and conclusions. the murders The 3rd Canadian Infantry Division assaulted Juno Beach on the coast of Normandy on 6 June 1944. Despite stiff resistance from the German 716th Infantry Division, the Canadians secured the landing zone and then pushed inland, moving toward Caen by the end of the day. Late on 6 June, Hitler belatedly authorized the movement of reserve German armoured divisions, and the 12th SS Panzer Division was ordered to engage the Allied forces in the sector in which the Canadians were advancing.4 The German 12th SS Panzer Division consisted of a headquarters unit and two Panzer Grenadier Regiments – the 25th and 26th. It soldiers were mostly young, having been recruited into the division from the Hitler Youth. The offcers and non-commissioned offcers (NCOs) were more experienced – many had long service records. Kurt Meyer, the commander of the 25th Panzer Grenadier Regiment (and division commander by 16 June after his superior’s death), ft this profle. The thirtyfour-year-old Meyer began his affliation with Nazism in the Hitler Youth, brawling in the street with Communists. Serving in the 1st SS Division in Poland, Western Europe, and Russia, he proved an energetic, aggressive offcer. Meyer’s conduct on the Eastern Front was particularly brutal, and included the massacre of prisoners of war that Meyer “observed, failed to stop, or instigated.”5 The 12th Division’s young troops were well-trained, well-equipped, and fanatical. During their indoctrination, they were exposed to reports about the destruction of German cities by Allied bombers. In statements later attributed to Meyer, some of them were told that the Allies took no prisoners and that they also should not take prisoners, a practice widely embraced on the Eastern Front. The frst units of the German 12th Division to reach the area in which the Canadians were advancing on 6 June were infantry battalions of the 25th Panzer Grenadier Regiment. Meyer, then commander of that regiment, accompanied reconnaissance units to the front, and, in conference with regular army counterparts, organized an assault on the advancing Allies, to begin on 7 June. That afternoon, observing matters from his advance headquarters at the Abbaye d’Ardenne, Meyer ordered his forces

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to engage the Canadians near Authie, Normandy, on the outskirts of Caen. The Canadians of the 9th Canadian Infantry Brigade came under withering attack and lost ground against the advancing Germans. During the battle, the German 3rd Battalion of the 25th Panzer Grenadier Regiment overran forward elements of the Canadian battle group, taking prisoners from some of its units. In a recurring pattern during the frst two weeks after D-Day, the Germans murdered many of these prisoners. These killings constituted the basis for Meyer’s later war crimes trial. German soldiers killed twenty-three prisoners in the immediate aftermath of the fghting at Authie, as the Germans marched their captives from the front lines. The Germans took other captives for interrogation at the Abbaye d’Ardenne, Meyer’s headquarters. There, SS soldiers shot eighteen Canadians on 7 and 8 June, and another two on 17 June. The precise sequence of events culminating in the murder of these twenty soldiers became a contentious issue in the subsequent Meyer trial. For this chapter, I rely on the reconstruction of events made by Ian Campbell.6 The Germans marched their Canadian prisoners – as many as 150 of them – into the Abbaye on 7 June, searched them, and deprived them of their papers and the contents of their pockets. They questioned each man. At around 6:00 p.m., German guards asked for “volunteers.” When no one volunteered, the SS soldiers grabbed several prisoners from the assembled ranks, adding them to a small group of other prisoners who had just arrived. The SS guards led these eleven men through a passageway to another part of the Abbaye grounds. On the night of 7–8 June, the Germans moved the rest of the prisoners from the Abbaye. The men separated from the mass of prisoners that evening were not among them and were never seen alive again. At mid-morning on 8 June, SS soldiers escorted seven other prisoners to the Abbaye and reported to the commander, Kurt Meyer. As later detailed by an SS soldier in attendance – Jan Jesionek – when asked what they should do with the prisoners, Meyer reportedly shouted: “What should we do with these prisoners? They only eat our rations!” A little later, he reportedly announced to the drivers and offcers in the chapel of the Abbaye: “In future, no more prisoners are to be taken.” Meyer’s subordinates took the papers of the seven Canadian prisoners and marched each individually through the passageway leading between portions of the Abbaye. These seven men were also never seen alive again. Later that month, on the night of 16–17 June, the 12th SS Panzer Division captured two Canadian soldiers who had been wounded when their

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Geographical area of Canadian operations, including Juno Beach, Caen, the Abbaye d’Ardenne, Authie, and Buron. From Ian J. Campbell, Murder at the Abbaye (Ottawa, 1996) 52; map drawn by Bill Constable and reproduced here by kind permission of Ian Campbell.

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patrol stumbled on a landmine. These were the frst prisoners taken by the division in several days, and the SS moved them from the battalion medical aid post to the Abbaye for interrogation. The Canadians liberated the area around the Abbaye in July 1944. Soon after, local residents began fnding human remains on the Abbaye grounds. In early 1945, members of the Canadian Graves Concentration Unit exhumed six bodies from a mass grave, identifed as Trooper James Elgin Bolt, Private Charles Doucette, Trooper George Vincent Gill, Trooper Thomas Haliburton Henry, Private Reginald Keeping, and Private James Alvin Moss, all captured on 7 June. The investigators also discovered a shallow grave outside the Abbaye walls containing the remains of Lieutenant Freddie Williams, captured after being wounded on the night of 16–17 June. The Canadian Graves Concentration Unit discovered four other graves in the Abbaye later in 1945. These graves contained the remains of twelve other Canadian soldiers captured on 7 June at Authie or nearby Buron, Normandy: Private Ian Lee Crowe, Private Walter Michael Doherty, Trooper Roger Lockhead, Private Hugh Allen MacDonald, Corporal Joseph Francis McIntyre, Private George Richard McNaughton, Private George Edward Miller, Private Hollis Leslie McKeil, Private Thomas Edward Mont, Private Raymond Moore, Trooper Harold George Philp, and Lieutenant Tom Windsor. The body of Lance Corporal George Gerald Pollard, captured on June 16–17 with Lieutenant Williams, has never been found.7 The Canadian Graves Concentration Unit identifed the bodies from their identity discs, and pathologists established causes of death by bullets shot into the base of the skull, multiple bullet wounds, or clubbing by a blunt object.8 The US Army captured Kurt Meyer in September 1944. When later located by military intelligence offcers, Meyer was in a prison camp for enlisted men, without his rank badges. the war crimes investigations Reports from French civilians and escaped prisoners concerning the 12th SS Panzer Division’s murderous conduct reached British and Canadian headquarters soon after the Normandy Invasion.9 General Dwight Eisenhower at Supreme Headquarters Allied Expeditionary Force (SHAEF) appointed ad hoc courts of inquiry to establish the facts. Initial fndings by these bodies suggested that the 12th SS Panzer Division had pursued a general policy of murdering prisoners. Accordingly, SHAEF established

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a permanent court of inquiry in August 1944 under a US army general, to which Lieutenant-Colonel Bruce Macdonald was named as a Canadian participant. Macdonald, a lawyer from Windsor, Ontario, had volunteered for service at the outbreak of the war, ultimately leading the Essex Scottish Regiment (from the Windsor region) in Normandy in July 1944. There, the 1st SS Panzer Division mauled the regiment, leading to its withdrawal, and Macdonald was reassigned to the SHAEF court of inquiry. The roving court commenced its inquiry into the 7 June massacres around Authie with site visits, interviews with escaped Canadian prisoners, and pathology reports. The SHAEF court of inquiry offcers frst interrogated Meyer in March 1945, before they had learned of the murders at the Abbaye. Under questioning that month at the prison compound from a sceptical Macdonald, Meyer denied any involvement in the murder of prisoners; indeed, he expressed shock at accusations that his division had been involved in such killings. He also denied making any order to kill prisoners. Afterwards, Macdonald told his commanding offcer that he believed senior offcers in the 12th SS Panzer were guilty of war crimes but that the evidence was insuffcient to secure a conviction. Meyer’s unit had committed atrocities, but the most that could be established was Meyer’s derivative responsibility as a commander (a basis for culpability that would discomfort some senior Canadian offcers later involved in the Meyer matter). Even so, Macdonald argued, further investigations were warranted.10 Indeed, days later, in April 1945, a Polish national of German ethnicity whom the Germans had pressed into Meyer’s 25th Panzer Grenadier Regiment – Jan Jesionek – told US Army guards at a prisoner of war camp about Meyer’s statements of 8 June 1944 on the treatment of prisoners. He also said he had witnessed the execution of the seven prisoners who had been marched to the Abbaye d’Ardenne that day. By chance, Macdonald and his British counterpart on the SHAEF court of inquiry learned of these statements. On visiting the Abbaye with a cooperative Jesionek in May 1945, the investigators learned of the unmarked graves that had recently been exhumed by the Canadian Graves Concentration Unit. The Polish prisoner’s evidence constituted direct evidence implicating Meyer. The SHAEF process then stalled as the Germans surrendered in May and the court of inquiry offcers were reassigned to other roles. Although most of the victims of the 12th SS Panzer Division were Canadians, it was unclear whether the Canadian Army would continue the investigations.

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Canada was, in fact, an indifferent participant in early war crimes processes. When invited, it did not join the United Nations War Crimes Commission (UNWCC), established by the United States and Britain in 1942 to investigate Axis war crimes.11 Marcel Cadieux, later the legal adviser at the Department of External Affairs and already an offcial in that department in 1943, reasoned that “we have a moral interest in seeing that rules of international law are respected and that this question is ably used as a political weapon, but clearly our policy should be one of moderation in both cases.”12 He observed that Canada was distant from the confict and that its chief focus should be on protecting its nationals and prisoners of war. Canada was not represented on the UNWCC until 1945 (even as Australia, New Zealand, and India became full members). However, the Mackenzie King government did convene a Canadian War Crimes Advisory Committee (CWCAC) in 1943 to focus on crimes against Canadian soldiers. The CWCAC included representatives from the offce of the Judge Advocate General (JAG) and the Justice Department, as well as John Read, the External Affairs Department’s legal adviser at the time. Read, though, was a war crimes trial sceptic who doubted that such investigations would amount to anything. He anticipated that “Canadian contact with the War Crimes problem will necessarily be slight,”13 and indeed, the CWCAC, with its narrow focus on acts committed against Canadians, did little upon its creation except make limited attempts to collect evidence. Offcial scepticism of war crimes proceedings continued to colour Canada’s approach, even after it fnally sent a representative to the UNWCC in 1945. At External Affairs, John Read advised Norman Robertson, the under-secretary of state, that the UNWCC was destined for failure and would share the fate of the fruitless post–First World War efforts to bring the German Kaiser to justice.14 However, armed with Jan Jesionek’s April 1945 revelations about Kurt Meyer and the events of 7–8 June 1944 at the Abbaye d’Ardenne, Bruce Macdonald pressed allies at Canadian Military Headquarters in London to create a Canadian war crimes investigation unit, to pick up where the SHAEF court of inquiry had left off. In May, he appealed directly to Canada’s high commissioner in the United Kingdom, Vincent Massey.15 Converted to this cause, Massey approved the creation of No. 1 Canadian War Crimes Investigation Unit, commanded by Bruce Macdonald and in place by June 1945.16 Massey reported to Ottawa that same month that Macdonald’s team had obtained evidence of Meyer’s personal involvement in war crimes. Meyer was, by that time, a British prisoner,

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and the British authorities hoped that a prompt trial would assist in cases against major war criminals.17 However, John Read and other offcials remained unpersuaded that the war crimes trials would amount to much, and progress toward a Meyer trial was soon consumed with debate about the means of holding such a proceeding. the comparative legal framework “War crimes” were part of international law by the time of the Second World War, although the feld of international criminal law and international humanitarian law had yet to undergo the thorough renovation begun with the Geneva Conventions of 1949. Those post-war instruments embedded individual culpability for grave breaches of their rules in international law – something that earlier laws of war had not done.18 Still, earlier instruments such as the Regulations annexed to the Hague Convention of 1907 forbade acts such as the killing or wounding of “an enemy who, having laid down his arms or having no longer means of defence, has surrendered at discretion”; or, declaring “that no quarter will be given.”19 Likewise, the Geneva Convention on Prisoners of War of 1929 stipulated that prisoners “shall at all times be humanely treated and protected, particularly against acts of violence ... Measures of reprisal against them are forbidden.”20 The British Manual of Military Law, followed also by Canada, spoke of “war crimes” as “such an act of enemy soldiers and enemy civilians as may be visited by punishment on capture of the offenders ... The most important violations are the following: killing of the wounded; refusal of quarter; maltreatment of dead bodies on the battlefeld; ill treatment of prisoners of war.”21 At the same time, by the time of the Second World War, discerning international jurists were objecting to the expression “war crimes,” with its suggestion of international criminal culpability.22 Instead, some spoke of criminal acts “contrary to the laws of war,” as incorporated into domestic law. If these criminal acts were going to be punished, it would be through criminal processes legislated in domestic laws. Jurists reasoned that belligerents could prosecute prisoners of war in their custody for these crimes contrary to the laws of war – although they also suggested that this entitlement expired upon the conclusion of a peace treaty.23 The British military law manual affrmed that “charges of war crimes may be dealt with by military courts or by such courts as the belligerent concerned may determine. In every case, however, there must be a trial before

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punishment and the utmost care must be taken to confne the punishment to the actual offender.”24 The Second World War crimes trials followed these expectations, but only in part. For one thing, the Allied states created unique and unprecedented international tribunals to try major war criminals. In the European Theatre, the International Military Tribunal (IMT) charged with trying major German war criminals at Nuremberg was constituted by treaty concluded between the United States, the United Kingdom, the Soviet Union, and France in August 1945.25 This treaty, and its attached “Charter of the International Military Tribunal,” defned the composition of its courts, its rules of procedure, and its substantive jurisdiction – one that extended not just to war crimes but also to the less-established concepts of “crimes against peace” and “crimes against humanity.” The IMT tried twenty-four major Nazi war criminals and six entities between 1945 and 1946. Another 185 individuals and three industrial organizations were arraigned for the same crimes before the IMT’s successor, the Nuremberg Military Tribunals, between 1946 and 1949.26 Several combatant nations followed the less novel path of creating national war crimes military tribunals under their own domestic laws to try cases against Nazi accused. Four Allied powers – the United States, the United Kingdom, Russia, and France – conducted German war crime trials in their zones of occupation in Germany as well as in several other European countries. The United States, for example, tried 1,672 individuals in US Army Courts for crimes at concentration camps, the killing of downed US airmen, and the massacre of US prisoners of war. The most famous example of the latter sort of trial was the prosecution of seventy-four SS soldiers in the “Malmedy Massacre Trial.”27 In an event reminiscent of the SS killings of Canadian soldiers in Normandy, SS troops machine-gunned eighty-four American soldiers captured by the advancing German army during the 1944 Battle of the Bulge. The US military tribunal convicted seventy-three accused in 1946 and sentenced forty-three of them to death. None of those so condemned, however, were executed – staff working for General Lucius Clay, the military governor in the US zone of occupation (Germany), reviewed the record, and the evidence was found to be insuffcient. Clay commuted thirty-one of the death sentences. His successor commuted the rest, and the Americans released the prisoners in 1956, following controversy over trickery and deceit in the manner in which investigators had collected evidence.28 As discussed below, doubts about evidence and preoccupations with the death penalty would also affect the Meyer proceeding.

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The British, for their part, held 329 military tribunal trials for 937 defendants in Germany between 1945 and 1949.29 The legal foundations for the British cases directly infuenced the Canadian approach and deserve full explanation. The British government constituted these tribunals under a “Royal warrant” – essentially an order signed by the king on the advice of the minister of war. This power stemmed from the Royal prerogative over defence, a historical residual power exercised by the executive, outside of any statutory framework. The Royal warrant authorized the British military to create military courts for trying war crimes, defned as violations of the “laws and usages of war.”30 It and its accompanying regulations instructed tribunals to “take judicial notice” of these laws and usages of war, without specifying precise elements of crimes, principles of culpability, or defences.31 A separate instrument – the British Army of the Rhine Administrative Instruction No. 104 – supplemented the warrant, and at least listed crimes, including the killing of wounded soldiers and the ill-treatment of prisoners of war.32 In practice, the tribunals followed a mix of international, British military, and English criminal law. In their judgments, the tribunals referred to international treaties such as the Geneva Conventions of 1929, the Fourth and Tenth Hague Conventions of 1907, and customary international law, as well as the British Manual of Military Law. The case law of other jurisdictions fgured in decisions, as did the writings of leading international jurists.33 The Regulations for the Trial of War Criminals attached to the Royal warrant established procedural rules, including expectations that each tribunal would comprise at least three judges (in practice, senior military offcers) who were competent to impose the death penalty and that a common law adversarial process would be followed. A “confrming offcer” would confrm any guilty verdicts and sentences, after assessing a separate report on the trial by an offcer in the JAG’s offce.34 The model for these UK military tribunals was “Field General CourtsMartial,” which was used for British soldiers in overseas service, and the war crimes tribunal incorporated the laws applicable to these courts martial except as otherwise provided. While in practice this law constituted a mix of British military law and English criminal law, the war crimes regulations relaxed the rules of evidence compared to those used in civilian or other military proceedings. Of particular note: any oral statement or document that appeared on its face to be of assistance in proving or disproving charges could be used as evidence, even if inadmissible in actual Field General Courts Martial.35

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the canadian legal framework Canadians were familiar with the British courts martial system. Indeed, Canada (unlike Australia) applied British military law to its expeditionary land forces, and in the First World War, Canada ceded control of the courts martial process for Canadian soldiers to the British.36 In the Second World War, Canada continued to apply British military law – especially the UK’s Army Act and its rules of procedure – to its courts martial. The difference was that these trials were convened by Canadian (not British) military authorities – specifcally, the senior offcer at Canadian Military Headquarters in London.37 The Canadian military’s preferred disciplinary tribunal in continental Europe during the Second World War was the Field General Courts Martial.38 One Canadian soldier was executed after such a proceeding.39 Canada’s belated assumption of jurisdiction in court martial proceedings over its own soldiers in the Second World War coloured its approach to war crimes proceedings. Once they decided to proceed, the Canadians were determined, as an exercise of sovereignty, to run separate war crimes trials instead of folding their process into that of the United Kingdom,40 although this idea had been suggested by the UK Attorney General.41 However, the Canadians modelled their war crimes trial regulations on those of the United Kingdom, with one notable exception: the Royal warrant authorization.42 Canadian offcials made inquiries of the British about the legal basis for the British war crimes courts,43 and ultimately doubted that the governor general possessed the same legal authority as the king to issue a Royal warrant. The closest analogous practice in Canada was orders-in-council issued by the governor-in-council under the authority of the War Measures Act of 1914 (WMA).44 That statute extended to the governor-in-council a nearly open-ended competency to issue law through orders and regulations for “security, defence, order and welfare of Canada” in times of war, invasion, or insurrection. But the same Act limited penalties for its violation (or violation of regulations created under it) to fve years’ imprisonment – a sentence well short of the possible death sentence anticipated in the military law manual. Time pressed – offcials did not wish to delay until the next session of Parliament or to wait on a Supreme Court of Canada reference posing a query about the legality of the process.45 They decided to rely on British precedent and proceed with an order-in-council issued by the governor general under the Royal prerogative. This decision, however, created

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unease at the Department of Justice and in cabinet, and in the end, the governor-in-council order would rely upon the authority of the WMA.46 This approach occasioned a delay in the Meyer trial, as the government’s lawyers contemplated the mismatch between the maximum penalty under the Act and the one anticipated in the war crimes regulations drafted to govern the trials.47 Ultimately, the government’s law offcers (reportedly at a ratio of three to one)48 concluded that the WMA’s penalties could not restrict the powers of a military tribunal to impose stiffer sentences allowed by international law, including death.49 They reasoned: “A war crime is an offence, not by virtue of the PC [Privy Council] Order, but by virtue of the law and usages of war.”50 The regulations did not establish those war crimes – they existed already in international law, which also permitted a penalty of death. Thus, in the War Crimes Regulations, “the Governor in Council is not providing a penalty for a breach of Orders and Regulations made under the [War Measures] Act and is, therefore, not subject to the restrictions [in that Act] in respect to penalties for breaches of the Orders and Regulations made under the Act.”51 There was considerable inelegance in regulations permitting the death penalty, enacted as an order under a statute that permitted a maximum penalty of fve years. Parliament rectifed this confused legal foundation for military tribunals in 1946 with the promulgation of the War Crimes Act.52 This enactment followed the Meyer trial, but in another step that would colour the Meyer case, the 1946 Act applied retrospectively from 30 August 1945, and “everything purporting to have been done heretofore pursuant to” the war crimes regulations “shall be deemed to have been done pursuant to this Act.”53 Under the War Crimes Regulations governing Meyer’s trial, a “war crime” was a “violation of the law or usages of war committed during any war in which Canada” had engaged since September 1939.54 Senior Canadian offcers could, upon certifcation by the Judge Advocate General, convene a military tribunal,55 applying procedures based on the Field General Courts Martial applicable to Canadian soldiers on active service.56 The presiding judges were to be two to six offcers and a president, generally to be of equal or superior rank to the accused. One of these offcers was to be legally qualifed or, as an alternative, the convening offcer was to appoint a Judge Advocate to advise the court on substantive and procedural law.57 This legal offcer would summarize (impartially) the evidence after the trial, and while the advice provided was not binding, it carried considerable weight.

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If the panel were to impose the death penalty, it had to do so through a unanimous vote where three or fewer members presided, or a two thirds vote on larger panels.58 The accused could fle a petition challenging a fnding or a verdict with the “convening offcer,” and that petition was to be assessed by the Judge Advocate General.59 The outcome of this appeal was binding, but the senior combatant offcer in the theatre in which the trial took place could reduce or commute a sentence.60 The regulations provided rules of evidence drawn from the “Law of England.”61 However, they also included several bespoke evidentiary standards. The regular laws of evidence were “subject to the overriding presumptions” in the regulations, as well as to standards doing away with “the usual restrictive rules of relevancy and inadmissibility.”62 Out-of-court witness statements – as recorded, for instance, by SHAEF courts of inquiry – could constitute evidence at trial.63 This standard overrode traditional concepts of hearsay evidence.64 The court then would decide what weight to give to this evidence.65 As Macdonald explained, these rules ensured that “where such witnesses were dead, unable to attend the trial, or where it was impractical for them to do so, their interrogations or statements could be received into evidence.” Without these provisions, Macdonald later urged, “it would in many cases be completely futile to attempt to convict admitted war criminals and the guilty would escape just retribution.”66 The regulations also prescribed presumptions, tied to expectations about military organization and designed to assign responsibility to the directing superiors behind war crimes, not just those who pulled triggers. Thus, section 10(3) presumed prima facie joint culpability where the war crimes stemmed from concerted action by a unit. Under section 10(4), the tribunal could treat evidence of multiple war crimes by a unit under the same commander as prima facie evidence of that commander’s responsibility for the crimes. This provision was of obvious signifcance in the Meyer proceeding, given that the same unit had allegedly committed the crimes with which he would be charged.67 Likewise, evidence of similar acts committed by the same unit under the same commander could be admissible under this provision, something not generally permissible under the regular rules of evidence.68 Finally, section 10(5) provided that where perpetrators committed a crime while a superior was present, or soon thereafter, this too was prima facie evidence of that superior’s responsibility.69 Given Polish prisoner Jan Jesionek’s evidence concerning Meyer’s presence at the Abbaye on 8 June, this presumption seemed likely to also bear on the Meyer matter.

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the meyer trial Investigators interrogated Kurt Meyer nine times prior to his trial. Initially, he continued to deny any knowledge of the murders in Normandy, although he eventually admitted to killing prisoners on the Eastern Front.70 In October 1945, however, as prosecutors prepared his charge sheet, he altered his position. He stated that on 10 and 11 June 1944, two of his offcers had reported the discovery of unburied bodies of Canadian soldiers in the Abbaye area. Reportedly surprised at this discovery, Meyer inspected the site and found that eighteen or nineteen Canadians had been shot in the head. Meyer claimed to have reported this fnding to his superior (later killed) and to have ordered an investigation. Upon assuming command of the 12th SS Panzer Division soon after, Meyer supposedly issued orders to his commanders designed to ensure that such an incident would not recur.71 Macdonald and the prosecution team were unable to corroborate Meyer’s claims.72 His confession did, however, remove doubt as to whether the Germans had executed the Canadians at the Abbaye. The remaining issue for trial was Meyer’s responsibility, as the unit commander. His two charge sheets accused him of multiple war crimes. Ultimately, his trial turned on fve charges found in the frst charge sheet: • First charge: Counselling his troops prior to the Allied invasion of Normandy to deny quarter to Allied soldiers. • Second charge: Responsibility as the unit commander for the 25th SS Panzer Grenadier Regiment’s murder of twenty-three Canadian prisoners near Authie and Buron, Normandy, on 7 June 1944. • Third charge: Ordering his troops to kill seven Canadian prisoners at the Abbaye d’Ardenne on 8 June 1944. • Fourth charge (in alternative to the third charge): Responsibility as unit commander for the 25th SS Panzer Grenadier Regiment’s murder of seven Canadian prisoners at the Abbaye d’Ardenne on 8 June 1944. • Fifth charge: Responsibility as unit commander for the 25th SS Panzer Grenadier Regiment’s murder of eleven Canadian prisoners at the Abbaye d’Ardenne on 7 June 1944.73 Meyer was not charged with the murders of Lieutenant Williams and Lance Corporal Pollard, killed at the Abbaye on 17 June 1944. However, in the trial itself, the prosecution would point repeatedly to these killings to establish a pattern in Meyer’s unit.

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Meyer’s trial on these charges was precedent-setting for several reasons. Meyer was the frst (and highest-ranking) soldier charged with war crimes against Canadians. As Macdonald later described the trial, it was also the “frst occasion in the prosecution of war criminals in Europe where an effort would be made to establish immediate responsibility of a high-ranking offcer for crimes committed on his order, and also his vicarious responsibility for the commission of such crimes by troops under his command but where he had given no direct order for doing so.”74 The minister of national defence announced the trial in the House of Commons on 31 October 1945.75 Major General Chris Vokes, heading the Canadian Army Occupation Force, was the convening offcer and ordered that the trial take place at Aurich, Germany, in the German Naval Barracks, then occupied by the Royal Winnipeg Rifes. Vokes was an experienced battle commander who had commanded the Canadian army divisions in the Italian campaign (including at the brutal Ortona battle) and then through northern Germany. His leadership was not, however, without controversy. In 1945, he had ordered the buildings of a German town levelled upon hearing reports (which turned out to be false) that a civilian had shot in the back a Canadian battalion commander.76 As described below, Vokes’s seeming impatience with punctilious observance of the laws of war may have played a part in his subsequent role in the Meyer matter. Once convened, the Meyer court comprised one major general, W.H. Forster, and four brigadier generals: Ian Johnston, H.A. Sparling, J.A. Roberts, and H.P. Bell-Irving. All of these men were respected commanders, and Johnston was a lawyer in civilian life. Vokes also appointed a judge advocate, Lieutenant-Colonel W.B. Bredin, to assist the panel.77 Described by Macdonald as “a careful, scholarly, sound lawyer and impartial in his approach to his duties,”78 Bredin had been active in the JAG offce throughout the war preparing “a guide for presidents at courts martial” and delivering “lectures on summaries of evidence, preparation of trial, duties of prosecuting and defending offcers,” and other aspects of courts martial for senior and junior offcers.79 As already noted, the JAG offcer’s offcial role in the proceeding was to provide impartial advice to the court on legal rules.80 Macdonald prosecuted the case, in association with Lieutenant-Colonel Clarence Campbell and Major Dalton Dean. Both men were Rhodes scholars. Dean was an experienced prosecutor from the JAG while Campbell had been working with Macdonald’s war crimes unit almost from its beginning.

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Kurt Meyer before a military tribunal in Aurich, Germany, on war crime charges, December 1945. Public Domain (Royal Army, UK, collection)

Initially, Meyer struggled to retain a defence lawyer. A Canadian offcer initially approached by Macdonald to act for Meyer declined, saying he wanted nothing to do with the German.81 Finally, Lieutenant-Colonel Maurice Andrew and Captain F. Plourde agreed to act for Meyer.82 Andrew was himself a combat commander who had fought in Italy and northwest Europe. He was also an experienced trial lawyer, one who (Macdonald later wrote) “devoted himself energetically to his preparations in a thorough and competent manner.”83 In his later assessment, historian Patrick Brode concluded that Andrew and his co-counsel, Plourde, mounted a vigorous defence, and Andrew came to believe his client had not ordered the executions.84 The trial commenced on 10 December 1945. Bruce Macdonald opened his case with an overview of governing principles in the laws of war,

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and accused Meyer of responsibility for the charged crimes, directly or through “wilful or criminal negligence and failure ... to perform his duties as commander.”85 Macdonald drew the court’s attention to the presumptions in section 10 of the War Crimes Regulations. Meyer’s vicarious responsibility – core to charges two, four, and fve – could be based, frstly, on a known course of conduct and expressed attribute of mind ... ; secondly, upon his failure to exercise that measure of disciplinary control over his offcers and men which it is the duty of offcers commanding troops to exercise; and, thirdly, on a rule of evidence applicable in these cases, which in effect says that, upon proof of certain facts, the accused may be convicted, if he does not offer an explanation to the court suffcient to raise in their minds a reasonable doubt of his guilt.”86

The prosecution called thirty witnesses, and relied as well on pre-trial statements, affdavits, and SHAEF court of inquiry materials. That evidence may be summarized largely by the charge at which it was directed: • First charge: The prosecution presented evidence from former SS soldiers in the 25th SS Panzer Grenadier Regiment of secret orders, tied to Meyer, for the shooting of prisoners following interrogation. • Second charge: The prosecution presented evidence mostly from Canadian soldiers taken prisoner around Authie on 6 and 7 June and French civilians. This evidence addressed the shooting of Canadian soldiers near the time of their capture in the early fighting in Normandy. • Third to Fifth Charges: The prosecutors provided evidence from local French residents, the Grave Concentration Units, and Army pathologists concerning eighteen of the murders at the Abbaye d’Ardenne. Jan Jesionek, the Polish member of Meyer’s unit, provided his account of Meyer’s comments at the Abbaye on 8 June 1944 about not taking prisoners, as well as his eyewitness account of the execution of seven Canadian prisoners that day. Meyer, in his defence, denied again that he had ordered prisoners to be shot, repeating his story about only learning on 10 June that unburied bodies of executed men were on the Abbaye grounds – a claim the prosecution then rebutted with French witnesses who had visited the Abbaye between 8 and 10 June and seen no exposed bodies or, indeed, obvious signs of violence or grave sites. Several defence witnesses from the 12th SS Panzer

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Division denied receiving orders to kill prisoners and noted that other German units were operating in the region. These other troops, the defence contended, could have been responsible for the killings around Authie. Moreover, many Canadian prisoners had been well-treated, and in some cases, German offcers had interceded to ensure their proper treatment – conduct that belied the idea that Meyer had ordered prisoners shot. Defence counsel also impugned Jesionek’s testimony concerning events at the Abbaye. Jesionek’s initial statement to his US Army guards had been poorly translated; in addition, it had been interrupted when an American sergeant entered the room and declared that all SS soldiers would be executed, fustering the prisoner. The defence attacked the Polish witness’s credibility, pointing to inconsistencies in details offered in his prior statement. Nor could Jesionek’s testimony be reconciled with that of the French civilian who had seen no indications of bloodshed or graves in the period between 8 to 10 June. Moreover, the seven victims in the 8 June killing were in German military police custody, which suggests that Meyer was not responsible for their subsequent treatment. On reply, Macdonald disputed the defence’s view of Jesionek, pointing to the circumstances in which his initial prison statements had been taken and underscoring the credibility of the detailed and precise evidence he had provided to the court itself. Moreover, the prosecution repeated that it was Meyer’s own credibility that was in question – the German had claimed to have learned of bodies lying on the Abbaye grounds as of 10 June, but not before. Yet the French witnesses had testifed that the bodies were not visible by that time. Meyer’s story did not line up. At the trial’s conclusion at the end of December 1945, the JAG offcer, Lt-Col. Bredin, summarized the considerations before the court. He emphasized the importance of the evidentiary presumptions in section 10 of the War Crime Regulations. These presumptions negated any need for the prosecution to demonstrate for the second, fourth, and ffth charges that Meyer had issued any actual orders to kill prisoners or acquiesced in this conduct. But presumptions could be rebutted. The key question was, therefore, whether the facts were enough to suggest responsibility by the commander: All the facts and circumstances must ... be considered to determine whether the accused was in fact responsible for the killing of prisoners ... The rank of the accused, the duties and responsibilities of the accused by virtue of the command he held, the training of the men under his command, their age and experience, anything relating to the question of whether the accused either ordered, encouraged or ver-

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bally or tacitly acquiesced in the killing of prisoners, or wilfully failed in his duty as a military commander to prevent, or to take such action in the circumstances required to endeavour to prevent, the killing or pioneers, are matters affecting the question of the accused’s responsibility.87

The court’s members retired on 27 December and, after deliberating for three hours, returned a guilty verdict on the frst charge (counselling his troops prior to the Allied invasion of Normandy to deny quarter to Allied soldiers), the fourth charge (responsibility as unit commander for the 25th SS Panzer Grenadier Regiment’s murder of seven Canadian prisoners at the Abbaye d’Ardenne on 8 June 1944), and the ffth charge (responsibility as unit commander for the 25th SS Panzer Grenadier Regiment’s murder of eleven Canadian prisoners at the Abbaye d’Ardenne on 7 June 1944). The court rendered a verdict of not guilty on the second charge (responsibility as the unit commander for the 25th SS Panzer Grenadier Regiment’s murder of twenty-three Canadian prisoners near Authie and Buron, Normandy, on 7 June 1944) and the third charge (ordering his troops to kill seven Canadian prisoners at the Abbaye d’Ardenne on 8 June 1944). The court provided no written reasons. However, Macdonald later offered his assessment of the outcome: the failure to convict on the second charge meant the court had not been persuaded that Meyer was responsible for the killings near Authie, even if the presumptions in the regulations permitted this imputation. On the other hand, “to have convicted on the frst charge the Court must have accepted the evidence of the various German witnesses and the circumstantial supporting evidence” on Meyer’s pre-invasion orders concerning prisoners.88 Likewise, to have convicted on the fourth charge they must have believed Jesionek’s evidence as to Meyer’s part in the disposition of the seven prisoners [killed on 8 June], and considered the effect of his angry words and orders for the future upon those who heard them and then openly acted upon them, and/or have accepted the application of the Regulations because of the presence of his adjutant ... and the corporal who executed the prisoners, and in all the circumstances to have disbelieved or rejected Meyer’s evidence in explanation.

Finally, “to have convicted on the ffth charge they must have applied similar reasoning to that on the fourth, relying here, however, more upon the Regulations and what had been established in respect to the frst and fourth charges.”89

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In his own assessment of the case decades later, Brode called the verdict “unusual and inconsistent.”90 Relying on subsequent reminiscences from tribunal members, Brode reports that Johnston and Sparling considered Meyer guilty on all counts while Roberts and Bell-Irving favoured leniency. Bell-Irving later explained he had misgivings about the entire trial, because Canadian troops “at various times were guilty of similar conduct. Whenever it happened we looked the other way.”91 Indeed, even at that time, anecdotal reports (never fully investigated) of Canadian soldiers killing German prisoners during the Normandy campaign circulated within the military.92 All members of the tribunal concluded Meyer had exhorted his men to kill prisoners. The panel divided, however, on Meyer’s responsibility for the killings at Authie and Buron (second charge), and Foster broke the tie in favour of acquittal.93 Foster also doubted Meyer had personally ordered the killings at the Abbaye on 8 June (third charge), despite Jesionek’s evidence. Along with Roberts and Bell-Irving, he voted to acquit. Yet Foster also concluded that Meyer must have known what was happening at the Abbaye – and that knowledge was enough in Foster’s view of war crimes to make Meyer guilty. As Brode notes, Foster’s conception of derivative culpability contradicted the more nuanced approach to command responsibility articulated by the JAG offcer, Bredin, just prior to the verdict.94 Foster’s approach was seemingly enough to tip the panel’s balance to conviction on the fourth and ffth charges – responsibility as unit commander for the murders at the Abbaye. On 28 December 1945, the court heard evidence of Meyer’s good character and professional credentials. Upon the conclusion of this testimony, the court returned its sentence of death after deliberating for twenty-fve minutes.95 In their later accounts, Foster and Bell-Irving both expressed sympathy for Meyer and his responsibility for commanding unseasoned troops. However, they appeared to believe (wrongly) that, having found the German guilty on several counts, the only permissible sentence was death. In fact, section 11 of the War Crimes Regulations anticipated a range of sentences, and imprisonment for life was one possibility. As Brode observes, “having convicted Meyer of the lesser offence of silently condoning the murders instead of actually ordering them, a prison sentence was (as even prosecutor Macdonald thought) a likely punishment. The generals did not seem to expend much effort trying to match the severity of the offence with the right sentence.”96

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post-trial controversy This verdict, and unease with it, would colour events soon after. As required by the regulations, the tribunal’s convening offcer, Major-General Vokes, and Judge Advocate General Reginald Orde reviewed the fndings and verdict. Meyer, meanwhile, fled an appeal petition with Vokes. Orde was a First World War veteran and the son of a prominent Ontario lawyer and judge. He would serve for three decades as Canada’s longest serving JAG, involved in a full range of military legal issues. In the Second World War, those tasks including serving on the Canadian War Crimes Advisory Committee, discussed earlier, and attending the Meyer trial.97 On review of that trial’s outcome, he concluded that the court had conducted the proceedings in a regular manner and recommended confrmation. General Vokes then denied Meyer’s petition, reasoning he “could not see his way clear to mitigate the punishment awarded by the Court.”98 He confrmed the fndings and the sentence of death. The Canadian military began organizing Meyer’s execution.99 That execution was, however, delayed, on Vokes’s orders.100 Under the regulations, the senior combatant commander in the theatre could review a sentence. After bureaucratic deliberation, the JAG concluded the combatant commander was General Vokes himself. By this point, however, Vokes was becoming increasingly discomfted by the death sentence in the Meyer matter. By 5 January, he had concluded that the degree of guilt on the three charges did not warrant the extreme penalty. Moreover, by his own description, he was “infuenced to some extent by the fact that sentence of death in this case would set a precedent, whereby a commander in the feld could be held responsible with his life for the acts of his subordinates”101 – an unsurprising hesitation from a battlefeld campaigner whose own record of compliance with the laws of war was not entirely fastidious. As Vokes reasoned, while a commander was responsible for his troops, his responsibility was vicarious, absent a direct order. This vicarious responsibility did not justify the death penalty. Like a majority of the tribunal panel, Vokes was not persuaded that Meyer had issued any order. He went one step further, however, in also doubting whether Meyer knew the executions were taking place – in Vokes words, it was not “proved in evidence, to my satisfaction, that he knew that the executions recorded in the charges were taking place,”102 This was a surprising conclusion on the evidence before the tribunal, as well as a reversal of the conclusion reached by Foster and (presumably) his colleagues on the tribunal.

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Vokes met with High Commissioner Vincent Massey, External Affairs legal adviser John Reid, and JAG Orde in London. There, he contended that the case was “the frst one of its kind which had arisen involving responsibility of the commander of a formation for war crimes committed by men under his command where the commander had not given any direct order and had not actively participated in the commission of such crimes.” Meyer had been “acquitted of the one charge specifcally alleging that he had ordered the shooting of Canadian prisoners”103 – an observation giving short shrift to the guilty fnding in the frst charge. Vokes also “drew attention to the effect it [the verdict] might have on superior commanders in any future war.”104 He also noted that the commander of the British occupation army had raised with him the issue of commutation, given that “German political and other implications are involved which may have material effect on the future.”105 Vokes’s views swayed the Canadian offcials in London. Their unanimous opinion was that a death sentence imposed on a commander for the acts of subordinates should be tied closely to the commander’s degree of accountability. A death penalty was only warranted where “the offence was conclusively shown to have resulted either from the direct act of the commander or by his omission to act when he knew that if he did not act a war crime would be committed.”106 After consultation with these Canadian offcials in London, Vokes commuted Meyer’s sentence to life imprisonment on 13 January 1946. He later explained that he did not regard Meyer’s degree of responsibility as warranting the death penalty.107 An offcial statement approved by Cabinet explained: The Canadian military court did not fnd that Meyer personally had ordered or authorized the killing of the prisoners. What is not generally appreciated is that in fact the court had expressly found him not guilty of issuing any orders for such shooting. In view of this, the reviewing offcer found that there had not been that degree of complicity which could be regarded as justifying a death sentence under the laws and usages of war.108

Again, this reasoning ignored the guilty verdict on charge one (Meyer counselling his troops prior to the Allied invasion of Normandy to deny quarter to Allied soldiers). Vokes’s commutation decision ignited outrage in Canada and fuelled a public and political controversy. Protest resolutions emanated from branches of the Canadian Legion, Toronto City Council, and other civic

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authorities, while newspaper editorial boards penned “indignant” editorials.109 The government sought to dampen discussion of the matter and was quick to emphasize that the decision had been Vokes’s alone, and not that of the Mackenzie King government.110 The consternation festered as the Canadian military transferred Meyer to Dorchester Penitentiary in New Brunswick to serve his life sentence. Thereafter, however, critics of the war crime trial process took up Meyer’s cause. In 1950, war correspondent Ralph Allen, writing in Maclean’s, excoriated the trial leading to Meyer’s incarceration, calling it unfair. Among other things, Allen objected to the evidentiary presumptions in section 10 of the War Crimes Regulations, describing them (unfairly) as reversing the presumption of innocence.111 That same year, a German Canadian émigré (and Nazi sympathizer) retained legal assistance for Meyer from H.P. MacKeen, a Halifax lawyer,112 veteran of both world wars, and, later in life, the twenty-third Lieutenant Governor of Nova Scotia. With assistance from MacKeen, Meyer petitioned the Department of Justice for clemency, contending that the War Crimes Regulations were unlawful given that the penalties imposed on him exceeded those permissible under the WMA – the original statutory basis for the regulations. The renewal of these regulations in the 1946 War Crimes Act retroactively legalized an illegal criminal process, something he argued was unprecedented in Canadian and British practice.113 Incongruously, in return for clemency, Meyer offered to serve in the Canadian or United Nations forces.114 MacKeen repeated these arguments in a supplemental legal memorandum.115 That submission also argued that the WMA, under which the War Crimes Regulations had been promulgated, did not extend extraterritorially, and that the trial had been illegally convened. In addition to questioning the legal basis for the court’s jurisdiction, MacKeen raised procedural and evidentiary concerns. He argued that section 10’s negation of the hearsay rule had been abused during the trial – the prosecutor had relied on evidence from twenty-four witnesses who never appeared and could not be cross-examined. Evidence was never offered that these witnesses were dead or otherwise unavailable. Furthermore, the presumptions of prima facie responsibility for war crimes created by section 10 constituted a reverse onus of proof, thus violating the principle that the Crown prove every element of the offence.116 In addition to raising these due process concerns, MacKeen attacked the very concept of command responsibility in the Meyer case, arguing that “if the Court accepted the concept of command criminal responsibility as it appears to have done and if that is the concept envisaged in the Regulations, we are

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forced to the shocking conclusion that Meyer was convicted not because he had done something he should not have done or failed to do something he could have done, but simply because he was somebody.”117 MacKeen also noted that similar standards had not been applied to Canadian commanders whose troops had committed crimes of violence during and after the war.118 These claims found an audience in senior government circles. Lieutenant-General Guy Simonds, then chief of the general staff, considered the evidence against Meyer inconclusive and contrary to “Canadian concepts of justice.”119 After cabinet-level deliberation, the government decided to transfer Meyer quietly to Germany to serve the rest of his sentence in a British-administered German prison. This move, done almost covertly, reignited political controversy over Meyer’s fate. Further indignation followed when a Canadian reporter discovered Meyer at his home in 1951, on administrative leave from his German prison.120 By this time, the post-war preoccupation with punishing German war criminals had crested, replaced with new diplomatic priorities in Canada’s relationship with West Germany. A British–German reviewing authority that had been constituted in response to this diplomatic context decided, with the consent of the Canadian government, to reduce Meyer’s sentence to fourteen years.121 Ultimately, authorities released Meyer in September 1954, to a torchlight parade in his hometown.122 aftermath Meyer’s death penalty commutation helped stall whatever momentum existed for Canadian war crimes trials. Writing in 1949 to then minister of national defence, Brooke Claxton, Macdonald’s co-counsel at the Meyer trial, Clarence Campbell, observed that the commutation order “was such a surprise and a shock to those responsible for the investigation and prosecution of war crimes against Canadian personnel that it resulted in the virtual termination of proceedings in the European theatre, so far as Canadians were concerned, and the circumstances under which the order of commutation was made were such as to give support to the view that the order had nothing to do with the merits of the case at all.”123 In his later memoirs, Macdonald too questioned the commutation, describing it as “discouraging to all of us who has laboured so arduously over a long period in the feld of war crimes. It seemed futile to continue.”124

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The record supports Macdonald’s and Campbell’s reminiscences. At No. 1 Canadian War Crimes Investigation Unit in 1946, the Meyer commutation clearly disheartened Bruce Macdonald. By January 1946, the unit had conducted 130 investigations of war crimes against Canadians. In Macdonald’s accounting, two investigations – the Authie and Abbaye murders, dealt with in the Meyer case – had been resolved by trial. The unit was still investigating ffty-four other cases, having closed sixty-two, and would defer another twelve. Investigators concluded that in total, German soldiers and civilians had killed at least 293 Canadians, and mistreated 384, in at least 111 separate incidents.125 But the end for Canadian war crimes prosecutions was near. In reviewing the unit’s ongoing work several weeks later in a letter to the Canadian Military Headquarters in London, Macdonald recommended that a “great many” ongoing cases be rolled up. In so opining, he “necessarily had in mind the effect of the remission of sentence in the Meyer case” and the standard for the death penalty it established. In most of the outstanding cases implicating the 12th SS Panzer Division, the evidence did not establish the identity of the perpetrator or commander responsible and was no better than the evidence at issue in the Meyer matter. At best, the unit could prove that “undoubted and open brutal murders occurred in units at the time serving under the command of certain offcers, and that a certain pattern of behavior prevailed throughout the Division. Having regard, however, to the remission of sentence in the Meyer case, it would seem unlikely that a death sentence can be anticipated, even if a conviction could be obtained against these commanders.”126 Macdonald noted that the court had convicted Meyer of counselling his troops to give no quarter in the period before the Normandy Invasion. “Further incitement” was established when, at the Abbaye on 8 June 1944, Meyer stated that “no prisoners would be taken,” after which his subordinates interrogated and shot seven Canadians within 100 metres of Meyer’s headquarters. Moreover, the evidence showed that this was only one of several killings at that headquarters. “If this evidence,” reasoned Macdonald, “in the opinion of senior experienced combat commanders, who know the chain of command and how things are done in any army, is insuffcient to establish ... ‘the offence ... resulted either from the direct act of the commander or by his omission to act when he knew that if he did not act a war crime would be committed,’ then it will only be in the rare case against the most indiscreet and rash commander that the death penalty be hoped for.”127

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Macdonald made this case to the Canadian military headquarters, not to question the test adopted by the senior offcials but rather “to indicate the effect of the decision ... on the work of this unit, and the virtual impossibility on such evidence as may ever be available to us, of getting a conviction and satisfactory sentence, against German commanders basically responsible for the conduct of their troops in the feld.”128 The unit’s remaining viable cases – as many as fve – involved killings by civilians, minor offcials, or private soldiers or non-commissioned offcers. While the British and Americans were prosecuting these types of cases, Macdonald wondered whether it was worth bothering to prosecute them, given a “defence might be raised of superior orders ... so that it would be diffcult to invoke the death penalty.” Most of these cases involved RCAF fiers killed after being downed over Germany, and the RCAF might have an interest in pressing on. In Macdonald’s estimate, prosecution was worthwhile where there was a good prospect of obtaining the death penalty. Otherwise, Macdonald proposed that cases should be closed and that he himself be repatriated.129 Macdonald had been the engine driving the Canadian experiment with war crimes trials, and he was now anxious to return to Canada. His disillusionment with the Meyer outcome seems, however, overstated. While awaiting the verdict, he himself had written that a life sentence was a possible outcome – and as noted earlier, it would likely have been more consistent with the tribunal judge’s understanding of the evidence.130 Furthermore, Macdonald’s doubts about the worth of additional prosecutions of senior German offcers rings hollow, given that, even on the theory of responsibility adopted by Vokes, Meyer stood convicted. The larger problem, however, was the absence of any senior German offcers in custody pending trial. The Canadian War Crimes Investigation Unit stayed open for several more months, and Canadian military courts tried six more Germans for war crimes in March and April 1946. All were low-level soldiers or civilians, in these cases accused and convicted of murdering RCAF airmen.131 While the British would continue to prosecute Germans implicated in the murder of Canadian airmen,132 and Japanese offcers were prosecuted in British tribunals for war crimes against Canadian soldiers in the Pacifc Theatre, these 1946 cases marked the end of Canada’s own war crimes trial experience in Europe.133 The military disbanded No. 1 Canadian War Crimes Investigation Unit in May 1946,134 and Macdonald transferred the unit’s remaining fles on the 12th SS Panzer Division to the British Judge Advocate General.135 The controversy over the Meyer case and Macdonald’s glum change of heart

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may have further jaundiced opinion, but the immediate cause for the unit’s demise probably lies in the scepticism of Macdonald’s immediate superior, Brigadier W.H.S. Macklin, who was pressing to wind down Canada’s war crimes trial experiment even before the Meyer trial. He was querying in advancing his case with Ottawa whether its benefts justifed its costs. His motives are obscure, but it might have mattered to National Defence Headquarters that Canadians were anxious to pull out of Europe136 and were generally in a very different situation from their allies, who had taken on a more enduring role in occupying Germany. Britain continued its war crimes prosecutions, albeit for only another three years, until Cold War preoccupations prompted new sensitivities about German public opinion.137 Canadian cases were not, however, a priority.138 During this period, the British conducted one trial of SS soldiers implicated in the murder of three Canadian prisoners in Normandy, in an execution at Le Mesnil-Patry. Two SS soldiers – one who had fred a coup de grace into each of the machine-gunned Canadians, and another who had issued the order – were convicted and executed in 1949. These were among the last military executions of the Second World War.139 Administrative mishap or indifference meant, however, that a more senior and suspect German perpetrator went free. The case of SS Lieutenant-Colonel Wilhelm Mohnke, commander of the 26th Panzer Grenadier Regiment in the 12th SS Panzer Division, constituted probably the most galling leftover from the Canadian war crimes trial experiment. On 8 June 1944, SS soldiers machine-gunned forty Canadian prisoners in a feld near Fontenay-le-Pesnil, Normandy, killing thirty-fve. These murders followed an intercession by an angry SS offcer. Considerable circumstantial evidence suggested this offcer was Wilhelm Mohnke and that he had issued orders that the prisoners be killed. Additional evidence implicated Mohnke in the murder of several other Canadians, including the three men at Le Mesnil-Patry.140 Mohnke was the sole senior offcer on Macdonald’s list of viable prosecutions as provided in his memorandum of January 1946. However, an administrative mistake – an erroneous repatriation of a chief witness against Mohnke into the Russian-controlled occupation zone – ended any possible prosecution, even if investigators had been able to take Mohnke into custody.141 Mohnke himself was in Russian hands. The Russians released him in 1955, long after war crimes trials had ended. Belatedly, and under pressure from Britain and Canada in the late 1980s, the West Germans investigated Mohnke’s role in the 1944 Normandy murders but closed the fle for lack of reliable evidence in 1994.142 He died in 2001.

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The record of prosecutions for the murder of 156 Canadian prisoners of war by the 12th SS Panzer Division in the period just following D-Day in June 1944 is, therefore, an underwhelming one. Only two trials were held – that of Meyer and the later British proceeding stemming from the murders of the three soldiers at Le Mesnil-Patry. War crimes courts convicted only three men for the murder of only 21 of the 156 victims. postscript The Kurt Meyer case is well-known among students of Canadian military history but seems mostly forgotten outside these circles. Yet it has modern echoes. Some of the challenges bedevilling the Meyer trial recur. Canada now has a frm statutory framework for prosecuting war criminals.143 But its record of actual prosecutions remains spotty.144 The basic evidentiary challenges of proving conduct on a battlefeld have not gone away, as illustrated by debates concerning the prosecution of Canadians captured fghting for ISIS in Syria and Iraq. In practice, however, it is hard to imagine a modern repeat of the Meyer trial. By the standards of the day, the Meyer proceeding was a fair one. As Brode argues persuasively, “Meyer’s investigation and trial was, even as he admitted, scrupulously fair.”145 This was especially true as compared to the American war crimes trial for the perpetrators of the massacre at Malmedy (described earlier), which relied on tainted evidence obtained through mock trials and maltreatment. Still, from detention to verdict, the Meyer matter was completed during wartime conditions in less than sixteen months – lightning speed by current Canadian criminal law standards. Today, while a war crimes prosecution of prisoners of war before a Canadian court martial remains a possibility,146 a war crimes trial would likely take place before a regular court and a regular judge.147 Comprehensive rules of criminal procedure, including concepts fowing from the Canadian Charter of Rights and Freedoms relating to disclosure of prosecution evidence, would likely apply. The rules of evidence would not be tailored for the war crimes tribunal. Regular defence lawyers would represent Meyer, rather than military lawyers, men who had just been leading units in combat with the German army. Nor would the death penalty be among his possible punishments – Canada abolished the death penalty for Criminal Code offences in 1976 and for the remaining death penalty offences in the National Defence Act in 1988. A point of objection to the trial has now been defnitively resolved: retrospective Canadian criminalization of international crimes would no

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longer spark the objections raised by Meyer and his counsel, MacKeen, in 1950. The Charter does not extend its regular prohibition on ex post facto criminal law to existing international law: “Any person charged with an offence has the right: ... not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations.”148 Moreover, the most important legal conundrum – that which most preoccupied General Vokes and his peers in deciding to commute Meyer’s sentence – is now settled: command responsibility in war crimes law. As summarized by the International Committee of the Red Cross, in modern international law, “commanders ... are criminally responsible for war crimes committed by their subordinates if they knew, or had reason to know, that the subordinates were about to commit or were committing such crimes and did not take all necessary and reasonable measures in their power to prevent their commission, or if such crimes had been committed, to punish the persons responsible.”149 The standard codifed in Canada’s War Crimes and Crimes Against Humanity Act in 2000 refects these expectations.150 These modern command responsibility rules turn on the knowledge and conduct of the commander and not simply on whether they effectively controlled the troops under them. Thus, the standard of command responsibility endorsed at Meyer’s Canadian war crimes tribunal, and in the commutation discussions afterward, approximates how international law has since developed. To this extent, therefore, the Meyer case lives on. The key protagonists in the matter have, however, left the scene. After the trial, the witness whose testimony probably did more than anyone else’s to secure his conviction – the Polish SS conscript, Jesionek – feared for his safety. Still a prisoner of war, Jesionek wished to immigrate to Canada, an application championed by Macdonald and his unit in recognition of the Pole’s contributions. Unfortunately, by error, the military sent the Pole back to Germany for release, and he disappeared into the Russian-controlled area.151 Macdonald transferred to Canada after the termination of the war crimes investigation unit, eventually returning to Windsor to practise law. He became a Crown attorney in 1951. During this period, he also busied himself with reform of a troubled Windsor police department and in writing his account of The Trial of Kurt Meyer.152 From 1961 until his retirement in 1977, he was a judge of the county and district courts of Ontario. He died in 1986.153 His co-counsel, Clarence Campbell, also returned to Canada,

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and assumed the presidency of the National Hockey League from 1946 to 1977. He died in 1984. The man they had prosecuted in Germany – Kurt Meyer – became a leading fgure in SS veterans’ circles after his release from prison in 1954, penning a memoir glorifying his own and the SS’s contribution in the Second World War. In poor health, he died at 51 in December 1961, and was fêted at a military funeral.154 Chris Vokes, the general who commuted Meyer’s death penalty, returned to Canada to command the Canadian Army’s central command, retiring in 1959.155 In 1981, he explained his commutation decision in a letter to a Canadian offcer serving in Europe, Ian Campbell. In concluding his explanation, Vokes wrote “I have never regretted my action.”156 Vokes died in 1985.157 Vokes’s correspondent in that 1981 exchange – Ian Campbell – remained drawn to the case. He later memorialized the lives of the twenty victims at the Abbaye, telling their stories in a 1996 book.158 Working with supporters and local French residents, he also organized the creation and transportation to France of a bronze plaque honouring the murdered men, unveiled as a monument at the Abbaye in 1984. It still stands at the spot where several of the men died, and reads: “On the night of June 7/8, 1944, 18 Canadian soldiers were murdered in this garden while being held here as prisoners of war. Two more prisoners died here or nearby on June 17. They are gone but not forgotten.”159 NOTES * I would like to thank Col. (ret.) Ian J. Campbell for a wonderful lunchtime discussion launching me on this project. My thanks also to the staff of the Windsor Municipal Library and Archives for their assistance in accessing the Bruce Macdonald fond, from which many of the documents relied on in this chapter are drawn. 1 Howard Margolian, Conduct Unbecoming: The Story of the Murder of Canadian Prisoners of War in Normandy (Toronto: University of Toronto, 1998), x. 2 For a discussion of general courts martial in the First World War context, see Teresa Icobelli, Death or Deliverance: Canadian Courts Martial in the Great War (Vancouver: UBC Press, 2014); and Benjamin Isitt, “Court-Martial at Vladivostok: Mutiny and Military Justice during the First World War,” in CST4. See also the discussions of the colonial courts martial of civilians in Barry Wright, “The Kingston and London Courts Martial,” F. Murray

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4

5 6 7 8 9 10

11 12 13 14

15

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Greenwood, “The General Court Martial at Montreal, 1838–39: Operation and the Irish Comparison,” and “The Montreal Court Martial, 1838–39: Legal and Constitutional Refections”, all in CST2. See, especially, the several works published at the end of the last century: Margolian, n1; Ian J. Campbell, Murder at the Abbaye (Ottawa: Golden Dog Press, 1996); and Patrick Brode, Casual Slaughters and Accidental Judgments (Toronto: Osgoode Society for Canadian Legal History, 1997). See also the account of the lead prosecutor in the case: B.J.S. MacDonald, The Trial of Kurt Meyer (Toronto: Clarke, Irwin, 1954). Many of the primary documents used in this article were collected directly from the Windsor Municipal Archives (WMA), Windsor, Ontario. Others are found in P. Whitney Lackenbauer and Chris M.V. Madsen, eds., Kurt Meyer on Trial: A Documentary Record (Kingston: Canadian Defence Academy Press, 2007), which also contains an excellent introduction summarizing the events leading to the trial, the trial itself, and its aftermath. Except as otherwise noted, in this section I rely on the description of events offered by Margolian, n1 at 31 et seq.; Macdonald, n3 at 3–8, 15–16, 32 et seq.; and Brode, n3 at 17 et seq. Lackenbauer and Madsen, n3 at 6. Campbell, n3 at 104 et seq. Campbell, n3 at 123, and 125–6. Macdonald, n3 at 64. Except as otherwise noted, in this section I rely on Macdonald, n3 at 9–14; Brode, n3 at 11 et seq. WMA, MP, box 1, fle 1/2, Macdonald to Barker (7 April 1945), ctd in Brode, n3 above at 24–5. See also WMA, MP, box 3, “Supplementary Report of the SHAEF Court of Inquiry Re: Shooting of Allied Prisoners by the 12th Panzer Division (Hitler-Jugend) in Normandy, France, 7–21 June 1944. Brode, n3 at 22 et seq. The reference to “United Nations” should not be confused with the organization later created in 1945. LAC, RG 25, vol. 2, 108, fle 2,626–40C, memo of Marcel Cadieux, “Punishment of War Crimes,” ctd in Brode, n3 above at 30. LAC, RG 25, vol. 3,247, fle 5,908–40C, Read to deputy (14 September 1943), ctd in Brode, n3 above at 31. LAC, RG 25, vol. 2,108 A-12, fle AR 405/4, pt 2, note to USSEA (26 July 1943), and LAC, RG 25, vol. 3,2728, fle 5,908–40C, pt 3, Read to Robertson (16 January 1945), ctd in Brode, n3 at 33. Brode, n3 at 28. See also WMA, MS 43 III-2/4 Coress. and Repts. April–July 1945, “Memorandum to Brig B Matthews” (9 May 1945).

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16 Brode, n3 at 28. 17 WMA, MS 43 III-2/4 Coress. and Repts. April–July 1945, “Massey External” (8 June 1945). See also LAC, MR 26L, Louis St Laurent Papers, vol. 4, fle “International Justice and War Crimes,” Massey to External Affairs (8 June 1945), ctd in Brode, n3 at 34. 18 George Manner, “The Legal Nature and Punishment of Criminal Acts of Violence Contrary to the Laws of War,” (1943) 37 American Journal of International Law 407 at 408. 19 Convention (IV) respecting the Laws and Customs of War on Land and its annex, Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907, Articles 23(c) and (d). See also Article 4 (prisoners of war “must be humanely treated”) 20 Convention relative to the Treatment of Prisoners of War, Geneva, 27 July 1929, Article 2. See also Article 1 (wounded soldiers “shall be treated with humanity”). 21 Manual of Military Law, at paras. 441 and 443, reproduced in Lackenbauer and Madsen, n3 at 57–8. 22 Manner, n18 at 415. 23 Manner, n18 at 421. 24 Manual of Military Law, at paras. 449, reproduced in Macdonald, n3 at 44. See also “Points of Law,” WMA MS 43 III-3/13 (c.1945) at 7. 25 UN Treaty Series, no. 251 (1951). 26 US National Archives, The Trial of the Major War Criminals, 15 August 2016, https://www.archives.gov/iwg/research-papers/trial-of-war-criminals -before-imt.html. 27 US National Archives, Reviews of US Army War Crimes Trials in Europe 1945–1948 (1987) at 2, https://www.archives.gov/fles/research/captured -german-records/microflm/m1217.pdf. 28 Fred Borch, “The ‘Malmedy Massacre’ Trial: The Military Government Court Proceedings and the Controversial Legal Aftermath,” The Army Lawyer, March 2012, at 22 et seq. 29 W.L. Cheah and Moritz Vorbaum, “British War Crimes Trials in Europe and Asia, 1945–1949: A Comparative Study,” (2018) 31 Leiden Journal of International Law 669 at 673. 30 Cheah and Vorbaum, n29 at 674. 31 Cheah and Vorbaum, n29 at 674. 32 Cheah and Vorbaum, n29 at 685. 33 Cheah and Vorbaum, n29 at 681–2. 34 Cheah and Vorbaum, n29 at 674. 35 Cheah and Vorbaum, n29 at 675 and 678.

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36 R. Arthur McDonald, Canada’s Military Lawyers (Ottawa: Minister of Public Works and Government Services Canada, 2002), 18. 37 McDonald, n36 at 51. 38 McDonald, n36 at 51. 39 McDonald, n36 at 56–7. 40 Macdonald, n3 at 45. 41 Chris Madsen, Another Kind of Justice: Canadian Military Law from Confederation to Somalia (UBC Press, 1999) at 91. 42 It is notable that Canada did not replicate its European war crimes tribunal process in the Far East. Canada had no occupation force in Japan, so the institutional context was different – there was no senior Canadian commander able to convene a military tribunal. However, in the end, Canada prosecutors participated in some war crimes tribunals constituted by the British under the Royal Warrant process described in this chapter. Canada was also involved – even more peripherally – in the treason trial of Kanao Inouye, a Canadian who had served as a brutal guard at a prisoner-of-war camp while in the Japanese army and was ultimately prosecuted in a civilian trial. See Brode, n3 at 159–61, 169–76. 43 See, e.g., WMA, MS 43 III-2/4 Coress. and Repts. April–July 1945, “From: Secretary of State for External Affairs,” 23 July 1945. 44 (2d Sess), c.2, s.1. See WMA, MS 43 III-2/4 Coress. and Repts. April–July 1945, “To: The Deputy Minister of Justice,” 7 August 1945. See also Peter McDermott, “Enemy Aliens in the First World War: Legal and Constitutional Issues,” in CST4. 45 “Points of Law,” n24 at 40–1. 46 War Crimes Regulations, P.C. 1945–5831. See discussion in WMA, MS 43 III-2/4 Coress. and Repts. April–July 1945, “Memorandum for Acting Secretary of State for External Affairs,” at para. 5. 47 “Points of Law,” n24 at 40. 48 “Points of Law,” n24 at 40. 49 See discussion in Macdonald, n3 at 54–7. 50 “Points of Law,” n24 at 11. 51 “Points of Law,” n24 at 11. 52 War Crimes Act, SC 1946, c.73. 53 War Crimes Act, SC 1946, c.73 s.2. 54 Regulations, n46, s.2(f). The regulations are reproduced in Lackenbauer and Madsen, n3 at 61. A summary of the regulations is found as “Annex: Canadian Law Concerning Trials of War Criminals by Military Courts,” United Nations War Crimes Commission (UNWCC), Law Reports of Trials of War Criminals, Volume IV, 1948, at 125.

120 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75

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Regulations, n46, s.4(1). Regulations, n46, s.5. Regulations, n46, s.7,; UNWCC, n54 at 126. Regulations, n46, s.11(3). Regulations, n46, s.12 and 13. Regulations, n46, s.14. “Points of Law,” n24 at 20. “Points of Law,” n24 at 20. Regulations, n46, s.10(1). “Points of Law,” n24 at 20. Regulations, n46, s.10(2). See also discussion in Macdonald, n3 at 50–1. “Points of Law,” n24 at 22. “Points of Law,” n24 at 23. Macdonald, n3 at 54. Macdonald, n3 at 66. Macdonald, n3 at 67–8. Macdonald, n3 at 68–70. Macdonald, n3 at 89–90. Macdonald, n3 at 91. House of Commons, Debates, 31 October 1945 at 1676, reproduced in Lackenbauer and Madsen, n3 at 84. MPs asked a few technical questions about the war crimes procedure in the Commons but otherwise received the announcement without any comment recorded in Hansard. Desmond Morton, “Christopher Vokes,” The Canadian Encyclopedia, 29 January 2008, https://www.thecanadianencyclopedia.ca/en/article /christopher-vokes. Macdonald, n3 at at 86. Macdonald, n3 at 86. Madsen, n41 at 82. Brode, n3 at 54. Brode, n3 at 62. Macdonald, n3 at 84–5. Macdonald, n3 at 84. Brode, n3 at 62. In preparing for trial, Andrew reportedly met with Meyer infrequently, but he communicated precise questions to the accused through Wady Lehman, (awkwardly) a member of Macdonald’s war crimes unit assigned to serve as Meyer’s interpreter. Wady Lehmann, “Recollections concerning Canadian War Crimes Investigations and Prosecutions,” 11(2) Canadian Military History 71 at 74.

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85 Trial transcripts are found in Lackenbauer and Madsen, n3. The case is also summarized in several sources. Here, unless otherwise noted, I rely on “Case No. 22, The Abbaye Ardenne Case, Trial of S.S. Brigadefuhrer Kurt Meyer,” UNWCC, n54 at 97. 86 UNWCC, n54 at 110. 87 Reproduced in Brode, n3 at 95–6. 88 Macdonald, n3 at 188. 89 Macdonald, n3 at 188. 90 Brode, n3 at 96. 91 Brode, n3 at 97. 92 Brode, n3 at 219–21. 93 In his later study of the Abbaye murders, Ian Campbell reasoned that the decision must have refected doubt among the tribunal generals that Meyer’s 25th Panzer Grenadier Regiment troops were alone in the area, as well as the realization that other German soldiers could have committed the murders. Campbell, n3 at 148. 94 Brode, n3 at 97. 95 Macdonald, n3 at 191. 96 Brode, n3 at 101. 97 McDonald, n36 at 34, 64 and 66. 98 Macdonald, n3 at 196. 99 WMA, MS 43 III-2/6 Corres. and Repts. 1946, “Cdn War Crimes Act Trial of BDE Feuhrer [sic] Kurt Meyer Remarks of Confrming Offcer,” at paras 1–6. Reproduced in Lackenbauer and Madsen, n3, at 535. 100 Secret Message from C. Vokes to Murche, 5 January 1946, reproduced in Lackenbauer and Madsen, n3 at 531. 101 WMA, n99 at para. 7. 102 WMA, n99 at para. 7. 103 WMA, MS 43 III-2/6 Coress and Repts 1946, “Memorandum re Conference held at 10:30 hours 9 Jan 46, in the Offce of the High Commissioner,” at para 3, also reproduced in Lackenbauer and Madsen, n3 at 532. 104 Lackenbauer and Madsen, n3, at 532. 105 “Secret Message from C. Vokes to Murchie,” 5 January 1946, in Lackenbauer and Madsen, n3 at 531. 106 WMA, MS 43 III-2/6 Corres. and Repts. 1946, “Message Form,” stencilled 198; “Memorandum re Conference held at 10:30 hours, 9 January 1946,” at para. 5, also in Lackenbauer and Madsen, n3 at 532. 107 Macdonald, n3 at 199; WMA, MS 43 III-2/6 Corres. and Repts. 1946, “Message Form”, stencilled 232. 108 WMA, MS 43 III-2/6 Corres. and Repts. 1946, “Message Form”, stencilled 205 and 206.

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109 Malcolm MacDonald, High Commissioner for the United Kingdom, Ottawa, to Addison, Secretary of State for Dominion Affairs, 28 January 1946, reproduced in Lackenbauer and Madsen, n3 at 538. 110 See, e.g, WMA, MS 43 III-2/6 Corres. and Repts. 1946, “Message Form,” stencilled 217, 223, 224, 237. 111 Ralph Allen, “Was Kurt Meyer Guilty,” Maclean’s Magazine, 1 February 1950, reproduced in Lackenbauer and Madsen, n3, at 555. 112 Margolian, n1 at 182, n7; Brode, n3 at 207. The émigré was Fritz Lichtenberg. 113 Petition of Kurt Meyer (December 1950) at paras. 33 and 34, reproduced in Lackenbauer and Madsen, n3 at 567. 114 Lackenbauer and Madsen, n3 at 567. 115 Memorandum by Counsel, 12 December 1950, reproduced in Lackenbauer and Madsen, n3 at 568. 116 Lackenbauer and Madsen, n3 at 569–70. 117 Lackenbauer and Madsen, n3 at 579. 118 Lackenbauer and Madsen, n3 at 580. 119 Minutes from Cabinet Defence Committee Meeting (12 September 1951), reproduced in Lackenbauer and Madsen, n3 at 585. 120 Brode, n3 at 210–11. See Douglas How, “Gen. Meyer Out on Pass from Prison,” Globe and Mail, 26 November 1951, reproduced in Lackenbauer and Madsen, n3 at 594; House of Commons, Debates, 26 November 1951, at 1301–2, reproduced in Lackenbauer and Madsen, n3 at 596. 121 Macdonald, n3 at 200–2. 122 Brode, n3 at 214; Numbered Letter 882, Ritchie, Canadian Embassy, Bonn to External Affairs, 10 September 1954, reproduced in Lackenbauer and Madsen, n3 at 647. 123 WMA, MS 43 III 3/4 Campbell – Corres. 1946–1984 (not incl.), letter dated 18 January 1949. 124 Macdonald, n3 at 200. 125 WMA, MS 43 III-2/6, Corres. and Repts. 1946, page marked “War Crimes Committed Against Cdn Prisoners of War reported up to 9 January 1946 Showing Disposition of Cases,” at 8. 126 WMA, MS 43 III-2/6 Coress. and Repts. 1946, letter dated 17 January 1946 at para 3. 127 WMA, n126 at para. 7. 128 WMA, n126 at para. 9. 129 WMA, n126 at paras. 10–12. 130 See Brode, n3 at 98. 131 See Record of Proceedings of the Trial by Canadian Military Court of Johann Neitz Held at Aurich, Germany, 15–20 March, 1946; Record of

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134 135 136 137 138 139 140 141 142 143 144

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Proceedings of the Trial by Canadian Military Court of Wilhelm Jung and Hann Georg Schumacher Held at Aurich, Germany, 15–25 March, 1946; Record of Proceedings of the Trial by Canadian Military Court of Robert Holzer, Walter Weigel and Wilhelm Ossenbach Held at Aurich, Germany, 25 March–6 April 1946. All were convicted. Neitz and Ossenback served prison sentences. A Canadian fring squad executed Jung, Shumacher, Holzer, and Weigel. Brode, n3, analyses each of these cases and questions the justice of the Wiegel and Holzer outcome. See also Cabinet Document D304, 11 September 1951, reproduced in Lackenbauer and Madsen, n3 at 584: “Seven war criminals were tried by Canadian Military Courts established under the War Crimes Regulations (Canada). Of these seven, four were executed pursuant to a sentence of the Court and the remaining three, Kurt Meyer, Johann Neitz and Wilhelm Ossenbach are at present undergoing sentences of imprisonment.” Brode, n3 at 201. The war crimes cases in the Pacifc Theatre were by British courts martial convened by Royal Warrant. Canadian prosecutors Lieutenant-Colonel Oscar Orr and Major George Puddicombe conducted cases involving the treatment of Canadian prisoners, although the convictions against Japanese offcers resulted in commuted sentences, with the notable exception of the Canadian-born Kanao Inouye (the Kamloops Kid), who was executed for treason. See Brode, n3 at 157–77. Brode, n3 at 155. WMA, MS 43 III-2/6 Coress. and Repts. 1946, letter dated 22 May 1946. See discussion in Margolian, n1 at 171–4. Cheah and Vorbaum, n29 at 691. Margolian, n1 at 175. Brode, n3 at 203–206. Brode doubts the strength of the case against Siebken, the man convicted of ordering the killing. See Margolian, n1 at 90–102. WMA, MS 43 III-2/6 Coress. and Repts. 1946, letter dated 22 May 1946 at para. 8. Brode, n3, at 215–16. See, e.g., War Crimes and Crimes Against Humanity Act, SC 2000, c.24. Canadian prosecutions of Second World War accused who later immigrated to Canada ended, effectively, in the 1990s, despite the 1985 recommendations of the Commission of Inquiry on War Criminals in Canada (the Deschênes Commission). Prosecutions stalled after the Supreme Court of Canada imposed diffcult legal thresholds for conviction in R v Finta, [1994] 1 SCR 701. Since then, there has only been one prosecution

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from more recent conficts, under the Crimes Against Humanity and War Crimes Act. (This Act revamped Canadian war crimes law after Finta.) See Munyaneza c. R., 2014 QCCA 906. In practice, however, Canada has focused on administrative remedies – such as citizenship revocation for Nazi accused and immigration removals. Even those processes have proved endless. See, e.g., Oberlander v. Canada (Attorney General), 2019 FCA 64. Brode, n3 at 103. Geneva Conventions Act, RSC, 1985, c. G-3, Pt II. See, generally, the Crimes Against Humanity and War Crimes Act, SC 2000, c.24. Canadian Charter of Rights and Freedoms, s.11(g) (emphasis added). ICRC, IHL Database: Customary IHL, Rule 153, https://ihl-databases.icrc .org/customary-ihl/eng/docs/v1_rul_rule153. SC 2000, c.24, s.7. WMA, MS 43 III-2/6 Coress. and Repts. 1946, letter dated 17 January 1946 at para. 7. Macdonald, n3. “The Macdonald Papers – Legal Career,” Windsor Public Library, http:// projects.windsorpubliclibrary.com/digi/macdonald/Legalcareer4.htm. Brode, n3 at 214. Desmond Morton, “Christopher Vokes,” The Canadian Encyclopedia, 29 January 2008, https://www.thecanadianencyclopedia.ca/en/article /christopher-vokes. WMA, MS 43 III-3/10 Misc. Repts. and Spch. [194_?], 1944–45, 1981. Letter dated 15 May 1981. Morton, n155, “Christopher Vokes.” Campbell, n3 at 174 et seq. Veterans Affairs Canada, Abbaye d’Ardenne, https://www.veterans.gc.ca /eng/remembrance/memorials/overseas/second-world-war/france /ardenne. The last sentence is incorrectly printed on the Veterans Affairs website and should read “gone” and not “dead.”

3 The Gouzenko Affair: From Star Chamber to the Court Room REG WHITAKER

The defection of an obscure cipher clerk in the Soviet embassy in Ottawa, just days after the end of the Second World War, set off a chain of events, echoes of which can still be felt today. Igor Gouzenko brought with him a sheaf of documents he had surreptitiously removed from an embassy safe that demonstrated the existence of an extensive spying operation by Soviet military intelligence that had enlisted a number of Canadian public servants to betray their trust and pass classifed information to the Soviet Union, a wartime ally.1 Behind the scenes, high-level diplomacy between the Canadian, British, and American leaders set the stage for the public revelation of the defection in early 1946, which immediately became sensational news around the world. This was the frst clear notice of the coming breakdown of the wartime alliance and the beginning of what would become the Cold War. Canada was the location for the frst chapter of the Cold War, and how the spy affair was handled by Canada would help shape both domestic and international politics for years to come. In examining the Gouzenko spy trials, it is important to note that the affair passed through four sequential phases, each distinct from the others, yet overlapping, and each contingent upon what had happened earlier. In this chapter, each phase will be described in turn: Phase 1: Under cover. The affair offcially began on 7 September 1945, when Gouzenko came under the protection of the RCMP one day after Prime Minister Mackenzie King was informed of the Soviet cipher

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clerk’s request for asylum. A fve-and-a-half-month period followed under a cloak of secrecy. The only parties offcially informed of the defection were the political leaders of Canada, Britain and the US; high-level diplomats; and the policing, security, and intelligence agencies of those three countries. Phase 2: Police action. Although the war had come to an offcial close before Gouzenko’s defection, the government was able to take advantage of the fact that wartime emergency powers had not yet lapsed. A secret order-in-council known only to the prime minister and two other cabinet ministers gave authority to the RCMP to detain and interrogate suspects. This was carried out in the predawn hours of 16 February 1946, when eleven public servants were taken to the RCMP barracks in Ottawa (two others were added soon after for a total of thirteen). Phase 3: “Star Chamber” inquiry. On 5 February 1946, the government created a Royal Commission of Inquiry led by two Justices of the Supreme Court of Canada, R.L. Kellock and Robert Taschereau. It commenced taking evidence in secret on 13 February. Detainees were questioned by the commissioners under similar conditions to which they had been subjected in the previous phase. A fnal report was made publicly available on 27 June, describing the extent of the Soviet espionage network uncovered by their investigation and the methods the Soviets had used to recruit Canadian sources. It also named twenty-one Canadian citizens, mainly federal public employees – most sensationally the sole Communist member of Parliament – as spies for the Kremlin and, in effect, traitors to their country. Phase 4: In the courtroom. The hearing of criminal charges began immediately following the fndings of the Commission and fnally ended in 1949. Criminal charges relating to espionage were brought against all twenty-one named by the Commission. One case was tried in the United Kingdom; all other cases were heard in Canadian courts.2 phase 1: under cover Once the decision had been made to accept Gouzenko as a defector and his documents as both genuine and signifcant, it was apparent to the prime minister and his senior bureaucrats that Ottawa was sitting on an explosive story with potential repercussions of considerable gravity on many levels from the international to the domestic. There were a number of diffcult issues specifcally posed by Gouzenko’s defection. In 1945 the Soviet Union was not a hostile foreign power that might

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have been expected to carry out espionage on Canadian soil, like Nazi Germany.3 Instead, it had been a wartime ally for the past four years. Although strains in the wartime alliance were already starting to appear, the bipolar global division of the Cold War that was to characterize the four decades following the end of the Second World War was not clearly in view in September 1945. Gouzenko’s revelations thus posed a highly delicate problem of diplomacy, compounded by the fact that only a month prior to his defection, the Americans had exploded atomic bombs on Hiroshima and Nagasaki, not only bringing Japan to surrender but opening the question of international control of the awesome destructive power of nuclear energy, initially an American monopoly. The Soviet Union had been kept in offcial ignorance of the Manhattan Project, but the frst perusal of Gouzenko’s documents pointed to the Russians having targeted nuclear intelligence. It was unclear initially how extensive and how successful their efforts in this regard had been, and that question hung heavily over the international context of the affair. The stakes were high. In this context of uncertainty and insecurity, Canada found itself in an uncomfortable spotlight. Certainly, the Canadian prime minister had no great appetite for playing an exposed front-line role in superpower confict, a prominence better left to senior partners with the big battalions. On the other hand, Mackenzie King was not entirely averse to the enhanced diplomatic position Canada had gained as a result of Gouzenko’s counterintelligence windfall. Beneath high-level summit diplomacy lay the less visible but crucially important work of the transatlantic security and intelligence community, comprised of the RCMP security service, Britain’s MI5 (internal and Commonwealth security) and MI6 (foreign intelligence), and, in the US, the Federal Bureau of Investigation (FBI).4 In responding to Gouzenko, both Canada and the US were thus reliant on a single agency which combined police powers for criminal investigation and counter-intelligence responsibilities for national security. A wild card was the British Security Coordination (BSC), which Britain had set up in New York as a covert propaganda agency to infuence American opinion in a pro-British direction but with ambitions to widen its intelligence role. It was headed by Sir William Stephenson, who, as a Canadian, had a special relationship with Ottawa, but was mistrusted by both the FBI and MI5. Stephenson managed to insert himself into the Gouzenko affair at an early stage and was later able to act intermittently as intermediary between the American and British agencies, but not to any positive effect on the conduct of the investigation.5

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These were the parties / groups who had day-to-day control over the investigation. Players within them were working under the overarching aegis of decisions made by their political masters, whose frame of reference was wider and less focused than that of the security agencies, but so long as the investigation was shrouded in secrecy it was the professionals on the ground who had the greatest infuence in shaping its specifc direction. The recent release of a trove of MI5 documents, with relatively light redactions, sheds considerable new light on what went on behind closed doors from the moment of Gouzenko’s defection. These records are particularly valuable because in 1945 Canada, in its intelligence relations, was still closer to Britain than to the US, and also because a key factor in determining when the investigation would emerge from behind closed doors was the case of the British scientist Dr Alan Nunn May. Nunn May, who was returning from his wartime posting in Canada, was suspected of passing nuclear information to the Soviets. When and if the UK government, on advice from MI5, determined that Nunn May’s arrest would take place was the key to the wider decision about how the affair would be handled, whether by criminal prosecution or otherwise. Based on the MI5 documents, we can now reconstruct a fairly clear picture of how the British authorities saw the signifcance of Gouzenko, and thus how the Canadian reaction was shaped. Especially useful are the diaries of Guy Liddell, Deputy Director of MI5.6 The frst issue surrounding the undercover phase is the credibility of the offcial version, which had it that Gouzenko’s defection was the lone wolf action of a single disaffected Soviet operative. Some have advanced a conspiracy theory alleging that the hidden hand of British intelligence was actually behind the defection.7 The best and most careful account of the Gouzenko affair, by Amy Knight, grants there are some puzzling discrepancies in the offcial version but also notes the absence of any evidence of prior knowledge of Gouzenko in the declassifed British or Canadian records. The RCMP told British intelligence that Gouzenko had defected because he feared being returned to the Soviet Union after he had been detected carelessly mishandling classifed documents.8 Knight concludes that “one thing can be said with certainty: Gouzenko’s decision to defect ... threw everyone, including the RCMP and British intelligence, into a tailspin.”9 The application of Occam’s razor would suggest that the offcial version is also the simplest and most consistent with the known facts: Gouzenko was what he claimed to be, a walk-in. One of the most important walk-ins in espionage history.

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Five days after Gouzenko’s defection in Ottawa, Kim Philby “came over” to MI5 from MI6 with news of the Gouzenko defection and evidence of the penetration of the Canadian government, the British High Commission, and, most importantly, “atomic bomb circles.”10 It is of course deeply ironic that MI5 learned of Gouzenko from Philby, Moscow’s super-mole near the top of British intelligence. Philby himself must have been anxious, not knowing whether Gouzenko might point a fnger at him, but suspicions about “Kim” had not yet arisen in MI5. Philby’s MI6 role also casts further doubt on the theory that British intelligence was behind Gouzenko’s defection, since it is diffcult to see how Philby could have countenanced an operation that might expose himself. Attention quickly focused on Nunn May and the key question of whether to strike immediately with an arrest or to hold back, awaiting further developments. This question would drag on for some months and was key to the matter of when and if the Gouzenko affair would go public. MI5 had little or no information on Nunn May, who had not come to their attention as a security risk. An arrest could only be based on solid evidence of espionage. Even after the Gouzenko documents had been examined in detail, evidence to convict Nunn May seemed fimsy. Indeed, the same could be said for the Canadian suspects, once their identities had been established from the Russian codenames in the documents. Unlike the RCMP, MI5 had considerable experience in handling espionage investigations and counter-intelligence operations, and their scepticism about the “court-worthiness” of Gouzenko’s revelations weighed heavily on the undercover phase, postponing public notice and shaping the specifc form the next two phases would take. From the outset, the Gouzenko affair was beset by tensions between intelligence collection and criminal evidence gathering for trial proceedings under the Offcial Secrets Act in the UK and Canada.11 This tension proved characteristic of the succeeding four decades of Cold War espionage. This was not the biggest complication. Already, Liddell noted, “the whole case has got on to a very high level.” Ambassadors, High Commissioners, even the Chief of the British Joint Staff Mission in Washington had already “weighed in.” “As usual,” Liddell grumbled, “it is extremely diffcult to get down to brass tacks, and to get the right action taken.” Worse yet was that “the whole thing [is] wrapped up in 4 layers of cotton-wool as it concerns the atomic bomb.” The frst dispute to be resolved was whether Nunn May should be permitted to return to Britain or be stopped and arrested in Canada before departing. Lord Halifax, the British ambassador to the US, advocated for

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the Canadian option. Liddell was inclined to agree but was dissuaded by Philby, who was “so keen about trying to develop things at this end.”12 One could see why Philby was anxious to permit Nunn May to return, as his handlers – already tipped off by Philby – would have advised against Nunn May making his contact in the UK as originally planned. Contact by Nunn May with Soviet intelligence in the UK would provide evidence for criminal prosecution, which would otherwise prove diffcult. An additional consideration weighing against arresting Nunn May in Canada is that simultaneous action would be required to round up all the other Canadian suspects. Publicity would be unavoidable and, at at this stage, too risky. It was clear that MI5 had to get to Ottawa and view the Gouzenko documents frst-hand. MI5 Director General Sir Stewart Menzies agreed that Sir Roger Hollis, head of the MI5 counter-subversion section, would go to Ottawa to “take charge of the case.” Philby agreed, believing it best that an “expert on Soviet espionage” should go,13 but tensions later escalated between Hollis and Philby when the latter tried to muscle control over the case away from MI5 and into MI6’s (i.e., Philby’s) purview.14 The RCMP, for its part, wanted a direct line of communication with MI5, which it considered “highly necessary” since “all sorts of projects” were being put forward by Stephenson’s BSC for counter-intelligence operations.15 Without central control of the investigation, Liddell asserted, “we shall undoubtedly get into a muddle.” Any public leak before the British, Canadian, and US governments decided what action to undertake would be disastrous. Liddell believed it came down to a diplomatic question: “Do we want to have a showdown with the Russians or not?” “Personally,” he wrote, “I think it would be very salutary.”16 That was the authentic voice of the intelligence services of the three countries, but before precipitating such a showdown, their political masters would have to agree. Careful arrangements were made to keep a discreet watch on Nunn May after his arrival in the UK, isolating him from access to any sensitive nuclear information without alerting him that he was under scrutiny. Liddell worried about too many people being brought into the operation, especially as Stephenson continued to “balls things up” with the Foreign and Dominion Offces.17 Elaborate surveillance for the projected 7 October meeting of Nunn May with his Soviet contact was for naught: neither party showed up.18 On 9 November, Hollis telegraphed from Ottawa warning that if the Canadians “went off the deep end,” Britain would have to act on Nunn May: “The Canadians might not think we were playing our part/” But

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any decision on action would have to await the deliberations of the Canadian, British, and US leaders at a coming summit meeting in Washington. “They will be having a discussion on the whole case,” Liddell noted somewhat sarcastically, “after they have settled the little matter of the atomic bomb.”19 But, as Hollis reported back to his superiors, a plan for action had been drafted, frst for the approval of King and Attlee, which had been forthcoming, then for fnal presentation to Truman.20 This plan was in fact a precise template for the course that was followed, with only the timetable moved down the road. The draft laid out not only a process but the reasoning behind that process. The frst consideration refected the gravity of what Gouzenko had revealed, which necessitated handling the affair “frmly,” making public the extent to which the Soviets had been carrying out large-scale espionage on their wartime allies, particularly with regard to nuclear weapons. A second mitigating factor was that the affair had to be handled “so as to disturb as little as possible the continuance of normal diplomatic relations” with the Soviet Union. Third, Gouzenko provided an “opportunity for exposing the uses to which the Soviet Government puts local Communists” with the objective of making it as “diffcult as possible” for the Soviets to exploit local Communists for espionage purposes in the future. There was some ambiguity here: was the “opportunity” primarily to promote domestic anti-Communism, or was it to undermine domestic Communism to counteract Soviet espionage? MI5 and the RCMP security service already had lengthy track records prioritizing Communist activity as the main subversive threat.21 Yet Hollis and MI5 were clear that in focusing on Communism as the Soviets’ preferred basis for recruiting potential spies, they should “give the least possible substance to charges that counter-action has been taken for ideological reasons.” At this point in late 1945, with the wartime alliance still intact, albeit fraying, the Soviets were to be chastised for spying, not for being Communists. In practice, anti-Communism tended to overtake other considerations. This was not surprising, given the direction in the draft plan to minimize tensions with the Soviet Union to the extent possible, which tended to focus attention on the recruited Canadians rather than on their Soviet recruiters. The specifc order of procedure was to begin with the detention and interrogation of the suspects. This step could be followed by a Royal Commission presided over by judges, with proceedings in camera. Where enough evidence could be discovered, criminal prosecution would then be instituted. This was the process followed in practice. A key point was that the British had learned that in Canada detentions for interrogation

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could be carried out by order-in-council (under the Defence of Canada Regulations issued under the War Measures Act, which continued in effect post-war by way of emergency transition legislation).22 While this would greatly facilitate the investigation in Canada, “no such powers exist” in the UK. Consequently, Nunn May would have to be questioned without being detained. Only if he made an admission of guilt under caution could he be arrested and charged. It was improbable that Gouzenko’s documents or testimony could provide the independent basis for arresting and charging Nunn May. “He was apparently operated by the Soviet authorities as a separate unit and not as a part of one of the espionage groups”; it was therefore unlikely that information incriminating Nunn May could be obtained from other agents. Since British intelligence was “not very sanguine of obtaining a confession from [Nunn May] on which it will be possible to bring a charge against him,” the timetable for initiating the outlined plan of action in Canada had to be postponed.23 In the event, the summit agreed in principle with the plan that simultaneous action should take place in all three countries. But a new factor for further delay, beyond the Nunn May problem, was that the FBI wanted more time to follow up the testimony of former spy Elizabeth Bentley, who had blown the whistle on Soviet spy operations in the US.24 Then in early December, MI5 got wind of unsettling news that the Canadians, or at least the Canadian prime minister, might after all “go off the deep end.”25 Malcolm Macdonald, the British high commissioner in Ottawa, reported that King was contemplating a farewell meeting with the departing Soviet ambassador in which he would divulge knowledge of Soviet espionage on Canadian soil for the purpose of arriving at a quiet diplomatic resolution. Secret departmental inquiries would be undertaken to question the suspect civil servants; any who admitted spying activities could be removed from employment, but not charged. In Macdonald’s words, “police and security representatives are pointing out the immense diffculties and risks of the line proposed.”26 MI5 was aghast: it was clear to them that King’s “present attitude” had been reached “without due regard for the intelligence and security aspects” of the affair. The suspects could easily ignore departmental inquiries by denying all, and the biggest fsh of all, Communist MP Fred Rose and the party’s national organizer, Sam Carr, would get off scot-free.27 It would, however, be up to the RCMP to infuence their prime minister. Commissioner S.T. Wood assumed that task as an urgent responsibility. First Wood contacted the senior minister to whom the force answered, justice minister Louis St Laurent. After outlining what King proposed to

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do, Wood pointed out the host of diffculties this posed for the police and intelligence investigations, his arguments echoing what MI5 had already signalled; he then added that with no prospect of success, this course could “only bring uncontrollable publicity” that would refect badly on the Canadian government. Wood concluded that from a security standpoint, the only alternative was to return to the Washington consensus plan. Wood “strongly emphasized” that it was best that the “subject be treated entirely as an intelligence matter pending further developments ... I cannot state too strongly that the present suggested method of procedure ... is fraught with possibilities of gravest danger to Canadian interests from a variety of angles and it is my considered opinion that the policy proposed ... should be re-examined most carefully.”28 A hastily arranged meeting was set up with the prime minister, attended by Wood, St Laurent, Norman Robertson, and Hume Wrong from External Affairs. Here the RCMP commissioner rehearsed his arguments and then pulled out what proved to be his decisive card: “Further information has been received from Washington” about Soviet penetration of the Treasury Department, the “intelligence services,” and even the White House, information “so grave” that J. Edgar Hoover “would prefer postponement” of the Gouzenko matter until these leads could be followed up.29 King was suitably chastened, admitting that this “put a different complexion” on matters, and quickly withdrew his plan.30 King did not seek direct confrmation of Hoover’s alleged advice, accepting the word of his police commissioner at face value. Yet there is no documented evidence that Wood had even consulted Hoover before deploying his name to such powerful effect. Knight goes so far as to suggest that Wood had “lied” to his prime minister,31 given that just a few days earlier the FBI had given the Canadians the go-ahead to act on Gouzenko.32 Oddly enough, the British had already authorized the RCMP to use their authority as a deterrence to King’s proposal (“Do not repeat not hesitate to quote security and intelligence authorities in London in support”), specifcally noting that MI5 “wish to be associated with [these] views”.33 Evidently, Wood thought Hoover a more compelling source to use with King. In the entire Gouzenko affair, perhaps the single most puzzling event is the decision by Mackenzie King to attempt this unilateral made-inCanada initiative. It is doubly puzzling because it clearly caught Canada’s allies by surprise and because it was so uncharacteristic of the normally cautious King, who typically was so deferential to Canada’s senior partners on the international stage. Strange as well that in an affair marking

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the genesis of a decades-long Cold War between the West and Soviet Russia, King’s initiative was apparently predicated on the naive assumption that Stalin, unaware of the objectionable espionage activities of the Soviet state, could be convinced to rein in his spies.34 The prime minister’s quick back-down in the face of concerted criticism from his own and allied intelligence agencies demonstrates the fragility of his self-confdence in going it alone in this relatively unfamiliar feld of action.35 What has not always been understood about the abortive King initiative is its impact on the timing of legal action. The intelligence community had successfully asserted that its interpretation should supersede that of the elected leader of the government of Canada, a precedent of signifcance for the post-war era. But the price the RCMP effectively paid was to accept further delay in acting against the suspects as they awaited the FBI follow-up on the Gouzenko and Bentley leads. Delay stretched into the new year, eventually to February 1946. King seemed content with inaction. As the British ambassador to the US, Lord Halifax, put it: King was “clearly determined that he will not accept responsibility of action which will bring the Canadian government into public diplomatic collision with Russia without similar supporting action being taken by the Americans.”36 The more time passed without any public action, the more likely the Soviets would pull in their operations and cover their tracks. In fact, Gouzenko’s defection had already alerted the Soviets, who we now know had been given detailed accounts of the post-defection investigation by Kim Philby, who was ideally situated to provide Moscow with a full picture in real time.37 MI5 remained oblivious to Philby’s double life, yet it was apparent from RCMP surveillance of the suspects in Canada, and from Nunn May’s no-show at his assigned meeting in London, that the Soviets had put everything on hold.38 As the months passed, the British authorities, as closely involved in the investigation on the ground in Ottawa as they were, grew increasingly confdent in the capacity of the Canadians to handle the affair effectively whenever the green light was given. Guy Liddell noted in his diary in mid-December that the RCMP was the “only body who could really carry out [the] work” since “so much depended on local knowledge.” However, the RCMP Intelligence Branch “would need all the support they could get.” The Canadian government had by then reduced its funding of and support for the Mounties and was “somewhat reluctant to take action where matters of external or internal politics were concerned.”39 On the other hand, the Canadian government enjoyed extraordinary powers of

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detention and interrogation that Britain lacked. By the end of January 1946, MI5 was ready to act on Nunn May if the Canadian suspects were rounded up, but the “fnal decision” rested with Mackenzie King.40 In the event, King’s hand was forced on 3 February when the American journalist Drew Pearson, on his Sunday night radio program in the US, broke the story in exaggerated terms of an apprehended Russian spy ring. The following day King informed his full cabinet of the top-secret spy affair he had been sitting on for fve months, thus clearing the way for the detention of suspects under a secret order-in-council and for the appointment of a Royal Commission (PC 411, 5 February 1946) to investigate and report on the full ramifcations. Everything then went ahead more or less exactly as previously agreed by the Canadian, British, and US leaders. There has been much speculation over the years about the source of Pearson’s scoop. Hoover, acting on his own, is indeed the prime suspect, since Pearson had often been used by the FBI director for strategic leaks. Hoover’s motives are unclear; perhaps he had simply grown tired of King’s delaying tactics – contrary to what the RCMP commissioner had told King.41 King himself suspected that the Americans were playing politics, forcing him to confront the Soviets while the US hid behind the Canadian government.42 Most recently, Dennis Molinaro, using MI5 records, has pointed the fnger at British intelligence as being behind the leak.43 My own reading of the same documents does not lead me to Molinaro’s conclusion, and the source of the leak must remain somewhat mysterious.44 It is clear that sooner or later the Canadian action precipitated by Pearson would have happened, so perhaps the question of the source is not that important. As for Nunn May, the ostensible frst cause for delay, the British had by the time of the Pearson scoop already decided there was enough evidence in Canada to make the success or failure of a Nunn May prosecution irrelevant to establishing the larger picture of Soviet espionage. Meetings were held on Nunn May following the Canadian publicity, and on 8 February it was agreed that he would be called in for an interview.45 As it turned out, Nunn May offered less resistance than MI5 had feared. Confronted after news of Gouzenko had broken, he “turned white as a sheet, and was very near collapse,” initially refusing to answer questions. “No doubt from his demeanour,” Liddell wrote in his diary, “he is guilty.” Within days they had a confession, including an admission that he had passed samples of uranium isotopes to his Soviet handlers, pleading that he believed “Russia should be kept in the picture [of atomic research].”46 In early March he was charged with espionage. Earlier fears about evidence turned out to be

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groundless; Nunn May’s confession resulted in his conviction on 1 May 1946 at the Old Bailey under the UK Offcial Secrets Act and a ten-year sentence, the longest sentence to be meted out to any of the Gouzenko suspects. He was released in 1952. phase 2: police action The second phase of the investigation, the detention and interrogation of suspects by the RCMP, is both the most controversial and the least documented phase. The transcripts of the interrogations have yet to be declassifed in their entirety. There is evidence, especially in the British sources, of how the interrogations were seen to ft into the process as a whole. It is clear that this phase was in fact crucial from the security and intelligence perspective. Indeed, as said, it was the capacity under Canadian law to detain and interrogate suspects without the protection of habeas corpus and legal counsel, under the continuing emergency regulations noted earlier – a power not available to British authorities dealing with Nunn May – that gave the British intelligence community confdence that the affair could be handled successfully in Canada. We can also conclude that one of the claims made insistently by the Royal Commission in the third phase, that it gathered its own evidence without connection to the police interrogations,47 was clearly untrue and was a deceptive attempt by the government to confer judicial respectability on a process lacking the normal due process safeguards. A direct connection was plainly enough evident at the time. It is now obvious that the very matters that later made the second phase most controversial – the secret detentions in the RCMP barracks in small windowless cells with lights glaring twenty-four hours a day to induce sleep deprivation; the refusal of legal counsel and the deliberate effort to keep the detainees in the dark about the denial of their basic rights, especially regarding selfincrimination and its legal consequences down the road; the Kafkaesque charade maintained by the inquisitors that kept the purposes of detention and the specifc crimes of which detainees were suspected obscure and mysterious48 – were deliberately designed to disorient the suspects, break down their defences, render them malleable for the next round of Commission questioning, and, fnally, make them ft subjects for criminal prosecution. The controversial denial of legal counsel to the detainees was not merely a useful tool for the Crown, it was a crucial hinge in a successful process. In her book, Merrily Weisbord posed the question of why a

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normal judicial process with the usual safeguards had not been pursued. She reports: “With startling candour, a cabinet minister explained: ‘If we had let them see a lawyer, he would have told them not to talk.’”49 The Commission eventually did have to accede to granting counsel in the ffth week of the hearings when detainee Durnford Smith refused to testify unless granted representation. Smith had learned that suspects appearing earlier had been subsequently arrested and charged on the basis of their testimony, and realized that he would be in effect, if not literally, on trial. To gain his testimony, the Commission agreed to admit his counsel.50 As noted, from the moment that MI5 had been notifed of the Gouzenko defection, there had been deep concern that criminal convictions would be diffcult to achieve solely on the basis of Gouzenko’s own testimony and the documents he had taken. Securing confessions and the suspects’ cooperation was therefore crucial. Under unrelenting pressure during her RCMP interrogation, Emma Woikin, a rather naive widowed cipher clerk in External Affairs, broke down quickly and entirely.51 Kathleen Wilsher, graduate of the London School of Economics who had been the Assistant Registrar at the British high commission in Ottawa, thought she could be taken out and shot if she did not confess.52 Others readily admitted complicity in espionage, perhaps not fully grasping the legal consequences. Some admitted certain facts without understanding how these facts ft into the bigger picture their interrogators were building. Most detainees who did break down or voluntarily cooperated were eventually convicted. Other detainees refused to cooperate with their interrogators because, while they may have been unaware of their right not to incriminate themselves, they nonetheless sensed the dangers of cooperation. Most of these escaped criminal conviction on the grounds of lack of evidence. Some of those who got off the legal hook appear to have been genuinely innocent of spying, as such. These latter were however branded as disloyal traitors in the Royal Commission’s report and suffered lasting damage to their lives and careers as a result. As concerning as this might be to democrats and civil libertarians, to the security and intelligence community it was merely collateral damage. Their focus was on fnding the most effective means of drawing a detailed picture of the scope of Soviet espionage; on securing a large number of criminal convictions; and on placing a spotlight on the Communist ideological basis for recruitment into the Soviet spy machine. On all these counts, the Canadian process proved a success, and the detention/interrogation phase was a crucial link in this process.

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phase 3: “star chamber” inquiry When the RCMP concluded they had enough incriminating evidence on individual , they were brought before the secret hearings of the Royal Commission, where their interrogations continued, under equally intimidating conditions. The commissioners, Justices Kellock and Taschereau of the Supreme Court of Canada, were directed by Executive Order PC 411 to “inquire into and report upon which public offcials and other persons in positions of trust or otherwise have communicated, directly or indirectly, secret and confdential information, the disclosure of which might be inimical to the safety and interests of Canada, to agents of a Foreign Power and the facts relation to and the circumstances surrounding such communication.” It was clearly expected that law offcers of the Crown would conclude from the Commissioners’ report that offences under the Offcial Secrets Act had been committed, and furthermore, that their report would provide guidance for subsequent prosecutions in addition to evidence of such offences.53 As had been planned by the government that had appointed and empowered the Commission, and by the security and intelligence offcials of the three countries that had advised this course of action, the commissioners (carrying the prestige of the Supreme Court of Canada) and their counsel held all the cards. The detainees, for the frst month of the hearings unrepresented by counsel and in ignorance of their rights, were in an extremely vulnerable position, left to their own devices as they confronted a formidable array of executive power and resources. Israel Halperin’s experience provides us with a glimpse of the Kafkaesque quality of the inquiry from the detainees’ point of view. Halperin, a brilliant young mathematician on leave from Queen’s University for war work in Ottawa, was taken from the RCMP barracks and brought before the Commission on 22 March. Commissioner Kellock immediately proceeded to have Halperin sworn in as a witness, but Halperin had a basic question: “Before you swear me, would you mind telling me who you are?” Commissioner Taschereau indicated opaquely that “we are the Royal Commission appointed by the government to investigate particular matters.” Halperin then insisted on “the basic right of every Canadian citizen to have access to legal counsel.” Kellock countered: “You are before us in the character of a witness and you must be sworn frst.” Halperin declared: “I am here against my will,” to which Kellock responded bluntly: “Of course you are.” Halperin then tried another tack, asking under what law he was being held, and was handed a copy of Order-in-Council PC 411 establishing the Commission. Halperin asked if the Commission had

The Hon. Roy Lindsay Kellock and Rt Hon. Robert Taschereau, Justices of the Supreme Court of Canada, the Royal Commissioners appointed to investigate a Soviet spy ring and espionage. Copyright Supreme Court of Canada, reproduced by permission of the Supreme Court of Canada

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the status of a court and was told: “We are a Royal Commission pursuant to the Inquiries Act passed by the Parliament of Canada.” Halperin kept questioning the legal authority under which he could be compelled to answer any questions put to him. Commissioner Taschereau insisted that under the Inquiries Act he was obliged to take the oath and cooperate fully. Halperin countered: “Are you empowered to use physical intimidation?” The commissioners reiterated that they could “compel” Halperin’s cooperation, which was still not forthcoming. At a later session, Taschereau suggested to Halperin that “you are not here by compulsion.” Halperin accordingly “left the witness chair and walked to the door” but was stopped and indeed compelled to return to the witness box. He then stated that “I will not open my mouth here again.” Taschereau admitted defeat: “Then that will be all.”54 Yet the Commission’s powers were not yet spent. Halperin was named in the Commission’s report as having betrayed his trust as a public servant by communicating secret information to the agents of a foreign power, “inimical to the safety and interests of Canada.”55 In fact, Halperin had been approached to do this but had shown no interest. He was innocent, as discussed below. Quite simply, the Commission exercised extraordinary and arbitrary power over the lives of the persons who came under its scrutiny, the detainees certainly, but others as well whose names came up in testimony, even peripherally. It deliberately kept witnesses in ignorance of their rights and of the consequences to themselves if they did or did not cooperate. The Commission was effectively a “Star Chamber,” in the sense of its secret and arbitrary legal proceedings and deliberations.56 The involvement of Supreme Court of Canada judges in criminal investigations and preparations for Crown prosecutions, including recommendations about the application of the Offcial Secrets Act, disregarded principles of judicial independence that had developed since the late seventeenth century and that been adopted in Canada with the British North America Act in 1867. By taking sides against the accused and in making recommendations to the government about subsequent legal proceedings as Commission chairs, the judges compromised the fairness of future trials and justice in the courts, including possible appeals. It was precisely because of these extraordinary powers that the trinational intelligence community had seen opportunity in Canada. The commissioners and their counsel did not disappoint. Their fnal report, weighing in at a hefty 733 pages, drawing upon Gouzenko’s documents and testimony and the compelled testimony of the various witnesses detained or subpoenaed by the Commission, painted a detailed picture of

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the scope and methods of the GRU military intelligence network operating in Canada, along with some hints of links to Britain and the US. Given this scope of spying in Canada, hardly a centre of global power, it was probable that Soviet operations in the US and UK were even more extensive, an observation made even more valid by the revelations of Elizabeth Bentley to the FBI in late 1945. Moreover, Gouzenko had hinted that what the GRU called the “Neighbours” – the NKVD civilian spy service, later the KGB – was simultaneously operating an entirely separate network in Canada about which he knew little or nothing,57 which made the scale of Soviet espionage potentially much broader and even more ominous. From the point of view of Western intelligence, what the Canadian inquiry put authoritatively and in painstaking detail onto the public record was the salutary notice that the Soviet wartime ally was now a post-war enemy, and that it had indeed always been an antagonistic power even during the period of the wartime alliance of convenience against fascism. Encoded in the Commission’s fndings was the emergent structure of East–West relations in the coming Cold War era. There was a high volume of demand for the Commission’s report throughout the Commonwealth and especially Britain, where it served as an early educational (or propaganda) document in the Cold War. The Cold War was to be not just a matter of great power rivalry but an ideological confict, between different economic and political systems and mutually antagonistic world views. Here too the Commission was foundational, in the way that the intelligence community had hoped. Throughout its hundreds of pages, refecting the focus of much of the questioning of witnesses, the report drew frequent attention away from the Soviet spymasters onto the domestic, ideological roots of recruitment of Canadians into spying for a foreign power. The Communist Party of Canada (CPC)58 was as much a target of critical scrutiny as the Soviet Union, but the former was a much easier, and less politically charged, target than the latter. British intelligence, as stated, had always acknowledged that the handling of Gouzenko would have to take place within the framework of wider foreign policy considerations, which cautioned against needlessly antagonizing the Soviet Union, especially as long as the question of the control of atomic weapons remained unresolved. The report devoted a special section to stressing that the Soviet ambassador to Canada “had no part in the inadmissible activities” of the Zabotin / GRU operation, and was at pains to quote two documents that “vividly illustrate the care that was taken by ... Moscow to keep Zabotin’s activities secret from the Ambassador.”59 This kind of plausible deniability is of course standard

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operating procedure for diplomatic missions of all countries that are concealing intelligence operations, and its prominent placement in the report was intended to defect attention away from the Soviet leadership onto specifc bureaucratic agencies of the Soviet state.60 It was quite another matter to cast a critical eye upon domestic Communism. Gouzenko provided an opportunity to throw a harsh spotlight not directly on the Kremlin but rather on the Kremlin’s “Fifth Column” in Canada and, by extension, in other Western countries. In one respect, the Canadian situation presented a particularly attractive target for an antiCommunist rather than anti-Russian focus. Gouzenko had pointed clearly and unequivocally to the only elected Communist member of Parliament and the National Secretary of the CPC as having knowingly operated as members of the GRU network – in the frst case, Fred Rose, as a courier, and in the second, Sam Carr, as part of a counterfeit passport operation. At MI5, Guy Liddell had particularly criticized the abortive King initiative as allowing Rose and Carr, and thus the CPC, to evade public exposure. By contrast, the report indicated that “of all the persons mentioned in the Russian documents as well as by the witnesses throughout this Inquiry, none, Soviet offcials excepted, have been more repeatedly and prominently mentioned, either under their names or cover-names, than Fred Rose and his fellow spy and conspirator, Sam Carr.”61 It went on to castigate the foreign-born Rose for “his disloyal practices against the land of his adoption,” which had offered him “all the freedoms, advantages and facilities” of Canadian citizenship, including election to Parliament.62 Had it been of a more cynical mind, the Commission might have pointed out the fecklessness of the CPC in permitting its only member of Parliament to act as a courier in a spy ring. It might also have questioned the competence of Soviet intelligence in utilizing for espionage the most publicly prominent representatives of the only pro-Soviet political party in Canada.63 But the Commission was not interested in painting a picture, however accurate, of the Communists as self-harming. Rather, it wanted to paint a picture of the CPC as a dangerous subversive threat to Canadian democracy that recruited committed Communists and fellow travellers to betray their country to a foreign power to whom, because of ideology, they owed a higher loyalty. As the report made clear in detail, there were grounds for this suspicion. The recruiting feld drawn on by the GRU was composed of “study groups” led by Communists, who kept their party membership secret. They attracted “students, scientifc workers, teachers, offce and business workers, persons engaged in any type of administrative activity and any

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group likely to obtain any type of government employment,” initially to discuss “progressive,” “social reform,” and “internationalist” ideas. The organizers were gradually to introduce the “study of political and philosophical works, some of them far from superfcial, selected to develop in the students an essentially critical attitude toward Western democratic society.” This “organized indoctrination [was] calculated to create in the mind of the study-group member an essentially uncritical acceptance at its face value of the propaganda of a foreign state.”64 The goal was to develop well-placed public servants ripe for betrayal of their secrecy oaths in the name of international peace and progress but in practice serving the Stalinist state against the interests of Canada.65 The Commission did demonstrate that this was indeed a modus operandi of the Soviet spymasters in Canada in the mid-1940s. Cold War counterespionage would be based for decades on the premise that left-wing ideology was the primary impetus driving the recruitment of spies and moles in the service of Moscow, a premise powerfully cemented with the revelation of the “Cambridge Five” traitors and the fight of Donald Maclean and Guy Burgess to the Soviet Union in 1951. Yet the Commission’s insistence that there was a direct link between Communist indoctrination and espionage for Russia was later brought into doubt by no less an insider in the investigation than RCMP Inspector Clifford Harvison, who led the interrogation of the detainees. Harvison was surprised to fnd that the detainees he interrogated were far from the ideological robots depicted by the Commission.”66 In pursuing this line of inquiry, the Commission had chosen a path that was to prove highly questionable in the coming Cold War. The Communist witch-hunts that were to disfgure the face of US democracy, assuming the damning sobriquet of “McCarthyism,” were prefgured in the Kellock–Taschereau Royal Commission of 1946.67 The full panoply of McCarthyism – enforced “naming of names”; guilt by association; smearing of all left-wing opinion as Communist subversion – was already on display in the Commission’s proceedings and in its report. In brief, from the outset, there was an inability clearly to separate the concept of espionage from that of subversion in conceptualizing counter-espionage, a problem that would persist throughout the decades of the Cold War.68 Having found what they believed, not without reason, to be the ideological roots that had led some public servants to spy against their country, and fnding it politically more expedient to focus on the domestic rather than international politics of the emerging Cold War, the Commission report became as much an anti-Communist document as it was

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an examination of the espionage threat to Canada. Moreover, because domestic Communism was linked to foreign espionage, the normal liberal democratic restraints on state intrusion into the political opinions of civil society were largely cast aside. Ideas became as indicative of guilt as actions; the books and magazines one read and the personal associations one made could be taken as presumption of involvement in espionage. If some people in a study group or organization spied for the Russians, then all members of the group could be presumed guilty with or without specifc evidence implicating them. That was precisely the case with some of the suspects named by the Commission as spies who were later acquitted in court. The courts required evidence of illegal actions rather than mere membership in a group or certain ideas. But the Commission felt no such constraint in its public fndings. Anyone associated with those who did spy was perforce guilty in the eyes of the Commission simply because they shared the same ideas and frequented the same groups. The anti-Communist focus drew some of its energy from one of the Commission counsel, E.K. Williams, who had drafted the entire blueprint for the Commission, which was then adopted by the government.69 In a crucial memo, Williams had acknowledged that prospects of criminal convictions on the Gouzenko evidence alone were dim. Even confessions exacted under interrogation by the RCMP would likely be inadmissible in court. A Royal Commission, however, meeting in camera, denying legal counsel to witnesses and ignoring rules of evidence, could present authoritative fndings that could convince the public, although not necessarily the courts. As chief counsel to the Commission he himself had designed, Williams appears as a zealous Crown prosecutor, a crusading special investigator. Although he was past president of the Canadian Bar Association, he showed little or no concern about the civil liberties of the suspects or for due process and the rule of law. Williams looms large in the proceedings, and strong anti-Communist convictions are a thread running through all his questioning. He bullied witnesses, some into quick submission, and engaged aggressively with those who remained recalcitrant. To glimpse Williams in action, and to gauge some of the consequences for those who fell under his scrutiny, we can look at his questioning of John Grierson, the recently retired head of the National Film Board. The sole basis for bringing him before the Commission was a single mysterious entry in one of the GRU notebooks: “Freda to the Professor through Grierson.” Gouzenko suggested that the spymasters were restive about leaving their asset Freda Linton, a secretary to Grierson, in such an

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unimportant place as the NFB, and would have preferred to get her into the National Research Council, where she could work as a link to the scientist Raymond Boyer (who had readily confessed to the RCMP to passing classifed information). Williams speculated that Grierson might have tried to use his infuence to have her transferred. There is no evidence of Grierson doing so, and Linton never went to the NRC, but a presumption of Grierson’s complicity was enough for him to be subpoenaed to testify, even though, as Grierson suggested with some understatement: “The basis of the presumption is not very considerable.” But Grierson had been a mover and shaker in wartime Ottawa who had made enemies, and it was well-known that he held left-wing opinions and that his NFB had made flms with what some considered a left-wing bias. That was enough for Williams, who quickly turned his questioning to Grierson’s politics and political beliefs. Prefguring the soon to be notorious question hurled by Joe McCarthy – “Are you now, or have you ever been, a member of the Communist party?” – Williams bluntly demanded: “Are you a Communist or communistically inclined?” Receiving a negative answer, Williams persisted. “You are not a member of the Communist party?” Grierson’s “no” was met with a sarcastic “That is offcially. What would you say about subscribing to any of their views?” Williams’s target was wider than Grierson alone. Referring to the “study groups” the Commission had identifed as spy cells, he asserted that “an astonishingly large number of persons working in these cells ... were employees of the Film Board.” How could Grierson explain the involvement of so many of his employees in what Williams termed “subversive political activity”? Incredulously, Williams demanded to know how Grierson could have missed the “extremely leftist atmosphere” at the agency he had built. With the trap laid, Commissioner Kellock moved in to administer the coup de grace. The note in question, Kellock asserted, could only make sense if Colonel Zabotin “knew you as a Communist.”70 Here we can see the elements of the espionage / subversion nexus that led inexorably from an investigation of Soviet espionage to an antiCommunist inquisition. As with the American Red Scare that would soon follow, the detection of “Communism” could have severe consequences for those tarred with the investigator’s brush. Grierson was gone from Canada, but his old organization fell subject to an anti-Communist purge conducted by the RCMP under the rubric of a security screening system set in place for the federal civil service following the recommendations of the Commission.71 For many years, an offcial cover story downplayed the impact on NFB employees, but we can now document a purge that

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reached as high as forty persons, a very Canadian behind-closed-doors affair comparable to the highly publicized Hollywood inquisitions of the House Committee on Un-American Activities in the late 1940s and the notorious blacklist that followed it.72 The public report had the luxury of carefully selecting excerpts of in camera witness testimony and examination by counsel to convince readers of its conclusions, which were presented in sober and authoritative tones in an offcial Government of Canada document under the names of two Justices of the Supreme Court. For example, the grilling of Grierson appeared only in anodyne form in the report, purged of the record of the ideological inquisition.73 The fact that the Commission on the whole made a convincing case that the Soviets had indeed been carrying on extensive espionage against their Canadian ally lent considerable weight to the Commission’s naming of names. The Soviets surprisingly admitted that they had been spying, though they tried to pass off what they had received as inconsequential.74 Surely, many Canadians must have reasoned, the accusations against individuals were convincing. Yet even the offcial text offered grounds for doubts. The Commission placed so much weight on study group “cells” as the foundation for recruiting spies that membership in a study group or associating with those who belonged to a study group was taken as prima facie evidence of complicity in spying: guilt by association. This logic could become rather circular: “x” was suspicious for associating with “y,” who was suspicious for associating with “x.” Three persons were named who “did not so far as the evidence discloses take any active part in the subversive activities but would have done so if required.”75 This was an extraordinary leap from lack of evidence to guilt by imputed motive. There are other disparaging references to the “demeanour” of witnesses, which provided the commissioners licence to assign blame. Any sign that the Commission’s methods were resented was taken as a likely indication of guilt. The Commission referred to the exceptional presumptions and procedural expedients under the Offcial Secrets Act and directed its attention to the demeanour of witnesses, denying rights that would normally be protected in legal proceedings or Royal Commission inquiries. The Act stipulated that it was “not necessary to show that the accused person is guilty of any particular act prejudicial to the safety or interests of the state” in order to convict. The accused “may be convicted if, from the circumstances of his ... conduct, or his known character as proved, it appears that his purpose was a purpose prejudicial to the safety or interests of the state.”76 The Act was certainly draconian legislation, with little regard for

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civil liberties and the usual due process protections inscribed in criminal procedure. The Commission took full advantage of these exceptions in laying the groundwork for the trials to follow. Even to the most casual outside eye, the potential for abuse was high. Amy Knight characterizes as “bizarre” the Commission’s conclusion that, despite his credible denials, David Shugar’s demeanour on the witness stand indicated guilt.77 It was almost as if the Commission was following the infamous trial by immersion for witches – guilty if they foated, innocent if they sank. If witnesses confessed, they were sent to trial, charged with violating the Offcial Secrets Act. If they denied allegations or were uncooperative, they were named as guilty and sent to trial on charges of conspiracy to violate the Offcial Secrets Act. As Alice’s Queen of Hearts would put it: “Sentence frst – verdict afterward.” Other parts of the Act also stacked the deck in favour of the Commission, most notably the reverse onus provision. It placed the burden of proving one’s innocence on the suspect, in a reversal of the presumption of innocence in regular criminal proceedings. Nor did the Act distinguish between disclosing harmful information to a foreign power and disclosing unimportant information; all that mattered was that the disclosure was unauthorized. Finally, the Act did not distinguish between hostile and friendly foreign powers, so the defence offered by some suspects that Russia had been an ally of Canada carried no weight in the eyes of the law. Yet even when the Act fell short as a means of obtaining guilty verdicts, the Commission simply declared guilt on its own authority. Some suspects who refused to cooperate with the RCMP and the Commission were acquitted in court. In some of these cases, there are reasonable grounds to believe that participation in espionage did take place, even if the legal evidence was not strong enough for conviction. But there were also cases in which the Commission’s accusations seem unfounded. Innocent persons were declared to be traitors to their country and acquittal in the courts did nothing to end the ordeal of those wrongly named. I will examine three of these cases of fagrant injustice meted out by the “Star Chamber” that was the Royal Commission, as these too should be part of the record of the Royal Commission. Israel Halperin was perhaps the most uncooperative of the detainees brought before the Commission. Outraged at his arbitrary treatment and the denial of his basic rights, he chose to confront the authorities at every turn. For their part, the authorities chose to interpret his behaviour in the worst light. In the MI5 fles there is a note after Halperin’s two hostile appearances before the Commission: given the opportunity to explain

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himself, Halperin’s refusal to answer and “his general demeanour, fully convince us that he violated the Offcial Secrets Act on more than one occasion.”78 The commissioners unhesitatingly declared Halperin to be a spy for Russia and sent him to trial. But there was a problem: there was no evidence that Halperin was a spy, other than his uncooperative demeanour, a matter inadmissible in a court of law. Compelling evidence of Halperin’s innocence was actually in the documents held by the Commission, if they had cared to read them. In the MI5 fles are translations of the notes made by Zabotin that Gouzenko removed from the spymaster’s safe, including reports to Zabotin by Gordon Lunan, purportedly Halperin’s handler, a connection that arose simply from their common membership in the same study group. Halperin was a mathematician on loan from Queen’s University for war work in Ottawa and was happy to discuss in general terms many matters of interest with friends, including some “so-called secret work” which he considered a “joke” – “while it is offcially on the secret list, those working on it can see no reason for secrecy,” including perhaps sharing with the wartime ally, the Soviet Union. Like other professionals, Halperin believed in the international nature of scientifc research and had progressive political views, which might have made him a candidate for the Soviet spy network. But Lunan cautioned Zabotin that he did not think Halperin “is suffciently impressed with the conspiratorial nature of the work at present.” When Lunan tried to draw him into conspiratorial work, Halperin balked, in no uncertain terms. Lunan’s notes on Halperin are flled with phrases like: “defnitely no encouragement”; “impossible to get anything from him”; “I do not think that he is ready to begin work more deeply”; “It has become very diffcult to work with him”; “He appreciates the gist of my requests more fully and he does not like them very much.” When Lunan, tasked by Zabotin to dig into atomic energy, asked Halperin to get him a U-235 uranium sample, he “appears to have been somewhat shocked,” threatening to cut off communication.79 In short, Halperin was never more than a prospect for Lunan to cultivate, and one who showed no inclination to follow. Even attentive readers of the Commission’s report might have twigged that something was amiss in the picture of Halperin the dedicated spy when Lunan was quoted as admitting to Zabotin that “at present he [Halperin] has a fuller understanding of the essence of my requests and he has a particular dislike for them.”80 The cases tried in the courts will be surveyed in the next section, but later in the courtroom the Crown’s case against Halperin collapsed completely when the only witness, Lunan, refused to appear. In his

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1995 autobiography, Lunan explained that he had assumed Halperin was a possible source but “soon came to realize he was an unwitting victim who had no intention of becoming involved in what after all could be construed as technically illegal even if he was in general supportive of the Russians as allies and in favour of the sharing of scientifc knowledge.”81 Despite what might have been considered exoneration, Halperin had been publicly named as a traitor to his country in an offcial government report. Others, like David Shugar and Agatha Chapman, whose cases will be discussed later, faced the end of their careers in the public service as the same government that had named them as traitors refused to continue their employment despite their legal exoneration. Halperin had always been planning at war’s end to return to his university, but he soon found that his position there was under threat from members of the Queen’s Board of Trustees, who did not want a “Communist fellow-traveller” teaching in their institution. One even had an assurance from the RCMP commissioner that the dismissal of the charges against Halperin “does not invalidate the conclusion reached by the Royal Commission.” Halperin faced dismissal for “impropriety”; his position was saved only by the intervention of the chancellor, Charles Dunning, who defended academic freedom, thus halting a witch-hunt on campus.82 Halperin went on to a distinguished career as one of Canada’s leading mathematicians, but throughout his life and even after his death in 2007 the sinister shadow cast by the Commission never lifted.83 As recently as 2009, the leading British intelligence historian Christopher Andrew in his Authorized History of MI5 refers in passing to a “Canadian agent of the GRU, Israel Halperin.”84 Most bizarre of all is the strange career of Halperin’s address book, seized when he was detained, which included the names of six others detained or charged in the Gouzenko investigation. Halperin might be innocent in the eyes of the law, but his address book imparted guilt by association to everyone in it. The intelligence services of Canada, the US, and Britain retained the book as a guide to other espionage leads, including the tragic case of Canadian diplomat Herbert Norman, hounded to suicide by Washington witch-hunters. Among the “charges” against Norman was the presence of his name in Halperin’s address book (the two had been students together and occasionally met socially in wartime Ottawa).85 Halperin’s address book is the classic example of the circularity of guilt by association: Halperin was guilty because others who were guilty were in his book; the others were guilty because they were in

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Halperin’s book. But this entire farrago was seated frmly in the methodology of the Royal Commission. David Shugar was another uncooperative witness who paid dearly for his refusal to submit to the government’s dictates. Like Halperin, Shugar appears in retrospect to have been genuinely innocent of the charge of espionage. Like Halperin, to the Commission he was guilty by association; guilty by way of holding left-wing political views; and guilty above all because of his “demeanour,” which is to say, his hostility to his inquisitors and his insistence on his rights. Worse, Shugar had embarrassed the government by managing through his wife to bring public attention to his plight – in detention without counsel and habeas corpus. Ross Lambertson has described Shugar’s victimization in detail.86 The Commission insisted that Shugar was guilty of espionage, despite the lack of any evidence of unauthorized transmission of classifed information. The documentation provided by Gouzenko suggests that like Halperin, Shugar was viewed as a prospect who never actually delivered. Students of the world of espionage are aware of the universal problem of value-infation in building spy networks. The Soviets may have been deceiving themselves about the value of prospects transformed prematurely into assets, but the RCMP and the Commission seemed even more credulous. Much of the Commission’s time examining Shugar was spent not on adducing evidence of spying but rather on his political opinions, in particular evidence of Communist sympathies. With Shugar on the stand, the commissioners demanded to know if he was a Communist. Shugar refused to answer on the basis that he did not see the “point” of the question. The questioner shot back: “You do not need to understand the point of it ... You are trying to look ahead and see if there is some point involved, but that is not your function. You are here to answer questions.”87 The Commission concluded that Shugar was “a convinced and ardent Communist” who had kept his position secret in order to facilitate his espionage. Shugar volunteered that he had “certain ideas about unions, about conditions, current conditions and the need for remedying them, which I believe are my rights as a Canadian citizen.” This was perhaps a reference to his active role in the Canadian Association of Scientifc Workers (CAScW), a relatively young organization of progressive-minded scientists and technicians in the public sector, which had come under RCMP surveillance prior to Gouzenko’s defection. To the Royal Commission, the CAScW was a prime example of the kind of Communist front association intended as a recruitment channel for Moscow’s spies.88 Shugar’s

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participation not only reinforced suspicions about his alleged Communist ties but also earned him a reputation as a troublesome labour agitator. The clinching argument for Shugar’s culpability was that his name appeared in the telephone directories of Lunan and Boyer and that he was known to have associated from time to time with at least seven others under suspicion for spying. Thus, “from the circumstances including Shugar’s conduct and character as revealed before us by him in the witness box,” the Commission concluded that Shugar had agreed to spy and had in fact violated the Offcial Secrets Act.89 Yet when Shugar was sent to trial, the certitude of the Commission crumbled ignominiously. At a preliminary hearing, Gouzenko, called as a Crown witness, “was forced to admit that the GRU never received any information from Shugar and knew nothing about him except that he worked in the navy.”90 All charges were dropped. As other public servants named by the Commission but later exonerated by the courts quickly learned, the government took the side of its Commission, not the judicial branch, when it came to determining their future employability in the public sector. With a single exception (a fagrant case of false accusation91), none of the public servants named would ever be employed by the government again. Shugar was refused re-entry to his old department. Blacklisted in the public sector, he would fnd efforts to gain private sector employment dogged by the dark stain of the Commission’s fndings. Eventually he had to abandon Canada altogether and found academic employment in his native Poland. A lengthy and distinguished academic career in that country was marked by his elevation in 1999 to the Royal Society of Canada, some small measure of recompense from the land to which he was never to return. Family in Canada petitioned the Canadian government in vain for a formal vindication before he passed away in 2015 at the advanced age of 100.92 Agatha Chapman is the saddest example of the havoc wrought by the Commission on the lives of innocents caught up in the wrong place at the wrong time. Whatever circumstantial evidence clung to Halperin and Shugar, pure guilt by association was the only ground for dragging her into the Commission’s circle of the damned, and in the process destroying her. She was not among the detainees, and unlike Halperin and Shugar, she had never appeared in the Soviet spymaster’s reports, even as an aspirational prospect. But her name did come up in passing in the interrogation of the detainees Willsher and Mazerall, as one who had attended and sometimes hosted the study groups the Commission was targeting as espionage cells. She was subpoenaed to appear as a witness before the

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Commission and was interrogated, not about spying, but about whom she knew socially and her political beliefs. Twenty pages in the report were devoted to her, which ended with the frm conclusion that “in our opinion Chapman was a party to the communication [of secrets]” (in another paragraph, she was described as having “aided” in the transfer of secrets).93 The evidence was that she associated with persons who did spy and that she apparently held political opinions similar to some of those who did spy.94 Yet on these fimsiest of links alone, Chapman’s brilliant career prospects were dashed and her life caught in a brutal downturn of disappointment and despair, ending fnally in suicide. Agatha Chapman was no ordinary suspect. The great-granddaughter of Sir Charles Tupper, a Father of Confederation and prime minister of Canada, she also boasted in her lineage a former Lieutenant Governor of Manitoba and a father who had been a high court judge in India. Her academic record was outstanding: a postgraduate degree from the University of Toronto leading to a position as an economist at the Bank of Canada, seconded to the Dominion Bureau of Statistics (DBS), at a time when there were very few women economists in academia or government employment. She was working with a small group at the cutting edge of the transformation of statistical analysis of the Canadian economy (“national accounting”) that was making possible not only effective handling of the wartime economy but also the post-war Keynesian era of national economic management.95 She had every prospect of a glittering career ahead of her. And then it all came crashing down in early 1946 when she was named in the Gouzenko Royal Commission. The Royal Commission did not strike its thunderbolts entirely at random. Chapman was not just a highly accomplished economist and statistician; she was a woman with left-wing, “progressive” views on politics, of which, perhaps naively, she made no secret. Wartime Ottawa was a place where well-educated and engaged public servants, drawn to war work from many walks of life, met to discuss politics and public policy in an atmosphere of free expression and open-mindedness about the shape of the post-war world. Given that Soviet Russia was a wartime ally, socalled left-wing views could be considered part of the landscape of democratic discussion. Chapman found like-minded friends like Eric Adams, also a high-fying young economist at the Bank of Canada, and these friends came together for readings and discussions on a wide variety of topics. Fred Rose, Communist MP, participated from time to time, as did a number of those later named (including Adams) and, in some cases, later convicted (like Willsher) of spying for the Soviets. As indicated earlier,

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the Royal Commission focused relentlessly on so-called study groups as recruitment cells for Soviet espionage operations. Of course, the Soviets did try to use such study groups or certain unions or other associations in this way, with some success, as demonstrated by the Commission. It was a large leap in logic, however, to assume that because some spies were recruited from certain groups, everyone who attended these groups was de facto a spy or had knowingly assisted spying. But there was Agatha Chapman’s name in the Report. The appearance of her name was like a door being defnitively slammed shut: for public servants, being named by the Commission had the same effect as appearing on an offcial proscription list of personae non grata to be barred forever from public employment. She was suspended indefnitely from the Bank of Canada on the strength of the Commission’s word alone. In her innocence, believing that having her day in court could clear up this misunderstanding, Chapman went to the press and petitioned the justice minister for charges to be laid. The Crown complied and in October 1946 she was committed to trial for conspiracy to communicate secret information to Soviet Russia. From the start, the Crown counsel, J.J. Robinette, had deep misgivings about prosecuting Chapman, although he admitted there was “suffcient evidence to cast upon Miss Chapman the burden of establishing her innocence.”96 He also acknowledged that Willsher’s testimony before the Commission that pointed to Chapman was all over the map and hardly damning.97 Since the only other potential witness, Eric Adams, had been acquitted of all charges, Robinette’s last pretrial advice was: “I think that we should seriously consider offering no evidence against Miss Chapman.”98 The outcome of Chapman’s case demonstrates the devastating effect of the Commission’s inquisition despite her subsequent acquittal at trial. In November, in an Ottawa courtroom, Gouzenko himself testifed that he had never seen any mention of Chapman in the Soviet embassy spy operation. Willsher testifed that she “had never told Chapman that she was giving Adams information.”.99 The judge made short work of the farcical charge, declaring there was no evidence produced by the Crown for espionage. “These people were all friends. There is no evidence of Miss Chapman having any knowledge of a conspiracy. I fail to see how a jury could possibly convict her. The accused is acquitted.”100 But in the new post-Gouzenko world, acquittal was not acquittal. A few days after her court vindication, a brief note in the press suggested that she would shortly resume her government position.101 In fact, her DBS job was reposted and she was turned down in favour of a less-qualifed

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candidate. Then the bank said it would not reinstate her in her research position. Despite her evident talents and invaluable contributions to the important new area of national accounting, the Bank of Canada and the DBS were powerless to reemploy her in the face of a higher power than the courts – the heavy hand and long reach of the Royal Commission.102 She left Canada for a research position at Cambridge University in Britain. Agatha Chapman had been declared a security risk, and the complete lack of substantiating evidence had no standing in reversing that declaration. Britain at frst seemed a respite. She published a book with Cambridge University Press in 1953. Yet longer-term prospects did not open up, and she returned to Canada in the 1950s to form a research consultancy with Eric Adams, using national accounting techniques on behalf of trade unions, work that she may have found congenial but that earned dwindling income. As McDowall writes: “In reality Chapman was condemned to live out her life on the margins. In that she was serving the interests of labour, she was pleased to be there. But, on an existential level, one can also sense that Chapman never recovered from the Gouzenko affair.”103 She had long suffered from arthritis and, living in genteel poverty, her condition worsened, making her daily life a misery. In 1963, she climbed to the top of the stairwell in her apartment building and jumped to her death. phase 4: in the courtroom Criminal charges, mainly unauthorized disclosure of classifed information or conspiracy to disclose information under the Offcial Secrets Act, were recommended for twenty-two named by the commission – twentyone directed to Canadian courts and Alan Nunn May in the UK. In the twenty-one Canadian cases that went to trial, eleven were convicted, ten were either acquitted or had the charges withdrawn by the Crown, and three were overturned on appeal. Of the thirteen accused held in prison without bail, seven were convicted, six were not. Generally, detainees who cooperated with their RCMP interrogators and the Commissioners were convicted in court on the strength of their previous self-incrimination; uncooperative detainees who had refused to answer generally were acquitted due to insuffcient evidence.104 As the security offcials had feared from the start, it was much more diffcult to secure convictions in a judicial trial than in an executive “star chamber” proceeding using methods of interrogation in secret without legal protection for witnesses. Worse, from a security standpoint, was that a .500 batting average in court tended to call into question the certainty

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with which the Commission had presented its fndings. Moreover, court challenges by the defendants raised questions about the methods employed in the earlier phases, giving strength to criticism and protests inspired by the apparent violations of civil liberties and disregard of the rule of law. This phase was from the government’s point of view less successful than the earlier phases, the relatively weak link in the overall process put into operation by Gouzenko’s defection. On the other hand, to critics of executive action and defenders of civil liberties, Phase 4 might be seen as a partly saving grace in a questionable process. There was never any expectation that Canadian courtrooms might serve as the site of “show trials” analogous to the propaganda displays put on in Soviet courtrooms. Western courts were not the arm of a one-party state. Even at the reduced visibility level of potential teaching experiences for a public being prepared for the new Cold War era, judicial procedures were singularly ill-equipped to deliver political lessons. For example, the defence had latitude to contest the charges in public proceedings, and effective counsel could frustrate prosecutions. The courts were a riskier forum for the government than the Royal Commission, despite the procedural and national security expedients available to the latter under the Offcial Secrets Act and the Kellock–Taschereau seal of approval for the Crown’s approach. The case that most resembled a show trial was that of Fred Rose, which did provide the press with the exemplary lesson that even democratically elected Communists could not be trusted with public offce. As the Crown prosecutor declared at Rose’s preliminary hearing, he might be a member of Parliament but he was also “a betrayer of his country” and a “traitor to His Majesty.”105 The Montreal courtroom was specially guarded by a half-dozen RCMP offcers, ostensibly to protect Igor Gouzenko as witness, but also providing a visual reminder that King and Country were at stake. Despite the public embarrassment suffered by the Communists, the party contributed “several thousand dollars” to Rose’s defence,106 which was led by celebrity left-wing lawyer J.L. Cohen, with a well-known leftwing British barrister and MP, Denis Nowell Pritt, added to the team.107 There was, however, no way the defence could turn the proceedings to the advantage of the Communists. Rose’s politics were a backstory but not part of the prosecution’s case. Before being sent off to deliberate, the jury was instructed by the judge that the trial “was not about the politics of the accused.”108 The charge against Rose was conspiracy to violate the Offcial Secrets Act. His guilt was sealed on the testimony of Raymond Boyer that he had passed information to Rose on the explosive RDX for Rose to pass

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Fred Rose MP, charged under the Offcial Secrets Act, in court, fanked by police offcers. Library and Archives Canada, Montreal Star fonds, MIKAN 5676920 (Accession 1980–108 item 12)

on to the Soviets.109 That RDX was not much of a secret110 was no defence; all that mattered under the Offcial Secrets Act was that the information was classifed. Rose was convicted of conspiring to pass information and sentenced to six years’ imprisonment. The Rose case was not a show trial in the sense of an orchestrated propaganda exercise, but the result had a similar effect in advancing the government’s Cold War aims. The only elected Communist MP had been found guilty of an offence that could be construed as treason, on behalf of Soviet Russia. This was exactly the political picture the RCMP and MI5 had looked to establish after frst seeing Rose’s name in Gouzenko’s documents. That the government did view Rose’s process as in effect a show

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trial can be seen by their actions following Rose’s release from prison and his return to his native Poland. In 1957, Rose’s Canadian citizenship was revoked, a unique application of the Citizenship Act by order-in-council.111 In other words, Rose was deemed a traitor to be cast out of Canada, and his treason was directly linked to his Communism. The other leading Communist implicated in espionage, Sam Carr, escaped the immediate clutches of the law by going into hiding. Eventually he was apprehended in the US, extradited, tried, and convicted in 1949, but by this time, public interest in the Gouzenko affair had waned. With the partial exception of the Rose trial, the other cases that went to court drew less public attention than the sensational fndings of the Royal Commission. Reporters assigned to the trials soon found the courtroom proceedings dull, with arcane legal disputes crowding out the stories of spies and betrayals that had enlivened the pages of the report. Juries may also have found some of the detailed proceedings trying on their patience; in one case, a charge to the jury had to be suspended when one juror was seen to have fallen asleep.112 Gouzenko as witness was reasonably good copy in the early trials, but the repetitive nature of his testimony in further trials soon diminished the appetite of readers and the interest of editors. The verdicts received more attention than the proceedings themselves, and here the ideological predisposition of various newspapers determined the nature of the coverage. Some papers, like the Ottawa Citizen, which was critical of the government’s handling of the affair, trumpeted each acquittal as vindication of their civil libertarian editorial stance; more conservative papers such as The Gazette (Montreal) tended to downplay acquittals but play up convictions and the entailed moral lessons about the dangers of Communism. As the intelligence community had assumed from the time of Gouzenko’s defection, the courtroom was not the most desirable venue for publicizing the Soviet spy scandal. The intelligence professionals could draw from the court record some retroactive justifcation for their preferred route of detention, police interrogation, and Royal Commission inquiry, but they recognized that the high number of acquittals tended to cloud public acceptance of the Commission’s fndings. In the end, perhaps the most judicious characterization of Phase 4 is that the RCMP and the Commission were partly vindicated and partly undermined by the courts. Moreover, the courtroom provided critics of the government’s handling of the affair with little success in bringing the law to bear against the contested methods of the Commission. Some defence strategies were clearly no more than publicity stunts.113 Other defence strategies that

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attempted to raise broader questions about departures from usual due process, judicial independence, and the rule of law were doomed from the start as unconvincing. Chief among these was the argument put forward in a number of trials concerning the admissibility as evidence of the Gouzenko documents, on the grounds that these were stolen property of the Soviet embassy, thus enjoying diplomatic immunity, but this was perhaps more a “Hail Mary pass” from desperate defence counsel than a plausible legal opinion. There was, though, one argument put forward by defence counsel that had the potential to raise serious legal and constitutional issues; had it succeeded, it would have called into question the legality of the basic methods employed by the RCMP and the Commission. This was the issue of the admissibility as evidence of self-incriminating statements made by the detainees while in RCMP detention and before the Commission. Although the issue of self-incrimination was raised in a number of cases, we can focus on the trial of Edward Mazerall, where the court frst addressed the issue. Mazerall was a scientist and engineer employed by the National Research Council in 1942 to work in radar development. The Commission reported Gordon Lunan’s testimony that Mazerall had agreed to provide secret information to the Soviet Union as well as Mazerall’s own testimony confrming that he had done so.114 The MI5 observer reported that in his opinion Mazerall was “politically naïve,” believing that leaks such as his “would be reciprocal and lead to the pooling of scientifc knowledge.” Interestingly, the same observer also suggested that “fullest use was made of” Mazerall’s naivety not just by the Soviets but by the RCMP in inducing him to confess. The observer also concluded that, given Mazerall’s admissions, a case against him “would stand in any court.”115 The hint about exploiting Mazerall’s naivety is explained when it is noted that his legal defence entered information in court that while he was being interrogated by the RCMP in detention, Inspector Harvison had suggested to him that “the Commission might take a lenient view if he ‘made a clean breast of it.’” Defence counsel claimed that “the hope of leniency, induced by the inspector’s remarks, may well have brought about a ready agreement by the accused with leading questions asked by Commission counsel.”116 Mazerall’s claim was that he had been improperly induced to confess, which was a separate point for adjudication, but his larger point was that his self-incriminating statements to the Commission should not be admissible in subsequent criminal proceedings against him. Like the other detainees, Mazerall had been unrepresented by counsel and had

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not been advised that he could have invoked the Canada Evidence Act to protect against self-incrimination. The trial judge, Ontario High Court Chief Justice McRuer, ruled against him, and the Ontario Court of Appeal upheld his ruling. McRuer’s legal reasoning, which Ontario Chief Justice R.S. Robertson endorsed on appeal, was that according to a number of precedents in both Canadian and British law the protection against self-incrimination could not be retroactively applied to Mazerall.117 The Commission was a properly accredited commission of inquiry under the Inquiries Act that had authority to place witnesses under oath to answer truthfully all questions put to them. Mazerall could not have refused to answer any questions, but if he had invoked section 5 of the Canada Evidence Act, any statements that were self-incriminating could have been blocked from being used against him in subsequent criminal proceedings. However, he did not invoke the Act, so his statements were admissible. It was not up to the Commission to inform him of any rights of which he was unaware. Of course, Mazerall’s ignorance of his rights might have been rectifed had he had access to counsel. But the Commission was under no legal obligation under its powers to grant counsel. As for Mazerall not knowing his own rights, the judges pointed out that ignorance of the law is no excuse. Finally, as to the claim that Mazerall had been induced to testify by an RCMP promise of leniency, again the court held that an inducement was only improper if the defendant was induced to make a false statement. Instead, the judges noted, Mazerall went on to make true statements under oath, hence there was no improper inducement. The last point might seem to refect an “Alice Through the Looking Glass” species of logic: if Mazerall had made false statements under oath, Inspector Harvison could have been guilty of improper inducement; but if he had, Mazerall would have been guilty of perjury. The same somewhat bizarre logic underlay the entire dismissal of all Mazerall’s claims with regard to his denial of rights before the RCMP and the Commission, with the legal consequences that followed. The judgment in Mazerall’s case to admit self-incriminating statements made before the Commission was followed in the cases of Gordon Lunan, Raymond Boyer, and Dunford Smith.118 There can be no suggestion that the judges had misconstrued the law as it stood in the late 1940s. What it does suggest is that the law left individuals with few rights when faced with the full panoply of executive state powers being exercised at a time when national security was seen to be threatened – powers that were widely protected under the provisions of the Offcial

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Secrets Act and the deference, if not complicity, of Supreme Court of Canada judges. In a study of the Gouzenko trials, Dominique Clément makes two very important, related points to help explain the relative lack of judicial interest in the rights issue.119 First, in this pre–Charter of Rights and Freedoms era, the judiciary tended to place responsibility for protecting fundamental freedoms in the hands of Parliament: “judges were not to rule over the propriety of legislative or parliamentary action from a rights point of view.”120 Moreover, Canada had just come through a war during which Ottawa ruled in many areas under extraordinary emergency powers, including the indefnite detention of large numbers of people deemed threatening to the war effort under the draconian authority of the War Measures Act. The Gouzenko investigation had been initiated under a secret order-in-council issued under that Act, which remained in force after the war’s end. Judges were used to deferring to the Crown in cases where national security was at issue or a state of emergency was in effect, and it appeared from the Gouzenko trials that this deference would continue into the Cold War era. gouzenko’s long-term impact Beyond these legal issues, the domestic impact of the Gouzenko affair had two related dimensions. A systematic security-screening process was instituted in the federal public service that identifed Communists and those associated with Communists as the primary security risks to be denied public employment. If already employed, security risks were to be either removed from the public service or quarantined in positions without access to classifed information.121 Similar screening was subsequently applied to the post-war tide of immigrants and refugees entering Canada.122 The broader impact on Canadian society was the framing of an ideological narrative that defned Communist and left-wing opinions and political activity as broadly suspect, possibly linked to a hostile foreign power and posing a potential Fifth Column threat to national security and to the institutions of civil society. The government’s careful management of information on the spy affair led to a distinctively Canadian approach to managing the domestic Cold War that eschewed the unrestrained excesses of McCarthyite witch-hunting evident in the United States, while maintaining executive control over anti-Communist political policing.123 In the short run, on the one hand, the draconian methods of the executive branch in handling the spy affair, and their approval as legal and

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constitutional by way of complicity of the judicial branch, did not generate enough public and parliamentary outcry to seriously contest the government’s approach. That has perhaps changed in the post–Charter of Rights era and following wide-ranging public debate over the expansion of national security powers in anti-terrorism legislation. The argument that if the state can arbitrarily strip away some fundamental rights of citizens on the grounds of “national security,” then in effect no one has any rights (or at least that rights depend on circumstances), has attained a greater degree of acceptability.124 But it had little purchase in the late 1940s. On the other hand, it might be said that the Gouzenko trials began a debate that eventually transformed the landscape around national security and the law. Considerable criticism from a civil libertarian point of view emerged in the face of the handling of the Gouzenko affair.125 While it had no immediate impact on the judiciary, or on the practices of the government, the debate it initiated did have longer-term consequences that contributed to recognition of a greater need to protect fundamental rights even when national security is at stake. The affair also had a marked effect on Canada’s international role. Ever closer cooperation with the US and British intelligence communities was accelerated by the successful secret handling of Gouzenko’s defection.126 Coordination of efforts at the top by the Canadian, US, and British leaders formed a template for the developing anti-Soviet Cold War alliance in which the “Anglosphere” would be the leading element. What was not publicly apparent at the time was the destabilizing impact that Gouzenko’s defection, along with that of Elizabeth Bentley in the US,127 had upon Soviet espionage operations in North America. As early as the fall of 1945, the Gouzenko defection led Stalin to appoint the leading Politburo fgure Georgi Malenkov (later prime minister) to chair a special Politburo commission to reform Soviet intelligence.128 Within days of the defection, Moscow had telegraphed the London KGB station to put its “valuable agent network” on ice “because of the disruption of our work in Canada and the intensifcation of counter-measures against us.” By November 1945, Stalin had been alerted about a pullback of spying operations in North America. A temporary halt to contacts with agents and sources became by late 1945 “the freeze of virtually all intelligence activities ... in North America, a pause that lasted until 1947.” For a time, what had been very effective intelligence operations began to look more like a media clipping service.129 It was only as late as 1950 that the head of the KGB intelligence service, crediting Gouzenko with “managing to

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infict serious blows to our agent network in the U.S.,” ordered the full resumption of operations.130 Ironically, just as the anti-Communist witchhunts were reaching fever pitch in the US, the threat of the Communist underground “had become the stuff of both history and myth – but no longer reality.” It was however a “remarkable achievement by Soviet intelligence in the mid-1940s ... to keep American counter-intelligence ignorant of the dramatic manner in which its networks were swiftly dismantled after the Gouzenko and Bentley defections.”131 Some commentators have downplayed the Gouzenko affair as a sideshow. On the contrary, it was one of the formative events in the emerging Cold War era. NOTES 1 Gouzenko himself later acquired an iconic public image in Canada, cemented by the publication of his memoirs and an award-winning novel; by a Hollywood flm starring Dana Andrews as Gouzenko; and above all by his appearances on television wearing a bag over his head. Gouzenko’s later public image has retroactively distorted the historical perception of Gouzenko in 1945–6. For example, in a collection of academic articles on Gouzenko, the distinguished British intelligence historian Christopher Andrew begins his contribution by insisting that “the most enduring icon of the Gouzenko case is the Monty Pythonesque image of Igor Gouzenko giving evidence to the Canadian royal commission with a paper bag over his head” (Christopher Andrew and Calder Walton, “The Gouzenko Case and British Secret Intelligence,” in The Gouzenko Affair: Canada and the Beginnings of Cold War Counter-Espionage, ed. J.L. Black and Martin Rudner [Newcastle: Penumbra Press, 2006], 38). It would be the “most enduring icon” if it was true, but it is nonsense. All testimony to the commission, including Gouzenko’s, was in camera with no need for disguise. His testimony in the subsequent criminal trials was public, yet no attempt was made to cover Gouzenko’s face or otherwise hide his identity, and indeed reporters commented on his appearance. The “Monty Pythonesque” bag was a later innovation by Gouzenko in the 1950s, but he was a more serious fgure at the time of his defection, and historians should know better. 2 Documentation for analysis of the courtroom phase of the affair is drawn from the voluminous responses to Access to Information requests to the Department of Justice (A90–0088 and A90–00180), completed on 25 February 1991 (hereafter cited as WK). My thanks to William Kaplan, who brought the

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original request and generously donated to me the many hundreds of pages released. These records include all the reported cases, Justice Department memoranda on various legal points submitted to the Crown prosecutors, and press clippings on the trials, including those unreported. On the court cases, see also Barbara J. Falk and Tyler Wentzell, “The Enemy Within,” in this volume. The expansive scope of Soviet espionage operations in North America in the 1930s and 1940s was later made clear by the “Venona” decrypts of thousands of secret Soviet messages: John Earl Hayes and Harvey Klehr, Venona: Decoding Soviet Espionage in America (New Haven: Yale University Press, 1999). The Canadian GRU operation revealed by Gouzenko was unravelled well before the Soviet code was cracked by the National Security Agency in the US, although the Venona decrypts did cast a bit more retroactive light on Soviet Canadian operations. In 1945–6, the US had yet to create the Central Intelligence Agency for foreign intelligence (the wartime OSS was being wound down), so the FBI was solely responsible for counter-intelligence, mirroring the situation in Canada, which has to this day never ventured into operating a stand-alone foreign intelligence collection agency. There is a fog of mythology surrounding Stephenson (codenamed Intrepid), cultivated by journalist William Stevenson in A Man Called Intrepid (New York: Harcourt Brace Jovanovich, 1976) and Intrepid’s Last Case (New York: Villard Books, 1984). A sceptical view of Intrepid’s more lurid claims can be found in David Stafford, Camp X: Canada’s School for Secret Agents 1941–45 (Toronto: Lester and Orpen Dennys, 1986), 271–92; and J.L. Granatstein and David Stafford, Spy Wars: Espionage and Canada from Gouzenko to Glasnost (Toronto: Key Porter, 1990), 76–87. An appreciation of Stephenson’s actual role can be found in retired CIA offcer Thomas F. Troy’s Wild Bill and Intrepid: Donovan, Stephenson, and the Origin of CIA (New Haven: Yale University Press, 1996). The relevant point here is that Stephenson managed to alienate both MI5 and the FBI with his attempts to aggrandize his role in the Gouzenko matter. UK National Archives, Guy Liddell Diaries (GL). Guy Liddell had begun his career in Scotland Yard, joining MI5 in 1931, rising rapidly to become one of the Service’s “most distinguished deputy director generals.” At the time of the Gouzenko defection, Liddell had reasonable expectations of being made director, but was instead passed over by the appointment of a police offcial, Sir Percy Sillitoe, by the Labour government: Christopher Andrew, The Defence of the Realm: The Authorized History of MI5 (Toronto: Penguin, 2009), 118, 318–19.

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7 The British conspiracy theory has been offered by John Bryden, Best-Kept Secret: Canadian Secret Intelligence in the Second World War (Toronto: Lester, 1993), 267–75; and in more detail by Mark Kristmanson, Plateaus of Freedom: Nationality, Culture, and State Security in Canada, 1940–1960 (Toronto: Oxford University Press 2003), 137–80. Much has been made of the supposed presence in Canada of Sir William Stephenson at the time of the defection. In fact, Stephenson was called in by Ottawa following the defection. In any event, Stephenson was barely persona grata with either MI6 or MI5 and in no position to mastermind an elaborate British deception operation. Based on a single, likely confused, reference in Mackenzie King’s diary, it has been suggested with no corroborating evidence that “C,” the Director of MI5, Sir Stewart Menzies, was in Ottawa at the time. 8 GL: KV-4–466, 15 September 1945 9 Amy Knight, How the Cold War Began: The Gouzenko Affair and the Hunt for Soviet Spies (Toronto: McClelland and Stewart, 2005), 41–2. 10 GL: KV-4–466, 11 September 1945. 11 As late as 2010, the Royal Commission investigating the 1985 Air India bombing devoted an entire volume of its report and a major research paper to the intelligence / evidence problem: Commission of Inquiry into the Bombing of Air India Flight 182, Air India Flight 182: A Canadian Tragedy (Ottawa: Public Works and Services Canada, 2010), vol. 3, “The Relationship between Intelligence and Evidence and the Challenges of Terrorism Prosecutions”; vol. 4: Kent Roach, “The Unique Challenges of Terrorism Prosecutions: Towards a Workable Relation between Intelligence and Evidence.” 12 GL: KV-4–466, 13 September 1945 13 GL: KV-4–466, 14 September 1945. That Philby approved the choice of Hollis helped fuel the conviction of former MI5 offcer Peter Wright that Hollis was a Soviet mole (Peter Wright, Spycatcher [New York: Viking, 1987]). Hollis came under suspicion, particularly by the CIA and FBI, after the 1951 defection of Guy Burgess and Donald Maclean. In March 1981, Prime Minister Margaret Thatcher publicly cleared Hollis of suspicion in Westminster, and Andrew argues that suspicions about Hollis were baseless in The Defence of the Realm, 503–4. 14 MI5: KV2/1421, Hollis to Philby, 19 February 1946; Knight, How the Cold War Began, 136–7. 15 GL: KV-4–466, 18 September 1945. One of Stephenson’s schemes was to feed one of the suspects, Kathleen Willsher, employed in the British High Commission in Ottawa, with disinformation that would make its way back to Moscow. Neither MI5 nor MI6 was impressed with this kind of improvisational meddling in a counter-espionage investigation.

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16 GL: KV-4–466, 18 September 1945. 17 GL: KV-4–466, 19, 22, and 24 September 1945. Liddell’s frustration with Stephenson reached a peak with an irritated entry in his diary that he could see “no possible reason why [the BSC] should be having a fnger in the pie at all.” The matter was “purely” between MI5, the RCMP, and the FBI. Stephenson, “having set himself up as the Great Panjandrum does not now want to [get] knocked off his perch. Everything that he does or does not do is a matter of personal prestige and the organisation has to suffer accordingly”: KV-4–466, 25 September 1945. 18 GL: KV-4–466, 8 October 1945. Liddell met with Norman Robertson, the senior Canadian offcial overseeing the case, but reported that no action was to be taken yet in the absence of a high-level agreement, bound up with the larger unresolved question of atomic sharing with the Soviet Union. Liddell “stressed the urgency of the matter as otherwise the case would simply go cold.” 19 GL: KV-4–466, 9 November 1945. 20 UK National Archives, MI5 Records KV 2/1425 no. 764, Hollis to MI5, 19 November 1945; no. 765, “Draft agreement on procedure for dealing with the ‘Corby’ case,” n.d. – see volume appendix. 21 On the RCMP’s emphasis on anti-Communism dating back to the Bolshevik Revolution see 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), 93–270. On the RCMP’s antiCommunism in the period immediately preceding Gouzenko’s defection, see Reg Whitaker, “Offcial Repression of Communism during World War II,” Labour/le Travail 17 (1986): 135–68. 22 National Emergency Transition Powers Act (9–10 Geo VI) S.C. 1945 c.25. Wartime executive orders continued in effect and were modifed and supplemented through renewals of this temporary legislation in 1947 and 1948. See also Adams, Stanger-Ross, and the Landscapes of Injustice Research Collective, “Constitutional Wrongs,” in this volume on the post-war application of wartime emergency measures. 23 MI5: KV 2/1425 no. 765, “Draft agreement,” Annex I. 24 Although Bentley had become increasingly alienated from her Soviet handlers for some time, her decision to become a key FBI informant seems to have occurred just a few months after Gouzenko’s defection in November: Allen Weinstein and Alexander Vassiliev, The Haunted Wood: Soviet Espionage in America – the Stalin Era (New York: Random House, 1999), 84–109. There is conficting evidence in the records as to whether it was the FBI or the US State Department that was urging delay in following up on Bentley. MI5 thought it more likely the latter, but the RCMP let it be known that J. Edgar Hoover’s FBI was the main source of the new delay.

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25 GL: KV-4–466, 3–4 December 1945. 26 MI5: KV 2/1425 nos. 855, 856, and 857: Malcolm Macdonald to Sir Alexander Cadogan and Lord Halifax, 2 December 1945. 27 MI5: KV 2/1425 no. 858, MI5 telegram to Canada, 2 December 1945. 28 A2017/340 Wood to St Laurent, 2 December 1945. 29 LAC, Department of External Affairs (DEA), vol. 2620, Hume Wrong, Memorandum, 3 December 1945. The credibility of Wood’s claims is doubtful. Harry Dexter White was a Soviet agent of infuence high in the Treasury Department, although the link between Gouzenko and White’s exposure has proved elusive. Wood’s references to the intelligence services and the White House were dubious then and now. It is likely that Wood was playing on the prime minister’s understandable ignorance of arcane American counter-intelligence matters. 30 Reg Whitaker and Gary Marcuse, Cold War Canada: The Making of a National Insecurity State, 1945–1957 (Toronto: University of Toronto Press, 1994), 50–4. 31 Knight, How the Cold War Began, 95. 32 MI5: KV 2/1425, Halifax to Cadogan, 28 November 1945. 33 MI5: KV 2/1425 (1) no. 228 4 December 1945. 34 King’s trusting innocence about the dictator Stalin should come as no surprise. Two new books describe King’s enthusiasm for appeasing Hitler in the late 1930s: Robert Teigrob, Four Days in Hitler’s Germany: Mackenzie King’s Mission to Avert a Second World War (Toronto: University of Toronto Press, 2019); and Roy MacLaren, Mackenzie King in the Age of the Dictators: Canada’s Imperial and Foreign Policies (Montreal and Kingston: McGill-Queen’s University Press, 2019). Even when Mackenzie King publicly revealed the existence of the Soviet spy ring to the House of Commons in March 1946, he suggested that what he knew of Stalin “causes me to believe that he would not countenance action of this kind on the part of offcials of his country.” Once he was made aware, he confdently speculated, “we shall fnd that a change will come that will make a vast difference indeed” (Hansard, 8 March 1946, 56). He then cabled Czech president Edvard Beneš, whom he mistakenly believed to be a “great friend of Stalin,” to explain to the Soviet dictator and his foreign minister Molotov that the Canadian prime minister was certain that the spying had been conducted without offcial authority. The cable, needless to say, had no effect on Stalin, fnally coming to rest in the Soviet archives, where it was found by Amy Knight, How the Cold War Began, 167–9. 35 No one has yet found a convincing explanation for the missing November– December 1945 entries. CSIS even explored the idea that Soviet spies might have stolen the diaries, but also suggested that King himself could have been

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the culprit (Jim Bronskill, “CSIS suspected Soviet spies of stealing Mackenzie King’s diary,” Globe and Mail, 7 May 2017, 7). This question is discussed at greater length in Christopher Dummitt, Unbuttoned: A History of Mackenzie King’s Secret Life (Montreal and Kingston: McGill-Queen’s University Press, 2017), 236–57, 270–2. Retroactive embarrassment might even offer an explanation for the missing diary entries, the only gap to appear in King’s ffty-seven-year record. MI5: KV2/1425(1): no. 881, Halifax to Cadogan, 7 December 1945. Andrew, Defence of the Realm, 341–9, documents Philby’s reports to his Soviet handler on Gouzenko and his countermeasures to protect himself. There is an amusing story found in MI5: KV 2/1425(1): An RCMP plainclothes offcer in the Connaught restaurant in Ottawa was confronted by a waiter known as “Nick the Greek” who asked about “the disappearance of a Russian Embassy employee who had taken papers with him when he left the Embassy.” An open secret? GL: KV-4–466, 13 December 1945. GL: KV-4–466, 23 January 1946. Knight, How the Cold War Began, 104–6. As was typical of him, Stephenson later tried to take credit for the leak. Since he also claimed to have acted together with J. Edgar Hoover, his assertion has been deemed quite implausible (Hoover had no tolerance for Stephenson). LAC, William Lyon Mackenzie King Papers, Diary, 25 March 1946, 280. Whitaker and Marcuse, Cold War Canada, 59–61. Dennis Molinaro, ‘How the Cold War Began ... with British Help: The Gouzenko Affair Revisited,” Labour / le Travail 79 (Spring 2017): 143–55. In 1954 Igor Gouzenko was interviewed on television by Pearson, who was disconcerted when Gouzenko began by referring to the 1946 leak, putting Pearson on the spot: “Now tell me before interviewing, how did you do it?” Pearson evaded the blunt question by insisting that he, not Gouzenko, was the interviewer. Knight, How the Cold War Began, 234–5. GL: KV-4–466, 5 and 8 February 1946. GL: KV-4–466, 16 and 20 February 1946. In its fnal report the Commission stated that “[w]e had no jurisdiction with regard to such interrogation [by the RCMP], and the transcription was not made available to us, nor was it referred to by Counsel, except that in a very few instances in connection with certain points which arose, the witness was referred to statements made by the witness during interrogation ...” The “few instances” were in fact instances where detainees had confessed to particular matters under RCMP interrogation, that is, had incriminated themselves. They were then in the position before the Commission that if

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they denied what they had disclosed earlier they could be charged with perjury; if they affrmed what they had agreed to earlier, they might be charged with espionage or espionage-related offences, a “Catch-22” that was only possible because the Commission had in fact access to the transcripts of the interrogations, despite their less than credible denial: The Report of the Royal Commission appointed Under Order in Council P.C. 411 of February 5, 1946 (Ottawa: King’s Printer, 1946), (hereafter RC 671). Detainee Gordon Lunan recalled being interrogated by RCMP Inspector Clifford Harvison, who declared at the outset: “We’ve tangled with you Reds before and you scream your heads off but there’s no way you’re going to wriggle out of this one ... Are you ready to tell us what you know?” When Lunan indicated he had no idea what it was about, and demanded to see his wife and his lawyer, Harvison responded: “At the moment you have no rights. You are being legally detained under an Order in Council and you are obliged by law to answer my questions.” Gordon Lunan, The Making of a Spy: A Political Odyssey (Montreal: Robert Davies, 1995), 21–2. Merrily Weisbord, The Strangest Dream: Canadian Communists, the Spy Trials, and the Cold War (Toronto: Lester and Orpen Dennys, 1983), 149. The question of counsel was never entirely clear. When Kathleen Willsher asked the Royal Commissioners about legal counsel, she was told that she had frst to answer all the Commission’s questions without counsel; if she were later sent to trial, she would have recourse to counsel. Since she could hardly challenge the legal powers of the inquiry to compel her testimony without beneft of legal advice, she abandoned the idea. Unstated was the point that she would be sent to trial on the basis of the answers she had given without beneft of legal counsel; indeed, she was later convicted on the basis of those answers (RC testimony, 1197–9.) Commission testimony, 19 March 1946 ctd in R. v. Smith (1947) Ontario Reports, 387–9; and in Robert Bothwell and J.L.Granatstein, eds., The Gouzenko Transcripts (Ottawa: Deneau, n.d.), 292–311.The Justice Department’s draft advice to the government in how to handle public criticism of the process included the rather bizarre argument that “it was in the interests of those mentioned in the Russian documents that they be given an opportunity of exonerating themselves in camera before the Royal Commission before such serious charges under the Secrets Act were laid against them” (WK: Robert Forsyth, “Report re espionage,” 20 January 1947). Emma Woikin simply crumpled before her interrogators and throughout the next two phases before the Commission and the courts, robotically admitting “guilt” over and over. June Callwood, Emma: The True Story of Canada’s Unlikely Spy (Toronto: Stoddard, 1984).

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52 LAC: RG 33/62, Royal Commission transcripts, 26 February 1946: “Yes, I know I can be shot quite easily, if necessary.” 53 See M.H. Fyfe, “Some Legal Aspects of the Report of the Royal Commission on Espionage,” vol. 24 (1946) Canadian Bar Review, 777–84. Fyfe notes at pp. 778–9 that section XI of the report in particular makes it clear that the commissioners regarded their mandate as extending beyond inquiring into and reporting evidence of offences, to include advisory briefs for Crown prosecutors to be taken up in trial proceedings, supported by explicit reference to the exceptional provisions in the Offcial Secrets Act. As examined below, the commissioners’ sweeping powers were refected in their treatment of witnesses during hearings: they were deprived of the presumption of innocence, regular due process, and rights under the Canada Evidence Act. 54 Robert Bothwell and J.L.Granatstein, eds., The Gouzenko Transcripts: The Evidence Presented to the Kellock–Taschereau Royal Commission of 1946 (Ottawa: Deneau, n.d.) 312–21. 55 RC, 161. 56 “Star Chamber” refers to the English court of the sixteenth and seventeenth centuries that derived its power from the Royal prerogative and denied common law procedures that provided for the liberty of the subject. It is used here in its popular sense as a symbol of executive government oppression involving secret and arbitrary legal proceedings. The actual record of the Star Chamber courts is more mixed: Edward P. Cheyney, “The Court of Star Chamber,” American Historical Review 18, no. 4 (July 1913): 727–50. 57 RC Report, 21–6. 58 The Canadian government banned the CPC during the Second World War, but after the Soviet Union became an ally in 1943, it re-formed as the Labour Progressive Party and operated under that name until 1959. 59 RC Report, 87–8. 60 On reading this, Mackenzie King might have felt some vindication for his earlier abortive go-it-alone scheme. Unlike the prime minister, the commissioners were too prudent to speculate about Stalin’s knowledge and approval of GRU spying. Their main concern was to avoid exacerbating relations with the Soviet Union. 61 RC Report, 111. 62 RC Report, 117. 63 Two years before Gouzenko’s defection, the national organizer of the British Communist party, Douglas Springhall, was convicted of running a spy ring in Britain that utilized the party apparatus, even though MI5 believed that

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Soviet agents normally “cut themselves off from the Party” – precisely the instructions given to the Cambridge Five (Philby et al.): Andrew, Defence of the Realm, 278. Zabotin’s methods appear to have fallen short of Soviet operational standards. RC, Report, 69, 73. As noted in the volume introduction, the imperial Offcial Secrets Act of 1911 was supplemented by Canada’s Offcial Secrets Act, passed in 1939 (S.C., 1939, c.49, combining provisions of the 1911 and 1920 UK legislation). Public servants before this time were subject to breach of offcial trust legislation in the Criminal Code, but the 1939 law greatly elaborated sanctions for disclosure of sensitive government information, extended liability for leaks beyond public servants to journalists and the broader public, and included wide procedural expedients such as reverse onus and in camera sessions. Notice provisions remained more elaborate in the UK during the Second World War. Only civil servants whose work necessitated access to confdential material, or who worked in certain sensitive departments such as External Affairs, would have been required to take secrecy oaths, but of course only these employees would have been of interest to Soviet spymasters. In his autobiography penned two decades after the Gouzenko affair, Harvison wrote that “so far as I was able to learn during lengthy interviews with the detainees, not one of them had fully accepted the Communist ideology. Surprisingly, three of them were extremely critical of Communism, of the lies, shifting opportunistic policies, and blatant propaganda used in the attempts to spread the Communist cause.” In what could only be termed a retroactive dissent from the Commission’s line, Harvison added that “the teachers in the secret cells they had belonged to had not done a very thorough job of indoctrination.” C.W. Harvison, The Horsemen (Toronto: McClelland and Stewart, 1967), 159–61. See Falk and Wentzell, “The Enemy Within,” in this volume. Reg Whitaker, ‘Cold War Alchemy: How America, Britain, and Canada Transformed Espionage into Subversion’, Intelligence and National Security 15, no. 2 (Summer 2000): 177–210. LAC, Department of Justice, vol. 2121, f. 150202, E.K. Williams, “The Corby case,” 7 December 1945. Williams had a long record as a scourge of political radicalism. He had been an extremely active member of the Citizens Committee of powerful business and professional men who had helped break the Winnipeg General Strike in 1919 and had assisted in the preparation of sedition charges against the strike leaders. On the Winnipeg seditious conspiracy trials see Reinhold Kramer and Tom Mitchell in CST4, 230–1. For

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details of Williams’s life and career, see Dale Brawn, The Court of Queen’s Bench for Manitoba, 1750–1950 (Toronto: University of Toronto Press, 2006), 319–41. Grierson testimony from Transcripts of the Kellock-Taschereau Commission, vols. 7 and 10. Whitaker and Marcuse, Cold War Canada, 235–9; Bothwell and Granatstein, Gouzenko Transcripts, 341–3; Gary Evans, John Grierson and the National Film Board: The Politics of Wartime Propaganda (Toronto: University of Toronto Press, 1984), 249–54. There were only seven brief recommendations made by the Commission; most had to do with enhancing security of information within government and “coordinating” and rendering “as uniform as possible” all security measures across government (Report, 689–90). The government responded with a cabinet directive establishing a systematic security screening process, drawing on existing practices but tightening and widening them and making them more consistent. See Whitaker and Marcuse, Cold War Canada, 161–87; and Whitaker, “Origins of the Canadian Government’s Internal Security System, 1946–1952,” Canadian Historical Review 65, no. 2 (June 1984): 154–83. Whitaker, Kealey, and Parnaby, Secret Service, 192–5. On the Hollywood blacklist, see, inter alia, Victor S. Navasky, Naming Names (New York: Penguin Books, 1980). RC, Report, 487–90. This admission came in a Radio Moscow broadcast on 20 February: Ottawa Citizen, 21 February 1946. RC Report, 687 (emphasis added). Offcial Secrets Act, 3 Geo VI c.49 3 (2). Knight, How the Cold War Began, 145. MI5 KV2/1423(2) March 29 1946 “Re: P.C. 4111.” MI5 KV2/1427(1). RC Report, 144. Lunan, The Making of a Spy, 145. Whitaker and Marcuse, Cold War Canada, 103–6. Throughout the rest of his life, Halperin consistently refused to discuss his involuntary involvement in the spy affair, abruptly terminating any interview if the questioner tried to raise the matter. Andrew, The Defence of the Realm, 341. Whitaker and Marcuse, Cold War Canada, 413–4. Ross Lambertson, Repression and Resistance: Canadian Human Rights Activists, 1930–1960 (Toronto: University of Toronto Press, 2005), in a chapter titled “The Gouzenko Affair, Civil Libertarians, and the Shugar Case” (143–95).

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87 RC Report, 310–12. The questions were not confned to Shugar himself; he was even asked if his wife was a member of the party. 88 Whitaker and Marcuse, Cold War Canada, 81–103. 89 RC Report, 313, 318. 90 Knight, How the Cold War Began, 145–6. 91 The exception was a clerk in the Passport Offce, W.H. Pappin, who was implicated by a colleague in the false passport operation led by Sam Carr. Pappin denied the accusation, but the Commission chose to believe his accuser (RC Report, 559). In court, however, the witness against Pappin was so thoroughly discredited that the case collapsed, and an embarrassed government felt compelled to rehire Pappin (Whitaker and Marcuse, Cold War Canada, 78). It should be noted that Pappin had no links to the Commission’s dreaded study groups. All of the other public servants named but freed by the courts did have such links, and to the government as employer these apparently trumped legal exoneration. 92 Marian Scott, “Soviet spy stigma meant life of exile for David Shugar,” The Gazette (Montreal), 28 March 2015; Judy Stoffman, “Spy scandal drove scientist David Shugar from Canada,” Globe and Mail, 20 November 2015. 93 RC Report, 479. The Commission had no hesitation about asserting how Chapman’s “mind works, or rather of the way in which she endeavoured to conceal the way in which it actually worked. When asked ‘What do you mean by “left-wing”?’ she said ‘I cannot defne the term “left-wing.”’ Then when asked ‘What do you understand by it’ she replied ‘Another word that people use in connection with it is “Progressive” but again how do you defne the word “Progressive”?’ The Commission took this as evidence that she was concealing Communism, confdent in its capacity to know how a witness’s mind “actually worked.” 94 In the MI5 fles there is a note following Chapman’s appearance before the Commission: MI5: KV/2–1423 (2) no. 471, 30 March 1946. The British observer found two reasons to assume her complicity. First, she suspiciously insisted upon being represented by legal counsel. Second, [s] he is a highly intelligent woman and answered questions carefully but was not able to hide the fact that she was a central fgure in the organization of study groups.” 95 Duncan McDowall, “The Trial and Tribulations of Miss Agatha Chapman: Statistics in a Cold War Climate,” Queen’s Quarterly 114, no. 3 (2007): 356–72. See also Duncan McDowall, The Sum of the Satisfactions: Canada in the Age of National Accounting (Montreal and Kingston: McGill-Queen’s University Press, 2008). 96 WK: J.J. Robinette to Deputy Minister of Justice, 6 September 1946.

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97 At the Commission, when asked specifcally if Chapman had known the deeper purpose of meetings between Willsher and Adams that Chapman had helped arrange, Willsher answered “I don’t know,” followed by “She might have known and she might not have known” and “She may not have” and, fnally, “I didn’t give it any thought, as to whether she knew or not” (RC testimony, 819–20). At the trial, she went further and stated that Chapman had arranged only one meeting in question, and that “Miss Chapman did not know the purpose of the meeting”: WK: Robinette to Deputy Minister, 3 December 1946. 98 WK: J.J. Robinette to Deputy Minister of Justice, 23 October 1946. 99 “Miss Chapman not mentioned says Gouzenko,” Ottawa Citizen, 27 November 1946; “Crown enters spy evidence: Gouzenko says Agatha Chapman not cited in Embassy fles,” The Gazette (Montreal), 27 November 1946. 100 “Woman freed on spy count,” Montreal Daily Star, 27 November 1946; “Agatha Chapman is freed in secrets-to-Russia case,” Toronto Daily Star, 27 November 1946. The Ottawa Citizen commented editorially that her “case from start to fnish was of the fimsiest kind and it is astonishing that it was ever brought.” “Fully exonerated” she might be, but the Citizen correctly suggested that “honourable acquittal does not wipe out the derogatory mention of Miss Chapman’s name in the royal commission’s report – a report that has been widely circulated in the United States and Great Britain already.” The government, the editors concluded sadly, “made a profound mistake in issuing to the world the commission’s report until the courts had pronounced on the guilt or innocence of those mentioned in it” (28 November 1946). 101 “Miss Chapman to return to work,” Ottawa Citizen, 29 November 1946. 102 “Unfortunately, I fnd it impossible [in Canada] to continue satisfactorily to work in my own feld at present”: “Agatha Chapman to do research work in England,” Ottawa Citizen, 25 March 1947. There was a brief attempt to insist on a printed slip inserted in further printings of the Commission Report that would indicate acquittals of those named. However, the Deputy Minister of Justice stated that “Commissioners are not bound by the rules of evidence as in the case of criminal proceedings ... Acquittal does not establish that the Commissioners were wrong in their inference” (WK: F.P. Varcoe, Memorandum for Mr Forsyth Re: Chapman and other persons acquitted, 17 December 1946). 103 McDowall, “The trial and tribulations of Miss Agatha Chapman,” 272. 104 Criminal cases arising from the Commission’s fnding include R. v. Adams (1946) (unreported) (1946) 86 CCC 425; R. v. Benning [1947] 3 D.L.R.

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908 (Ont. C.A.); R. v. Boyer (1948) 7 C.R. 165 (Qc C.A.); R. v. Carr (1948) (unreported); R. v. Chapman (1946) (unreported); R. v. Gerson [1948] 3 D.L.R. 280 (Ont. C. A.); R. Halperin (1946) (unreported); R. v. Harris [1947] 4 D.L.R. 796 (Ont. C.A.); R. v. Lunan [1947] 3 D.L.R. 710 (Ont. C.A.); R. v. Mazerall [1946] O.R. 726 (C.A.); R. v. Nightingale (1946) (unreported); R. v. Poland (1946) (unreported); R. v. Rose [1947] 3 D.L.R. 618 (Qc C.A.); R. v. Shugar (1946) (unreported); R. v. Smith [1947] 3 D.L.R. 798 (Ont. C.A.); R. v. Willsher (1946) (unreported); R. v. Woikin (1946) 1 C.R. 224. For more detailed discussion of the dispositions, and the full range of cases, see Falk and Wentzell in this volume at pages 191–2. “Gave top war secrets to help Communists,” Montreal Daily Star, 26 March 1946. David Levy, Stalin’s Man in Canada: Fred Rose and Soviet Espionage (New York: Enigma Books, 2011), 138. Cohen also represented Gordon Lunan, who in his memoir has left a scathing description of a sick and self-indulgent Cohen popping pills and acting erratically while failing to defend Lunan competently (Lunan, Making of a Spy, 211–14). Cohen’s sympathetic biographer quotes Lunan and notes that Cohen “was going into decline”: Laurel Sefton MacDowell, Renegade Lawyer: The Life of J.L. Cohen (Toronto: University of Toronto Press, 2014), 219–20. Cohen was in fact facing conviction on a sexual assault charge and disbarment in 1947. Pritt had been expelled from the Labour Party in 1940 for supporting the Soviet invasion of Finland and sat in the British Parliament as one of a small independent group of pro-Soviet ex-Labour MPs. Levy, Stalin’s Man, 149. Levy calls this statement “disingenuous” but misses the point that it was technically true, precluding any effort to politicize Rose’s defence. The Crown’s technical arguments about conspiracy could only be met by technical defences, which, given the evidence, inevitably proved inadequate. The Crown had been uneasily aware from the beginning that its case against Rose was fragile. Gouzenko’s testimony was “largely hearsay,” since Gouzenko had never met either Rose or Boyer, and the Soviet documents did no more than provide “purported conversations between Russian Embassy employees and Rose which, in turn, purport to report conversations between Rose and Boyer.” (WK: Phillippe Brais to Robert Forsthye, 19 September 1947; Department of Justice, “Report re espionage, memorandum to fle, n.d.). Boyer’s testimony directly implicating Rose was crucial to the successful prosecution. Whitaker and Marcuse, Cold War Canada, 72–4. Levy, Stalin’s Man, 142–7. Crown prosecutor Phillippe Brais admitted that the conviction of Boyer

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on the RDX charge was dubious, based on the testimony of a visit to the Shawinigan RDX plant by Russian scientists with the full cooperation of Canadian offcials, who had instructed the plant offcials to facilitate the Russians obtaining “all the information they desired and that all their questions should be answered” (WK: Phillippe Brais to F.P. Varcoe, 1 April 1947). Levy, Stalin’s Man in Canada, 194–202; Weisbord, The Strangest Dream, 168–9; Whitaker, Double Standard: The Secret History of Canadian Immigration (Toronto: Lester and Orpen Dennys, 1987), 190–2. “Dozing juryman aroused to decide on Adam’s fate,” Toronto Daily Star, 22 October 1946. Cohen, acting for Fred Rose, demanded that the Prime Minister, the Justice Minister, the RCMP Commissioner, and other leading government offcials be called as witnesses: none of the witnesses appeared, but the headlines about the Prime Minister being called did appear, which seemed to satisfy Cohen, who promptly dropped the matter. RC Report, 130–49. MI5: KV21422.2 nos. 238 and 239, 28 February 1946 (Tel 218–220). Rex v. Mazerall (1946) OR 762 (Ont. C. A.) at 764. The thinking behind the rulings was explained in a moderately critical manner in a lengthy memorandum for the Deputy Minister of Justice, WK: “Re: Admissibility of evidence at Mazerall trial,” 6 June 1946. Rex v. Lunan (1947) 3 DLR 710 (Ont. C.A.); Rex v. Boyer (1948) 7 CR 165 (Qc C.A.); Rex v. Smith (1947) 3 DLR 798 (Ont. C.A.). Dominique 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): 151–72. Clément, “The Royal Commission,” 162. Whitaker and Marcuse, Cold War Canada, 161–87. Whitaker, Double Standard. Canadian domestic Cold War practices departed in signifcant ways from the American experience. See Whitaker and Marcuse, Cold War Canada, esp. chs. 7 and 8, 161–206, and ch. 12, 261–86. For the very different post-Charter national security debate, see the analysis of the Stephen Harper Conservative government’s controversial antiterrorist legislation, C-51: Craig Forcese and Kent Roach, False Security: The Radicalization of Canadian Anti-Terrorism (Toronto: Irwin Law, 2015). Clément, “The Royal Commission,” 157–8; Clément, Canada’s Rights Revolution: Social Movements and Social Change, 1937–82 (Vancouver: UBC Press, 2008); and Lambertson, Repression and Resistance, make clear that the

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Gouzenko affair sparked the growth of civil liberties and human rights organizations across Canada (although these tended to divide along Cold War lines between social democratic and pro-Communist groups) and was a later factor in the movement to legislate a Bill of Rights, which fnally became law in 1960. Andrew and Walton, “The Gouzenko case”; John F. Fox, Jr., “The Impact of the Gouzenko Affair on FBI Counter-Espionage and Security Relations with Canada,” in Black and Rudner, eds., The Gouzenko Affair, 57–71; Benjamin B. Fisher, “The Gouzenko Affair, the Beginnings of the Cold War, and American Counterintelligence,” in Black and Rudner, 72–94. See note 24 above. Vladislav Zubok and Constantine Pleshakov, Inside the Kremlin’s Cold War: From Stalin to Khrushchev (Cambridge, MA: Harvard University Press, 1996), 146. Allen Weinstein and Alexander Vassiliev, The Haunted Wood: Soviet Espionage in America – the Stalin Era (New York: Random House, 1999), 104–5, 124, 218, 285–6. It should be noted, however, that the penetration of the US and British nuclear weapons programs did continue through Klaus Fuchs, Ted Hall, and others unmasked via the Venona decryption project. Weinstein and Vassiliev, The Haunted Wood, 297. Weinstein and Vassiliev, The Haunted Wood, 340, 342.

4 The Enemy Within: A Review and Comparison of Early Cold War Canadian and American Spy Trials BARBARA J. FALK AND TYLER WENTZELL

The domestic Cold War was, from the outset, a transborder phenomenon involving the United States and Canada. The two countries responded to both the real and perceived overlapping threats posed by the Soviet Union and those viewed to be its proxies, such as domestic Communist parties, in similar and different ways. Both states used and stretched the common law charge of contempt, the crime of conspiracy, existing statutes, and new laws to prosecute “the enemy within.” This chapter compares and contrasts Canadian and American approaches, analysing how they intersected with and infuenced each other and were enabled or constrained by the respective countries’ political cultures, roles in the global political system, and constitutions. Whereas Canada responded early with a Royal Commission (examined in Reg Whitaker’s chapter in this volume), the United States used congressional committees at the House and Senate levels to investigate the threat of domestic Communism and Soviet espionage. Both states prosecuted alleged party members under espionage statutes and relied on conspiracy charges in attacking their respective Communist parties. background – canada, the us, and their communist parties Canadian authorities had used a variety of methods to marginalize and prohibit the Communist Party of Canada (CPC) during the Great Depression and the Second World War. Members faced persistent police

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surveillance as well as administrative and bureaucratic persecution. Foreign-born radicals faced the particular danger of deportation.1 In 1931, eight CPC leaders were charged with violating section 98 of the Criminal Code, a provision that outlawed radical groups “whose professed purpose” was to “bring about any governmental, industrial or economic change” by “the use of force or violence.”2 Their conviction rendered the CPC an illegal organization; thereafter it was a crime to be a member, possess Communist literature, or attend a meeting until Mackenzie King’s government repealed the law in 1936. Following section 98’s repeal, Quebec premier Maurice Duplessis enacted the Loi protégeant la province contre la propagande communiste, better known as the Padlock Law, which allowed the Attorney General (also Duplessis) to padlock the premises from which subversive material had been produced or distributed.3 Elsewhere in Canada, formal persecution slackened although police surveillance continued.4 The UK Offcial Secrets Act (OSA), 1911, had effect in Canada as an imperial act, but the legislation and related Canadian Criminal Code provisions were little used up to the outbreak of the Second World War. Canada enacted its own version of the OSA in 1939 based on the UK legislation. The Cold War spy trials were the frst prosecutions under the Canadian OSA. The OSA had all the markings of a law written broadly to capture a range of misconduct that might be prejudicial to the war effort. Most striking to the contemporary eye is a series of interlinked presumptions. Section 3, the spying offence, stated that if any person “for any purpose prejudicial to the safety or interests of the state” gathered or created representations of information “intended to be directly or indirectly useful to a foreign power,” they would be guilty of an offence under the OSA.5 Moreover, persons were presumed to be in communication with a foreign agent if they visited the agent’s address or had their name or address in their possession. Communication or attempted communication with a foreign agent was deemed to be evidence that the accused had obtained or attempted to obtain information intended to be useful to a foreign power.6 As an extreme example, having a copy of the Soviet embassy’s address on a scrap of paper in your possession triggered the presumption that you were communicating with a foreign agent there, which in turn triggered the presumption that you were obtaining or attempting to obtain information useful to the foreign power. It therefore fell to the accused to rebut such presumptions or be found guilty of violating the OSA. Such a rebuttal would be diffcult given that the Crown did not need to prove that the accused committed “any particular act.”7 The accused could be

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convicted “if from the circumstances of the case, or his conduct, or his known character as proved, it appears that his purpose was a purpose prejudicial to the safety or interests of the State.”8 While Canada did not pass the OSA specifcally to protect itself from the danger of Communist agents, screening and persistent RCMP investigations nonetheless attempted to keep Communists out of the public service and the military, particularly at the beginning of the Second World War. The CPC took an antiwar stance early in the confict, so the organization and its fronts were among those banned by the Defence of Canada Regulations, issued under the authority of the War Measures Act.9 Unlike section 98, the wartime regulations did not require a trial; once membership was alleged, an individual could be interned without anything resembling due process.10 Although the ban remained in place until the end of the war, federal authorities softened its application following the German invasion of the Soviet Union, when the CPC reversed its policy and supported the Allies. Party members were then released from internment camps and permitted to join the armed forces.11 The CPC began to conduct open political activities under the banner of the LaborProgressive Party (LPP), and Canada and the Soviet Union commenced diplomatic, trade, and military relations beftting this wartime alliance. Prior to the onset of the Cold War, the United States had a very different relationship with the Communist Party of the United States of America (CPUSA). The Red Scare in the US began with violence: a series of anarchist bombings, including one at the Washington, DC, home of Attorney General A. Mitchell Palmer in 1919.12 Authorities responded to these attacks with raids and arrests, followed by further arrests and prosecutions largely under vague and overly broad state-level criminal syndicalism laws, as well as deportations of foreign-born residents, or “aliens,” for affliating with groups allegedly advocating the overthrow of the US government by force and violence.13 Thus began the use of administrative/immigration law as a proxy for national security law, a very convenient substitute given the lower bar of rights protection, the lack of trial process, and limited rights of appeal. The US government did not formally outlaw the CPUSA after its legal reconstitution in 1921.14 Members were not imprisoned simply for being members, at least not until a series of membership cases were prosecuted after 1951.15 However, the party, its fronts, and a variety of civil liberties organizations were placed on the Attorney General’s List of Subversive Organizations (AGLOSO), which led to public and government suspicion, likely investigation, and the potential loss of federal tax-exemption

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status. Penalties and repercussions against members of such organizations included denial of passports, deportations, eviction from federally subsidized housing, and even loss of employment.16 In 1940 the federal Alien Registration Act, better known as the Smith Act, was passed.17 The Smith Act was an omnibus law that brought under one statutory umbrella many of the anti-alien and anti-radical measures proposed in the previous decade but not passed given the liberal character of the Roosevelt administration and Democratic control over Congress. To satisfy the armed services, the Smith Act included provisions outlawing sedition and incitement of disaffection in the military; also, in a nod to increasing nativist and isolationist sentiment, it required all “alien” residents to register with the government. Most importantly, it was the frst statute since the 1798 Alien and Sedition Acts to criminalize advocacy of force to promote governmental or institutional change, rather than insisting on incitement or preparatory acts. Teaching or advocating overthrow by force and violence was likewise criminalized, along with organization of or membership in any association involved in such activities.18 In his 1941 classic text, Free Speech in the United States, Harvard law professor Zechariah Chafee described the statute bluntly as “the most drastic restrictions on freedom of speech ever enacted in the United States during peace.”19 President Roosevelt signed the legislation, his hostility toward communists having been aggravated by the 1940 Molotov–Ribbentrop Pact and Stalinist aggression. Still, the CPUSA itself remained legal during the Second World War, though it disbanded briefy in 1944–5, at which point it was replaced by the Communist Political Association, which thenleader Earl Browder envisioned as a pressure group to work within the existing American party system. The CPUSA was reconstituted in 1945 following a critique penned by US Communist leader Jacques Duclos, widely understood as delivering a pointed message from the Soviet Union. The CPUSA remained dedicated to Moscow’s leadership from that time onwards.20 Meanwhile, a string of Congressional and Senatorial committees examined the threat of communism over several decades. Congressman Martin Dies led the Special Committee on Un-American Activities from 1938 to 1944. In 1945, Congress established the House Un-American Activities Committee (colloquially, HUAC) as a formal standing committee. Also important at the national level were Senator Joseph P. McCarthy’s tenure leading the Permanent Investigating Subcommittee of the Government Operations Committee from 1952 and Senator Patrick McCarran’s tenure leading the Senate Internal Security Subcommittee in the early 1950s.

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These committees, the FBI, the RCMP, and a variety of local police “red squads” in both Canada and the United States had long suspected the existence of extensive Soviet spy rings supported by the CPC and the CPUSA. Investigators monitored correspondence to and from the Soviet Union, attended public meetings, hired confdential informants, placed undercover offcers, and tracked CP members as they travelled to and from the Soviet Union to attend Communist International conferences or training at the Lenin School. However, they had found no hard evidence of actual espionage during the Great Depression or most of the Second World War. Then, on 5 September 1945, Igor Gouzenko, a Soviet cipher clerk at their Ottawa embassy, defected to Canadian authorities with documents in his pockets and details in his head that fnally proved the existence of an espionage ring.21 the gouzenko defection In Canada, the Gouzenko defection resulted in the appointment of Robert Taschereau and Roy Kellock of the Supreme Court of Canada to lead a commission to investigate Soviet espionage, as discussed in detail in the previous chapter. The commissioners named twenty-two participants in the spy ring, apart from Soviet embassy staff.22 Sam Carr, the national organizer of the LPP, and Fred Rose, the sitting LPP member of Parliament for Montreal-Cartier, served as the espionage recruiters.23 Most of their recruits had some connection to the LPP, with the notable exception of Emma Woikin, a cypher clerk at External Affairs – she was of was Doukhobor background and had been recruited directly into the network through the Russian cultural community in Ottawa.24 Britain had a direct interest in this Soviet espionage ring, and British intelligence offcials in Washington were contacted and involved in the investigation within a week.25 At least two Britons were immediately implicated in the spy ring: Kathleen Willsher, assistant registrar at the British High Commission in Ottawa, and Alan Nunn May, an atomic scientist who had done much of his work in Canada.26 Nunn May was arrested after he returned to Britain; there he confessed to his crimes in his second interview with MI5. In 1946, at the Old Bailey in London, he was convicted for breaching the British OSA. Willsher was charged under the Canadian OSA. In the US, the Gouzenko defection had similar and striking effects. FBI offcials travelled to Canada almost immediately to question the former Soviet cipher clerk, and Prime Minister Mackenzie King personally

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shared the details of the defection with President Harry S. Truman during their frst face-to-face meeting in September 1945.27 Gouzenko’s evidence revealed that there was a Soviet intelligence offcer in the US who had assumed the identity of Ignacy Witczak, a Polish Canadian whom Soviet offcials believed had been killed in the Spanish Civil War.28 There were now two Witczaks: the real Witczak, who was living the quiet life of a farmer in rural Ontario, and the Soviet agent in California who disappeared shortly after the frst arrests.29 Gouzenko’s evidence revealed a staff member to Secretary of State Edward R. Stettinius was involved in espionage (later identifed as Alger Hiss). Gouzenko’s information also led to the arrest of British scientist Klaus Fuchs, who then identifed Philadelphia chemist Harry Gold. Gold was the Soviet courier for a machinist who worked on the top-secret Manhattan Project that produced the frst atomic weapons, David Greenglass, who in turn identifed his brother-inlaw and sister, Julius and Ethel Rosenberg.30 A second major exposé, although less publicly known at frst, occurred in the US when Elizabeth Bentley, a known member of the CPUSA who had been working for the Soviet Union since before the Second World War, walked into an FBI offce in New Haven two months after Gouzenko’s defection. She began cooperating with the FBI, testifying before a 1946 grand jury and later identifying more than thirty-fve individuals working inside the US government who had supplied her with secret or sensitive information.31 Meanwhile, Louis Budenz, former managing editor of the Daily Worker, renounced Communism and later became the star witness in the frst Smith Act trial.32 As Kathryn Olmsted suggests, if Gouzenko “blew a hole” in the “vast web of espionage in North America” Elizabeth Bentley “would tear it apart.”33 the canadian trials The Royal Commission’s inquiry, described in the preceding chapter, set the stage for the Canadian trials. Employing extraordinary means of investigation – including arrest without warrant, extended periods of solitary confnement, and questioning without counsel present34 – the Royal Commission uncovered a conspiracy of modest proportions. The fnal report, released in July 1946, accused nineteen individuals of being Soviet agents and three others of playing a role in securing a passport for a Soviet agent, in what became known as the Witczak passport affair. The criminal trials began in April 1946, shortly after the release of the Royal Commission’s third interim report. Despite efforts by the Crown to

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try some individuals together, all were prosecuted individually.35 There could be no concurrent trials due to the large number of common exhibits and the same star witness: Gouzenko. Consequently, proceedings, including trials and appeals, stretched out over three years, ending when the Ontario Court of Appeal denied Sam Carr’s application for leave to appeal in September 1949.36 The Crown briefy considered bringing charges of treason, a term the media used liberally.37 Treason was defned as “assisting any public enemy at war with His Majesty in such war by any means whatsoever,”38 but since the Soviet Union was Canada’s ally at the time the alleged crimes were committed, treason did not apply to the identifed spies. At issue in these cases was the disclosure of information to unauthorized persons, aggravated by the fact that those unauthorized persons were agents of a foreign power. Consequently, the prosecution charged the accused with violations of the OSA as well as the Criminal Code offence of conspiracy to breach the OSA.39 The distinctions between the offences of treason, breaching the OSA, and conspiring to breach the OSA were important in terms of the elements of intent and actions to be proved, as well as possible sentences; treason still carried the death penalty, whereas breaches of the OSA and criminal conspiracy carried maximum penalties of fourteen and seven years’ imprisonment, respectively.40 Emma Woikin and Kathleen Willsher were tried for direct offences under the OSA; both had confessed in front of the Royal Commission, elected for a trial by judge alone, and pleaded guilty.41 Apart from Dr John Soboloff, who was charged with making a false statement to procure a passport, all of the other accused were charged with conspiracy to breach the OSA. Criminal conspiracy did not require that the accused had taken any action; it was enough that the individual had agreed to commit a crime and that one of the conspirators committed an act in furtherance of the offence.42 Moreover, the unusual reverse onus presumptions and other procedural expedients contained within the OSA served to effectively further extend the reach of criminal conspiracy to breach the OSA.43 As a result, convictions for conspiracy to breach the OSA seemed more likely than convictions for actual OSA offences, so it was not surprising that, following various motions by the defence lawyers to have charges of conspiracy and breaches of the OSA tried separately, the Crown pursued conspiracy charges frst.44 Although the Crown retained the discretion to subsequently prosecute OSA offences, it elected not to do so. Edward Wilfred Mazerall, an electrical engineer in the air force section of the National Research Council, was the frst to be tried for conspiracy.

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He was allegedly part of a small spy cell managed by Captain David Gordon Lunan, who gathered information from contacts and fed it to his Soviet handler, Major Rogov.45 Mazerall stood accused of providing Lunan with information regarding radio sets. Mazerall had confessed to this when questioned by the Royal Commission.46 The trial therefore hinged on the admissibility of his confession and Gouzenko’s evidence. The presiding judge, Chief Justice of the Ontario High Court James Chalmers McRuer, conducted a lengthy voir dire at the beginning of the trial to decide these issues.47 He heard arguments from the Special Crown prosecutor, John R. Cartwright, and the defence counsel, Royden A. Hughes. Hughes argued that, given the circumstances under which Mazerall gave his confession, McRuer should properly treat it as if it were given to a police offcer under duress and therefore be excluded or given little weight. Cartwright’s position was that, despite the absence of counsel and conditions of duress, Mazerall had made his statements under oath and so they should be treated as if they were sworn testimony before a lower court. McRuer ruled that he would exclude portions of the transcript on a case-by-case basis where they referred to admissions made to the police.48 Otherwise, the statements made before the Royal Commission would be admitted. The Mazerall voir dire also addressed issues of self-incrimination. While the Fifth Amendment of the United States Constitution gave an individual the right to refuse to implicate themselves and the British common law afforded a similar right, in Canada this protection had been removed by statute. Section 5 of the 1927 Canada Evidence Act stated that anyone under oath before a competent judicial body was required to answer questions put to them.49 However, under section 5(2), anyone giving such testimony could request that their statements not be used against them in a future proceeding. An accused before the Royal Commission could have expressly requested this protection, but Mazerall, lacking legal representation or background, was unaware of this protection and so could not have reasonably invoked it. McRuer held none of that mattered; the right had to be positively claimed, and Mazerall had failed to do so. The Ontario Court of Appeal upheld this ruling in this case and another, and these judgments were considered persuasive by the Quebec Court of King’s Bench in a subsequent case.50 The evidence against Mazerall was damning. Gouzenko testifed and produced copies of documents in the Soviet embassy that Mazerall previously admitted he had provided Lunan. As well, the Crown produced Mazerall’s desk calendar, which indicated meetings with “Gordon L.” that

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corresponded to Soviet documents showing meetings between Mazerall and Lunan. The evidence showed that Mazerall had provided Lunan with two reports on radar design. Hughes focused his defence on demonstrating that the information provided by Mazerall had not been prejudicial to the national interest. He agreed that Mazerall had been approached to participate in the conspiracy but argued that the information he provided to appease Lunan was of no importance. The reports provided were scheduled to be released in trade journals in a few months, would have been available to the Soviet ambassador on request, and might have been released had Mazerall requested them from his supervisor.51 Cartwright agreed that the information was of “trifing importance” but argued this was irrelevant. Mazerall should have gone to the authorities when he learned of the conspiracy: “What more convincing evidence could there be that he participated than that he kept silent?” The jury agreed. After deliberating for three and a half hours, it found Mazerall guilty. McRuer sentenced him to four years imprisonment.52 The second jury trial, the frst of two held in Quebec, commenced in late May immediately after Mazerall’s conviction. It was the most sensational of them all. Fred Rose, a sitting member of Parliament, stood accused of being at the centre of the Soviet recruiting effort. The Royal Commission’s fnal report stated, “Of all the persons mentioned in the Russian documents as well as by the witnesses throughout this Inquiry, none, Soviet offcials excepted, have been more repeatedly and prominently mentioned, either under their names or cover-names, than Fred Rose and his fellow spy and conspirator, Sam Carr.”53 Rose had allegedly recruited spies while publicly serving his constituents in Montreal-Cartier. Rose had only briefy been questioned by the Royal Commission (with counsel present) and had offered no confession. The Crown called nearly ffty witnesses, ranging from forensic experts from Scotland Yard to a salesman who confrmed the serial number of a portable typewriter he had sold to Lunan and on which he had written messages to Rose.54 The most valuable evidence came from Gouzenko and Raymond Boyer, a chemistry professor at McGill University who had done important research regarding RDX explosive. Boyer testifed at Rose’s preliminary hearing and at trial, explaining that Rose had openly sought information from him regarding RDX.55 The other alleged co-conspirators – Lunan; Harold Samuel Gerson, an administrator with various Crown corporations involved in war production; Squadron Leader Matt Simons Nightingale, a communications expert with the Royal Canadian Air Force’s Branch Land Lines; Eric Adams, a staff member at the Bank

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of Canada; and Woikin – refused to give evidence against Rose or proved otherwise uncooperative on the stand and were held in contempt.56 The Crown also subpoenaed Freda Linton, an alleged co-conspirator not yet named in the preliminary reports, but she could not be found.57 Defence counsel Joseph L. Cohen did not call Rose to testify in his own defence. In his closing remarks, Cohen approached the charges against Rose in a playful manner, emphasizing the vagueness of the particulars and the fact that of the ffty witnesses who testifed in eighteen days of trial, only two or three even mentioned Rose’s name. Cohen did not deny there had been a conspiracy, but argued there was no evidence to show beyond a reasonable doubt that Rose had been involved: “This would be funny if it were not so tragic ... You as the jury must decide if Rose is to be the whipping boy for all that occurred.”58 The jury decided Rose’s guilt in ffteen minutes.59 After hearing the jury’s decision, Cohen remarked, “On the whole ... everything in this case is so bad that it should go back for retrial.”60 Cohen’s notice of appeal challenged thirty-two points of law from the trial.61 The Rose verdict marked the end of the frst phase of the Canadian trials. The Crown withdrew the charges against Lieutenant Shugar, a Royal Canadian Navy offcer who specialized in submarine detection (although he would later be charged again and acquitted).62 Boyer awaited jury trial in Quebec, and eight others awaited trial in Ontario. These trials, however, would have to wait. The spring assizes had concluded, closing the door on jury trials until autumn. Carleton County Court Judge A.G. McDougall, scheduled to hear the non-jury trials, adjourned the cases before him for the summer to await the Ontario Court of Appeal decision in the Mazerall matter.63 The remaining trials resumed in the fall of 1946, by which time the Royal Commission had released its fnal report. Although the fnal report initially received front-page newspaper coverage, interest in the criminal proceedings soon dwindled. These trials and appeals dragged on for years: the Gerson and Boyer trials are particularly illustrative. Gerson, one of the frst to be charged, had already spent three months in prison for contempt for refusing to testify at Rose’s trial. He was convicted of conspiracy to breach the OSA in October 1946 and sentenced to fve years’ imprisonment.64 On appeal, A.W. Beament and Joseph Sedgwick argued thirteen points of law, one of which was successful.65 In June 1947, the Ontario Court of Appeal quashed Gerson’s conviction because the Crown had improperly amended the notice of indictment after it had been returned by the grand jury.66 The following October, Gerson was retried, convicted,

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Philippe Brais KC acting for the Department of Justice and defence counsel Joseph L. Cohen KC (seated) during a hearing in the Fred Rose case. Library and Archives Canada, Montreal Star fonds, MIKAN 321301, PA-129628 (Accession 1980–108 item 3)

and sentenced to four years’ imprisonment.67 Boyer, also one of the frst to be charged, underwent three separate trials. The frst was declared a mistrial when a juror took ill, and there was a hung jury in the second. At the third trial, newspaper coverage noted that even Justice Lazure seemed bored by the matter. The jury found Boyer guilty and in January 1948 he was sentenced to two years’ imprisonment.68 A recurring point in almost all the trials was the issue of self-incrimination. Much of the evidence came from co-conspirators. Gouzenko was an unindicted participant in the conspiracy, and several co-conspirators had provided useful information about other alleged conspirators to the prosecutors before the Royal Commission or at trial. Although most of the

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accused did not have legal representation during their questioning before the Royal Commission, they were represented at trial and routinely availed themselves of the protections afforded by the Canada Evidence Act. At Rose’s preliminary hearing, for instance, witnesses requested the “court’s protection” under the Canada Evidence Act, which Justice René Théberge agreed to grant on the condition that the witnesses told the truth.69 On many other occasions, however, the witnesses refused to give testimony and accepted the risk of being held in contempt. For instance, in Rose’s trial, Lunan, Gerson, Nightingale, and Adams, who each faced charges as co-conspirators, refused to testify on the ground they would incriminate themselves. Woikin, already sentenced to two and a half years in prison, refused to testify for the same reason. Justice Lazure sentenced the frst four to three months in prison in Quebec (which severely limited their ability to prepare for their own criminal trials in Ontario), while Woikin had an additional six months added to her sentence already being served.70 Lunan was particularly adamant in his refusal to testify. He refused to testify in Mazerall’s trial, Rose’s preliminary hearing and trial, and Halperin’s preliminary hearing and trial, where he was twice called to testify and refused both times.71 On the occasion of Lunan’s second refusal, Justice McDougall added a full year to Lunan’s previous sentence for contempt.72 In late January 1949, one year after Boyer’s conviction, spy trials again made headlines. Against the backdrop of the Berlin Airlift, which signalled rising tensions between the West and the Soviet Union, the FBI found and arrested Sam Carr in New York City. After testifying before a grand jury in the Southern District of New York regarding the Hiss matter (he did not seem to know anything of value), Carr was deported to Canada where he faced trial. Joseph Sedgwick, who had been a junior prosecutor in the 1931 Section 98 trial that had put Carr in prison for the frst time, now acted as Carr’s defence counsel.73 Carr, like Rose, had been identifed as a central fgure in the Soviet spy network. A graduate of Moscow’s Lenin School, he recruited new spies and obtained useful government documents.74 However, he was not charged as part of the conspiracy to violate the OSA, despite having been named earlier as a co-conspirator. Rather, he was charged with conspiring to obtain a new passport for the Soviet intelligence offcer operating undercover in the United States under the name Witczak. The scheme allegedly involved conspirators in both Ottawa and Toronto. Eric Adams, also named by the Royal Commission as a Soviet agent, allegedly made use of his telephone at the Bank of Canada offce in Ottawa to

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contact Dr Henry Harris, an optometrist in Toronto, who passed coded messages to Carr, his patient and acquaintance. Carr got Dr John Soboloff, a physician at Toronto’s Mount Sinai Hospital, to attest that he knew Witczak (whom he had never met) on his passport application. In Ottawa, W.M. Pappin of the Passport Offce allegedly then arranged to produce the passport and tampered with the fles (although it is not clear why this would be necessary, given Soboloff’s attestation). The Royal Commission believed that Pappin had been bribed, although they were undecided whether he had actually received any money. Regardless, the passport was issued days before the Gouzenko defection.75 Pappin was tried on two counts of conspiracy to obtain a passport. At trial, Adrienne Soulière, who managed the passport records in an Ottawa church basement, testifed that Pappin had asked her to pull Witczak’s fle for no evident reason and that her keys had mysteriously disappeared and then reappeared at roughly the same time his fle had been tampered with.76 However, Justice McDougall concluded that, while it was clear that someone had tampered with the fle, there was not suffcient evidence to prove beyond a reasonable doubt that it had been Pappin. Soulière’s evidence was considered highly unreliable, and Pappin returned to his position at the passport offce.77 Dr Harris, however, was convicted in January 1947 for conspiracy both to breach the OSA and to unlawfully procure a passport. He was sentenced to four years’ imprisonment, but the conviction was quashed by the Ontario Court of Appeal, which reached its decision without leaving the bench.78 In its written reasons, Chief Justice Robert Spellman Robertson stated: Not only is there no direct evidence that the appellant became a party to the conspiracy, but there is no evidence that he, by word or deed, acting alone or in association with others, participated in or assisted the objects of the conspiracy. Naturally, there will be much suspicion that there is real substance behind all that appears on the record of this trial, but the Court cannot proceed upon suspicion.79

Dr Soboloff was tried before Magistrate S. Tupper Bigelow for making an untrue written statement to procure a passport. Special Crown prosecutor John J. Robinette stated that there was no evidence Soboloff had any connection to the Soviet spy ring apart from what Robinette called an act of “gross stupidity.” Soboloff was convicted and fned $500, the maximum penalty.80 Carr’s trial hinged on whether the jury preferred the evidence of Carr to that of Soboloff. The latter said he had signed the Witczak passport

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Dr Raymond Boyer fanked by a police offcer in court. Defendants ranged from scientists and public servants to members of the Communist Party of Canada, including Sam Carr, a leading labour organizer in the 1930s, later convicted of conspiracy to breach the Offcial Secrecy Act. Library and Archives Canada, Montreal Star fonds, MIKAN 3213015, PA-129633, Accession 1980–108 item 7

application at Carr’s behest, while Carr denied he was involved with the passport affair or had any meaningful interaction with Soviet embassy offcials. Justice McDougall cautioned the jury that Soboloff was a co-conspirator whose evidence was not otherwise corroborated, and to weigh his evidence accordingly.81 Despite this consideration, the jury returned a guilty verdict after an hour and a half of deliberation and Carr was sentenced to six years in prison. The Ontario Court of Appeal dismissed his appeal of both conviction and sentence.82

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Carr’s conviction marked the end of the Canadian spy trials arising out of the Gouzenko revelations, although one alleged conspirator, Freda Linton, remained at large. Linton had fed to the US during the Royal Commission’s investigation, but shortly after Carr’s conviction, she presented herself at the law offces of Joseph L. Cohen in Montreal (Rose’s lawyer) and was arrested and released on bail.83 On 29 April 1949 the Crown advised Linton and Cohen that the charges against her would be withdrawn.84 The Canadian spy trials thus came to an undramatic end. To clarify the cases identifed by the Royal Commission, Table 1 lists the names of twenty-two individuals with charges against each of them and disposition and sentence, if any. We can briefy summarize the information in Table 1 as follows: fve had confessed to their crimes under the extraordinary conditions created by the Royal Commission. Nunn May was tried in the UK, while nineteen others were brought to trial in Canada. Of the nineteen people tried in Canada, seven were acquitted and twelve were convicted at trial. Of the twelve people convicted, two had their convictions quashed on appeal. It is signifcant that seven of the ten individuals convicted in Canada had been questioned by the Royal Commission (plus Rose, who had only been questioned briefy and with counsel present). This at least suggests that some convictions would not have been possible without the draconian methods employed by the Royal Commission and the admissibility of the Commission evidence at trial.85 Indeed, the OSA legislation came under heavy criticism for the broadness and ambiguity of its provisions, particularly in peacetime. After the 1969 Royal Commission on Security recommended that the OSA be entirely revised (and this was reiterated in a report to the McDonald Commission examined in Ian Kyer’s chapter in this volume), the OSA was amended in 1985 and 2001. Since 2001 it has been known as the Security of Information Act. the american trials Gouzenko’s defection and the subsequent investigations and the criminal proceedings against the Canadian conspirators in the Soviet spy network had repercussions in the US. The Americans’ response to Gouzenko ultimately led to Alger Hiss and the Rosenbergs. Elizabeth Bentley’s defection soon thereafter provided the FBI with the names of scores of alleged spies and networks, including Alger Hiss, Treasury Department offcial Nathan Gregory Silvermaster, and Assistant Secretary of the Treasury Harry Dexter White.86 Bentley’s defection, happening so close to Gouzenko’s, coincided with increased political rhetoric against Communism on both sides

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Table 1: Agents and conspirators identifed by the Royal Commission with results of any criminal proceedings Name

Charge(s) brought to trial

Final disposition

Eric Adams

Conspiracy to breach the OSA

Acquitted.

James Scotland Benning

Conspiracy to breach the OSA

Convicted; quashed on appeal.

Sentence

Samuel Sol Berman

Not charged.

Raymond Boyer

Conspiracy to breach the OSA

Convicted; appealed; conviction upheld.

2 years’ imprisonment

Sam Carr

Conspiracy to unlawfully procure a passport

Convicted; appealed; conviction upheld.

6 years’ imprisonment

Agatha Chapman

Conspiracy to breach the OSA

Acquitted.

Harold Samuel Gerson

Conspiracy to breach the OSA

Convicted; appealed and granted a retrial; convicted.

Israel Halperin

Conspiracy to breach the OSA

Acquitted.

Henry Harris

Conspiracy to unlawfully procure a passport and to breach the OSA

Convicted; quashed on appeal.

Freda Linton

Conspiracy to breach the OSA

Charges withdrawn before trial

Captain David Gordon Lunan

Conspiracy to breach the OSA

Convicted; appealed; conviction upheld.

5 years’ imprisonment, plus 1 year imprisonment for contempt

Edward W. Mazerall

Conspiracy to breach the OSA

Convicted; appealed; conviction upheld.

4 years’ imprisonment

Squadron Leader Matthew Simons Nightingale

Conspiracy to breach the OSA

Acquitted.

Allan Nunn May

Breaching the British OSA

Convicted in UK; not appealed.

William Pappin

Conspiracy to unlawfully procure a passport

Acquitted.

Squadron Leader Fred W. Poland

Conspiracy to breach the OSA

Acquitted.

4 years’ imprisonment

10 years’ penal servitude

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Table 1 (cont.) Name

Charge(s) brought to trial

Final disposition

Sentence

Fred Rose

Conspiracy to breach the OSA

Convicted; appealed; conviction upheld.

6 years’ imprisonment

Lieutenant David Shugar

Conspiracy to breach the OSA

Acquitted.

Durnford P. Smith

Conspiracy to breach the OSA

Convicted; sentence appealed and dismissed.

5 years imprisonment

John Soboloff

Making an untrue statement to procure a passport

Convicted, not appealed.

$500 fine

Kathleen Willsher

Violating the OSA

Convicted, not appealed.

3 years’ imprisonment.

Emma Woikin

Violating the OSA

Convicted, not appealed.

2.5 years’ imprisonment, plus 6 months for contempt.

of the border.87 The “red-baiting” and espionage narratives of Canada and the US became deeply intertwined at the onset of the Cold War. Even more dramatic than Bentley’s defection, especially at the popular cultural level, was the saga of the Hollywood Ten. In 1947, HUAC held a series of “executive sessions” in Los Angeles to probe how the CPUSA had subverted the flm and entertainment industry by inserting ideological content into flms being made.88 The nineteen “unfriendly” witnesses subpoenaed to testify (only ten eventually were called) knew they would be asked, “Are you now, or have you ever been, a member of the Communist Party?” However, they did not suspect that, by adopting a common defence, they would be gambling with their constitutional rights, lose their jobs, and be sent to jail.89 The ten who eventually testifed employed a dual strategy. Their plan was to combine a labour defence approach to educate their putative supporters and provoke public outrage while invoking First Amendment guarantees of free speech and association. It failed spectacularly.90 The Hollywood Ten were fned and sentenced to from six months to one year in prison for contempt of Congress. The Supreme Court ultimately declined to rule on the case.91 Afterward, “unfriendly” HUAC witnesses either faced questions about their own membership in the CPUSA and were called upon to name names, or took refuge in Fifth Amendment protection against self-incrimination, which was interpreted as implying they had something to hide and therefore

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presumptive of guilt. However, diverse outcomes resulted, which often depended on the level of the witness’s celebrity and the business interests of the studios.92 The case of the Hollywood Ten heightened popular fears of Soviet spying and infuence by and through the CPUSA. Because those implicated were celebrities, the hearings drew attention to the threat of domestic Communism. The fact that the Committee discovered nothing concrete allowed imaginations to run wild with how vast the conspiracy might be. In November 1947, flm industry producers met at the Waldorf-Astoria Hotel in New York and offcially adopted the “Waldorf Statement” – unoffcially known as the Blacklist – embodying their collective pledge not to employ communists or “a member of any party or group which advocated the overthrow of the Government of the United States by force or by illegal communist methods.”93 The imagery was a calculated ideological and cultural construction that had a powerful effect: Communists were inevitably and always acting at the behest of Moscow and fomenting violent revolution at every possible opportunity. The Cold War led to both the reinvigoration of anti-Communist measures dating from the frst Red Scare after the First World War and the creation of new approaches. The Attorney General’s List of Subversive Organizations had existed for decades but was widely publicized only in December 1947, after President Truman issued Executive Order 9385, the Federal Loyalty-Security Program.94 Similarly, Congress had maintained standing committees addressing subversive organizations, but they were relatively inactive until after the Gouzenko and Bentley defections. HUAC developed a reputation for irresponsible muckraking and procedural abuses early on but was neither credible nor considered a prestigious assignment by Congressional members until the advent of the Cold War in the late 1940s.95 HUAC was the public, Congressional face of anti-Communism; FBI director J. Edgar Hoover was the power behind bureaucratic and federal law enforcement. He was strategic in his relationships with both Congress and the executive branch, and during HUAC’s 1947 hearings on the CPUSA he characterized the party as a clandestine subversive threat masquerading as a political party.96 He anticipated prosecutorial arguments in the frst Smith Act trial, reading directly from The History of the Communist Party of the Soviet Union in the HUAC hearings, quoting “sinister” and canonical catchphrases such as “dictatorship of the proletariat” and “force and violence.”97 He referenced the “Canadian spy trials,” which “revealed the necessity of alertness in keeping Communists and sympathizers out

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of Government Services.”98 Under Hoover’s direction, the FBI’s ongoing investigations into Communists in general and the agents implicated by the Gouzenko and Bentley defections in particular led to the many espionage-related arrests and some of the most high-profle trials, including those of Alger Hiss and Julius and Ethel Rosenberg. The two trials of Alger Hiss are a perennial subject of McCarthy-era debates. Hiss, a suave and sophisticated lawyer, born and bred to be part of the American ruling establishment, was accused of being a dedicated Communist and Soviet spy by a pudgy and less than charismatic journalist named Whittaker Chambers, a failed artist, expelled from Columbia University, with an unstable job history, who was portrayed at Hiss’s second trial as a sociopath.99 Hiss had a storied career. A Harvard law graduate, he was a protégé of Supreme Court Justices Oliver Wendell Holmes Jr. and Felix Frankfurter. He became a government attorney during the New Deal era, worked as executive secretary for the Dumbarton Oaks conference that completed the preparatory work for the establishment of the United Nations, and attended the last wartime conference of the “Big Three” at Yalta in 1945. At the time of arrest, he was president of the Carnegie Endowment for International Peace.100 Patrick Swan, in his introduction to a recent collection, remarks on “the vivid class contrast between the protagonists – the handsome, elegant and impeccably pedigreed Hiss against the dishevelled and unprepossessing Chambers, with his ever remarked-upon bad teeth.”101 Allegations of Hiss’s involvement in the Soviet spy ring became public in the summer of 1948 through Chambers’s testimony before HUAC in response to Elizabeth Bentley’s claims. Chambers stated that Hiss had been a secret member of the CPUSA; Hiss denied the claim and sued Chambers for slander. The investigation into Hiss continued, and though he was suspected of espionage, the New York grand jury only indicted him for perjury because the limitation period had passed. However, the facts surrounding his indictment remain more political than legal. Richard Nixon, then a rising political star and member of HUAC, was concerned for the committee’s longevity, given that the Democrats had gained control of Congress in 1948, and during robust questioning, he ordered Chambers to provide all his documents to the committee, which led to the highly staged discovery of the “Pumpkin Papers” on Chambers’s Maryland farm on 2 December 1948.102 Hiss’s frst trial, before a judge and jury of the United States District Court for the Southern District of New York, resulted in a hung jury. The second trial resulted in a conviction. In 1950 Justice Henry W. Goddard sentenced

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Hiss to fve years; he served forty-four months. All his appeals failed.103 Though Hiss maintained his innocence until he died, Allen Weinstein’s 1978 account Perjury put paid to the FBI frame-up theory.104 Meanwhile, declassifed and decrypted Soviet cables made public in 1995 identifed an agent codenamed Ales, whom most scholars believe to be Hiss.105 Hiss, or Ales, was hardly alone: the detailed research of John Earl Haynes, Harvey Klehr, and Alexander Vassiliev has implicated nearly 500 Communists in espionage across many federal government departments.106 What was really at stake, however, as subsequent decades would prove through accusations and counter-accusations, were different visions of US Cold War history and contrasting narratives about national security.107 In the frst version, Soviet Communism was a signifcant threat both to and in America, personifed most deeply by Hiss’s treachery and made more insidious by his connection to East Coast elites and the New Deal governing establishment. In the second, political and prosecutorial obsession was seen to have become unhinged from any actual threat, demonstrating how both elected and unelected offcials manipulated public fear to violate constitutional protections in the name of national security. The Hiss affair also lent unfortunate credibility to Joseph P. McCarthy’s famous allegation, frst bombastically expressed in Wheeling, West Virginia, in 1950, that “I have in my hand ffty-seven cases of individuals who would appear to be either card carrying members or certainly loyal to the Communist Party, but who nevertheless are still helping to shape our foreign policy.”108 The next bombshell was the arrest of Julius and then Ethel Rosenberg. The working-class Jewish couple from the Lower East Side seemed the unlikeliest and therefore the most insidious of spies. Along with codefendant Morton Sobell, they were indicted for conspiracy to commit espionage and found guilty at trial. Their appeals failed, and the Rosenbergs were executed at the Sing Sing Correctional Facility on 19 June 1953, despite a global campaign for clemency.109 The Rosenberg case hinged on evidence obtained and testimony provided by David Greenglass, Ethel’s brother, who had worked as a machinist on the Manhattan Project. Julius had recruited Greenglass, who provided information that, although scientifcally far less signifcant than information forwarded by more highly placed physicist spies, prosecutors characterized as providing the “secret” of the atomic bomb. Greenglass provided crucial evidence for the prosecution, yet he later claimed in a television interview on 60 Minutes, and subsequently to his biographer, that he had perjured himself by testifying that his sister had typed valuable notes, thereby linking her directly

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to atomic espionage, to protect his wife Ruth, who was an unindicted co-conspirator.110 Despite the historical importance of the Hiss and the Rosenberg–Sobell trials as cautionary tales, interpreted either as demonstrating the dangers of Communist infltration or as miscarriages of justice that chilled domestic dissent, they were “one off” prosecutions, as were many of the Canadian prosecutions. Indeed, the Hiss and Rosenberg-Sobell trials are today more crucial as litmus tests of political beliefs and ideals: all the principals in these dramas have been transformed into symbolic fgures, either demonized or sanctifed, refecting the ongoing and deeply partisan culture wars over post–Cold War historiography and public memory. After all, the defendants did not “name names,” and many of those involved in Julius Rosenberg’s spy network or atomic espionage were never indicted or prosecuted due to lack of evidence, including physicist Theodore (Ted) Hall and civil engineer Russell McNutt.111 Judith Coplon was tried twice, in New York and Washington, on espionage-related charges, but both convictions were reversed, in the frst case because the arrest warrant had not been properly executed, and in the second because a conversation between her and her lawyer had been illegally recorded. Miriam Moskowitz and Abraham Brothman were not tried for spying but rather for conspiracy to obstruct justice for lying to a grand jury investigating espionage.112 Yet the legal fallout of these trials was minimal. That was not the case, however, with the Smith Act trials.113 Although these trials were not, strictly speaking, prosecutions against alleged spies, US authorities used them to decimate the CPUSA, understood by the FBI to be the principal sea in which Soviet spies would swim. While the Smith Act trials are far less discussed, they are legally more signifcant and precedent-setting than any of the Canadian or US espionage-related trials, given the breadth of indictments and arrests.114 For the accused, the costs were enormous, in that they diverted the CPUSA’s usual indefatigable energy to legal matters and fundraising to pay for one defence after another. Moreover, but for the Smith Act trials, the CPUSA leadership would not have made the disastrous decision to go “underground” in 1951 following the US Supreme Court verdict.115 The idea of the CPUSA acting clandestinely reinforced the now powerful negative stereotype of the party as a criminal conspiracy with something to hide, exactly the kind of organization that would still be harbouring spies and traitors.116 The Smith Act prosecutions began with the arrest and indictment of the entire National Board of the CPUSA in 1948.117 From January to October 1949, the sensational trial was front-page news across America. By the

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time the verdict was announced, and sentences delivered by the colourful and controversial presiding judge, Harold R. Medina, the trial had become the longest-running criminal proceeding in US federal history, attracting both protesters and an unprecedented security detail. On the frst day of the trial, 500 mounted police offcers patrolled the area in front of the Foley Square courthouse in Lower Manhattan. Every major US newspaper had stringers covering the trial. Five major New York dailies dedicated specifc reporters who eagerly followed the trial’s twists and turns, at times fling two stories a day, usually for the front pages of their respective publications. The lead defendant was on the cover of Time magazine in 1949.118 Evidence in the Smith Act trials, much like the 1931 section 98 trials in Canada, included extensive reading of Marxist-Leninist literature into the record.119 From the outset, lead prosecutor John F.X. McGohey emphasized the colourful and ultimately damning language of Marxist– Leninism, referencing phrases – usually taken out of context and devoid of any historical interpretation – such as the “dictatorship of the proletariat” and “smashing the machinery of government.” In his opening statement, McGohey advanced two interconnected claims: 1. That Socialism cannot be established by peaceful evolution but, on the contrary, can be established only by violent revolution; by smashing the machinery of government, and setting up in its stead a dictatorship of the proletariat. 2. That this smashing of the machinery of government and setting up of the dictatorship of the proletariat can be accomplished only by the violent and forceful seizure of power by the proletariat under the leadership of the Communist Party.120 Thus, the prosecution focused its efforts on demonizing the CPUSA rather than proving the complicity of each defendant in the alleged conspiracy. Moreover, star witness Louis Budenz offered an “Aesopian language thesis” in his elaboration on the meaning of the CPUSA constitution, maintaining that it resorted to partisan and purposeful textual coding to hide its true, violent nature.121 Much like the Hollywood Ten, the CPUSA and its lawyers were overly and perhaps foolishly optimistic from the outset. They could not know the powerful effect exerted by FBI informers on media coverage, the public, and, one assumes, the jury. Constitutional arguments and obstructionist tactics failed completely and tested the patience of Judge

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Medina. Moreover, the twists and turns of the CPUSA’s adherence to the Moscow line were well known and documented. Meanwhile, the CPUSA leadership emphasized the value of Soviet–American friendship and the continuation of the wartime alliance. By 1949 this message rang hollow, given the construction of Soviet satellites in Eastern Europe, the Berlin Airlift, the persecution of Catholic clergy, the elimination of dissent, and the exposure of Soviet espionage networks. Moreover, the defendants could not have known the cumulative impact of critical events unfolding in 1949 – the Senate ratifcation of the Washington Treaty on 21 July, signalling US membership in the new North Atlantic Treaty Organization (NATO), the frst Soviet atomic bomb test on 29 August (which President Truman announced on 23 September), and China “falling” to Communism with the declaration of the People’s Republic of China on 1 October. The CPUSA put those indicted on the witness stand – in retrospect a fatal strategic error. One goal was to present their anti-fascist bona fdes and to correct the prosecution’s portrayal of the CPUSA as having a propensity for violence; another was to use the courtroom as a bully pulpit as part of their labour defence strategy. The plan backfred.122 John Gates, then editor-in-chief of the Daily Worker, was found guilty of contempt for refusing to name names.123 Similarly, Carl Winter, chair of the party in Michigan at the time of his arrest, was convicted for not disclosing whether his father-in-law was a Communist (he was) under cross-examination.124 All eleven defendants were found guilty after a nine-month trial, and each was sentenced to fve years in a federal penitentiary, save for Robert Thompson, who was given one year less due to his distinguished service during the Second World War. Immediately afterwards, the trial judge, exasperated by the trial’s length and the robust defence tactics, convicted and sentenced the entire team of defence lawyers for contempt because of their trial conduct.125 The appeal was argued before the Second Circuit on 21–22 June 1950; the following day, North Korea attacked South Korea. By the time Judge Learned Hand released the court’s written decision in August, the US and Canada and their allies were at war as UN troops, with Communists as an adversary rather than an ally. The Second Circuit upheld the trial verdict; in so doing Judge Hand rewrote a critical “clear and present danger” test for Congressional abridgement of free speech, essentially eliminating the temporal requirement that the threat be imminent as outlined in Schenk v. United States. Hand stated: “In each case, [the courts] must ask whether or not the gravity of the ‘evil,’ discounted by its improbability, justifes such

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invasion of free speech as is necessary to avoid the danger.”126 On appeal, Supreme Court Chief Justice Fred Vinson, notorious for his deference to Congressional aims in the persecution and prosecution of Communists, upheld Hand’s revision of the clear and present danger test. The government could not reasonably wait “until the putsch is about to be executed, the plans have been laid and the signal is awaited.”127 Given the US Supreme Court’s blessing, the FBI quickly executed arrest warrants issued by the Department of Justice for scores of others; ffteen trials followed, involving more than 130 alleged Communist conspirators from Hawaii to Connecticut and from Seattle to Puerto Rico.128 The Supreme Court verdict also paved the way for a series of separate indictments based on a membership clause in the Smith Act, which made it a crime to organize or help organize any group engaged in teaching or advocating the overthrow of the government by force and violence. As commonly understood both by CPUSA members fearing arrest and by prosecutors, this meant it was not enough to have been a mere member; you had to be a fully involved member and aware of the “true” character of the CPUSA.129 These cases, beginning with Junius Scales and Claude Lightfoot, ignited a further round of court cases and appeals that continued until the early 1960s, even after some of the accused had left the party.130 Nevertheless, both the 1949 trial and the subsequent Smith Act trials have fallen into relative historical obscurity, even though major constitutional arguments were advanced, larger-than-life characters were involved at all levels, and the trials intersected with an emerging international confict, the Cold War. CPUSA leaders were widely depicted as the unscrupulous and all-too-willing dupes of Moscow’s ambition to operate an insidious “Fifth Column” inside the US – they were the leadership wedge of the “Red Menace,” the enemy within. The Smith Act trials normalized the persecution and prosecution of the CPUSA. Senator Pat McCarran’s Senate Internal Security Committee (SISS), a more powerful relative of HUAC, was established in 1950. The McCarran (or Internal Security) Act required Communist and subversive organizations to register with the Subversive Activities Control Board and allowed for the round-up and detention of American citizens in times of an “internal security emergency.”131 It probably could not have passed without the conviction of the Smith Act defendants in 1949. Yet comprehensive histories of the Cold War – both concise and lengthy – often fail to mention at all the initial 1949 trial and subsequent trials.132 Nothing similar in scope occurred in Canada.

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comparison and conclusion Despite the connections and similarities among the Soviet spy networks discovered in Canada and the US, as well as in the UK and Australia, the early Canadian and US Cold War spy trials were markedly different in terms of their conduct and their effect on public consciousness.133 The Canadian prosecutions relied upon unusual evidence – notably stolen embassy documents and confessions given to the Royal Commission by individuals held in solitary confnement without legal counsel – whereas the American trials used more conventional police investigations and confessions. Both jurisdictions relied heavily on conspiracy charges, which allowed the state to be proactive while taking advantage of lower evidentiary thresholds. US trials relied heavily on paid informants – many of whom later were revealed to be unreliable and whose testimony from one proceeding to another was contradictory when it was not simply false.134 These investigations initially drew heavily on the information gained by the Gouzenko and Bentley defections, which was shared quite freely among security services.135 In Britain and Canada, trials remained a discrete issue – the Royal Commission identifed spies, and the Crown prosecuted the identifed spies for those crimes. Members of the LPP faced routine scrutiny by security services, and the OSA was deployed, but the LPP itself did not face a full-fedged legal offensive. In the United States, by contrast, there was political sentiment supported by the FBI under J. Edgar Hoover’s leadership, prosecutorial strategies, and Congressional committees that sought the outright destruction, or at least marginalization, of the CPUSA. This goal was accomplished through the Smith Act trials in tandem with legislation such as the McCarran Act and Taft– Hartley Act, which required union offcials to submit affdavits with the National Labor Relations Board indicating that they were not members of the CPUSA.136 The legacy of these US trials was fervent, institutionalized anti-Communism and a fxation on key cases that lasted for decades, supported by both the right and the emerging anti-Communist left. Conversely, the legacy in Canada was outrage over the Royal Commission’s violation of civil liberties – noted as a recurring phenomenon in the Canadian response to real or perceived national security threats – more so than a long-standing fxation on the extent of any Communist conspiracy.137 In Canada, most of the accused questioned by the Royal Commission found themselves detained without charges, held in solitary confnement, and then questioned under oath by the Royal Commission, mostly without the beneft of legal counsel. Their statements were instrumental in the

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construction of the Royal Commission’s reports and would be imperative for convictions given the paucity of documentary evidence. The admissibility of these statements was an important preliminary legal issue in all of the trials. The issue of confessions obtained without counsel was of little concern in the US trials or in the related trials to follow in the UK, where as noted, Nunn May was directly implicated by the Gouzenko revelations and was convicted of breaching the UK’s Offcial Secrets Act.138 Three years later, the same investigation, aided by the Venona decrypts, identifed Klaus Fuchs as a spy.139 Prosecutors charged Fuchs with four breaches of the British OSA; he confessed and pleaded guilty; and Lord Goddard sentenced him to fourteen years’ imprisonment (the maximum sentence).140 Both Fuchs and Nunn May had confessed to their crimes during investigations where they had the beneft of counsel, and both pleaded guilty at trial. Protection of their civil liberties did not prove to be a signifcant cause for alarm. In the US, prosecutors similarly relied upon conventional police investigations. Although the Smith Act trials were deeply troubling in terms of the stifing of freedom of speech and assembly, the individual defendants were afforded access to counsel and protected by their Constitution’s Fifth Amendment in that they could decline to answer questions on the grounds that doing so might incriminate them. The cultural resonances of early Cold War trials in these two jurisdictions were also very different. In the US, espionage trials and their implications dominated the news cycle for years. The convictions of the “atomic spies” Julius and Ethel Rosenberg have been analysed repeatedly, spawning an entire industry of scholarly, biographical, and partisan accounts, and conferences and committees, as well as legal and ongoing public debate. For decades the innocence of Hiss and the Rosenbergs was an article of faith for those on the left; Chambers was perceived as the real perjurer and the Rosenbergs as the unwitting victims of a government frame-up. Moreover, every time new evidence was made available, new theories and arguments were advanced and accusations and counter-accusations ensued.141 The full extent of Ethel’s involvement and complicity – she shared his political beliefs but was not a spy with a Venona codename – is still debated.142 Setting aside post-Venona debates over the importance of the information provided, or the level of Ethel’s awareness or involvement, or the sensational media framing of the case, or the procedural irregularities (which may have included ex parte communication between prosecuting attorney Roy Cohn and the trial judge), anti-Communism infected

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the proceedings. It infuenced the public reaction and most certainly the sentencing. As Lori Clune points out, the Rosenbergs hold the dubious distinction of being the only married couple executed for a federal political crime – prior to their 1953 execution, no American civilian had ever been killed for espionage or treason, much less for conspiracy to commit espionage, and her research demonstrates that the choice was a diplomatic blunder, in that it transformed the couple from spies into martyrs.143 FBI and Department of Justice records indicate that the imposition of the death penalty on Julius and Ethel was intended to pressure at least one of the two to name names.144 Moreover, trial judge Irving Kaufman justifed the death sentence by claiming that their actions had emboldened the Soviet Union. He chastised the Rosenbergs, simultaneously infating their importance and their responsibility: “But in your case, I believe your conduct in putting into the hands of the Russians the A-Bomb years before our best scientists predicted Russia would perfect the bomb has already caused, in my opinion, the aggression in Korea, with the resultant causalities exceeding 50,000 and who knows but that [sic] millions more of innocent people may pay the price of your treason.”145 Judge Kaufman’s infammatory remarks contributed to public, media, and historical confation of the actual charge against the Rosenbergs, that of conspiracy to commit espionage, with treason.146 The language of treason also infected coverage of the Smith Act trials. Even the New York Times reported at the outset of the trial that the court might “reappraise the role of the Communist party in this country.” Then in the same story it added this teaser: “The House Committee on UnAmerican Activities advised Congress this week that it had established ‘beyond a doubt’ that the function of the party in this country was espionage and other treasonable activities.”147 The Gouzenko affair put Canada at the centre of the onset of the Cold War just as the Second World War was coming to a close. Gouzenko was a celebrity in Canada’s early Cold War years. His testimony attracted public attention, and his books sold reasonably well; the familiar image of him with a bag on his head to obscure his identity is a recurring one in history textbooks. He even appeared on the CBC game show Front Page Challenge, in 1958. The trials that followed his revelations, however, are much less remembered. Fred Rose’s trial attracted some attention, but by 1947 it was rare for the trials and appeals (which would continue until 1949) to earn a spot on the front pages of Canada’s daily newspapers. Furthermore, the trials did not lead to a wholesale crackdown on the LPP. The LPP, the wartime and post-war incarnation of the CPC, continued to operate

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in the open. Premier Duplessis continued to apply the Padlock Law in Quebec, but there would be no return to the section 98 days of the 1930s (at least until the October Crisis of 1970, when the FLQ was outlawed under the War Measures Act), and the LPP remained legal.148 So the trials had limited effect on public consciousness in Canada. Unlike the US cases examined here, there were no acrimonious decades-long debates about guilt or innocence, nor was there an ensuing culture war. As a result, none of the Canadian trials resulted in signifcant scholarly or popular literatures aimed at continual reassessment, as happened with both Hiss and the Rosenbergs. Even the Smith Act trials, which have been largely sidelined in Cold War reassessments, have attracted more ink and ongoing research than the Canadian trials. Ironically, perhaps, outrage over the methods used by the Royal Commission had a more signifcant impact: it triggered a chain of events that led to the establishment of Senate and Parliamentary committees to examine the possibility of developing a Canadian Bill of Rights, ultimately implemented by Prime Minister John Diefenbaker.149 Although the Bill of Rights was a largely ineffectual attempt to codify Canadian rights and freedoms, it was an important step toward the Canadian Charter of Rights and Freedoms.150 Overall, the Canadian approach to prosecutions was limited in scope, with specifc individuals prosecuted for specifc infringements. By contrast, US anti-communism was widespread and involved more institutions and levels of government. Moreover, in the US there was a greater diversity of defendants, including Lower East Side Jews (the Rosenbergs), East Coast elites (Alger Hiss), and Hollywood celebrities. Nuclear secrets had been betrayed and provided to the superpower adversary. In Canada, there were no celebrity or high-power spies except for Fred Rose, who was a known and previously arrested Communist. Canada’s response was initially more intense than in the US, given Gouzenko’s Ottawa defection and the resulting Royal Commission. In the end, however, the US quickly overtook Canada in the legal persecution of the enemy within. The US, as the reigning Western superpower and as a state, had long responded with greater vehemence to security threats, real and perceived, both before and after the Cold War. In the construction of the Cold War, US authorities, at all levels and branches of government, as well as in the private sector, sustained a bipartisan commitment to anti-Communism that long outlasted both trials and McCarthyite redbaiting hysteria. In early Cold War political trials – whether they involved espionage, as was the case with the Rosenbergs, or advocacy of force and

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violence, as with the Smith Act trials – prosecutors used conspiracy charges rather than indictments involving overt acts or attempts. By conveniently lowering the evidential threshold, conspiracy charges allowed for the narrative construction of a plot for something that had not yet happened, an approach amenable to further infammatory red-baiting and allowing for the indirect decimation of a political party. In Cold War Canada, spy trials destroyed or upended the lives and careers of individuals; in the US, political trials destroyed a political party and the radical left more generally. NOTES 1 See, for example, Barbara Roberts, Whence They Came: Deportation from Canada, 1900–1935 (Ottawa: University of Ottawa Press, 1988); and Dennis G. Molinaro, “‘A Species of Treason?’: Deportation and Nation-Building in the Case of Tomo Cacic, 1931–1934,” Canadian Historical Review 91 (March 2010): 61. 2 S.98(1), Criminal Code of Canada, 1927, c.36. See also Dennis G. Molinaro, An Exceptional Law: Section 98 and the Emergency State, 1919–1936 (Toronto: University of Toronto Press for the Osgoode Society for Canadian Legal History, 2017), 86–119; Dennis G. Molinaro, “Section 98: The Trial of Rex v. Buck et al. and the “State of Exception” in Canada, 1919–36,” in CST4, 324–63. For Tim Buck’s perception of the law and trial, see Tim Buck, Yours in the Struggle: Reminiscences of Tim Buck, ed. William Beeching and Phyllis Clarke (Toronto: New Canada, 1977), 162–94. 3 1 George VI Ch. 11. 4 See, for example, Gregory S. Kealey and Reg Whitaker, eds., RCMP Security Bulletins: The Depression Year, Part IV, 1937 (St John’s: Canadian Committee on Labour History, 1997); RCMP Security Bulletins: The Depression Year, Part V, 1939–1939 (St John’s: Canadian Committee on Labour History, 1997); and RCMP Security Bulletins: The War Series, 1939–1941, 1939 (St John’s: Canadian Committee on Labour History, 1989). 5 Offcial Secrets Act, s.3(1). 6 Offcial Secrets Act, s.3(4)(a); and s.3(3). 7 Offcial Secrets Act, s.3(2). 8 Offcial Secrets Act, s.3(2). 9 Order-in-Council 2363, 6 June 1940. 10 Reg Whitaker, “Offcial Repression of Communism During World War II,” Labour / Le Travail 16 (Spring 1986): 146; Laurel Sefton MacDowell, Renegade Lawyer: The Life of J.L. Cohen (Toronto: University of Toronto Press for the Osgoode Society for Canadian Legal History, 2001), 153–92.

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11 For discussion of one group of internees who joined the Canadian military, see Ellin Bessner, Double Threat: Canadian Jews, the Military, and World War II (Toronto: University of Toronto Press, 2018), 36–42. 12 The term “Red Scare” principally refers to two periods of anti-radical and anti-leftist US government action. The frst “Red Scare” occurred during and after the First World War (epitomized by the Palmer Raids and the passage of the Espionage Act of 1917 and the Sedition Act of 1918). The second “Red Scare” arguably began in the late 1930s with the expansion of FBI power (see n96 below) but intensifed following the Second World War, when the Soviet Union became the principal US adversary and domestic communism was increasingly constructed as a national security threat. In the broader context of US history, see Eric Foner, The Story of American Freedom (New York: W.W. Norton, 1999), 25; on both “Red Scares,” with a focus on US anti-Communism, see M.J. Heale, American Anticommunism: Combating the Enemy Within, 1830–1970 (Baltimore: Johns Hopkins University Press, 1990); and Larry Ceplair, Anti-Communism in Twentieth-Century America: A Critical History (Santa Barbara: Praeger, 2011); for a collected series of oral histories see Griffn Fariello, Red Scare: Memories of the American Inquisition (New York: W.W. Norton, 1995). 13 During the November 1919 raid around 1,000 were detained; in the January 1920 raid between 5,000 and 10,000 were arrested and detained; exactly three pistols were found. Robert Justin Goldstein, American Blacklist: The Attorney General’s List of Subversive Organizations (Lawrence: University Press of Kansas, 2008), 3. 14 Factionalism was an early feature of American Communism, with two parties created in 1919: the Communist Party (consisting largely of language federations of Eastern Europeans with a vanguardist approach), and the Communist Labor Party (with a mass orientation). The 1919 Palmer Raids and the subsequent Red Scare drove the nascent movement underground; under Moscow’s pressure the parties merged, established a legal existence, and began to feld candidates in local elections in the early 1920s; see Fraser M. Ottanelli, The Communist Party of the United States: From the Depression to World War II (New Brunswick: Rutgers University Press, 1991), 10–12. 15 These prosecutions were initiated under the Smith Act, discussed below; see also Michael R. Belknap, Cold War Political Justice: The Smith Act, the Communist Party, and American Civil Liberties (Westport: Greenwood Press, 1977), 262–70. 16 To be clear, there was not one complete list of subversive organizations; rather, the list was iterative and constantly evolving. The list(s) were necessary because they undergirded the many state loyalty security programs

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and screening processes and supported administrative procedures such as the denial of tax exemptions, all with the goal of stopping alleged communist infltration through support of popular causes. See, American Blacklist, esp. ch. 2, “The Spread and Impact of AGLOSO, 1947–1955), 62–147. For a comparison of early US and Canadian law on this point, see F.M. Greenwood, “Judges and Treason Law in Lower Canada, England,and the United States during the French Revolution, 1794–1800,” in CST1, 241–95. See the Alien Registration Act (or “Smith Act”), 18 U.S.C. § 2385. Zechariah Chafee, Free Speech in the United States (Cambridge, MA: Harvard University Press, 1941). Chafee also quipped, “Just as the 1917 Act gave us a war-time sedition law, so the 1940 Act gives us a peace-time sedition law – for everybody, especially United States citizens” (441). For a political and legislative overview of the genesis of the law, see Belknap, Cold War Political Justice, 19–27. Originally published in Cahiers du Communisme under the title “A propos de la dissolution du Parti Communiste Americain,” the 1945 letter was later translated and reprinted for consumption by American communist audiences (thus justifying the CPUSA’s hardening Muscovite line) in William Z. Foster et al., Marxism-Leninism vs Revisionism (New York: New Century, February 1946), 21–35. Amy Knight, How the Cold War Began: The Gouzenko Affair and the Hunt for Soviet Spies (Toronto: McLelland and Stewart, 2005), 14–43. The commissioners set out the basis for their authority in their fnal report. See the Honourable Mr Justice Robert Taschereau and the Honourable Mr Justice R.L. Kellock, Commissioners, [Final Report of the] Royal Commission to Investigate the Facts Relating to and the Circumstances Surrounding the Communication, by Public Offcials and Other Persons in Positions of Trust of Secret and Confdential Information to Agents of a Foreign Power (Ottawa: King’s Printer, 27 June 1946), 649–50, 671–80. Hereafter Taschereau–Kellock Report. Taschereau–Kellock Report, 44–8. For a thorough discussion of Woikin’s motives, see June Callwood, Emma (Toronto: Stoddart, 1984). Jack Granatstein and David A.T. Stafford, Spy Wars: Espionage and Canada from Gouzenko to Glasnost (Toronto: Key Porter, 1990), 67; Knight, How the Cold War Began, 38–9. At the time, a Canadian national was still a British subject, but a British subject living in Canada was not necessarily a Canadian national. Knight, How the Cold War Began, 71–2. Myron Momryk, “Ignacy Witczak’s Passport, Soviet Espionage, and the Origins of the Cold War in Canada,” Polish American Studies 68 (Autumn 2011): 67. See also Taschereau–Kellock Report, 541–2.

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29 Robert J. Lamphere and Tom Shachtman, The FBI–KGB War: A Special Agent’s Story (New York: Random House, 1986), 34–6. 30 Gold was the handler for Klaus Fuchs and in May 1950 confessed to the FBI, revealing a number of Americans, who were soon arrested on espionagerelated charges, including Abe Brothman, Miriam Moscowitz, Alfred Dean Slack, and David Greenglass. Gold pleaded guilty and served under half his thirty-year sentence. See Allen M. Hornblum, The Invisible Harry Gold: The Man Who Gave the Soviets the Atom Bomb (New Haven: Yale University Press, 2010); Reg Whitaker and Gary Marcuse, Cold War Canada: The Making of a National Insecurity State, 1947–1957 (Toronto: University of Toronto Press, 1994), esp. “Part Two: The Gouzenko Affair”; and Knight, How the Cold War Began. 31 There is no evidence that Bentley and Gouzenko knew each other or that the FBI’s interest was piqued because of Gouzenko’s revelations. However, Fred Rose had worked with Jacob Golos, Bentley’s former lover, whose 1943 death partly prompted a personal reassessment of her activities. And Bentley was frst suspected of being an impersonator rather than a real spy. Unlike Gouzenko or (later) Whittaker Chambers, she did not have documents to back up her claims. See Kathryn S. Olmsted, Red Spy Queen: A Biography of Elizabeth Bentley (Chapel Hill: University of North Carolina Press, 2002), 90–5. 32 Elizabeth Bentley, with the friendship and encouragement of Louis Budenz, converted to Catholicism; see Olmsted, Red Spy Queen, 146–8. Budenz’s own self-serving account of his turn away from the Church (he was raised a Catholic) and later return is cloying in the extreme: Louis Budenz, This Is My Story (New York: McGraw-Hill, 1947). The Catholic Church was historically anti-Bolshevik; still, the Spanish Civil War intensifed anticommunist activism among clergy and laity in the United States. While race tended to split workers in unions in the South, often Catholicism fueled anti-communism in industrial unions in the North. See Ellen Schrecker, Many Are the Crimes: McCarthyism in America (Princeton: Princeton University Press, 1998), 71–5. 33 Olmsted, Red Spy Queen, 93. 34 Some of the individuals suspected of spying, such as Smith and Halperin, appear to have been allowed limited access to counsel during questioning by the Commission. Rose was only briefy questioned by the Royal Commission on 26 April, after charges had been laid against him and his preliminary hearing had concluded. His lawyer, Joseph L. Cohen, was present throughout the questioning. See Robert Bothwell and J.L. Granatstein, eds., The Gouzenko Transcripts: The Evidence Presented to the Kellock–Taschereau Commission of 1946 (Ottawa: Deneau, 1982), 292–311, 338; Taschereau–Kellock Report, 669.

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35 Mazerall and Smith had been jointly indicted, but their trials were split when Mazerall elected trial by judge and jury. Then, in September 1946, fve individuals were brought before a grand jury with a joint indictment: Adams, Benning, Gerson, Nightingale, and Poland. At the time, all were charged with conspiracy to breach the OSA; Adams, Gerson, and Nightingale were charged with two infractions of breaching the OSA, and Benning and Poland with a single infraction. After defence counsels for Adams, Benning, and Nightingale brought motions for their clients to be tried separately, Justice G.F. McFarland ruled that the interests of justice would not be served by trying them together in what was estimated would be a seven-week trial. The trials proceeded separately, and there were no other efforts to try more than one of the alleged spies at a time. “Grand jury given data on 5 held in spy ring,” Globe and Mail, 10 September 1946; “Court to say Wednesday if espionage trials separate,” Globe and Mail, 1 October 1946; “Jurors pick personnel to try accused Gerson in sphy conspiracy case,” Globe and Mail, 3 October 1946. 36 “Carr must serve 6 years as ‘enemy of the government,’” Toronto Daily Star, 27 September 1949. 37 Rebecca West, frst writing after the Nunn May trial and then again after Klaus Fuchs, expressly grouped the spies for the Soviet Union together with individuals like William Joyce, better known as “Lord Haw-Haw.” Joyce, an American-born Briton, had broadcasted propaganda for Germany during the Second World War and was convicted of high treason and executed. See Rebecca West, The Meaning of Treason (New York: Viking Press, 1947); and The New Meaning of Treason (New York: Viking Press, 1964). For Canadian media examples, see H.R. Armstrong, “May charge treason in some spy cases,” Toronto Daily Star, 5 March 1946. Arthur Smith, Conservative Member of Parliament for Calgary West, stated that “one small change in the circumstances and they [the defendants] would be traitors, they would be guilty of treason and liable to be hanged.” Kenneth C. Craig, “St Laurent holds spy case course right, courageous,” Globe and Mail, 20 March 1946. 38 Emphasis added. Criminal Code, 1927 [as amended], S.C. 1927, c.36 pt II, s.74(i). 39 For example, in the case of the frst four indictments – Woikin, Willsher, Lunan, and Mazerall – each was initially charged with one count of conspiracy to breach the OSA and one count of breaching the OSA. One week later, these eight total charges had ballooned to twenty-two. Woikin, as an example, was then charged with one count of conspiracy and fve counts of violating the OSA. H.R. Armstrong, “Two women, two men aided Soviet – Ottawa,” Toronto Daily Star, 4 March 1946. Ross Harkness, “Spy case one for bail, court reply to Crown,” Toronto Daily Star, 13 March 1946.

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40 After these events, additional espionage provisions were introduced in the 1951 amendments to the Criminal Code (and elaborated in the 1953–4 revisions) to extend the defnition of treason to include espionage-related activities (but with lesser penalties). 41 In the case of Woikin, the charge of conspiracy was withdrawn entirely at her preliminary hearing (as it was accepted that her interaction with the network was strictly through Soviet military intelligence offcer Colonel Nikolai Zabotin and his wife), as was the charge of retaining documents in violation of the OSA (as she had memorized documents and rewritten them, rather than removing the originals from her offce). Two more charges under the OSA were withdrawn at the beginning of her trial, leaving only two: that she used information in her possession for the beneft of the Soviet Union, and that she communicated to an unauthorized person information from documents to which she had access as a government employee. Willsher had similarly been charged with conspiracy and several breaches of the OSA but was ultimately tried on one: that she had given an unauthorized person confdential information. “Woikin pleads guilty on 2 remaining counts,” Globe and Mail, 11 April 1946; “2½ years for Woikin, frst convicted spy,” Globe and Mail, 13 April 1946; “Mary Willsher given three years in prison on espionage charges,” Globe and Mail, 4 May 1946. 42 This statement of the law was most notably delivered by Justice McRuer in his two-hour instructions to the jury in the Mazerall case. See “Nation’s nerve centre touched, says McRuer,” Toronto Daily Star, 22 May 1946. 43 In the prosecution of Henry Harris, John J. Robinette successfully argued that the presumptions contained in the OSA extended to the crime of conspiracy to breach the OSA. Judge A.G. McDougall convicted Harris on two counts of conspiracy to breach the OSA. On appeal, the Ontario Court of Appeal quashed Harris’s conviction. Chief Justice of Ontario Robertson held that McDougall had been correct that the presumptions in the OSA properly extended to the crime of conspiracy. However, the Crown had failed to meet even that low threshold. “Trial of Harris halted pending ruling on law,” Globe and Mail, 18 January 1947; “Judge refuses dismissal plea for Henry Harris,” Globe and Mail, 26 January 1947; Rex v. Harris [1947] O.R. 461 (ON CA); “Harris freed, is ninth of 18 to be absolved,” Toronto Daily Star, 28 May 1947. 44 “4 espionage accused choose trial by jury,” Globe and Mail, 14 May 1946; “F. Rose, M.P., wins 2 separate trials,” Toronto Daily Star, 7 May 1946; “Grant two trials for Fred Rose; conspiracy frst,” Globe and Mail, 8 May 1946; “Legal skirmishes occupy all day in espionage trial,” Toronto Daily Star, 14 May 1946. 45 Taschereau–Kellock Report, 123–4.

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46 For Mazerall’s confession, see Bothwell and Granatstein, The Gouzenko Transcripts, 193–4. 47 Patrick Boyer, A Passion for Justice: The Legacy of James Chalmers McRuer (Toronto: University of Toronto Press for the Osgoode Society for Canadian Legal History, 1994), 190–3. 48 R. v. Mazerall, [1946] O.R. 511. 49 Canada Evidence Act, R.S.C. 1927, c. 59 50 Rex v. Mazerall, [1946] O.R. 762 (ON CA); Rex v. Smith [1947] O.R. 378–395 (ON CA). The issue was not relevant in Rose’s trial but was considered in Boyer’s trial. Boyer v. The King, [1948] C.C.C. 94 (PQ KB(A)), p. 201. 51 “Gave Lunan two reports, got no money – Mazerall,” Toronto Daily Star (20 May 1946); “Data available to Russia offcially, defence claims,” Toronto Daily Star, 21 May 1946; “Mazerall information said ‘confdential,’ not ‘secret’,” Toronto Daily Star, 21 May 1946. 52 “Sentence Mazerall May 31 on charge of conspiracy,” Toronto Daily Star, 23 May 1946; “Radar man sentenced to penitentiary term,” Toronto Daily Star, 1 June 1946; “Mazerall given four-year term; appeal entered,” Globe and Mail, 3 June 1946. 53 Taschereau–Kellock Report, 111. 54 “Court declares Woikin to be hostile witness,” Globe and Mail, 12 June 1946. 55 “Testifes U.S. asked Canada not to give RDX to Soviet,” Toronto Daily Star, 7 June 1946. 56 “Four said in contempt for refusing evidence in trial of Fred Rose,” Globe and Mail, 13 June 1946; “Mrs. Woikin and Lunan jailed for contempt,” Toronto Daily Star, 20 June 1946. 57 “Court declares Woikin to be hostile witness,” Globe and Mail, 12 June 1946. 58 “‘Is Rose whipping boy?’ counsel queries jury,” Toronto Daily Star, 15 June 1946. 59 Weisbord, The Strangest Dream, 164. 60 Weisbord, The Strangest Dream, 165. 61 “Rose moving to appeal, requests bail to be set,” Toronto Daily Star, 22 June 1946. 62 “No evidence Shugar gave information, Crown admits,” Toronto Daily Star, 18 April 1946; “Re-arrest Shugar, bail $3000,” Toronto Daily Star, 7 August 1946. 63 “Appeals may delay other spy case trials,” Globe and Mail, 21 June 1946. 64 “Gerson is found guilty in spy case conspiracy; given fve year term,” Globe and Mail, 12 October 1946. 65 “Gerson ‘trapped,’ counsel contend,” Globe and Mail, 22 January 1947. 66 “Conviction of Gerson in conspiracy quashed,” Globe and Mail, 28 June 1947. 67 “Gerson guilty second time; gets 4 years,” Globe and Mail, 10 October 1947.

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68 “Third trial is faced,” Toronto Daily Star, 1 April 1947; “Raymond Boyer guilty in 32-minute verdict will ask for appeal,” Toronto Daily Star, 8 December 1947; “Sentence Boyer to 2-year term for conspiracy,” Toronto Daily Star, 30 January 1948. 69 “Spy trial’s key witness refuses to testify, jailed,” Toronto Daily Star, 26 March 1946. 70 “Four said in contempt for refusing evidence in trial of Fred Rose,” Globe and Mail, 13 June 1946; “Mrs. Woikin and Lunan jailed for contempt,” Toronto Daily Star, 20 June 1946. 71 A.O. Tate, “Didn’t even stop for Lunan to get his hat and coat,” Toronto Daily Star, 26 March 1946; “Find case against Rose, free Lunan of contempt,” Toronto Daily Star, 27 March 1946; “Mrs. Woikin and Lunan jailed for contempt,” Toronto Daily Star, 20 June 1946; “Decision on committing three on spy charges delayed by magistrate,” Toronto Daily Star, 19 April 1946. 72 “Trial of Halperin halted as Lunan refuses to talk,” Globe and Mail, 3 December 1946; “Wouldn’t testify, sentence Lunan to extra year,” Toronto Daily Star, 4 March 1947. 73 For Sedgwick’s involvement in the section 98 trial, see Molinaro, An Exceptional Law, 87–8, 91, 97, 100. 74 Carr denied having attended the Lenin School, although this was long suspected by the RCMP and corroborated in documents obtained by Gouzenko. Taschereau–Kellock Report, 97–110; A.O. Tate, “Carr denies ever helping Soviet to get passport,” Toronto Daily Star, 7 April 1949. 75 Taschereau–Kellock Report, 563. 76 “Jury will try passport clerk in spy ring case,” Globe and Mail, 18 September 1946. 77 “Pappin acquitted of charges based on false passport,” Globe and Mail, 19 September 1946; Reg Whitaker and Gary Marcuse, Cold War Canada: The Making of a National Insecurity State, 1947–1957 (Toronto: University of Toronto Press, 1994), 78. 78 “Harris freed, is ninth of 18 to be absolved,” Toronto Daily Star, 28 May 1947; “Rule Crown didn’t show Harris in red spy plot,” Globe and Mail, 5 June 1946. 79 Rex v. Harris [1947] O.R. 461–468 (ON CA). 80 “Endorsing passport said ‘gross stupidity,’ Soboloff fned $500,” Globe and Mail, 14 September 1946. 81 “Carr must serve 6 years as ‘Enemy of Government,’” Toronto Daily Star, 27 September 1949. 82 “Sam Carr appealing passport conviction,” Toronto Daily Star, 28 April 1949; “Carr must serve 6 years as ‘Enemy of Government,’” Toronto Daily Star, 27 September 1949.

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83 Linton’s motivation for turning herself in was not altogether clear. One theory was that, given that she was several months pregnant at the time, she may have seen giving birth in custody as preferable to doing so while in hiding. “Freda Linton, married, gives up,” Toronto Daily Star, 11 April 1949; Alexandrine Gibb, “Freda Linton wearing dark sun glasses given bail of $5,000,” Toronto Daily Star, 12 April 1949; “Freda Linton back in cell, cannot raise $5,000 bail,” Toronto Daily Star, 13 April 1949; Alexandrine Gibb, “Jail stay was nightmare says Freda Linton, on bail,” Toronto Daily Star, 14 April 1949. 84 “‘I expected it,’” Toronto Daily Star, 30 April 1949. 85 See Dominque 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): 166. 86 On Elizabeth Bentley, see Kathryn S. Olmsted, Red Spy Queen: A Biography of Elizabeth Bentley (Chapel Hill: University of North Carolina Press, 2002). 87 In the United States, Winston Churchill’s 1946 “Sinews of Peace” address (also known as the “Iron Curtain” speech) in Fulton, Missouri, functioned as an opening salvo in the Cold War and coincided with a number of domestic political and rhetorical messages against communism. On 22 February 1946, George F. Kennan, then a US diplomat in Moscow, sent what became known as the “Long Telegram” outlining the Soviet Union’s aggressive and expansionist approach, rooted in Marxist-Leninist ideology (and later published as X, “The Sources of Soviet Conduct,” Foreign Affairs 25, no. 4 (July 1947): 566–82. Late in the 1948 election campaign, President Harry S. Truman’s address in Boston (later known as the “Fighting Hub” speech) addressed the threat of domestic and foreign communism, calling it a “godless creed” and “the one issue on which I shall never surrender.” He also took a middle path – taking the Republican Party to task for associating communism with the New Deal and accusing Truman of being “soft” on communism and Progressive Party candidate Henry A. Wallace of being “Communist-supported” (Harry S. Truman, “Address at Mechanics Hall in Boston,” 27 October 1948 (audio recording available at https://www .trumanlibrary.gov/soundrecording-records/sr61-57-address-mechanics -hall-boston). 88 In retrospect, the trio of flms that aroused so much suspicion – Song of Russia, Mission to Moscow, and The North Star – were just bad flms, propagandistic or otherwise. 89 The ten were Alvah Bessie, Herbert Biberman, Lester Cole, Edward Dmytryk, John Howard Lawson, Ring Lardner Jr., Albert Maltz, Samuel Ornitz, Adrian Scott and Dalton Trumbo.

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90 A “labor defense” strategy, in CPUSA parlance, was one based on using ideology and ideals rather than solely legal arguments in addressing alleged crimes, but also aimed at attracting supporters beyond the courtroom. This approach also became known as the “Dimitrov Defense,” based on Bulgarian communist leader Georgi Dimitrov’s speech in support of his own defence at the 1933 Reichstag Fire trial in Leipzig, Germany. (Dimitrov was acquitted and expelled to the Soviet Union; by 1935, as head of the Comintern, he had ushered in the “Popular Front” strategy, which allowed for Communist parties in the US and elsewhere to fnd common cause with other parties and organizations against fascism.) The term is also associated with the International Legal Defense (ILD, 1925–47), the legal advocacy organization affliated with the CPUSA (the US section of the Comintern’s International Red Aid) and later the Civil Rights Congress (CRC, 1946–56). The ILD participated in the defence and appeals of Sacco and Vanzetti and the Scottsboro Boys; the CRC raised funds for Smith Act defendants. On ILD approaches generally and with respect to Smith Act defendants specifcally, see Belknap, Cold War Political Justice, 14–15. 91 However, in the DC Circuit appeal, Judge Bennett C. Clark, rather than exercising judicial restraint and deciding the case narrowly on deference to the powers of Congress, waded into a discussion of national security, stating, “No one can doubt in these chaotic times that the destiny of all nations hangs in the balance in the current ideological struggle between communisticthinking and democratic-thinking peoples in the world.” Lawson v. United States 176 F.2d 49 (DC Cir. 1948) at 51. 92 For example, Humphrey Bogart had actively supported the Ten, but later excused his own behaviour, saying he had been used. Lucille Ball was given the privilege of providing private sealed testimony. When Arthur Miller was questioned in 1956, he was at the height of his fame – soon to be married to Marilyn Monroe. All My Sons, Death of a Salesman, and The Crucible had already been huge successes on Broadway (The Crucible, based on the Salem witchcraft trials, was written with McCarthy Era hysteria in mind). Miller did not name names, criticized the committee in session for “deforming the democratic doctrine” of peaceful association, left the hearing without answering, and did not invoke the Fifth. His conviction for contempt was overturned upon appeal. And those who “named names” were not treated equally, either at the time or afterward: Elia Kazan regained his reputation with an Honorary Oscar for Lifetime Achievement in 1999, whereas Clifford Odets never recovered. On the inconsistencies and hypocrisies of blacklisting in the entertainment world, see K. Kevyne Baar, Broadway and the Blacklist (Jefferson: McFarland, 2019); Thomas Doherty, Hollywood, HUAC, and the

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Birth of the Blacklist (New York: Columbia University Press, 2018); and Alan Casty, Communism in Hollywood: The Moral Paradoxes of Testimony, Silence, and Betrayal (Lanham: Scarecrow Press, 2009). On Miller specifcally, see David Maraniss, A Good American Family: The Red Scare and My Father (New York: Simon and Schuster, 2019), 332–5. “The Waldorf Statement,” in Ellen Schrecker, Many Are the Crimes: McCarthyism in America (Princeton: Princeton University Press, 1998), 243. The Federal Loyalty-Security Program imposed a political test on every civilian employee of the Executive Branch and used the Attorney General’s List of Subversive Organizations (AGLOSO) to determine those designated under the order as “totalitarian, fascist, communist or subversive, or as having adopted a policy of advocating or approving the commission of acts of force or violence” (Harry S. Truman, Executive Order 9385, 21 March 1947, in Schrecker, The Age of McCarthyism, 174. See also Eleanor Bontecou, The Federal Loyalty-Security Program (Ithaca: Cornell University Press, 1953); and Adam Yarmolinsky, ed., Case Studies in Personal Security (Washington, DC: Bureau of National Affairs, 1955). Congressman Martin Dies had previously chaired the Special Committee on Un-American Activities, rebranded in 1945 as a standing committee of the House of Representatives, as the House Committee on Un-American Activities. See Ellen Schrecker, The Age of McCarthyism, 64. Aside from HUAC, at the national level was Senator Joseph P. McCarthy’s Permanent Investigating Subcommittee of the Government Operations Committee (known popularly as the “McCarthy Committee”), as well as Senator Pat McCarran’s relatively more powerful Senate Internal Security Committee (SISS). By the 1930s Hoover had succeeded in obtaining and extending broad FBI discretionary authority from the Executive Branch to investigate lawful dissent, espionage, counter-espionage, and sabotage. He was also skilful in appealing to judicial concerns regarding civil liberties while evading oversight and information-sharing with other government departments. He was careful to seldom appear before Congressional committees, and only with an eye to achieving maximum impact, as was the case with his March 1947 HUAC testimony (during which he “rebranded” Communists as “Red Fascists”). He also worked behind the scenes to assist with the Hiss–Chambers case and the HUAC hearings on communist infuence in Hollywood while also providing bureau cooperation in a number of militantly anti-communist movies. See especially Athan G. Theoharis and John Stuart Cox, The Boss: J. Edgar Hoover and the Great American Inquisition (Philadelphia: Temple University Press, 1988), 148–56, 201–12, 250–6.

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97 J. Edgar Hoover, “Testimony before HUAC March 26, 1947,” in Schrecker, The Age of McCarthyism, 128–9. Given what we know about Hoover’s anticommunist obsession, Schrecker makes the argument that McCarthyism might be more aptly named “Hooverism.” See Schrecker, Many are the Crimes, esp. ch. 6. 98 J. Edgar Hoover, “Testimony before HUAC March 26, 1947,” in Schrecker, The Age of McCarthyism, 131. 99 See Susan Jacoby, Alger Hiss and the Battle for History (New Haven: Yale University Press, 2009), 138. Chambers’s character was much maligned; see Allen Weinstein, Perjury: The Hiss–Chambers Case (Stanford: Hoover Institution Press, 2013).The “characters” of the two men continued to be debated for decades after the case. Chambers was also pilloried for his closeted homosexuality: the FBI had a letter in which Chambers described his extramarital sexual liaisons, and Hiss’s lawyers suggested that Chambers had an unrequited attraction to Hiss. Hiss may have had a more “elite” background, but Chambers was by far the better writer: he had worked for Time magazine, editor T.S. Matthews compared his writing to André Malraux, and his memoir Witness was a national bestseller. Hiss wrote two accounts that Jacoby aptly describes as “elliptical and emotionally unconvincing” (Weinstein, Perjury, 347, Jacoby, Alger Hiss, 22). By contrast, see Alger Hiss, In the Court of Public Opinion (New York: A.A. Knopf, 1957); and Recollections of a Life (New York: Seaver Books, 1988). 100 As Jacoby makes clear, while the debate on Hiss would continue for decades, the basic facts of his biography are not in doubt; Susan Jacoby, Alger Hiss, 5–11. 101 Patrick A. Swan, ed., Alger Hiss, Whittaker Chambers, and the Schism in the American Soul (Wilmington: Intercollegiate Studies Institute [ISI] Books, 2003), xxviii. Swan’s collection reproduces a famous essay written by Arthur Koestler for The New York Times Magazine titled “The Complex Issue of the Ex-Communists,” in which he describes the two protagonists thus: “The persecuted Hiss appeared as the prototype of the decent, modest, hardworking, well-spoken, happily married, idealistic American liberal who, even if assumed to be guilty, could not be suspected of having acted for any base reason or for personal gain. His persecutor on the other hand appeared as a man who unblushingly admitted to having committed perjury, traveled with forged passports, lived with a mistress under false names and was described by some academic gents as a psychopath. To put the matter in a nutshell: from the spectator’s point of view the casting of the parts was all wrong – Chambers should have got the part of Hiss and Hiss the part of Chambers” (Swan, Alger Hiss, 51).

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102 Chambers had hidden both developed and undeveloped flm in a hollowedout pumpkin on his farm that included confdential State Department documents sent to the Soviet Union – in effect, evidence of espionage. See Weinstein, Perjury, 197–207, 289, 290–1, 294–5. The Chambers farm was named a National Historic Landmark, and Chambers was posthumously awarded the Presidential Medal of Freedom – both during the Reagan administration. For Republicans like Nixon, indicting Hiss was about more than communism – the New Deal was also politically suspect. Chambers himself promoted such a view in his autobiography Witness. On this point see Sidney Hook’s review of Witness, “The Faiths of Whittaker Chambers,” New York Times, 25 May 1952 (https://timesmachine.nytimes .com/timesmachine/1952/05/25/110062526.pdf?pdf_redirect=true&ip=0). Nixon had been burnishing his anti-communist bona fdes since entering national politics in 1946; as a freshman Congressman he had joined HUAC, supported passage of the Taft-Hartley Act, and, along with Karl E. Mundt, sponsored the Subversive Activities Control Bill (popularly known as the Mundt-Nixon bill), a law that would have required the registration of all American communists. It failed, but sections of the bill were later incorporated into the Internal Security (or McCarran) Act (see n131). His maiden speech focused on Gerhard Eisler, a Comintern agent, the frst unfriendly witness Nixon encountered while serving on HUAC. However, it was the Hiss case that brought Nixon to national attention, and he and Whittaker Chambers became friends as a result. By contrast, Nixon’s animosity toward Hiss was constant, even after he had been convicted for perjury. On the pumpkin papers and these matters, see Chambers, Witness, 558–74; Richard Nixon, The Memoirs of Richard Nixon (New York: Touchstone, 1990), 52–8; and Jonathan Aiken, Nixon: A Life (London: Weidenfeld and Nicolson), 150–78. 103 See United States v. Hiss, 185 F.2d 822 (2d Cir. 1950). An order denying a motion for a new trial was unsuccessful, as was the appeal (United States v. Hiss, 201 F.2d 372 (2d Cir. 1953). In 1972 Hiss successfully challenged the denial of his government pension under a 1954 law known colloquially as the “Hiss Act” (denying benefts to any federal employee convicted of a national security-related perjury case, then codifed as 5 U.S.C. §§ 8311–8322; see Hiss et al v. Hampton, 338 F. Supp. 1141 (1972)). However, Hiss later fought to reopen and appeal his case in 1978 based on documents released under the Freedom of Information Act (FOIA); a 1982 decision rejected his argument. In appeal, much of the consideration focused on a Woodstock typewriter allegedly used to type up the stolen documents – such are the minutiae of the endlessly debated elements of the Hiss case.

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104 The debate, however, has continued regardless of new evidence. On the side of Hiss’s innocence, see the website managed by Jeff Kisseloff, https:// algerhiss.com/about-this-site, as well as a more recent addition to the frame-up thesis: Joan Brady, Alger Hiss Framed: A New Look at the Case That Made Nixon Famous (New York: Arcade, 2016). On the side of Hiss’s guilt, see primarily Weinstein, Perjury; and the work of Harvey Klehr and John Earl Haynes, cited below. On Chambers, see his autobiography, Witness, as well as Sam Tanenhaus, Whittaker Chambers: A Biography (New York: Random House, 1997). On the nature of the debate, see K.A. Cuordileone, “The Torment of Secrecy: Reckoning with American Communism and Anticommunism after Venona," Diplomatic History 35, no. 4 (September 2011): 615. Many of the key pro/anti Hiss texts, from 1950 to 2001, are found in Swan, Alger Hiss. 105 In 1943 the Army’s Signal Intelligence Service at Arlington Hall, Virginia (later incorporated into the National Security Agency) launched the Venona program to decode Soviet diplomatic cables, and by 1948 cryptographers could identify specifc individuals involved in espionage. The existence of the program and of thousands of decrypted Soviet messages was fnally made public in 1995, providing considerable evidence of espionage networks, including those of Julius Rosenberg and Alger Hiss. However, given the intelligence value of Venona, none of the evidence obtained through decrypted cables was used in court. For more information see https://www.nsa.gov/News-Features/Declassifed-Documents/Venona. 106 Harvey Klehr, John Earl Haynes, and Alexander Vassiliev, Spies: The Rise and Fall of the KGB in America (New Haven: Yale University Press, 2009), 541. For context and analysis of their work with respect to the numbers, see Cuordileone, “The Torment of Secrecy,” 620n9. See also the earlier work of John Earl Haynes and Harvey Klehr, Venona: Decoding Soviet Espionage in America (New Haven: Yale University Press, 1999). 107 Hoover assisted Hiss’s ouster from the State Department by delivering information to Mississippi Senator James Eastland and later to Richard Nixon. 108 “Senator Joseph McCarthy, ‘Speech at Wheeling, West Virginia,’ February 9, 1950,” in Schrecker, The Age of McCarthyism, 238–41. McCarthy’s speech singles out Hiss as well as then Secretary of State Dean Acheson, who publicly defended Hiss – unsurprisingly, Nixon and the Republican establishment would pillory Acheson for years for doing so. McCarthy’s list – and the numbers fuctuated over time – did not produce any other indictments. To be clear, McCarthy was not referring to spies whose work during the Second World War had been uncovered via the revelations of

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former spies such as Elizabeth Bentley and Whittaker Chambers rather, he was discussing employees working in the State Department at that time. As Philip Deery states: “He was not merely embellishing; he was concocting. The Moscow archives confrm this.” Deery, “Post–Cold War Confict: Historians, Espionage and American Communism,” in Seeking Meaning, Seeking Justice in a Post-Cold War World, ed. Judith Keene and Elizabeth Rechniewski (Leiden: Brill, 2018), 48. 109 United States v. Rosenberg et al, 195 F.2d 583 (2d Cir. 1952). The US Supreme Court likewise rejected their appeal; see Rosenberg v. United States, 346 U.S. 273 (1953). 110 Julius Rosenberg’s network included engineers Joel Barr and Alfred Sarant (both of whom defected to the Soviet Bloc for fear of arrest and continued their careers), David and Ruth Greenglass, Russell W. McNutt (engineer with Kellex, a contractor for the uranium-processing plant in Oak Ridge, Tennessee), William Perl, Michael Sidorovich, Morton Sobell, and Nathan Sussman. Greenglass was found guilty in a separate trial and sentenced to ffteen years; he served nine and a half and was released in 1960. Although McNutt was a suspected and surveilled communist sympathizer, there was never enough evidence to indict or convict. His father was a charter member of the Communist Labor Party in Kansas and thus an acquaintance of later party leader Earl Browder. Perl was found guilty of perjury for denying his “acquaintance and association” with the Rosenbergs and served two fve-year sentences. Sidorovich and his wife Anne were both involved in Soviet espionage; they photographed and delivered documents provided by Perl. Sidorovich was a schoolmate of Rosenberg; his father had fought in Spain. Neither was indicted. Morton Sobell, indicted and tried along with Julius and Ethel Rosenberg, was convicted and sentenced to thirty years, and served seventeen years and nine months, having written a memoir, On Doing Time. Sobell maintained his innocence for decades afterward, only admitting espionage on behalf of the Soviet Union in a 2008 New York Times interview with Sam Roberts. See Morton Sobell, On Doing Time (New York: Charles Scribner’s Sons, 1974); and Sam Roberts, “Figure in Rosenberg Case Admits to Soviet Spying,” New York Times, 11 September 2008, https:// www.nytimes.com/2008/09/12/nyregion/12spy.html. On Sarant and Barr, see Steven T. Usdin, Engineering Communism: How Two Americans Spied for Stalin and Founded the Soviet Silicon Valley (New Haven: Yale University Press, 2005). On David Greenglass, see Sam Roberts, The Brother: The Untold Story of the Rosenberg Case (New York: Random House, 2001). On the above as well as McNutt, Perl, Sidorovich, Sobell, and Sussman, see Klehr, Haynes, and Vassiliev, Spies. (For Julius’s Soviet handler’s account, see Aleksander

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Feklisov, The Man behind the Rosenbergs (New York: Enigma Books, 2001). On the Rosenberg sons, see esp. Robert Meeropol, An Execution in the Family: One Son’s Journey (New York: St Martin’s, 2003). See also the interactive Rosenberg timeline developed by the Cold War International History Project: https://web.archive.org/web/20090523222557/http://www .wilsoncenter.org/CWIHP/Rosenberg. See Joseph Albright and Marcia Kunstell, Bombshell: The Secret Story of America’s Unknown Spy Conspiracy (New York: Times Books / Random House, 1997); Haynes, Klehr and Vassiliev, Spies, 2009; and Nigel West, Mortal Crimes. The Greatest Theft in History: The Soviet Penetration of the Manhattan Project (New York: Enigma Books, 2004). See also Marcia and Thomas Mitchell, The Spy Who Seduced America: The Judith Coplon Story (Montpelier: Invisible Cities Press, 2002); Katherine A.S. Sibley, Red Spies in America: Stolen Secrets and the Dawn of the Cold War (Lawrence: University Press of Kansas, 2004); and Richard C.S. Trahair and Robert L. Miller, Encyclopedia of Cold War Espionage: Spies, and Secret Operations, 3rd ed. (New York: Enigma, 2012). In the context of this chapter, “Smith Act trials” refers to the sixteen trials of CPUSA leaders from 1949 to 1956. Two other important prosecutions under the Smith Act preceded these trials. The frst trial, in 1941, involved twentyeight members of the Socialist Workers Party (SWP) who were also members of the Minneapolis Truckdrivers and International Brotherhood of Teamsters unions (a dual local scenario that emerged as a result of internal dispute between the Congress of Industrial Organizations [CIO] and the American Federation of Labor [AFL] membership). In United States v. Dunne et al., eighteen of the twenty-eight were not convicted of conspiracy under the 1861 Sedition Act, but rather were found guilty of conspiracy to teach and advocate the overthrow of the US government by force and violence under the Smith Act (and these convictions were upheld upon appeal). These verdicts illuminated a path to obvious prosecution of the CPUSA and how evidence could be orchestrated based on Marxist texts by alleging potential future violence. For the perspective of one of the lead defendants, see James P. Cannon, Socialism on Trial (New York: Pioneer, 1965); on the union dispute in the context of the trial, see Art Preis, “The Case of the First 18 Smith Act Victims,” The Militant, 19 November 1962; and Bryan Palmer, “‘Gagging’ the Revolutionary Party: The First Smith Act Trial and the Rule of Law,” in The Class Politics of Law, ed. Eric Tucker and Judy Fudge (Halifax: Fernwood, 2019), 171–88. Three books have been published on the 1949 trial; no text exists on all the trials taken as a whole. See Michal R. Belknap, Cold War Political Justice:

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The Smith Act, the Communist Party, and American Civil Liberties (Westport: Greenwood Press, 1977); Peter L. Steinberg, The Great “Red Menace”: United States Prosecution of Communists, 1947–1952 (Westport: Greenwood Press, 1984); and Scott Martelle, The Fear Within: Spies, Commies, and American Democracy on Trial (New Brunswick: Rutgers University Press, 2011). The CPUSA saw the verdict as evidence of creeping fascisim – in their view, 1951 America was akin to 1933 Germany: hence the decision to go underground. Deery, “Post-Cold War Confict,” 49; Schrecker, Many Are the Crimes, 200; Belknap, Cold War Political Justice, 144. Those indicted were Party Chair William Z. Foster, General Secretary Eugene (Gene) Dennis, NYC Council Member Benjamin (Ben) Davis, Daily Worker editor John Gates, Illinois District Chair Gilbert (Gil) Green, Education Secretary Jacob (Jack) Stachel, Labor Secretary John Williamson, Michigan District Chair Carl Winter, New York Furriers’ Union Joint Council manager Irving Potash, National Organization Secretary Henry Winston, New York District Chair Robert (Bob) Thompson, and Ohio District Chair (and later long-time party president and perennial CPUSA national candidate) Gus Hall. Foster’s case was severed due to ill health. All were members of the National Board of the CPUSA as of 20 July 1948, the day the indictment was fled with the Grand Jury. “Eugene Dennis, U.S. communist boss: To rule is to take orders,” Time, 25 April 1949 (the cover illustration depicts a suave yet smug drawing of Dennis; in the background are dozens of wooden puppets, one holding a red fag, held by a fst emanating from a drawing of the Kremlin). These texts included Marx and Engels, The Communist Manifesto; V.I. Lenin, The State and Revolution and Imperialism: The Highest Stage of Capitalism; J. Stalin, Fundamentals of Leninism; Program of the Communist International; and Central Committee of the CPSU, The History of the CPSU (Bolsheviks), which was actually authored by Stalin himself. Not without reason did the CPUSA and their lawyers allege that the government was “putting books on trial.” John F.X. McGohey, Opening Statement on Behalf of Government, 21 March 1949, trial transcript, p. 3209, in Dennis v. U.S., Conspiracy Trials of America (Woodbridge: Gale/Primary Source Media), microflm, reel 2. According to Budenz, this approach was derived from a semantic ploy used by V.I. Lenin himself in 1916 in order to evade tsarist censors and get Imperialism: The Highest Stage of Capitalism published in Russia. In a footnote in the introduction to a later edition, Lenin notes the “careful reader will easily substitute Russia for Japan and other regions/peoples of Russia for Korea.” See Henry M. Christian, ed., Essential Works of Lenin

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(Toronto: Bantam Books, 1966), 177. Later Smith Act trial defendant Dorothy Healy best summed up the dilemma faced by the defence: “[Aesopian language] was a very convenient concept for the prosecution, because it meant that if the defendants openly advocated violence, they were guilty, and if they opposed violence, they were still guilty – and deceitful hypocrites to boot.” See Dorothy Ray Healy and Maurice Isserman, California Red: A Life in the American Communist Party (Urbana: University of Illinois Press, 1993), 116. Gates’s lawyer Harry Sacher tried to get a summary of Das Kapital into the record and wanted to use the witness to provide a comprehensive overview of both the philosophy and the program of the CPUSA; this the judge would not allow. See Belknap, Cold War Political Justice, 92. The defence lawyers could have put their efforts to better use by demonstrating the social good done by the CPUSA – for example, for workers and African Americans – but such efforts had already been portrayed by the prosecution as efforts of infltration and subversion. Gates was asked to name names of those who served with him on the CPUSA National Veterans Committee; after being directly ordered to do so by Judge Medina, he supplied his own name along with those of codefendants Bob Thompson and Henry Winston. He later tried to invoke both the First and Fifth Amendments – illogically, given that he had by his own testimony given up his right against self-incrimination. See Belknap, Cold War Political Justice, 95–6. On the contempt charges and the relationship between the judge and defendants, see David Caute, The Great Fear: The Anti-Communist Purge under Truman and Eisenhower (London: Secker and Warburg, 1978), 191–3; Schrecker, Many are the Crimes, 196–200; and Belknap, Cold War Political Justice, esp. ch. 4, “The Battle of Foley Square,” 77–121. Russell Porter, “11 communists convicted of plot: Medina to sentence them Friday: 6 of counsel jailed in contempt,” New York Times, 15 October 1949. Defence counsel Richard F. Gladstein, Harry Sacher, Abraham J. Isserman, George W. Crockett Jr. and Louis F. McCabe (as well as Eugene Dennis, representing himself) were all found in contempt. Dennis, Sacher, and Gladstein were sentenced to six months; Isserman and Crockett received four months, and McCabe thirty days. Disbarment proceedings were successful against Isserman; all faced disciplinary challenges or hearings from their relevant bar associations. See United States v. Dennis, 183 F.2d 201 (2d Cir. 1950). Oliver Wendell Holmes frst enunciated what came to known as the “clear and present danger” rule in 1919, where the question “is whether the words used are used in such circumstances and are of such a nature as to create a clear and

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present danger that they will bring about the substantive evils that Congress has a right to prevent” (Schenk v. United States, 249 U.S. 47, 52). Dennis v. United States, 341 U.S. 494 (1951), 8. For a full list of the trials and defendants, see Simon W. Gerson, Record of Smith Act Cases, box 7, Gil Green Papers, TAM 095, Tamiment Library and Robert F. Wagner Labor Archives, New York University. The line was blurry in terms of who was charged for conspiracy to teach and advocate and who was charged on the basis of membership, and that line did not always align with who was more senior in the CPUSA or had greater decision-making authority. For example, Sherman Labovitz was indicted in the Philadelphia trial of nine “party leaders” – he was the local circulation manager of the Daily Worker. By contrast, Junius Scales was head of the CPUSA for the Southern District and district organizer for North and South Carolina, Virginia, Tennessee, and Mississippi. Claude Lightfoot was CPUSA chair in Illinois. See Sherman Labotvitz, Being Red in Philadelphia: A Memoir of the McCarthy Era (Philadelphia: Camino Books, 1998). These membership cases were fortunately few because of a legal contradiction that arose with the passage of the Internal Security Act that required all CPUSA members to register as members of a subversive organization; this would have violated the Fifth Amendment against selfincrimination. The Supreme Court reversed Scales’s frst conviction, sending the case for a second trial. Scales was then defended by Telford Taylor, well-known as assistant to Justice Robert Jackson during his hiatus as chief prosecutor of the post-war Nuremburg trials. In Scales v. United States (367 U.S. 203 (1961)), the Supreme Court ruled against Scales; his sentence was commuted by President Kennedy only after an international campaign for his release. On Scales see Gregory S. Taylor, The History of the North Carolina Communist Party (Columbia: University of South Carolina Press, 2009); Mickey Friedman, A Red Family: Junius, Gladys, and Barbara Scales (Urbana: University of Illinois Press, 2009); and Junius Irving Scales and Richard Nickson, Cause at Heart: A Former Communist Remembers (Athens: University of Georgia Press, 1987). In a similar case, Noto v. United States (367 U.S. 290 (1961)), the Supreme Court fnally (and unanimously) severed the connection between an “abstract doctrine” of overthrow of the government and suffciently pervasive evidence of a call to violence in the membership cases – but still did not fnd the membership clause unconstitutional (despite dissents written by Hugo Black and William O. Douglas to that effect). The Internal Security (McCarran) Act was passed in 1950, and only after Truman’s veto was overridden by the House and the Senate. Although the detention provisions were never activated, the FBI kept active fles on

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those who would have met the law’s broad provision based on “reasonable grounds” that such persons “probably will engage in, or probably conspire with others to engage in, acts of espionage or sabotage.” The Act required all “front” organizations (as determined by AGLOSO) to register and provide information about their memberships and activities. Internment camps used for Japanese Americans were to be repurposed for the detention of political prisoners. On McCarran and the overreach that the Hiss, Rosenberg-Sobell, and Smith Act trials encouraged, see Deery, “Post–Cold War Confict,” 43–61. 132 Melvyn P. Leffer and Odd Arne Wested, eds., The Cambridge History of the Cold War (Cambridge: Cambridge University Press, 2010); Lester Brune, Chronology of the Cold War 1917–1992 (New York and London: Routledge, 2006); John Lewis Gaddis, The Cold War: A New History (New York: Penguin, 2005); and many reference texts refer to McCarthyism without any reference to any of the Smith Act trials. The only trials usually covered as “emblematic” of the era are the Hiss and Rosenberg-Sobell trials; see, for example, Thomas Parrish, ed., The Cold War Encyclopedia (New York: Henry Holt, 1996); and Benjamin Frankel, ed., The Cold War 1945–1991: Leaders and Other Important Figures in the United States and Western Europe (Volume I) and The Cold War 1945–1991: Resources, History, Concepts, Events, Organizations, Bibliography, Archives (Volume III) (Detroit: Gale Research, 1991). The New York Times published a two-volume anthology of the Cold War, and despite the fact that it assigned a reporter (Russell Porter) to cover the trial every day, those volumes included no stories on the trial (see Frances J. Gavin, ed., The Cold War, Volume I: 1918–1963 [Chicago: Fitzroy Dearborn, 2001]). Some historians have dealt with the trial in larger and more recent histories of McCarthyism, particularly Schrecker, Many Are the Crimes, esp. ch. 5, “‘A Great and Total Danger’ The Nature of the Communist Threat.” 133 See n37 above on the UK Offcial Secrets Act trials. The subsequent Australian “Petrov Affair” provides a useful point of comparison. In 1954, Soviet diplomatic and intelligence offcer Vladimir Petrov defected to the Australian Security Intelligence Organization with evidence of Soviet spying in Australia. Like Gouzenko’s, Petrov’s evidence showed the extent of Soviet espionage activities in Australia and led to the Royal Commission on Espionage. However, Gouzenko’s defection had been unexpected, whereas Petrov’s followed a period of cultivation by Australian intelligence offcers, the use of informants, and largely conventional investigation tools. The ensuing commission more closely resembled an open inquiry than the “star chamber” of Canada’s Royal Commission. See n41 of this volume’s introduction for a discussion of the Australian experience with

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the Communist Party Dissolution Bill of 1950 and the referendum on the matter the following year; see also Phillip Deery, “‘Our No. 1 Spy’: CounterSubversion in Cold War Australia,” in The Bridge in the Parks: The Five Eyes and Cold War Counter-Intelligence, ed. Dennis Molinaro (Toronto: University of Toronto Press, 2021), 92–124. See also this volume’s introduction, n42. Many informer-witnesses, not just in the Smith Act trials but also in Congressional committees, were later largely discredited, especially those who were on the government payroll for their services. See for example, Joseph Alsop, “The Strange Case of Louis Budenz,” Atlantic Monthly 189 (April 1952); Bernard DeVoto, “The Ex-Communist,” Atlantic Monthly 187 (February 1951); Richard H. Rovere, “The Kept Witnesses,” Harper’s (1955); Richard H. Rovere, The American Establishment: And Other Reports, Opinions, and Speculations (New York: Harcourt Brace, 1962); and Frank Donner, “The Confession of an FBI Informer,” Harper’s (December 1972), 54–5. See Dominique Clément, “Canada’s Integration into Global IntelligenceSharing Networks: From Gouzenko to the Montreal Olympics,” Intelligence and National Security 33, no. 7 (2018), 1054–7. On the role of Taft-Hartley, see Caute, The Great Fear, 354–8; and Schrecker, The Age of McCarthyism, esp. ch. 9, “The Destruction of the Communist Fronts and Unions,” 58–62. Dominque Clément, “Counterterrorism Security Planning in Canada: From Imperialism to International Terrorism,” in Terrorism and Counterterrorism in Canada, ed. Jez Littlewood, Lorne L. Dawson, and Sara K. Thompson (Toronto: University of Toronto Press, 2020), 127, 134; and F. Murray Greenwood, “The Drafting and Passage of the War Measures Act in 1914 and 1927: Object Lessons in the Need for Vigilance,” in Canadian Perspectives on Law and Society: Issues in Legal History, ed. W. Wesley Pue and Barry Wright (Ottawa: Carleton University Press, 1988), 292–3. Alan Moorehead, The Traitors: The Double Life of Fuchs, Pontecorvo, and Nunn May (London: Hamish Hamilton, 1952), 41–3. See also West, The Meaning of Treason. A cache of approximately 3,000 messages transmitted by Soviet intelligence agencies that were intercepted and decoded by the US. See n105. See later editions of West’s The Meaning of Treason and The New Meaning of Treason. Prior to the public release of the Venona decrypts, the best-known authors advancing innocence/frame-up arguments were Walter and Miriam Schneir; the best-known advancing guilt were Ronald Radosh and Joyce Milton. See Walter and Miriam Schneir, Invitation to an Inquest: Reopening the Rosenberg “Atom Spy” Case (New York: Doubleday, 1965); and Ronald

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Radosh and Joyce Milton, The Rosenberg File (New York: Holt, Rinehart and Winston, 1983). The Schneirs revised their assessment based on new evidence in Final Verdict: What Really Happened in the Rosenberg Case (New York: Melville House, 2010). This has continued, given the 2015 release of David Greenglass’s grand jury testimony, in which, when questioned on his sister’s knowledge of espionage, he stated, “I never spoke to my sister about this at all.” See Adam Lerner, “Unsealed 1950 testimony minimizes Ethel Rosenberg’s spying role,” Politico, 7 July 2015, https://www.politico.com/story/2015/07 /unsealed-1950-testimony-questions-ethel-rosenberg-guilt-spying-120160; and Sam Roberts, “Secret grand jury testimony from Ethel Rosenberg’s brother is released,” New York Times, 7 July 2015, https://www.nytimes .com/2015/07/16/nyregion/david-greenglass-grand-jury-testimony -ethel-rosenberg.html. The testimony is available via the National Security Archive: https://nsarchive2.gwu.edu/news/20150714-Rosenberg-spy -case-Greenglass-testimony. In 2016, Rosenberg children Michael and Robert Meeropol unsuccessfully petitioned President Barack Obama for a posthumous exoneration. Lori Clune, Executing the Rosenbergs: Death and Diplomacy in a Cold War World (Oxford and New York: Oxford University Press, 2016), 5. In a famous memo from to FBI Deputy Director D.M. Ladd dated 17 July 1950, FBI Assistant Director A.H. Belmont discusses how, according to Assistant Attorney General James McInerney, there was insuffcient evidence to prosecute Ethel Rosenberg at the time, and that “it might be possible to utilize her as a lever against her husband.” For a full discussion, see Ronald Radosh and Joyce Milton, The Rosenberg File, 98–9. J. Edgar Hoover used the same language, with Ethel as a “lever.” For both original documents, see Schrecker, The Age of McCarthyism, 164–5. The Court (Judge Irving Kaufman), No. 111 Julius Rosenberg and Ethel Rosenberg, Petitioners vs. The United States of America, No. 112; Morton Sobell, Petitioner, vs. The United States of America, Transcript of Record, vol. II, book 4, fled 7 June 1952, 1614–15. Clune documents how the language of treason made its way into international press coverage and is still erroneously referred to in popular and political commentary, as well as in American history textbooks. See Clune, Executing the Rosenbergs, 120, 158. For an earlier discussion of media framing of the case, see John F. Neville, The Press, the Rosenbergs, and the Cold War (Westport: Praeger, 1995). “Communists’ trial raises big issues,” New York Times, 30 January 1949. Following the release of the Royal Commission’s frst interim report, rumours circulated that a ban on the LPP was under consideration, but the

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federal government communicated that this was not the case. “Won’t ban all of party is report from Ottawa,” Toronto Daily Star, 15 March 1946. After Sam Carr’s arrest in 1949, Duplessis applied the Padlock Law against LPP organizer John Switzman. The police ejected Switzman, his wife, and baby daughter from their north-end Montreal home. Switzman challenged the constitutionality of the Padlock Law when a landlord refused to rent him an apartment. This claim against the landlord was eventually appealed to the Supreme Court of Canada, where the law was struck down as being ultra vires the provincial government. “Thirty police padlock L.P.P. home in Montreal sequel to Carr arrest,” Toronto Daily Star, 28 January 1949; Switzman v. Elbling and A.G. of Quebec [1957] SCR 285. Justice Taschereau, of the Royal Commission, wrote a dissenting opinion in the Switzman v. Elbling decision. 149 Dominique Thomas Clément, “Spies, Lies, and a Commission: A Case Study In the Mobilization of the Canadian Civil Liberties Movement,” Left History 7, no. 2 (2000): 61–72; 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): 152–3, 169, 170–1. 150 R. Roy McMurtry, “The Creation of an Entrenched Charter of Rights – a Personal Memoir,” Queen’s Law Journal 31 (2006).

5 Labour versus the Injunction: Insights into the Surveillance State and Public Order Policing during the 1966 Lenkurt Electric Strike CHRIS MADSEN

The May 1966 strike at Lenkurt Electric Company of Canada in Burnaby, British Columbia, provoked a combative confrontation between organized labour, the courts, and law enforcement. The growing power of the labour movement, both locally and provincially, fuelled its determination to push and defend its interests. However, at Lenkurt, it met a private employer tied to a parent company in the United States that was equally determined to maintain its prerogatives under the law, including the ability to terminate workers.1 When unionized electrical workers at Lenkurt walked out, the company applied to the Supreme Court of British Columbia for ex parte injunctions allowing movement of non-unionized workers into the manufacturing and assembly plant unmolested by picketing.2 Striking workers encouraged by the solidarity of other trade unions, labour bodies, and persons within their own ranks openly defed the injunction and resisted enforcement by the police. The resulting melee with the Royal Canadian Mounted Police (RCMP) was documented and used in the legal proceedings that followed, when striking workers and supporters faced trial on charges of contempt of court.3 Some of the accused inveighed against the judges who had issued the injunctions in the frst place and did the same later against those judges who tried them. Terms of imprisonment were handed out, and labour leaders went to prison for the strength of their convictions and defance of the state and its coercive instruments as represented by the courts and the police.4

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By what criteria can judicial involvement following the Lenkurt strike qualify as a political state trial? The political and legal theorist Otto Kirchheimer emphasized the utilization of legal processes and the judiciary for political purposes as well as the various participants involved, including police, in efforts to bolster the existing order.5 The legal maintenance of the authority of the state includes suppressing those holding countervailing views and treating their actions as illegal or criminal. Workers and organized labour in Canada in the late nineteenth and frst half of the twentieth century struggled for recognition of basic rights governing employment and the betterment of common group and class interests; that struggle brought them into confict with the police and the courts. Chapters in previous Canadian State Trials volumes have examined police actions and legal processes in response to organized labour activities.6 In keeping with Kirchheimer’s overarching argument, the police acted in a demi-political fashion and employed brute force to achieve a desired result that the courts found reasonable. Public order policing has often been highly politically charged, especially in matters of labour strikes, protests, and mass civil disobedience. The actions of police are then justifed or decried in court settings through formal legal proceedings. The Lenkurt Electric strike falls into Kirchheimer’s category of derivative political trial, and illustrates the development of the public order policing function and the state’s extended surveillance of the internal affairs of Canadian labour unions.7 When compared to contemporary newspaper coverage and other public sources about the Lenkurt Electric strike on which previous writers have relied, RCMP fles released through ATIP provide information on how the police perceived and approached the situation from a law enforcement and national security perspective. Rod Mickleburgh’s retelling of the event from the labour side offers a parochial view of the faceless police as stooges of corporate and state practices.8 Available RCMP fles build a fuller picture of what actually happened in the days of the strike during May 1966, as well as months afterward, when former Lenkurt Electric workers and labour leaders went to trial. The police were involved at every stage as observers, participants, and witnesses. The RCMP believed they had performed well during the Lenkurt Electric strike and that they deserved to be recognized for preventing a demonstration that turned into a disturbance from escalating into something larger and perhaps more violent. Those defending the Lenkurt strikers in court were more critical of the RCMP’s role and held a very different view.9 In particular, they questioned police methods and alleged complicity with

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the company as part of a broader labour narrative countering the enforcement of legal injunctions against workers. The RCMP’s public order policing approach during the Lenkurt Electric strike demonstrated the integral part police played in a symbiotic relationship between the state, which made the law, the courts, which applied it, and the police, who enforced it against workers. During the Cold War, numerous labour unions in BC and persons of interest were subject to sustained and targeted surveillance by the RCMP. Extensive surveillance of civil society organizations in a liberal democracy often exaggerated real and implied threats, and moreover, it was often conducted discriminately. The RCMP collected intelligence at the division, sub-division, and detachment levels in the name of national security and countering subversion, and this provided the police with detailed information about the activities of the labour movement and many of its leaders. The RCMP then used that information when disagreements between unions and employers in collective bargaining led to strikes and walkouts. The Burnaby detachment, as the contracted municipal police force, was called upon to respond to major labour demonstrations at Lenkurt Electric in May 1966. The RCMP interacted closely with company offcials as well as with a group of union leaders who wanted to end the strike and keep their members employed. Throughout, the RCMP documented alleged criminal breaches and injunction violations with a view toward prosecution. Persons responsible for the strike and other illegal acts were identifed, and this formed the basis for contempt of court charges. At trial, RCMP witnesses provided detailed accounts of the actions and roles of specifc individuals. The provincial court was inclined to believe the testimony of police, especially when corroborated by visual evidence recorded by law enforcement and media sources. After Lenkurt, the RCMP formed tactical units better organized and equipped to deal with such situations, the Burnaby detachment becoming something of a testbed for techniques and experimentation related to riot control and protests.10 The chapters by Isitt and Walters elsewhere in this volume demonstrate a similar pattern of responses to Indigenous protest involving injunctions and contempt proceedings, enforced by public order policing. More recent police handling of First Nations and other persons protesting expansion of the Kinder Morgan Trans Mountain pipeline to a Burnaby-located terminal, the armed police intrusions into Wet’suwet’en territory in northern BC, and mass arrests of individuals protesting old growth logging at Fairy Creek on Vancouver Island, in each case upholding court injunctions issued by provincial judges, featured deployment of

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detachment resources and divisional reserves, tactical troops, and emergency response teams that put the full panoply of the RCMP’s capabilities in public view.11 The Lenkurt Electric strike set a precedent for a form of public order policing that too often has become the norm in BC and elsewhere in Canada. the rcmp and trade union surveillance The RCMP, Canada’s federal police force since 1920, also performs contract policing in most provinces and territories, excepting Ontario and Quebec, which maintain their own provincial police forces. The police force developed from a paramilitary constabulary tradition and was nonunionized for much of its history.12 The recognizable “Mountie” brand became known for professionalism in law enforcement and unswerving loyalty toward the state and for upholding the law in favour of the political and economic imperatives of government. Its presence in virtually all parts of the country, standardized recruitment and training, and costeffectiveness (thanks to generous subsidies from the federal government and lower salaries in the RCMP relative to most other city and municipal police forces) were key advantages.13 Nationally in its federal policing role, the RCMP has specifc responsibilities for major criminal and national security investigations (and counter-subversion operations until the 1980s), drug enforcement, border integrity, counter-intelligence, and organized crime.14 Across the country, the RCMP provides provincial and municipal policing in communities on contract as a predominantly intelligence-led police force.15 The RCMP assumed policing from the BC Provincial Police in August 1950, when many former uniformed members were absorbed into the federal police force.16 In accordance with lettered divisions across Canada, E Division comprised British Columbia, with a division headquarters in Victoria commanded by an assistant commissioner reporting to a commissioner and higher national headquarters in Ottawa.17 Within E Division, sub-divisions in Vancouver and New Westminster covered subordinate detachments in the Lower Mainland. In terms of authorized personnel strength, the RCMP detachment in Burnaby, commanded by Inspector Jack Routledge, was the largest in British Columbia at the time of the Lenkurt strike.18 The local police complement was suffcient for routine public safety in the community as well as for traffc duties; it was also available to respond to disturbances and riots at the nearby provincial prison and federal penitentiary.19 The RCMP in Burnaby were technically

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accountable to the municipal council and in turn the provincial attorney general in matters of policing within the province.20 In reality, detachments and sub-divisions reported to headquarters in Victoria and Ottawa, and considerable crossover existed between federal, provincial, and lower level policing. The RCMP’s interest in labour affairs inside and outside BC was longstanding and arguably biased against organized labour for institutional reasons. Since the days of the 1919 Winnipeg General Strike, the federal police force had been used to prevent and quell labour unrest.21 Labour unions attracted offcial RCMP scrutiny primarily because they harboured political views to the left of centre, including moderate social democrats and Communist-inclined groups. Battles between those two political camps divided the labour movement in the province and caused dissension within international and Canadian unions.22 Communism was a particular preoccupation of the RCMP, and the Cold War had cast it as an external and internal threat to democratic institutions and the Canadian state.23 The RCMP’s political policing component, frst known as the Special Branch and then as the Directorate of Security and Intelligence (DSI), kept watch on unions and labour groups for signs of subversion against the state and for any activities considered outside normal discourse in labour relations.24 Reg Whitaker, Gregory Kealey, and Andrew Parnaby question the appropriateness of RCMP surveillance conducted against certain trade unions and unionists, though the watching function rarely went beyond compilation of secret fles.25 DSI members relied heavily on open source intelligence, mostly newspapers and news radio; human intelligence, comprising informants recruited to spy on union business as well as individuals; geospatial intelligence using photographic identifcation and tracking of movements; and signals intelligence involving clandestine interception of telecommunications and eavesdropping by planted electronic devices authorized by judicial warrant, colloquially known as black bag jobs.26 The results of intelligence were collated into reports, analysed or commented upon, cross-referenced, and then forwarded to higher authorities within the RCMP if deemed of interest. Christabelle Sethna and Steve Hewitt suggest that the RCMP collected large amounts of information on a wide variety of organizations and individuals but lacked capacity to understand exactly what they had collected, or at least to draw the correct inferences.27 RCMP surveillance efforts were often uneven, subject to institutional bias, and broad to the point of abstruseness. Police infltration of organized labour was pervasive over a long period of time. But it is remarkable how the watchers could draw faulty deductions

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based on the information available to them; it was likely because they were preoccupied with the search for Communists and subversion.28 That emphasis caused the RCMP to focus on those labour unions felt to be most vulnerable to penetration and takeover. The International Brotherhood of Electrical Workers (IBEW) Local 213 was one such union. The electrical union at the centre of the Lenkurt Electric strike was no stranger to the RCMP. DSI coverage of IBEW Local 213 had been ongoing since at least the 1950s and perhaps earlier. The international union dated from 1891 and had locals across North America; the one in Vancouver was chartered on 6 November 1901.29 Within IBEW Local 213, moderate trade unionists occupying leadership positions staved off militant and radical inroads among rank-and-fle members that challenged the status quo. The classic struggle between social democrats and Communists played out in microcosm within the electrical union, with the former usually gaining the upper hand thanks to the favoured tactics of suspension, purge, and expulsion. George Gee, observed by the RCMP since 1948 as a person holding Communist sympathies and Labor Progressive Party membership, was removed as business agent in 1955 by IBEW Canadian vice-president John Raymond after charges and a trial within the union.30 He subsequently lost his lineman job at BC Electric Company under a closed shop agreement. Gee appealed to the international president and executive council and launched a judicial challenge in the Supreme Court of British Columbia to reverse the decision and obtain reinstatement but was unsuccessful in his arguments. Justice John Owen Wilson, in dismissing the legal action with costs, held that union offcials had acted appropriately and reasonably: “I have no diffculty in fnding that the domestic tribunal might fairly fnd that when Gee worked within the union in the interests of communism he was working in the interests of an organization or cause detrimental to the union.”31 Gee’s political beliefs and affliations attracted the RCMP’s attention, but ultimately it was his own union that ended his career. The Canadian state looked favourably upon trade unions purging Communists from their ranks during the early Cold War.32 Among the people who signed charges against Gee was another executive offcer and the local’s vice-president, Arthur O’Keefe, who became business agent in 1960. In a confdential report, an RCMP writer concluded that since O’Keefe “is looked upon as strictly a trade union man and against Communism, as his actions in this purge would indicate, it is requested that this fle be held in abeyance until such time as subject again comes to our attention as being active in any Communist affairs.”33 In the

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intervening years, the RCMP maintained a general watch over affairs inside IBEW Local 213 and the whereabouts of Gee, whom they worried might try to return to the union at some opportunity. O’Keefe’s business agent duties included handling negotiations with individual companies toward the signing of collective agreements.34 The state’s overall favourable view of the leadership as portrayed in RCMP records continued up to the breakdown of talks between IBEW Local 213 and Lenkurt Electric Company. the strike and the injunction The dispute between electrical workers and Lenkurt Electric developed relatively quickly. The company was a subsidiary of General Telephone and Electronics (GTE) Corporation, a major American company operating throughout the US and headquartered in New York. Canadian operations traded management and components with another GTE subsidiary, the Automatic Electric Company, based in Illinois. Lenkurt Electric was a primary manufacturer and supplier of telecommunications, switching, and microwave equipment to the British Columbia Telephone Company, itself partly owned and controlled by US interests. The modern Lenkurt plant, located along Lougheed Highway, was ten years old and covered twenty acres. It was the centrepiece of attempts by Burnaby reeve Alan Emmott and the municipal council to attract high-paid skilled jobs for residents in the suburb and surrounding areas. Charlton Hunter, Lenkurt Electric’s president, was prominent in local business circles as a president of the Burnaby Chamber of Commerce and was known to Emmott as representing a major employer.35 Lenkurt Electric’s workforce consisted of 852 employees, split almost evenly between non-unionized workers and those belonging to unions with negotiated collective agreements. Large numbers of women were employed in assembly and secretarial jobs. IBEW Local 213’s existing agreement with the company expired on 4 March 1966; negotiations toward a new one had been ongoing since the previous January. Hunter and the company insisted on the inclusion of overtime hours to meet production schedules. The electrical union disagreed and wanted different terms, in part to accommodate the fxed child care hours for female workers. Consequently, at 10:00 a.m. on 27 April 1966, 257 unionized electrical workers walked off the job, saying they would not return until company management changed its mind. Hunter, who had been away during part of talks with the union, asserted that workers were engaged in an illegal

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Aerial view of the new Lenkurt Electric Company plant on the Lougheed Highway in Burnaby, BC, showing entrances and parking lots, 10 May 1957. Burnaby Archives, 099–001

wildcat strike contrary to provincial legislation that kept provisions of the previous agreement in force during negotiations. The company president demanded that work resume and threatened dire consequences for employees not complying.36 IBEW Local 213 refused to budge from its position of no overtime without agreement from the union. After notifying each employee by registered letter, Lenkurt Electric fred all striking workers on 29 April 1966. Shortly after the dispute started, the provincial government appointed Jack Laffing to head a conciliation board to look into the different positions and facilitate possible resolution.37 Edward Sims, a representative from the International Union of United Brewery, Flour, Cereal, and Soft

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Drink and Distillery Workers of America and president of the Vancouver Trades and Labor Council, was appointed the labour member on the conciliation board. In due course, the company rehired some workers who had agreed to work the overtime hours, leaving 187 without jobs.38 Around 230 workers from other unions outside IBEW Local 213 continued to be employed in the Burnaby plant, as well as 435 non-unionized workers, three times the number on strike. Lenkurt Electric looked for a legal means that would allow those workers to come to work without interference. Accordingly, the company sought an injunction, which was available under existing provincial law. Court injunctions were frequent in BC labour disputes. Compared to other jurisdictions across Canada, BC judges heard large numbers of applications for this particular type of judicial relief and granted injunctions liberally.39 The injunction represented a court order, directed at one or more parties, that restrained specifed actions or behaviour. There was by then a long history of such judicial interventions in Canada.40 Many in the labour movement assumed that judges would invariably favour employers. The courts were regarded with suspicion to the point that some advocated that such disputes be removed altogether from the purview of the courts. Picketing by striking workers was one particular area in which injunctions were convenient because companies could restrict the place, time, and duration of interruption to business. The previous summer, IBEW Local 213 members at a job site in Squamish, unhappy with working conditions and living allowances, had set up impromptu pickets; they were laid off by the employer and enjoined from picketing near the property.41 To enforce the injunction, private security guards patrolled and controlled access to the project, and the RCMP sent a police car with a couple of constables and a police service dog, a common tactic of intimidation. Labour leaders, including one later arrested at the Lenkurt Electric strike, suffered bites from police dogs deployed on picket lines.42 Labour unions generally viewed injunctions as an unfair limitation on existing rights that interfered with, or even superseded, established collective bargaining processes protected by legislation.43 Wildcat strikes were off-limits, and picketing had to be done within the bounds of existing law governing labour and public protest. Therefore, employers or management seeking injunctions possessed little incentive to negotiate in good faith. In BC, the injunction application could be heard ex parte – that is, without the respondent being notifed, let alone represented at the hearing. In such proceedings, the respondent frst learned of the injunction

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after it was issued.44 Time and again, striking workers and unions were surprised when copies of injunctions were posted or handed to them on picket lines near the property of employers. When picketing began in Burnaby on 28 April 1966, Lenkurt Electric applied to the Supreme Court of British Columbia and obtained an ex parte injunction good for fve days. The injunction specifcally prohibited picketing and became effective once it had been posted and read. On 2 May, Justice Kirk Smith renewed the injunction for an additional period as picketing continued.45 Lenkurt’s management knew that the terminated employees were unlikely to respect any injunction and made contingency plans for its enforcement. On 5 May, the company’s personnel manager, its security chief, and David Vickers, legal counsel from a law frm, met with Sergeant Bruce Northorp at the Burnaby RCMP detachment to discuss the dispute.46 Northorp was in charge of the General Investigation Section (GIS), and as a former BC Provincial Police member he had some experience handling industrial disputes. Given that cooperation had long been established with Lenkurt Electric offcials, the RCMP started covering the industrial location with a few GIS members on the morning of 6 May. That same day, IBEW Local 213 turned down a company offer submitted through the conciliator to take back striking workers if they agreed to the original overtime requirement. Arthur O’Keefe told a Canadian Press reporter that the “vindictive and retaliatory” offer was sure to provoke a serious situation.47 With the two sides seemingly set on a collision course, IBEW Local 213 appealed to other affliated labour bodies for help in the fght against Lenkurt Electric and the court injunctions targeting labour. The plea for assistance found a receptive audience among unions and associated labour groups determined to stand up to uncooperative employers and court injunctions. IBEW Local 213 president Angus MacDonald and Arthur O’Keefe approached the BC Federation of Labour and the Vancouver Trades and Labor Council about a coordinated mass campaign to oppose the Lenkurt Electric injunction. Edward Sims doubted such a strategy was advisable or capable of success, though support for the idea was suffcient for a labour joint committee to be set up.48 Talks resumed between MacDonald, international representative Jack Ross, and company offcials. O’Keefe, still the local business agent, was excluded for the time being. MacDonald reached a tentative agreement in a personal meeting with the company president Charlton Hunter. It largely accepted the company’s stance on overtime in return for rehiring most striking workers. O’Keefe, not a party to those discussions,

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proceeded with planning for a mass demonstration at Lenkurt Electric in conjunction with labour groups and associated unions willing to participate. Strong endorsement for action came from the longshore, woodworkers, steelworkers, marine workers, and boilermakers unions. rcmp enforcement of the injunction Information provided by Lenkurt Electric and other intelligence sources close to the unions – gathered by the Vancouver sub-division’s DSI – indicated that mass picketing was planned for the morning of 11 May 1966 prior to the frst work shift and that the BC Federation of Labour and Vancouver and District Labour Council would be involved. The night before at the Burnaby detachment, Sergeant Northorp selected and briefed several experienced GIS members under his direction to attend the Lenkurt Electric location. The injunction’s contents were explained to the men, and duties were allotted. Though informed about the date and timing of the coming demonstration, RCMP preparations underestimated the strength and ferocity of the Lenkurt Electric strikers and their supporters. From the start, the event was not as peaceable as anticipated. In public order policing relating to strikes and protests, police viewed themselves as present to observe and ensure that existing laws were respected and enforced. The RCMP had long professed neutrality in labour disputes: “It must be clearly understood that the strike itself or the reasons behind it are no concern of this Force and that the duty of the police is solely to preserve law and order to prevent injury to persons or damage to property. We are not concerned with the cause of the strike in any way.”49 From this standpoint, the RCMP attached less importance to the motivations of striking workers than to their actions. Of course, the RCMP was an agent of the state with responsibility under provincial and municipal policing contracts to see that a range of laws was upheld and that court orders were adhered to by all interested parties. Police were also ready and equipped to deal with violence and to respond with reasonable force. The Lenkurt Electric management’s decision to keep the plant operating in face of large demonstrations meant police involvement, particularly when working employees entered the location. The RCMP’s commitment to safe passage and observance of the injunction’s terms, traffc laws, and the Criminal Code inevitably pitted the police against the strikers, who were willing to defy the law to defend their perceived interests. As demonstration turned into disturbance, the RCMP followed a graduated reaction to the continuing actions

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by strikers and their supporters interfering with workers going into the production plant. The mass picketing planned by the labour joint committee was already underway when Sergeant Northorp arrived at Lenkurt Electric early on 11 May 1966. The IBEW Local 213 electrical workers still striking were joined by an equal number of supporters from other labour unions and groups. Some 200 to 300 organized picketers blocked the fve access points into the Lenkurt plant, more than half of them concentrated at the double driveway main entrance, where demonstrators marched along the road to prevent cars and workers from entering, with much verbal and physical abuse. Sheriff Walter Burton and Deputy Sheriff Frederick Neumann, on the scene since 6:30 a.m., attempted to hand out paper copies of the injunction to the strikers and supporters, who kept hands in pockets, tore them up, or threw the sheets to the ground and trod on them. Burton read out the injunction using a police traffc car loud hailer, but the crowd began coughing loudly and singing “We shall overcome” in unison to drown out the address. In spite of much physical intimidation, the sheriffs actually recorded serving copies of the injunction on a number of identifed individuals. Also, copies posted by the company the previous week were still in place near most entrances and in full view. Sergeant Northorp, assessing the situation as dangerous, ordered the watch non-commissioned offcer back at the Burnaby detachment to keep the graveyard shift on duty, in order to bolster the police strength on-site.50 That meant overtime pay for RCMP members. With some twenty uniformed members present, the police were hard-pressed to cover all entrances at the same time, and they barely kept traffc moving. Additional RCMP members showed up in seven squad cars. Once they cleared one road, the picketers would obstruct another. Physical contact with police was close, and shoving was common. The picketers devoted most of their attention toward the working employees and their cars in a bid to persuade them from going in to work. A leafet issued by the labour joint committee asked them to support the fred workers and attend a planned meeting later that morning at the International Woodworkers Hall on Commercial Drive instead of going into work. A member of the RCMP identifcation section was present photographing and documenting events. GIS members in civilian and working attire were among the crowd observing breaches of the peace and collecting intelligence on leadership. Such tactics refected standing RCMP policies toward larger strikes and crowd control. As E Division’s Criminal Investigation Branch (CIB) commented during an earlier strike: “From a

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law enforcement point of view, present legislation is considered adequate to handle any situation arising from labour disputes. It was also pointed out that one of the diffculties encountered in policing labour disputes is the attendance of sympathetic groups ... Many labour leaders use labour disputes to bring attention to their strenuous opposition to the new Trade Union Act in British Columbia, which Act places responsibility upon the union for the acts of their members.”51 Sergeant Northorp tried without success to converse with one individual seen to be directing the crowd and who had been heard saying, “Call it off at 9:00 o’clock.” He recorded that man’s car licence plate number and learned from a news reporter that the person was Patrick Neale, secretary of the Vancouver and District Labour Council. Another individual, subsequently identifed as Thomas Clarke of the International Woodworkers union, halted the entire demonstration at 9:15 a.m. with a whistle. Shortly after that, the strikers and their supporters dispersed, leaving the surprised RCMP to wonder about the coordination and direction behind the large demonstration. Despite the many instances that morning of traffc violations and criminal offences related to unlawful assembly, the police had chosen not to arrest any of the picketers on 11 May, since they were clearly outnumbered, as well as uncertain how the large crowd would react. A boastful Neale told the press after the meeting on Commercial Drive that even more pickets would be arriving the next morning.52 The RCMP prepared for another major demonstration at Lenkurt Electric, and this time they knew the names and faces of the leaders. The second day of picketing happened under very different circumstances than the frst. On the afternoon of 11 May, lawyer David Vickers representing Lenkurt Electric appeared before Justice John Aikins of the Supreme Court of British Columbia. The company sought and received another ex parte injunction based on the previous one, with an added and expanded preamble that named specifc individuals and organizations.53 Burton, Neumann, and additional sheriff’s offcers arrived early on 12 May with a large number of paper copies for distribution. Rain was pouring down, and the clouds were ominous. The RCMP arranged with company managers to open only the Greenwood back entrance, which would be covered by uniformed police with a loud-hailer-equipped marked police traffc car to clear the road. Near other entrances, growing pickets were joined by uniformed and plainclothes GIS members. Copies of the new injunction handed out by the sheriffs were again ignored or torn up, trampled upon, or ridiculed, which was not unexpected. The police,

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Hand fyer circulated by striking workers and supporters during picketing, 11 May 1966. Library and Archives Canada (RG 18 Series F)

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however, took no action, since they were trying to keep most pickets busy and distracted at fashpoint locations from the day before, in order to gain time. Those picketing slowly began to realize the new police strategy and focused their efforts on the one entrance that was receiving workers, who were arriving in a long line of cars. That was when the fracas began between the strikers and their supporters and the police – as well as regular non-unionized employees starting work. Over the next half hour, the cars and workers attempting to get through the Greenwood entrance were roughly handled and the police line was broken. Picketers began physically grabbing the police and even trying to take away their holstered guns.54 That behaviour invited a concerted police response. The RCMP, bolstered by reinforcements, wrestled with the crowd and pushed back the pickets with some force. Sergeant Northorp reported that he feared violence might break out and that something had to be done. Those picketers who resisted police commands and authority were arrested on the spot. The police made a total of nine arrests based on information provided by undercover GIS members and repeated warnings given to certain persons to move and desist. Thomas Clarke, who was still giving orders and directing the picketers’ movements, was the frst person arrested. He was grabbed, cordoned off from the aggressive crowd, and handcuffed on the wet ground face down before being led away under escort. Jeffrey Power from the Marine Workers and Boilermakers Industrial Union, who had been among the frst to break the police line, grabbed the arms of Constable L.D. Hickey of the Sumas freeway patrol from behind and refused to let go. Staff Sergeant Jesse Ernest Ruttan, the Burnaby detachment’s senior non-commissioned offcer, witnessed the altercation and later arrested Power for the earlier assault and for refusing to clear the road.55 Others in police custody for obstructing and ignoring warnings from police included a longshore worker, a carpenter, two electricians, several woodworkers, and an older woman named Edna Sheard, arrested for interfering with a uniformed RCMP member controlling the crowd. Persons under arrest were taken to the Burnaby detachment for processing, to be photographed and fngerprinted in accordance with standard police procedure. Meanwhile, pickets at entrances to Lenkurt Electric, minus two key leaders, ceased all action and activities at 8:30 a.m. It was reported over a New Westminster news radio station that Lester McDonald, a striking electrical worker from IBEW Local 213, had given the order to stop.56 Much like the day before, the pickets dispersed of their own accord, and the police were left to ponder whether the action had been a draw or small tactical victory for them. Sergeant Northorp observed no reported injuries

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among police, strikers and supporters, or working employees, which was noteworthy given the heightened emotions and physical contact. The RCMP’s tactical disposition, involving using GIS undercover infltration, concentration of uniformed strength at one entrance, and selective arrests, had reasonably met the situation with the augmented personnel available. Given that strikers and supporters were likely to be back in large numbers at Lenkurt Electric, the RCMP’s higher leadership at E Division headquarters, in consultation with BC’s attorney general, Robert Bonner, mobilized supplemental police resources and capabilities from the nearby Vancouver sub-division and elsewhere. Going into the third day, the RCMP planned for the worst while pursuing engagement in the background to convince IBEW Local 213 and affliated labour groups to abandon the demonstrations. Superintendent Gerald Engel, the CIB offcer in charge, detailed Inspector Alexander Cart from the Vancouver sub-division to assume tactical command and conduct planning with the offcer commanding the New Westminster sub-division, Superintendent Herbert Bloxham.57 The RCMP’s operations manual stipulated that designated offcers typically exercised decisionmaking during policing of major strikes and labour disputes. Sergeant Northorp and Staff Sergeant Ruttan from the Burnaby detachment and Sub-Inspector Wilfred Morrison from the New Westminster sub-division GIS attended a planning meeting with Cart and Bloxham in New Westminster on the afternoon of 12 May. Intelligence suggested that a demonstration developing for next morning might number upwards of 1,000 persons. The easiest solution was to close the Lenkurt Electric plant a day early before the weekend, but company president Hunter informed Inspector Cart that the company was unable to do so due to contractual obligations with customers. That left the RCMP with the task of marshalling suffcient manpower to match the anticipated requirement. The RCMP’s surge capacity refected a range of experience and training, with many uniformed members drawn from traffc details and staff duties in the surrounding Lower Mainland area and as far away as Dawson Creek. The personnel put at Inspector Cart’s disposal included ffty general service members from the Vancouver sub-division, thirty general service and six undercover GIS from the New Westminster subdivision, and eighty general service and sixteen GIS from the Burnaby detachment, for a total of 182.58 To make up for defciencies, Inspector Cart deployed the police in mutually supporting tactical formations with a small reserve available for reinforcement where needed. Orders were given that uniformed members in the police lines and plainclothes GIS

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would be unarmed. The Vancouver sub-division’s gas squad, specially trained in projectile and canister delivery methods, remained on standby. The RCMP was well familiar with deployment of immobilizing CN (tear) and CS (irritant) gas in riot situations as a non-lethal means to subdue opponents.59 The RCMP was seriously determined to end the demonstrations with overwhelming force if necessary. Schisms within IBEW Local 213 played out in the background. The international union’s Canadian vice-president, William Ladyman, suspended Arthur O’Keefe from the position of business agent for undertaking an unsanctioned strike and gave instructions to end the dispute as best as possible.60 This sudden union action gave Sergeant Northorp an opportunity to negotiate with Angus MacDonald, whom police found agreeable, cooperative, and eager to avoid violence against his union members. MacDonald issued a public appeal to the strikers to stand down and requested that the BC Federation of Labour and Vancouver and District Labor Council withdraw their support, which they did. Consequently, the RCMP faced many fewer pickets at Lenkurt Electric and easily handled them on the third day. The police after-action report recounted the details and changed circumstances: At 6:15 A.M. 13-May 1966 we received reports from our patrols in the Lenkurt area that all entrances were obstructed by demonstrators numbering about 50 to 60. Accordingly, all G.I.S. personnel moved in and about forty uniform personnel from Burnaby. All uniform personnel on the scene were unarmed. By the time we moved in, all entrances were cleared as word had been passed around – no demonstration. G.I.S. members saw many familiar faces from the previous two days, known agitators. As well, about 50 Progressive Workers had assembled themselves on the corner of Bainbridge and Lougheed handing out leafets ... By 9:30 A.M. the situation was quiet with all persons dispersed on their own. Our minimum G.I.S. and uniform coverage continued all day. Several knowns were stopped and their cars searched prior to 9:30 A.M. for offensive weapons. There had been information of smoke bombs and railroad spikes. An anonymous call was received at 12:30 A.M. of 13-May-66 that the Burnaby R.C.M.P. offce would be bombed. The caller sounded drunk, however, special coverage of our building and transport had been arranged for in the early evening of 12-May-66. Special coverage was given the residence of Angus MacDonald in Burnaby, due to the violence against him in Vancouver on 12-May-66.61

The police emphasized the participation of the Communist-inspired Progressive Workers Movement, which had its own quarrels with the

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capitalist system and the Canadian state, as evidence of subversive elements in the strike.62 Corporal Bruce King and Constable Donald McLeod of the RCMP identifcation section photographed and flmed the demonstration on instructions from Sergeant Henry Edwin Klick.63 By this stage, the RCMP controlled the entire situation on unequal terms. On this last day of the strike, the strikers and supporters no doubt would have lost in any confrontation with police outside Lenkurt Electric, because the RCMP were better armed and prepared to use force as the fght shifted into other forums. prosecuting criminal contempt of court The accounting for the Lenkurt Electric strike and the conduct of those involved started soon after. A number of strikers occupied the IBEW Local 213 offce on the evening of 13 May to protest the actions of the leadership. At a general meeting, a clumsy attempt to exclude the suspended Arthur O’Keefe led to Angus MacDonald being chased from the room amidst threats and raucous catcalls from a faction within the union.64 They, however, did not represent the majority of IBEW Local 213 members, who had returned to work. Regardless, the RCMP continued police protection on MacDonald’s Boundary Road apartment for fear of retaliation and his personal safety. Lenkurt Electric executives turned over flms and photographs from previous days in the company’s possession, and the RCMP obtained additional footage from local television stations. With the assistance of corporate offcials and MacDonald, Sergeant Northorp identifed and named persons in the visual materials one by one. Lenkurt Electric’s management was adamant that certain workers prominent in the strike and demonstrations would not be welcome back for employment. Other working IBEW Local 213 members also opposed reinstatement because someone had vandalized their cars during the picketing.65 They had not liked being roughed up and abused by strikers now demanding their jobs back. Burnaby’s municipal council debated the RCMP’s role in the strike after receiving a telegram from the International Woodworkers Union and a letter from a resident questioning police involvement. Several concerned councillors asked for consultation with the provincial attorney general about the status of the police.66 Reeve Emmott believed that the RCMP had merely protected private property. On behalf of Lenkurt Electric, Charlton Hunter penned a letter to Emmott responding to any admonishment of the police: “Far from being criticized and impugned by ill-informed

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councilors and labor leaders, the offcers and men of the RCMP should be congratulated ... We wish to put on record our admiration for the RCMP’s restraint and skill under extremely dangerous conditions.”67 The association with the cooperative company management and sharing of intelligence information called into question the impartiality of the police. Responding to the criticism in a letter to Councillor Drummond Herd, the municipal council’s liaison with the Department of Justice, Inspector Routledge merely referenced the municipal policing contract, the Royal Canadian Mounted Police Act, the Criminal Code of Canada, provincial statutes, and municipal traffc by-laws as legal authorities for policing.68 The RCMP had been present, the Burnaby reeve and council were told, at the request of the sheriff’s offce in New Westminster primarily to protect the sheriffs serving the injunction and to facilitate their work on behalf of the court. The RCMP at Lenkurt Electric were effectively accountable only to the court and the judges issuing the injunctions, not to the municipal or provincial governments. Upholding the Supreme Court’s authority to issue and enforce injunctions was uppermost. On 12 May 1966, Robert Bonner appointed Vancouver lawyer George Murray, a Queen’s Counsel, as prosecutor designate to investigate alleged violations by the picketers during the Lenkurt Electric strike and report back to the attorney general. Murray appeared before Justice Aikins and presented much evidence of contempt and reckless disregard for the injunctions. The most telling testimony came from the court’s own sheriff’s offcers, who described the general situation on the frst days and their challenging efforts to put copies into the hands of strikers and supporters.69 Sheriff Hurd afterwards said it was the worst he had seen in his eighteen years of service with the court.70 Murray asked for more time to confer with the RCMP about the strike and the enforcement of the injunction. Justice Aikens noted that “as to a great many of the names which I have been given, the indications are that they are quite ordinary people, probably former employees of Lenkurt, maybe behaving misguidedly, perhaps in contempt. It would seem to me wrong to take any immediate or drastic steps against those people who may be, so to speak, not the prime movers in what is taking place.”71 The judge who had issued the injunction earlier in the week appeared taken aback by the strong response to the court’s use of the police as an operational arm and, in accordance with Kirchheimer, started a search for the foes and enemies who had led the challenge to the law and state authority.72 A fuller understanding of the happenings in the strike and of the relative responsibility of individuals was left until later, when the effort to prove

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contempt could proceed before another judge of the Supreme Court of British Columbia. The prosecutions and subsequent appeals of workers and labour leaders involved in the Lenkurt Electric strike engaged BC’s top courts during the remainder of the year. These trials had political connotations that lined up labour against the full array of the surveillance state and the judicial system. Murray, after reviewing flm footage, photographs, and police reports, advised that good cases could be made for charging 76 persons with contempt of court, out of a list of 122. Attorney General Bonner decided to go ahead with contempt proceedings, brushing aside public calls from labour groups and unions for the provincial government to establish a Royal Commission to “investigate all aspects of the Lenkurt Dispute including the events which precipitated the walk-out, the involvement of the RCMP both in and out of uniform and the provocative role they played in the whole affair.”73 The nine arrested on 12 May also faced criminal charges for obstruction and assault laid by Burnaby’s municipal solicitor, William Stirling, to be tried before a magistrate. These criminal trials involving some of the same people were separate from the contempt of court cases and were expected to take place after their conclusion. Either court proceedings were bound to be political. Harry Rankin, who represented the accused at bail hearings, was an activist lawyer and left-leaning City of Vancouver councillor known to the RCMP.74 Procedure dictated that formal charges of contempt of court put forward by the Crown be brought before the court that issued the injunctions. The offence was vaguely defned and could be initiated by judges who presided over their own cause, with wide discretion to punish. The Supreme Court issued summonses for thirty persons from the larger list provided by Murray to appear and show cause for challenging the contempt charge. They were divided into three groups: former Lenkurt Electric employees; those arrested by the police on 12 May; and other individuals identifed as holding leadership positions during the labour demonstration. This number, although smaller than the list originally given to the attorney general, was more manageable for the court’s resources, carried a better chance of convictions, and targeted key leaders thought most responsible for defying the court. While the charges were pending, Bonner’s political colleague, labour minister Leslie Peterson, representing a Lower Mainland seat in Vancouver, described the Lenkurt Electric event as civil disobedience instead of a lawful strike, given that IBEW Local 213 settled with the company at the end of May. The settlement facilitated the return of most but not all

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striking workers as new employees without seniority; it also restarted negotiations that led to a three-year collective agreement signed later in July.75 Peterson was decidedly unsympathetic to the individuals now facing charges, and like most of the Social Credit government in Victoria, he was quite willing to leave the entire matter to the court to decide. Thomas Berger and John Laxton, well-known Vancouver lawyers, represented all but one of the accused in the contempt case. Berger would run for the New Democratic Party in the upcoming September 1966 provincial election, placing second to a Liberal candidate in the riding of VancouverBurrard, both being duly elected to the provincial legislature.76 Political reasons likely drove Berger and Laxton to take on the docket, out of affnity with the labour movement’s aims and also in opposition to the policies of Robert Bonner and the Social Credit government. Labour lawyer John Stanton, on retainer with the longshore union, acted as legal counsel for John Longworth, the remaining accused.77 George Murray, assisted by Samuel Martin Toy and Kenneth Fawcus, prepared and presented the case on behalf of the attorney general.78 Preliminary hearings started on 30 May in Vancouver before Justice James MacDonald and continued on 6 June.79 In keeping with instructions given by their clients, defence counsel from the outset tried to blame the RCMP for the picket line troubles at Lenkurt Electric. Captioned photographs and an editorial in the labour newspaper Pacifc Tribune elevated criticism of the RCMP to collusion in the entire system: “The multi-numerous court ‘injunctions’ and the massing of police to give these ‘legal’ effect, thereby prohibiting workers from picketing their jobs, securing adjustment of justifable grievances, or winning a decent wage contract, is now assuming a distinctly sinister pattern; that of a government-monopoly conspiracy to smash labor – with the aid of police provocateurs.”80 It was asserted that the strikers and supporters were simply victims of a larger conspiracy to keep labour down. One of the persons charged went so far as to claim there had been a joking mood among police in the detachment at the time of his booking, although the RCMP fatly denied this.81 In chambers, Berger challenged whether the court and sitting judge could try contempt charges in a criminal sense and requested beforehand the names of RCMP witnesses and accompanying details about interactions with striking workers and supporters. Labour especially resented the police tactic of deploying plainclothes members, who had blended in with the crowd and passed themselves off as workers. A special GIS detail, consisting of a half-dozen members experienced in undercover methods, had attended the strike on the second and third

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days for intelligence-gathering and identifcation purposes, as had been commonly practised by the RCMP since the 1920s whenever its offcers attended strikes.82 Sergeant Northorp pointed out that GIS members in working attire – labour referred to them as “disguised” – relied on police cars equipped with radios to communicate and pass along information, in full view of the strikers and supporters. Building on the conspiracy theme, Berger also introduced the notion that the RCMP, using agent provocateurs and underhanded methods, “were seeking deliberately to create a riot at the scene of the alleged acts of contempt.”83 Murray asked for defnite evidence to support such inferences, but that did not stop Berger from stating the argument as truth again and again throughout the trial. On 13 June, Justice MacDonald ruled that “the charges which have been preferred are regular and the Court has jurisdiction to determine them.”84 Motions put forth by Berger and Stanton were dismissed or reserved, and the date to begin the trial stage was set for a week later, 20 June 1966. Orders of committal were issued against just twenty-nine individuals, since one individual was out of province and had not been served with papers. Patrick Neale and other labour leaders attacked the legal system and the impartiality of the judiciary. In a fundraising speech to the faithful, Neale loudly declared that judges were “political hacks” and that “the law is an ass” in an effort to highlight the political and ideological dimensions of trying striking workers.85 Such utterances outside the courtroom made for good press headlines, but they complicated the legal defence and made Berger’s job that much harder. Murray’s approach for the prosecution incorporated substantial police eyewitness testimony as well as evidence revealing that named individuals, not the RCMP, had contributed to disturbances during the Lenkurt Electric strike when they contravened the court’s injunctions. For the Crown, police witnesses and evidence proved central to showing varying degrees of contempt on part of the charged individuals. Kirchheimer stressed that “of various forms of state activities under a constitutional regime, the police are nothing but an auxiliary of the prosecutor ...”86 As a result of their training and long practice, RCMP members were accustomed to appearing in court. Any signifcant public order policing event like the Lenkurt Electric strike was documented through logs, written notes, and reports, besides the memories or recall of participants, based on the likelihood of prosecution and the chain of evidence. Murray subpoenaed twenty-one RCMP members involved in the Lenkurt Electric strike as witnesses; they appeared between 20 June and 11 July 1966. Constable Ernest William James Sparks from the Burnaby GIS attended

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court on those days and kept summarized notes of the testimony and cross-examination of each police witness.87 Police, like judges, were fgures of authority, and in court the RCMP offcers, dressed in their service uniforms, presented themselves as highly professional law enforcement offcials and well-trained witnesses. Knowing this, Murray kept questioning direct. Corporal King and Constable MacLeod from the identifcation branch, the frst witnesses called, introduced photographs taken during the strike.88 Other uniformed and plainclothes members described the general situation as they saw it, the arrest of Clarke and Power, and the actions of individual strikers and police. Several RCMP witnesses faced cross-examination from Berger, who suggested that the police had used nefarious means to misguide and incite the striking workers and supporters and also implied that they had used unreasonable physical force. During one line of questioning, Corporal Ronald Gilchrist said he was certain that “he saw no RCMP offcer punch anyone.”89 Testimony provided by Sub-Inspector Morrison was illustrative of the public order policing approach of the RCMP and plainly described events and behaviour observed on the part of the strikers and supporters: Gave evidence of having attended scene on May 12th in working clothes and that on arrival with Sgt. [R.] MERCER, he saw William STEWART, who asked them “if they were in the line today.” Stated he saw Doug EVANS handing out pamphlets and that he received one. Stated he saw two Sheriff’s offcers attempting to serve documents which the demonstrators dropped on the ground. Stated he saw [Thomas] CLARKE in crowd and later saw him scuffing with and strike one of the uniform Constables and that when CLARKE was removed from crowd he was resisting. Stated he heard crowd singing “Solidarity Forever” and another song and that he saw S/Sgt. [Jesse Ernest] RUTTAN arrest [Jeffrey] POWER and that earlier he heard POWER calling Police, “Strike breaker, goon squads, and scabs.” On cross-examination, he stated his purpose was to be there and not to be conspicuous. He stated that he mingled with the crowd but took no part in the demonstration and did not obstruct traffc.90

The quote highlights what individual police members considered important and noteworthy at the moment. Their testimony contributed to a larger narrative presented by the prosecution and Murray in court. The large number of picketers and their mixed composition from numerous labour groups and unions, many not known to one another, facilitated police infltration. Sergeant Northorp testifed that Corporal Gilchrist frst

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drew his attention to Patrick Neale, who walked away when addressed by last name, saying, “Neale was at home sick in bed.” RCMP witnesses referred to photographs and flm introduced by Murray to identify particular individuals during the strike. For the most part, the RCMP evidence was suffciently credible and compelling to be believed by Justice MacDonald, who remarked that if the RCMP had not used the policing techniques that they did, much evidence would not have been available to the court. The burden still fell on Murray to prove contempt beyond reasonable doubt in the case of each individual. Defence counsel cast the long trial as inherently political and made sweeping arguments to suggest that the state was against labour, testing the patience of Justice MacDonald. Jeffrey Power and William Stewart had already conceded that the state’s use of injunctions and prosecutions for contempt meant likely jail sentences for those arrested and probably tougher responses to strikes in the future.91 Berger, more so than Stanton, was prone to grandstanding in front of Justice MacDonald. He argued abuse of the courts, discrimination in how individuals were selected for contempt charges from the larger list, collusion with the company, and contempt of court on the part of Attorney General Bonner in proceeding with the trial in the frst place.92 Justice MacDonald heard and dismissed the defence motions in turn. The BC Federation of Labour and Vancouver and District Labor Council continued collecting defence funds for the Lenkurt Electric legal case. Trade unionists opened up their pocketbooks to fght employers and the courts.93 Berger and Laxton called ffteen witnesses, including Arthur O’Keefe (now suspended for ffteen years from the IBEW after a union trial board), to testify mostly about their own actions and experiences during the strike.94 Justice MacDonald summarily dismissed the contempt charge against John Boris due to insuffcient evidence, leaving twenty-eight accused. Answers from workers and labour leaders were often evasive and lacking in detail. Most claimed no knowledge of the court injunctions and little participation in confrontations with police. O’Keefe told the court he had driven by and never joined the pickets, in spite of photographic evidence that placed him directly on scene.95 During cross-examination, Murray repeatedly reminded witnesses that copies of the injunction had been posted in clear sight and handed out by sheriff’s offcers on behalf of the court. Charges against two more accused, Thomas Turbett and Thelma Ristau, were subsequently dismissed for lack of suffcient evidence. After hearing closing arguments, Justice MacDonald delivered a lengthy judgment on 19 September providing general commentary on

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the injunctions and their observance, the police response, and the relative guilt or innocence of each individual charged. In his view, the courts and police were bound to maintain order and respect for laws together: While particular provisions in the law stand, there lies on Judges and police, the clear duty of enforcing and administering them and upon citizens, the equally clear duty of obeying them without any regard to personal approval or disapproval of such law ... [A] regime of law will only retain its vitality and effectiveness as long as it enjoys general public support and effectiveness of its fundamentals. “Civil disobedience” is a phrase heard increasingly these days. What it means is, that in order to serve a particular cause which its adherents think provides the justifcation, the law and Court orders made under the law are brushed aside and treated with contempt. Respect for the law is not severable. If the tactic of disobedience of the law and ignoring of Court orders is tolerated in labour disputes, before long it will be increasingly employed by groups determined to get their own way in all sorts of situations.96

Of the twenty-six persons who were tried, only four female former Lenkurt Electric employees were acquitted. The remaining accused were convicted based on available evidence and reasonable knowledge of the injunctions. Concluding, Justice MacDonald addressed the anti-police assertions made by Berger during trial and in public by labour groups: “After hearing a great deal of evidence in this case I am of the opinion that the R.C.M.P. offcers involved did, in fact, conduct themselves most creditably. If there had been on their part reaction to the abuse of the picketers and to the provocative interference with their efforts to keep the entrances open, more violence might have resulted.”97 Justice MacDonald handed down sentences on 30 September 1966. The severity of the sentences refected his view of the seriousness of the leaders’ defance of the injunction: Patrick Neale, Thomas Clarke, Arthur O’Keefe, and Jeffrey Power each received periods of imprisonment ranging from three to six months, while male picketers received fnes and three female strikers were put on one year peace bonds with suspended sentences.98 The gender differentiation in MacDonald’s sentencing implied societal and generational bias within the court. remonstrations and appeals Afterwards, Sergeant Northorp reported to Inspector John Gibbon, Routledge’s successor at the Burnaby detachment, that the BC Federation of

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Labour had paid all fnes arising out of the court case.99 Given the terms of imprisonment handed out, the attorney general directed Sterling to enter a stay of proceedings in respect to all charges against the nine individuals in the pending criminal case. Only Edna Sheard appeared in police magistrate court when stays were granted.100 In answering remonstrations from Inspector Gibbon, E Division CIB Superintendent Gordon Gerrie opined: “While I agree in principle that there should be no question of continuing prosecution, the circumstances are such that the possibility exists of further violence if we were to do so. In addition, there is little doubt that the heavy sentences imposed in the Contempt charges will have the desired effect on all Union leaders, as well as those participating in future demonstrations.”101 He duly forwarded copies of the entire fle to the provincial attorney general and the RCMP commissioner in Ottawa. With the contempt of court trial concluded, the sentenced labour leaders were transferred, handcuffed in a police van, to Oakalla prison in Burnaby and then to a prison camp in Chilliwack, where they were put to work in forest rehabilitation.102 The labour campaign against injunctions carried on during appeals of the contempt convictions and in subsequent attempts to have the imprisoned leaders released before their full sentences expired. With fnancial and hired legal support from the BC Federation of Labour, Neale, Clarke, and O’Keefe appealed their sentences; Power appealed both his conviction and his sentence.103 Prior to an appeal hearing on 3 November 1966, a demonstration was organized in support of the appellants outside the Vancouver courthouse, with many delegates from a labour convention present. Chief Justice Henry Bird ordered sheriff’s offcers to break up and disperse the demonstrators.104 Freedom of speech and assembly to protest the previous sentences meted out were ignored. Inside chambers, the Chief Justice asked Berger if labour was using “the courts as a whipping boy because it has been unable to get the legislature to change certain labour laws – laws which the courts, if they are to do their duty, must enforce.”105 Appeal judges, he asserted, would not be bullied or swayed from making rulings solely on legal considerations. Power tried to read a prepared fourteen-page manifesto on labour’s stand against injunctions and the grievances felt by workers.106 Chief Justice Bird stopped him halfway through. Without Murray even being called to speak on behalf of the Crown, the judges unanimously dismissed the appeal of the conviction because Power had advanced no legal arguments pertinent to the case: “On the contrary, [it] is a document designed to propagate the positions of some elements of court injunctions in labour-management disputes. The

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brief, no doubt, has its place, but not in this forum.”107 The appeal court provided no platform to criticize the policies of the provincial government and the state. Murray told the press outside the appeal court that the sentences of imprisonment given by the trial judge were fair and reasonable, referring to exceptional levels of disturbance at Lenkurt Electric and the skirmishes with police captured on flm and photographs. The appeal judges likewise appeared fully inclined to agree with Justice MacDonald’s earlier rulings. Chief Justice Bird delivered a unanimous judgment two weeks later dismissing the appeals of sentences: “Leadership given by these appellants involves a highly dangerous philosophy, not only dangerous in terms of the union membership so induced to participate, but also in terms of all citizens of this country.”108 Whether driven ideologically or by law, the appeal court’s decision was fnal. Labour representatives made requests to the National Parole Board and a new federal solicitor general in Ottawa, Lawrence Pennell, for review and exercise of clemency in the case.109 Pennell granted Power a special clemency and released him a week prior to Christmas; the others were sent home for the holidays, but Clarke and Neale returned to prison in the new year to serve the remainder of their sentences.110 In the meantime, news sources revealed that the BC Federation of Labour’s secretary Patrick O’Neal had employed a private detective and former RCMP security and intelligence member Bud Graham to install electronic surveillance to intercept and record conversations of rival union representatives and government offcials at a labour convention held at a local hotel.111 O’Neal had been a central fgure on the labour joint committee that had planned the Lenkurt Electric demonstrations. The possibility that the labour leader might also be a police informant was raised since his association with the RCMP, therefore, is not guesswork nor hearsay but an admitted fact. We assume that Federation offcers have been around long enough to know that the gentlemen stationed at Jericho Beach namely the Security and Intelligence Branch of the RCMP are not ordinary police offcers to whom you take your everyday problems such as theft, wife beating or the harassment of Union members. These are the cloak and dagger boys that play a special role in our society and one of their tasks is keeping an eye on the leadership of the Labour Movement and particularly those leaders that do a job for their membership and create problems for the employers.112

Social Credit Premier W.A.C. Bennett, not known for his friendliness toward organized labour, announced a Royal Commission to examine the

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actual details of the spying affair. Exposure of an RCMP human intelligence source so high-placed in the labour movement revealed the reach of police surveillance efforts, though redacted released records suggest that O’Neal was not by far the only informant in labour ranks. By January 1967 he had been asked for his resignation, and he left the BC Federation of Labour. Secretary-Treasurer Ray Haynes became public spokesperson for the continuing labour campaign against injunctions.113 After the Lenkurt Electric appeals, the RCMP continued monitoring British Columbia labour unions, and adopted new methods and organization to police protests and strikes. As a matter of policy, the Canadian Security Intelligence Service (CSIS), which succeeded the RCMP Security Service, ceased offcial surveillance of labour unions in 1987 consequent upon the Osbaldeston Report.114 The RCMP, however, continued to conduct criminal intelligence operations on certain unions regarding labour racketeering and organized crime. The Coordinated Law Enforcement Unit (CLEU) was a provincial body that involved RCMP participation and liaison as part of contract policing.115 Robin Bourne, the assistant deputy attorney general responsible for police services in British Columbia, brought federal security credentials to the job and kept tabs on any group engaging in criminality, subversion, or wilful undermining of the state and economic interests.116 The police supported the work of the courts, and the courts supported the work of the police. In the decades that followed, specialized tactical units were created within the RCMP and E Division to address the state’s growing anxiety over protests, demonstrations, and violence – political and criminal – affecting society.117 conclusion Public order policing conducted by the RCMP, particularly as practised in BC, primarily upheld the interests of the state and the bidding of the courts. The Lenkurt Electric strike represented a moment to reconsider existing practices for handling large crowds in potentially riotous situations; this led to more serious and focused approaches within the RCMP to lawful versus unlawful protest that have in turn framed public order responses to labour, Indigenous, and environmental movements.118 Films of aggressive striking workers facing off opposite calm, restrained police members became a staple in RCMP training. The policing of strikes and labour disputes happened primarily at detachment and sub-division levels; in some major Canadian cities, this included temporary RCMP

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assumption of policing duties during strikes by unionized municipal police forces. Police continued to enforce labour injunctions, including the arrest in January 2020 of Unifor national president Jerry Dias and other union members for picketing in defance of a court injunction outside a refnery in Regina, Saskatchewan, where workers had been locked out.119 The ideological divides of the Cold War might now be past, but for a long time, organized labour would continue to attract sustained surveillance of its activities in the course of public order policing. Police involvement in the Lenkurt Electric strike was pivotal in bringing labour leaders and other supporters taking part in the demonstrations to court on charges of contempt for defying legal injunctions. Internal reports and documents show that the RCMP collected intelligence to enhance its operational capabilities and situational awareness, worked closely with company offcials before, during, and after the picketing, and furnished evidence for the laying of charges and prosecution through the preliminary and trial stages. Testimony from police witnesses substantiated visual materials in the form of flms and photographs; in contrast, the defence focused its efforts on questioning the legal process and analysing political motivations rather than on countering charges against specifc individuals. For most of those charged, the result was largely foregone when the presiding judge handed down convictions to individuals and proceeded with sentencing. Kirchheimer acknowledged that the state usually wins in political trials because the odds are stacked against those who are challenging the law and the established authority of economic and political interests that the judiciary and police protect.120 The Lenkurt Electric outcome was no exception. The labour leaders held to be most responsible for the strike went to prison, while others received fnes and suspended sentences. The trial and subsequent appeals showed that the judiciary was strongly supportive of the police as partners in upholding established legal norms and discouraging acts of public protest, cast as civil disobedience, on which public order policing increasingly focused.121 The courts and the police acted, the state held, in a restrained manner until forced to intercede on behalf of public safety. The echoes of the Lenkurt Electric strike would inform RCMP approaches to public order policing in the coming years. Burnaby was ground zero for the RCMP style of public order policing. The suburb of Vancouver was home to militant workers, radical students, and socially conscious environmentalists prepared to protest and challenge the state.122 The Lenkurt Electric strike foreshadowed other walkouts and disputes involving unions when collective bargaining with

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employers broke down and provincial labour legislation created unfairness and inequality. Meanwhile, Simon Fraser University, atop Burnaby Mountain, gained a reputation for radical action and militancy on campus. In November 1968, a student occupation of the main administration building prompted the university’s president to call in the RCMP, which led to a large police intervention and 114 arrests.123 The tactics and methods employed recalled the Lenkurt Electric strike with lines of uniformed police confronting student demonstrators. The RCMP identifcation section and the GIS worked in the background collecting evidence and useful intelligence.124 The RCMP came under criticism for its conduct as the City of Burnaby dealt with the added policing costs related to mass protests and acts of disobedience by persons who believed the state was wrong and that the courts were to be ignored. The form of public order policing applied by the RCMP during the Lenkurt Electric strike preceded the evolution toward a more militarized model of law enforcement, with changes in organization, tactical employment, equipment, and training to handle large demonstrations and riots. Developments in Canada and within the RCMP followed those in the United States, Northern Ireland, and elsewhere.125 The state and its police forces built up signifcant ability to use and apply force to counter protests and enforce injunctions, warrants, and other court orders. Harry Rankin, one of the defence lawyers in the Lenkurt case, warned that this growth “amounted to a police state with policemen trained as combat soldiers to suppress the people.”126 The RCMP’s deployment of emergency response teams, tactical troops, and other specialized units in public order policing events has become normalized in the routine work and organization of contract policing in BC and elsewhere in Canada, in particular in response to Indigenous protests and stand-offs (see the chapters in this volume by Isitt and Walters). Mounting campaigns to defund, dismantle, and disband the police can hardly reverse the trend so long as the state sees the usefulness of such capabilities afforded by constabulary police with paramilitary traditions and confgurations like the RCMP, to enforce the dictates of the courts. NOTES 1 Gordon Hak, The Left in British Columbia: A History of Struggle (Vancouver: Ronsdale Press, 2013), 114–16; Jean Barman, The West beyond the West: A History of British Columbia, 3rd ed. (Toronto: University of Toronto Press, 2007), 304.

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2 Benjamin Isitt, “Patterns of Protest: Property, Social Movements, and the Law in British Columbia” (PhD diss., University of Victoria, 2018), 90; Isitt, Militant Minority: British Columbia Workers and the Rise of a New Left, 1948–1972 (Toronto: University of Toronto Press 2011), 159–60; David R. Verchere, A Progression of Judges: A History of the Supreme Court of British Columbia (Vancouver: UBC Press, 1988), 170. 3 Judy Fudge and Eric Tucker, “‘Everybody Knows What a Picket Line Means’: Picketing before the British Columbia Court of Appeal,” BC Studies 162 (Summer 2009): 63–4; Fudge and Tucker, Labour before the Law: The Regulation of Workers’ Collective Action in Canada, 1900–1948 (Toronto: University of Toronto Press, The Osgoode Society for Canadian Legal History, 2001). 4 Greg Marquis, The Vigilant Eye: Policing Canada from 1867 to 9/11 (Halifax: Fernwood, 2016), 112–13. 5 See generally, Otto Kirchheimer, Political Justice: The Use of Legal Procedures for Political Ends (Princeton: Princeton University Press, 1961) and discussion in the volume’s introduction, n2. 6 Eric Tucker, “Street Railway Strikes, Collective Violence, and the Canadian State, 1886–1914,” in CST3, 257–94, examined the response of transit workers to police violence and the treatment they received before the law and judges. The legal process was distorted in favour of upholding existing political imperatives, to the disadvantaging of labour. Bill Waiser, “Wiping out the Stain: The On-to-Ottawa Trek, the Regina Riot, and the Search for Answers,” in CST4, 402–35, showed the role of the RCMP in the instigation and aftermath of the riot and in the trial of unemployed men stopped in Regina while they were trekking to Ottawa to have their grievances heard. Public order policing and its appropriateness became a facet of the state trials. 7 Kirchheimer, Political Justice, 46. 8 Rod Mickleburgh, On the Line: A History of the British Columbia Labour Movement (Madeira Park: Harbour, 2018), 156–8. 9 John Stanton, Never Say Die! The Life and Times of a Pioneer Labour Lawyer (Ottawa: Steel Rail, 1987), 97–104. 10 Public Safety Canada Library [PSC], Sergeant K. Beiko, TM-05–93 Tactical Troop Protective Equipment, January 1993. LAC, Records of Royal Canadian Mounted Police, RG 18, series F-1, vol. 4597, fle GC 275–40, Deputy Commissioner W.H. Kelly, “Research Project – Riot Equipment and Techniques – Tactical Deployment of Equipment and Manpower Resources,” 2 August 1968. Four years after Lenkurt, British Columbia’s E Division had 1,000 RCMP members trained in riot control and police manoeuvres and 199 in formed tactical troops fully equipped with helmets, batons, and

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respirators. LAC, RG 18, series F-1, vol. 12231, fle P-400–24–24(68), pt 1, Sergeant A.A. Guy to offcer in charge C Directorate Research Branch, “Riot Equipment and Techniques”, 13 October 1970. 11 Rick Williams, Dionysios Rossi, Clay Jacobson, and Tim Pritchard, “The New Normal? Natural Resource Development, Civil Disobedience, and Injunctive Relief,” Alberta Law Review, 55, no. 2 (2017): 296. Jeffrey Monaghan, “Surveillance of Environmental Movements in Canada: Critical Infrastructure Protection and the Petro-Security Apparatus,” Contemporary Justice Review 20, no. 1 (2017): 60. RCMP, ATIP A-2015–08451, British Columbia Aboriginal Policing Services strategic outlook report, October 2015. Several federal politicians and other persons were arrested in Burnaby after being read and defying a court injunction obtained by the company, in largely peaceful protests opposing the Kinder Morgan pipeline and terminal expansion. The Emergency Response Team (ERT) supported the tactical troop by removing protesters suspended in trees tagged for removal along the pipeline rightof-way. In July 2018, Sergeant Glen Fishbook, a non-commissioned offcer with extensive ERT experience in northern Canada and the Lower Mainland responsible for aerial and marine boarding competencies, coordinated an RCMP operation to bring down Greenpeace protesters hanging from a provincial highway bridge connecting with North Vancouver that had blocked passage of tankers to and from the Kinder Morgan refnery terminal through the Port of Vancouver for two days. Vancouver Fraser Port Authority, ATIP 52100–20–019–2019, Superintendent John Brewer to Ryan Salvador, 4 July 2018. For ERT capabilities and training, see episode 6 of JenCor Entertainment’s Courage in Red television series (2009), which received inside RCMP access: https://vimeo.com/channels/courageinred/10016863. The Lower Mainland ERT went on full-time strength in 2006 and is the largest of its kind in Canada. Chris Madsen, “Green Is the New Black: The Royal Canadian Mounted Police and the Militarisation of Policing in Canada,” Scandinavian Journal of Military Studies 3, no. 1 (2020): 119–20, doi:10.31374 /sjms.42. Superintendent John Brewer was the intermediate (Silver) commander in the hard-hitting RCMP operations against the Wet’suwet’en and Unis’tot’en protesters. RCMP, ATIP A-2019–04526, Pardeep Hothi, National Security (EINSET), RCMP E Division HQ, C-IRG Operation “Coastal Gas Link LNG” Silver logbook, 5–10 January 2019. By September 2021, the numbers of protesters arrested by the RCMP at Fairy Creek exceeded those at Clayquot Sound in 1993, making it the largest action of civil disobedience and public order policing in the history of Canada. A considerable number of complaints were fled with a civilian watchdog arising from the RCMP’s tactics and conduct at Fairy Creek. The RCMP in British Columbia alone

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fnalized 1,036 complaints containing 2,649 allegations in 2019–20, many in relation to protests: Civilian Review and Complaints Commission for the RCMP, www.crcc-ccetp.gc.ca. PSC, Gary Edward Reed, “Organizational Change in the RCMP: A Longitudinal Study” (MA thesis, Simon Fraser University, Burnaby, 1984), 53–8; Jeff Shantz, “They Have Always Been Military: On So-Called Militarized Policing in Canada,” Journal of Social Justice 6 (2016): 16. RCMP non-commissioned members obtained the right of collective representation and bargaining after many years of legal challenge and a favourable judgment from the Supreme Court of Canada allowing unions in Canada’s federal police force. Mounted Police Association of Ontario v. Canada (Attorney General), [2015], 1 Supreme Court Reports 3. Treasury Board Secretariat, ATIP A-2017–00462, Christopher Rootham to registrar Public Service Labour Relations and Employment Board, “National Police Federation – Application for Certifcation under s.23 of the PSLRA of a Bargaining Unit of all members who are appointed to a rank, and reservists, of the Royal Canadian Mounted Police (“RCMP”) who are not offcers,” 18 April 2017. Mark P. Thomas and Steven Lufts, “Blue Solidarity: Police Unions, Race and Authoritarian Populism in North America,” Work, Employment and Society 34, no. 1 (2020): 138. LAC, Records of Solicitor General, RG 73, accession 1984–85/562, box 19, “A Working Paper – For Discussion – on The RCMP Role in Law Enforcement,” February 1975. LAC, Maurice Sauve papers, MG 32 B4, vol. 121, fle 7, RCMP, “Brief – Organized Crime and Law Enforcement in Canada,” November 1965; RCMP, ATIP A-2016–08391, Operational Manual (OM), amended November 2016. John Edward Duekmedjian and Willem de Lint, “Community into Intelligence: Resolving Information uptake in the RCMP,” Policing and Society 17, no. 3 (September 2007): 240–1. LAC, RG 18, accession 1985–86/48, box 39, fle G-966–83(1952), P.C. 2/4175, Royal Canadian Mounted Police, 26 August 1950; Lynne Stonier-Newman, Policing a Pioneer Province: The BC Provincial Police 1858–1950 (Madeira Park: Harbour, 1991), 258. A federal law enforcement task force study stated: “British Columbia suddenly requested a contract in 1950, largely for fnancial reasons (although it was also rumoured that the British Columbia Provincial Police were considering unionization). The Federal Government agreed to this extension of contract services and, in accepting the provincial duties, the RCMP also took on 46 municipal contracts, absorbing those members of the BCPP who met RCMP requirements.” LAC, RG 73, accession 1985–85/562, box 14, fle January – Diary, preliminary draft, “The Quebec and Ontario

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Claims for Financial Compensation relative to the R.C.M.P. Provincial and Municipal Policing Contracts,” 8 May 1978; S.W. Horrall, The Pictorial History of the Royal Canadian Mounted Police (Toronto: McGraw-Hill Ryerson, 1973), 194. LAC, ATIP A-2018–00540, Records of National Parole Board, RG 73, Series D-5, vol. 496, fle Relations with Police – RCMP (1), RCMP E Division Gazetteer, January 1965; Royal Canadian Mounted Police: An Historical Outline of the Force (Ottawa: RCMP Headquarters, 1967), 14. Out of a total reported RCMP strength of 10,739 across Canada in 1966, 1,552 personnel resided in E Division. LAC, RG33–71, vol. 2, Research report, “The R.C.M.P. – A Profle,” August 1975. Surrey eventually overtook Burnaby as the largest detachment in E Division, with an authorized strength in 2019 of 843 (792 funded) RCMP members. That number represents approximately 20 per cent of total personnel in the RCMP. The Green Timbers E Division headquarters and a new forensic laboratory are also located in the municipality. Surrey’s mayor Doug McCallum promised in a civic election to end the municipal policing contract with the RCMP and establish a city police force. City of Surrey, Surrey Policing Transition Plan, 3 June 2019, https://www.surrey.ca/fles /SurreyPolicingTransitionReport.pdf. LAC, ATIP A-2017–00572, Records of British Columbia Penitentiary, RG 73, series C-4-a, vol. 235, fle 624217, pt 1, H.I. Grest, “Riot and Disturbance – Night Recreation,” 8 August 1970. Burnaby possessed a municipal police force until February 1935, when the BC Provincial Police took over based on a mounted troop stationed at Oakalla Prison near Deer Lake that had been specially trained in riot control and handling civil disturbances. Pixie McGeachie (with Jim Wolf), Burnaby: A Proud Century (Vancouver: Opus Productions, 1991), 84; Vancouver Public Library Special Collections, Mary D. Trainer, A History of Policing in Burnaby, 1892–1950, 1975. Robert L. Bish, Local Government in British Columbia (Victoria: Union of British Columbia Municipalities, School of Public Administration, University of Victoria, 1987), 73. LAC, ATIP A-2019–05690, Records of RCMP Security Service, RG 146, series A, vol. 2305, fle RCMP Security Service and Subversives in Organized Labour – 1916 to 1978. Darryl Coleman Porter, “Police Training in the R.C.M.P.: A Historical Perspective” (MA thesis, Concordia University, Montreal, 1987), 35–6. Paul Philips, No Power Greater: A Century of Labour in B.C. (Vancouver: BC Federation of Labour, Boag Foundation,1967), 147; Canadian Police College Library, Carl Betke and S.W. Horrall, “Canada’s Security Service:

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An Historical Outline, 1864–1966,” 655–9. This hard-to-fnd, frequently referenced, internal manuscript is also available by informal completed request: Canadian Security Intelligence Service (CSIS), ATIP A-2016–00299. Reg Whitaker and Gary Marcuse, Cold War Canada: The Making of a National Insecurity State, 1945–1957 (Toronto: University of Toronto Press, 1994), 13–14. Gregory S. Kealey, Spying on Canadians: The Royal Canadian Mounted Police Security Service and the Origins of the Long Cold War (Toronto: University of Toronto Press, 2017), 215–16. 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), 242–4. Mark M. Lowenthal and Robert M. Clark, eds., The 5 Disciplines of Intelligence Collection (Los Angeles: Sage, 2016); Dennis Molinaro, “’In the Field of Espionage, There’s No Such Thing as Peacetime’: The Offcial Secrets Act and the PICNIC Wiretapping Program,” Canadian Historical Review 98, no. 3 (September 2017): 479. Scot Saltstone, “The Legal Dimensions of Combatting Threats to the Security of Canada” (LLM thesis, University of Ottawa, 1989), 133. Christabelle Sethna and Steve Hewitt, Just Watch Us: RCMP Surveillance of the Women’s Liberation Movement in Cold War Canada (Montreal and Kingston: McGill-Queen’s University Press, 2018), 27–9. Evert Hoogers, “In Whose Public Interest? The Canadian Union of Postal Workers and National Security,” in Whose National Security? Canadian State Surveillance and the Creation of Enemies, ed. Gary Kinsman, Dieter K. Buse, and Mercedes Steedman (Toronto: Between the Lines, 2000), 248. RCMP leadership was clear about the focus: “Trade Unions. The RCMP is not interested in the trade union movement as such. It is, however, interested in the efforts of the Communist Party to control and direct unions, not for the beneft of labour but for the beneft of the Soviet Union. There are a number of Communist-dominated unions in Canada and a number of Communist-dominated locals of non-Communist unions. In the opinion of the RCMP, Communists in trade unions are part of a conspiracy to control and disrupt the Canadian economy.” LAC, Records of Royal Commission on Security, RG33–149, vol. 1, fle 1–5-1, pt 1, RM 11/67, “Notes and Commentary on Preliminary Meeting held on 23 January 1967 with Commissioner G.B. McClellan, Royal Canadian Mounted Police; Deputy Commissioner M.F.A. Lindsay, Deputy Commissioner (Operations), Royal Canadian Mounted Police; and Assistant Commissioner W.H. Kelly, Director of Security and Intelligence, Royal Canadian Mounted Police,” 24 January 1967.

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29 Ian McDonald, “Class Confict and Political Factionalism: A History of Local 213 of the International Brotherhood of Electrical Workers, 1901–1961” (MA thesis, Simon Fraser University, Burnaby, 1986), 46; see also https://www .ibew213.org/about-us/history; Mark Leier, Red Flags and Red Tape: The Making of a Labour Bureaucracy (Toronto: University of Toronto Press, 1995), 169. 30 LAC, ATIP A-2011–00496, RG 146, series A, fle Gee, George, pt 2, E Division Special Branch HQ, “International Brotherhood of Electrical Workers, Local 213, Vancouver, B.C.,” 14 April 1955. 31 UBC Special Collections, George Gee papers, ARC-1210, box 3, fle 1, John Waplington, Arthur O’Keefe, William Daby, and Angus MacDonald to John H. Raymond, “Charges against George Gee,” 26 January 1955; British Columbia Legal History Collection Project [BCLHCP], Aural History Program, Faculty of Law, University of Victoria, transcript interview, Hon. J.O. Wilson, September 1979, 28. 32 Irving Abella, Nationalism, Communism, and Canadian Labour: The CIO, the Communist Party, and the Canadian Congress of Labour, 1935–1956 (Toronto: University of Toronto Press, 1973), 184–5; Whitaker and Marcuse, Cold War Canada, 312. 33 LAC, ATIP A-2011–00496, RG 146, series A, fle Gee, George, pt 3, E Division Special Branch HQ, “Art O’KEEFE / Vancouver, B.C.,” 4 May 1955. 34 LAC, Canadian Congress of Labour [CCL] fonds, MG 28 I103, reel H-98, fle 10, Claude Jodoin to A. O’Keefe, 11 August 1964. 35 Charlton Hunter joined the company in 1952 as an applications and sales engineering manager and was president after 1960. He grew up in Manitoba and possessed a signals background with the Royal Canadian Air Force during the Second World War. Daily Colonist, 23 July 1966. 36 LAC, Records of Labour Canada, RG 27, reel T-3419, vol. 3117, fle 183, M.R. Ross, “Report on Industrial Dispute – Commencement of Work Stoppage – Lenkurt Electric Co. of Canada – International Brotherhood of Electrical Workers Local 213,” 28 April 1966. 37 British Columbia Archives [BCA], Industrial Conciliation and Arbitration Branch [ICAB] fonds, series GR-1432, reel B00586, fle 12, Application for a conciliation offcer in a dispute between Lenkurt Electric of Canada, Ltd., North Burnaby – International Brotherhood of Electrical Workers, Local 213, 1 March 1966. 38 UBC, SPAM 16031, broadsheet, “We Demand Justice! Published by Members of Local 213, IBEW.” 39 A.W.R. Carrothers, The Labour Injunction in British Columbia (Toronto: CCH Canadian, 1956).

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40 Eric Tucker and Judy Fudge, “Forging Responsible Unions: Metal Workers and the Rise of the Labour Injunction in Canada,” Labour / Le travail 37 (Spring 1996): 89–90. 41 UBC, International Brotherhood of Electrical Workers [IBEW], Local 213 fonds, ARC-1278, minute book 19, Minutes general meeting, 2 August 1965; UBC, Ian McDonald papers, ARC-1783, box 3, fle 3–22, Photograph album Squamish July–August 1965. 42 LAC, RG 18, series F-1, vol. 4614, fle GL-1570–26(D1975), Superintendent R.G. Moffatt, “Police Service Dogs Training of Crowd Control,” 28 April 1975. Police service dogs were selected and trained at the RCMP kennels in Innisfail, Alberta, and then matched with handlers. Intimidating pure breeds known for hunting instincts, aggressiveness, and muscular build as well as suitable crossbreeds were favoured. Canines received instruction in obedience and following commands, detecting varieties of drugs and prohibited substances, search and tracking, offensive attack, and guard patrol. LAC, RG 18, series F-1, vol. 3652, fle G-505–135(1960), pt 1, Corporal G.A. Teeft, “Civil Security – Use of Dogs,” 14 July 1951. Police service dogs, like police horses, were vulnerable to physical harm from blunt and sharp objects in crowd altercations as well as exposure to immobilizing gas administered by police. Tests of tear gas on RCMP service dogs conducted at a chemical warfare defence establishment in Alberta found impairment of abilities in other lines of police work, in particular scent recognition. LAC, RG 18, F-1, vol. 4603, fle GC-1685–9(1978), pt 2, Inspector G. Timko to Sergeant W.J.O. Regitnig, “Research Study – EA4923 – Tear Gas,” 25 February 1980. Besides crime work, police service dogs were popular with children and adults alike in community policing, and presented a good police image to the general public. Kevin Walby, Alex Luscombe, and Randy Lippert, “Going to the Dogs? Police, Donations, and K9s,” Policing 41, no. 6 (2018): 801. 43 LAC, Records of Privy Council, RG 2, series B, BAN 2000–01376–7, box 141, fle L-1–6, Thomas A. Johnstone, “In Defense of the Injunction: A Brief submitted by the Commercial and Industrial Research Foundation,” 6 January 1967. 44 UBC, “The Labour Injunction: Paper presented by A.W.R. Carrothers, to the Sixteenth Annual Conference of the Canadian Association of Administrators of Labour Legislation – Toronto, 27th August, 1957,” 2. 45 The injunction read: IT IS ORDERED that the Defendants described herein as being “those persons whose identity is unknown to the Plaintiff attending at, on, in or near the Plaintiff’s premises at 7018 Lougheed Highway in the Municipality of Burnaby in the Province of British Columbia,” and each of them and their agents, servants,

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representatives, substitutes or anyone acting under their instructions or anyone having knowledge of this Order, be and they are hereby restrained and enjoined and an injunction is hereby granted restraining and enjoining them and each of them and their agents, servants, representatives or substitutes or anyone having knowledge of the order herein prayed for, until the trial of this action from: (a) Picketing at, on or near the plant, parking lot and facilities of the Plaintiff at 7018 Lougheed Highway, Burnaby, British Columbia; (b) Watching, besetting and picketing at, on or near the plant parking lot and facilities of the Plaintiff at 7018 Lougheed Highway, Burnaby, British Columbia; (c) Attending upon, entering upon or remaining at, on or near the plant, parking lot and facilities of the Plaintiff at 7018 Lougheed Highway, Burnaby, B.C.; (d) Creating a nuisance adjacent to or in the vicinity of the said premises and from attending at or on streets, sidewalks, parking lots, rails or roads leading to or giving access to the said premises or in the vicinity of the same and so conducting themselves as to deter or induce or to be likely to deter or induce the Plaintiff’s servants, agents, customers or other persons having business with the Plaintiff from entering or leaving the said premises or carrying out their duties; (e) Obstructing the entrance or entrances, exit or exits of the premises aforesaid; (a) Obstructing the free passage or prospective patrons or employees of the Plaintiff on the premises aforesaid; (f) Persuading or endeavouring to persuade anyone not to (i) enter the Plaintiff’s place of business operations or employment, or (ii) feel or handle the products of the Plaintiff, or do business with the Plaintiff. LAC, ATIP A-2018–01017, RG 18, series F-1, vol. 6151, fle 66HQ-599-E-1, pt 2, “Reasons for Judgment of the Honourable Mr. Justice MacDonald in the Supreme Court of British Columbia in the matter of an application by the Attorney-General for the Province of British Columbia for writs of committal and other process for contempt of court against Charles Patrick Neale, Arthur O’Keefe, Thomas Constable, Thomas Clarke, William Stewart, William Wells, Bryan K. Johnstone, George Gerald Sharpe, Jeffrey James Power, John Franklin Longworth, Douglas Evans, J.H. Boris, Thomas Watson Turbett, Walter Andrew Pooghkay, John M. Wood, Marion R. Bachewich, Brian E. Bethel, Betty Bradley, George Brown, David W. Cramer, Joyce M. Gerein, Frederick B. Keay, Inez Kennedy, Donald Latter, L.C. Genius, Donna E. Pooghkay, Ted Poole, Selma Ristau, Frederick H. Succamore, Joan Weddell,” 19 September 1966, 5–6. 46 LAC, ATIP A-2018–01218, RG 18, series F-1, vol. 6038, fle 66-E-599–2, First report, “Lenkurt Electric Co. of Canada Ltd. and International Brotherhood of Electrical Workers, Local #213 – Labour Dispute, Burnaby, B.C.,” 9 May 1966.

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47 “Electricians reject plan,” Daily Colonist, 6 May 1966; LAC, RG 27, reel T-3419, vol. 3117, fle 183, clipping, “Settlement Out,” 10 May 1966. 48 LAC, CCL, MG28 I103, reel H-577, fle 7, “Report of the meeting called for Wednesday, May 25th, at the request of E.P. O’Neal, Secretary of the B.C. Federation of Labour, to discuss the situation in British Columbia at the Lenkurt operation involving I.B.E.W.” 49 LAC, RG 18, series F-1, vol. 4597, fle GC-275–40, Superintendent V.A.M. Kemp, “Strikes, Generally – Instructions to Personnel,” 29 August 1942. Provincial authorities stressed the need for the RCMP in British Columbia and elsewhere to remain impartial in labour disputes and strikes: Both the Attorney-General [Robert Bonner] and I regret that any member of the Force, more particularly its Deputy Commissioner, would become involved in a labour dispute in the sense of publicly taking sides against one union. None of us likes communism, but it seems to me that this is one place where law enforcement offcers, such as the police, should not take sides in what is and has been played up across the nation as a very important labour dispute in the Province of Ontario, and which has also been in and out of the courts in the Province of Ontario.

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LAC, Clifford Harvison papers, MG 31 E119, vol. 2, fle 2–13, Gilbert D. Kennedy to Commissioner C.W. Harvison, 10 January 1961. LAC, ATIP A-2018–01218, RG 18, series F-1, vol. 6038, fle 66-E-599–2, Sergeant B.L. Northorp, “Lenkurt Electric Co. of Canada Ltd. and International Brotherhood of Electrical Workers, Local #213 – Labour Dispute, Burnaby, B.C.,” 17 May 1966. LAC, RG 18, series F-1, vol. 4597, fle GC-275–40, Superintendent C.W.J. Goldsmith, “Zeller’s (Western) Ltd., Strike Demonstration, North Surrey, B.C.,” 13 December 1962. “Mounties, pickets scuffe at Lenkurt Plant protest,” Vancouver Sun, 11 May 1966. The revised injunction opened:

THIS COURT DOTH ORDER that the Defendants described herein as being B.C. Federation of Labour, E.T. Stately, President and E.P. O’Neal Secretary-Treasurer, on behalf of all other members of B.C. Federation of Labour; Vancouver and District Labor Council, E. Sims, President and C.P. Neale General Secretary-Treasurer on behalf of all other members of Vancouver and District Labour Council, International Brotherhood of Electrical Workers #213, Arthur O’Keefe; and those persons whose identity is unknown to the Plaintiff attending at, on, in or near the Plaintiff’s premises at 7018 Lougheed Highway in the Municipality of

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Burnaby in the Province of British Columbia, and each of them and their agents, servants, representatives, substitutes or anyone acting under their instructions or anyone having knowledge of this Order, be and they are hereby restrained and enjoined and an injunction is hereby granted restraining and enjoining them and each of them and their agents, servants, representatives or substitutes or anyone having knowledge of the order herein prayed for, for a period of four clear days.

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LAC, ATIP A-2018–01017, RG 18, series F-1, vol. 6151, fle 66HQ-599-E-1, pt 2, “Reasons for Judgment of the Honourable Mr. Justice MacDonald in the Supreme Court of British Columbia in the matter of an application by the Attorney-General for the Province of British Columbia for writs of committal and other process for contempt of court against Charles Patrick Neale, Arthur O’Keefe, Thomas Constable, Thomas Clarke, William Stewart, William Wells, Bryan K. Johnstone, George Gerald Sharpe, Jeffrey James Power, John Franklin Longworth, Douglas Evans, J.H. Boris, Thomas Watson Turbett, Walter Andrew Pooghkay, John M. Wood, Marion R. Bachewich, Brian E. Bethel, Betty Bradley, George Brown, David W. Cramer, Joyce M. Gerein, Frederick B. Keay, Inez Kennedy, Donald Latter, L.C. Genius, Donna E. Pooghkay, Ted Poole, Selma Ristau, Frederick H. Succamore, Joan Weddell,” 19 September 1966, 6. Vancouver Sun, 12 May 1966. BCA, AAAB4859, interview, Jeffrey Power, 16 March 1977. UBC, McDonald, ARC-1783, box 3, fle 3–7, Ian McDonald, “Spontaneity Went Out with Spartacus: IBEW Local 213, Les McDonald, and the Lenkurt Strike of 1966,” 2017, 73; LAC, ATIP A-2016–00674, RG 146, series A, vol. 2202, fle Subversive Activities in Strikes – Canada, Corporal R.A. Potvin, “International Brotherhood of Electrical Workers – Local 213, Vancouver, B.C.,” 28 June 1966; Ian McDonald, The Red Baron of IBEW Local 213: Les McDonald, Union Politics, and the 1966 Wildcat Strike at Lenkurt Electric (Athabasca, AB: Athabasca University Press, 2022). LAC, ATIP A-2018–01218, RG 18, series F-1, vol. 6038, fle 66-E-599–2, message, 12 May 1966. LAC, ATIP A-2018–01218, RG 18, series F-1, vol. 6038, fle 66-E-599–2, Superintendent G.A. Gerrie to Assistant Commissioner F.S. Spalding, “Re: Lenkurt Electric of Canada Ltd. and International Brotherhood of Electrical Workers, Local 213 Labour Dispute – Burnaby, B.C.,” 27 October 1966. Erik Linstrum, “Domesticating Chemical Weapons: Tear Gas and the Militarization of Policing in the British Imperial World, 1919–1981,” Journal of Modern History 91 (September 2019): 575; Anna Feigenbaum, Tear Gas: From the Battlefelds of WWI to the Streets of Today (London: Verso, 2017); Roger

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F. Phillips and Donald J. Klancher, Arms and Accoutrements of the Mounted Police 1873–1973 (Bloomfeld: Museum Restoration Service, 1982), 60–1; Duke Roberts, An Introduction to Modern Police Firearms (Toronto: Collier-Macmillan Canada, 1969), 106–7. Macdonald et al v. O’Keefe et al, 66 Canadian Labour Law Cases 523. LAC, ATIP A-2018–01218, RG 18, series F-1, vol. 6038, fle 66-E-599–2, Sergeant B.L. Northorp, “Lenkurt Electric Co. of Canada Ltd. and International Brotherhood of Electrical Workers – Local 213 Labour Dispute, Burnaby, B.C.,” 17 May 1966. LAC, ATIP A-2016–00674, RG 146, series A, vol. 2202, fle Subversive Activities in Strikes – Canada, Constable L.G. Hanson, “Progressive Workers Movement – Vancouver, B.C.,” 13 June 1966. International offcers of the electrical union also claimed participation of progressive workers. LAC, CCL, MG 28 I103, reel H-577, fle 7, “Report of the meeting called for Wednesday, May 25th, at the request of E.P. O’Neal, Secretary of the B.C. Federation of Labour, to discuss the situation in British Columbia at the Lenkurt operation involving I.B.E.W.” Sergeant Klick was in charge of traffc at the Burnaby detachment and retired on 31 July 1966 in the midst of the contempt trial. City of Burnaby Archives (CBA), Corporation of the District of Burnaby, Report traffc committee, 7 July 1966. RCMP headquarters provided moving flm and equipment to the identifcation section, but the past-expiration date flm used at Lenkurt Electric was spoiled when developed. The RCMP compelled two local television stations to hand over unedited flm footage taken during the strike. UBC, IBEW Local 213, ARC-1278, minute book 19, Minutes general meeting, 14 May 1966. LAC, ATIP A-2018–01218, RG 18, series F-1, vol. 6038, fle 66-E-599–2, Sergeant B.L. Northorp, “Lenkurt Electric Co. of Canada Ltd. and International Brotherhood of Electrical Workers – Local 213 Labour Dispute, Burnaby, B.C.,” 17 May 1966. The international representative and executive members defected responsibility for the damage to others outside the union: “Chairman stated that their only wish was to get Lenkurt people back to work, & also strike started out as peaceful picket line but Progressive Workers somehow entered into strike causing much strife.” UBC, UBEW Local 213, ARC-1278, minute book 19, Minutes executive meeting, 16 May 1966. CBA, Minutes regular meeting municipal council, 16 May 1966. Burnaby’s council, however, was not about to replace the RCMP: “Several of the Aldermen in Burnaby have already expressed the opinion to members there that the people of Burnaby do want the Mounted Police and that the Council

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would encounter great criticism, particularly from the business men, if they considered setting up their own force.” LAC, Harvison, MG 31 E119, vol. 1, fle 1–17a, Assistant Commissioner C.W. Harvison to Commissioner L.H. Nicholson, 20 December 1956. LAC, ATIP A-2018–01218, RG 18, series F-1, vol. 6038, fle 66-E-599–2, Sergeant B.L. Northorp, “Lenkurt Electric Co. of Canada Ltd. and International Brotherhood of Electrical Workers – Local 213 Labour Dispute, Burnaby, B.C.,” 25 May 1966. “President raps councilors,” Vancouver Sun, 20 May 1966. LAC, ATIP A-2018–01218, RG 18, series F-1, vol. 6038, fle 66-E-599–2, Inspector J.D. Routledge to Councilor D.M Herd, “Status of R.C.M.P.,” 24 May 1966. UBC, Thomas Berger papers, ARC-1031, box 96, fle 96–10, Hearing of Injunction in the Supreme Court of British Columbia (Before Aikins, J. in Chambers), 12 May 1966, 74. LAC, RG 27, reel T-3419, vol. 3117, fle 183, clipping, “Violence Potential ‘Very Big’ in Strike,” Vancouver Sun, 13 May 1966. UBC, Berger, ARC-1031, box 96, fle 96–8, Hearing of Injunction in the Supreme Court of British Columbia (Before Aikins, J. in Chambers), 15 May 1966, 74. Kirchheimer, Political Justice, 204. UBC, Marine Workers and Boilermakers Industrial Union [MWBIU] Local 1 fonds, ARC-1352, box 5, fle 5–7, News from the B.C. Federation of Labour, 20 May 1966. Harry Rankin, Rankin’s Law: Recollections of a Radical (Vancouver: November House, 1975), 150. LAC, ATIP A-2015–00559, RG 146, series A, fle Spencer, George Victor, pt 2, Inspector H.C. Draper to Director Security and Intelligence, “Harry Rankin, Vancouver,” 7 March 1966. Rankin legally represented George Victor Spencer, a Vancouver postal employee caught spying for the Soviets, fred from the federal public service, and denied a pension, until Spencer’s death from lung cancer in April 1966. Nora Kelly and William Kelly, The Royal Canadian Mounted Police: A Century of History (Edmonton: Hurtig, 1973), 271; Reg Whitaker and Steve Hewitt, Canada and the Cold War (Toronto: Lorimer, 2013), 154. LAC, RG 27, reel T-3419, vol. 3117, fle 183, clipping, “Peterson raps strike ‘rowdies,’” Vancouver Sun, 14 May 1966; “Union action defed by electrical workers,” Globe and Mail, 16 May 1966; LAC, RG 27, reel T-3419, vol. 3117, fle 183, M.R. Ross, “Report on Industrial Dispute – Commencement of Work Stoppage – Lenkurt Electric Co. of Canada – International Brotherhood of Electrical Workers Local 213,” 1 June 1966;

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UBC, McDonald, ARC-1783, box 3, fle 3–4, Board of Conciliation Report in the matter of a dispute between Lenkurt Electric of Canada Ltd. and International Brotherhood of Electrical Workers, Local 213, 12 July 1966. Elections British Columbia, Electoral History of British Columbia 1871–1986 (Victoria, 1988), 298. Berger had represented the federal riding of VancouverBurrard as a Member of Parliament in Ottawa during 1962–3. He became leader of the provincial New Democratic Party in 1969 until Dave Barrett took over. Berger was appointed to the Supreme Court of British Columbia bench in 1972 and chaired various commissions and inquiries in subsequent years. Thomas R. Berger, One Man’s Justice: A Life in the Law (Vancouver: Douglas and McIntyre, 2002). UBC, Berger, ARC-1031, vol. 96, fle 96–11, Thomas R. Berger to R. Haynes, “Lenkurt Contempt Proceedings,” 23 June 1966. Stanton remembered judges throwing injunctions around “like confetti.” BCLHCP, transcript interview, John Stanton, 8 April 1989, 132–4. The rules of evidence in contempt and criminal trials were the same. Murray and Toy assured Sergeant Northorp that “they would do all they could to ensure that normal rules of evidence are followed and that in effect they would protect the interests of this Force, if required.” LAC, ATIP A-2018–01218, RG 18, series F-1, vol. 6038, fle 66-E-599–2, Sergeant B.L. Northorp to Sub-Inspector J.D. Routledge, “Lenkurt Electric Co. of Canada Ltd., and I.B.E.W., Local # 213, Labour Dispute, Burnaby, B.C.,” 27 May 1966. MacDonald had been appointed to the Supreme Court of British Columbia in January that year and served another seven years as a judge. Verchere, A Progression of Judges, 173. UBC, McDonald, ARC-1783, box 5, fle 5–9, “RCMP law-’n-order,” Pacifc Tribune, 20 May 1966, 4. Some banter was usual among police in comfort of the detachment:

The allegation of a jocular manner being displayed by our men is attributed, undoubtedly to John WOOD who had been arrested and was being booked at the time. WOOD is, reportedly a member of the Progressive Workers’ Movement, and no further elaboration need be made on the activities, aims and objectives of this organization in Canada. As far as members singing songs is concerned, we are unable to pinpoint any member or group of members who acted thus. It is true that the members discussed the activities of that morning amongst themselves when compiling notes and developing the information necessary to put in the form of a report. I am informed that mention of the singing and the titles of the songs were

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talked about and if a member or members of the arrested group overheard such remarks they could well put forth a version to suit their own purposes. Mention has been made to the effect that members were seen changing into uniform at the Burnaby offce. This is decidedly untrue as all the plainclothes members had left uniforms, arms and regular equipment at their homes by order. Further, to avoid any possibility of an unfavourable incident developing or that we could be accused of provoking such an incident, orders were given to all uniformed personnel and the Special Plainclothes Detail to carry no frearms or batons, and this order was complied with. Uniformed members did carry handcuffs on their persons.

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LAC, ATIP A-2018–01218, RG 18, series F-1, vol. 6038, fle 66-E-599–2, Superintendent H.E. Bloxham to Assistant Commissioner F.S. Spalding, “Lenkurt Electric of Canada Ltd., and International Brotherhood of Electric Workers, Local 213 – Labour Dispute – Burnaby, B.C.,” 26 May 1966. LAC, RG 18, series F-1, vol. 4597, fle GC 275–40, RCMP tactical doctrine, “Crowd Control”; Dennis G. Molinaro, “Section 98: The Trial of Rex v. Buck et al. and the ‘State of Exception’ in Canada, 1919–36,” CST4, 330. UBC, Berger, ARC-1031, Berger, box 96, fle 96–12, 1758/66, Proceedings in Chambers in the Supreme Court of British Columbia (Before the Honourable Mr. Justice MacDonald in Chambers), 30 May 1966, 29; UBC, Berger, ARC1031, vol. 96, fle 96–11, Thomas R. Berger to R. Haynes, “Lenkurt Contempt Proceedings,” 23 June 1966. UBC, Berger, ARC-1031, box 96, fle 96–12, 1758/66 Proceedings in the Supreme Court of British Columbia (Before the Honourable Mr. Justice MacDonald in Chambers), 13 June 1966, 14; LAC, ATIP A-2016–00674, RG146, series A, vol. 2202, fle Strikes Generally British Columbia, pt 4, clipping, “Court dismisses objections in Lenkurt contempt action,” The Fisherman, 17 June 1966. Bill Bachop, “‘Judges Hacks, law an ass,’ angry labor leader says,” Vancouver Sun, 20 June 1966. Kirchheimer, Political Justice, 200. LAC, ATIP A-2018–01218, RG 18, series F-1, vol. 6038, fle 66-E-599–2, Corporal E.W.J. Sparks to Sergeant B.L. Northorp, “Lenkurt Electric Co. of Canada Ltd., and I.B.E.W., Local #213, – Labour Dispute, Burnaby, B.C.”, 12 July 1966. UBC, ILWU Canada, ARC-1279, box 4, fle 4–5, 1758/66 Proceedings in the Supreme Court of British Columbia (Before the Honourable Mr. Justice MacDonald, in Chambers), 20 June 1966; UBC, ARC-1031, Berger, box 96, fle 96–7, clipping, “RCMP disguised at Lenkurt row.”

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89 Constable William Patrick Benedek claimed that Thomas Clarke struck him. UBC, Berger, ARC-1031, box 96, fle 96–7, clipping “Struck in face, Mountie testifes.” 90 LAC, ATIP A-2018–01218, RG 18, series F-1, vol. 6038, fle 66-E-599–2, Corporal E.W.J. Sparks to Sergeant B.L. Northorp, “Lenkurt Electric Co. of Canada Ltd., and I.B.E.W., Local #213, – Labour Dispute, Burnaby, B.C.,” 12 July 1966. 91 UBC, MWBIU Local 1, ARC-1352, box 6, fle 6–1, J. Power and W. Stewart to all members, “Court Injunctions and Wage Drives,” 21 June 1966. 92 UBC, Berger, ARC-1031, box 96, fle 96–11, Thomas R. Berger to R. Haynes, “Lenkurt Contempt Case,” 27 July 1966. At the time, Robert Bonner like Berger was campaigning for a provincial election on 12 September, in which he lost his Vancouver Point Grey seat to a Liberal candidate by 6,000 votes. Elections British Columbia, Electoral History of British Columbia, 299. Bonner regained a seat in a by-election and remained Attorney General until 1968, a total of sixteen years in that position. Alfred Watts, Magistrate-Judge: The Story of the Provincial Court of British Columbia (Victoria: Provincial Court of British Columbia, 1986), 38. 93 City of Vancouver Archives, ILWU Local 501, 541-D-2, fle 5, Thomas F. Mayes to ILWU BC locals, “B.C. Federation of Labour Defence Fund,” 28 July 1966. 94 UBC, Berger, ARC-1031, box 96, fle 96–11, Thomas R. Berger to R. Haynes, “Lenkurt Contempt Case,” 23 August 1966. 95 UBC, Berger, ARC-1031, box 96, fle 96–7, clipping, “Defence witnesses delay case”; UBC, McDonald, ARC-1783, Justice James MacDonald to Chief Justice Henry Bird, “Court of Appeal – Regina vs. Arthur O’Keefe,” 18 October 1966. 96 LAC, ATIP A-2018–01017, RG 18, series F-1, vol. 6151, fle 66HQ-599-E-1, pt 2, “Reasons for Judgment of the Honourable Mr. Justice MacDonald in the Supreme Court of British Columbia in the matter of an application by the Attorney-General for the Province of British Columbia for writs of committal and other process for contempt of court against Charles Patrick Neale, Arthur O’Keefe, Thomas Constable, Thomas Clarke, William Stewart, William Wells, Bryan K. Johnstone, George Gerald Sharpe, Jeffrey James Power, John Franklin Longworth, Douglas Evans, J.H. Boris, Thomas Watson Turbett, Walter Andrew Pooghkay, John M. Wood, Marion R. Bachewich, Brian E. Bethel, Betty Bradley, George Brown, David W. Cramer, Joyce M. Gerein, Frederick B. Keay, Inez Kennedy, Donald Latter, L.C. Genius, Donna E. Pooghkay, Ted Poole, Selma Ristau, Frederick H. Succamore, Joan Weddell,” 19 September 1966, 86–7.

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97 The specifc sentences handed out were: Imprisonment Patrick Neale (6 months), Thomas Clarke (6 months), Arthur O’Keefe (4 months), Jeffrey Power (3 months) Fines William Stewart ($500), William Wells ($500), Thomas Constable ($400), George Sharpe ($400); John Longworth ($200), John Wood ($200), Bryan Johnstone ($100), Frederick Succamore ($100), David Cramer ($100), Brian Bethel ($100), George Brown ($100), Donald Latter ($100), Ted Poole ($100), Frederick Keay ($100), Walter Pooghkay ($100) Suspended sentences on a one-year peace bond Marion Bachewich, Donna Pooghkay, Joan Weddell As per n96, 89. Gilbert Kennedy, the Deputy Minister Attorney General, noted Justice MacDonald’s words and commended the RCMP for its handling of the labour dispute, to which the commanding offcer E Division, Frank Spurr Spalding, added a note for the Commissioner: “There is no doubt that the sound judgment and restraint which were exercised by our members in the face of grave provocation prevented the potentially explosive situation at Lenkurt Electric from maximizing.” LAC, ATIP A-2018–01017, RG 18, series F-1, vol. 6151, fle 66HQ-599-E-1, pt 1, Assistant Commissioner F.S. Spalding to Commissioner G.B. McClellan, 27 October 1966. Earlier that year, Spalding had sat on a Committee on Crime Intelligence with McClellan and heads of the Ontario and Quebec provincial police forces to make better arrangements for combating organized crime, representing the provinces and territories under RCMP contract across the country. Besides his executive and professional abilities, he was a gifted cartoonist and humorist who published a book for the RCMP’s centenary. Frank Spalding, 100 Years in the R.C.M.P. Saddle or, Stop the Musical Ride, I Want Off! Cartoons by Frank Spalding (Sidney: Gray’s, 1972). 98 UBC, Berger, ARC-1031, box 96, fle 96–11, Thomas R. Berger to R. Haynes, 5 October 1966. 99 LAC, ATIP A-2018–01218, RG 18, series F-1, vol. 6038, fle 66-E-599–2, Sergeant B.L. Northorp to Inspector J.B. Gibbon, “Lenkurt Electric Co. of

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Canada Ltd., and I.B.E.W., Local #213, Labour Dispute, Burnaby, B.C.,” 4 Oct. 1966. Routledge became the criminal intelligence liaison offcer with Vancouver’s police department. LAC, RG 18, Series F-1, vol. 4594, fle GC 195–60–9, pt 1, Assistant Commissioner F.S. Spalding to Deputy Commissioner M.F.A. Lindsey, “Federal-Provincial Crime Intelligence Committee,” 19 December 1966. 100 LAC, ATIP A-2018–01218, RG 18, series F-1, vol. 6038, fle 66-E-599–2, Sergeant B.L. Northorp, “Lenkurt Electric Co. of Canada Ltd., and I.B.E.W., Local #213, Labour Dispute, Burnaby, B.C.,” 7 October 1966. 101 LAC, ATIP A-2018–01218, RG 18, Series F-1, vol. 6038, fle 66-E-599–2, Superintendent G.A. Gerrie to Superintendent H.E. Bloxham, “Lenkurt Electric Co. of Canada Ltd., and I.B.E.W., Local #213, Labour Dispute, Burnaby, B.C.,” 6 October 1966. Inspector Gibbon wrote: We understand that the Attorney General’s Dept. is considering giving instructions that Stays of Proceedings will be entered for the criminal charges now pending against the nine persons in question. A considerable amount of criticism was levied against the police during the labour dispute at Lenkurt Electric, and before those charges are Stayed I would request that our position be given consideration. It could be that the Staying of charges might create the impression that they could not be substantiated and bring on fresh attacks against the R.C.M. Police at Burnaby. I do not intend questioning the decision of the Attorney General’s Dept., but would like this drawn to their attention, if it has not already been done, so the possibility pointed out herein can be taken into consideration before defnite instructions are issued. LAC, ATIP A-2018–01218, RG 18, series F-1, vol. 6038, fle 66-E-599–2, Inspector J.E. Gibbon to Superintendent H.E. Bloxham, “Lenkurt Electric Co. of Canada Ltd., and I.B.E.W., Local #213, Labour Dispute, Burnaby, B.C.,” 28 September 1966. 102 UBC, Vancouver and District Labor Council [VDLC] fonds, ARC-1574, box 21, bk 1966, Minutes meeting, 18 October 1966. 103 Berger advised against appealing any convictions and concentrating on the sentences. UBC, Berger, ARC-1031, box 96, fle 96–11, Thomas R. Berger to R. Haynes, 5 October 1966. 104 One of the appellants questioned the motives and unintended effect of the labour demonstration: You know my position is I feel that this committee may and probably does not have our best interests at heart, but are a little misguided. I feel that any actions taken on our behalf must be taken in consultation with the parent bodies of labour,

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and I hope that these people can be convinced not to demonstrate at or near the Court House. There is no doubt in my mind that this action will smack of intimidation in the minds of the 3 judges and will only create a bad atmosphere.

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UBC, Berger, ARC-1031, box 96, fle 96–11, C.P. Neale to Vancouver District Labor and Trade Council, BC Federation of Labour, Syd Thompson, and Mrs. Neale, 28 October 1966. “Judge calls his court labor’s ‘whipping boy,’” Vancouver Province, 5 November 1966; UBC, Berger, ARC-1031, Berger, box 96, fle 96–7, clipping, “Appeal lost as march stalls court.” Bird became Chief Justice upon the death of Sherwood Lett in 1964 and flled that position up to his mandatory retirement at age seventy-fve in 1967. Christopher Moore, The British Columbia Court of Appeal: The First Hundred Years, 1910–2010 (Vancouver: UBC Press, The Osgoode Society for Canadian Legal History, 2010), 86–7. UBC, SPAM 360A, Jeff Power’s address to the Appeal Court, 3 November 1966. UBC, MWBIU Local 1, ARC-1352, box 6, fle 6–18, Appeal – Jeffrey Power v. R., 3 November 1966. “Jailed unionists lose appeals,” Vancouver Sun, 22 November 1966; “Four lose jail appeal,” Daily Colonist, 23 November 1966. LAC, ATIP A-2018–01218, RG 18, series F-1, vol. 6038, fle 66-E-599–2, Gilbert Kennedy to Superintendent G.A. Gerrie, 14 October 1966. Lawrence Pennell, a Member of Parliament for Brant-Haldimand elected in 1962, entered the federal cabinet in July 1965 in the wake of a report from the Dorion Commission that looked into allegations of bribery, corruption, and collusion with Montreal mobster and drug traffcker Lucien Rivard lodged against the Liberal minority government of Lester Pearson resulting in the resignation of Justice Minister Guy Favreau. After winning the fall 1965 federal election with another minority government, Pearson separated the duties of Solicitor General from those of the Justice Minister by order-incouncil later that year, and Pennell became responsible for the RCMP, the federal penitentiary service, and the National Parole Board. “Justice trimmed of some duties: Solicitor General full ministry,” Globe and Mail, 18 December 1965. Pennell exercised powers of clemency for persons held in federal penal institutions on behalf of the BC provincial government. The Solicitor General of Canada was forerunner to the Minister of Public Safety and Emergency Preparedness, who fulfls similar functions and oversight over the RCMP, the correctional system, and the parole board. Todd Hataley and Christian Leuprecht, “Asymmetric Decentralization of the Administration of Public Safety in the Canadian Federal Political System,” Canadian Public

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Administration / Administration publique du Canada 57, no. 4 (December 2014): 513, doi:10.1111/capa.12091. “Three jailed unionists going home for Yule,”, Globe and Mail, 21 December 1966. LAC, ATIP A-2016–01008, RG 73, accession 1983–84/237, box 68, fle 830–4, pt 1, clipping, “Bugged union convention: Only aiding RCMP, detective says,” Globe and Mail, 10 November 1966. UBC, VDLC, ARC-1574, box 8, fle 30, Syd Thompson to R.C. Haynes, “Pat O’Neal Bugging Episode,” 5 December 1966; D branch (counter-subversion) in E Division comprised sixty regular personnel consisting of investigators, reader analysts, investigation supervisors, and agent handlers that kept 163 open fles on labour unions in British Columbia and Yukon. LAC, ATIP A-2015–00448, RG 146, series A, vol. 5754, fle IA 10–9-9–1, pt 21, Directorate of Security and Intelligence annual report 1966–67, January 1968. UBC, R.C. Haynes, “The Labour Movement and the Injunction in British Columbia,” BC Federation of Labour injunction conference, 7 January 1967; LAC, CCL, MG 28 I103, vol. 312, fle 10, “Submission of the B.C. Federation of Labour to the Government of British Columbia on the Use of Injunctions in Labour Disputes”; interview with Ray Haynes by Chris Madsen, 4 August 2016. LAC, John Kenneth Starnes papers, MG 31 E56, vol. 21, fle 21–7, press release, “Notes for a Statement by the Solicitor General on the Action Plan for the Canadian Security Intelligence Service, Ottawa,” 30 November 1987; LAC, ATIP A-2019–09182, RG 73, BAN 2001–00872–4, box 82, fle 330–4, Osbaldeston Report – summary of recommendations, November 1987; PSC, Caroline Fletcher, “The Canadian Security Intelligence Service vs. The Royal Canadian Mounted Police” (MA thesis, University of Ottawa, 1989), 34. RCMP, ATIP A-2013–06441, fle GC-265–22(74S), pt 2, “The Coordinated Law Enforcement Unit of British Columbia, Canada – A Case Study,” July 1982; LAC, RG 73, series A, vol. 896, fle 11–40, pt 3, Francis Fox to R.J Perrault, “Special Inquiry into Organized Crime,” 2 November 1976. LAC, Records of McDonald Commission, RG 33–128, vol. 19, fle 140, Transcript of proceedings Commission of Inquiry concerning Certain Activities of the Royal Canadian Mounted Police, 26 November 1979; LAC, RG 18, series F-4, vol. 4206, fle IA-310–5-1-B, clipping, “His spycatching days are over,” Toronto Star, 23 August 1981. The sub-line to one article on Bourne’s appointment read: “Dogged by controversy, denounced by trade unions, Robin Bourne says his days in the security and counter-espionage game are behind him. Now he’s trying to improve the province’s policing”. Robert Sarti, “The cop’s man in Victoria,” Vancouver Sun, 29 July 1981; “B.C.

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lucky to have ex-security chief from Ottawa, minister tells critics,” Globe and Mail, 25 June 1981. Sam Alvaro, “Tactical Law Enforcement in Canada: An Exploratory Survey of Canadian Police Agencies” (MA thesis, University of Ottawa, 2000), 27; Bryce Jenkins, “Canadian Police Tactical Units: The Normalization of Police Militarization or a Pragmatic Response to High-Risk Calls?” (MA thesis, Carleton University, Ottawa, 2019), 27–8. Bruce Northorp, who subsequently reached the rank of inspector, was the offcer responsible for Lower Mainland district tactical weapons units and hostage negotiator team plans. LAC, ATIP A-2018–01151, RG 18, series F-1, vol. 5172, fle 76-P-396–14–30, Chief Superintendent W.G. Lambert, “Habitat Meeting 20 FEB 76 Special Emergency Units,” 20 February 1976. Willem de Lint and Alan Hall, Intelligent Control: Developments in Public Order Policing in Canada (Toronto: University of Toronto Press, 2009), 203–6; Lesley J. Wood, Crisis and Control: The Militarization of Protest Policing (Toronto: Between the Lines, 2014), 166–7. Press release, Regina Police Service, “Arrests in Unifor / Co-op Labour Dispute,” 20 January 2020. Kirchheimer, Political Justice, 42–3. RCMP, ATIP A-2016–09585, Eli Sopow, “Anticipating and managing civil disobedience through use of the Public Order Profle Scale,” presentation to national session Critical Incident Program, RCMP, 29 March 2012; Miles Howe and Jeffrey Monaghan, “Strategic Incapacitation of Indigenous Dissent: Crowd Theories, Risk Management, and Settler Colonial Policing,” Canadian Journal of Sociology 43, no. 4 (2018): 335. Bryan D. Palmer, Canada’s 1960s: The Ironies of Identity in a Rebellious Era (Toronto: University of Toronto Press, 2009), 288–9; Michael W. Flamm, Law and Order: Street Crime, Civil Unrest, and the Crisis of Liberalism in the 1960s (New York: Columbia University Press, 2005), 97; Stuart Schrader, “More Than Cosmetic Changes: The Challenges of Experiments with Police Demilitarization in the 1960s and 1970s,” Journal of Urban History 46, no. 5 (2020): 1003. Hugh Johnston, Radical Campus: Making Simon Fraser University (Vancouver: Douglas and McIntyre, 2005), 290–1; Steve Hewitt, Spying 101: The RCMP’s Secret Activities at Canadian Universities, 1917–1997 (Toronto: University of Toronto Press, 2002), 148–9. Kate Bird, City on Edge: A Rebellious Century of Vancouver Protests, Riots, and Strikes (Vancouver: Greystone Books, 2017), 56–7. Michael S. Sherry, The Punitive Turn in American Life: How the United States Learned to Fight Crime Like a War (Chapel Hill: University of North Carolina

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Press, 2020), 28; Scott W. Phillips, Police Militarization: Understanding the Perspectives of Police Chiefs, Administrators, and Tactical Offcers (New York: Routledge, 2018), 13–14; George C. Klein, The Militarization of the Police? Ideology Versus Reality (Santa Barbara: Cognella, 2019); Peter B. Kraska, ed., Militarizing the American Criminal Justice System: The Changing Roles of the Armed Forces and the Police (Boston: Northeastern University Press, 2001); P.A.J. Waddington, The Strong Arm of the Law: Armed and Public Order Policing (Oxford: Clarendon Press, 1991); Anthony Babington, Military Intervention in Britain: From the Gordon Riots to the Gibraltar Incident (London: Routledge, 1990), 165–7; Gerry Northam, Shooting in the Dark: Riot Police in Britain (London: Faber and Faber, 1988); Brendan Roziere and Kevin Walby, “Police Militarization in Canada: Media Rhetoric and Operational Realities,” Policing 13, no. 4 (2017): 478, doi:10.1093/police/pax075. 126 UBC, MWBIU Local 1, ARC-1352, box 6, fle 19, Harry Rankin information summary, 9 June 1969.

6 The FLQ and Judicial Guerrilla Warfare, 1963–72 JEAN-PHILIPPE WARREN

The 1960s saw a renewal of the rhetoric of political violence in Quebec. Far from being generally condemned as in the past, “propaganda of the deed” (propagande par le fait)1 became increasingly accepted among individuals and groups committed to revolutionary and anti-colonial struggles as a legitimate, even necessary, form of militant action. Actions that deliberately broke the law came to represent for these groups a valid option for challenging power and raising collective awareness. This rise in revolutionary violence reflected international patterns, in that social and anti-colonial struggles were erupting in many parts of the world. The Algerian War of Independence (1954–62), the Cuban revolution (1959), and the Vietnam War (1955–75), among others, evidenced the capacity of small, ill-equipped but bold groups to launch armed uprisings to achieve their revolutionary objectives. A “warrior” imagination seized the world’s youth, nourished by a certain reading of Marxist theory that violence is “the midwife of history.”2 In this regard, the message of the Front de libération du Québec (FLQ), a newly formed underground organization advocating the independence of Quebec from Canada through armed resistance and struggle, was unambiguous: “Patriots of Quebec, to arms! The time for national revolution has come! Independence or death.”3 The Patriote Rebellion of 1837–8 served as a significant inspiration for the movement, situating it within long-standing struggles for selfdetermination in Quebec.4

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In the 1960s many observers were surprised by the rise of violent political actions in the hitherto conservative province of Quebec. The Quiet Revolution, a time of profound political and social reforms inaugurated by the election of the Liberal Party in 1960, unleashed a series of attacks on what was now labelled the “Anglo-Saxon” establishment. Between 1962 and 1972, there were, in the strictest sense of the word, 174 incidents of political violence in Quebec, resulting in nine deaths, including those of three activists, and well over 100 trials and numerous related legal proceedings.5 The FLQ campaign began with the placing of bombs in mailboxes, but other dramatic actions soon followed, including an armed robbery in 1964 that led to the killing of two people. The next phase, from 1965 to 1967, saw the emergence of a larger and more socialist-oriented network led by Pierre Vallières and Charles Gagnon. A further series of bombings then targeted symbols of capitalism, such as the Montreal Stock Exchange. The fnal phase of FLQ activism was marked by the kidnapping of British Trade Commissioner James Cross by members of the Libération Cell and the kidnapping and murder of Quebec labour minister Pierre Laporte by members of the Chénier Cell, in what is referred to as the October Crisis. Throughout this tumultuous period, the government attempted to quash terrorist networks by various means,6 which included deterring further illegal actions by arresting, prosecuting, and demanding harsh prison sentences for those who violated the law for political reasons.7 Between 1963, when legal responses to the frst violent actions began, and 1972, when the FLQ fnally disbanded, some 127 individuals were charged and convicted for criminal offences committed for political purposes.8 In response to these waves of prosecution, pro-FLQ activists initiated “judicial guerrilla warfare” (guérilla judiciaire) as one of their political defence strategies.9 In other words, they set out to inject the spirit of guerrilla warfare tactics into the courthouses. In so doing, they hoped to turn the defendants into martyrs, innocent victims of an antiquated system of colonial justice. More specifcally, they attempted to counter the accusations laid against the defendants by using the courts as a forum to expose to the public the oppression of all hardworking French-speaking Quebecers.10 Through this strategy, Quebec revolutionaries turned the trials and related legal proceedings (criminal convictions, appeals, jury challenges, etc.) into a means to generate further militant action. This chapter focuses on the formulation and practice of this counter-hegemonic legal strategy by Quebec militants between 1963 and 1972.11

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the politicization of justice In the 1960s, the rise of self-proclaimed revolutionary organizations advocating for Quebec independence triggered swift responses by several state institutions. The intensifcation of police surveillance led to a series of arrests in the immediate wake of the founding of the FLQ of people suspected of conspiring against the government. In May 1964, La Cognée, the FLQ’s organ, published a list of two dozen “heroes” confned to Canadian jails after choosing to take up arms against the regime.12 The interrogation of suspects took place in a climate of widespread fear. The police used a panoply of intimidation tactics to extract confessions or compromising statements from those arrested. Crown prosecutors seemed to seize every opportunity to keep nationalist militants behind bars, whatever their actual deeds. Such violations of citizens’ rights did not go unnoticed. André Laurendeau, the editor-in-chief of the infuential Le Devoir and co-chair of the Royal Commission on Bilingualism and Biculturalism, criticized the questionable methods used by law enforcement offcers and prosecutors. “The law may have its reasons that common sense does not know. But in the eyes of a large part of the public, what is happening at the Law Courts is a parody of Justice.”13 It seemed to Laurendeau that, instead of trying to uncover the truth about the events of recent months, the police and the courts were simply throwing a handful of individuals in jail to reassure the population, even if this meant introducing irregularities in the judicial process. Gérard Pelletier, a journalist and future federal minister and Canadian ambassador to the UN, wrote that “in defance of the law, Montreal agents ... are behaving today as if they lived in the USSR or Franco’s Spain.”14 This spectacle, he argued, risked undermining citizens’ confdence in the fairness and integrity of the Quebec justice system and confrming the legitimacy of violence as the only path to overthrowing the established order. This apparent abuse of justice did not cease after the frst arrests of suspected FLQ terrorists, in the 1963–5 period. It seemed, indeed, that the state was increasingly using the courts to subdue political opposition. Many observers felt that consideration of the felquistes’ intentions worked against them and led to harsher sentences and prison conditions, and a number of well-known Quebec personalities (including Gérald Godin, Pauline Julien, Andrée Bertrand-Ferretti, Jacques Hébert, Paul Cliche, Jean-Marc Léger, Vincent Harvey, Guy Rocher, and Marcel Rioux) signed a letter in 1966 asking judges to recognize the ideology of the accused as a mitigating circumstance to avoid confating political struggles with

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ordinary crimes.15 Guy de Grasse complained in 1967 that political prisoners were already living under a special regime and that this was the very opposite of what should be.16 He contended that FLQ members and sympathizers were being given heavier sentences and subjected to increased prison supervision and more stringent parole conditions, and that their participation in popular demonstrations was being monitored by police as soon as they were released from prison. De Grasse also noted that because their ideals were regarded by judges and prosecutors as aggravating factors, mention of their radical political convictions actually hurt their defence. In other words, their reputation as revolutionaries, far from making them sympathetic in the eyes of the judges, led to them being seen as public enemies against which Canadian society needed to protect itself. In the eyes of Quebec nationalists, all of this was nowhere more evident than in the frst trials (1967–9)17 of Pierre Vallières, the author of White Niggers of America, a book he wrote in 1967 while temporarily detained in the Manhattan Detention Complex in New York.18 Vallières and his companion, Charles Gagnon, had fed to the United States but were extradited back to Montreal to face charges of manslaughter in connection with the LaGrenade affair, a factory bombing that killed a secretary (Thérèse Morin), and the explosion of a bomb that inadvertently killed a sixteen-year-old FLQ member (Jean Corbo). The Crown prosecutors presented Vallières as the mastermind of the FLQ, basing their argument solely on the latter’s leadership role in the terrorist movement and on so-called seditious writings that had appeared anonymously in underground publications.19 Given the lack of more substantial evidence, the Crown prosecutors, in their pleadings, seized every occasion to mention independence and socialism to incriminate Vallières, making such constant reference to his radical opinions that in the end, it was unclear whether he was being tried for the deaths of Jean Corbo and Thérèse Morin or for his membership in the FLQ. Many people wondered whether advocating for Quebec’s independence automatically made one an accomplice to those who were planting bombs in the province. It was partly with the Vallières case in mind that the 1969 Commission of Inquiry on the Administration of Criminal and Penal Justice in Quebec (Commission d’enquête sur l’administration de la justice en matière criminelle et pénale au Québec) denounced Quebec Crown prosecutors’ inclination to engage in political vendettas and enter onto a “slippery slope of bias and repression.”20 Moreover, Vallières was implicitly being accused not only of the crimes he had allegedly committed but also of those he might be tempted to commit in the future. His mere presence in society represented, it was

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said, a danger to the greater public. The political offence of seditious conspiracy – the charge he would face after the October Crisis as one of the Montreal Five – would enable prosecutors to condemn ideas and membership in a revolutionary organization. The earlier offences he was charged with required proof of criminal acts, not advocacy, yet in his concluding remarks in Vallières’s frst trial in April 1968, the chief prosecutor, Louis Paradis, frankly declared: “Gentlemen, free Vallières and you know what awaits you.” The statement would later be considered by the Quebec Court of Appeal as “an appeal to passion, prejudice or fear.21” These statements and others confrmed for many Quebecers that in their province, people were sent to prison for their political opinions and Quebec’s justice system had made it a crime to hold revolutionary beliefs.22 The Vallières trials of 1967–9 elicited reactions around the world to what appeared to be a parody of justice. International justice committees, human rights associations, and grassroots lawyers’ collectives – for example, those created in France in the wake of the FLN struggles – closely followed what was happening in Quebec, just as Quebecers closely monitored what was happening elsewhere. In September 1968 the International Federation for Human Rights Leagues sent two observers to Montreal: Roger Lallemand, a lawyer of the Brussels Court, and French philosopher Alain Badiou. The two visitors had just returned from Bolivia, where they attended the trial of Régis Debray, who, drawing on the experience of the Cuban Revolution, had theorized the idea of revolution by way of guerrilla warfare using the concept of “focalism,” that is, the creation of the necessary conditions for revolution through the vanguard actions and moral example of very small bands of militants.23 Delegate Renée Stibbe of the International Association of Democratic Lawyers also attended the Vallières trial. Toward the end of January 1970, the emblematic leader of May ’68, Daniel Cohn-Bendit, then in Canada to shoot a TV documentary, stated that he was offended by Vallières’s legal situation and proposed to undertake a critical study of judicial repression in Quebec. The conclusions of this report were to be submitted to an “international tribunal” established by Bertrand Russell and Jean-Paul Sartre. Quebec’s Liberal justice minister, Rémi Paul, immediately opposed the extension of CohnBendit’s visa and threatened to arrest members of the Russell tribunal for contempt of court if they ever dared come to Quebec. The sympathy aroused by Vallières’s prosecution is understandable when one considers that his legal experiences generally met the defnition of a political trial proposed by Theodore L. Becker. In a classic text, Becker distinguished between political trials, “political” trials, political

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“trials,” and “political trials.”24 Political trials (without quotation marks) are those that involve clearly political crimes (such as high treason) and do not call into question the impartiality of judges. “Political” trials are those that hide unacceptable political motives behind commonplace accusations, with the judicial process following its normal course. The imposition of the maximum penalty for a member of a radical organization for possession of marijuana illustrates one of the ways in which a state can eliminate opponents without attacking their convictions headon: the state targets them without appearing to infringe on their freedom of opinion. Political “trials” are rigged trials in which politically motivated crimes are tried and the state tampers with the rules of law to lock up individuals who profess subversive ideas. Finally, “political trials” include trials that, without an ounce of impartiality or objectivity, result in the conviction of opponents for imaginary crimes, in order to temporarily or permanently remove them from the political scene. It seems that Vallières faced a political “trial,” as described by Becker. He was being tried for manslaughter, yet he was often confronted with inadmissible evidence, misleading accusations, dubious interpretations of the law, and verbose commentaries by the Crown. He had to defend himself against a multitude of spurious and specious accusations, fuelled by the panic induced by the sudden rise of the FLQ. Eventually, Vallières was convicted of manslaughter and sentenced to life imprisonment. However, the Quebec Court of Appeal overturned that conviction, noting that he had been condemned not for his criminal actions but for “his words, writings, and attitudes.” His retrial on the same charges in 1969 is discussed in more detail below.25 judicial guerrilla warfare Having spent considerable time in the courts, FLQ members and sympathizers came to believe that they could not expect justice from the Quebec system. Their attitude toward the judges in their cases was generally combative.26 Although they were assisted by lawyers who worked largely pro bono (including Robert Lemieux and Bernard Mergler, a co-founder of the League for Human Rights and a principal theorist behind the strategy of judicial guerrilla warfare), and although they could count on the support of dynamic citizens’ groups (including the Comité d’aide au groupe Vallières-Gagnon, founded in November 1966 and renamed the Mouvement pour la défense des prisonniers politiques québécois [MDPPQ] in June 1970),27 the felquistes did not have the fnancial or legal resources of

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Quebec’s Department of Justice prosecutors. Since they could not compete head-on with their accusers, many sought to provoke the regime by transforming the courtroom into a political forum and challenging the legitimacy of the people who were waging “legal war” against them: the prosecutors, the judges, and government offcials. The accused and their supporters sought to strike a balance between self-representation, aimed at effective expression of the FLQ’s political message in the courtroom, and legal defences (assisted by various lawyers) that condemned the biased / unfair legal processes. Resorting to jurisprudence, the law, and the writings of experts, the FLQ members and sympathizers intended to demonstrate that the charges brought against them were invalidated by procedural faws and that prosecutors had nothing to offer except innuendo and conjecture. In the felquiste judicial guerrilla warfare, an important decision the defendants faced was whether to retain counsel or represent themselves. FLQ members and sympathizers believed that in defending themselves without legal counsel, they would be pursuing the same objectives that had motivated them to join or support the FLQ in the frst place. Indeed, some detainees hoped that by forgoing the services of a lawyer – who, due to professional pressures or fear of losing membership in the Quebec bar, could be tempted to play by the rules of the game – they would be better able to transform the courts into political arenas.28 On this subject, Pierre Vallières wrote in June 1968, in a letter to Jacques Larue-Langlois: Trials are, above all, opportunities for us to openly introduce the class struggle into the hypocritical “sanctuary” of the courts. By defending ourselves, we force the judge and the prosecution to confront us directly, without the intermediary or rather the screen of a bourgeois lawyer who, consciously or unconsciously, always seeks common ground with the institutionalized arbitrariness called the administration of justice. It is this arbitrariness that must be revealed by our presence and intransigence ... There is only one thing left to do: to politicize the whole affair as much as possible, without however having any illusions; to constantly seek political proft, without worrying about “justice.”29

The goal was to stop pretending that Quebec courts could render justice and use every opportunity to put the colonial system on trial. According to Vallières and others, lawyers could be of little help in this endeavour, for they entertained too much respect for the rites and ceremonies of legal process and had learned to confne themselves to the strict canon of the law. Activists were better positioned to fght the system on political

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ground. As a result, defendants sometimes fooded the court with facts and opinions only remotely related to the dispute in question. Accused in November 1964 of robbing a bank to fnance political activities, André Ouellette cast himself as a political prisoner by situating his criminal activities in a broader context. Before a somewhat perplexed judge, he took advantage of the forum offered to him to launch into a tirade about the injustices inficted on French Canadians under the British regime. Evoking the charismatic fgures of Gandhi and Castro, he recalled the historical crimes perpetrated against the Quebec people by colonial or federal governments and castigated his far too sheepish compatriots. “Don’t you think you’re deviating a little bit from the issues we’re interested in today?,” asked the judge. To which the accused replied by invoking the frst President of Algeria: “Ben Bella! He organized a number of bank robberies and spent years in prison! But look what has happened to him: today he is at the head of the new Algeria!” Ouellette concluded that his only crime was to be born in a conquered country, that the future would eventually prove him right to try stealing more than $5,000 from the Canadian Imperial Bank of Commerce to fnance national liberation movements, and that, far from being a criminal, he should be seen as an authentic revolutionary. One day, one day soon, he was certain of it, the people would break their chains and release all political prisoners.30 Similarly, in his long, convoluted November 1969 pleading against the charge of manslaughter, Vallières raised numerous points, evoking the Coffn case,31 the history of the Supreme Court, Adrien Arcand,32 colonialism, the United Nations, the bar, the Criminal Code, and police methods, in a dizzying maelstrom of events and ideas. He “ended up wondering why he, presumed innocent, should not be allowed to drink a little wine while in prison.”33 Jury selection led to many battles between prosecutors and defence lawyers. In the courtroom where Claude Morency’s trial was held in September 1970 (he was accused of conspiring to kidnap the US consul in Montreal, of committing armed robbery, and of being in illegal possession of dynamite), it took three weeks to select the twelve jurors, a record in the annals of Montreal trials. One of the prospective jurors was subjected to six hours of interrogation, another record. Out of the sixty potential jurors, forty-eight were deemed unacceptable by the Crown or by the defence. Robert Lemieux, Morency’s lawyer, was known to “torture” prospective jurors with his incisive questioning, his digressions, and his endless hypotheses. “The attorney Lemieux, who was on his third day of “examination” of the prospective jurors, spared nothing in his quest to

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uncover their opinions on everything from the FLQ, the War of [19]39–45, the War of [19]14–18, the Boer War ... and even the Battle of the Plains of Abraham.”34 Lemieux achieved his goal, which was to cause people began to wonder if there was such a thing as a politically impartial juror. Eager to transform their indictments into a forum for popular demands, some accused felquistes summoned various public fgures to the stand. For example, Vallières sent subpoenas to Gérard Pelletier (federal minister), Marcel Pepin (union leader), Pierre Maheu (leftist intellectual), Andrée Ferretti (nationalist leader), René Lévesque (leader of the Parti Québécois), Jean-Jacques Bertrand (premier of Quebec), Rémi Paul (provincial justice minister), Pierre Vadeboncoeur (leftist intellectual) and even Pierre Elliott Trudeau (prime minister of Canada). Another approach was to encourage supporters to come and disrupt the trials. Storming the courtroom, some comrades chanted slogans (“Long live the FLQ!” “Long live free Quebec!” “Long live the workers of Quebec!”), heckled, or drowned out the judges’ or Crown prosecutors’ attempts to make their voices heard with a chorus of violent coughing spells. A very different tactic employed by political prisoners was to remain silent. Throughout their hearings, some FLQ members or sympathizers preferred to say nothing rather than pretend to accept what seemed to them to be a travesty of justice. This refusal to testify could sometimes be as eloquent as a long speech. Similarly, hunger strikes allowed prisoners to pressure the government by attracting public sympathy without having to write long pleas. For the accused, the intent was always the same, although the means employed depended on the context or personal preference. They wanted to reveal the courts for what, in their opinion, the courts really were: instruments of power and domination. By engaging in long and bitter juridical guerilla warfare, they aimed to shed light on the colonial oppression suffered by their compatriots. They did not always consider the personal consequences of their attitude and behaviour. They did not, in the words of Vallières, worry about “justice.”35 They situated the battle at another, more political level. judicial counter-guerrilla warfare The accused felquistes were almost all young (born in 1938, Vallières was one of the oldest members of the FLQ) and fairly inexperienced, so they did not always fully grasp that one does not provoke the justice system with impunity. Judge Robert Ouimet, like many of his colleagues, had never concealed his low esteem for the “crazy heads” and “brain-dead

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young people” who, drawing their ideas from the books of Jean-Paul Sartre and Albert Camus, were spreading, in his words, the venom of materialism, agnosticism, and separatism in the province.36 To curb the felquistes’ judicial guerrilla warfare, prosecutors and judges used the full arsenal of provisions available under the law. Since the release of people accused of criminal offences who advocated the overthrow of the current social order was unthinkable in the minds of many, the Crown dragged out legal proceedings when it suspected it could not convince the juries to declare the defendants guilty or rely on the bench to impose long jail sentences. The Crown neglected to summon jurors, intimidated witnesses, saved the most serious charges for last, and regularly postponed trials.37 Insensitive to the principle of “justice delayed is justice denied,” politicians, prosecutors, and judges seemed indifferent to these extensive delays. In the case of Vallières, his separate manslaughter proceedings were postponed a total of seven times between 1967 and 1969. In December 1969, Judge Paul Miquelon, the presiding judge in Vallières’s second manslaughter trial, gave his fnal instructions to the jury: “If you say that the accused is not guilty,” he declared, “well, he will have had a private retreat. He worked for three years that he told us, and he studied as well [Vallières studied law on his own to defend himself]. It would be unfortunate, but what is done is done.”38 Vallières was convicted of manslaughter a second time, but, instead of the life sentence he had received on his frst conviction, which was overturned on appeal, the judge imposed a thirty-month sentence. Vallières was paroled in May 1970 after spending forty-four months in prison since his arrest. His co-accused, Gagnon, spent forty-one months behind bars before being released. They soon faced yet another prosecution in the wake of the October Crisis. In the eyes of many nationalists, the sentences imposed on FLQ members and sympathizers were disproportionate to their crimes. As justice seemed to have lost all measure, it also seemed to have lost all legitimacy. This was never clearer than in the case of Pierre-Paul Geoffroy, a twentysix-year-old student who was arrested on 13 February 1969 on charges of having played a role in the explosion of a powerful bomb on the premises of the Montreal Stock Exchange. The explosion caused twenty-seven injuries, including three very serious ones, and hundreds of thousands of dollars in damage. Many in the Quebec revolutionary movement saw Geoffroy as a hero, not a criminal. At the French McGill demonstration in March,39 some students brandished giant photographs of the young revolutionary, and in September, at the opening of the newly founded

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Université du Québec à Montréal (UQAM), the walls of the Read Pavilion were plastered with his initials. His trial was conducted in an expeditious fashion. On 2 April 1969, having pleaded guilty to all charges and having endorsed all FLQ criminal activities between 1968 and 1969, Geoffroy was sentenced to life imprisonment for each of the 124 counts related to the bombs and fve years for each count related to the possession of dynamite. Never in the history of the British Commonwealth had an accused been sentenced to such a long term; rarely, if ever, had an individual been sentenced to life imprisonment without having caused death. Journalist Jacques Larue-Langlois was outraged: “Pierre-Paul Geoffroy’s 124 life sentences constitute the total gag that the repression system has chosen to impose on all Quebecers who are aware of the fght against exploiters. Through Pierre-Paul, it is all of us, activists from everywhere, who are gagged 124 times in perpetuity. Are we going to let it happen?”40 Newspapers received letters from FLQ cells threatening to avenge this unprecedented sentence.41 Finally, as they responded to the felquistes’ judicial guerilla warfare, judges seemed to use and abuse convictions for contempt of court. A person who, by word or deed, disregarded the authority of the court, or those representing such authority, could be charged and found guilty by the presiding judge and sentenced immediately to a maximum of one year in prison, which could be suspended to accumulate further sentences for contempt, with little recourse to review (the sentence could be appealed, but the contempt conviction could not). Accused who made the mistake of trying to explain themselves or raising an objection risked being condemned for contempt again. Thus, in the words of a FLQ sympathizer, if during an appearance a “senile old judge who has badly digested his morning cognac”42 took offence at a word or behaviour that he considered inappropriate, he had the right to send someone behind bars for several months. The most common reasons for using this judicial hammer of contempt proceedings were refusal to testify and insults against the judicial system. Convicted of slandering the judiciary and making a mockery of the court with his so-called arrogant attitude, Vallières was sentenced to six months in prison for contempt of court in January 1970. Faced with this conviction, Vallières could not contain an exclamation of disgust with Quebec justice, which earned him an additional month in prison. As Vallières continued to protest, the judge ordered the police to take him to his cell. “And as the policeman led him to the door leading to the cells, Vallières shouted at the top of his voice: “It’s blackmail ... it’s blackmail ... it’s real judicial terrorism!”43

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What appeared to be the judges’ overreaction by way of direct punishment of the accused and their supporters for contempt of court reinforced the impression that justice was being politicized. There was no doubt in the eyes of many observers that the trials of FLQ members and sympathizers had taken a political turn. The October Crisis only clarifed as much. Shocked by the accumulation of related convictions for contempt, Quebec nationalists increasingly associated the judges’ decisions with government tactics to tame or silence opponents. Judges presided over their own cause to punish disruptive behaviour in the courtroom. In January 1971, university professor Marcel Rioux was particularly taken aback by the sentencing of union leader Michel Chartrand (an FLQ sympathizer, but not an FLQ member himself) to one year in prison for contempt of court after he twice accused the judge of being “prejudiced, biased and fanatical” and demanding that he recuse himself. “We believe,” declared Rioux, “that this sentence is extraordinarily unfair and disqualifes our justice system as never before. This conviction can only make us more determined to fght against this regime of injustice and dishonesty that generates such a judicial system. If ever there was a political trial in Quebec, it is this one; we see it, it’s clear.”44 Chartrand was released on bail a few weeks later, but his liberation did not change the fact that in the history of Quebec never had so many people been sentenced for contempt of court and never had the sentences been so harsh. Following the October Crisis, some twenty people were sentenced sixty times for contempt of court to a total of twelve years in prison. Although exceptional, another option for judges who were frustrated with disrespectful court behaviour was the outright expulsion of the accused for contempt. In February 1971, Paul Rose, leader of the Chénier Cell and key suspect in the killing of labour minister Pierre Laporte, was expelled from his own trial after making sharp and irreverent remarks in response to the inclusion of a juror who expressly declared himself partial (by a judge who considered the juror impartial “despite himself”). His absence made the proceedings look even more abusive. “Since January 26, 1971,” the judge, Marcel Nichols, said, “I have been patient, I have issued multiple warnings, I have found the accused guilty of contempt of court. But to no avail. To allow this to continue would be to degrade the courts. And even though this may be the frst time this has happened in the Canadian judicial system, I want to take full responsibility for it.”45 Judge Nichols recognized that, in the absence of the accused, he would have to be “creative.” Rose would be expelled from court again in March, and, in another unprecedented moment in

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Quebec’s legal history, the verdict of life imprisonment was pronounced in the absence of an accused. The trial of Jacques Rose, Paul’s brother, was also not devoid of irregularities. The judicial mess reached a peak in this case when Rose’s lawyer, Robert Lemieux, who had been informed about the jury’s internal divisiveness before it was called to give its verdict, fled a motion for bail in May 1972. Faced with Lemieux’s refusal to disclose the names of the jurors who served as his informants, Judge Alphonse Barbeau sentenced him for contempt of court. About forty members of the MDPPQ present in the room immediately shouted in indignation. The scene got out of hand. Lemieux tried to reason with Barbeau one last time, but Barbeau ordered the police to take him into custody. A policeman then threw himself at Lemieux, pulled him to the ground and punched him in the ribs. His legal colleague, Pierre Cloutier, tried to calm everyone by shouting: “That’s enough, no violence in the courthouse!” For this intervention, the judge sentenced Cloutier to three days in prison for contempt. Everyone was then thrown out of the courthouse by Sûreté du Québec offcers armed with truncheons. “Many were beaten, their arms twisted, dragged to the ground, three were taken to a cell after being beaten several times: Robert Lemieux’s brother, Paul, André Maheu of the Republican militia of Quebec and Hélène Quesnel. To make matters worse, she will now have to appear in court on June 8 on the charge of assaulting a police offcer ... That is the justice we have!”46 It appeared that judges had diffculty dealing with these new types of accused who were less interested in claiming their innocence than in accusing the judiciary of being guilty of safeguarding an unjust and biased colonial system against grassroots and democratic challenges. Judges countered these attacks by resorting to a broad repertoire of rules and punishments. They were confdent they would eventually win the fght, but, contrary to their expectations, the spectacle of the political prisoners’ trials increasingly became a means of demonstrating publicly that the legal system was unfair and that it inficted cruel treatment on incarcerated so-called democrats and patriots. This was made even more obvious when Vallières, after his release in the spring of 1970, was again arrested and detained under the War Measures Act, this time charged with seditious conspiracy, along with Charles Gagnon, FLQ lawyer Robert Lemieux, and two other leading FLQ activists. The War Measures Act, the seditious conspiracy trial of the Montreal Five, and Lemieux’s later punishment for contempt are examined in Darren Pacione’s chapter in this volume.

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a shoddy justice system The legal hardships of the FLQ members and sympathizers reinforced for a great number of people the impression that Quebec’s justice system was the servile instrument of political and fnancial power. The velvet glove of justice barely concealed the iron fst of power. It was believed that the arsenal of justice was being deployed not to uncover the truth but to smear the FLQ and discredit the sovereigntist movement. In a special issue on political prisoners published by the Cégeps Limoilou and Sainte-Foy’s student paper, some students did not hesitate to call the Crown’s attorneys “watchdogs” and “little assholes.” They also described Quebec’s justice minister as a “puppet in the hands of those who hold the party’s purse strings and buy the elections, the Anglo-American capitalists whose sole purpose is to maintain the exploitation of Quebec workers in their personal interest.”47 The methods used to crush the opposition forces in Quebec, it was said, were “worthy of the most infamous police state”48 and tended toward the gradual establishment of a totalitarian regime. Before his release from prison in May 1970, Vallières criticized the provincial and federal justice ministers and their henchmen for having transformed “the judicial system into a political instrument (very costly, moreover, in this period of infation).”49 He blamed them for perpetuating the politics of an elite “who, having no popular basis, had no other way to stay in power than to use truncheons, blackmail, fear, slander ... and arbitrary imprisonment.50” For him, the justice system was so fawed and corrupt that it amounted to nothing less than judicial terrorism, and those who opposed it were freedom fghters. He drew a comparison with what had happened in Nazi Germany when the courts refused to challenge Hitler’s rise. “In Germany,” Vallières recalled, “in Hitler’s time, the judges did not grumble when the Führer began to issue decrees that threw the powers of the courts in the garbage. They kept quiet.”51 Vallières also connected the situation in Quebec with that in other countries, including Italy, France, Palestine, Greece, the United States, and Vietnam, where citizens were being locked up for expressing their political ideals. For him, the fght for the liberation of Quebec’s political prisoners was unfolding in an international context.52 “It is not me who is a terrorist,” he argued, “but the justice that has become so in Quebec. Fascist justice. A repressive and suffocating justice. A justice that only serves to legitimize political repression, fascism and trials of intent. As in Chicago, Athens, Saigon ... ”53 In September 1970, the opening of the trial of Claude Morency, François Lanctôt, and André Roy (accused on forty-four counts, including

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conspiracy to kidnap the US consul in Montreal) was punctuated by shouting and disruption on a scale that had probably never been heard in a Quebec Court of Justice. Accompanying their invectives with flthy words, the three individuals told Judge Claude Bisson to “just shut up.” Not seeing a substantial difference between the judge and the Crown prosecutor, the accused were committed to exposing the court’s intrinsic illegitimacy. “It is said that we must be judged by our fellow human beings. Where are our people? Our fellow men are unemployed ... All we see here are people earning $35,000 a year who will spend the summer in the Caribbean while we languish in prison ... We do not want this justice ... You’re a gangster [addressing the judge]. We don’t give a damn. It’s all bulls––.”54 Lanctôt and Roy were expelled, and police offcers took them back to their cells. When the court resumed its activities in the afternoon, Morency shouted that he did not want a trial and preferred to go back to his cell rather than participate in this mockery. an alien justice When engaging in judicial guerrilla warfare, FLQ members and sympathizers were attempting to challenge the very legitimacy of the justice system. After their arrest in December 1970, Jacques and Paul Rose, as well as Francis Simard, did not express regret and contrition for the kidnapping and murder of Pierre Laporte, quite the opposite. On his frst appearance in January 1971, Paul Rose boasted to the judge: “When the Liberation Front is done with you guys, it might have dirty hands, but the public square will be clean.”55 In March, he made a twenty-minute speech during which he ripped into his accusers without ever murmuring a word about Laporte’s death or repudiating his membership in the FLQ. He said he was delighted to have “instilled fear in the hearts of exploiters and fnanciers.”56 During his trial, he tirelessly attacked the “show” of justice. FLQ members and sympathizers had multiple grounds for repudiating the justice system. First, they rejected the court’s jurisdiction on the ground that it originated in the British Conquest. “To be honest with myself,” declared Paul Rose, “I must say that I see this court and all the others in Quebec as colonial courts, a ‘front’ of the establishment, put in place here by force, maintained by the force of arms and the force of money. I do not recognize this court and I refuse it the right to judge any citizen whatsoever.”57 In the view of many accused, the rightly named Court of Queen’s Bench had no authority over them. They believed that the Canadian courts, a legacy of British imperialism, could obviously not

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try individuals fghting against colonial oppression. Referring to UN resolutions that granted people the right to free themselves from the yoke of colonialism, they presented themselves as prisoners of war according to international law. Second, attacking the political corruption of justice in Quebec, political prisoners railed against an institution that appeared to be “a legal pirouette and a monumental farce of whores from the establishment.58” At a time when the winds of the Quiet Revolution were blowing over the province, the legal institutions seemed, in contrast, to be detestably rigid, ensconced behind the blindly rigorous application of the law. In particular, the Quebec bar appeared to be a relic of another era, organized to protect the privileges of the bourgeois elite to which the vast majority of its members belonged. Its structures refected the interests of its most infuential members, recruited from the major (often English) law frms in Montreal. As for the judges, since they had, as lawyers, previously been deeply connected to economic and political networks, they had an interest in supporting the system in place. “I have always said,” argued Michel Chartrand, “that the crux of corruption came from the judiciary, starting from the cabinet; that the most corrupt institution in society was the bar, and I haven’t changed my mind; we’re supposed to take that seriously, these courts?”59 Third, many leftist and nationalist activists denounced the signifcant overlap between the executive and the judiciary. On the one hand, legal professionals heavily populated provincial and federal parliamentary institutions. From 1948 to 1970, lawyers made up about one third of the members of the National Assembly, one third of provincial ministers in Quebec, and one half of federal ministers in Ottawa, with the result that the people’s government equated, more or less, to a “government of lawyers.60” On the other hand, Quebec justice was plagued by an obvious politicization of the criminal justice system and the lack of judicial independence. In the eyes of activists, this collusion was particularly blatant in the appointment of judges, who appeared to have been chosen by a political party once it arrived in power on the basis of past services more than personal merit. Guy Bouthillier revealed that in 1971, forty of the seventy-four judges who served on the Quebec Court of Appeal had, before taking up their position, held political offce. The average duration of these judges’ parliamentary terms of offce was almost twelve years.61 Judge Roger Ouimet, for example, was a former Liberal candidate, married to the daughter of a federal Liberal minister and brother-in-law of the Lieutenant Governor of Quebec. After recalling these allegiances, Vallières could not help but declare: “Judge Ouimet, the impression I have is

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that I am not in front of a court but in front of a political party and those who judge me today are the Liberals, the members of the Liberal Party. It is a party and not a court.”62 The wide resort to contempt proceedings further deepened the impression of close connections among the government, prosecutors, and judges. Fourth, political prisoners denounced the juror selection process, which, in their opinion, illustrated another way the Quebec justice system favoured the powerful and the wealthy. Until 1971, women as well as persons who did not own property worth at least $4,000 or rent property with a monthly rent of at least $500 could not be jurors. The juries that heard the charges against the felquistes, therefore, were not representative of Quebec society. On 1 March 1971, when FLQ sympathizer Lise Balcer appeared before the court as a witness, a group of women’s liberation front activists stormed the jury box to protest against the exclusion of women from juries.63 How, they asked, could one believe an impartial verdict would be reached as long as juries were so grossly unrepresentative? Bernard Lortie, a member of the Chénier Cell, took up this issue during his trial. Turning to the members of the jury, he declared: The jurors’ law excludes women, who make up 50% of the population. It then excludes small landowners and small tenants, another 10% of the population. And fnally, it excludes all other male citizens over 21 years of age who do not pay water taxes, another 20% (100%−50%−10%−20%−20% = 20%). As a result, the right to be judged by one’s peers is the right to be judged by 12 men chosen from a privileged group of 20% of the population. As we can see, none of you 12 are my peers: I am 20 years old. I don’t pay water tax, I’m unemployed. This judicial democracy is a spectacular farce.64

Nationalist and leftist activists suspected that behind a thin facade of civil liberties reigned an arbitrariness benefting established powers. Guilty in the eyes of the bourgeoisie of Westmount and the West Island, the defendants were convinced that they would be innocent in the eyes of the “guys from Saint-Henri,” a lower-class Montreal neighbourhood. Only the ordinary people of Quebec could, according to Paul Rose, render a fair verdict. “I say it honestly, I think it is the people of Quebec who will come to judge us, it is the people who will judge us once it is in power.”65 And again: “We need a people’s court where we can talk to each other in our language ... between Quebecers.”66 Proving his point, his brother Jacques was acquitted of murder charges in February 1973 after property qualifcations and the exclusion of women

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from juries were lifted. When released, Jacques Rose did not hesitate to link his acquittal to the more representative character of the jurors. “This is the judgment of the Quebec people. The only real one.”67 Addressing the three women and nine men on the jury, Robert Lemieux thanked them for having rendered this historic verdict. “Authentic Quebeckers will be able to rejoice in it and be inspired by it to continue their fght for freedom. This verdict is yours alone. It is not the verdict of the people like Choquette [the justice minister], the people like Ste-Marie [a police sergeant], the judges of the assize court and the judges of the Court of Appeal, nor that of the fnanciers. It is the people’s.”68 The next day, Jacques Rose was seen toasting with seven jurors on a terrace in Place Jacques-Cartier. The FLQ members and sympathizers interpreted the change in jury composition as a sign of even greater changes to come. For them, the complete overthrow of the existing system of justice was a necessary step to promote real justice in Quebec. At last, not only would nationalist activists be judged by their peers, but so too would workers, women, and every other group suffering exploitation under the establishment’s yoke. Quebec would be liberated from its oppressors and their appointed henchmen. lessons learned The struggle of the political prisoners to challenge the justice system and reveal its faws had important consequences. Many people in Quebec, in the rest of Canada, and abroad were appalled by what was happening in Quebec courtrooms and receptive to the pleas for reform made by Vallières and his comrades in arms. Although staunchly against the use of violence to promote the independence of Quebec, the newspaper Le Devoir was highly critical of what increasingly appeared to be a “judicial farce.” “Despite four years of almost endless proceedings,” wrote Jean-Claude Leclerc in an editorial in May 1970, “the Quebec Ministry of Justice was unable to bring the Vallières-Gagnon case from the LaGrenade affair to an end. On the contrary, it became bogged down in a judicial guerrilla warfare for which it was not prepared and whose continuous developments have insistently disrupted the course of justice.”69 Leclerc noted that “the many lawsuits brought to date, far from repressing the FLQ movement, have given it an unexpected opportunity to disrupt Canadian justice from within, to contradict it and thus discredit it in local and international public opinion.”70 Leclerc was right in pointing out that FLQ members’ and sympathizers’ tireless questioning and pointed remarks had helped transform their trials into a trial of the legacies of British legalism.

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Leclerc believed that the change of government (in the spring of 1970 the one-term Union Nationale had been defeated by the Liberal Party under the leadership of thirty-seven-year-old Robert Bourassa) represented an opportunity to reset the clock and end the judicial mess in which the government was ensnared. “By putting an end to the proceedings, the Minister of Justice will signifcantly restrict, if not eliminate, the battlefeld where, continuing its struggle, the FLQ has succeeded in disorganizing the judicial system. Until now, the department seemed not to have understood what kind of guerrilla warfare it had been involved in, at its own expense.”71 Leclerc’s message was not heard right away because the October Crisis and repressive emergency measures under the War Measures Act intervened. Finally, in the wake of the October Crisis and the remaining FLQ trials in 1971 and 1972, the government decided to adopt a more constructive approach, a move obviously connected to the dissolution of the last FLQ cell in 1972 and the ex-FLQ members’ decision to join either the Parti Québécois (e.g., Pierre Vallières) or Marxist-Leninist organizations (e.g., Charles Gagnon). Many judges and Crown prosecutors agreed that a more lenient attitude was needed to appease tensions in the province: “It’s too much! It’s too much persecution!,” claimed one prosecutor.72 In this story, some FLQ members and sympathizers had paid a hefty price. But at a time when Quebecers were dissatisfed with their judicial institutions,73 many people came to see their legal battles as important steps toward the establishment of a better, more representative criminal justice system. They discovered that the word justice had sometimes hidden a world of collusion and arbitrariness that needed to be questioned.74 In the 1970s, responding to many different issues, a series of reforms of the justice system were implemented to democratize access and improve the conditions of inmates, including rehabilitation programs and access to medical treatment.75 These included reforms to the jury system and the law of contempt. Although not always central to that debate, the actions of the political prisoners to contest the charges laid against them and the broader issue of the fairness of the judicial system helped trigger a rethinking of the system of justice to better adapt it to the contemporary age. Their court battles were not in vain. NOTES 1 Developed by late nineteenth-century anarchists, “propaganda of the deed” is a strategy of political action according to which the most effective means

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of provoking popular awareness is through direct action outside the legal frame, whether by punitive raids, sabotage, or guerrilla acts. Karine Salomé, L’ouragan homicide: l’attentat politique en France au xixe siècle (Seyssel: Champ Vallon, coll. « Époques », 2010), 319. “Force plays another role in history [than as a perpetrator of evil], namely a revolutionary role; ... it is, in Marx’s words, the midwife of every old society when it is pregnant with the new; ... it is the instrument whereby the social movement forces its way through and shatters the petrifed, dead political forms.” Friedrich Engels, Anti-Dühring, qtd in V.I. Lenin, The State and Revolution, trans. Robert Service (London: Penguin, 1992), 19. FLQ, “Message du FLQ à la nation” [1963], reproduced in Lettres et écrits felquistes (1963–1982), ed. Robert Comeau, Daniel Copper, and Pierre Vallières (Montréal: VLB Éditeur, 1990), 17. The best source on the history of the FLQ remains Louis Fournier, FLQ. Histoire d’un mouvement clandestin (Montréal: VLB 2020). On the long history of Canadian state trials examined in this series, none of which were more important in the memory of Quebec nationalist activists than the 1838–9 trials following the 1837 and 1838 rebellions, see JeanMarie Fecteau, “This Ultimate Resource: Martial Law and State Repression in Lower Canada, 1837–38”; Steven Watt, “State Trial by Legislature: The Special Council of Lower Canada, 1838–41”; F. Murray Greenwood, “The General Court Martial at Montreal, 1838–39: Operation and the Irish Comparison”; and “The Montreal Court Martial, 1838–39: Legal and Constitutional Refections,” all in CST2, 207, 248, 279, 325. Repressive legal responses and state trials in Quebec predating the rebellion and through the twentieth century are examined in Volumes I, II, and IV of the series, and these studies are surveyed in the fnal chapter of this volume. Marc Laurendeau, Les Québécois violents (Montréal: Boréal, 1990), “Appendice II: Liste des personnes reliées aux activités du Front de libération du Québec de 1963 à 1972,” 321–7; Daniel Latouche, “Les études sur la violence: où en sommes-nous?,” in Violence et sociétés (Sillery: Centre québécois de relations internationales et Institut canadien des affaires internationales, 1973), 113. Steve Hewitt, “‘Information Believed True’: RCMP Intelligence Activities on Canadian University Campuses and the Controversy Surrounding Them, 1961–1971,” Canadian Historical Review 81, no. 2 (2000): 191–228. As noted in the volume introduction and the chapter by Darren Pacione that follows, the theorist Otto Kirchheimer sets out a useful typology of modern political trials that includes not only trials for political offences such as treason and sedition but also trials for more routine property offences and offences of violence committed for political aims. See Kirchheimer, Political

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10 11 12 13 14 15 16 17

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Justice: The Use of Legal Procedure for Political Ends (Princeton: Princeton University Press, 1961). Although most cases would have been prosecuted as crimes regardless of aims, see also n24 below on why they can be considered political trials. Laurendeau, Les Québécois violents. The most prominent of these trials, discussed below, include the complex legal encounters of Pierre Vallières and Charles Gagnon, 1967–9; PierrePaul Geoffroy, convicted and given 124 life sentences for the bombing of the Montreal Stock Exchange; and the trials of the members of the Chénier and Liberation cells in 1971–3 for the kidnapping and murder of Pierre Laporte and the kidnapping of James Cross. The enactment of the War Measures Act and the seditious conspiracy trial of the FLQ leadership, the Montreal Five (Les Cinq), were the most immediate legal/courtroom responses to the October Crisis of 1970; these are examined separately in the chapter in this volume by Darren Pacione. For more about the history of political prisoners in Quebec and the FLQ episode in particular, see Jean-Philippe Warren, Les prisonniers politiques au Québec (Montreal: VLB Editeur, 2013). Jean-Claude Leclerc, “ Le Québec à l’heure de la guérilla judiciaire,” Le Devoir, 20 January 1971, 4. On the general context of the FLQ trials, read Jean-Philippe Warren, Les prisonniers politiques. “ Honneur aux patriotes, ” La Cognée, no. 11 (15 May 1964): 1. André Laurendeau, “ Quand l’accusateur seul a la parole, ” Le Devoir, 12 June 1963, 1. Gérard Pelletier, “ La police contre la loi, ” La Presse, 6 June 1963, 4. Comité d’aide au groupe Vallières et Gagnon [sic], press release, c. November 1966, Archives du Québec à Montréal, O’Leary Fond, CLG-40. “Les membres du FLQ ne sont pas des criminels de droit commun – Me Bruno Colpron, ” La Presse, 6 October 1967, 22. To be more specifc, Vallières was arrested in the United States in September 1966, extradited back to Canada in January 1967, and faced his frst trial in February 1968. His manslaughter conviction was overturned by the Quebec Court of Appeal. He was convicted again the following year and was released in May 1970, only to be arrested again during the October Crisis as one of the Montreal Five charged with seditious conspiracy. Daniel Samson-Legault, Dissident. Pierre Vallières (1938–1998). Au-delà des Nègres blancs d’Amérique (Montréal: Québec Amérique, 2018). Other members of the Vallières–Gagnon network would be convicted for the bombing at LaGrenade, including Rhéal Mathieu (nine years and six months), Serge Demers (eight years and ten months), Robert Lévesque (seven years),

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23 24

25 26

27

28

29

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Claude Simard (fve years and ten months), and André Lavoie (three years and six months). Rapport de la Commission d’enquête sur l’administration de la justice (Québec: Offce d’information et de publicité, 1969), 1: 26 and 32. Sentence by judge G. Miller Hyde, 10. Archives du Québec à Montréal, TP 12 S2 SSI SSS2. For instance, according to a May 1971 survey, more Quebecers felt threatened with arrest by the police or the army during the October Crisis (nearly 40%) than with kidnapping by the FLQ (25%). “Un sondage sur la crise d’octobre Seulement 38.4% des Québécoisont ‘appuyé entièrement’ Bourassa, ” Le Devoir, 29 May 1971, 1–2. Debray participated in Che Guevera’s guerrilla movement and was captured and tried. Theodore L. Becker, “Introduction,” in Political Trials, ed. Becker (New York: Bobbs-Merill, 1971), xi–xvi. See also Ronald Christenson, “A Political Theory of Political Trials,” Journal of Criminal Law and Criminology 74, no. 2 (1983): 547–77; and Kirchheimer, Political Justice, n7. Fournier, FLQ, 158. See also 1969 Carswell Que 20, 9 C.R.N.S. 24; [1970] 4 C.C.C. 69. There was sometimes tension between the defendants and their legal counsel. The former were primarily interested in presenting their political message as forcefully as possible, while the latter raised questions about due process and the need for an impartial and effcient justice. A balance between effective political and legal strategies in the courtroom was not always easily achieved. Darren J. Pacione, “Political Trials and Felquistes Defendants: Defending the Front de Libération du Québec (FLQ) in the Courtroom” (PhD diss. in Law and Legal Studies, Carleton University, Ottawa, 2017). See also Hélène Pelletier-Baillargeon, “Des Regis Debray québécois,” Maintenant, no. 74 (15 February–15 March 1968), 51–3. Jean-Philippe Warren, “À la défense des prisonniers politiques québécois. Autour du Comité d’aide au Groupe Vallières-Gagnon,” Bulletin d’histoire politique, vol. 19, no. 2 (2011), 53–71. Robert Lemieux was sometimes considered too constrained due to his training in law. Gilles Crevier, “Les tribunaux ne doivent pas servir à la lutte politique,” La Patrie du dimanche, 7 March 1971, 8. Excerpt of a letter from Pierre Vallières to Jacques Larue-Langlois, June 1968, qtd in Pierre Richard, “La conspiration séditieuse. 5 lettres servent d’éléments de preuve,” Le Devoir, 21 May 1971, 2. “Malgré une longue tirade devant le tribunal, un récidiviste est condamné à dix ans de pénitencier,” Le Journal de Montréal, 13 November 1964, 10. One

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32 33 34 35 36

37 38 39

40

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can also read selected court proceedings reproduced in Bernard Smith, Les résistants du FLQ (Montréal: Les Éditions Actualité, 1963). The Coffn affair refers to the hanging of a Gaspésie resident named Wilbert Coffn for the murder of three visiting American men in 1956. Many people believed him innocent. Proclaiming himself the Canadian Führer, Adrien Arcand led a series of fascist political movements between 1929 and his death in 1967. Guy Deshaies, “MM. Trudeau, Bertrand, Paul, Pelletier ... sur la liste des témoins de Vallières,” Le Devoir, 21 November 1969, 3. Guy Bourdon, “Le procès de Claude Morency. Existe-t-il des jurés politiquement impartiaux?,” Montréal-Matin, 12 September 1970, 3. Excerpt of a letter from Pierre Vallières to Jacques Larue-Langlois, June 1968, qtd in Richard, “La conspiration séditieuse.” Roger Ouimet, “Où s’en va le Québec,” talk given in 1963 to members of the Saint James Literary Society, reproduced under the title “Les têtes folles de cette province,” Québec-Presse, 24 January 1971, 6. Pierre Vallières, Les héritiers de Papineau: itinéraire politique d’un “nègre blanc” (Montréal: Québec/Amérique, 1986). Juge Paul Miquelon, pp. 3597–679, Archives nationales du Québec, TP 12 S2 SSI SSS2. Operation McGill français was a street demonstration that demanded that McGill University become a French-speaking institution. Attracting between 10,000 and 15,000 protesters, it took place on 28 March 1969 as a reaction to the lack of suffcient places at Université de Montréal for students who were then graduating in large numbers from Cégeps. In respond to the crisis, UQAM was opened in September 1969. Jacques Larue-Langlois, “[Camarade! Nous n’avons pas à faire de gros efforts ...], ” 11 March 1970, Archives du Québec à Montréal, O’Leary Fond, CLG-40. Pierre-Paul Geoffroy served twelve years in prison and was conditionally released in 1981. Robert Comeau, “Des jugements iniques ont préparé la crise d’Octobre,” Le Devoir, 8 April 2017, A7. “Un délit à abolir,” APLQ, no. 16 (1–8 July 1971), 15. François Barbeau, “Le Mdppq demande aux députés de faire libérer P. Vallières,” Le Devoir, 20 May 1971, 3. Marcel Rioux, speaking in the name of a group of friends gathered at his North Hatley residence, qtd in “Les réactions,” Québec-Presse, 10 January 1971, 3. Qtd in Jacques Lacoursière, Alarme citoyens! (Montréal: Les éditions LaPresse, 1972), 425.

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46 “Mes Lemieux et Cloutier condamnés pour outrage au tribunal,” APLQ, no. 62 (25 May–1 June 1972), 7. Robert Lemieux was sentenced to two and a half years’ imprisonment for contempt of court, reduced to six months in June 1974. He was freed in October 1974, in time to learn that he had been charged by the bar with conduct derogatory to the honour and dignity of the profession. He was found guilty of misconduct and required to refrain from practising law for two years. For members of the MDPPQ, it was obvious that “police and judicial bludgeoning” was the government’s spontaneous response to criticisms. “‘Du ‘matraquage judiciaire et policier,’ selon le MDPPQ,” Le Devoir, 29 May 1972, 2. 47 “ Vallières et Gagnon. Quand la répression s’attaque aux idées,” Deux mai 2, no. 16 (March 1971), 4; “Les prisonniers politiques,” FLQ 68–9 [special issue on Pierre-Paul-Geoffroy], Montréal (1970), 6; McMaster University Archives, Stanley-Gray Fond. 48 Ibid. 49 Pierre Vallières, “Lettre d’un gréviste de la faim,” Montréal, 18 May 1970, reproduced in Pierre Vallières, Paroles d’un nègre blanc (Montréal: VLB Éditeur, 2002), 130. 50 Vallières, “Lettre d’un gréviste de la faim.” 51 Qtd in Virginie Boulanger, “Le procureur général sait très bien que Vallières et moi n’avons rien à faire avec les événements d’octobre – Charles Gagnon,” La Guérilla judiciaire, 26 March 1971, 4. 52 Jean-Philippe Warren, “Outrage au peuple! L’horizon international des procès politiques des détenus felquistes,” Globe. Revue internationale d’études québécoises, vol. 14, no. 1 (2011), 13–16; Sean Mills, The Empire Within: Postcolonial Thought and Political Activism in Sixties Montreal (Montreal and Kingston: McGill-Queen’s University Press, 2010). 53 Pierre Vallières, “[Charles Gagnon a enfn été libéré ...],” Archives du Québec à Montréal, O’Leary Fond, CLG-40. 54 Guy Bourdon, “Au procès des trois néo-FLQ, le juge apostrophé et injurié,” Montréal-Matin, 10 September 1970, 2. 55 Qtd in Guy Deshaie, “Lemieux ne pourra pas défendre Paul Rose,” Le Devoir, 26 January 1971, 2. 56 Le Devoir and Le Journal de Montréal, 25 January 1971, qtd in Manon Leroux, Les silences d’Octobre: le discours des acteurs de la crise de 1970 (Montréal: VLB, 2002), 19. 57 “Le procès de Paul Rose,” Deux mai 2, no. 16 (March 1971): 3. 58 Pierre Dubuc, “Québec: Les procès politiques de 1970. Entrevue avec Paul Rose,” L’Aut’journal, 30 September 2010. 59 Michel Chartrand, 2 March 1971, qtd in Fernand Foisy, Michel Chartrand. La colère du juste (1968–2003) (Outremont: Lanctôt, 2003), 165.

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60 Jean-Charles Falardeau, “Des élites traditionnelles aux élites nouvelles,” Recherches sociographiques, vol. 7, nos. 1–2 (1966): 131–45; Yoland Sénécal, “Les professions juridiques chez les parlementaires québécois – 1867–1982. Étude sur les rapports entre la formation juridique et la composition des Assemblées parlementaires,” La Revue du Barreau du Québec, vol. 44, no. 3 (May–June 1984), 545–67. 61 Guy Bouthillier, “Matériaux pour une analyse politique des juges de la Cour d’appel,” Revue juridique Thémis vol. 6, no. 3 (1971), 563–94; and “Les avocats du Québec et l’État,” Revue du Barreau, vol. 34, no. 2 (1971), 51–72. 62 Pierre Vallières, in Le Procès des Cinq (Ottawa: Éditions Libération, 1971), 49. 63 Marjolaine Péloquin, En prison pour la cause des femmes: La conquête du banc des jurés (Montréal: Éditions du Remue-ménage, 2007). 64 “Le texte de la plaidoirie de Bernard Lortie,” Québec-Presse, 26 September 1971, 6. 65 “Le procès de Paul Rose,” Deux mai, vol. 2, no. 16 (March 1971), 3. 66 Claude Jodoin, “Paul Rose se vide le cœur,” Le Journal de Montréal, 30 September 1972, 7. Robert Lemieux declined the offer to go to Ottawa to plead the case of political prisoners before the Supreme Court. “The Ottawa River, Canada’s capital and Canada no longer exists for us. We will settle our affairs at home, in the country of Quebec. Conrad Bernier, “Jacques Rose décidé à se battre pour faire libérer son frère Paul,” La Presse, 24 February 1973, A3. 67 “Chez les Rose, c’est la fête,” Journal de Montréal, 23 February 1973, 4. 68 Claude Jodoin et Jocelyne Depatie, “26 mois en prison, 3 longs procès ... et puis la liberté,” Le Journal de Montréal, 23 February 1973, 5. 69 Jean-Claude Leclerc, “Le ministre Choquette doit accepter la requête de Pierre Vallières,” Le Devoir, 22 May 1970, 4. 70 Leclerc, “Le ministre Choquette." 71 Leclerc, “Le ministre Choquette." 72 Conrad Bernier, “Me Robert Lemieux provisoirement libéré,” La Presse, 21 July 1973, F14. 73 According to a survey conducted by the Criminology Department of the Université de Montréal, qtd in Claude Gravel, “La justice sur la sellette,” La Presse, 28 January 1971, A4. 74 One example among many: As noted, Judge André Fabien had sentenced Geoffroy to 124 life imprisonments to dissuade others from deviating from the path of honest and law-abiding citizens. However, in 1977, following a police investigation, he himself was accused of receiving large bribes and hiding large sums of money (under a false name), forcing him to resign. 75 Pierre Lalande, Évolution des politiques pénales et du discours à propos de l’emprisonnement au Canada et au Québec : de 1969 à 1999, Direction générale des services correctionnels, Ministère de la Sécurité publique, 2000.

7 The 1971 Trial of the Montreal Five: Seditious Conspiracy and the FLQ DARREN PACIONE

We are accused of a type of crime; we are not accused of a specifc crime. – Robert Lemieux to Justice Ouimet in court on 8 February 1971.1

In the aftermath of the 1970 October Crisis, the seditious conspiracy trial of the Montreal Five targeted Michel Chartrand, Pierre Vallières, Charles Gagnon, Robert Lemieux, and Jacques Larue-Langlois as the philosophical leaders of the Front de libération du Québec (FLQ), a revolutionary movement for the independence of Quebec from Canada. Arrested overnight in mass raids on 16 October 1970, the Five sat imprisoned for three weeks before being brought before a judge. Their subsequent prosecution was a major courtroom manifestation of the widened reach of state repression under the frst and only peacetime proclamation of the War Measures Act (WMA).2 The Act, invoked on the basis of an apprehended insurrection, followed the kidnapping of British trade commissioner James Cross and the kidnapping and murder of Quebec labour minister Pierre Laporte, and was used to expand police powers, suspend habeas corpus, and designate the FLQ as an unlawful association. The proclamation led directly to the arrest and indefnite detention of 497 people in Quebec during the late fall of 1970. Charges of sedition and even treason were considered for many of those arrested during the height of the October Crisis, but the government largely refrained from prosecuting such serious political offences. Only

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sixty-two people eventually faced charges, under the Criminal Code or for new offences created by the emergency measures, and most of these were for minor public order offences. The most serious cases involved the seditious conspiracy charges brought against Vallières, Gagnon, Chartrand, Lemieux, and Larue-Langlois and the various criminal charges against members of the Chénier and Libération cells accused of the kidnappings and murder that triggered the invocation of the WMA. Unlike the property offences and offences of violence committed for political purposes that characterized many FLQ trials between 1963 and 1972, surveyed by Jean-Philippe Warren in the previous chapter, the seditious conspiracy trial of the Montreal Five was a state trial for a political offence. Otto Kirchheimer’s defnition of political trials illuminates the differences between the seditious conspiracy trial of the Montreal Five and the previous FLQ trials as well as those that followed in 1971–2. Kirchheimer distinguishes classic political trials for political offences, such as treason and sedition, from trials for routine offences committed for political purposes (Warren’s focus) and trials intended to discredit political opponents. He also notes that derivative political proceedings, including the “weaponization” of contempt, defamation, and perjury charges, are common in political trials. This was true in the FLQ trials, including that of the Five, where the accused were frequently cited for contempt. Kirchheimer adds that while criminal condemnation is the aim of all political trials, trials for political offences (the trial of the Five being an example) most directly refect the state’s attempt to remove opponents from the political scene.3 The resort to charges for the political offence of seditious conspiracy against the Five for their advocacy and role within the movement, rather than for criminal acts, marked a shift in the prosecutorial approach to the FLQ. The earliest prosecutions of “felquistes”4 were responses to thefts, robberies, and bombings that targeted symbols of traditional anglophone dominance and colonialism, such as mailboxes and military buildings. After Pierre Vallières and Charles Gagnon emerged as vocal FLQ members in the mid-1960s, the FLQ expanded its targets to include symbols of capitalist exploitation such as factories, railways, and the Montreal Stock Exchange. Throughout the 1960s, the Quebec Crown’s approach to FLQ-related criminal activities was relatively consistent: specifc property offences and offences of violence were vigilantly prosecuted, and judges imposed heavy sentences. These sentences were intended both to deter criminal activity committed for political purposes and to condemn political justifcations for such offences.5

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With the declaration of an “apprehended insurrection” and the exercise of emergency executive powers under the War Measures Act, the government widened the repressive net against FLQ supporters and opened the door to the prosecution of political offences, ftting the frst category of political trial described by Kirchheimer. The WMA created a “state of exception” and an opportunity for the government to suppress the FLQ movement through executive orders-in-council that expanded the state’s search and seizure, arrest, and detention powers against activists and their supporters.6 The state of exception also cleared the way for wide-ranging prosecutions, including that of the leadership for seditious conspiracy. Sedition, a controversial pre-modern political offence that was retained in the Criminal Code, did not target specifc criminal actions. Other Code offences required proof of criminal acts; by contrast, sedition prohibited advocacy that threatened the state, or conspiracy through membership in organizations that threatened the state. In short, the WMA created conditions that allowed the federal and provincial governments to attempt to eradicate the FLQ by criminalizing being a member of that organization or advocating on its behalf. The choice to prosecute the Five for the offence of seditious conspiracy raised the political stakes considerably. The state was seeking to denounce the FLQ as a violent revolutionary movement outside the boundaries of legitimate politics tolerated in a democracy; yet in doing so, it risked creating the public perception that the trial was an attempt to unfairly and coercively eliminate political opponents. As this chapter shows, the trial did not fulfl the Crown’s hopes. The courtroom became a space where the Montreal Five could fully contest the legitimacy and fairness of the proceedings. The defendants exploited the courtroom as a site for counterhegemonic resistance, with qualifed success. The frst part of this chapter maps out the historical and legal context of the trial of the Montreal Five. It examines the state’s repressive response through emergency powers under the WMA and its use of a prosecutorial strategy that relied on a political offence that had not been in wide use since the 1930s. The second part of the chapter examines the trial proceedings and defence strategies and, in particular, how four of the fve FLQ defendants politicized their legal speech through self-representation before the court (Lemieux, a lawyer, self-represented, and only Larue-Langlois was represented by legal counsel, Bernard Mergler).7 Self-representation, balanced with limited legal representation, was not new for felquiste defendants, but the trial showcased the refnement of disruptive legal defences and their use of counter-hegemonic resistance in the courtroom.8

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A typology of approaches to FLQ legal defences is applied to examine and explain the defendants’ objectives. These fall under three principal headings: the disruption of court proceedings; the grieving of Quebec historical injustices; and the articulation of the political claims of the FLQ, which included questioning the legitimacy and independence of the courts. In sum, the defendants sought to exploit the political opportunity presented by the trial as a platform for the cause, one in which the courtroom served as a terrain of counter-hegemonic struggle that challenged both the political and the legal authority of the state through techniques that are discussed in detail in the second part of this chapter. As we shall see, while the defendants failed in their initial challenges – calling for the dismissal of the indictment for its unconstitutionality and the recusal of the judge for his political bias – the case was eventually dismissed during trial due to the Crown’s inability to furnish suffcient evidence of a seditious conspiracy. However, contempt proceedings stemming from politicized courtroom strategies continued against some of the Five and led to harsh prison sentences and complex appeals. part one: the legal context The War Measures Act and Seditious Conspiracy The War Measures Act delegated temporary emergency legislative powers to the federal cabinet, exercised in the form of executive orders or regulations. As noted, the 1970 October Crisis was the Act’s frst and only peacetime invocation. The legislative history and application of the WMA during the First World War is examined in the introduction and the chapters by Bohdan and McDermott in the fourth volume of Canadian State Trials. Briefy, revisions to the Act in 1927 clarifed its potential for peacetime application in situations of “apprehended insurrection” and made it clear that the WMA was more than temporary wartime legislation.9 Some emergency wartime orders continued in operation after the cessation of hostilities in 1918, and this led to 1919 amendments to both the Criminal Code (to the offence of sedition; also, what became section 98 was added to the Code) and to the Immigration Act (expansion of summary deportation powers in sections 41 and 42). As seen in the chapters in this volume by Eric Adams and Jordan Stanger-Ross, and Reg Whitaker, emergency transition legislation from 1945 similarly continued wartime orders against Japanese Canadians, and also allowed orders to be issued in response to the Gouzenko affair as the Cold War opened.

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Unlike in October 1970, however, these limited continuations of wartime orders were not the result of proclamations of the WMA for apprehended insurrection. The prosecution for the vague political offence of seditious conspiracy would not have been attempted without the support of the emergency powers exercised under section 3 of the WMA. As seen in previous volumes of the Canadian State Trials series, sedition and treason were traditional legal responses to perceived threats to the security of the state. Both offences remained in the Criminal Code, although treason had not been prosecuted in Canada since 188510 and sedition had become largely moribund until its use was revived during the First World War and its aftermath, when the wartime prohibition of unlawful associations was extended with section 98. After the repeal of section 98 in 1936, prosecution for seditious conspiracy based on connections to an association with revolutionary aims would have been diffcult and contentious unless such association was again made unlawful. This is what was done in the wake of the October Crisis. In contrast to the offence of treason, prosecutions for sedition do not require evidence of direct actions against the state. Until the nineteenth century, evidence of uttered, written, or published criticism of authority, and promotion of disaffection, suffced for conviction, and there was no need to prove actual incitement of public disturbance.11 The law was narrowed in the nineteenth century through effective legal defences and jury acquittals so that the Crown was now required to prove intent to bring down the government by unlawful means, and by the end of that century there was a possibility that sedition might disappear entirely as a criminal offence.12 Subsequent concerns about organized labour and the First World War ended that possibility, and conservative judges interpreted seditious cases with oppressive breadth during the war and immediately following.13 In Russell, for example, the charge of seditious conspiracy maintained that strikers during the Winnipeg General Strike intended to invite contempt and sow dissatisfaction with the federal government. The court convicted Russell, holding that such a conspiracy required that only two or more people join with seditious intent.14 In May 1919, a government committee reviewed sedition laws and recommended amendments to the Criminal Code’s unlawful association provisions (in section 97 and later in section 98 of the Code).15 In effect, this created a status offence that supplemented the sedition law and continued the wartime state of exception.16 Although section 98 was repealed in 1936, the classic offence of sedition remained.17 The public order regulations issued under the

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authority of the WMA in 1970 returned Canada to the repressive situation that prevailed while section 98 was in force. Unlawful association again assumed a central place in the application of Canada’s sedition law. This set the scene for the prosecution of the Montreal Five for seditious conspiracy, and for unlawful association charges against other FLQ activists, in what was arguably the most expansive resort to charges for political offences since the section 98 trials of the 1930s. Proclamation of the War Measures Act, Public Order Regulations and Legislation The invocation of the WMA in 1970 gave the cabinet emergency executive powers to pass regulations that cast a wide net of state repression over FLQ activity and advocacy, as well as over FLQ supporters, justifed by the declaration of apprehended insurrection. The resulting measures authorized special police powers and the suspension of habeas corpus; they also made association with the FLQ an offence, just as wartime regulations and section 98 had proscribed organizations deemed a security threat. In effect, the 1970 public order regulations extended criminal liability to membership in an outlawed organization. While the Montreal Five were arrested and prosecuted for the offence of seditious conspiracy under the Criminal Code, rather than for violation of the emergency regulations, the identifcation of the FLQ as an unlawful association provided an anchor for the vague offence of seditious conspiracy and made the prosecutions possible. In the period leading up to the invocation of the WMA, the City of Montreal’s Chairman of the Executive Committee, Lucien Saulnier, and Mayor Jean Drapeau wrote to Prime Minister Trudeau asking for the federal government’s help to deal with the ongoing volatility of FLQ activity. On 5 October 1970, the crisis escalated with the kidnapping of British trade commissioner James Cross. Five days later, Quebec’s labour minister Pierre Laporte was also kidnapped. On Sunday, 11 October, the Quebec cabinet’s secretary general, Julien Chouinard, phoned the Clerk of the Privy Council, Gordon Robertson, in Ottawa to explain that the maximum length of time for which suspected FLQ members could be held without charge under the Criminal Code was forty-eight hours and to point out the urgent need for a legal mechanism that would make it possible to hold them longer. That same week, Quebec premier Robert Bourassa repeatedly called Trudeau to emphasize the urgency of the province’s request for federal help.18 The day before WMA was invoked, Premier Bourassa, Justice

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Minister Jérôme Choquette, and Mayor Drapeau formally requested military aid to the civil power under section 277 of the National Defence Act,19 which would make the armed forces, under federal jurisdiction, available to assist provincial and municipal authorities.20 Early in the morning on 16 October, Premier Bourassa wrote to Prime Minister Trudeau requesting that further “emergency powers are provided as soon as possible so that more effective steps may be taken” and characterizing the events unfolding in Quebec as a “concerted effort to intimidate and overthrow the government ... through planned and systematic illegal action, including insurrection.”21 There was some disagreement within the federal cabinet when it deliberated that same morning on whether to invoke the WMA. While Joe Green, the energy, mines, and resources minister, questioned the existence of an insurrection, Jean Marchand, minister of regional economic expansion, for example, claimed that the FLQ posed a far greater danger to Quebec and indeed Canada.22 Prime Minister Trudeau agreed with those favouring intervention, and cabinet declared an apprehended insurrection under the WMA, empowering the executive to act to preserve the security, defence, peace, order, and welfare of Canada.23 The WMA states: The issue of a proclamation by Her 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.24

Later in the morning of 16 October on the foor of the House of Commons, Trudeau moved a motion under Standing Order 43 (which allowed members to move motions without notice in cases of urgency) asking Parliament to approve of the action of the cabinet in invoking the powers of the WMA and tabled the emergency orders and regulations already issued.25 Trudeau read out letters from Bourassa, Drapeau, and Saulnier, noting the earlier request for the deployment of the military, and argued that “the absence both of adequate time to take other steps or of alternative legislative authority dictated the use of the War Measures Act.”26 On 19 October, the motion was approved, 190 votes to 16, with the dissenting voices coming from the New Democrats.27 Again, the emergency measures had taken effect ahead of this approval, early on the 16th; thus, the parliamentary exercise only endorsed the proclamation, delegating legislative powers and executive orders after the fact.

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Before Trudeau’s speech in the House, on the morning of 16 October, eleven days after the kidnapping of James Cross and fve after that of Pierre Laporte, 12,000 Quebec provincial police offcers with RCMP support and around 1,000 members of the Royal 22nd Regiment of the Canadian Forces had been deployed to Montreal (special RCMP and troop deployments were also extended to Ottawa).28 Premier Bourassa stated that such measures would “[ensure] the safety of the people and public buildings.”29 Within twenty-four hours of the declaration, authorities had conducted 176 raids and arrested more than 250 people in the Montreal area.30 Besides augmenting police powers, the emergency executive orders (Public Order Regulations, 1970) introduced offences for membership in an outlawed organization. The federal government must have felt some discomfort with its use of the WMA powers, for on 2 November 1970, justice minister John Turner introduced the Public Order (Temporary Measures) Act 1970 (POA)]. Turner made clear that the temporary emergency law, Bill C-181, was intended to make possible the withdrawal of the proclamation under the WMA as soon as possible.31 The Bill included several minor variations from the earlier regulations. It was retroactive, included no provisions for judicial review, and limited habeas corpus rights, but it also explicitly limited its measures to the FLQ, which remained a criminalized association.32 After much debate, on 1 December 1970, the Act was passed by a vote of 174 to 31 in the Commons.33 The retroactive legislative approval for the regulations, backdated to 16 October 1970, upheld the arrest of the Montreal Five and of many others who had been arrested in the initial sweep authorized under the emergency measures. As detailed in the following section, the Five were charged under the Criminal Code with seditious conspiracy. This was supported by the POA’s declaration of the FLQ as an unlawful association (section 3); by broad categories of offences related to membership, communication, advocacy, promotion, fnancial contributions, and the commission of criminal offences as a means of support for the unlawful association and punishment (sections 4, 5, and 6); by characterizations of evidence (section 8); by expansion of peace offcer powers to arrest without warrant (section 9), search without warrant (section 10), and seize without warrant (section 11); and by its retroactive applicability (section 14).34 Many others who had been rounded up faced unlawful association charges directly under the Act, although most of these cases were eventually dropped. The POA thus set the stage for the Crown to prosecute FLQ members for new offences created under the Act as well as

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under the Criminal Code. It afforded the Quebec Crown wide discretion to choose either or both routes. Like section 98, sections 3 and 4 of the POA supplemented the existing Criminal Code offence of sedition by defning an unlawful association so that membership could then be construed as a seditious conspiracy. The design of the POA suggests coordination between the federal and Quebec governments; we will turn to this matter and prosecutorial strategy later.35 The criminalization of the FLQ as an unlawful association clearly demonstrated the government’s aim, which was to deter future FLQ political activities and destroy the organization.36 McGill law professor Herbert Marx derided the retroactive character of the POA as “odious and pernicious.”37 In particular, the POA extended liability for FLQ membership prior to it being declared an unlawful association in October. Martin Friedland, a professor in the Faculty of Law at the University of Toronto, wrote in the Globe and Mail that despite the lack of notice and the retroactive criminalization of FLQ membership, it was unlikely that courts would question these due process exceptions.38 The prospects of judicial review as a check on the executive emergency measures were slim; nonetheless, the constitutionality of the declaration of an apprehended insurrection was challenged in a January 1971 appeal of a lower court decision denying bail and dismissing a habeas corpus application brought forth by Charles Gagnon and Pierre Vallières. The Quebec Court of Appeal denied the appeal.39 This was not surprising, given the clear pattern of previous judicial deference to federal power over “peace, order and good government” and the executive’s wide authority over such matters in wartime and other national emergencies.40 Herbert Marx explained the legal diffculties of questioning the federal government’s justifcation of an apprehended insurrection.41 The burden of proof for establishing when an emergency had ended rested with those who challenged the law, and discharging that burden was all the more onerous because of offcial secrecy surrounding the security or defence justifcations that lay behind the authorization of war measures.42 Moreover, the Canadian courts would likely be unreceptive to such arguments, given their deeply rooted culture of judicial deference to Parliament, which had not changed in the post-war period. Referring to the 1947 JCPC appeal, Marx pointed out that the Law Lords had stated: “it is not pertinent to the judiciary to consider the wisdom or the propriety of the particular policy which is embodied in the emergency legislation.”43 In effect, the Law Lords, at that time the most senior appellate judges, had removed the possibility of a successful legal challenge to the federal government’s

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jurisdiction as well as its authority to issue emergency regulations it deemed appropriate for peace, order, and good government.44 The peacetime invocation of the WMA and the subsequent emergency measures generated growing public unease about the reach of the law. However, this had little infuence in the courtroom, and as we shall see, although other legal arguments about the emergency measures were raised by the felquistes on trial, their actions in the courtroom centred on the development of counter-hegemonic legal strategies that predated the October Crisis. Prosecutorial Strategy The time period in the seditious conspiracy indictment against the Five reached back to January 1968. In an unusual move, unlike what had been done for prior FLQ-related trials, the Crown retained a team of special prosecutors from the Montreal bar to prosecute the case.45 Also unusual were the use of preferred indictments, which reduced the Crown’s evidentiary burden in pretrial proceedings, and the setting of the arraignments and pretrial proceedings, which were held in a prison on Parthenais Street instead of at a Montreal courthouse. Earlier, on 16 October 1970, federal justice minister John Turner had stated that provincial attorneys general would decide whether to launch prosecutions related to emergency laws.46 Prosecutions for any offence added under the emergency regulations (later the POA) or under the Criminal Code were therefore at the discretion of Quebec’s justice minister. As arrests continued, Quebec justice minister Jérôme Choquette announced on 4 November that the Crown was contemplating charges of sedition and even treason against sixty-fve leading FLQ suspects in custody.47 The prosecutorial strategy had become apparent. The federal government through the WMA regulations and the POA had established the parameters of culpability for membership in an unlawful organization and other associated offences. With the suspension of habeas corpus, suspects were subject to indefnite detention, and this allowed time for the police to collect evidence using their enhanced powers and for the Crown to assess evidence and sort out the law and the applicable offences under the Criminal Code and the POA. By the beginning of December, the Quebec Crown had closely reviewed applicable POA and Criminal Code offences. Seditious conspiracy had already been settled on for prosecution of the movement’s leadership,

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along with kidnapping, murder, and other ancillary charges against members of the Chénier and Libération cells. The passage of the POA provided legal support for the seditious conspiracy charges under the Criminal Code, but the Crown struggled to fnd suffcient evidence for a prosecution. The government also faced growing political and public concerns about proceeding with charges in other cases that involved new offences created by the POA. A June 1972 report to Parliament from the new justice minister, Otto Lang, showed that sixty-two persons faced 105 charges, eighty-six under the emergency laws and nineteen under the Criminal Code.48 The Code charges included seditious conspiracy, obstruction of justice and accessory offences (for aiding or sheltering members of the Chénier and Libération cells), kidnapping charges again Libération cell members who had kidnapped James Cross, and kidnapping and murder charges against Chénier cell members responsible for Pierre Laporte’s death. Among those accused of POA offences, thirteen pleaded guilty to multiple charges, while fortynine pleaded not guilty. Prior to any stay of charges, fve were convicted.49 By August 1971, the Crown had frst stayed and then later abandoned all outstanding POA charges, leaving only Criminal Code cases. As the Quebec justice minister, Jérôme Choquette, noted in a 2 September 1971 address, “it would be diffcult to revive the [emergency order] charges because the federal government had not renewed the Public Order Act when it expired 30 April 1971.”50 part two: the seditious conspiracy proceedings The trial of the Montreal Five was characterized by relentless challenges by the accused to the legitimacy and authority of a prosecution for a political offence. The behaviour of the defendants refected ferce defance, so that the courtroom became a vivid example of ongoing confict between state power and felquiste resistance. As noted in the introduction, their counterhegemonic courtroom strategy, refned through experiences in the FLQ trials conducted before the October Crisis, set out to reveal the court as a site of repressive state power and to use the trial as a powerful political platform for their cause. It was a dynamic process that involved self-represented political interventions and more conventional legal arguments. In a June 1971 issue of Maclean’s, FLQ lawyer Robert Lemieux – still embroiled in the defences of the Chénier Cell members – was quoted: “when you get a ‘revolutionary’ on trial, the court desires nothing more than a guilty plea and to pass a swift sentence.”51 The Montreal Five,

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however, were not to be intimidated into giving the court this satisfaction, and they used each phase of the criminal proceedings to politicize and publicize their struggle. Relying on experiences drawn from previous FLQ trials, they adopted legal defences that not only challenged the state’s political and legal authority but also held it up to formal rule-of-law principles and due process claims. They made the court accountable for violations of these legal standards and legal rules even while provoking the Crown and bench into violations of those standards and rules. Again, it was a dynamic process. As legal scholar Awol Allo notes, political contestation through legal strategies is most meaningful at trial where the strategies of politically engaged defendants are dynamic, as they refexively position themselves relative to state authority and the legal rules.52 In taking a closer look at the FLQ defendants’ legal defences in the proceedings, from the arraignment through subsequent pretrial motion hearings and during the trial itself, we can discern three broad goals and the means used to achieve them. For example, FLQ self-representation – as opposed to relying on counsel – offered defendants greater leeway and an opportunity to orchestrate direct challenges to the court. As the accused’s politicized defences were adjusted to ft structured legal forms (e.g., motions, appeals, arguments, and summations), the content of their contributions was often deemed contemptuous. The following typology of the defendants’ courtroom strategies serves as a summary of their objectives and approaches. In an effort to make the court appear repressive, for example, defendants disrupted, baited, and provoked the courts to disproportionately react. Reliance on self-representation, disruptive and recalcitrant behaviour, manipulation of procedural motions, and personal attacks – in this instance, on the bench – were common approaches used to advance such an objective. Next, for the FLQ defendants, the trial was also an arena to grieve historical injustices. It was routine for references to the 1759 Conquest of Quebec and the 1837–8 patriotes’ rebellions to shape the defendants’ narratives in the courtroom. Finally, defendants’ claims about law and justice anchored most proceedings and, in some instances, constructed them as victims. The legitimacy of the court was called into question (i.e., the court’s jurisdiction was rejected as a foreign imposition), and at the same time, other arguments maintained the importance of due process principles and formal rule-of-law claims, including claims concerning the unfairness of specifc laws or their application.53 In the period between arraignment (5 November 1970) and the beginning of the trial (1 February 1971), the self-represented defendants continued to build their case as they contested their detention. The Five had

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been imprisoned since 16 October 1970 and had applied for bail on multiple occasions, only to be denied each time (on one occasion a denial was appealed).54 In a planned and coherent politicized approach to their legal self-representation, the Montreal Five continued to test the vague boundaries of the seditious conspiracy indictment beyond the arraignment. We focus here on four phases of the seditious conspiracy proceedings: 1. The November arraignment over which Justice Deslauriers presided. 2. The pretrial motion hearings held on 8 January 1971 by Justice Ouimet (who also presided over the seditious conspiracy trial) and on 14 January by Justice Bergeron (who presided over and dismissed a habeas corpus application). The application was leveraged on appeal to expound questions relative to the constitutionality of the declared apprehended insurrection and use of emergency powers: 3. The seditious conspiracy trial, which began on 1 February. 4. The dismissal of the indictment. The Arraignment of the Montreal Five On 5 November 1970, the Montreal Five were arraigned on the charge of seditious conspiracy. The Crown, under the aegis of the new emergency powers (reinforced by the subsequent passage of the POA) and with a preferred indictment for seditious conspiracy, proceeded to the arraignment with confdence but little in the way of evidence. As the arraignment hearing began, Chartrand and Vallières interrupted, moving to request that Justice Ouimet recuse himself for reasons of bias and partiality. Next, the defendants challenged the logic of the indictment and its temporal delimitation. Gagnon, for example, attempted to fle a motion to dismiss the indictment due to its vague defnition of the seditious conspiracy. Finally, Robert Lemieux argued that the declaration of an apprehended insurrection was ultra vires because there had been no apprehended insurrection. In making these arguments, the defendants deliberately moved between political and legal claims as they attempted to refute the charges against them that had just been read. The presiding judge, Justice Deslauriers, listened to the accused express outrage but ignored their concerns as such argumentation did not belong at an arraignment hearing. When Robert Burns, who later provided legal representation in other motionrelated hearings, was asked whether his clients would plead guilty or not guilty – the purpose of the November arraignment – he indicated that his clients declined to recognize the jurisdiction of the court. Vallières added:

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“I don’t see why I’d plead guilty to a joke.”55 An unfazed Justice Deslauriers instructed the clerk to record “not guilty.”56 Pierre Vallières then extended the arraignment hearing by questioning the time frame of the seditious conspiracy indictment, which stated that the Five had unlawfully taken part in a seditious conspiracy aimed at a change of government in Canada, primarily in the Province of Quebec. The indictment further stated that the Five had advocated the use of force without the authority of laws and that this episode of the seditious conspiracy occurred between 1 January 1968 and 16 October 1970, a period of more than thirty-four months.57 Vallières asked the court: ... I wonder why January ‘68 like that? It could have been January ’67, January ’66 or even January ’60, perhaps we could have included our father De Gaulles [sic] in the conspiracy as well ... [we] could have gone back to 1838, not January ’68, it’s completely silly and absolutely absurd.58

Vallières’s reference to going “back to 1838” was not only a tacit criticism of the retroactive character of the POA but also an appeal to the experience of the 1837–8 rebellions in Quebec and the repressive summary trials by courts martial of the patriote rebels in its aftermath. Meanwhile, Chartrand, who was attempting to build on Vallières’s argument, relied on his history of political activism to challenge the extended time frame of the seditious conspiracy charges. He stated in court: “This accusation is ridiculous. In my case, I have been [committing] ‘sedition’ since 1938. Day and night, I have always fought openly and systematically against the red bandits and the blue bandits.”59 Both defendants pointed to histories of injustices they considered relevant to undermine the timeline of the seditious conspiracy accusation.60 However, their line of argument was rejected in court, and the tactic of comparing the felquistes to the patriotes of 1837–8 was not necessarily acceptable to all FLQ supporters – or to many Quebec intellectuals.61 Pretrial Motions and the Provocation of Justice Ouimet Pretrial hearings began on 8 January 1971 and were held in the same building where the defendants were imprisoned. The Government of Quebec’s continued refusal to use a regular courtroom signalled the stark power imbalance between the state and the defendants. Again, the felquiste defendants moved back and forth between the politicization of the legal proceedings and assertions about their right to a fair trial. As

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Warren has discussed, this logic revealed the internal tensions within the FLQ defendants’ legal defences. At times, felquiste defendants wanted to reject the legal system because it upheld an oppressive socio-economic order; but at other times, they resorted to the legal system as a forum for their political message and as a means to exploit the rights afforded to defendants to frustrate and discredit the prosecution.62 In this trial (and others), FLQ defendants frequently mingled claims of judicial bias and hypocrisy with arguments that the courts were a colonial imposition on Quebec, relying as they did so on structured legal processes of motions and appeals. As noted, the Crown, represented by fve special prosecutors – Jacques Ducros, Gaby Lapointe, Jean-Guy Boilard, Fred Kaufman, and Yves Fortier – proceeded by way of preferred indictment. This strengthened the hand of the Crown, in that it permitteed prosecutors to withhold evidence until trial, by limiting disclosures to the defence usually required in preliminary proceedings.63 Only later, in dismissing the indictment, did Justice Ouimet appear to agree that this special procedure for “complex cases” had compromised the proceedings and was potentially unfair to the accused, when he stated: “In the present proceedings, it would be impossible for the court, even with a feverish effort of imagination, to attempt to remedy the defect in form by ordering that particulars be provided. Nor would an adjournment be of any use.”64 Proceeding by way of preferred indictment had not only impaired the Crown’s case but also raised signifcant challenges for the defendants’ orchestration of responses to the charge. During the pretrial hearing of motions brought forward by the accused, before Justice Ouimet on 8 January 1971, Chartrand was held in contempt fve times because of exchanges with the bench. The likely tone of the trial proceedings emerged at this hearing, and so too did the judge’s penchant for the use of the summary power of contempt to censure defendant speech deemed unruly. The oft-cited exchange between Justice Ouimet and Chartrand begins just before the latter was frst censured for contempt of court. Chartrand opted not to acquiesce to the court’s authority and responded: CHARTRAND: [ ... ] I don’t want the jury to be bothered by the judge who is “prejudiced,”. biased and fanatic. That’s clear. Then the minimum of decency for a judge, when someone is morally convinced that there will be no impartiality, is to recuse himself, what you have not done, while it has been asked of you three times so far.

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THE COURT: Well, then, the judge you’re talking about will now hold you in contempt. CHARTRAND: Ah! You are funny, you. You are a real comic. You are smaller and lower than I thought. Do you recuse yourself or not? THE COURT: I do not recuse myself and find you guilty of a second contempt of court. CHARTRAND: [Speaking to the police] He did not tell me to get out yet, don’t get upset, you are not the judge here. Now it is the police who run the courthouse. [Returning to Judge Ouimet] Come see the holes where they are holding us. You have visited several prisons; you brag about it. Come see the hole behind your beautiful yard, in your courthouse, the hole where we are: five by seven, no light, nothing. THE COURT: I found you guilty of contempt. CHARTRAND: Yes, that’s easy, that’s easy, that’s the easiest thing when you’re behind the police. We know that, we know. So, are you recusing yourself, or aren’t you? THE COURT: I will of course not recuse myself. CHARTRAND: You’ll see when it’s not gonna be you on the bench for my hearing, buddy. I guarantee it. THE COURT: Third count of contempt. CHARTRAND: I guarantee it. Gimme another one. Come on, fourth count of contempt, fifth count of contempt. THE COURT: I am sentencing you ... CHARTRAND: Judge Ouimet is a fanatic, he’s biased. THE COURT: I’m sentencing you to one year in jail. CHARTRAND: One more year my friend, if it makes you happy. THE COURT: Get [him] out of here. CHARTRAND: Hobo! THE COURT: Well, it’s been better than I thought.65

Chartrand shifted back and forth between addressing the court and the police but continued his personal attacks, asking whether the judge had yet recused himself. The judge responded that he had not. When ordered removed, Chartrand chided the police as he was escorted out. Yet in engaging with Chartrand, Justice Ouimet had opened an opportunity for Chartrand to upbraid him by asking for another contempt of court conviction and another. The last comment in the quoted transcript suggests that Justice Ouimet had expected the hearing to turn out more problematically than it did. The philosophical leaders

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of the FLQ movement had prepared courtroom strategies not only against the accusations but also against the state that had preferred the charges. In a fnal effort to be released before trial, the four men (Larue-Langlois had been granted bail on 31 December 1970) applied for a writ of habeas corpus, which had been suspended when the public order regulations were issued under the WMA and remained suspended under the POA. On 14 January 1971, before Justice Bergeron, the four argued that detention under the public order regulations was unconstitutional and therefore illegal. The application was denied two weeks later, just days before the trial was scheduled to begin. While the courts were responding to the defendants’ administrative and procedural requests, the Crown had authorized a raid on the head offces of the Confédération des syndicats nationaux (CSN). The CSN, where Chartrand was employed, had been targeted in a further effort to collect incriminating evidence against him and his fellow defendants.66 The Trial and the Move to Closed Sessions Finally, on Monday, 1 February, the trial began with arguments related to two motions – one to have the judge recuse himself, and a second to declare a mistrial. While the latter was promptly dismissed as out of order as the proceedings had only just begun, the former spurred a lengthy discussion. The motions had been fled to disrupt the proceedings and also to put certain arguments on record. All fve defendants spoke directly to a variety of audience members and ignored the court and (for the most part) Crown counsel as they attempted to provoke a disproportionate response from the bench to further support their claim that the proceeding was political and unfair. Later in the week (see below), a response from the bench arrived in the form of a move to closed sessions. Chartrand, who turned to legal principles and referred to the 1960 Canadian Bill of Rights, began by advancing the argument that the bias of the presiding judge undermined any expectation of a fair hearing. But, Chartrand, who had been cited for contempt of court just weeks before for his aggressive argument at his bail hearing, then changed his tactics. As he began speaking, Justice Ouimet interrupted; Chartrand then play-acted, feigning fear of further contempt of court sanctions.67 This play-acting continued and included moments of crosstalk with the other defendants, police offcers, and the audience. The defendants would use this tactic

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throughout the trial. Vallières then argued to support his co-accused. It was late in the afternoon on 1 February, and Vallières continued to address the alleged political bias of Justice Ouimet. He directed attention to how Justice Ouimet’s political past established bias and prejudiced the current proceedings against the defendants. Vallières cited previous instances in which Ouimet had sat in judgment of similar motions, censured FLQ defendants, and rejected bail applications. Unexpectedly for Justice Ouimet, Vallières announced that he wanted Justice Ouimet to testify in the proceedings on the motion for his recusal. Justice Ouimet, on the defensive, stated: I’m not ashamed of what I said. For 40 years of my life, I tried to explain to the English-speaking part of the country – I represented the French-speaking part [ ... ] for 15 years I was in close relationship with the English-speaking part, at the time when, especially in Ontario, we had endless diffculties with language and even the religion, I still tried with my humble means to push for harmony in the country. I thought that even as a judge, I had the right to express some opinions on this.68

Finally, and to support the recusal request, Charles Gagnon and Robert Lemieux lectured Justice Ouimet on his perceived partiality, arguing that in times of crisis it is of particular importance for the judiciary to remain impartial.69 On Thursday, 4 February, Justice Ouimet returned with a decision to deny the motion. He concluded that the defendants had nothing to fear.70 The same day, 4 February, Charles Gagnon moved to dismiss the seditious conspiracy indictment. Gagnon frst pretended to act as a Crown prosecutor, using the motion as an opportunity to inform the jury of the implications of a vague charge like seditious conspiracy and to mock the criminal indictment: “We [the Crown] have prepared a large bag where we will be able to put anything.”71 While theatrical, Gagnon – who next argued from a position of supposed regard for the rule of law – denounced the Crown for abrogating his right to a fair and full defence. The crux of Gagnon’s argument was straightforward: to defend yourself, you must know the specifcs of the accusation. Due to the lack of probative evidence presented by the Crown in court and the vagueness of the charge, the indictment must be dismissed. Next, it was Vallières’s turn to speak to support the motion to dismiss the indictment. Although a well-reasoned understanding of the law of seditious conspiracy underlay his comments, his chief goal was to embarrass

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and goad Justice Ouimet. Engaging in political theatre of his own design, Vallières began by echoing the comments of Gagnon: VALLIÈRES: So, what we ask is the rejection of the indictment because we want to be accused of something, or we are not interested to stand a trial, a “show,” a circus, to allow the Queen ... THE COURT: Be sure that there will be no circus in front of me.72

Vallières, who argued that the bench was complicit with the government in facilitating the political trial, stated that he was not interested in participating in one. In expressing his refusal to participate, Vallières attempted to undermine the legitimacy of the trial through absurdism and goading the bench: VALLIÈRES: To allow the Queen to pretend that a conspiracy existed, and to help Trudeau, Bourassa, Choquette and Drapeau to justify military intervention on October 15, and the raids on October 16, to justify them afterwards, trying to make the public believe that there was a conspiracy to overturn the government, while this conspiracy never existed. So, if you want to preside over a witch-hunt, go ahead. If you don’t, then reject the accusation now, because otherwise, it’s a witch-hunt that you are running, and nothing else. [Laughter in the Courtroom] THE COURT: Please. VALLIÈRES: It is much vaguer than the charges against Angela Davis ... THE COURT: That’s not the point. VALLIÈRES: We try to specify the charges ... [Interrupted] THE COURT: That’s not the point. VALLIÈRES: But here we “elasticize” them. THE COURT: That’s not the point, all these ... [Interrupted]73

Vallières, who had been held in contempt during the mid-January bail request hearing, remained resolute in condemning a proceeding that would not detail the charges against him and his colleagues. He also used the trial to further challenge Canadian and Quebec authorities for their use of wartime powers in peacetime. As the jokes and interruptions continued, the audience and Vallières had created a “feedback loop” that amplifed reactions in the courtroom. Chartrand also took notice of Justice Ouimet’s second threat:

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VALLIÈRES: Trudeau received congratulations from the Colonel in Chief in Greece for sending the army in. [Laughter in the Courtroom] THE COURT: One moment. I warn for the second time the room that if there are applause, laughter or demonstrations, I will do a closed-door hearing. VALLIÈRES: Of course, the witch-hunt ... [Interrupted] [ ... ] CHARTRAND: But threatening everyone to do a closed hearing because some people are applauding, when we don’t even know if they are the police or not, that’s a lot. [Laughter in the Courtroom] [ ... ] THE COURT: Mr Vallières, I’m going to have to ask you to stop your speech – you exaggerate. You are in front of a court of justice, and you’re going to stick to what the president of the court tells you. VALLIÈRES: I am in front of a political court. THE COURT: This is a justice court. VALLIÈRES: Political. THE COURT: Which is not political. VALLIÈRES: Political. THE COURT: Well, you are going to take back those words or I must find you guilty, you know for what. [Laughter in the Courtroom] VALLIÈRES: I am in front of a political court, Mr President. THE COURT: That’s fine, I will note what you are saying ... [Interrupted] VALLIÈRES: Take notes. THE COURT: I will do what’s necessary.74

Vallières and his co-defendants had suffciently disturbed the judge that on the afternoon of Friday, 5 February, Justice Ouimet carried through with his threat and moved the trial into closed session. For Ouimet, the move to a closed session was an attempt to enhance the bench’s authority and maintain the decorum of the proceedings. As well, a closed session trial deprived the FLQ defendants of what they needed most, a public audience. An angered Chartrand continued to question Justice Ouimet, asking why the audience (the public) was being deprived of a public trial. As his narrative switched again to emphasize openness and fairness, he pleaded with the judge to instead charge the defendants with contempt of court or adjourn the proceedings.75 The public audience was necessary to make

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the defendants’ legal strategy effective. While the move to closed session showed the power of the bench to control the proceedings and counteract the antics of recalcitrant defendants, it also revealed to the defendants, the Crown, and the public how formal proceedings could unravel. Lemieux’s Argument and the Dismissal of the Indictment Despite the lively exchanges between the judiciary and the defendants, there was a fundamental problem at the core of the Crown’s case: “if words can overthrow a government, the least the state can do is to quote them and put them into context.”76 Unable to provide these important details and introduce evidence of conspiracy to overthrow government, the Crown’s seditious conspiracy case collapsed, despite the fact that the FLQ had been outlawed. On Monday, 8 February 1971, Justice Ouimet readmitted the public. Robert Lemieux shifted to challenging the indictment and the constitutionality of the temporary emergency law. Lemieux repeated the key legal argument and elaborated on questions around the alleged conspiracy. Since neither the government nor the Crown could provide evidence of an apprehended insurrection, the proclamation of the War Measures Act and the public orders issued under it when the prosecution was initiated were unconstitutional. The arrests and confnement and the criminalization of the FLQ under its authority were illegal. And in the particular case at hand, there was no evidence that the accused had taken part in any alleged seditious conspiracy during the nearly two-year period identifed in the indictment. As noted earlier, and later commented on by Herbert Marx, the constitutional question underlying the seditious conspiracy proceedings – that the proclamation of an apprehended insurrection and the defendants’ consequent detention under the emergency measures were unconstitutional – had frst been raised by Lemieux in court on behalf of Vallières and Gagnon at the Court of Queen’s Bench in an application for a writ of habeas corpus. Justice Bergeron had dismissed the application, and the ruling was appealed. Lemieux made this argument at the seditious conspiracy trial; he argued the same position in the appeal of the habeas corpus dismissal case that took place on 21 April 1971. Justice Brossard of the Quebec Court of Appeal affrmed the judgment of the court of frst instance, namely that the proclamation of an apprehended insurrection and the retroactivity of the emergency regulations were all constitutional. The decision, however, acknowledged the tension with the rule of law in this instance (the retroactive application of law that allowed a person to

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Robert Lemieux, FLQ lawyer and one of the Montreal Five charged with seditious conspiracy, in court. Bibliothèque et Archives nationales du Québec, fonds Antoine Desilets (Robert Lemieux, avocat image 16)

be prosecuted for being a member of an unlawful association when at the time they were members the association had not been declared unlawful).77 Despite these comments, Justice Brossard was not satisfed that the statute undermined any presumed right of the felquiste defendants. The judge concluded that the detention of the appellants was lawful, and the appeal was dismissed.78 On Tuesday, 9 February, Lemieux completed his submissions and Justice Ouimet indicated that the hearing would be adjourned until Friday so that he could rule on the motions before the court. That Friday, 12 February, to the surprise of everyone involved, Justice Ouimet ruled in favour of Gagnon’s motion and dismissed the seditious conspiracy case. His written judgment stated that due to the lack of a preliminary hearing (because of the preferred indictment) and lack of evidence in the information, it was unclear why the Crown had brought specifc charges of seditious

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conspiracy against the defendants.79 This related not only to the matter of sedition but also to the conspiracy. He relied in part on Harrison and Burdeyney, a 1964 British Columbia Supreme Court case in which a lack of suffcient detail of an alleged conspiracy to commit arson had resulted in the quashing of the indictment.80 Justice Ouimet ruled that the Crown had failed to meet the requisite threshold of evidence for a conspiracy complaint as outlined in section 492(3) of the Criminal Code.81 In his view, the general charge of conspiracy over multiple years made it next to impossible to pin down moments of seditious intent and especially the instances in which FLQ members “advocated” such an intention. Nor could it be said, he wrote, that the charge contained suffcient evidence for the circumstances of the alleged offence to reasonably inform the accused of the specifc acts or omissions that formed the basis of the charges against them.82 The Crown having failed to meet this basic evidentiary burden, Justice Ouimet had little alternative but to rule in favour of the defendants and dismiss the seditious conspiracy indictment. Justice Ouimet avoided the question of the constitutionality of the War Measures Act, which was then in the hands of the Quebec Court of Appeal.83 conclusion In the wake of October 1970, the Government of Quebec and its Crown prosecutors had faced immense political pressure to prosecute those responsible for violent offences against public fgures, but in retrospect, it seems clear that the net was cast too widely.84 On 10 March 1971, after Justice Ouimet dismissed the seditious conspiracy charges but before the decision in the constitutional appeal was handed down, Vallières, Gagnon, and Larue-Langlois were again charged with unlawful FLQ membership and seditious conspiracy. In a response to the new charges, Gagnon argued: “If the Crown purports to prove the absurd plan by which [the three of us] agreed to overthrow the government by force ... when [capitals] are swarming with well-armed soldiers ... I will immediately submit a defence of insanity.”85 As the case against Gagnon and Larue-Langlois proceeded, Vallières’s second trial was split from the others and postponed when medical evidence stating he was physically unft to stand trial was accepted by the court.86 Meanwhile, Gagnon and Larue-Langlois were acquitted on 15 June of the new seditious conspiracy charge and unlawful association offences under section 4 of the POA. The precedent of the acquittals resulted in the withdrawal of the same WMA-related charges against thirty-four persons. By mid-August, the

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felquistes who still faced charges, such as the unlawful association offences under the POA, but for whom no trial date had been set, had their charges stayed by the Crown. The nolle prosequi stay was seen as an act of government clemency, though technically the Crown retained the option of proceeding again on the charges.87 However, the order did in fact bring an end the charges related to the offences under the POA, which had expired at the end of April 1971. Many FLQ proceedings remained, most notably the trials of the four Chénier Cell members involved in the kidnapping and murder of Pierre Laporte and their many appeals, which continued through to the summer of 1974. Despite the failure of the seditious conspiracy prosecution, three of the fve continued to face other proceedings, and these resulted in some convictions and harsh sentences. Chartrand’s appeal of his contempt of court conviction was dismissed by the Quebec Court of Appeal in December 1971, but his one-year prison sentence was reduced to a fne of $1,000.88 Vallières was embroiled for another two years in legal proceedings related to an appeal of his manslaughter conviction for the 5 May 1966 LaGrenade shoe factory bombing. The case dated back to 1967, and after a conviction, an appeal and retrial, and a second conviction, his second appeal was allowed in 1973, and an acquittal was entered. His contempt of court conviction and sentence was also quashed on appeal.89 Robert Lemieux had played a leading role as legal counsel for the FLQ before the October Crisis and had faced numerous criminal contempt citations for his advocacy dating back to his earliest representation of FLQ defendants. Throughout 1971 and 1972, Lemieux spent his time defending himself, serving short custodial sentences for contempt convictions, and providing legal representation for many arrested FLQ members and sympathizers.90 On 17 July 1973, more than two years after his trial for seditious conspiracy, Lemieux was sentenced to thirty months in prison for multiple accumulated counts of contempt dating back to 1968. The threat of imprisonment on charges not previously punished was carried through after he advised an FLQ witness, Chénier Cell member Francis Simard, not to testify in the trial of his client, Jacques Rose (who was convicted of being an accessory after the fact in a trial related to Laporte’s death).91 Lemieux also faced professional discipline for his involvement with the FLQ.92 On 13 December 1973, the Barreau du Québec’s disciplinary committee suspended him from legal practice for six months for comments made during a May 1972 press conference that he held immediately following his release after serving an eight-day contempt sentence.93 Before

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this time, the barreau had supported Lemieux on issues of solicitor / client privilege and when a judge failed to provide Lemieux with a “period of refection” before charging and convicting him of contempt.94 Journalists suggested that the barreau’s withdrawal of support for Lemieux was due to complaints of professional disciplinary inaction.95 A brief academic commentary critical of the barreau highlighted that it “took no steps to secure the release of attorney Robert Lemieux or to enable him to prepare his client’s defence.”96 The federal government’s invocation of the WMA during peacetime had set the stage for the seditious conspiracy trial of the Montreal Five, and although there are many complexities around the federal and provincial roles, there was coordination and even possibly orchestration of repressive responses between the two levels of government. The request from the Government of Quebec for assistance during the October Crisis had been the pretext for the declaration of emergency powers that led to widened search, arrest, and detention powers, which were then used against supporters of the FLQ. While decisions about subsequent criminal proceedings were determined by the provincial government, the declaration of apprehended insurrection had created a state of exception that emboldened the Quebec Crown to prosecute the FLQ leadership for a controversial political offence, a remnant of the late eighteenth- and early nineteenth-century “age of revolutions.” The controversy around the expansion of police powers, suspension of habeas corpus, retroactive liability, and the prosecution of newly introduced public order offences under the WMA grew quickly. On 12 March 1971, the Quebec Department of Justice announced compensation for people who had been unjustly treated under the WMA.97 In July, Louis Marceau, Quebec’s ombudsperson, reported to the National Assembly that he found 103 of the 238 complainants had been wrongly detained and were eligible for fnancial remedies.98 The seditious conspiracy trial of the Montreal Five was a classic state trial for a political offence, distinct from the other FLQ political trials, which entailed ordinary criminal offences committed for political purposes. The Crown relied on fve special prosecutors and charged the Five as a group, despite the defendants’ petition to be charged separately. However, the prosecution struggled to produce evidence of participation in a conspiracy, despite the fexible nature of the offence of sedition, which did not require proof of overt criminal acts. The felquiste defendants saturated the court with motions, applications for bail, and requests for recusals and dismissals as they attempted to exploit procedural elements

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of the law to stall, challenge, and open spaces of contestation to “indict the state” and show the biased administration of justice. Their concerted efforts aimed to exploit the political platform provided by their trial and undermine the legitimacy of political authority and the courts through nuanced and politicized use of legal arguments and procedures. In June 1971, Erna Paris, then a Maclean’s journalist, wrote that:“when Lemieux goes to court, Québec goes on trial.”99 Lemieux may have been one of the most effective disrupters among the felquiste defendants, but he was only one of many who resisted by making full use of the legal tools at their disposal. The trial of the Montreal Five provided an occasion for the defendants to deploy successfully the FLQ’s counter-hegemonic legal strategies, developed and refned through many trials of members dating back to 1963. NOTES 1 Lemieux: “On est accusés d’un genre de crime, on n’est pas accusés d’un crime précis,” in Michel Chartrand et al. Le Procès des Cinq, preface by Louis Hamelin (Montréal: Lux Éditeur, 2010), 120. 2 While emergency powers under the WMA were widely used in the First and Second World Wars, and some wartime measures continued into the immediate post-war transition, the resort to the Act in 1970 to authorize emergency powers in peacetime was unprecedented. For peacetime applications of the WMA and emergency powers, see the chapters in the Canadian State Trials series cited below, as well as Dominique Clément, “The Royal Commission on Espionage and the Spy Trials of 1946–49: A Case Study in Parliamentary Supremacy,” Journal of the Canadian Historical Association 11, no. 1 (2000): 151–72; Patricia Peppin, “Emergency Legislation and Rights in Canada: The War Measures Act and Civil Liberties,” Queen’s Law Journal 18 (1993): 156–89. 3 Otto Kirchheimer, Political Justice: The Use of Legal Procedure for Political Ends (Princeton: Princeton University Press, 1961), 46. 4 A popular and interchangeable colloquial term for FLQ members and sympathizers. 5 In 1969, after the bombing of the Montreal Stock Exchange, Pierre-Paul Geoffroy, who had planted a series of bombs, was convicted and sentenced to an astonishing 124 life sentences. Far from deterring the felquistes, the sentence galvanized support among sympathizers and emboldened the developing FLQ cells.

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6 For description and application of the concept of the state of exception as theorized by Giorgio Agamben, see Dennis G. Molinaro, “Section 98: The Trial of Rex v. Buck et al. and the ‘State of Exception’ in Canada, 1919–36,” in CST4, 324–63; se also David Dyzenhaus, “The Permanence of the Temporary: Can Emergency Power be Normalized?,” in The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill ed. R.J. Daniels, Patrick Macklem, and Kent Roach (Toronto: University of Toronto Press, 2001). 7 While little has been written about Mergler (1915–1975), his career spanned thirty-eight years and he was considered one of Canada’s pre-eminent postwar civil rights lawyers. In the 1950s, Mergler was North Korea’s diplomatic representative in Ottawa. Throughout the 1960s he liaised with the Cuban embassy, and in 1970 he gained signifcant notoriety when he offered himself as a hostage in place of James Cross and ended up in Cuba as part of an exchange. See Simon Richard, “Un avocat progressiste et defenseur des opprimes: Bernard Mergler” (unpublished paper at Université du Québec à Montréal, 1988), 8. UQAM Archive, Bernard Mergler Files (25P – 650/13), https://archives.uqam.ca/fonds-archives/archives-privees/11-gestion -archives-historiques/46-fonds-archives.html?varcote=25P. 8 Jens Meierhenich and Devin O. Pendas, “‘The Justice of My Cause Is Clear, but There’s Politics to Fear’: Political Trials in Theory and History,” in Political Trials in Theory and History, ed. Meierhenich and Pendas (Cambridge: Cambridge University Press, 2016), 49–60. 9 War Measures Act, 1914 (2nd Sess.), c.2, s.4, R.S. 1927, http://historyofrights .ca/wp-content/uploads/statutes/CN_War_Measures.pdf. See also Barry Wright, Eric Tucker, and Susan Binnie, “Introduction: War Measures and the Repression of Radicalism,” in CST4, 10–13; Bohdan S. Kordan, “They Will Be Dangerous: Security and the Control of Enemy Aliens, 1914,” in CST4, 42–70; and Peter McDermott, “Enemy Aliens and the First World War: Legal and Constitutional Issues,” in CST4, 71–96. 10 Louis Riel’s conviction and execution for treason in 1885 was not the last of the many Canadian cases of treason examined in CST Volumes I to III. As noted in the Forcese chapter in this volume, a Canadian citizen of Japanese descent, Kanao Inouye, was charged with treason, tried, and executed by a military tribunal in Hong Kong in 1947 for the deaths of Canadian prisoners of war in Hong Kong. However, he was not prosecuted in Canada, nor was he tried in a regular civilian court. 11 See Barry Wright and Desmond H. Brown, “Codifcation, Public Order, and the Security Provisions of the Canadian Criminal Code, 1892,” in CST3, 538. 12 See Wright and Brown, “Codifcation.” See also Barbara J. Falk, Making Sense of Political Trials: Causes and Categories (Toronto: Munk Centre for International Studies, 2008), 28.

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13 See R. Kramer and T. Mitchell, “Daniel de Leon Drew Up the Diagram: The Winnipeg Seditious Conspiracy Trials of 1919,” in CST4, 217–60; and J. Swainger, “Erroneous and Detestable: Sedition Law and the Great War in Western Canada,” in CST4, 97–131. While some strikes were protected under section 590 of the Criminal Code (a trade union exception), the Winnipeg General Strike was characterized as a “state of siege” that had in its nature exceeded a legitimate labour action. See also 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), 239; Barry Cahill, “Howe (1835), Dixon (1920), and McLachlan (1923): Comparative Perspectives on the Legal History of Sedition,” University of New Brunswick Law Journal 45 (1996): 303; and Wes Wilson, “The Political Use of Criminal Conspiracy,” University of Toronto Faculty Law Review 42 (1984): 63–4. 14 R. v. Russell, et al. (1919), 29 M.R. 511 at 511. See also Kramer and Mitchell, “Daniel de Leon.” 15 The continuation of similar wartime measures that were turned into Criminal Code amendments was supported by order-in-council 2384 under emergency transition powers. See also Wright and Brown, “Codifcation,” 562–3n132. Effectively, amendments to the Code regarding sedition normalized wartime emergency powers under the WMA, which criminalized organizations that advocated political and economic change by force. 16 See Molinaro, “Section 98,” 324; and Molinaro, An Exceptional Law: Section 98 and the Emergency State, 1919–1936 (Toronto: University of Toronto Press, 2017). 17 In 1951 the Supreme Court of Canada took a step toward some clarifcation of the still vague defnition of sedition when Justice Kellock noted that seditious intentions must be founded upon evidence on incitement to violence, public disorder, or unlawful conduct directly against state (R. v. Boucher (1951) S.C.R 265 at 301). See also Peter MacKinnon, “Conspiracy and Sedition as Canadian Political Crimes,” McGill Law Journal 23 (1977): 623 and 635n58; and Molinaro, n16, for an in-depth look at the sweeping breadth and application of section 98. 18 Gordon Robertson, Memoirs of a Very Civil Servant: Mackenzie King to Pierre Trudeau (Toronto: University of Toronto Press, 2000), 262–3; Dominique Clément, “The October Crisis of 1970: Human Rights Abuses under the War Measures Act,” Journal of Canadian Studies 42, no. 2 (2008): 163. 19 R.S.C., 1985, c. N-5, s. 277. 20 For a short history of the use of the military in aid of the civil power in Canada, see John Gellner, Bayonets in the Streets: Urban Guerilla at Home and Abroad (Toronto: Collier-Macmillan Canada, 1974), 131–43.

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21 The correspondences between Drapeau, Bourassa, Chief of Police Saint-Aubin, and Trudeau can be found in Tetley’s appendices. Tetley, The October Crisis, 1970, Appendix K: “Letters of Jean Drapeau and Lucien Saulnier and Marcel SaintAubin of 15 October 1970 and letter of Robert Bourassa of 16 October 1970,” 6–10, https://historyofrights.ca/wp-content/uploads/documents/FLQ_appendixk. pdf. Tetley writes in Appendix K that these letters were also published in the 1981 Duchaîne Report. Jean-François Duchaîne, Rapport sur les événements d’octobre 1970, 2e éd. (Québec: Gouvernement du Québec, Ministère de justice, 1981), 110–15. For more on the background of and related debate over Bourassa’s request for federal assistance in October 1970, see Robert Demers, who worked closely with Bourassa and dispels the myth that Bourassa panicked in his response and decision-making relative the FLQ Crisis. Robert Demers, “Calme et Patient,” in Robert Bourassa: un batisseaur tranquille, ed. Guy Lachapelle, Robert Comeau, and Valéry Colas (Saint-Nichols: Les Presses de l’Université Laval, 2003), 303–4. See also Tetley, The October Crisis, 1970, Appendix D: The October Crisis per se, 9–10, https://historyofrights.ca/wp-content/uploads /documents/FLQ_appendixd. pdf. During the week leading up to 16 October, government negotiations with Robert Lemieux (the FLQ representative) to release Cross and Laporte broke down, and Montreal student protests and local disruptions in support of the FLQ intensifed. See D’Arcy Jenish, The Making of the October Crisis: Canada’s Long Nightmare of Terrorism at the Hands of the FLQ (Toronto: Doubleday Canada, 2018), 248–54; and Robertson, Memoirs of a Very Civil Servant, 262–3. 22 William Tetley, The October Crisis: An Insider’s View (Montreal and Kingston: McGill-Queen’s University Press, 2010), 28. 23 The Department of Justice advised Justice Minister John Turner that the War Measures Act was the only remaining legislative option, and cabinet was informed of this and of the urgent formal provincial requests for help. For examination of these matters and the minutes and decision-making from the Cabinet Committee on Security about the use of emergency powers, see Paul Litt, Elusive Destiny: The Political Vocation of John Napier Turner (Vancouver: UBC Press, 2011), 127. 24 R.S.C., 1970, c. W-2, s. 2. 25 Prime Minister Trudeau spoke in the House of Commons on the morning of 16 October 1970, just hours after the invoking of the WMA. He presented this motion to the House: “That the House approves the action of the government in invoking the powers of the War Measures Act to meet the state of apprehended insurrection in the province of Quebec as communicated to the Prime Minister by the government of Quebec and the civic authorities of

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Montréal and further approves the orders and regulation tabled today by the Prime Minister on the clear understanding that the proclamation invoking the powers as contained in the regulation will be revoked on or before April 30, 1971, unless a resolution authorizing their extension beyond the date specifed has been approved by the House.” House of Commons, Debates, 28th Parliament, 3rd Sess., vol. 1, 16 October 1970, 193, https://parl .canadiana.ca/view/oop.debates_HOC2803_01/195?r=0&s=1. House of Commons, Debates, 28th Parliament, 3rd Sess., vol. 1, 16 October 1970, 194, http://parl.canadiana.ca/view/oop.debates_HOC2803_01/196?r=0&s=1. On 16 October 1970, federal NDP leader Tommy Douglas stated: “The government, I submit, is using a sledgehammer to crack a peanut.” House of Commons, Debates, 28th Parliament, 3rd Sess., vol. 1, 16 October 1970, 198–336, http://parl.canadiana.ca/view/oop.debates_HOC2803_01/200 ?r=0&s=1. Later, speaking in debate in November about the introduction of the Public Order (Temporary Measures) Act to supersede the original emergency regulations, Douglas again expressed his dismay and frustration: “I have no hesitation in saying that those of us who voted against that motion did so for two reasons: frst, because we have not been given any evidence that there was a state of apprehended insurrection in this country and, second, because we could not approve the regulations enacted under the WMA because they deprive Canadian citizens so extensively of basic civil liberties.” See also Walter F. Murphy and Joseph Tanenhaus, Comparative Constitutional Law: Cases and Commentaries (New York: St Martin’s Press, 1977), 687; Christopher Hewitt, “The Dog That Didn’t Bark: The Political Consequences of Separatist Violence in Quebec, 1963–1970,” Confict Quarterly Winter 1994, 9–29; and Thomas Berger, Fragile Freedoms: Human Rights and Dissent in Canada (Toronto: Clarke Irwin, 1981). In total, 3,068 searches were conducted without warrants. Clément, “October Crisis of 1970,” 167; Clément, Canada’s Rights Revolution: Social Movements and Social Change, 1937–82 (Vancouver: UBC Press, 2008), 108. Claude Bélanger, “Chronology of the October Crisis, 1970, and Its Aftermath: 15 October 1970,” Marianopolis College, http://faculty.marianopolis.edu/c .belanger/quebechistory/chronos/october.htm. Murphy and Tanenhaus, Comparative Constitutional Law, 687. Justice Minister John Turner addressed Parliament with respect to the Public Order (Temporary Measures) Act, 1970. House of Commons, Debates, 28th Parliament, 3rd Sess., vol. 1, 4 November 1970, 882, https://parl .canadiana.ca/view/oop.debates_HOC2803_01/884?r=0&s=1.

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32 J.N. Lyon, “Constitutional Validity of Section 3 and 4 of the Public Order Regulation, 1970,” McGill Law Journal 18 (1972): 140–1. 33 John Saywell, Québec 70: A Documentary Narrative (Toronto: University of Toronto Press, 1971), 124. For the vote count and breakdown, see House of Commons, Debates, 28th Parliament, 3rd Sess., vol. 2, 1 December 1970, 1635–6, https://parl.canadiana.ca/view/oop.debates_HOC2803_02/504?r=0&s=1. 34 The provisions of the Public Order (Temporary Measures) Act are reproduced in the volume appendix, “Public Order (Temporary Measures) Act, 1970.” In Acts of the Parliament of Canada, 3rd Sess., 28th Parliament, 19–21 Eliz. II, 1970–72, vol. 1, ch. 2 (Ottawa: Queen’s Printer, 1972), 89–97. 35 Louis Fournier, ed., La Police Secrète au Québec: la tyrannie occulte de la police (Montréal: Les Éditions Québec/Amérique, 1978); Jean-Paul Brodeur, “High Policing and Low Policing: Remarks about the Policing of Political Activities,” Social Problems 30, no. 5 (1983): 507–20; Jean-François Duchaîne, Rapport sur les événements d’octobre 1970, 2e éd. (Québec: Gouvernement du Québec, Ministère de justice, 1981); Reg Whitaker, “Keeping Up with the Neighbours: Canadian Responses to 9/11 in Historical and Comparative Context,” Osgoode Hall Law Journal 41, nos. 2–3 (2003): 241–65; and Reg Whitaker, Gregory Kealey, and Andrew Parnaby, Secret Police: Political Policing in Canada from the Fenians to Fortress America (Toronto: University of Toronto Press, 2012), pt 4. 36 Jean-François Duchaîne, Rapport sur les événements d’octobre 1970. 2e éd. (Québec: Gouvernement du Québec, Ministère de justice, 1981). While the Duchaîne Report reviewed state responses to the October Crisis and the FLQ, it was not without limits or faws. For detailed criticism of the limitations of that report and the curtailed power and resources of Commissioner Duchaîne (who centred the report on the roles and operations of the policing agencies involved and speculated about how the state framed responses and actions to October 1970), see Jean-Paul Brodeur, “La Crise d’octobre et les commissions d’enquête,” Criminologie 13, no. 2 (1980): 79–98; Dominique Bernard, “La commission d’enquête sur des operations policières en territoire québécois: Portée réelle et limites du Rapport Keable” (MA thesis, Université du Québec à Montréal, 2008), 20–4; and Tetley, The October Crisis, 1970, 173–84. 37 Herbert Marx, “The Apprehended Insurrection of October 1970 and the Judicial Function,” University of British Columbia Law Review 7 (1972): 63. 38 Friedland cited English jurisprudence: “Whenever it is possible to put upon an act of Parliament a construction not retrospective, the courts will always adopt the construction.” The operative word, Friedland pointed out, was “is.” Martin Friedland, “Trial under the War Measures Act: Can Crime be Retroactive?,” Globe and Mail, 28 October 1970, 7.

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39 Gagnon and Vallières v. The Queen (1971), 14 CRNS 321 (Québec Court of Appeal) at 2. Similar arguments were made later during their trial for seditious conspiracy. 40 Re George Edwin Gray (1918) 57 S.C.R., 150; Fort Frances Pulp and Power Co. v. Manitoba Free Press [1923] A.C. 695; “Editors’ Note: Judicial Review of the War Measures Act, 1914,” in CST4, 475–6. See also Co-Operative Committee on Japanese Canadian v. Attorney General of Canada [1947] A.C. 87 and, in this volume, discussion of the War Measure Act in the introduction and in chapter 1. 41 For example, Marx argued, the opportunity to challenge executive authority presented itself with the case of Fort Frances (1923): “[...] it has become clear that the crisis which arose is wholly at an end and that there is no justifcation for the continued exercise of an exceptional interference which becomes ultra vires when it is no longer called for”; and in Re: Japanese Canadians (1947): “[...] if it be clear that an emergency has not arisen, or no longer exists, there can be no justifcation for the exercise or continued exercise of the exceptional powers.” Marx, “The Apprehended Insurrection,” 59. 42 Hebert Marx, “The Emergency Power and Civil Liberties in Canada,” McGill Law Journal 16 (1970): 65. 43 As qtd in Marx, “The Apprehended Insurrection,” 57–8; see Co-Operative Committee on Japanese Canadian v. Attorney General of Canada, 1946 CanLII 361 (UK JCPC), 101–2, http://canlii.ca/t/gwbzw. 44 Marx, “The Apprehended Insurrection,” 58. 45 On the special arrangements made for the Crown prosecutors in this case, see Fernand Foisy, Michel Chartrand: La colère du juste (Montréal: Lanctôt Editions, 2003), 174n9. 46 Friedland, “Trial under the War Measures Act,” 7. 47 MacKinnon, “Conspiracy and Sedition as Canadian Political Crimes,” 635; see also Martin Friedland, “National Security: The Legal Dimensions” (Ottawa: Department of Supply and Services Canada, 1979). 48 Lang had replaced Turner as Minister of Justice and responded to questions asked in the House of Commons on charges and convictions related to the War Measures Act – see House of Commons, Debates, 28th Parliament, 4th Sess., vol. 3, 7 June 1972, 2926, http://parl.canadiana.ca/view/oop.debates _HOC2804_03/964?r=0&s=1; see also Kenneth McNaught, “Political Trials and the Canadian Political Tradition,” University of Toronto Law Journal 24 (1974): 163. 49 Raymond Cormier, for example, was among those awaiting trial. He was tried and acquitted on 15 April 1971 of membership in an unlawful association, advocacy, and distribution of materials. See Donald J. Riseborough, ed. Canada and the French (New York: Facts on File, 1975), 227.

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50 Riseborough, Canada and the French, 229; Clément, "The October Crisis of 1970," 167; author unknown, A Commission d’enquête des Citoyens sur les Mesures de Guerre, Service des archives et de gestion des documents, UQÀM, Bernard Mergler Files, 25P-148:03/115, 11; Pierre Vallières, The Assassination of Pierre Laporte (Toronto: James Lorimer, 1977), 187. 51 Erna Paris, “The Radicalization of Robert Lemieux,” Maclean’s, 1 June 1971, 58. 52 Awol K. Allo, “Law and Resistance: Toward a Performative Epistemology of Law” (PhD diss., University of Glasgow, 2013), 108. For similar theorizations of defences in modern political trials, see also Allo, “The Courtroom as a Site of Epistemic Resistance: Mandela at Rivonia,” Law, Culture, and the Humanities 16 (2020): 127; Beatrice de Graff, “Introduction: A Performative Perspective on Terrorism Trials,” in Terrorists on Trial: A Performative Perspective, ed. Beatrice de Graff and Alex P. Schmid (Leiden: Leiden University Press, 2016), 17; and Jens Meierhenrich and Catherine M. Cole, “In the Theater of the Rule of Law: Performing the Rivonia Trial in South Africa, 1963–1964,” in Political Trial in Theory and History, ed. Jens Meierhenrich and Devin O. Pendas (Cambridge: Cambridge University Press, 2016), 245–8. 53 This typology of FLQ defendants’ legal strategies was one of the central results of my doctoral research, which took a broader view of all FLQ criminal trials from 1963 to 1972 and of the development of FLQ approaches to legal defences. See Darren Pacione, “Political Trials and Felquistes Defendants: Defending the Front de Libération du Québec (FLQ) in the Courtroom” (PhD diss., Carleton University, Ottawa, 2017), 78. 54 Journalist Ron Haggart and civil rights lawyer Aubrey Golden wrote at the time that bail only began to be granted to any FLQ defendants on 10 December 1970. Golden and Haggart, Rumours of War (Toronto: New Press, 1971), 198. 55 Queen v. Chartrand, Vallières, Gagnon, Lemieux and Larue-Langlois, Court of Queen’s Bench, Criminal Jurisdiction, Arraignment and Pre-trial Hearing (Case #70–6700), November 1970 at 9, Bibliothèque et Archives nationales du Québec (BAnQ), Old Montréal, P839, S2, D13, localisation: 4 0 004 10–05– 003B-01, box: 2010–12–004\2. 56 Ibid., at 16. 57 J.C.B.R., “Jugements Inedits,” R.J.T. 6 (1971): 608. 58 Vallières stated: “Ensuite je voudrais, je me demande pourquoi janvier 68 comme ça, ça aurait pu être aussi bien janvier 67, janvier 66 ou janvier 60, peut-être qui aurait pu inclure le père De Gaulles [sic] là-dedans aussi ... pu remonter en 1838, pas janvier 68, c’est complètement idiot et complètement absurde,” Queen v. Chartrand et al., Arraignment and Pre-trial Hearing (Case #70–6700), 5 November 1970 at 8–9.

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59 Chartrand: “Cette accusation est ridicule. Dans mon cas, je fais de la ‘sédition’ depuis 1938. J’ai toujour lutté ouvertement et systématiquement, jour et nuit, contre les bandits rouges et les bandits bleus.” Foisy, Michel Chartrand, 168. 60 Bernard Dagenais, “Octobre 1970 : la stratégie discursive de l’État,” in Violences olitiques: Europe et Amériques, 1960–1979, ed. Ivan Carel, Robert Comeau, and Jean-Philippe Warren (Montréal: Lux Éditeur, 2013), 39–40; Awol K. Allo, “Marwan Barghouti in Tel Aviv: Occupation, Terrorism, and Resistance in the Courtroom,” Social and Legal Studies 26, no. 1 (2017): 47–68. 61 Gérard Pelletier, who was Trudeau’s Secretary of State, wrote at the time of the trial that confating the patriotes and the FLQ was problematic, noting that the labouring class in Quebec did not fully stand behind the FLQ. He explained the Montreal Five might view themselves as francophone Québécois intellectuals, but so did Papineau and his colleagues in 1837; the proletariat patriotes stood behind the latter but not the former. Pelletier, The October Crisis, trans. Joyce Marshall (Toronto: McClelland and Steward, 1971), 153–7. 62 Jean-Philippe Warren, “‘Outrage au peuple!’ L’horizon international des procès politiques des détenus felquistes,” Globe: Revue internationale d’études québécoises 14, no. 1 (2011): 17–19. 63 This refects a long history of political uses of the Crown’s prerogative prosecutorial powers by way of the expedients of the preferred indictment, or ex offcio information, and the stay, or nolle prosequi (also see n87) noted in previous volumes in the Canadian State Trials series. Preferred indictments were also employed at the Oka trials examined in the chapter by Mark Walters in this volume. 64 Ouimet: “Dans la présente instance, il serait impossible au tribunal, même en faisant des efforts fébriles d’imagination, de tenter de réparer le vice de forme en ordonnant que l’on fournisse des particularités. Un ajournement ne serait non plus d’aucune utilité.” J.C.B.R., “Jugements Inedits,” 610. 65 For the archival transcript of this exchange, see Queen v. Chartrand et al., Arraignment and Pre-trial Hearing (Case #70–6700), 8 January 1971 at 73–8; and for its multiple reproductions (all in French) see Jean-Philippe Warren, Les Prisonniers politiques au Québec (Montréal: VLB Éditeur, 2013), 173–4; Chartrand et al. Le Procès des Cinq, 21–3; Foisy, La colère du juste, 170–2; and Foisy, Michel Chartrand: Les Dires d’un homme de parole (Montréal: Lanctôt Éditeur, 1997), 159–62. Also, while Chartrand makes reference here to the jury as an audience in need of protection from a biased judge, it turned out that jury selection did not become a factor in these proceedings (though it would become a signifcant and contentious issue in the Chénier cell trials).

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66 For background, the Confédération des syndicats nationaux (CSN) is a large trade union of approximately 300,000 members in the province of Quebec. Of note, no record of conclusive evidence related to this raid is apparent. Manon Leroux, Les Silences d’Octobre: Le Discours des acteurs de la crise de 1970 (Montréal: VLB Editeur, 2002), 28–9. 67 Court records, of course, do not account for how defendants or other parties to the trial moved and physically interacted within the courtroom. Theatrically, Foisy’s text added stage directions to his abridged transcript excerpts. Foisy, Le colère du juste, 182. Further to this point, Elizabeth Sheehy writes that court transcripts require context and surrounding documents to anchor analysis because without context, transcript research becomes a representation of the transcription and not about the individual subjectivities that are a part of the studied cases. Sheehy, Defending Battered Women on Trial: Lessons from Transcripts (Vancouver: UBC Press, 2014), 92. 68 Chartrand et al., Le procès de cinq, n1, 60. 69 Chartrand et al., Le procès de cinq, 70. 70 Chartrand et al., Le procès de cinq, 76. 71 Chartrand et al., Le procès de cinq, 13 and 79–82. 72 Chartrand et al., Le procès de cinq, 85. 73 Chartrand et al., Le procès de cinq, 85–6. 74 Chartrand et al., Le procès de cinq, 89. 75 Chartrand et al., Le procès de cinq, 111. 76 Louis Hamelin, in his preface to Le Procès des cinq (2010), an abridged version of the 619-page transcript of the seditious conspiracy proceeding, wrote that “si les mots peuvent renverser un gouvernement, le mois que l’état puisse faire serait de les citer et de les replacer dans leur context.” Chartrand et al., Le procès de cinq, 14. 77 Gagnon and Vallières v. The Queen (1971), 14 CRNS 321. (Québec Court of Appeal) at 139. 78 This judgment, however, was issued after the seditious conspiracy trial and the prosecution case had collapsed on other grounds. 79 Chartrand et al., Le procès des cinq, 18; and Guy Lachapelle, “La crise d’Octobre 1970 ... quarante ans plus tard,” Recherches sociographiques, vol. 52, no. 2 (2011): 380. 80 R. v. Harrison, 1964 CanLII 663 (BC SC), http://canlii.ca/t/gd7dd; [1965] 1 CCC 367 81 J.C.B.R., “Jugements Inedits,” 610. 82 J.C.B.R., “Jugements Inedits,” 610. 83 Marx, “The Apprehended Insurrection,” 62.

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84 For more on the tensions among commentators relative to perceptions and public pressures, see Lachapelle, “La crise d’Octobre 1970,” 387. 85 Gagnon: “Si la Couronne prétend prouver l’absurde projet par lequel [nous trois] nous sommes entendus pour renverser par la force le gouvernement [...] alors que [les capitales] fourmillent de soldats bien armés ... je vais présenter immédiatement une défense d’aliénation mentale.” Leroux, Les Silences D’Octobre, 30. 86 A hearing date of 7 September 1971 was set to re-establish a trial date. Vallières, however, did not appear. Two French-language Montreal newspapers reported on 10 September that he had gone into hiding “because there are more important things for a revolutionary to do in Quebec than submit interminably to fake political trials.” Riseborough, Canada and the French, 226. 87 Louis Fournier, FLQ: The Anatomy of an Underground Movement, trans. Edward Baxter (Toronto: NC Press, 1984), 295. Also, see n63 above. 88 For Chartrand’s contempt appeal, see Chartrand v. The Queen (1971) 26, 21 C.R.N.S. 49. 89 For Vallières’s contempt appeal, see R. v. Vallières, 1973, 201, 15 C.C.C. (2d) 241; and R. v. Vallières (1973) 12, 25 C.R.N.S. 217, 17 C.C.C. (2d) 375, 47 D.L.R. (3d) 378. 90 Robert Lemieux et al., Dossier sur les prisonniers politiques au Québec, 2e éd. (Ottawa: Comité d’information sur les prisonniers politiques, 1976), 7–71. 91 Lemieux appealed and had this sentence reduced to six-months. Daignault, “Les procès politiques au québec depuis 1963,” 45. 92 Nicole Daignault, “Les procès politiques au Québec depuis 1963” (unpublished [on fle with author], 1975), 40. 93 Rene Laurent, “Bar association suspends Lemieux,” The Gazette (Montreal), 13 December 1973, 10, via:https://news.google.com/newspapers?id=ppcuAAA AIBAJ&sjid=m6EFAAAAIBAJ&pg=2114%2C3431945. 94 Eddie Collister, “Barreau du Québec to intervene in jailing of lawyer Robert Lemieux,” The Gazette (Montreal), 25 May 1972, 4, https://news.google .com/newspapers?id=yoIuAAAAIBAJ&sjid=O6EFAAAAIBAJ&pg=6382 %2C1877028. 95 Leon Levinson, “Robert Lemieux released on promise to keep quiet,” The Gazette (Montreal), 21 July 1973, 4. 96 James M. Mabbut, “The People of Québec vs. The Bar of Québec,” Quaere (a supplement to the Saskatchewan Law Review) 2 (1973): 22. 97 Belanger, “Chronology,” http://faculty.marianopolis.edu/c.belanger /quebechistory/chronos/october.htm.

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98 Tetley, The October Crisis, 1970, Appendix E: “The Aftermath of the Crisis, 3,” https://historyofrights.ca/wp-content/uploads/documents/FLQ_appendixe .pdf. 99 Paris, “The Radicalization of Robert Lemieux,” 58.

8 The McDonald Commission Investigates the RCMP Security Service, 1977–83 C. IAN KYER*

Not all state trials are conducted in the criminal courts. When, as in the Gouzenko affair discussed earlier in this volume, the federal government fnds itself “sitting on an explosive story with potential repercussions of considerable gravity,”1 it sometimes turns to a more malleable and controllable Royal Commission. In 1977, when the federal government was faced with revelations that the Security Service of the RCMP had committed illegal acts in Quebec in the years following the 1970 FLQ crisis and preceding the Montreal Olympics of 1976, it chose to create the Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police (RCMP), otherwise known as the McDonald Commission.2 This was not the frst time that security-related operations and “political policing” by the RCMP had raised concerns.3 As was discussed in the previous volume in this series, the RCMP had played a role in the enforcement of section 98 of the Criminal Code aimed at leftist dissent4 and in stopping the On to Ottawa Trek of the Great Depression and spurring the Regina riot of 1935.5 The RCMP had expanded its security operations at the outset of the Cold War, and in the 1960s that force’s widespread covert activities on university campuses in response to student activism had been much criticized and had led to the 1968 Pearson– Laskin Accord.6 That same year the Mackenzie Commission on security had questioned whether a police force like the RCMP ought to have been given a legislated national security mandate. The Commission had noted that “a security organization will almost inevitably be hindered in its operations by

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the lack of fexibility inherent in a police force such as the RCMP. We feel, in short, that the professional security service offcer is quite different from the professional policeman and that this difference should be refected in recruiting methods, training and career patterns and in organizational structures.”7 Despite these concerns, the RCMP Security Service had retained its responsibility for national security. The federal Liberal government of Pierre Elliott Trudeau had taken only one step toward a civilian security service, appointing John Starnes, a former military intelligence offcer turned foreign service offcer and diplomat, as the frst civilian director general of this branch of the RCMP.8 Eight years later, tactics adopted by the Security Service to deal with perceived threats in Quebec came to light, and the McDonald Commission was established to investigate what had happened and to recommend how Canada’s security operations ought to be conducted, monitored, and controlled going forward. That Commission is worth studying, not only for what it achieved but also for what it was unable to achieve in addressing the criminal actions of Canada’s then national security service. One of the Commission’s notable achievements was how it addressed the forward-looking aspects of its mandate. It sought out infuential scholars and specialists, including Professors Peter Russell, John Edwards, C.E.S. (Ned) Franks, and Martin Friedland in Canada, David Williams in the UK, Richard Fox in Australia, and Antonin Scalia in the US. The studies they produced enabled the Commission to engage in a thorough, considered analysis, which resulted in a report that was generally well-received9 and that led to important steps being taken, including the creation of the Canadian Security Intelligence Service (CSIS),10 which is now charged with security intelligence gathering and analysis. Its critics would point out, however, that a notable failure in the Royal Commission process was that the RCMP lawbreakers largely went unpunished. what spurred the creation of the commission? The McDonald Commission had its origins in certain revelations regarding a multi-force anti-terrorism unit created in Quebec after the October Crisis of 1970.11 Seven years of letter bombing and other acts of terrorism by the Front de libération du Québec (FLQ) had culminated in the fall of 1970 in the kidnapping of British trade commissioner James Cross and the abduction and murder of Quebec deputy premier and labour minister Pierre Laporte.12 As discussed elsewhere in this volume, the RCMP’s

RCMP Commissioner John Starnes. Judge David C. McDonald of the Alberta Supreme Court, and Royal Commissioner appointed to investigate security operations. Alberta Archives, David Cargill McDonald fonts (v.80-G-1)

Library and Archives Canada, RCMP fonds, MIKAN 5676921, Accession 1996–400

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activities had long been expanding in new ways with the outset of the Cold War, but the Trudeau government took matters much further during the FLQ crisis. Considering the situation an “apprehended insurrection,” it provided military aid to the civil power and invoked the War Measures Act for frst time in peacetime. Armed soldiers appeared on Quebec’s streets, and police were given extraordinary emergency powers.13 Once the crisis had passed, the imposition of the Act was revoked and those special police powers came to an end. The loss of these special powers concerned some members of the Security Service, who harboured a lingering fear that the FLQ would re-emerge and seek to disrupt the 1976 Summer Olympics in Montreal. The developing situation in Quebec around separatism continued to trouble security service members, and the improving electoral prospects of the separatist Parti Québécois (PQ) heightened their concerns. Several PQ candidates had been elected in 1970, and it seemed possible the party could become a political force capable of forming the provincial government before long. The members of the Security Service drew no reassurance from the PQ’s declarations that it was committed to working toward separation within existing institutions or from its denunciation of the FLQ’s militant revolutionary violence. In this atmosphere of fear and suspicion, the RCMP had joined with the Quebec Provincial Police and the Montreal Urban Community Police to create an anti-terrorism unit. How far this anti-terrorism unit was willing to go was hinted at in 1974 when one of its members, Robert Samson, was injured when a bomb he had been planting in a private residence exploded prematurely.14 During a much-publicized Fire Commissioner hearing, Samson was thoroughly questioned. Even before his testimony was complete, he had been suspended without pay from the RCMP Security Service, arrested, and criminally charged.15 The 1974 bombing itself had been undertaken for a criminal organization and not as part of Samson’s RCMP anti-terrorism activities; however, those activities came to light during his 1976 criminal trial, when Samson revealed that he had done worse things while part of the RCMP unit.16 He gave as an example the 1972 “break-in with ... certain members of the Q.P.P. and the RCMP ... to steal fles of the most militant members [of the Agence de presse libre du Québec or APLQ] as well as other pertinent documents.” He explained that the APLQ was seen as a possible successor to the FLQ because it “always had a fairly big list of Quebec leftists.”17 Samson’s testimony became a topic of political conversation across Canada and led to vigorous questioning of the solicitor general in the House of Commons.18 At a time of resurgent Quebec nationalism, Quebecers

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especially were incensed. Not long after the trial, the PQ was elected to form Quebec’s frst separatist government and Rene Lévesque, backed by a large majority in the Legislative Assembly, became the frst premier dedicated to taking Quebec out of Canada. Samson’s testimony was proof, many Quebecers thought, that an arm of the federal government had been treating those who supported the Quebec nationalist movement as terrorists and had not hesitated to break the law to frustrate the legitimate aims of that movement. Those on the left of the political spectrum, both inside and outside Quebec, took Samson’s testimony as a confession of the pro-establishment, anti-reform bias of the RCMP Security Service. They strongly suspected that RCMP wrongdoing was not confned to Quebec.19 Prime Minister Trudeau knew he had a problem. He called on Solicitor General Warren Allmand to fnd out what had happened and why. Allmand met with Commissioner Maurice Nadon of the RCMP and Michael Dare, who had succeeded Starnes in 1973 as the director general of its Security Service. They assured him that the APLQ break-in had been an isolated incident conducted by rogue offcers. The facts of the incident as presented by Nadon and Dare were promptly reported to the Quebec Department of Justice, which conducted its own investigation. Criminal charges were laid in Quebec against three police offcers, one from each of the RCMP, the QPP, and the Montreal Urban Community Police. This, however, was far from the end of the matter. In 1977, Francis Fox, a noted Quebec lawyer, succeeded Allmand as federal solicitor general. He too sought and received assurances from Commissioner Nadon that the APLQ matter had been an aberration. But two former members of the RCMP, ex-Staff Sergeant Donald McCleery and ex-Sergeant Gilles Brunet,20 came forward with very different accounts. Like Samson, each had been a member of the Security Service in Montreal and each had been found to be associated with criminal elements and discharged from the force. They were of the view that their 1973 discharge had been unfounded, and they had brought an unsuccessful wrongful dismissal action against the RCMP.21 In light of the Samson testimony, they asked the new solicitor general to review their frings. In June 1977 they met with Deputy Solicitor General Roger Tassé and Assistant Deputy Attorney General Louis-Philippe Landry. At this meeting, the former offcers alleged that they and other members of the Security Service had regularly been called upon to commit criminal offences in the course of their duties.22 After being briefed, Fox asked Commissioner Nadon for an explanation. Nadon replied that he had recently heard the same allegations and had commenced an internal investigation.

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Meanwhile in Quebec, the three offcers involved in the APLQ incident who had been criminally charged entered guilty pleas.23 There would be no trial. As the Globe and Mail commented, those guilty pleas had “effectively prevented full public disclosure of the events surrounding the offence.”24 Then on 16 June, these self-confessed lawbreakers were granted an absolute discharge. There would also be no punishment. To the Canadian press and the general public, who a few years earlier had watched US President Richard Nixon try to cover up the illegal Watergate break-in, the situation was starting to look disturbing. To emphasize the similarity, some began to refer to the alleged illegal and criminal actions as RCMP “dirty tricks.” Francis Fox felt compelled to address these concerns. In a statement in the House of Commons, he recounted that when the former solicitor general and the prime minister learned of the RCMP’s involvement in the APLQ break-in, they had seriously considered creating a Royal Commission of Inquiry.25 He noted, however, that the RCMP leadership had provided repeated and unequivocal assurances that the APLQ incident was exceptional and isolated and that the RCMP’s directives to its members clearly required that all their actions be lawful. In a somewhat awkward turn of phrase, Fox added: “In a democratic society, Mr Speaker, it is essential that those on whom, like the RCMP and the Security Service, falls the task of enforcing the law and protecting our basic liberties, can count upon the complete support of the people. This support, in return, must be based on the faith that those protecting these rights do themselves feel bound and indeed are bound by our laws in fulflling their duties.”26 call for a public inquiry: the keable commission and the federal response In response to these revelations, a consensus was growing that the operations of the RCMP Security Service needed to be investigated. As later noted by John Edwards, “it seemed as if the House of Commons in Ottawa had become totally absorbed in debating the facts and the underlying issues involved.”27 These debates were widely reported and refected growing concern among Canadians about the reach of security operations. This in turn fostered demands for an inquiry into alleged illegal activities. The Globe and Mail summed up the public mood in a May 1977 editorial: “The inquiry should have been ordered, at the latest, when Mr Allmand found last year that there had been RCMP wrong-doing. Now it is absolutely necessary. Only an objective inquiry, with terms of reference enabling

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it to pursue the chain of events into the Solicitor General’s offce, can be expected to uncover what the public can be asked to accept as truth.”28 Although there was general agreement that an inquiry was needed, those calling for it had very different motives. Civil libertarians wanted the extent of the police wrongdoing revealed, the police punished, and appropriate safeguards put in place to prevent future illegal acts. The press was looking for a good story. The opposition parties wanted to embarrass the government. The government wanted to buy time and lessen the pressure it was feeling. Finally, the RCMP believed that this was an opportunity to convince government that the security service needed special powers under the Criminal Code. The RCMP had yet another reason to encourage the government to appoint a federal commission. Many in the force feared that if the federal government did not act, Quebec would proceed on its own, and not only damage the force but also discredit the federal government. Already, in November 1976, the newly elected Parti Québécois had established a public inquiry, led by Jean F. Keable, a Quebec City lawyer and member of the PQ.29 Within the ranks of the RCMP Security Service, there were serious concerns about the Keable Inquiry and the possibility that, as a result of its fndings, more RCMP offcers would be criminally charged. They questioned whether federal offcers could get a fair hearing in any inquiry established by a separatist government. In June 1977, four senior members of the Security Service sent a memorandum to Director General Dare, suggesting that the force encourage the Federal Government to establish its own federal inquiry.30 The memo noted that any further criminal proceedings in Quebec could damage the credibility of the Security Service and have a “disastrous” effect on morale. It added that “very often it was the most talented and energetic investigators who were involved.” Unlike a criminal trial, an impartial tribunal “in the calmer atmosphere of a Commission of Inquiry” would take a more balanced view and would examine the actions carried out by the Security Service “in the context of the time with the inherent pressures, different public attitudes and inadequate legislation” and without “criminal intent or thoughts of personal gain.”31 The Trudeau government shared these concerns about the Keable Inquiry. The federal attorney general initiated legal action to stay the Quebec proceedings on the grounds that a province had no jurisdiction to inquire into the actions of a federal agency.32 The Trudeau government lost at trial in a 9 December 1977 ruling by Justice James Hugessen. It promptly appealed and won a stay at the Quebec Court of Appeal;

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however, on further appeal, the Supreme Court of Canada permitted the Keable Inquiry to continue. In a March 1978 judgment,33 it found that although a provincial inquiry could not look into the operations of a federal agency or require federal offcials to testify or produce documents, the administration of justice was a provincial matter and therefore a provincial commission could look into the criminal acts of individuals, even if those individuals were RCMP offcers. the commissioners and their mandate On 6 July 1977, the federal government established what would come to be known as the McDonald Commission under Part I of the Inquiries Act.34 It appointed three commissioners. David C. McDonald, a forty-fveyear-old bilingual trial judge sitting on the Alberta Supreme Court, was appointed chair.35 The other commissioners were lawyers Donald S. Rickerd of Toronto36 and Guy Gilbert of Montreal.37 To the chagrin of many dissidents who saw themselves as the targets of RCMP wrongdoing, all three had ties to the governing Liberal Party. No one could doubt that these three men were accomplished and capable, but they were seen by some as too closely connected to the Liberal government to conduct an objective inquiry into the alleged wrongdoings. That perception of bias would lead to a court challenge, as described later. The mandate given these commissioners was threefold. They were to investigate the extent and prevalence of the RCMP’s practices or other actions that were “not authorized or provided for by law,” especially as they related to the discharge of the force’s responsibility to protect the security of Canada. They were to report their fndings and, based on those fndings, advise what action the government ought to take. Finally, they were to advise and report on what policies and procedures ought to govern the RCMP in the discharge of its national security mandate, how to implement their recommendations, and whether the laws of Canada related to national security were adequate. Many civil libertarians viewed this mandate as wrongly focused on overly broad issues of national security rather than on actual acts of RCMP wrongdoing.38 The focus on national security raised another concern around secrecy. The order-in-council advised the commissioners that they were to follow appropriate security procedures for the classifed materials they would be reviewing.39 They were to hold meetings in camera as necessary in order to protect the national interests of Canada and the privacy of the people involved, and they were to report in a manner that preserved

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the secrecy of sources of security information and the interests of Canada’s allies, who shared such information. It was feared that this advice would result in closed-door hearings, thus denying the public access to evidence of wrongdoing, and that this would facilitate a cover-up. Judge McDonald, who was known to be thorough,40 had his own questions about the mandate, but his were focused on process. He researched the powers and accepted procedures of a commission of inquiry41 and ascertained that under the Inquiries Act, he and his fellow Commissioners had many of the powers of a civil trial court.42 They could compel witnesses to attend and give evidence. They could compel the production of documents, and they could take evidence under oath. But how had previous commissions used such powers and procedures to best effect? The results of his research would shape the process adopted by the Commission, as set out in their opening remarks, discussed below. staffing the commission The commissioners knew they would need a considerable staff of lawyers, researchers, and administrators to fulfl their extensive mandate. Items 1 and 2 of their mandate would require them to conduct an extensive cross-jurisdictional fact-fnding operation akin to a multifaceted criminal investigation and trial. The Commission did not identify what and how many crimes may have been committed. It mentioned only the 1972 APLQ break-in. But it was already becoming obvious through news reports and from the proceedings that had already started in Quebec that there would be much to investigate. The commissioners began looking for a chief legal counsel.43 Finally, after four months, they were able to secure the services of ffty-three-year-old John Francis (Jake) Howard, Q.C., of the Blake frm in Toronto.44 Howard would end up overseeing the thirty lawyers who worked for the Commission on one matter or another during its four-year term.45 Leading counsel like J.J. Robinette and John Sopinka would represent the Commission in legal challenges to its authority and rulings. Others, including Ross Goodwin of Quebec City, W.A. (Tony) Kelly, Q.C., of Commissioner Rickerd’s former frm Fasken & Calvin, in Toronto, and Yvon Tarte of Ottawa,46 would handle the day-to-day work of examining evidence, preparing witnesses, and conducting the public hearings. First, evidence had to be gathered. Almost one hundred allegations of misconduct against members of the RCMP had come to light through the Keable Inquiry hearings47 or had been sent to the Commission by

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individuals and organizations.48 With the cooperation of other police and investigative agencies, the Commission secured the services of four offcers of the Ontario Provincial Police, two members of the Security Division of the Directorate General of Intelligence and Security of the Department of National Defence, and one member of the National Harbours Board Police.49 Item 3 of their mandate called for an analysis of existing laws, policies, and procedures for protecting national security as well as recommendations on how to improve them. This meant that the Commission would also be conducting an extensive research project. Given the importance of this last aspect of their mandate, they needed a good research director. The Commission approached University of Toronto political science professor Peter Russell,50 who had recently spent time with McDonald in Edmonton while researching a book about the Canadian judicial system.51 Old friends, they had frst met twenty years earlier, when both were Rhodes scholars at Oxford.52 In November, Russell met the three commissioners, who offered him the position of research director.53 However, there was a question about his ability to take the job. He would need to take a lengthy leave of absence from the university and would need security clearance. The frst proved little problem, but the second became an issue because the RCMP Security Service had a fle on Russell.54 He was a member of the Canadian Civil Liberties Association (CCLA),55 a supporter of the New Democratic Party,56 had engaged in political protests,57 and headed a college at the University of Toronto considered “iconoclastic and bohemian.”58 The fact that the Security Service saw one of Canada’s most distinguished academics as a security risk was an early warning sign to McDonald and his colleagues that a systemic bias existed in the RCMP against social dissenters, even those who made their points through lawful protests and participation in the political process. Russell offered to step aside, but McDonald would not have it. He knew Russell to be an astute academic who thought deeply and clearly about government and the political process, state powers, and civil rights. He was a person capable of helping the Commission strike the right balance between national security and personal freedom. Russell got his security clearance, but he had to agree not to access the fle the RCMP had compiled on him.59 He obtained a two-year leave of absence from the University of Toronto commencing in June 1978 and worked for the Commission on a part-time basis until then.60 Russell knew he would need the assistance of capable academics. He frst approached Professor John LL.J. Edwards,61 who was at the time

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ffty-nine years old, a distinguished British scholar who was both a law professor and the director of the Centre of Criminology at the University of Toronto.62 Russell would later describe him as “the leading scholar in the Commonwealth on the legal and political issues relating to government direction to police.”63 Russell convinced the Commissioners to appoint Edwards as a special adviser. In addition, Edwards was asked to prepare an analysis of ministerial responsibility for national security – “a terribly neglected feld of study.”64 In a late December 1977 meeting, Russell discussed the issue with Edwards. What, Russell asked, was the appropriate role of government in directing the RCMP in this area? A few weeks later, Edwards produced a memo setting out the many aspects of this key issue.65 Did the solicitor general, for example, have a special duty and responsibility to the prime minister, his cabinet colleagues, and Parliament for the RCMP and national security? Both Russell and Edwards saw the issue of ministerial responsibility as central to the Commission’s mandate. To what extent ought the cabinet, and especially the solicitor general, oversee and be responsible for the actions of the RCMP? One might want to avoid misuse of the RCMP for political purposes, but at the same time, one did not want to have the force operate without any meaningful oversight and without politicians providing that oversight being held responsible for any wrongdoing carried out by the force. Russell would later characterize his time at the Commission as four years of trying to ensure that the appropriate federal ministers would be held responsible.66 Russell also hired John Graham, a former MBA student of Rickerd, then working as an assistant director of research for a think tank in Ottawa.67 Together they assembled a full-time research staff, “youngish with degrees in a range of disciplines, Anglophone and Francophone.”68 In consultation with Edwards, Russell prepared a lengthy memorandum on their research needs for both their internal staff and external academics. Finished in January 1978, it provided both a list of topics and a guide to researching them. In the memo, Russell reiterated that the central policy issue for the Commission was “striking the proper balance between security and liberty.”69 He saw the Commission dealing with the links between the security needs of Canada, the methods used by the RCMP to maintain that security, and the effect of those methods on Canada’s liberal democratic processes and values. Both Russell and Edwards thought it was important to consider what role Parliament should play in national security matters. To address this, they turned to political scientist Ned Franks from Queen’s University.70

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He produced a study titled Parliament and Security Matters,71 which examined the inherent confict between the confdentiality required for national security and the role of Parliament as the principal public forum for holding government accountable. It also suggested some mechanisms to reconcile that confict. Russell and Edwards also needed someone who could conduct a comprehensive overview of the current state of the law as it related to national security to build on and deepen the work of the Mackenzie Commission. Martin L. Friedland, the dean of U of T’s law school and a professor of criminal law, was selected. As a former member of the Law Reform Commission, he had written extensively on criminal law and had advised previous commissions.72 Russell, Edwards, and Friedland worked closely together, discussing issues and progress on the various commissioned studies.73 In addition to the Edwards, Friedland, and Franks studies (all three were published before the Commission’s fnal reports in order to promote debate),74 eighteen other studies were commissioned from knowledgeable and experienced researchers. A substantial number were sought from foreign academics on the laws of their jurisdictions, to permit the Commission to do comparative analysis.75 The foreign experts included David Williams on the UK experience, Richard Fox and Louis Waller on police and security in Australia, J.L. Robson on the New Zealand experience, and a then young law professor at the University of Chicago, Antonin Scalia, on the US laws applying to national security. Later, when they learned that Australia and New Zealand were the only Commonwealth countries that had passed express national security laws, the Commissioners and Peter Russell visited both to investigate further.76 Russell carefully reviewed drafts of each commissioned study, seeking out comments from independent outsiders and critics as well as people in the national security community.77 Perhaps the most notable representative of the latter group was John Starnes, the head of the RCMP Security Service during the frst three years of the dirty tricks era.78 Starnes had given extensive testimony before both the Keable Inquiry and the McDonald Commission, but that had focused on particular events. Russell wanted to know what Starnes, the pragmatic spymaster, thought of the studies. Starnes had already publicly endorsed the balance that the Commission was seeking,79 but warned that “the methods used by the RCMP security service to discover terrorists and spies must be as varied as some of Lewis Carroll’s prescriptions for the hunting of the snark.”80 In his comments on the studies, Starnes was critical of their academic

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approach, characterizing the authors as amateurs who lacked a proper understanding of, and experience with, national security matters. He noted, for example, that Friedland had begun his study by saying he did not know what national security was. Failing to grasp Friedland’s point about the subjective nature of such a determination, Starnes questioned why Friedland had been asked to write about something he did not understand.81 As for Edwards and his study of ministerial responsibility, Starnes stated that some of what Edwards proposed was “wrong in principle and unworkable in practice.”82 Starnes disagreed with Edwards about the relationship between national security and the criminal law. Unlike Edwards, he thought that the one had little to do with the other. Subversive actions, criminal or not, would be of concern to the security services, and the methods taken to counter them should not be limited to police powers. Arrest and criminal prosecution were often not practical options in a service that needed to act quickly and surreptitiously. He also disagreed that the solicitor general in overseeing the security service ought to be somewhat independent of government. He thought that Edwards did not appreciate that the roles given the security service were inherently political in nature “although non-partisan.”83 He noted that national security matters were central to and affected many aspects of government, including immigration, external affairs, defence, and treasury, and therefore ought to be the responsibility of the prime minister and the cabinet as a whole. It was not up to the security service or the solicitor general, for example, to determine whether the Communist Party was a subversive group. Starnes’s views did not resonate well with Russell, but they would later infuence the government’s response to the Commission. To oversee day-to-day operations, the Commissioners retained Harold (“Harry”) R. Johnson, someone known to McDonald as having extensive experience working with government. In dealing with the federal government, the Commissioners interacted with Michael Pitfeld, the chief clerk of the Privy Council, who acted as liaison with the cabinet. The Commissioners also worked closely with Superintendent D. K. Wilson, the RCMP co-ordinator to the Commission, who took leave from his position as RCMP director in BC. Wilson assisted the Commission in understanding the policies, procedures, and personnel of the force.84 None of the commissioners or their staff had any idea that they were about to undertake more than three years of intense activity involving much investigation, many hearings, numerous studies, and four separate reports. When appointed or hired, they had been told the work would involve one day a week for a year.85 In reality, it became a full-time job

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for most of four years.86 McDonald moved to Ottawa and worked seven days a week for much of that time.87 hearings and fact-finding It was crucial to its efforts that the Commission be granted access to RCMP and federal government fles. On 6 November 1977, Jake Howard wrote to Joseph Nuss, a noted Quebec litigator who had been retained as legal counsel for the solicitor general,88 confrming arrangements that had been made for photocopies of many documents in the RCMP fles to be made available to the Commission. Nuss had made it clear that the government might raise objections to the inclusion of some of these documents in the public record or seek confdential treatment for “Government Documents,” including cabinet papers, ministerial briefng notes, and memoranda setting out opinions, recommendations, or advice. Howard explained that he understood that although these documents were available to the Commission, the government had not waived its right to require that they be treated as confdential.89 So that it could commence hearings before access issues were resolved, the Commission decided to frst call witnesses involved at the operational level who had employed the investigative techniques under scrutiny.90 These witnesses, being more junior and less likely to be dealing directly with government, were “unlikely to be the authors or recipients or to have any knowledge” of confdential government documents. The Commission held its frst formal hearing in Montreal on 6 December 1977.91 The chair’s opening remarks made several things clear.92 The commissioners explained that they had been given a demanding task that involved nuanced legal issues and extensive fact-fnding. They promised to be unremitting and conscientious but cautioned that they needed time. The commissioners decided to adopt the approach taken in the UK by the Royal Commission on Tribunals of Inquiry, chaired by Lord Justice Salmon. The commissioners would not hear the evidence before it was introduced in a formal hearing. As much as possible, those formal hearings would be open to the public. They pointed out, however, that some evidence could prejudice the safety of the nation or its diplomatic relations with some other country and that in these circumstances closed sessions were warranted. Where evidence was to be heard in camera, the Commission promised to provide reasons for doing so in public session. One issue before the Commission was the meaning of the term “national security.” It explained that these words “must be taken to refer to the

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security or safety of the nation. The safety of the nation may be threatened by persons outside Canada or inside Canada.” But that did not mean that “every terrorist act or act of violence, actual or threatened, raises a question of national security.” It “becomes a question of national security only if its object or one of its objects is the overthrow of the state or a government other than by democratic means.”93 In analysing their mandate, the commissioners noted that they intended to “examine the very legislative and constitutional basis for the existence of the RCMP generally, and for the existence of the security service ... in particular”.94 In deciding whether the RCMP had been involved in actions or activities “not authorized or provided for by law,” they would consider whether the facts of each case, once established, showed that an RCMP offcer had committed a crime or violated some other federal or provincial statute or acted in a manner that constituted a tort for which they or the government were liable for damages to an injured party. They also assured the public that it was “not the Commission’s intention to ignore the moral and ethical implications of police investigative practices.”95 Nor would they ignore any evidence that government ministers or RCMP offcials had improperly or neglectfully overseen the actions of the force. The Canadian Civil Liberties Association (CCLA) was particularly interested in the Commission’s process and the evidence that was to be presented. Alan Borovoy, its general counsel, had made the organization’s concerns public in an open letter to Prime Minister Trudeau, published as a full-page advertisement in the Globe and Mail.96 That letter had stated that the government was operating under a heavy cloud of suspicion that could only be dissipated after the Commission had reported. In the interim, the CCLA called on the government to provide the details of RCMP wrongdoing to the provincial attorneys general for possible prosecution.97 CCLA members were concerned that police across Canada regularly exceeded their powers and used their security mandate to suppress civil rights, free speech, and legitimate dissent, so the allegations against the RCMP came as no surprise. These concerns motivated the CCLA, together with other civil rights groups and the Conservative Party of Canada, to seek formal standing at the hearings, that is, the right to attend all sessions and to cross-examine witnesses. The Commission was an opportunity to prove that CCLA suspicions had been correct and a chance to convince the government that better oversight of police actions and strict enforcement of the laws were essential. The Commission denied the CCLA standing;98 however, the association engaged a team of observers from across the

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country to attend all public hearings and prepare briefs for presentation to the Commission.99 Through the spring and summer of 1978, the Commission heard from members of the RCMP who had engaged in various activities of questionable legality. Those sessions were almost always open to the public and were well attended by the press100 and interested groups like the CCLA.101 To facilitate open sessions, the commissioners agreed to not seek the names of informants and had such names deleted from the exhibits fled. Joseph Nuss on behalf of the solicitor general or RCMP lawyer Pierre Lamontagne objected to questions of Commission counsel that they thought could result in the public disclosure of confdential investigative techniques. The Commission went in camera to hear arguments but usually adopted an approach or a procedure to permit most of the testimony to be heard in public session. In late April, the Globe and Mail reported that there had been only half a dozen in camera sessions.102 In October 1978, at the Commission’s request, Peter Russell wrote a thirty-two-page booklet titled Freedom and Security: An Analysis of the Policy Issues Before the Commission, which was published in both offcial languages and widely distributed to promote discussion at a planned series of public conferences. One was held in Regina, but the Commissioners did not think it a success, and no more were attempted. The plan to trigger debates and obtain feedback through public conferences had failed; even so, the Commission received many submissions from interested groups.103 The CCLA presented several briefs in which it encouraged the Commission to focus on RCMP wrongdoing rather than on broad national security issues.104 The Law Union of Ontario, an “unincorporated association of one hundred and eighty progressive and socialist lawyers, law students and legal workers,”105 went further in raising their concerns, bypassing the Commission altogether. They brought a legal action in the Federal Court seeking to halt the Commission on the basis of a reasonable apprehension of bias. They alleged that the connections between the Commissioners and the Liberal Party gave rise to the reasonable possibility that the Commissioners would exonerate the Liberal government and be biased against groups and activists whom the RCMP had targeted. The application was heard in June 1978 in Toronto. Paul Copeland on behalf of the Law Union produced an affdavit with more than thirty exhibits that detailed many links between the Commissioners and the Liberal Party. These materials demonstrated that McDonald especially had been active in the Liberal Party for years and had even accompanied Trudeau on an offcial visit to the Orient on a Department

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of Transport plane.106 There was also evidence that each of the Commissioners had personal friendships and business relationships with cabinet ministers, including the current and the former solicitor general. Michael Mandel and Jeff House, appearing on behalf of Copeland and the Law Union, argued that Copeland and the other members of the Law Union were all potential targets of RCMP wrongdoing and that as such they had the right to have the allegations of such wrongdoing examined by an independent, unbiased panel. They argued that the evidence provided in their affdavit supported a reasonable apprehension of bias, which was grounds for disqualifcation. Justice Cattanach reserved judgment. Then after considering the arguments, he issued a ruling that did little to address these concerns. He agreed the evidence gave rise to a reasonable apprehension of bias, but he denied the application anyway. He found that the Commission was not under a duty to be procedurally fair or unbiased because it did not exercise judicial or quasi-judicial powers: The key words in the functions of the Commission are to “investigate,” “inquire,” “report the facts,”and “to advise” with respect thereto. Thus at its very highest the Commission is but a fact-fnding, reporting and advisory body. Paraphrasing and applying the words of Lord Denning, M.R. to the commissioners herein, they are not even quasi-judicial, for they decide nothing, they determine nothing.107

Being told that the possibility of bias among the commissioners was irrelevant because they had no real power to do anything about the wrongdoing was not reassuring. Cattanach acknowledged there was some merit to the Law Union’s arguments. All three commissioners had been involved with the Liberal Party and knew key cabinet ministers.108 Don Rickerd, for example, had taught Francis Fox and grown up with Warren Allmand.109 The Law Union application was denied. However, McDonald conformed to the style of independence expected from the judiciary, and Peter Russell, an NDP supporter and important adviser to the Commission, proved to be “a tower of strength” in encouraging the Commission’s independence.110 There was clear evidence of the Commission’s independence in its ruling of October 1979.111 By this time the Commission was about to commence its examination of senior RCMP offcers and of relevant government ministers. Prime Minister Trudeau had stated publicly that he and his government would decide what evidence would be

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given in camera and what evidence would be public.112 The Commission, however, took a different view, noting that as a commission of inquiry, it was a newly created court-like branch of the government with broad powers. Like the courts, the Commission was not subject to the dictates of the government that had created it. If it was to do its job properly, it needed to interpret its own mandate. It would listen to submissions from the government about the admissibility of evidence or the need for confdentiality and in camera sessions, but it would decide whether to accept those submissions. To McDonald this was a logical interpretation of the Commission’s mandate, akin to judicial independence.113 If the Commission was to fulfl its mandate and to build and maintain public confdence, it had to follow the evidence where it led and to make public as much of that evidence as possible (consistent with the public interest and the needs of the country). first report By the time the October 1979 ruling was delivered, the Commission had issued its frst report. Earlier, in July 1979, it announced that it would cease holding formal sessions for several months, explaining that the Commission is carrying out intensive research and review of those laws which have a direct bearing on the national security responsibilities of the RCMP. This work includes consideration of possible reforms of the Offcial Secrets Act, alternatives to the War Measures Act, and the impact of the Human Rights Act and proposed Freedom of Information legislation on the work of a security service. In respect to certain topics on the policy side of the Commission’s programme, the work of the Commission is suffciently advanced that it is now commencing preparation of its report on those topics. To move in this direction means that there must be time to write drafts of such reports. It is not possible to do so while hearings and other forms of Commission business are taking place.114

The Commission submitted its frst report to the federal cabinet on 9 October 1979.115 It was not the report the commissioners had originally contemplated, nor was the government receiving it the same one that had created the Commission. Things had changed in the political world: Joe Clark’s Conservatives had narrowly defeated Trudeau’s Liberals in the spring election of 1979. The new Conservative government wanted to be more transparent and, as part of this policy, was considering enacting freedom of information legislation. Such legislation was at the opposite

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end of the spectrum from offcial secrecy. One would mandate that government information be accessible to the public, while the other made it an offence to disclose government information. What were the appropriate boundaries between the two? For a time, the new Conservative government diverted the Commission from its RCMP mandate to help it chart those boundaries.116 Friedland’s comprehensive review, rigorous analysis, and report on the legal dimensions of national security, which included chapters on the Offcial Secrets Act and freedom of information, was already fnished, and it provided the foundation for much of the frst report.117 The commissioners noted in that report that, while the Offcial Secrets Act had provided the RCMP with a statutory basis for investigating and prosecuting persons suspected of having committed espionage and security-related offences against the state, its terminology and concepts were dated. The background to the Act is explored in other chapters in this volume. As Friedland’s report noted, its provisions had been supplemented by espionage provisions added to the Canadian Criminal Code in the early 1950s. The overlapping provisions between the Offcial Secrets Act and these provisions had proved problematic, and Friedland’s review of other security-related provisions in the Criminal Code, the War Measures Act, and other legislation suggested the need for comprehensive reform. His review also suggested that the vague state of the law had contributed to the lack of a clear mandate for the RCMP’s security operations. The Commission’s report now recommended that the Offcial Secrets Act be replaced with new espionage legislation in a new statute or placed in a revised part of the Criminal Code dedicated to national security offences. It also supported the adoption of freedom of information legislation. It proposed that exemptions from disclosure for security and intelligence documents be subject to judicial review and cease after thirty years unless the release could reasonably be expected to damage the security of Canada, reveal the identity of a confdential source, or endanger life or property. The report gave considerable thought to what ought to be included in the proposed new espionage legislation. It recommended that espionage offences apply only to communication of information to a foreign power, which would include a foreign group that had not achieved recognition as an independent state. The legislation should cover the intention (or an overt act with the intention) to disclose information whether accessible to the public or not, either from government sources or private sources, if disclosure was, or was capable of being, prejudicial to the security of

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Canada. It should also be an offence to be found in possession, without lawful excuse, of instruments of espionage, which would include false documents of identity. In the commissioners’ view, the legislation with respect to the disclosure of government information should make it an offence to disclose without authorization government information relating to security and intelligence. The commissioners sought to protect against inappropriate or corrupt use of these provisions by suggesting a public beneft defence as well as a requirement that prosecution be by indictment only and solely with the authorization and under the control of the attorney general. The report also recommended that a judge hearing charges under the legislation have the right to review the government’s classifcation of the documents in question. hearings resume While the federal government considered these recommendations, the Commission resumed its hearings in the fall of 1979, continuing them into 1980. Taken together, the initial and later hearings looked into every alleged incident. Staff had gathered evidence and interviewed anyone who could shed light on the matters within the scope of the Commission’s mandate, even if the incident did not relate to national security. In more than 300 days of formal hearings118 (most of which were open to the public),119 the Commission heard evidence from more than 140 witnesses,120 including Prime Minister Trudeau, who was questioned in a closed session.121 The Commission also held informal meetings with government offcials, police, and academics. It also accepted written submissions from groups like the CCLA and received formal briefngs from the RCMP on their techniques and activities, including their surveillance of MPs, labour leaders, separatists, and Native activists, among other topics.122 By the end of 1979, the commissioners had concluded that they would “name names.” Section 13 of the Inquiries Act required them to give reasonable notice, as well as the opportunity to be heard in person or by counsel, to any person to be named as involved in acts that could lead to disciplinary or criminal proceedings.123 On 24 January 1980 the Commission counsel, Jake Howard, sent formal notifcation to those RCMP offcers and their counsel who might be on that list. This created a considerable stir in the force. Claude Thomson was retained by the RCMP to argue that the Commission did not have the mandate to do what it proposed. In March, Thomson appeared before the Commission contending that its

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mandate was only to determine whether “practices” and “activities” were unlawful.124 It did not have the power to conclude that any particular member of the force had committed a criminal act or other form of misconduct. If appropriate, such matters would be dealt with in the courts or through RCMP internal disciplinary proceedings. By 22 May the commissioners had come to a different view and ruled against Thomson’s submissions.125 In effect, they stated that their mandate was broad and required them to consider whether the force had engaged in conduct “not authorized or provided for by law.” This could not be done in the abstract. It required analysis of particular acts in particular circumstances in light of applicable law. Any adverse publicity had already been incurred, they noted, since much of the evidence concerning such acts had already been heard in public sessions. second report In late August 1980, the commissioners submitted a confdential “Special Report” to the newly elected Liberal government.126 It set out information they had received from Warren Hart, an RCMP informant, concerning an alleged murder Hart had mentioned in a television interview broadcast in January 1979 on CFCF-TV Montreal. They thought it important to communicate the information so that the federal government could in turn share it with the Attorney General of Ontario, which was done. The existence of this Special Report was not publicized, and the Commission submitted what was seen as its second report on 23 January 1981.127 Titled Freedom and Security under the Law, this second report of necessity did not address specifc incidents of RCMP lawbreaking, for the process of notifying individuals who would be named, and of giving each the opportunity to be heard, was taking some time. Rather than delay until this was completed, the Commission issued this report on policy and law reform questions. The report summarized the challenge faced by those seeking to shape Canada’s security laws and policies: Put very simply, that challenge is to secure democracy against both its internal and external enemies, without destroying democracy in the process. Authoritarian and totalitarian states do not have to face this challenge. In such countries there is no need to ensure that security agencies, whose techniques inevitably involve a great deal of secrecy, be accountable to an elected legislature. Nor is there a requirement in such states that all of their security measures be authorized or provided for by

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law and that none of their offcials be above the law. Only liberal democratic states are expected to make sure that the investigation of subversive activity does not interfere with the freedoms of political dissent and association which are essential ingredients of a free society.128

The report explained that the Commission’s goal was “effective security within a democratic framework.” This was the “fundamental precept” that had guided “diagnosis of past failures and wrongdoings in Canada’s security system, as well as the prescription for reform.” It went on to state: “Canada must meet both the requirements of security and the requirements of democracy: we must never forget that the fundamental purpose of the former is to secure the latter.”129 third report By the late spring of 1981, the process of giving notices and hearing representations in response to them had been completed, and the Commission was fnally able to share what it had learned about specifc incidents involving the conduct of named RCMP members. The Commission submitted its third report, titled Certain RCMP Activities and the Question of Governmental Knowledge, to the cabinet on 15 May 1981. The second and third reports (with some deletions for national security reasons) were published in both languages in August 1981. It was expected that some deleted sections of the Third Report would be published later, which was done in a supplement published on 30 January 1984. The commissioners cautioned that to some extent, this third report was “essentially a catalogue of a number of incidents.”130 But, they added, they had “attempted to structure it not only so that conclusions can be reached with respect to each incident but also so that the incidents can be placed within a broader framework.”131 The report had three parts. Part One described in general terms the types of activities undertaken by the security service that could be considered “not authorized or provided for by law.” Part Two examined the extent to which senior government offcials and ministers had generally been made aware that the RCMP was committing such acts and the extent of their knowledge of particular practices. Part Three described those practices in detail. The Commission divided these incidents into three categories: those which might be criticized but that required no further disciplinary or criminal action (such as the presence of a Security Service source at a meeting with Warren Allmand and the taping of that conversation); those

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worthy of disciplinary hearings (such as the destruction of certain fles); and those that should be considered for criminal prosecution (such as barn-burning and the theft of dynamite). overall findings and recommendations The Commission found that the RCMP had adopted a “dangerous and unacceptable”132 defnition of subversion that did not distinguish between legitimate dissent and an actual threat to national security. As a result, the Security Service had targeted many political activists and politicians. The Commission considered this a danger to democracy: [W]e believe that the distinction can be made between, on the one hand, those who wish to overthrow our democratic system or use violence or threats of violence to violate our democratic procedures, and on the other hand, those who seek radical change in our social, economic or political arrangements within our democratic system. The diffculty of making this distinction in particular cases is not a reason for abandoning it. On the contrary, the importance to democracy of drawing the line correctly between legitimate dissent and subversion calls for sophisticated judgment and political understanding on the part of those who carry out security operations. It also requires sensitive direction by responsible Ministers and independent review of security operations to ensure that the line is properly drawn and maintained.133

The commissioners found that the RCMP had broken the law on a regular basis, including “improper acts of a deceitful character, surreptitious entries, electronic surveillance, mail checks, access to and use of confdential information, questionable measures against protest, physical surveillance, violation of the law by undercover operatives, interrogation of suspects and acts beyond the Security Service mandate.”134 In carrying out these “institutionalized wrongdoings,”135 the force may have had the best of motives, but it was breaking laws that the force was charged with enforcing. The RCMP had suffered from the “noble purpose”136 syndrome. The ends had justifed the means. The Commission also concluded that the force’s political masters, despite their many protestations of ignorance, had at times known of these excesses and had tolerated them as necessary to preserve national security, broadly defned.137 Moreover, in some cases where the ministers charged with oversight did not know, it was because they had engaged in “wilful blindness.”138

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The commissioners strongly recommended that this approach be ended. They accepted that at times the national security force had to act outside the usual rules. Just as police were permitted to speed to an emergency situation, so the national security force needed to be granted some operational leeway in carrying out its mandate. But the service should not be given a “blank cheque,” and the rule of law must be respected. There needed to be a mechanism to authorize, monitor, and, if necessary, discipline the members of the force. The Commission had been favourably impressed by the Australian and New Zealand approaches, where government legislation regulated special police powers, and it recommended that Canada do the same. The commissioners wanted to establish the principle that the police, including the national security force, had to obey the law or face prosecution if they did not. The report stated that “[a]ll persons must obey the law: there is no special dispensation for policemen.”139 This required new national security legislation that set limits on what was permissible and that imposed new reporting, monitoring, and enforcement mechanisms. The Commission also felt that the cabinet ministers who oversaw these activities had to be informed of them and take political responsibility if the police or members of the national security force did not act appropriately in monitoring and enforcing the law. In reaching these conclusions, two remarks by Professor Scalia had resonated with Russell and the Commission.140 At the beginning of his study, Scalia had stated: From the standpoint of assuring due observance of civil rights, it obviously makes sense to avoid comingling within a single agency, responsibilities which differ substantially with regard to the means lawful for their performance. That is to say, the unit which regularly performs warrantless surveillance and warrantless physical searches for the purpose of gathering foreign intelligence is likely to develop a more cavalier attitude towards such practices in its ordinary police work, if that is also part of its responsibility.141

Later, in the second instalment of his report, Scalia commented: But even if (as is hoped) these individuals are of an integrity well above the run of mankind, they are not entirely lacking in human frailty. And the work they pursue involves special temptation to an abuse of power or, even a mere exercise of righteous zeal. Hence, the need for an effective system of sanctions.142

These two themes – the need to create a security intelligence agency separate and distinct from the RCMP, and the need for procedural

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safeguards – run through many of the Commission’s more than 250 recommendations. The Commission in essence advocated a law-abiding and constrained civilian security agency with a defned legislated mandate and clearly defned powers under ministerial control and responsibility, and subject to review by an expert panel and a parliamentary committee. The expert panel would be an advisory council consisting of persons independent of the government. This body would focus on the legality and appropriateness of the agency’s actions. It would report to a joint parliamentary committee dealing with security and intelligence matters. response The federal government started a detailed review of the Commission’s many recommendations and issued its offcial response in August 1981, when the Commission’s reports were published.143 The government noted that the 1969 Mackenzie Commission on Security had recommended that the security service be “increasingly separate in structure and civilian in nature.”144 The McDonald Commission recommendations were a logical extension of this earlier recommendation, and the government announced that it would be creating a separate civilian agency to replace the RCMP Security Service. The government also acknowledged the need to more effectively balance rights and national security, as well as the need for it to take a more active part in overseeing the new security agency with enhanced ministerial accountability. It announced that the solicitor general would be establishing a planning and transitional group to prepare for the creation of the new agency. The government, however, was less accepting of the Commission’s fnding that the RCMP had regularly acted contrary to the law. This part of its response in particular seemed to confrm for the Commission’s critics that the whole process of review had been intended as a “whitewash.” Rather than accepting the Commission’s fndings, the government obtained legal opinions from Wishart F. Spence, a retired Justice of the Supreme Court of Canada, and Robert Wright, a senior Toronto lawyer. These opinions focused on the phrase “not authorized by law.” (No mention was made of the fact that this phrase had not been chosen by the Commission but rather had formed part of the Commission’s mandate.) The offcial response, citing these opinions, stated that the force did not need express authorization for its acts.145 Where conduct was not expressly prohibited at common law or by legislation, it was lawful, and in the proper circumstances, it could

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be appropriate and necessary. Besides, they stated, in many circumstances laws did not apply to peace offcers, including provincial laws, which did not apply to federal agents such as the RCMP. This legal opinion implied that the RCMP could legitimately operate above the law, a controversial position contrary to the constitutional principle of the rule of law and one that undermined the Commission’s central message about the need for clearer laws and an explicit security mandate. Civil liberties groups completed their own very different assessments of the Commission reports, as well as the federal response, and they were not favourable146 Professor Michael Mandel of Osgoode Hall Law School, lead counsel for the Law Union, which had earlier challenged the Commission, wrote several critical articles on its reports.147 While Mandel and other critics were encouraged by the Commission’s acknowledgment that the RCMP had broken the law and had inappropriately targeted lawful dissent and protest, he was sharply critical of the federal government’s response. As he pointed out, it seemed “rather fshy”148 that the government would commission a judge and two lawyers to conduct a detailed multiyear review only to retain another judge and lawyer to question their extensive fndings. The newly sought-out opinions sat uneasily with the principle of democratic government that Parliament and the rule of law were supreme. But Mandel and others were also concerned about the Commission’s reform recommendations. To them the Commission was, in effect, recommending the legalization of the RCMP’s wrongful acts, rather than denouncing those acts and calling for criminal prosecutions. Moreover, some saw the creation of a civilian security agency as a serious misstep. Alan Borovoy wrote in the Globe and Mail that “when security surveillance is divorced from law enforcement, investigations are more likely to involve vaguer, broader, and less defnable matters. This is what imperils legitimate dissent.”149 Both Mandel and Borovoy felt strongly that the creation of a new national security agency and new laws was both unnecessary and dangerous. What was needed, they argued, was respect for and adherence to the existing laws and their enforcement against all who broke them, even if the lawbreakers were members of the Security Service. Cloaking the security services’ clandestine activities with vague national security laws was not the answer. Meanwhile, Borovoy and the CCLA made presentations to the Ontario and federal Governments advocating the prosecution of police for wrongdoings.150 Borovoy declared that the “public respect for the rule of law cannot withstand the unwarranted immunity which the government

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has conferred on the RCMP.”151 When these calls for criminal prosecutions were not acted upon outside Quebec,152 private prosecutions were launched, only to be stayed by the federal attorney general.153 the federal government’s action The Trudeau government was not inclined to listen to these critics. In May 1983 the government introduced Bill C-157 to establish the Canadian Security Intelligence Service (CSIS). The Bill would have granted CSIS a very broad mandate, as well as powers that permitted the agency to act as reasonably necessary to protect national security. There was a public outcry.154 All the provincial attorneys general voiced their concerns, led by Ontario’s Roy McMurtry. In putting together his case against the Bill, McMurtry drew in part upon the expertise of Peter Russell, the Commission’s former research director.155 Russell had written and published a detailed critique of Bill C-157 in Canadian Public Policy.156 He praised the federal government for following the Commission’s recommendations by proposing “legislation that would authorize as well as defne the limits of security intelligence operations in Canada.”157 In doing so, the government was improving on the widespread practice in most Western democracies where there were no laws defning, limiting, and controlling security services. However, Russell argued that the government had got the balance wrong between security and democracy. The Bill seemed to have been drafted to ensure that the new agency had no gaps in its mandate rather than to ensure that citizens were protected from inappropriate government snooping. Russell noted the many places where the Bill deviated from the recommendations of the Commission. For example, it contained a signifcantly broader defnition of terrorism and subversion than the Commission had recommended.158 The Commission had recommended that acts must pose a serious threat to the effective functioning of the democratic process to qualify as terrorism or subversion. This qualifer had been dropped. The Commission had recommended that before any warrant authorizing intrusive techniques be issued, the judge should consider (a) whether other non-intrusive techniques had been tried and failed or were unlikely to succeed, (b) whether there was a need for urgency, and (c) whether the warrant granted was appropriate given the risk to democracy. In the Bill, all that had to be shown was that the warrant was needed to permit the agency to carry out its mandate.159 A second Commission researcher, Martin Friedland, also made his opposition to the Bill known. In an op-ed piece for the Globe and Mail, he

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echoed Russell’s general praise for the legislation but supported his criticism of its lack of balance.160 Friedland thought that the Bill too strongly favoured the government’s need for security over the individual’s need for personal freedom. In a memorable turn of phrase, he wrote, “The bill has been drafted by reasonable people on the assumption that it will be administered by reasonable people. I would prefer that it be drafted on the assumption that at some time in the future it may be administered by unreasonable, mean-spirited persons.” Friedland correctly predicted that the bill would be withdrawn and a more balanced one introduced. Faced with this criticism, the government referred the bill to a Senate committee chaired by Michael Pitfeld, former clerk of the Privy Council. Pitfeld’s committee met over the summer of 1983, receiving twenty-fve briefs and conducting hearings for nineteen days. One of the witnesses called was the ubiquitous John Starnes, who was by then advising the government.161 The committee recommended limiting the defnition of the security of Canada and doing away with the broad, open-ended mandate for the proposed agency. In place of the expert panel proposed by the Commission, Pitfeld’s committee proposed an inspector general, who would be responsible to the deputy solicitor general. The inspector general would review the operational policies and activities of the new agency. Also, when its director submitted annual or other reports to the minister, the inspector general would certify satisfaction with the contents of each report or, if not, would comment upon them. And in place of the Commission’s proposed parliamentary committee, they recommended a Security Intelligence Review Committee comprised of privy councillors (former cabinet ministers and other distinguished parliamentarians). This committee would be appointed by the cabinet after consultation by the prime minister with the leaders of the opposition parties. In January 1984 the government introduced Bill C-9, which included virtually all of the changes recommended by the Senate Committee. This revised Bill passed the House of Commons and the Senate in June 1984, and on 16 July 1984, an Act to establish the Canadian Security Intelligence Service was proclaimed in force. conclusion At an academic conference in March 1985, Professor Gerald Rutan, the head of the Canadian Studies program at Western Washington University, provided a much more positive assessment of the Commission than many would have expected: “A democratic state faced a scandal in its

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security intelligence functions, and came out of the scandal with a new, legal and democratic security intelligence process ... There are few state systems on earth today which have had the ability and the political will to do what Canada did: to confront an intelligence security scandal and turn it into a strengthening of democracy.”162 Professor Rutan’s remarks focused on the impact that the Commission had on Canada’s national security laws and the balance the Commission had sought to achieve between national security and civil liberties. He noted that the commissioners had met with leading specialists to shape laws that would permit effective security while limiting the opportunity for abuse and reducing the dangers to personal freedom. Unlike Rutan, the CCLA and the other critics of the Commission focused on the least satisfactory aspect of this exercise, the fact that lawbreaking police offcers had largely gone unpunished. The Commission had pointed out many illegal acts that had been committed in the name of national security and had recommended prosecution in a number of cases. Despite their recommendations and the presentations by the CCLA and others, there were no such prosecutions outside Quebec and there was little justice for the victims of the RCMP’s overreach and illegal activities. But as John Starnes would later write in his autobiography, “on the whole, however ... the Commission performed a useful function. It succeeded in bringing security and intelligence questions to the attention of the public and it forced the government to face up to some of the diffcult decisions it had sought to avoid.”163 There is no denying that the McDonald Commission had an immediate impact on Canada’s national security measures. It led to the creation of CSIS and the Security Intelligence Review Committee.164 It arguably contributed to the 1988 replacement of the War Measures Act (the Emergencies Act) and amendments to the Offcial Secrets Act in 1985 and 2001 (now known as the Security of Information Act). For a time, it reminded people of the importance of judicial and parliamentary oversight to combat the “noble cause” syndrome (a lesson largely forgotten in the post-9/11 era). And, ironically, it led to a substantial increase in the membership of the Canadian Civil Liberties Association.165 NOTES * The author was a researcher for the McDonald Commission assisting Martin Friedland with his study National Security the Legal Dimension (Ottawa: Queens Printer, 1979).

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1 Reginald Whitaker, “The Gouzenko Affair: From Star Chamber to the Court Room,” in this volume, p. 125. 2 There are some striking differences between the Gouzenko Royal Commission and the McDonald Commission. In Gouzenko, the federal government acted in secret. That was not an option in McDonald, which was created following very public revelations of RCMP wrongdoing. Also, the Gouzenko Royal Commission was intended to collect evidence of breach of the Offcial Secrets Act to facilitate later prosecutions, whereas the McDonald Commission was used to forestall prosecutions of Canadian government offcials and the security service. 3 See Reginald Whitaker, Andrew Parnaby, and Gregory S. Kealey, Secret Service: Political Policing in Canada, from the Fenians to Fortress America (Toronto: University of Toronto, 2019). See also Dennis G. Molinaro, An Exceptional Law: Section 98 and the Emergency State, 1919–1936 (Toronto: Osgoode Society and University of Toronto, 2017). 4 Dennis G. Molinaro, “Section 98: The Trial of R. v. Buck and the ‘State of Exception’ in Canada 1916–36,” CST4, 324. 5 Bill Waiser, “Wiping out the Stain: The On-to-Ottawa Trek, the Regina Riot, and the Search for Answers,” CST4, 402. 6 The accord is discussed in Philip Girard, Bora Laskin Bringing Law to Life (Toronto: Osgoode Society and University of Toronto, 2005), 287–91. 7 Report of the Royal Commission on Security (Ottawa: Supply and Services Canada, 1977), 19. See their recommendation of a civilian agency at 24 and 104. 8 Ian Macleod, “John Starnes: Spymaster, diplomat at centre of Cold War intrigue,” Ottawa Citizen, 12 January 2015; John Starnes, Closely Guarded: A Life in Canadian Security and Intelligence (Toronto: University of Toronto Press, 1998). 9 E.g., [editorial], “A question of security,” Globe and Mail, 26 August 1981, 6. 10 On the creation and role of CSIS see Whitaker, Parnaby, and Kealey, Secret Service, 361–4, esp. ch. 11, “Old Wine in New Bottles.” 11 For a contemporary account, see Ron Haggart and Aubry E. Golden, Rumours of War: Canada and the Kidnap Crisis (Toronto: New Press, 1971). 12 For a current view, see D’Arcy Jenish, The Making of the October Crisis: Canada’s Nightmare of Terrorism at the Hands of the FLQ (Toronto: Doubleday Canada, 2018). 13 The FLQ trials from 1963 to 1972 are considered by Jean-Philippe Warren elsewhere in this volume; the immediate impact of the War Measures Act in late 1970 and early 1971 is examined in ch. 8 by Darren Pacione. 14 Richard Cleroux, “Mountie questioned in Montreal blast is named by police,” Globe and Mail, 30 July 1974, 8; Cleroux, “Inquiry Set into Blast in Montreal,” Globe and Mail, 31 July 1974, 9.

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15 Richard Cleroux, “Admits he lied over Montreal blast, Mountie arrested,” Globe and Mail, 29 August 1974, 1; Cleroux, “Samson is suspended without pay by RCMP,” Globe and Mail, 11 September 1974, 8. 16 On the Samson trial see R. v. Samson (1977) 35 C.C.C. (2d) 258 (Quebec C.A.). 17 As reported in the Montreal Star, 1 April 1976, and qtd in the First Report of the McDonald Commission. 18 “Independent probe of break-in ‘possible,’” Globe and Mail, 3 April 1976, 11 19 John Sawatsky, “Trail of break-in leads to RCMP cover-up,” Vancouver Sun, 7 December 1976, 1. 20 After his death, it became known that Brunet had acted as a Soviet mole in the RCMP. 21 See “Appeal by two sergeants: Court rules it can review RCMP fring,” Globe and Mail, 17 August 1974, 11. 22 McCleery testifed about his revelations to the federal government in his appearance before the Keable Inquiry. See “Revealed lies, ex-Mountie says,” The Gazette (Montreal), 17 February 1978, 5. 23 “Solicitor General not told of raid, PM says: Three policemen plead guilty to 1972 break-in in Montreal,” Globe and Mail, 27 May 1977, 1. 24 “Dimensions of a break-in,” Globe and Mail, 30 May 1977, 6. 25 House of Commons, Debates, 17 June 1977, 6793. 26 House of Commons, Debates, 17 June 1977, 6795; “Dimensions of a Break-in.” 27 John Edwards to Antonin Scalia, 31 March 1978. Scalia’s report and correspondence with the Commission is at https://www.scribd.com /document/336455920/The-Scalia-fle. 28 “Dimensions of a Break-in.” 29 Dominique Bernard, La Commission d’Enquête sur des Operations Policières en Territoire Québécois Portée Reelle et Limites du Rapport Keable (MA thesis, Université de Montréal, 2008). 30 The memorandum is discussed at some length by the Commissioners in their Second Report at 9–11. 31 A copy of the memorandum can be found in the McDonald Commission papers LAC, G33–128, accession no. 1992–93/251 GAD. 32 See AGF Quebec et Keable v. AG Canada et al, [1979] 1 SCR 218. See also “Fox not out to stop inquiry his lawyer tells appeal court,” The Gazette (Montreal), 16 December 1977, 4. 33 Keable v. Attorney General Canada et al. [1978] 2 SCR 135. 34 Order-in-Council P.C. 1977–1911. 35 McDonald had taught law at the University of Alberta, then worked in private practice for sixteen years. See “David Cargill McDonald” at canadianencyclopdia.ca.

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36 Rickerd, President of the Donner Foundation, which funded public policy research, had a BA from Queens and a BA and MA from Oxford. Interview with Donald Rickerd, 10 July 2019. Between his Oxford degrees, Rickerd had attended Osgoode Hall, been called to the Ontario bar, and practised with the Fasken frm. See C.I. Kyer, Lawyers, Families, and Businesses: The Shaping of a Bay Street Firm Faskens 1863–1963 (Toronto: Osgoode Society and Irwin Law, 2013) at 237; and Canadian Who’s Who 1985 (Toronto: University of Toronto Press, 1985), 1044. 37 Gilbert, a graduate of Loyola and Western, had been practising law in Montreal for twenty-two years. He had chaired the disciplinary committee of the Quebec Medical Association for the past few years. See Canadian Who’s Who 1985 (Toronto: University of Toronto Press, 1985), 450. 38 Marian Botsford Fraser with Sukanna Pillay and Kent Roach, Acting for Freedom: Fifty Years of Civil Liberties in Canada (Toronto: Second Storey Press, 2014), 70–2. 39 PC 1077–1911 appended as Appendix B to the Commission’s Second Report at 1149. 40 Interviews with Peter Russell on 14 May 2018 and with Donald Rickerd on 10 July 2019. 41 Jeff Sallot, Nobody Said No: The Real Story about How the Mounties Always Get Their Man (Toronto: James Lorimer, 1979), 103. 42 Inquiries Act, RSC 1970, c.154, ss.4–5. 43 William C. Graham, in his autobiography The Call of the World: A Political Memoir, (Vancouver: UBC Press, 2016), 61, states that he was approached by McDonald and was willing to join the staff but could not obtain security clearance. 44 Howard had advised on large combines investigations, then a branch of criminal law. See Jack Batten, Learned Friends: A Tribute to 50 Remarkable Advocates, 1950–2000 (Toronto: Advocates’ Society, 2005), 83. 45 See the list of legal counsel in Appendix L of the Second Report at 1213. The lawyers are discussed in Sallot, Nobody Said No, 102–3. 46 Each brought a team of talented young lawyers from their frms. Kelly was assisted by Eleanor Cronk and Allan Rock. 47 There was evidence of a further break-in at the offce of the AFLQ, a barnburning, and theft of dynamite. See Robert Lewis, “The gang that couldn’t spook straight,” Maclean’s, 14 Nov 1977, 21. 48 Jeff Sallot, “Federal probe will examine up to 100 illegal RCMP acts”, Globe and Mail, 7 December 1977, 8. 49 Second Report at ix–x.

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50 He and his friend Andy Watson were “the last in Political Economy at U of T to get appointed and stay on without a Ph.D.” Email from Peter Russell, 23 September 2019. 51 The letters in which they planned the trip are in the University of Toronto Archives (“UTA”) – Peter H. Russell fonds UTA 1736, accession no B2005– 0001, series 3: Correspondence – General (“Russell fonds”), box 24. 52 Interview with Peter Russell in 14 May 2018. 53 Russell interview. 54 Russell interview. 55 Russell identifes himself as such in a letter of 28 February 1981 to Attorney General Roy McMurtry. See Russell fonds, box 10, 28 February 1981. 56 Numerous letters to Bob Rae and other NDP members can be found in Russell fonds, box 10. 57 Russell interview. 58 Innis College is so described in Martin L. Friedland, The University of Toronto: A History (Toronto: University of Toronto Press, 2002), 449. 59 Russell was far from unique. There was a substantial fle on Pierre Elliott Trudeau. On the later destruction of the Trudeau fle see www.cbc.ca/news/ politics/pierre-trudeau-csis-fle-1.5177205. 60 Russell’s arrangements and his role are set out in a 6 Apr 1981 letter from David McDonald to the Dean of Arts at U of T. See Russell fonds, box 10. 61 Russell interview. 62 Canadian Who’s Who 1985 at 357–8. 63 Letter from Peter Russell to the Humanities and Social Science Committee, 17 March 1980, in Russell fonds, box 10. 64 As with n63. 65 Memo to Peter Russell from J. Edwards, 5 January 1978, in UTA, Martin L. Friedland fonds, accession no. B98–0006, series 6, Government-commissioned Research Sub-series 7 National Security (“Friedland fonds”), box 1. 66 Letter of 28 February 1981 to Attorney General Roy McMurtry. See Russell fonds, box 10, 28 February 1981. 67 Interview with Donald Rickerd, 10 July 2019. 68 Peter Russell, Memo titled Report on Research Programme, 11 March 1978, Friedland fonds, box 1. 69 Peter Russell, Preliminary Statement on Research Programme for the Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police at 2. Friedland fonds, box 1. 70 On Franks, see “Queen’s remembers Professor Emeritus C.E.S. (Ned) Franks,” Queen’s Gazette, 12 September 2018.

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71 See C.E.S. Franks, Parliament and Security Matters (Ottawa: Queen’s Printer, 1979), ix. 72 See Martin L. Friedland, My Life in Crime and Other Academic Adventures (Toronto: University of Toronto Press and Osgoode Society, 2007). 73 Friedland, My Life in Crime, 242. 74 For a review of these reports see Robert Sheppard, “Make ex-ministers watchdogs of RCMP, reports urge,” Globe and Mail, 1 April 1980, 8. 75 The commissioned studies are listed in Appendix T to the Second Report at 1233. 76 The Commission stated in its Second Report that it had visited four countries – the US, the UK, New Zealand, and Australia – where they had discussions with past and present politicians and senior offcials who had played a major role in police and security matters. Second Report at 27. 77 It soon became widely known that these studies were being undertaken, and the Commission began to receive requests for copies of the reports from interested academics and other governments and commissions. 78 On Starnes, see “John Kennett Starnes: Spychaser who went out from the heat,” Globe and Mail, 5 November 1977, 13. 79 In a talk to the Canada Club he had stated “there is a delicate balance to be maintained between protecting the rights of individuals in matters of internal security and of doing so without harming the national interest.” Qtd in “John Kennett Starnes.” 80 “John Kennett Starnes.” 81 Friedland discusses Starnes’s comments on his study in Friedland, My Life in Crime, 241. 82 Starnes’s criticisms of Edwards’s paper can be found in a memo to McDonald dated 16 March 1979 in the Friedland fonds. 83 Memo to McDonald dated 16 March 1979 in the Friedland fonds. 84 Rickerd interview and email from Peter Russell, 23 September 2019. 85 Rickerd interview. 86 The Commission’s work went on so long that Gary Lautens, a columnist for the Toronto Star, poked fun at the Commission in “Flash. RCMP Commission Creaks to 103rd Year,” Toronto Star, 14 March 1980, A10. 87 Rickerd interview. 88 On Nuss’s career as a litigator and later judge, see Janis Arnold, “Distinguished jurist recognized with Order of Canada,” Canadian Jewish News, 16 August 2019. 89 Qtd in the Commission’s reasons for judgment of 13 October 1978, reproduced as Appendix F to their Second Report at 1175. 90 As with n89 at 1177.

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91 The Commission had met in Montreal on 19 October 1977 with La ligue des droits de l’homme du Québec and the Canadian Civil Liberties Association to receive their brief. The list of locations and dates for the receiving of briefs and who presented them are found in Appendix Q to the Second Report at 1227. 92 Appendix D to Second Report at 1157. 93 Appendix D to Second Report at 1157. 94 Appendix D to Second Report at 1157. 95 Appendix D to Second Report at 1157. 96 Canadian Civil Liberties Association, “The RCMP, the Government and the Rule of Law,” Globe and Mail, 19 November 1977 at 14. 97 The CCLA concerns and strategy are discussed in Fraser with Pillay and Roach, Acting for Freedom, 72. 98 The reasons for the denial are set out in Appendix E to the Second Report at 1169. An appeal to the Federal Court was argued by Professor Michael Mandel, who would be an ongoing critic of the Commission. J.J. Robinette represented the Commission. The decision of Justice Gibson upholding the Commission’s ruling is reprinted as Appendix Y to the Second Report at 1251. 99 Fraser with Pillay and Roach, Acting for Freedom, 71. 100 Some members of the press were in regular attendance, including John Sawatsky of the Vancouver Sun, Jeff Sallot of the Globe and Mail, Gerald McNeill of Canadian Press, Joe MacAnthony of CBC’s Fifth Estate, and Patricia Poirier of La Presse Canadienne. See John Sawatsky, Men in The Shadows: The RCMP Security Service (New York: Doubleday, 1980); and Sallot, Nobody Said No. 101 Jeff Sallot, “McDonald Commission behind closed doors as government argues for secrecy,” Globe and Mail, 26 April 1978, 8. 102 Sallot, “McDonald Commission,” 8. 103 They are listed in Appendix Q of the Second Report at 1227. 104 A list of the briefs can be found at https://historyofrights.ca/archives/ccla. 105 Paul Copeland on his own behalf and on behalf of all members of the Law Union of Ontario v. Mr. Justice David C. McDonald, Donald S. Rickerd and Guy Gilbert, members of the Commission of Inquiry into certain activities of the Royal Canadian Mounted Police (1978), reprinted as Appendix X of the Second Report at 1241. Also available as Re Copeland and McDonald et al., [1978] 2 FC 815 and (1978) 88 DLR (3d) 724. 106 Ctd by Cattanach in his judgment, ibid at 1244. 107 Ibid at 1248. 108 Robert Lewis, “Tell it to the judge,” Maclean’s, 12 December 1977, 19–20; “RCMP probe rebuts challenge over bias,” The Gazette (Montreal), 17 February 1978, 5.

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109 Rickerd interview. 110 Rickerd interview. 111 Commission’s reasons for judgment of 13 October 1978, reproduced as Appendix F to the Second Report at 1180. 112 Sallot, Nobody Said No, 107. The cabinet had adopted the position that documents that contained cabinet confdences and decisions on RCMP roles, tasks, and methods should only be released to the Commission with the prime minister’s approval. See LAC, RG 2, Privy Council Offce, series A-5-a, vol. 26845, access code 32, item 45431. Related correspondence could be released with ministerial approval after consultation with the prime minister. The RCMP, however, had copies of the cabinet documents. Thus they came into the possession of the Commission without cabinet review. The question then became whether the commission could release them without the prime minister’s approval. 113 McDonald considered that “this was necessary for an independent commission of inquiry. He wanted the Commission’s position on this given the status of a judicial ruling so he had it published in the Dominion Law Reports.” Email from Peter Russell, 23 September 2019. 114 This explanation was part of Appendix G to their Second Report, Reasons for Decision of the Commission, 11 July 1979 at 1193–4. 115 After a French translation it was formally submitted to the Governor in Council in both offcial languages on 26 November 1979. 116 Letters from Peter Russell to Antonin Scalia, 22 August 1979 and 13 March 1980. Scalia fle online (see n25). 117 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 (Ottawa: Queen’s Printer, 1980). I wrote to Friedland at the time noting the extent to which the Commission had relied upon his study. See also Friedland fonds, box 1. 118 Richard Doyon, “The McDonald Royal Commission Report,” UPI, 24 August 1981. 119 Robert Sheppard, “At last, RCMP probe fnale nears,” Globe and Mail, 17 March 1980, 9. 120 Appendix O to Second Report. 121 Robert Sheppard, “PM testifed at closed meeting of Mountie probe, sources say,” Globe and Mail, 12 May 1981, 8. 122 See list of formal briefngs, informal meetings, etc., in Appendices Q, S, and T to the Second Report. 123 Inquiries Act, RSC 1970, c.154, s.13. 124 Reasons for Decision of the Commission, 22 May 1980, Appendix H to the Second Report at 1197.

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125 Ibid at 1195. See also Robert Sheppard, “RCMP try late tactic to limit probe’s scope,” Globe and Mail, 7 March 1980, 9; and “RCMP ‘snooping’ looks hard to stop, lawyers tell inquiry,” Globe and Mail, 15 July 1980, 9. 126 They briefy discussed this in their Third Report at x. 127 Published after some deletions by the Department of Supply and Services, August 1981. 128 Second Report at 43. 129 Second Report at 43. 130 The Third Report also dealt with several matters not included in the Second Report. In some cases, the research had not been completed in time. In other cases, the Commission was of the view that the issues needed to be discussed in conjunction with a particular incident in order to be understood. 131 Second Report at 43. 132 Second Report at 480. 133 Second Report at 409. 134 Second Report at 4. See ch. 6 for examples of disruptive tactics and other countermeasures. 135 Second Report at at 4 and 95. 136 Second Report at at 97 and 127; Third Report at 305. 137 This aspect of the report was highlighted by the media. See, for example, Robert Sheppard and Jeff Sallot, “Trudeau ignored illegal acts by RCMP, inquiry concludes,” Globe and Mail, 26 August 1981, 1; and John Gray, “Trudeau knew Mounties broke the law, report says,” Globe and Mail, 26 August 1981, 12. 138 Third Report at 8. 139 Second Report at 959. 140 Scalia’s contribution to the report was noted by Sean Fine, the justice writer for the Globe and Mail in the 2017 article “The untold story of how Antonin Scalia’s ‘gift to Canada’ shaped our spy services”, Globe and Mail, 13 January 2017. Fine described Scalia as a conservative frebrand but correctly noted that his report was “even-handed.” 141 Scalia report, 2. 142 Scalia report, 98. 143 Statement of the Government of Canada on the publication of the Report of the Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police. A copy of this eight-page press release can be found in the Friedland fonds. 144 Ibid at 2. See also the recommendation of the Mackenzie Commission, which visualized “a deliberate and probably lengthy process of change, in the course of which the head of the new organization would be appointed

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and allowed to plan the development of the new agency and its changing relationships with the RCMP.” Report of the Royal Commission on Security at 24. These opinions are discussed at some length in Michael Mandel, “The Discrediting of the McDonald Commission,” Canadian Forum, March 1982, 14–17. “Report a ‘partial whitewash,’ MP says,” Globe and Mail, 26 August 1981, 13. See Michael Mandel, “Crime, punishment, and democracy: The RCMP affair,” This Magazine, June 1984, 7, 14; and Mandel, “Freedom of Expression and National Security,” 23 University of Western Ontario Law Review (1985): 205–10. Mandel, “The discrediting of the McDonald Commission,” 14. Alan Borovoy, “Legitimate dissent in peril: Chilling impact on right of privacy,” Globe and Mail, 24 September 1981, 7, and qtd in Fraser with Pillay and Roach, Acting for Freedom, 75. Quebec had already started prosecutions. On their effect on the federal government, see “Trials delaying release of report,” Globe and Mail, 31 October 1983, 9. Qtd in Fraser with Pillay and Roach, Acting for Freedom, 74. Jean Chrétien as Attorney General would later say there were simply too many cases from too long ago based on a misunderstanding of the law at the time and with no evidence of improper motives. See John Gray, “865 cases in seven cities: Prosecution of Mounties too much work: Ottawa,” Globe and Mail, 23 August 1983, 1; and see Eugene Forsey, “Mounties get off too easily,” Globe and Mail, 7 September 1983, 7. Dowson v. Queen [1983] 2 SCR 144. See also the criticism of the process and the result by Paul D. Copeland, “McDonald Commission,” Globe and Mail, 4 April 1983, 6. Jeff Sallot, “Security bill fails to include suggested liberty safeguards,” Globe and Mail, 4 June 1983, 13. Roy McMurtry, Memoirs and Refections (Toronto: University of Toronto Press and Osgoode Society, 2013),189–90. Ironically, Russell had written to McMurtry in February 1981 about the gay bath house raids in Toronto, saying to McMurtry that “having spent the last 4 years trying to do something to make ministers at the federal level responsible and accountable for the activities of the RCMP,” he would fnd it “most unfortunate” if McMurtry did not take responsibility for the actions of the police. Letter of 28 February 1981 to Attorney General Roy McMurtry, in Russell fonds, box 10. Peter Russell, “The Proposed Charter for a Civilian Intelligence Agency: An Appraisal,” 9 Canadian Public Policy (1983): 326–37.

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Russell, “The Proposed Charter,” 327. Russell, “The Proposed Charter,” 328. Russell, “The Proposed Charter,” 330–1. M.L. Friedland, “A Leash for the watch dogs,” Globe and Mail, 20 September 1983, 7. Starnes supported the new agency and the new approach and assisted the government in getting the bill passed. See Starnes, Closely Guarded, 166–7. Gerard F. Rutan, “The Canadian Security Intelligence Service: Squaring the Demands of National Security with Canadian Democracy,” Confict Quarterly 5, no. 4 (1985): 17–30 at 17. This was based on a presentation at the Sixth International Convention on Canadian Studies, Selva di Fasano, Italy. Starnes, Closely Guarded, 166. See Refections: Twenty Years of Independent External Review of Security Intelligence in Canada (Ottawa: Security Intelligence Review Committee, 2005). Fraser with Pillay and Roach, Acting for Freedom, 75.

9 Standoffs at Meares and Lyell Islands: Protest, Injunctions, and the Indigenous Land Question in British Columbia, 1984–5 BENJAMIN ISITT

In the mid-1980s, protest blockades against corporate industrial logging on Crown land on two remote islands off the west coast of Canada revealed emerging phenomena in the country’s geopolitical and legal landscape: the growing inclination of Indigenous people to engage in civil disobedience and embrace tactics of direct action to assert customary claims to property; and a corresponding weakening of resolve among decision-makers within settler legal institutions to deploy coercive force in defence of colonial property relations. At Wah-nah-jus Hilth-hoo-is (Meares Island) in Clayoquot Sound off Vancouver Island in the autumn of 1984, and at Tllga Kun Gwaayaay (Athlii Gwaii/Lyell Island)1 in what was then called the Queen Charlotte Islands (now Haida Gwaii) in the autumn of 1985, the creative agency of members of the Nuu-chah-nulth and Haida Nations thwarted claims of private logging companies to timber resources on their territories. Both protest movements initially attracted a familiar response from members of the settler legal community and the state. Lawyers representing private corporations (in this case, logging companies that held licences to harvest timber on Crown land) applied to the Supreme Court of British Columbia for injunctions (court orders) prohibiting interference with their operations, which were then granted by judges and enforced by RCMP offcers, backed with the threat of criminal contempt of court charges and potential imprisonment. These legal actors borrowed and adapted the legal technology of coercion that had been effectively developed and wielded

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against groups such as trade unionists in preceding decades (highlighted in the chapter by Chris Madsen in this volume), demonstrating continuity with earlier social movement challenges to private property rights. Despite the entrenchment of the 1763 Royal Proclamation in section 25 of the Constitution Act, 1982, which in conjunction with section 35 provided a foundation for the recognition of Indigenous rights, organized Indigenous resistance to uphold these rights still tends to be met by repressive responses. These and other recent incidents throughout Canada are not classic political trials, like those that followed the 1885 North-West Rebellion. However, they are characterized by coercion, involving public order policing, contempt charges, and injunctions issued on behest of established interests. These have sometimes escalated to more overt security-related interventions, including political policing and measures such as military aid to the civil power, as in the case of Oka (examined in the chapter by Mark Walters in this volume). Although injunctions, public order policing, and contempt proceedings characterize modern legal responses to stand-offs involving the assertion of Indigenous rights, there are also complexities. The particular circumstances of rights and details of confict vary, and differences have emerged in the responses of corporations, governments, and the courts. In the cases examined here, which demonstrate shifting attitudes toward Indigenous property claims and an evolving legal response to direct challenges to the settler-colonial order, the BC judiciary has displayed a growing unwillingness to unilaterally intervene on behalf of conventional private property interests and against Indigenous interests. In the Meares Island case, BC Court of Appeal Justice Peter Seaton applied a novel and creative interpretation of the established legal test for whether to grant an injunction (which, at the time, was the 1944 BC case Wheatley v. Ellis and Hendrickson), overturning a lower court decision in fnding that the Nuu-chah-nulth claimants (who had countersued against the logging company) would suffer irreparable harm if logging were allowed to proceed. Seaton granted an injunction to the Nuu-chah-nulth chiefs restraining logging by MacMillan Bloedel.2 The Haida blockade at Lyell Island and subsequent legal proceedings arising from the arrest of more than seventy indigenous activists (and one member of Parliament, New Democrat Svend Robinson) disclosed a distinct fact pattern; the Crown’s determination to prosecute criminal contempt of court charges against the Indigenous land defenders withered in the face of Haida and broader Indigenous and settler-ally opposition. The political crises triggered by the Meares Island and Lyell Island stand-offs

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unleashed political pressures that ultimately transformed the approach to land tenure and land management on their territories, inaugurating a rebalancing of power relations over land and resources in favour of the Nuu-chah-nulth and the Haida. To be sure, this shifting jurisprudence has been uneven in subsequent decades, as demonstrated by ongoing reliance on injunctions and other colonial legal tools, for example in response to the Wet’suwet’en challenge to the Coastal GasLink pipeline and Canada-wide solidarity protests since 2019.3 However, the Nuu-chah-nulth and Haida case studies from the 1980s signalled an important shift in the pattern of state responses to social movement protest generally in BC and Canada and to Indigenous protest in particular: an apparent weakening of the resolve of actors within the settler legal order to act unilaterally to buttress private property claims. This chapter examines Indigenous assertions of customary and constitutional rights through direct action – and corresponding responses by members of the legal community – with particular reference to the Nuuchah-nulth blockade at Meares Island in 1984 and the Haida blockade at Lyell Island in 1985–86. The chapter explores how Indigenous customary laws and practices clashed with the property claims of private holders of licences and titles granted by the settler-state and how these clashes were manifested on the land and in legal arenas, and also in cooperation with non-Indigenous social movement allies. I argue in this chapter that the creative assertion of Nuu-chah-nulth and Haida interests through direct action triggered important changes in how settler legal institutions approached Indigenous and colonial property claims – and a growing unwillingness among members of the settler legal community to deploy coercive powers in response to direct challenges to their authority. This shifting jurisprudence signalled the tentative emergence of a more contingent legal space, one in which property claims were increasing recognized as concurrent and shared rather than exclusive, thus challenging the prevailing conception of fee simple, proft-à-prendre, and other forms of title or interests in property by the settler society. conceptualizing indigenous challenges to settler property rights Indigenous law is perhaps the most vital and evolving area of BC and Canadian law today. In the courts and on the ground, Indigenous people and nations have asserted customary and constitutional claims to property, challenging title and licences granted by settler governments and legal

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institutions and creating a more contingent legal space. In landmark decisions in Calder (1973), Guerin (1984), Sparrow (1990), Delgamuukw (1997), and Tsilhqot’in (2014), the courts have recognized a widening ambit for Indigenous rights, buttressed since the 1980s by interpretations of section 35 of the constitution.4 On the ground, Indigenous people have physically asserted these rights, sometimes through direct action to obstruct corporations from exercising conficting rights to land and resources. Around the time of the Meares and Lyell stand-offs, the council of the Ulkatcho band in the BC interior connected these struggles to the wider global pattern of decolonization: “Since the Second World War, the winds of change have blown through Asia and Africa; Now they are blowing through the Americas and Australia.”5 To understand Indigenous customary law and its implications for property and other relations in present-day BC and Canada, we can look to a number of recent works.6 Jisgang Nika Collinson’s collaborative study with the Council of the Haida Nation on the 1985 stand-off at Lyell Island notes that “the boldness was not that of defance, or blatantly breaking Canadian law. Rather the boldness was upholding Haida laws.”7 This is consistent with the emphasis on Indigenous law in Sarah Morales’s research on the Hul’qumi’num legal tradition, suggesting that Indigenous groups “are seeking a vibrant pluralism that will actively seek out a viable partnership with the Canadian legal system.”8 Similarly, John Borrows has argued that “when First Nations laws are received with greater force in Canadian law, both systems of law will be strengthened concurrently.”9 The Supreme Court of Canada frst recognized the sui generis nature of Indigenous rights in Canadian law in the 1984 Guerin decision, moving beyond the court’s tentative recognition of title in Calder (1973). The decision was affrmed and expanded upon in Sparrow (1990), which provided a framework for interpreting section 35(1) of the constitution. These cases provided a foundation for further legal advances by Indigenous people within settler legal institutions, including the recognition of collective forms of title in Delgamuukw (1997) and the landmark Tsilhqot’in decision in 2014, which saw the court formally declare Aboriginal title to lands outside a reserve.10 However, as Andrea Bowker noted, this litigation has been a slow and uneven process.11 The settler legal community’s response to Indigenous road blockades and occupations, and the growing space for assertions of Indigenous power, are infuenced by this emerging jurisprudence on Indigenous rights and title in BC and Canada. Elaborating on this evolving political and legal space, Warren Magnusson suggested in a case study of

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Clayoquot Sound that “proper recognition of indigenous peoples is probably impossible within the framework of the state system, as normally conceived ... On any of the familiar principles of property, British Columbia belongs rightfully to the descendants of its original inhabitants ... It sets conceptions of property, as well as sovereignty, in motion.”12 Earlier manifestations of colonial violence – including the phenomenon of “gunboat diplomacy” and the remapping of Indigenous territory as colonial space by settler institutions – have cast a long shadow on relations between Indigenous people and the settler-state, informing contemporary disputes.13 The Nuu-chah-nulth at Meares Island and the Haida at Lyell Island asserted that Indigenous law remained operative and had not been superseded or rendered obsolete by the imposition of colonial patterns of land use and property and by the colonial legal system and its coercive apparatus. Over time, the courts have come closer to accepting this viewpoint, resulting in a greater reticence to issue and enforce injunctions. There is a strong spatial aspect to Indigenous assertions of rights to land and resources and corresponding state responses. The “scattered geography of colonization” in BC, as legal geographer Nicholas Blomley describes it, has imbued Indigenous people with strategic power: resource wealth and transportation corridors pass through Indigenous communities and territories, a relic of the historical disregard for Indigenous interests in the granting of resource licences and construction of infrastructure by colonial authorities. Scattered settler population centres are connected to one another, and to sources of resource wealth as well as external markets, by a relatively sparse transportation network traversing Indigenous territory. This colonial built form now provides a geographical basis for counter-hegemonic challenges to colonial systems of property and law.14 While lands recognized as Indigenous by settler law represent a small fraction of lands on the traditional territories of these nations, the existing geography of Indigenous-controlled lands and resources proximate to Indigenous communities provides impetus to the phenomenon of road blockades and other forms of direct action against Crown and private property rights.15 Hamar Foster highlights the contested and grey legal status of highways running through Indigenous communities and the resulting competing conceptions of the relationship between BC’s land tenure system and Indian Reserve lands, as well as the jurisdictional ambiguity between provincial, federal, and Indigenous powers arising from section 91(24) of the Constitution Act 1867, section 35 of the Constitution Act 1982, and emerging case law.16

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Insights into the creative assertion of Indigenous interests at Meares Island and Lyell Island in the 1980s – and the corresponding corporate and state responses – can be found in previous case studies, including the Council of the Haida Nation’s powerful work from 2018.17 We can also look to the testimony of Indigenous elders, activists, and leaders, including Haida leader Guujaaw, who was interviewed for this chapter, and Unist’ot’en spokesperson Howilhkat Freda Huson, who recently remarked: “My dad used to tell me ‘the strongest power you have is to occupy your land.’”18 meares island and the assertion of nuu-chah-nulth customary rights Indigenous resurgence and clashes with colonial legal authority could be discerned at diverse sites in BC in the 1980s, including at Clayoquot Sound on the west coast of Vancouver Island. In the landmark legal decision in the Martin case (MacMillan Bloedel v. Mullin; Martin v. Regina in Right of BC [1985]), the BC Court of Appeal issued an injunction restraining logging operations by licence-holder MacMillan Bloedel on Crown land on Wah-nah-jus Hilth-hoo-is (Meares Island), in the Nuuchah-nulth Nation’s traditional territory in Clayoquot Sound, pending the determination of the question of Aboriginal title. The fve-member Court of Appeal panel divided 3–2 in deciding to grant Nuu-chah-nulth chiefs Moses Martin and Corbett George an injunction against the logging company. This represented a bold departure from previous legal decisions, in which questions of Indigenous rights and title were often ignored or shunted aside as the judiciary sidestepped the unresolved land question and recognized private property rights conferred by the colonial legal system and institutions of the settler-state. Writing for the majority, Justice Peter Seaton recognized the symbolic importance of Meares Island as “the front line in the dispute over Indian title. It has also become central to the dispute between the logger and those who favour the preservation of wilderness areas. Meares Island is important to MacMillan Bloedel not because of its trees, but because it is where the line has been drawn. It has become a symbol.”19 Seaton’s willingness to chart a new path in the jurisprudence relating to Indigenous property claims, and to refuse to protect the private interests of the logging corporation, may have refected his legal career prior to being called to the bench. Many members of the BC judiciary had represented forestry and mining companies while practising with leading

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Vancouver law frms; by contrast, Seaton had been a small-town lawyer working in a general practice in the Okanagan city of Vernon. He was also the youngest person appointed to the BC Supreme Court in more than a century, as well as the frst graduate of the UBC law school appointed to a superior court.20 Seaton can perhaps be viewed as the legal equivalent of an “everyman,” detached from the social networks connecting the legal community and resource corporations and therefore possibly more amenable to views that challenged the interests of corporations holding licences to natural resource wealth.21 In November 1984, the chief of the Tla-o-qui-aht village of the Nuuchah-nulth Nation, Moses Martin, had launched a blockade of logging operations on Meares Island, in concert with the environmental organization Friends of Clayoquot Sound (FOCS). Historian Jonathan Clapperton describes this alliance as occurring within a “contact zone” of Indigenous and non-Indigenous interests.22 The blockade followed the failure of a process known as the “Meares Island Planning Team,” which consisted of two years of talks involving the Tla-o-qui-aht and Ahousaht bands, the logging company, representatives of provincial departments responsible for forestry, fsheries, tourism, water protection, and archaeological conservation, representatives of the Village of Tofno (which drew its drinking water supply from Meares Island), forestry workers in Industrial Woodworkers of America (IWA) Local I-85, and environmental organizations including the Sierra Club of Western Canada.23 MacMillan Bloedel had walked away from the table after it became clear that the Tla-o-qui-aht and Ahousaht would not tolerate commercial logging on the island, which they claimed as their own in the absence of any treaties. In 1980 the Tla-o-qui-aht and Ahousaht – through the Nuu-chah-nulth Tribal Council – had formally claimed Meares Island and surrounding lands and waters through the federal Comprehensive Land Claims Policy, asserting that the Nuu-chah-nulth people were “the rightful, legal, and sovereign occupants and users”; the Government of Canada had accepted the claim for negotiation.24 In the century and half since the imposition of British sovereignty, less than 2 per cent of Meares Island had been logged commercially. In April 1984 the Tla-o-qui-aht had unilaterally proclaimed an ahoulthlee (Tribal Park) on Meares, following the earlier example of the Haida at Duu Guusd. Miles Richardson Jr, president of the Council of the Haida Nation, attended the ceremony where the Meares ahoulthlee was proclaimed.25 The Tla-o-qui-aht’s lawyer, Jack Woodward, described the proclamation as a “peaceful, civilized way of observing this sovereignty,” suggesting that

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the legal facts were simple since no treaty had been signed, and noting that land had to be acquired before it could be passed on to others – thus negating the claim of the Crown and the logging company to Meares.26 Following this assertion of sovereignty, the Tla-o-qui-aht initiated a march to the provincial legislature in October 1984 with a twenty-three-foot carved cedar tree, called “Cedar Man,” to ramp up pressure for protection of the island.27 The Village of Tofno formally supported the Nuu-chah-nulth position. When MacMillan Bloedel proceeded with plans in November 1984 to establish a docking area and log dump at a place called C’isaqis (Heelboom Bay), from which to launch the logging operations, the logging company was met with opposition. Nuu-chah-nulth and non-Indigenous allies led by Tla-o-qui-aht Chief Moses Martin constructed canoes on the foreshore in a visible demonstration of use of the land (which the appeal court would later dismiss as “a sham” designed to obstruct MacMillan Bloedel). The protest had been hastily mounted on 21 November, the day the BC Ministry of Forests approved a cutting permit for 53 per cent of the 8,600-hectare island over a thirty-fve-year period. In addition to building canoes, the Nuu-chah-nulth and non-Indigenous allies deployed a fotilla of boats to greet the logging company vessels.28 Michael Mullin, a resident of Tofno who had helped found the FOCS in the late 1970s (drawing on organizational expertise from civil rights and labour campaigns in Chicago a decade earlier), recalls the actions of Chief Martin during the initial confrontation with the logging company: “Moses stands, and he says, ‘And you will respect the native persons in their habitations, their houses and their gardens. You are welcome to come ashore. But you will not do this in our garden. You will cut not trees here.’”29 In response to these activities, the logging company applied to the BC Supreme Court for an injunction barring interference with their operations. However, demonstrating Indigenous peoples’ growing legal assertiveness in the wake of constitutional recognition of Aboriginal rights in section 35 of the Constitution Act, 1982, Martin along with the chief of the nearby Ahousaht village, Corbett George, applied for their own injunction, which would permanently restrain MacMillan Bloedel from logging or trespassing on Meares Island. They also sought three declarations from the court: (1) affrming Nuu-chah-nulth title to the island; (2) stating that no law of BC had any force or effect in contravention of this title; and (3) stating that the BC government had no authority to issue licences or permits for the harvesting of resources in contravention of this title.30 The Nuuchah-nulth chiefs also sought an interlocutory injunction restraining the

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logging company from undertaking any activities on Meares Island pending consideration of the land claim. BC Supreme Court Justice Reginald Gibbs considered the applications for interlocutory relief over two days of hearings in Vancouver at the end of November 1984. In his decision, Gibbs attempted to balance these competing assertions of rights – the company’s proprietary claim to access and harvest timber from Meares Island in accordance with its licence from the province, and the Nuu-chah-nulth customary and constitutional claim to the land and resources of the island. Gibbs’s decision, issued on 3 December, granted the injunction to MacMillan Bloedel, restraining interference with their operations, but limited the company’s activities to light survey work, with no construction of docks or roads and no land clearing until the Nuu-chah-nulth claim had been heard.31 This compromise revealed growing (if tentative) recognition of Indigenous customary rights by the judiciary. Two days earlier, the Supreme Court of Canada in the Guerin case (relating to the improper transfer by federal Indian Agents of land belonging to the Musqueam Nation for an elite golf course near Vancouver) recognized Indigenous title as an underlying legal right that preceded the proclamation of British sovereignty, imposing a fduciary duty on the Crown toward Indigenous people where the disposition of land was concerned.32 Consideration of the Nuu-chah-nulth claim against the logging company was postponed until the end of January 1985, after the BC government requested time to study another recent court decision (which found that Crown title to natural resources trumped Indigenous title).33 In the intervening period, Justice Gibbs denied an application from MacMillan Bloedel seeking to keep the environmental protesters off Meares Island, amid allegations of “tree spiking” (a form of sabotage that involved driving long metal spikes into trees, which could be deadly to fallers and millworkers if their saws hit the spikes). Gibbs said he was “extremely reluctant” to prevent the ffty to sixty people at the Meares Island protest camp from exercising their normal rights to be on Crown land, but he was prepared to do so if necessary to protect the property and rights of others.34 When the Nuu-chah-nulth claim returned to Gibbs’s courtroom, the judge decided in favour of the logging company and against the Indigenous claimants. In a written decision issued on 25 January 1985, Gibbs stated that the Indigenous claim had “no prospect of success at trial,” that neither party faced irreparable harm to their rights if the injunctions were not granted (both could be compensated with money), and that the Indigenous claimants had “slept on their rights.”35

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A spokesperson for the Nuu-chah-nulth, George Watts, responded with defance to the court’s refusal to issue an injunction restraining logging on Meares Island, declaring, “We are not going to let MacMillan Bloedel log Meares Island. It is stolen land.” Watts described Meares as “the fnal fght” for Aboriginal title, a fght that would include a legal appeal against Gibbs’s ruling as well as direct action: “We are going to go to Meares Island and take it back.”36 Demonstrating contempt for the settler legal order, and a recurring crisis of law’s legitimacy when judicial decisions appeared to favour private claims to property over customary claims, Watts declared: “We are going to treat the Canadian justice system with the same respect the Canadian justice system has treated the Canadian Indians.”37 The signifcance of the issues bound up in the Meares Island case was apparent when several BC First Nations, including the Carrier Sekani Tribal Council, the Gitksan-Wet’suwet’en Tribal Council, the Taku River Tlingits, the Shuswap Tribal Council, and the Union of BC Indian Chiefs, obtained intervenor status in the appeal. Following meetings of the BC section of the Assembly of First Nations, which endorsed the Nuu-chah-nulth position, James Gosnell, president of the Nisga’a Tribal Council, told a news conference: “I don’t know what will happen. There could be a bloodbath. But we won’t be responsible for it. We will hold the white man responsible.”38 The Tla-o-qui-aht and Ahousaht chiefs’ appeal against Gibbs’s decision was based on the unresolved title question, suggesting that the harvesting of trees on Meares Island would result in the irrevocable loss of evidence of long-standing Indigenous occupation and use of the land, evidence that was integral to the establishment of Nuu-chah-nulth title to the land. As the appeal court would later fnd, trees on Meares Island held evidence of human use going back to at least 1642, more than a century before the frst settler set foot on Vancouver Island. Persuaded by the Nuu-chah-nulth argument, the BC Court of Appeal overturned the ruling that had denied the Indigenous chiefs’ injunction application in a narrow 3–2 decision. The appeal was heard before a panel of fve judges, rather than usual three, refecting the weight of legal issues at the heart of the case.39 Writing for the majority, Justice Seaton found that the Tla-o-qui-aht and Ahousaht would be “deprived of valuable ecological rights” if logging were allowed to proceed before the title question had been considered. Seaton rejected the claims of counsel for the logging company and the province, to the effect that an injunction restraining logging on Meares Island would deal a fatal blow to the forest sector in coastal BC: It was strongly pressed on us that an order suspending logging on Meares Island would threaten the whole of the coast, indeed the whole of the Province; that if

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we made an order here, similar applications would be made for other areas and eventually the forest industry and other industries would be shut down. I do not believe that to be so. Meares Island has attained a unique importance. I have already said that it has become a symbol for each side in the contest between the forest industry and the Indians. I have also said that to prevent or postpone logging on Meares Island will not have a signifcant economic impact. When other areas are considered, they will be considered in the light of this decision. They will be seen as an addition to the Meares Island restriction and in consequence, the balance of convenience may be seen to have shifted to favour the industry. It has also been suggested that a decision favourable to the Indians will cast doubt on the tenure that is the basis for the huge investment that has been and is being made. I am not infuenced by the argument. Logging will continue on this coast even if some parts are found to be subject to certain Indian rights. It may be that in some areas the Indians will be entitled to share in one way or another, and it may be that in other areas there will be restrictions on the type of logging. There is a problem about tenure that has not been attended to in the past. We are being asked to ignore the problem as others have ignored it. I am not willing to do that.40

Justice Alan MacFarlane concurred with Seaton, stating that Indigenous title had been recognized by the courts in the Calder decision and then in the constitution, that the public anticipated a resolution through negotiation, and that the judicial proceeding was part of a larger process that would “ultimately fnd its solutions in a reasonable exchange between governments and the Indian nations.”41 The BC Court of Appeal’s March 1985 ruling armed the Nuu-chah-nulth Nation with an interlocutory injunction restraining logging by MacMillan Bloedel, to protect ecological and cultural rights relating to Indigenous use of the land; at the same time, that ruling upheld the logging company’s interlocutory injunction against non-Indigenous protesters to protect “the rights of MacMillan Bloedel to that timber” pending determination of the title question. In deciding in favour of the Tla-o-qui-aht and Ahousaht, Justice Seaton found that the balance of convenience favoured leaving the trees standing rather than permitting the logging company to exercise its harvesting rights. The test of irreparable harm also landed on the side of the Indigenous claim rather than on the company seeking to generate revenues and profts from the forest resources of Meares Island, according to Seaton: “The proposal is to clear-cut the area. Almost nothing will be left. I cannot think of any native right that could be exercised on lands that have recently been logged. It follows that rights far short of outright ownership might well warrant retaining the area until after a trial.”42

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Justice MacFarlane concurred, noting that “the balance of convenience in this case is not in favour of immediate logging. Justice and convenience are the twin standards to be applied in deciding if an injunction is to be granted ... Justice to the Indian bands in these unusual circumstances means giving a decision on the merits of their claim before destroying the forest involved in that claim.” In making this determination, the Court of Appeal recognized the contingency of private property rights conferred by institutions of the settler-state in the face of competing assertions of customary and constitutional Indigenous rights – and the court’s willingness to exercise its discretion to deny the equitable remedy of an injunction – a line of jurisprudence that would expand and evolve in the decades following the Meares Island case.43 The Tla-o-qui-aht and Ahousaht victory in the Meares Island case, like the Haida victory at Lyell Island, demonstrated that a powerful coalition of forces – a cross-sectional social movement – could be assembled when Indigenous assertions to land and resources were aligned with claims to resources advanced by the settler-based environmental movement. While the appeal court was quick to dismiss the non-Indigenous protesters’ appeal against the injunction issued to MacMillan Bloedel, contrasting the company’s “restrained and responsible” conduct with “vandalism, threats and physical obstruction” by the environmentalists, the environmental movement was an integral component of the coalition to protect Meares Island, providing material support to the First Nations during the blockade and legal challenge. William Carroll notes the trend toward “increased collective capacity of Indigenous communities and allies, as they confront various confgurations of state and capitalist class power, to resist colonization as an ongoing process while enacting resurgence as a practical form of dis-alienation.”44 The rebalancing of rights by the BC Court of Appeal in the Meares Island case represented a historic refusal by the courts to enforce Crown licences issued by the settler-state, which spurred political change.45 In 1988, the Government of British Columbia, led by the conservative Social Credit party, created a Ministry of Native Affairs as a tentative frst step toward genuine engagement with Indigenous title claims. MacMillan Bloedel never resumed logging operations on Meares Island, and both injunctions arising from Mullin; Martin technically remain in place. The trial on the Tla-o-qui-aht and Ahousaht land claim extended over 152 days of hearings from the mid-1980s until 1991, when the Crown requested an adjournment to enter into negotiations with the Nuu-chah-nulth.46 The Tla-o-qui-aht and Ahousaht ultimately acquired a private property interest

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to the Crown forest lands of Meares Island and Clayoquot Sound, with the transfer of licences to Nuu-chah-nulth-owned Iisaak Forest Resources, an interim measure in the wider treaty process.47 drawing the line at lyell island Members of the Haida Nation at Tllga Kun Gwaayaay (Athlii Gwaii/ Lyell Island) in Haida Gwaii also asserted Indigenous property rights and resisted colonial property relations in the mid-1980s. The resulting controversy attracted national and international media attention and served as a catalyst to transform the political trajectory of the Haida people, their relations with settler governments, and the management of natural resources on the island archipelago. To logging corporations and the provincial government, the area was known as the “South Moresby Supply Block.” To members of the Haida Nation, the land was Gwaii Haanas, an ancestral home that bound together cultural practices, spirituality, ecology, and timber and non-timber economic resources. To environmentalists in BC and beyond, it was the “Galapagos of the North,” a rare and threatened ecological jewel that sustained some of the greatest biological diversity of fora and fauna on the planet. The legal battle lines for Lyell Island and the broader South Moresby wilderness refected these competing perspectives.48 In the 1970s, members of the Haida Nation began ramping up their claims to the island archipelago, which had never been surrendered in treaty. These claims gathered strength in the context of the Supreme Court of Canada’s judgment in Calder (1973), the growing movement for “red power” and Indigenous rights, and environmental advocacy campaigns by conservation organizations such as Greenpeace, the Sierra Club of Western Canada, and the Western Canada Wilderness Committee.49 In 1974 a group of Haida established the Council of the Haida Nation (CHN) with the intention of organizing Haida citizens into a unifed political entity and pursuing “formalization and retention of aboriginal title rather than the surrender of their aboriginal rights forever.”50 That same year, Haida activists and non-Indigenous allies founded the Islands Protection Committee (later incorporated as the Islands Protection Society, IPS), a forum for “Haida and newcomers [to] join together to seek protection of wilderness areas on Moresby Island.”51 The immediate catalyst for these organizing efforts was the provincial government’s decision to issue a permit for logging on pristine Burnaby Island to Rayonier (Canada) Ltd. The Skidegate Band Council and chief councillor Kalga Percy Williams

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opposed that permit, hosting premier Dave Barrett for a feast at Skidegate and securing a fve-year deferral (which shifted Rayonier’s focus to Lyell Island).52 By the mid-1970s, discussions were underway among the Haida, the provincial and federal governments, and conservation organizations to establish a national park reserve to protect the sensitive ecological area in the southern portion of the archipelago, then known as the “Queen Charlotte Islands.” This included vast south Moresby Island, Lyell Island, Burnaby Island, and more than 100 surrounding islands, where scientists had identifed thirty-nine endemic plant and animal species existing nowhere else on earth.53 In 1978 the Haida challenged the BC Minister of Forests’ pending renewal of Tree Farm License 24 on Moresby Island to Rayonier (Canada) Ltd., a subsidiary of a US-based corporate conglomerate, on grounds that it infringed on Haida rights and title. The Haida through the IPS demanded public hearings under the Forest Act, seeking to highlight the signifcance of the South Moresby wilderness for Haida cultural survival. In February 1979, Guujaaw (Gary Edenshaw), a Haida carver who had apprenticed with the famous artist Bill Reid and whose family held trapping rights in the area, went to court with hereditary Chief Gid Kun Nathan Young, trapper Glenn Naylor, and the IPS, seeking an injunction barring forests minister Tom Waterland from renewing the licence until public hearings had been held.54 However, BC Supreme Court Justice George Murray refused to grant the injunction, fnding that public hearings weren’t necessary (since the province was considering renewing an existing licence rather than issuing a new one). Murray also stated that the decision of whether to renew the licence was properly one for the minister, rather than the courts, to decide, and that he was not persuaded to intervene in the interim by granting an injunction.55 Guujaaw, Young, and the IPS were undeterred. They returned to court in 1981, challenging the minister’s renewal of the TFL under the Judicial Review Procedures Act, but the BC Supreme Court again refused to intervene. Chief Justice Allan McEachern found that the minister had adequately consulted with the Haida, expressing concern that quashing the renewal would set a dangerous precedent.56 Appeals against these decisions were unsuccessful.57 In 1981, the Haida, unwilling to wait indefnitely for action by the colonial governments, unilaterally proclaimed a Tribal Park at Duu Guusd in the northern portion of the archipelago – the frst enactment under a modern, written Haida Constitution adopted under the aegis of the CHN.58 That year, the Skidegate Band Council sponsored the formation of the Haida Gwaii Watchmen Program, re-establishing a Haida presence at old

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village sites to manage tourism and protect cultural assets (an alternative structure to the “park” wardens of settler society).59 A year earlier, the Haida had fled a comprehensive land claim with the Government of Canada, asserting title to the islands and surrounding waters and demanding that south Moresby and Lyell be preserved as wilderness to protect ecological and cultural values.60 In 1985 the Haida declared Gwaii Haanas to be a Haida Heritage Site.61 “We drew a line up north of Lyell,” recalled Guujaaw in an interview with this author. “It’s easy to draw a line. It’s harder to hold the line.”62 According to the Canadian constitution, the BC government controlled natural resources on Crown lands. At the time of these events, that government was controlled by the conservative Social Credit party led by Premier Bill Bennett. His government refused to recognize the Haida declaration of the Heritage Site and land claim. Instead, it rigorously upheld the tree farm licence issued to Rayonier (and, after 1981, the new Vancouver-based logging corporation Western Forest Products) and their contractor, Frank Beban Logging Ltd., under the provisions of the provincial Forest Act. Logging had been under way continuously on Lyell Island since 1975, and a portion had been logged earlier in the 1930s and 1940s. The Frank Beban Company maintained a camp at Powrivco Bay, valued at $1.5 million, with amenities including a recreation centre and satellite television.63 The provincial government’s position, restated many times during the confict, was that the British North America Act did not provide for Indigenous title to land. In its view, the Queen Charlotte Islands properly belonged to the BC Crown, with the government free to license access to resources as it saw ft. Moreover, the government refused to negotiate with the Haida unless they withdrew their land claim. However, in a concession to the Indigenous and ecological claims to the forest resources, the government did issue a moratorium on the issuance of new logging permits pending a decision by the provincial cabinet on future use of the area.64 There were also emerging proposals for oil and gas development off the archipelago that raised questions about Indigenous and Crown rights and title.65 In the summer of 1985, in the wake of the landmark Meares Island decision, the Haida issued an ultimatum to the BC government: resolve the dispute over Lyell Island or they would intervene directly to stop the logging. “The basic issue is lands and resources and they are Haida lands and resources,” said Miles Richardson Jr, president of the Council of the Haida Nation, after meeting with BC’s environment minister at Skidegate.66 Two months later, in October 1985, with the study on the proposed

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South Moresby national park reserve still under way, the BC government lifted the moratorium on new logging permits for Lyell Island. It also announced the formation of a wilderness advisory committee to make recommendations on future uses. Approval of three new cut blocks covering eighty-seven hectares of Lyell Island demonstrated the political infuence of Western Forest Products and its contractor, the Frank Beban Logging Company, which had recently exhausted its approved harvesting sites on Lyell and faced the prospect of laying off eighty workers unless it was granted access to new “fbre.” At the time, the unemployment rate in BC stood at 13 per cent, the second highest in Canada, a factor motivating the government’s decision.67 The government’s approach was a perfect example of the phenomenon that political scientist Jeremy Wilson has described as “talk and log.” It also prompted the Haida blockade.68 Faced with further despoliation of lands within their Heritage Site and subject to their land claim, the Haida chose to defy the settler law and take direct action. They blockaded a road on Lyell Island to stop Western Forest Products and Beban’s harvesting plans. The settler law seemed to favour the harvesting rights of Western Forest Products and its contractor. The Haida therefore invoked their own laws and took direct action to uphold their customary rights to land and resources, which the Haida had enshrined in legislation designating the Gwaii Haanas Haida Heritage Site in accordance with the Haida Constitution. “We made a decision that the land was going to be protected,” Guujaaw recalls.69 The Haida launched the road blockade on 30 October 1985. A landing party from the seine boats Haida Raider, Haida Warrior, and Haida Spirit disembarked before dawn at Sedgewick Bay, on the southern shore of Lyell, where they established a camp. They now refused to allow workers from the Beban camp, located about 10 kilometres away, access to the new cut blocks (which they had begun harvesting a day earlier). Led by Clarence “Dempsey” Collinson, hereditary chief of the Skidegate Band, the Haida blocked the convoy of loggers when they rounded a curve in the road. “This is Haida land. It has always been our land,” Collinson said. On behalf of the Council of the Haida Nation, Richardson said: “We cannot sit around and wait for all this legal stuff to work itself out. We are staying here.”70 The participation of Collinson and Richardson demonstrated political support for the grassroots action. As company lawyers began compiling evidence for an injunction application, Frank Beban initially struck a conciliatory tone, remaining with his workers at the Powrivco Bay camp: “I don’t want to have a confrontation. They are my friends. We’re not going to cause violence. We won’t log as long as they’re stopping us.”71

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However, two days into the blockade, Western Forest Products and Frank Beban Logging fled applications for injunctions, which BC Justice Harry McKay granted a week later.72 The injunctions barred the Haida from obstructing the logging road or logging operations on Lyell. During the hearing in Vancouver, Haida language holder GwaaG̱ anad Diane Brown told the judge, “I don’t want my children to inherit stumps,” suggesting that unrestrained exploitation of the land threatened the cultural survival of the Haida as a people. Indicating sympathy for the Haida position, Justice McKay responded: “Mrs. Brown, in my view, the Haida will always be a strong, proud people as long as they keep producing Haida like you.” However, in his reasons for judgment, Justice McKay said he had no choice under the law but to grant the injunction. The judge had earlier denied an application from Miles Richardson Jr for a three-month adjournment, to allow the Haida to obtain and properly instruct legal counsel. “This is a political issue,” Richardson told the judge. “It has no place in your courtroom.”73 During the threeday hearing, Richardson represented the Haida defendants, who chose to testify orally rather than given written affdavit evidence. Nineteen Haida addressed the judge, including hereditary Chief Gid Kun Nathan Young, who testifed in Haida aided by a translator, and Kalga Percy Williams, former chief councillor of the Skidegate Band Council, who recounted harvesting food on his family’s trapline on Athlii Gwaii every year since his childhood.74 Initially, the Haida symbolically complied with the injunctions by allowing two trucks containing Beban and nine of his employees to pass, after a process server read the text of the court orders aloud to Richardson, in front of television and police cameras. The process server also attempted to distribute paper copies of the injunction to the Haida on the road, but most refused to take them. When Beban and his employees attempted to return to the worksite later that day, they were blocked by four elders sitting on the road under a makeshift lean-to in the pouring rain, with several dozen Haida supporters lining the road.75 The NDP member of Parliament for Burnaby, the activist lawyer Svend Robinson, who served as the party’s justice critic, was among those on the Lyell blockade supporting the Haida position.76 Beban, for his part, hardened his stance, stating: “I have no respect for any lawbreakers no matter who they are and that’s what they are now, is common lawbreakers.”77 Defance of the authority of the provincial government and the colonial courts propelled the Haida dispute into the national and international

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spotlight. Western Forest Products returned to court, seeking an enforcement order authorizing the police to act on Justice McKay’s orders, but BC Supreme Court Chief Justice Allan McEachern, who heard the application, told company lawyers that no further order was needed, stating that “[c]ourt orders must be obeyed.”78 To this end, twenty-six RCMP offcers and several police vehicles were deployed to the remote island, augmenting the small local force. Demonstrating parallels with political policing against working-class protest in twentieth-century Canada, the Canadian state mobilized in response to the Haida challenge to state-sanctioned economic interests.79 At the time, the archipelago had a population of 5,000 people, 2,000 of whom were Haida. The RCMP detachment was based out of Queen Charlotte City, 150 kilometres to the north of Lyell Island. Two special Haida offcers were also deployed to the Lyell Island protest camp.80 In total, sixty-fve Haida (and six other Indigenous and non-Indigenous allies) were arrested in the second half of November 1985 for asserting the Haida’s customary claim to property in defance of the court orders. The RCMP superintendent for the area told reporters he had been given a “free hand” by the provincial attorney general to act as he saw ft.81 On 16 November the police began to enforce Justice McKay’s order. Eighty-year-old Haida elder Gaahlaay Watson Pryce was arrested when he refused to move off the road. Two other Haida elders were arrested that day, sixty-seven-year-old Jaadsangkinghliiyas Ada Yovanovich and sixty-fve-year-old Kamee Ethel Jones, who had said earlier, “If they haul us off to jail we’ll all go.”82 The elders were treated “gently,” according to media reports, and were fown by helicopter to Sandspit, where they were fngerprinted, charged with mischief, and released after promising not to interfere with the logging.83 Many of those arrested in the days that followed had their faces painted in a traditional Haida style with charcoal and oil, including ten young Haida arrested on 18 November and described as “political prisoners” by a spokesperson for the Haida protest camp.84 Svend Robinson, who had returned to Ottawa, declared in a speech in Parliament that the arrests contravened Canada’s constitution, which recognized Aboriginal rights: “If anyone is breaking the law, it’s the BC government.”85 The Leader of the Opposition in the House of Commons, Liberal John Turner (who had visited South Moresby while on vacation the previous summer), alleged that the Haida lands were being “despoiled” and called on Conservative prime minister Brian Mulroney to act to protect the “priceless natural treasure.”86

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Haida at Tllga Kun Gwaayaay, Athlii Gwaii (Lyell Island), 1985. Photo by Mark van Manen courtesy of the Vancouver Sun, a division of Postmedia

Seeking to curb the widening civil disobedience movement on Lyell Island, the logging companies and the BC attorney general applied to the BC Supreme Court in late November 1985 for a declaration converting the charges against seventeen Haida and Robinson from mischief to criminal contempt of court.87 The case was heard on 29 November before Chief Justice Allan McEachern, at the courthouse in the northern coastal city of Prince Rupert, across Hecate Strait from Lyell Island and Haida Gwaii. During the hearing, McEachern refused to grant the Anglican Church of Canada intervenor status, stating that “this is no place for the church,” and refused to allow the Anglican bishop of northern BC to testify as an expert witness in support of the Haida’s spiritual connection to the land. The judge sought to confine deliberations to the narrow technical question of whether the accused had defied the court order and interfered with the lawful right of the logging companies to access the timber.88

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In his closing remarks on behalf of the Haida, Miles Richardson Jr said that his people knew in their hearts that Lyell belonged to them, despite the BC government’s refusal for a hundred years to acknowledge or negotiate their land claims, and that they were obliged for religious reasons to block the logging and protect the land that sustained their livelihood and culture. Highlighting the clash of legal norms at the root of the blockade and legal proceedings, one of the defendants, Diane Brown, a mother of two, explained her reasons for blocking the road on 20 November: “I did it to protect the home of my ancestors. I did it because I felt it was right.” McEachern found eleven of the accused guilty of criminal contempt of court, but acquitted seven others, stating that he was not convinced beyond a reasonable doubt that they knew they were defying a court order.89 This clash of legal authorities was apparent a week later when McEachern and the convicted Haida converged on a Vancouver courthouse for the sentencing hearing. The judge asked the defendants whether they would promise not to return to Lyell Island for six months. One man, Willard Wilson, the Skidegate band manager (who had been asked by Richardson Jr to continue overseeing administration of the Athlii Gwaii stand), agreed to abide by this condition, while insisting “we’re not doing anything wrong,” and was released without sentence. The other nine Haida refused the judge’s request for promises to stay away from the island. “While I respect your courts and your laws, something within me is way more powerful,” said Diane Brown. “The need in my soul to protect my land happens to be stronger than your laws.” Brown and the other eight Haida told the judge they were prepared to do jail time out of allegiance to their customary laws, which obliged them to protect their land and culture. McEachern sentenced the nine Haida to fve months in prison, but in a surprise move, promptly suspended their sentences, allowing them to avoid jail time.90 “He backed down,” Guujaaw suggested in an interview decades later.91 According to Miles Richardson Jr, McEachern backed down after Richardson asked, in his summation prior to sentencing, “Please explain, before you send my people to jail, how you and British Columbia, through the due process of the law you’re upholding, acquired our Title.” McEachern left the courtroom and returned about ten minutes later, declaring that he was suspending the sentences and that no one was going to jail.92 This sentencing decision probably also refected a practical consideration, which a Globe and Mail reporter had articulated prior to the hearing: “There is little doubt the 10 who have

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been convicted of criminal contempt of court will be considered martyrs in the native community if they go to prison.”93 The Chief Justice of the BC Supreme Court also convicted MP Svend Robinson of criminal contempt and fned him $750.94 Guujaaw was among those convicted and sentenced for contempt by Justice McEachern. He refected on the court proceedings: “At the time, our people had very little infuence over anything. That’s what it took to shake it up and change things. It was our fght ... We didn’t use lawyers. We represented ourselves. We certainly weren’t trying to beat it on technicalities or deny that we did it. We went into court to explain why we felt we had to do it.”95 Guujaaw described Justice McKay, who had issued the original injunction, as “a pretty decent man,” while he described McEachern, the Chief Justice who handed down the convictions and sentences, as “the old tyrant.”96 This was consistent with the attitude of many working-class activists in BC, who had also experienced McEachern’s legal wrath (including a notorious 1983 injunction against court workers that the Chief Justice pursued all the way to the Supreme Court of Canada).97 In the wake of the contempt proceedings, which had been initiated by the logging companies through the civil process, the outstanding criminal charges against the Haida arrested at Lyell Island were quietly disposed of. Mischief charges against sixty-one people were abandoned by Crown prosecutors on the eve of a provincial court hearing at Queen Charlotte City in late January 1986. Charges against the eleven remaining accused, including the three elders originally charged with mischief, were converted to the offence of criminal contempt of court, but these charges were also dropped after the accused elected for a trial by judge and jury, and a judge declared at a preliminary hearing in May that he felt there was “little to be gained” by proceeding with the charges.98 The Haida struggle on Lyell Island was described in media reports at the time as “an environmental cause celebre that has attracted international attention.” This ramped up pressure on the governments of BC and Canada to help fnd a solution.99 The support for the Haida built on networks established over the years through the Islands Protection Society and the South Moresby campaign, networks that extended to internationally renowned French explorer and conservationist Jacques Cousteau; several members of Parliament; an array of environmental organizations; the Anglican Church of Canada (which donated $7,000 toward legal and logistical expenses); and American folk singer Pete

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Seeger and Canadian singer-songwriter Bruce Cockburn, who played beneft concerts to aid the Haida cause.100 George Erasmus, chief of the Assembly of First Nations, declared that a national alliance of Indigenous and non-Indigenous people was prepared to stand with the Haida. Edwin Newman, a Heiltsuk hereditary chief and president of the Native Brotherhood of British Columbia, described the ruling Social Credit party as “the enemy of the Indian people” and vowed to “fght every development issue that happens on this coast ... It will never go away until the land claims issue is resolved one way or another.”101 In November 1985 at the Provincial Legislature in Victoria, about 100 people staged a solidarity rally in the midst of the blockade.102 The following year, a group of Haida and their supporters travelled across the country in a train they dubbed the “South Moresby Caravan,” with elders Ada Yovanovich, Ethel Jones, and Watson Pryce joining for a portion of the journey.103 These expressions of support helped focus public attention on the Haida struggle, the unresolved Indigenous land question in BC, and the management of natural resources, intensifying political pressure on the governments of BC and Canada to act. The BC government faced particular embarrassment when it came to light that members of the provincial cabinet held shares in Western Forest Products and its subsidiaries. One of them was forests minister Tom Waterland, who was forced to resign from cabinet after ten years in that position.104 In contrast to the conservative Social Credit government’s strident refusal to recognize or negotiate Aboriginal rights, the opposition provincial NDP said it was open to negotiating land claims, a policy the federal government in Ottawa had maintained since it received the Haida claim in 1983.105 Economic pressure also infuenced the BC government’s position: a coalition of Indigenous groups threatened to boycott the Expo 86 world’s fair scheduled for Vancouver the following summer, and the infuential Business Council of BC said its members were “tired of always being the bad guys.”106 Under pressure from an array of social sectors, the BC government reluctantly entered into negotiations with Canada and the Council of the Haida Nation over the future of Lyell Island and the South Moresby wilderness. This decision followed private discussions between Prime Minister Mulroney and BC premier Bennett at a frst ministers’ conference in Halifax. According to one member of Bennett’s cabinet, who spoke with this author on the condition of anonymity, Bennett called for a cabinet vote on whether or not to negotiate with the Haida. When two thirds

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of his ministers voted against, the premier declared emphatically, “The ayes have it,” and proceeded to initiate negotiations.”107 RCMP superintendent Bob Currie, responsible for the policing operation at Lyell, said he welcomed government intervention and negotiations “as a way out of the situation we fnd ourselves in.”108 Attorney general Brian Smith and Haida leader Miles Richardson Jr met in mid-December 1985, joined by federal Indian affairs minister David Crombie, resulting in what the media described as a “temporary truce” (facilitated by a Christmas hiatus of logging operations on Lyell).109 Early in 1986, the provincial government agreed in principle to the creation of a new national park reserve, while adhering to a hard stance that logging continue on Lyell for at least a decade and that the provincial share of compensation to logging companies for lost harvesting rights be minimal. During the South Moresby negotiations, the logging operations that had provoked the blockade and arrests were allowed to run their course – refecting the legal primacy of private property rights over Indigenous rights for the time being. Frank Beban’s logging crews returned to Lyell Island in January 1986 after a fve-week Christmas break. They were briefy prevented from accessing the cut blocks by fve Haida, but the Haida cleared the road at the request of police. The dispute seems to have cooled, perhaps in light of progress at the negotiating table, perhaps as a result of exhaustion. Beban returned to a more conciliatory tone: “I’m still trying to run this thing as if things are normal. The public have become aware of their [the Haida] complaint that their land claim has not been addressed. I don’t know how much further they have to go to bring it to the government’s attention.”110 In February 1986, as logging in previously approved blocks neared completion, the BC government announced that it would not issue new permits until the wilderness advisory committee submitted its recommendations. However, in July 1986, after the committee recommended that logging continue, the Ministry of Forests approved a fresh permit for a 160-hectare cut block. This prompted Miles Richardson Jr and eight other Haida to write to the prime minister renouncing their Canadian citizenship.111 But by this time, the tide was turning on the industry. As his company faced charges under the federal Fisheries Act for “the harmful destruction and alteration” of spawning beds in salmon-bearing Landrick Creek on Lyell Island, Beban reduced the size of his workforce from eighty to fewer than a dozen employees.112 Though he had earlier claimed that a halt to logging would have devastating consequences for his workers, Beban now admitted that three quarters of the displaced

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loggers had found other work.113 The BC Ministry of Forests ceased issuing new permits in the spring of 1987, and in June, the last logs from Lyell were loaded into a boom for transport to mills down the coast.114 In July 1987, twenty months after the Haida had initiated the blockade at Lyell, the federal and provincial governments entered into a memorandum of understanding that imposed a permanent moratorium on further logging. They also agreed to develop a management plan in concert with the Haida leadership and conservation organizations. The agreement, which was signed at a high-profle ceremony by prime minister Brian Mulroney and BC premier Bill Vander Zalm, applied not only to Lyell Island but also to the entire southern portion of the archipelago, encompassing 1,470 square kilometres of land and 138 islands. These would be protected as part of the newly created Gwaii Haanas National Park Reserve (originally named the South Moresby Park Reserve).115 The signing ceremony in Victoria coincided with the homecoming of Bill Reid’s dugout canoe Loo Taas to Skidegate following a twenty-one-day paddle from Vancouver – after the Haida paddlers had warned they would land at Lyell if the settler governments refused to act.116 Miles Richardson Jr and Guujaaw insist that the Gwaii Haanas Haida Heritage Site is not a “park” and that the 1987 agreement merely recognized protection that the Haida had introduced several years earlier: “We told them that we did not want a park. We had legislated Gwaii Haanas in 1985 and simply wanted Canada to recognize this and stay out of our way.”117 Frank Beban, who had obtained the injunction against the Haida and whose assets included the $1.5 million camp at Powrivco Bay, claimed that the BC government had “got bulldozed by Eastern political interests.”118 Industry representatives claimed that the creation of the park reserve, which accounted for 70 per cent of the land in Western Forest Products’ tree farm licence, would result in the permanent loss of 900 direct and indirect jobs.119 Within weeks of the announcement, while supervising the removal of his company’s logging equipment from the Lyell Island camp, Beban suffered a fatal heart attack and died at age forty-seven. “He was a man protecting his investment,” Haida spokesperson Ernie Collison told a reporter. “We are a people protecting our heritage.” He added that Beban was an “honourable man” who “didn’t come out making racist comments.” Beban’s business partner said that uncertainty over the company’s operations had taken a toll on the logger.120 Refecting the international dimension of the dispute, Beban’s death was reported in the pages of the New York Times.121

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aftershocks, postscript, and conclusions Other assertions of Indigenous rights to land and resources emerged around this time, with control over timber and petroleum resources often being at the centre of clashes between Indigenous people, corporations, and the governments of BC and Canada.122 Blockades erupted at dozens of sites around BC in the 1980s and 1990s.123 Tactically, these assertions of Indigenous rights often resembled the actions taken by the Nuu-chahnulth at Meares Island and the Haida at Lyell Island, in that they deployed what settlers would describe as non-violent civil disobedience – peaceful yet frm action to obstruct access to unceded Indigenous territory (whether by corporate licence-holders attempting to extract natural resources or by members of the public seeking to traverse highways through Indigenous territories). However, one Indigenous protest in the mid-1990s – by members of the Secwepemc Nation and their allies near Gustafsen Lake – moved outside these tactical parameters into the realm of armed confict. When the land defenders occupied a private ranch in the summer of 1995, asserting their right to hold a traditional Sun Dance ceremony at a place they called Ts’Peten, the presence of arms on the Indigenous side provoked a sharp response from institutions of the settler-state.124 In this respect, the episode bore strong similarities to the state’s response to the stand-off at Oka, Quebec, fve years earlier.125 Armed confict and related state security responses such as those at Gustafsen Lake, Oka, and Ipperwash Provincial Park in Ontario refect the escalation of tensions prompted by injunctions, public order policing, and contempt proceedings. At the same time, generalizations should recognize complexities, including the particularities of historical experiences and grievances as well as changes in judicial attitudes and differences within the state between the courts and various levels of government. The “scattered geography of colonization” (as put by Blomley) and the unevenness of the colonization process also help explain the different trajectories of Indigenous protests and state responses in modern BC and beyond. The Nuu-chah-nulth at Wah-nah-jus Hilth-hoo-is (Meares Island) and the Haida at Tllga Kun Gwaayaay (Lyell Island) benefted from relative geographic isolation, on the northwestern edge of the province, country, and continent; this allowed them to enjoy a relatively wider degree of autonomy and relatively greater freedom of action to assert customary property claims. It also meant that state institutions were in a correspondingly weaker position to mount a defence of private property claims.

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Much of BC had been radically transformed in the century and a half preceding these conficts: it had been occupied, remapped, and divided in profound ways, all the while subjected to land surveys, alienation of Indigenous lands into Crown and then fee-simple private lands, and substantially transformed by an onslaught of settler-led development: railways, highways, resource roads, mines, hydroelectric dams, ranch lands, farms, towns, and cities. This pattern of colonization had a profound impact on Indigenous people, diluting their connection to the land, to one another, and to Indigenous cultural and legal traditions and thereby depriving them of sources of strength for mounting successful assertions of rights. This pattern of colonization also contributed to dispersion and disunity among Indigenous peoples, encouraged by governance models imposed under the Indian Act that disrupted traditional systems of law, governance, and political authority. By contrast, the colonization process was less advanced in the Nuuchah-nulth and Haida territories in Clayoquot Sound and Haida Gwaii by the 1980s; incursions of settler laws, institutions, infrastructure, and industrial activities had been more limited in those places in the decades preceding the blockades at Meares and Lyell. While the Nuu-chah-nulth and Haida shared common experiences of land dispossession and cultural genocide by paternalistic state institutions and allied institutions (such as the Indian Reserve system and residential schools), enduring “frontier” characteristics in the old-growth rainforests of Clayoquot Sound and Haida Gwaii had armed the Nuu-chah-nulth and Haida with enduring sources of Indigenous customary law and cultural and political cohesion, which they tapped to mount effective assertions of rights. The formation of the Nuu-chah-nulth Tribal Council and the Council of the Haida Nation in the years preceding these respective land struggles in the 1980s demonstrates this process of political cohesion. The uneven pattern of colonization also infuenced potential support bases in settler society for these assertions of Indigenous rights, an important factor in mobilizing suffcient political pressure to impel settler governments to pursue political solutions. At Meares and Lyell islands, the Indigenous communities asserting customary rights to the land and resources were buttressed by strong environmental advocacy campaigns. These campaigns were bolstered by the relatively pristine condition of the natural resources of the area, as well as relationships nurtured between Indigenous and non-Indigenous people in preceding years in the vicinity of communities such as Masset, Queen Charlotte City, and Tofno. This ecological ethos found formal expression in settler-based advocacy

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organizations such as Friends of Clayoquot Sound and the Islands Protection Society in Haida Gwaii, which provided material and political support in the heat of the conficts. Relations of trust and effective working relationships were established between settlers associated with these groups and local Indigenous leaders in the Nuu-chah-nulth and Haida communities. These working relationships in turn helped attract support from larger, more fnancially stable environmental organizations with provincial, national, and international reach, notably Greenpeace, the Sierra Club of Western Canada, and the Western Canada Wilderness Committee, drawing international attention to the ecological values and Indigenous assertions of rights at Meares and Lyell and helping bring suffcient political pressure to bear on settler governments to negotiate political solutions. Notwithstanding the wider ambit of recognition afforded to assertions of Indigenous customary and constitutional rights to property in recent years, Canadian courts remain more inclined to grant injunctions requested by corporations against Indigenous people and less inclined to grant them to First Nations attempting to enforce Indigenous, environmental, and other rights through legal means. A recent study from the Yellowhead Institute based on a review of nearly 100 cases involving injunctions and First Nations found that “76 percent of injunctions fled against First Nations by corporations were granted, while 81 percent of injunctions fled against corporations by First Nations were denied. Perhaps most tellingly, 82 percent of injunctions fled by First Nations against the government were denied.”126 A high-profle recent case from BC demonstrates the enduring pattern of law’s coercive force being deployed by colonial authorities to buttress private claims to property, in the face of competing Indigenous claims. In December 2018, Coastal GasLink Pipeline Ltd., a subsidiary of TransCanada Pipelines, applied for and obtained an interim injunction from the BC Supreme Court restraining members of the Wet’suwet’en Nation in the northern interior from obstructing construction of a gas pipeline through their territory.127 RCMP offcers enforced this injunction in January 2019, physically breaking through a barricade and arresting fourteen members of the Gidimt’en clan of the Wet’suwet’en, who had established a checkpoint on a service road to prevent access to the area.128 “They can go anywhere they want, except for on Wet’suwet’en territory,” declared Madeek, a hereditary chief of the Gidimt’en, prior to the police raid.129 The dispute was complicated by consent agreements

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that had been signed by all Indian Act band councils along the proposed pipeline route, even though the hereditary chiefs of the Wet’suwet’en unanimously opposed the project. Invoking Wet’suwet’en law, members of the Unist’ot’en clan had established a camp and healing centre on the Widzin Kwah (Morice River) several years earlier, the Unist’ot’en Camp, which served as a focal point for Indigenous and allied opposition. The authority of the Wet’suwet’en hereditary governance system, and the role of hereditary chiefs as the legitimate representatives for collectively held title and rights, had been affrmed by Canadian courts in the landmark ruling in Delgamuukw (1997).130 However, lawyers for the gas company sought to have any affdavits attesting to the hereditary system struck from the record.131 Contempt of court charges against the Gidimt’en arrested in January 2019 were dropped later that year (mirroring the pattern in earlier disputes, where the threat of criminal sanction was lifted after the moment of crisis had passed); however, the dispute escalated to a higher plane in 2020. That escalation followed a successful application by the gas company for an interlocutory injunction to replace the earlier interim injunction.132 In those proceedings in December 2019, Justice Marguerite Church rejected the assertion made by Freda Huson of the Unist’ot’en clan that the checkpoints were legal under Wet’suwet’en law (Huson had contended that the gas company lacked permission from the head of the Dark House clan to enter or pass through the unceded territory). Justice Church chastised Huson and the Wet’suwet’en for their failure to challenge the Crown permits under established legal procedures, characterizing the “self-help” measures pursued by the Wet’suwet’en as an “abuse of process” and “contrary to the rule of law.”133 Huson and the Wet’suwet’en hereditary chiefs responded to Church’s interlocutory injunction by issuing an eviction notice to CGL, under authority arising from Wet’suwet’en law, ordering employees of the gas company to leave the contested territory. Checkpoints were established to enforce the eviction. While CGL temporarily complied, the assertion and enforcement of customary law in defance of the colonial law prompted a declaration of a provincial emergency by the Solicitor General of British Columbia, New Democrat Mike Farnworth, and the mobilization of scores of RCMP offcers on Wet’suwet’en territory.134 In February 2020, the RCMP deployed force to break through the Wet’suwet’en checkpoints, arresting twenty-eight Wet’suwet’en land defenders and allies, twenty-two of whom were charged with criminal contempt of court.135

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The state response to the Wet’suwet’en assertion of customary rights provoked nationwide protests in Canada in February and March 2020, including blockades and occupations from the Provincial Legislature in Victoria, to the Port of Vancouver, to rail lines from the BC interior, to Montreal, and many points in between. Freight and passenger rail traffc ground to a halt across most of Canada. Hundreds of cargo ships lay at anchor off the Pacifc and Atlantic coasts and in the St Lawrence Seaway, and goods piled up on the wharves of Vancouver, Prince Rupert, Montreal, and Halifax. Economic disruption arising from the rail blockades was later estimated to be $275 million.136 This pressure brought the governments of Canada and BC to the table, which led to the signing of a memorandum of understanding with the Wet’suwet’en hereditary chiefs: Wet’suwet’en rights and title would hereafter be recognized. However, the contentious pipeline issue was skirted.137 The depth and breadth of support for the Wet’suwet’en refected public sympathy for Indigenous rights as well as wider debates over climate change and the wisdom of pursuing “liquefed natural gas” exports and expanded fossil fuel infrastructure. Just as in the previous year, charges of criminal contempt of court against twenty-two Wet’suwet’en land defenders were dropped in June 2020.138 Counsel for the alleged contemnors, Martin Peters, noted that “the courts have been very quick to support industry,” describing “the ease” with which the injunctions were granted and enforced as “troubling” in light of assertions of unresolved Indigenous rights.139 A petition for judicial review fled by the Offce of the Wet’suwet’en, seeking to quash Environmental Assessment Offce approval of the pipeline, was dismissed by the BC Supreme Court in the spring of 2021.140 The state response to Wet’suwet’en assertions of customary rights since 2018 revealed ongoing deployment of colonial law’s coercive violence in aid of private property interests, as well as the incomplete process of recognition of Indigenous rights within Canadian law. The court’s willingness to grant injunctions sought by private industry for use of Crown land, thereby overriding Indigenous claims, appears to confrm the presence of ongoing structural inequities in the settler legal system, notwithstanding apparent advances for recognition of Indigenous rights in cases such as Tsilhqot’in (2014).141 Some scholars have suggested that despite its far-reaching implications, Tsilhqot’in continues to legitimize Crown sovereignty, legislative authority, and underlying title, thus maintaining a legal hierarchy where Crown title is treated as legally superior to Indigenous title.142 Explosive documents emerged in 2019

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indicating that the RCMP was prepared to use lethal force against the Wet’suwet’en land defenders to enforce the original injunction – revealing a persistent pattern in the response of the Canadian state to Indigenous defance of colonial law extending back to the Red River Rebellion 150 years earlier.143 This chapter has served as a preliminary inquiry into a vital and evolving area of law, examining how Indigenous people in late twentieth-century British Columbia challenged colonial property relations, asserting customary claims to land and resources in a manner that provoked coercive legal responses from property owners and institutions of the settler-state. Beginning with the assertion of Indigenous rights by members of the Nuu-chah-nulth Nation at Wah-nah-jus Hilth-hoo-is (Meares Island) in Clayoquot Sound in 1984, we observed pronounced linkages between Indigenous peoples and other social movements, as well as a groundbreaking injunction granted to First Nations by the BC judiciary to restrain the activity of a logging company. Turning to the Haida blockade against logging at Tllga Kun Gwaayaay (Lyell Island) in 1985, we observed how a legal controversy involving seventy-two arrests ultimately had a farreaching political impact on the Haida Nation and its relationship with land, natural resources, and the Canadian state. The more recent episode of the Wet’suwet’en struggle against the Coastal GasLink pipeline discussed in the postscript points to the uneven advance of Indigenous rights within the settler law of Canada. Reconciling Indigenous law and settler law – and Indigenous and settler claims to property – will remain a defning legal question and challenge in BC and Canada for the foreseeable future. Consistent with the pattern traced through the case studies in this chapter, Indigenous people will continue to join forces with social movements and non-Indigenous allies to advance customary and constitutional property claims – as they did from Wah-nah-jus Hilth-hoo-is to Tllga Kun Gwaayaay to the Unist’ot’en Camp. These Indigenous assertions of rights will continue to provoke responses by an array of legal actors – corporations, lawyers, judges, police, and legislators – thus exposing contested social relations of adjudication over Indigenous rights and striking at the root of the Crown’s authority to make and enforce law. In this new legal reality of increasingly robust and successful assertions of Indigenous customary law and property rights, we are likely to continue to see a remapping of the legal geography and power relations on Canada’s west coast.

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NOTES 1 The island of Tllga Kun Gwaayaay (Lyell Island) is at times referred to as Athlii Gwaii, after the movement that came together at that location to protect the larger Gwaii Haanas area. I have used the term Lyell Island for the remainder of this chapter. For a discussion of the place name, see Jisgang Nika Collinson, ed., Athlii Gwaii: Upholding the Law at Lyell Island (Vancouver: Locarno Press, 2018), xi. 2 See MacMillan Bloedel v. Mullin; Martin v. R. in Right of BC, 1985 BCCA 154. For the legal test for the granting of an injunction that was in effect in British Columbia in 1985, see Wheatley v. Ellis and Hendrickson (1944) 61 B.C.R. 55. For the current legal test in Canada for the granting of an injunction, see RJRMacDonald Inc v. Canada (AG), [1995] 3 S.C.R. 199. 3 Shiri Pasternak and Irina Ceric, “Injunctions have only served to prove the point: Canada is a smash-and-grab country for industry,” Globe and Mail, 28 February 2020; Irina Ceric, “Beyond Contempt: Injunctions, Land Defense, and the Criminalization of Indigenous Resistance,” South Atlantic Quarterly 119, no. 2 (April 2020): 353–69; Tyler McCreary and Jerome Turner, “The Contested Scales of Indigenous and Settler Jurisdiction: Unist’ot’en Struggles with Canadian Pipeline Governance,” Studies in Political Economy 99, no. 3 (February 2019): 1–23; Tyler McCreary, “Between the Commodity and the Gift: The Coastal GasLink Pipeline and the Contested Temporalities of Canadian and Witsuwit’en Law,” Journal of Human Rights and the Environment 11 (December 2020): 122–45. 4 Calder v. British Columbia (Attorney General), 1973 SCR 313; R. v. Taylor and Williams, 1981 34 OR (2d) 360; Guerin v. The Queen, 1984 2 SCR 335; R. v. Sparrow, 1990 1 SCR 1075; R. v. Marshall, 1990 3 SCR 456; R. v. Van der Peet, 1996 2 SCR 507; Delgamuukw v. British Columbia, 1997 3 SCR 1010; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44. 5 “Ulkatcho band wants say in development,” Williams Lake Tribune, 22 January 1985, 5. 6 See John Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010); John Borrows, “With or Without You: First Nations Law (in Canada),” McGill Law Journal, 41 (1996): 629–65; John Borrows, “Indigenous Legal Traditions,” Journal of Law and Policy, 19 (2005): 167–223; John Borrows and Leonard I. Rotman, “The Sui Generis Nature of Aboriginal Rights: Does It Make a Difference?” Alberta Law Review, 36, no. 1 (1997): 9–45; Taiaiake Alfred, Peace, Power, Righteousness: An Indigenous Manifesto (Toronto: Oxford University Press, 1999); Don Monet and Skanu’u (Ardythe Wilson), Colonialism on Trial: Indigenous Land Rights and the Gitksan and

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Wet’suwet’en Sovereignty Case (Gabriola Island: New Society, 1992); Glen Sean Coulthard, Red Skin, White Masks: Rejecting the Colonial Politics of Recognition (Minneapolis: University of Minnesota Press, 2014); Hamar Foster, Heather Raven, and Jeremy Webber, eds., Let Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights (Vancouver: UBC Press, 2007); Alan Hanna, “Making the Round: Aboriginal Title in the Common Law from a Tsilhqot’in Legal Perspective,” Ottawa Law Review, 45, no. 3 (2015): 365–402; Tyler McCreary, “Historicizing the Encounter between State, Corporate, and Indigenous Authorities on Gitxsan Lands,” Windsor Yearbook of Access to Justice, 33, no. 3 (2016): 163–97; Gordon Christie, “Indigeneity and Sovereignty in Canada’s Far North: The Arctic and Inuit Sovereignty,” South Atlantic Quarterly, 110, no. 2 (2011): 329–46. Jisgang, Athlii Gwaii, 139; Nicholas Blomley, “‘Shut the province down’: First Nations Blockades in British Columbia, 1984–1995,” BC Studies, 111 (Autumn 1996): 5–35; Steven Point, “Understanding Native Activism,” BC Studies, 89 (Spring 1991): 124–9; Shiri Pasternak and Dayna Nadine Scott, “Introduction: Getting Back the Land,” South Atlantic Quarterly, 119, no. 2 (April 2020): 205–13; Ceric, “Beyond Contempt,” 353–69; McCreary and Turner, “The Contested Scales”; Tyler McCreary, “Between the Commodity and the Gift: The Coastal GasLink Pipeline and the Contested Temporalities of Canadian and Witsuwit’en Law,” Journal of Human Rights and the Environment, 11 (December 2020): 122–45; Michael Simpson and Philippe Le Billon, “Reconciling Violence: Policing the Politics of Recognition,” Geoforum, 119 (February 2021): 111–21; Yale D. Belanger and P. Whitney Lackenbauer, Blockades or Breakthroughs?: Aboriginal Peoples Confront the Canadian State (Montreal and Kingston: McGill-Queen’s University Press, 2015). See also Nicholas Blomley, “Law, Property, and the Geography of Violence: The Frontier, the Survey, and the Grid,” Annals of the Association of American Geographers, 93, no. 1 (March 2003): 121–41. Sarah Morales, “Snuw’uyulh: Fostering an Understanding of the Hul’qumi’num Legal Tradition” (PhD diss., University of Victoria, 2014), 9. Borrows, “With or Without You,” 664. See also John Borrows, “Indigenous Legal Traditions,” Journal of Law and Policy, 19 (2005): 167–223; and Borrows and Rotman, “The Sui Generis Nature of Aboriginal Rights.” Calder v. British Columbia (Attorney General), 1973 SCR 313; R. v. Taylor and Williams, 1981 34 OR (2d) 360; Guerin v. The Queen, 1984 2 SCR 335; R. v. Sparrow, 1990 1 SCR 1075; R. v. Marshall, 1990 3 SCR 456; R. v. Van der Peet, 1996 2 SCR 507; Delgamuukw v. British Columbia, 1997 3 SCR 1010; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44. As the Supreme Court of Canada noted in Sparrow (1990), citing favourably from the Court’s previous ruling in

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Guerin (1984), “the sui generis nature of Indian title, and the historic powers and responsibility assumed by the Crown constituted the source of such a fduciary obligation” to Indigenous people. Guerin combined with R. v. Taylor and Williams (1981) provided a “general guiding principle” for the interpretation of s.35(1), that “the Government has the responsibility to act in a fduciary capacity with respect to aboriginal peoples. The relationship between the Government and aboriginals is trust-like, rather than adversarial, and contemporary recognition and affrmation of aboriginal rights must be defned in light of this historic relationship.” Andrea Bowker, “Sparrow’s Promise: Aboriginal Rights in the BC Court of Appeal,” University of Toronto Law Review, 53 (Winter 1995): 1–48. Warren Magnusson, “Introduction: The Puzzle of Political,” in A Political Space: Reading the Global through Clayoquot Sound, ed. Warren Magnusson and Karena Shaw (Minneapolis: University of Minnesota Press, 2002), 10. See also Hamar Foster, “British Columbia: Legal Institutions in the Far West, from Contact to 1871,” Manitoba Law Journal, 23 (1996): 340; Christopher F. Roth, “Without Treaty, without Conquest: Indigenous Sovereignty in Post-Delgamuukw British Columbia,” Wicazo Sa Review, 17, no. 2 (Fall 2002): 143. Barry M. Gough, Gunboat Frontier: British Maritime Authority and Northwest Coast Indians, 1846–90 (Vancouver: UBC Press, 1984); Daniel Clayton, Islands of Truth: The Imperial Fashioning of Vancouver Island (Vancouver: UBC Press, 2000); Chris Arnett, The Terror of the Coast: Land Alienation and Colonial War on Vancouver Island and the Gulf Islands, 1849–1863 (Vancouver: Talonbooks, 1999); R. Cole Harris, Making Native Space: Colonialism, Resistance, and Reserves in British Columbia (Vancouver: UBC Press, 2003). See also Blomley, n7, 411. The role of law and development of settler legal institutions during this colonial period has also been examined by historian Tina Loo. See Tina Loo, Making Law, Order, and Authority in British Columbia, 1821–1871 (Toronto: University of Toronto Press, 1994). Blomley, “‘Shut the province down’: First Nations Blockades in British Columbia, 1984–1995.” See also Steven Point, “Understanding Native Activism,” BC Studies, 89 (Spring 1991): 124–9; Nicholas Blomley, Law, Space, and the Geographies of Power (New York: Guilford Press, 1994); and Blomley, “Law, Property, and the Geography of Violence: The Frontier, the Survey, and the Grid.” For the evolution of the Indian reserves in BC, see Harris, Making Native Space: Colonialism, Resistance, and Reserves in British Columbia.

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16 Hamar Foster, “Roadblocks and Legal History, Part I: Do Forgotten Cases Make Good Law?,” The Advocate, 54, no. 3 (May 1996): 355–6; Foster, “Roadblocks and Legal History, Part II: Aboriginal Title and s. 91(24),” The Advocate, 54, no. 4 (July 1996): 531–46. In a recent national study of Indigenous protest, Yale Belanger and Whitney Lackenbauer suggest that “blockades and occupations are instrumental and symbolic, a means to reshape the spatiality of power and authority.” See Belanger and Lackenbauer, Blockades or Breakthroughs?, 16. Section 91(24) of the Constitution Act, 1867, assigns exclusive legislative authority to the Parliament of Canada for all matters relating to “Indians, and Lands reserved for Indians.” 17 Jisgang, Athlii Gwaii; Elizabeth May, Paradise Won: The Struggle for South Moresby (Toronto: McClelland and Stewart, 1990); Ian Gill, All That We Say Is Ours: Guujaaw and the Reawakening of the Haida Nation (Toronto: Douglas and McIntyre, 2009); Louise Takeda, Islands’ Spirit Rising: Reclaiming the Forests of Haida Gwaii (Vancouver: UBC Press, 2015); Michael Dean, “‘What they are doing to the land, they are doing to us’: Environmental Politics on Haida Gwaii” (MA thesis, University of British Columbia, 2009); Dimitri Portier, “The Meares Island Case: Nuu-chah-nulth vs. the Logging Industry,” European Review of Native American Studies, 14, no. 1 (2000): 31–7; Jonathan Clapperton, “Environmental Activism as Anti-Conquest: The Nuu-chah-nulth and Environmentalists in the Contact Zone of Clayoquot Sound,” in Environmental Activism on the Ground: Small Green and Indigenous Organizing, ed. Jonathan Clapperton and Liza Piper (Calgary: University of Calgary Press, 2018), 181–205. See also Sarah Whatmore’s research on Indigenous challenges to property rights in Australia: Whatmore, “De / ReTerritorializing Possession: The Shifting Spaces of Property Rights,” in Law and Geography, ed. Jane Holder and Carolyn Harrison (New York: Oxford University Press, 2003): 211–23. 18 Remarks by Freda Huston at a public event at the University of Victoria, 17 August 2015. Notes in possession of the author. 19 MacMillan Bloedel v. Mullin; Martin v. R. in Right of BC, 1985 BCCA 154. 20 Christopher Moore, The British Columbia Court of Appeal: The First Hundred Years, (Vancouver: UBC Press, 2010), 133–4. 21 In contrast to Seaton, the two appeal court judges who dissented from his majority decision – William Alastair Craig and James A. MacDonald – were well-connected members of Vancouver’s legal establishment (though Craig worked in criminal rather than corporate law). The two judges who concurred with Seaton in granting the injunction against the logging company were John Douglas Lambert, another relative outsider (who was

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born and raised in Scotland and worked as a government lawyer and then in private practice in Vancouver before being appointed directly to the Court of Appeal at the relatively young age of forty-nine), and Alan Macfarlane of Victoria, son of a Supreme Court Justice, who served as a Liberal MLA prior to being appointed to the bench. See Moore, The British Columbia Court of Appeal, 134–6, 178–81. Clapperton, “Environmental Activism as Anti-Conquest,” 184. See British Columbia, Ministry of Forests, Meares Island Planning Options. MacMillan Bloedel v. Mullin; Martin v. R. in Right of BC, 1985 BCCA 154; “Historical Timeline,” Union of British Columbia Indian Chiefs, www.ubcic .bc.ca/timeline. “Meares Easter Festival,” Ha-Shilth-Sa (Port Alberni), 17 April 1984, 1; “Clayoquots declare Meares Island a Tribal Park,” Ha-Shilth-Sa, 31 May 1984, 5; Eric Plummer, “Wave of clearcuts meets unifed opposition on Meares Island 35 years ago,” Ha-Shilth-Sa, 22 April 2019. “Clayoquots declare Meares Island a Tribal Park,” Ha-Shilth-Sa, 31 May 1984, 5. “Widespread support for the preservation of Meares Island,” Ha-Shilth-Sa, 16 October 1984, 1. “Community fghts plans for logging on BC island,” Globe and Mail, 21 November 1984; “Logging frm gets injunction against Meares protesters,” Globe and Mail, 4 December 1984. Michael Mullin, interviewed by Benjamin Isitt, Tofno, BC, 24 May 2014; Shayne Morrow, “Chief councillor remembers the frst days of a long battle on Meares,” Ha-Shilth-Sa, 25 April 2014. MacMillan Bloedel v. Mullin; Martin v. R. in Right of BC, 1985 BCCA 154. See also Portier, “The Meares Island Case,” 33–4. “Logging frm gets injunction against Meares protesters,” Globe and Mail, 4 December 1984; “Judge won’t ban activists from island logging site,” Globe and Mail, 18 December 1984. The Supreme Court of Canada’s decision in Guerin was released on 1 December 1984. See Guerin v. The Queen, 1984 2 SCR 335. “Judge won’t ban activists from island logging site,” Globe and Mail, 18 December 1984; MacMillan Bloedel v. Mullin; Martin v. R. in Right of BC, 1985 BCCA 154. See also Ontario (Attorney-General) v. Bear Island Foundation, 1984 ONSC 2136; David T. McNab, No Place for Fairness: Indigenous Land Rights and Policy in the Bear Island Case and Beyond (Montreal and Kingston: McGillQueen’s University Press, 2009). “Judge won’t ban activists from island logging site,” Globe and Mail, 18 December 1984.

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35 “Court lets MacMillan Bloedel start logging on BC island,” Globe and Mail, 26 January 1985; “BC Indians vow to halt logging on island,” The Gazette (Montreal), 28 January 1985; MacMillan Bloedel v. Mullin; Martin v. R. in Right of BC, 1985 BCCA 154. 36 “BC Indians vow to halt logging on island,” The Gazette (Montreal), January 1985. 37 Portier, “The Meares Island Case,” 34. 38 “Meares logging could be bloody, BC Indian says,” Globe and Mail, 30 January 1985; MacMillan Bloedel v. Mullin; Martin v. R. in Right of BC, 1985 BCCA 154. 39 Portier, “The Meares Island Case,” 34. 40 MacMillan Bloedel v. Mullin; Martin v. R. in Right of BC, 1985 BCCA 154. 41 Ibid. 42 Ibid. 43 Ibid. 44 William K. Carroll, “Social Movements and Counter-Hegemony,” in World to Win: Contemporary Social Movements and Counter-Hegemony, ed. William K. Carroll and Kanchan Sarker (Winnipeg: ARP Books, 2016), 59. 45 See Brian Gory, “Appeal court prohibits Meares Island logging,” Globe and Mail, 28 March 1985; Gary Mason, “Battle for Meares Island is key to settlement of claims,” Times Colonist, 16 June 1985, A5; “Injunction against logging still stands in BC,” Globe and Mail, 1 August 1985. 46 Portier, “The Meares Island Case,” 35–6. 47 Iisaak Forest Resources, Sustainable Forest Management Plan (2011), www. iisaak.com; Karena Shaw, “Encountering Clayoquot: Reading the Political,” in A Political Space: Reading the Global through Clayoquot Sound, ed. Warren Magnusson and Karena Shaw (Montreal and Kingston: McGill-Queen’s University Press, 2002), 54–7; Portier, “The Meares Island Case,” 36–7; Clapperton, “Environmental Activism as Anti-Conquest,”194–5. In 2011, fve Nuu-chah-nulth communities entered into the Maa-nulth First Nations Final Agreement (Maa-nulth Treaty) with the Governments of British Columbia and Canada: the Huu-ay-aht First Nations, Ka:’yu:’k’t’h’/Che:k’tles7et’h’ First Nations, Toquaht Nation, Uchucklesaht Tribe, and Yuułu ił ath First Nation. The Tla-o-qui-aht and Ahousaht First Nations, whose elected chiefs and members were most extensively involved in the Meares Island movement and litigation, are not parties to this agreement. See Government of British Columbia, “Maa-nulth First Nations Final Agreement” (2011), https://www2.gov.bc.ca/gov/content/environment/natural-resource -stewardship/consulting-with-frst-nations/frst-nations-negotiations/frst -nations-a-z-listing/maa-nulth-frst-nations.

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48 See “Queen Charlotte Timber Supply Area” and “South Moresby Supply Block,” n.d. (c. 1985), in LAC, Greenpeace Canada fonds (hereafter Greenpeace fonds), R4377, vol. 26, fle 26–7, “Forestry campaign to save Old Growth forests, 1981–1985.” 49 See Scott Rutherford, Canada’s Other Red Scare: Indigenous Protest and Colonial Encounters during the Global Sixties (Montreal and Kingston: McGill-Queen’s University Press, 2020); and Frank Zelko, Make It a Green Peace! The Rise of Countercultural Environmentalism (Oxford: Oxford University Press, 2013). 50 Minutes of the Council of the Haida Nation, 7 December 1974, as ctd in “Council of the Haida Nation,” Council of the Haida Nation, https://www .haidanation.ca/chn; Constitution of the Haida Nation, as amended October 2018, Council of the Haida Nation, https://www.haidanation.ca. See also Haada ‘Las (Old Massett), April 1975. 51 “Athlii Gwaii: 25 Years Down the Road,” Haida Laas (Old Massett), November 2010, 3; Jisgang, Athlii Gwaii, 87–94; May, Paradise Won. 52 Jisgang, Athlii Gwaii, 10–11, 148–9. 53 John Goddard, “Haida vs. loggers: A polite drama,” The Gazette (Montreal), 27 November 1985; “Haidas vow to keep up struggle against South Moresby logging,” Ottawa Citizen, 9 July 1986; “9 Haida will renounce citizenship to protest logging on BC island,” The Gazette (Montreal), 15 July 1986. 54 Guujaaw, interviewed by Benjamin Isitt, Vancouver, 25 May 2015; Collison, ed., Athlii Gwaii, 11–12, 150; “Injunction delayed,” Victoria Times, 10 February 1979, 13; “Haidas threaten hunting ‘war,’” Victoria Times, 22 February 1979, 6. See also “Rayonier letters under fre,” Victoria Times, 6 October 1978, 10; “Rayonier ‘double talk,’” Victoria Times, 9 March 1978, 9; “Petition seeks Moresby hearing,” Victoria Times, 31 January 1979, 7; “Save-Moresby group confused over chance,” Victoria Times, 7 February 1979, 12. 55 “Supreme Court rejects tree farm hearings,” Victoria Times, 7 March 1979, 1; “Hearing not needed,” Alberni Valley Times, 7 March 1979, 6; “Athlii Gwaii: 25 Years Down the Road,” 3. 56 “Moresby tree-farm license challenged,” Vancouver Sun, 2 March 1981, A3; “Queen Charlotte tree license protested,” Vancouver Province, 5 March 1981, C10; “Logging challenge rejected,” Vancouver Sun, 30 March 1981, D1. See also “Charlottes’ row pushed to courts,” Victoria Times, 20 April 1979, 8; “Waterland to meet petitioners,” Victoria Times, 21 April 1979, 15; Moira Farrow, “Moresby: An island awaiting its fate,” Vancouver Sun, 19 July 1980, H6; and “Forest managers blasted,” Vancouver Sun, 3 May 1982, A13. According to one source, an appeal was unsuccessful, with the Supreme Court of Canada refusing to hear an appeal, describing it as a “provincial matter.” See “Athlii Gwaii: 25 Years Down the Road,” 3.

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57 Jisgang, Athlii Gwaii, 12, 150; May, Paradise Won, 47. 58 Jisgang, Athlii Gwaii, 15, 151. See also Constitution of the Haida Nation, as amended October 2018, Council of the Haida Nation, https://www .haidanation.ca. 59 Jisgang, Athlii Gwaii, 78–81, 131–4. 60 John Goddard, “Haida vs. loggers: a polite drama,” The Gazette (Montreal), 27 November 1985; Jisgang, Athlii Gwaii, 151. 61 “Haidas want Queen Charlottes preserved,” Alberni Valley Times, 19 June 1984, 1; Jisgang, Athlii Gwaii, 152. 62 Guujaaw interview, 25 May 2015. See also Jeff Lee, “Guujaaw: A man of his people,” Vancouver Sun, 16 March 2002; Ian Gill, All That We Say Is Ours: Guujaaw and the Reawakening of the Haida Nation (Toronto: Douglas and McIntyre, 2009). 63 “BC island logging jobs are lost forever, forestry boss says,” Toronto Star, 8 July 1987. 64 John Cruikshank, “Loggers to seek injunction against Haida,” Globe and Mail, 4 November 1985. 65 “Logging, oil drilling decisions loom for ‘Canadian Galapagos,” Los Angeles Times, 27 October 1985. 66 Gillian Shaw, “Indians set deadline to stop tree cutting,” Vancouver Sun, 17 August 1985; Jisgang, Athlii Gwaii, 152. 67 John Goddard, “Haida vs. loggers: a polite drama,” The Gazette (Montreal), 27 November 1985. 68 See Jeremy Wilson, Talk and Log: Wilderness Politics in British Columbia (Vancouver: UBC Press, 1998). See also Wilderness Advisory Committee series, acc. no. 1995–006, 1995–036, Sierra Club fonds, AR117, University of Victoria Archives and Special Collections. 69 Guujaaw interview, 25 May 2015. 70 Terry Glavin, “We are staying here: Haidas,” Vancouver Sun, 31 October 1985, A1, A10; Jisgang, Athlii Gwaii, 30. 71 BC Haida block road,” Globe and Mail, 31 October 1985. 72 Western Forest Products Ltd. v. Collinson et al., 1985, BC Supreme Court Vancouver Registry No. C854987; Frank Beban Logging Ltd. v. Collinson et al., 1985, BC Supreme Court Vancouver Registry No. C8549788; Jisgang, Athlii Gwaii, 144. 73 John Cruikshank, “Leave us more than stumps, Haida tell Vancouver judge Cruickshank,” Globe and Mail, 7 November 1985; “BC judge forbids Haida Indians from obstructing island logging,” Globe and Mail, 9 November 1985; “Judge orders Haidas to let logging proceed on BC island,” Ottawa Citizen, 9 November 1985; “Lumber company seeks injunctions,” Ottawa Citizen, 2

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November 1985; “Logging blockade dispute delayed as lawyer sought,” Globe and Mail, 6 November 1985; “Logging companies to open new road after BC court gives access to island,” Globe and Mail, 12 November 1985. The Globe and Mail reported that in granting the injunctions, “the decision was the frst in recent months to go against natives in their battles over aboriginal rights.” See “BC judge forbids Haida Indians from obstructing island logging,” Globe and Mail, 9 November 1985; Jisgang, Athlii Gwaii, 154. Jisgang, Athlii Gwaii, 10, 144. “Haidas face action in blocking loggers,” Globe and Mail, 15 November 1985; “Haidas block loggers despite injunctions,” The Gazette (Montreal), 15 November 1985; “Indians let loggers visit camp,” Globe and Mail, 14 November 1985. “Indians let loggers visit camp,” Globe and Mail, 14 November 1985. “Haidas form human blockade to prevent logging on BC island,” Ottawa Citizen, 15 November 1985. “Loggers embroiled in dispute with Haidas to return to work,” Ottawa Citizen, 16 November 1985. See also “Haidas block loggers despite injunctions,” The Gazette (Montreal), 15 November 1985. See 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). “RCMP prepare for Haida-loggers showdown,” Ottawa Citizen, 13 November 1985; “RCMP hopes to avert logging confrontation,” Globe and Mail, 13 November 1985; “Loggers embroiled in dispute with Haidas to return to work,” Ottawa Citizen, 16 November 1985; Goddard, “Haida vs. loggers: A polite drama,” The Gazette (Montreal), 27 November 1985; Jisgang, Athlii Gwaii, 45–50. The legal authority behind the RCMP’s decision to enforce the court order was discussed by RCMP Superintendent Robert Currie, who told the media from Prince Rupert that he had been given a “free hand” to make decisions by the provincial Attorney General: “’I felt it was our responsibility to enforce the court order. As long as they continue to block the road, we will continue to make arrests.” Currie said there was ample room at RCMP facilities in Queen Charlotte City or Sandspit to confne the Haida if the need arose, “but it is not our intention to hold anybody.” See “Haida preparing for long struggle,” Globe and Mail, 19 November 1985. “Haidas form human blockade to prevent logging on BC island,” Ottawa Citizen, 15 November 1985; “10 more Haida Indians arrested while blocking logging on Queen Charlotte Islands,” Ottawa Citizen, 19 November 1985; Goddard, “Haida vs. loggers,” Jisgang, Athlii Gwaii, 43.

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83 “Three Haida elders are arrested in logging protest on BC island,” The Gazette (Montreal), 18 November 1985. 84 “Haida preparing for long struggle”; “10 more Haida Indians arrested while blocking logging on Queen Charlotte Islands,” Ottawa Citizen, 19 November 1985; “12 more Haida Indians arrested,” Ottawa Citizen, 21 November 1985; “28 Haida are arrested in BC logging protest,” Globe and Mail, 26 November 1985; John Cruikshank, “Haida not criminals, judge tells B.C. court,” Globe and Mail, 29 November 1985; “Haida ready to resume anti-logging protests,” The Gazette (Montreal), 9 January 1986. 85 John Goddard, “Haida vs. loggers.” 86 Hansard, Report of Debates of the House of Commons, 18 November 1985, 8534–35; “10 more Haida Indians arrested.” 87 Jisgang, Athlii Gwaii, 144. 88 “10 Haida convicted in logging case,” Globe and Mail, 30 November 1985. See also Christie McLaren, “Struggle called ‘human rights issue’; Churches back Haida in forestry feud,” Globe and Mail, 27 November 1985. 89 “10 Haida convicted in logging case,” Globe and Mail, 30 November 1985; “BC misled over timber, offcial says,” Globe and Mail, 3 December 1985. 90 John Cruikshank, “Angered judge gives suspended sentences to Haida protesters,” Globe and Mail, 7 December 1985; “MP fned and 9 haidas get suspended sentences for contempt of court,” Ottawa Citizen, 7 December 1985; Jisgang, Athlii Gwaii, 41, 144. 91 Guujaaw interview, 25 May 2015. 92 Jisgang, Athlii Gwaii, 21, 23, 144, 157–8. 93 John Cruikshank, “10 Haida ponder jail in logging protest,” Globe and Mail, 2 December 1985. 94 John Cruikshank “Angered judge; Burnaby MP refuses to apologize for taking part in Haida blockade,” Globe and Mail, 6 December 1985; “MP cited,” The Gazette (Montreal), 25 November 1985; Cruikshank, “Haida not criminals”; Jisgang, Athlii Gwaii, 144. Robinson told the media that the decision to stand with the Haida on Lyell Island wasn’t an easy one, given that he was a lawyer and the NDP’s justice critic, but that “there is a point where you have to stand up for what you believe.” During the sentencing hearing, Robinson would not apologize to the court for defying the injunction, but he agreed not to return to the blockade. See RCMP hopes to avert logging confrontation,” Globe and Mail, 13 November 1985; Jisgang, Athlii Gwaii, 23, 144. 95 Larry Pyn, “Lyell Island: 25 Years Later,” Vancouver Sun, 17 November 2010. 96 Guujaaw interview, 25 May 2015. 97 British Columbia Government Employees’ Union v. British Columbia (AG), [1988] 2 S.C.R. 214.

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98 “Crown stays last of charges against Haida,” Globe and Mail, 30 May 1986; “Charges dropped against 61 Haida,” Ottawa Citizen, 30 January 1986; Dan Smith, “BC minister a victim of battle for Lyell Island,” Toronto Star, 21 January 1986; “8 Haida Indians choose jury trials,” Vancouver Sun, 27 February 1986; “Haida elect trial by judge, jury,” Ottawa Citizen, 27 February 1986; “Haida ready to resume anti-logging protests,” Montreal Gazette, 9 January 1986. 99 “Canadian Indians resist loggers: Support grows for Haidas’ fght against British Columbia,” Washington Post, 6 December 1985; and Jane O’Hara, “The battle for an island forest,” Maclean’s, 9 December 1985. 100 LAC, Greenpeace fonds, R4377, vol. 25, fle 25–20, “Forests – South Moresby Wilderness, 1983–1984”; and vol. 26, fle 26–1, “Forests – South Moresby Wilderness, 1985–1987.” See also “Haida Nation pleads for money as blockade expenses increase,” Globe and Mail, 28 November 1985; “Cockburn concert to aid the Haidas,” Vancouver Sun, 3 January 1986; “Cockburn’s beneft concerts raise $35,000 for Haidas,” Ottawa Citizen, 24 February 1986; “Haidas vow to keep up struggle against South Moresby logging,” Ottawa Citizen, 9 July 1986; “Cockburn helps Haidas,” Ubyssey (Vancouver), 25 February 1986; and Jisgang, Athlii Gwaii, 87–97, 159–60. 101 “Native group urges battle with Socreds,” Vancouver Sun, 5 November 1985; “Native Brotherhood promising big fght,” Nanaimo Daily Free Press, 5 November 1985; “Native loggers vow to see land claims settled,” Alberni Valley Times, 5 November 1985, 2. 102 “Haida promised aid in Lyell Island stand,” Globe and Mail, 22 November 1985; “Haidas face action in blocking loggers,” Globe and Mail, 15 November 1985; Jisgang, Athlii Gwaii, 100–1, 155. See also “Indians in BC risk jail terms to force settlement of their land claims,” Ottawa Citizen, 21 November 1985. 103 “Athlii Gwaii: 25 Years Down the Road,” 7; Jisgang, Athlii Gwaii, 20; “Moresby row takes to the road,” Vancouver Sun, 27 February 1986. 104 Guujaaw interview, 25 May 2015; Dan Smith, “BC minister a victim of battle for Lyell Island,” Toronto Star, 21 January 1986; John Cruikshank, “BC axes new permits for Lyell Island logging,” Globe and Mail, 8 February 1986; Howard Fluxgold,“BC Opposition Leader sued by minister,” Financial Post, 8 February 1986. Forests minister Thomas Waterland resigned from the cabinet in January 1986 after it was revealed that he held a $20,000 investment in a pulp mill wholly owned by Western Forest Products that relied on Lyell Island timber, through an entity called the Western Pulp Partnership. Energy minister Stephen Roger, who sat on the BC cabinet environment and land use committee, held a $100,000 investment in the

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mill, which he sold in the heat of the controversy, retaining his ministerial portfolio. John Cruikshank, “Loggers seek injunction against Haida,” Globe and Mail, 4 November 1985; John Goddard, “Haida vs. loggers: a polite drama,” The Gazette (Montreal), 27 November 1985; “Haidas face action in blocking loggers,” Globe and Mail, 15 November 1985. BC’s Social Credit Attorney General Brian Smith reiterated the provincial government’s refusal to recognize or negotiate Aboriginal land claims shortly after the Haida had initiated the blockade on Lyell Island. Later in November 1985, BC Forests Minister Tom Waterland articulated the same policy: “The British North America Act in our opinion does not provide native Indians with title to land other than that which they have as reserves.” Dan Smith, “Temporary truce calms Haida-BC dispute,” Toronto Star, 19 December 1985; “Native group urges battle with Socreds,” Vancouver Sun, 5 November 1985. Anonymous informant, interview with author, Victoria, 1 January 2018. “BC sets terms for meeting Haida,” Ottawa Citizen, 26 November 1985; “Haida Nation pleads for money as blockade expenses increase,” Globe and Mail, 28 November 1985. Dan Smith, “Temporary truce calms Haida-BC dispute,” Toronto Star, 19 December 1985. Smith had earlier offered to meet with Richardson on behalf of the Haida on the condition that the civil disobedience campaign be called off and that the talks not be interpreted as negotiations over Aboriginal title. “Haida set to renew battle over logging in wilderness area,” Toronto Star, 20 January 1986; “Haida reopen Lyell Island camp,” Globe and Mail, 9 January 1986; Jisgang, Athlii Gwaii, 23, 158–9. “Logging going ahead on Queen Charlottes with BC’s approval,” Globe and Mail, 10 July 1986; “Logging resuming on BC’s Lyell Island,” Toronto Star, 10 July 1986; “Indians to drop citizenship in protest against logging,” Globe and Mail, 15 July 1986: “9 Haida will renounce citizenship to protest logging on BC island,” The Gazette (Montreal), 15 July 1986; “Haidas vow to keep up struggle against South Moresby logging,” Ottawa Citizen, 9 July 1986; John Cruikshank, “BC axes new permits for Lyell Island logging,” Globe and Mail, 8 February 1986. “Logging OK,” The Gazette (Montreal), 6 March 1986; Rudy Platiel, “Moresby logging is called vandalism,” Globe and Mail, 11 March 1986; Jisgang, Athlii Gwaii, 23, 75–6, 160. See also Wilderness Advisory Committee series, acc. no. 1995–006, 1995–036, Sierra Club fonds, AR117, University of Victoria Archives and Special Collections.

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112 Glen Bohn, “Logger slams idea of Lyell Island ban,” Vancouver Sun, 21 February 1987; “Lyell Island logger Frank Beban dies of heart attack,” Vancouver Sun, 27 July 1987; “Charges dropped against logging frms,” Globe and Mail, 13 August 1986; Mark Hume,“Creek clean-up for prince cancelled,” Vancouver Sun, 12 June 1987; Terry Glavin,“Stall on charging logging frm claimed by NDP MP Fulton,” 5 November 1988; Ben Parftt, “First step complete on Lyell replanting,” Vancouver Sun, 27 June 1989. 113 “Laid-off loggers fnd new jobs,” Globe and Mail, 29 April 1986. 114 “Logging company faces moratorium,” Globe and Mail, 23 March 1987; Gordon Monkman, “Save South Moresby,” Globe and Mail, March 23, 1987; Tim Harper, “Fighting over the axing of a paradise,” Toronto Star, 20 March 1987; “No easy answer,” Globe and Mail, 21 March 1987; “Haida return to Lyell Island,” Vancouver Sun, 30 March 1987; Glen Bohn and Tom Barrett, “Logger awaits permits to resume Lyell work,” Vancouver Sun, 17 June 1987; “BC island logging jobs are lost forever, forestry boss says,” Toronto Star, 8 July 1987. 115 “South Moresby Agreement,” BC Government press release, 11 July 1987, in LAC, Greenpeace fonds, R4377, vol. 26, fle 26–2, “Forests – South Moresby Wilderness, 1987–1991”; Miro Cernetig, “Haida delight over park tempered with concerns about land claim,” Vancouver Sun, 13 July 1987; Bill Shiller, “Indians welcome Ottawa’s support in their fght to preserve BC island,” Toronto Star, 11 March 1986; Ian Gill, “Moresby park deal reached,” Vancouver Sun, 7 July 1987; “Ottawa, BC make a deal on national park for South Moresby,” The Gazette (Montreal), 7 July 1987; “BC loggers decry jobs lost for park in South Moresby,” Globe and Mail, 8 July 1987; Glan Bohn, “All Commons parties back Charlottes park,” Vancouver Sun, 14 May 1987; Glen Bohn, “Year-old Moresby park pact still in log jam,” Vancouver Sun, 11 July 1988; “Deal reached on Moresby Park,” Ottawa Citizen, 12 July 1988; Jisgang, Athlii Gwaii, 160–5; May, Paradise Won. 116 Jisgang, Athlii Gwaii, 72–3, 76. 117 See Jisgang, Athlii Gwaii, 25, 109–15; Guujaaw interview, 25 May 2015. For a description of the co-management agreement between the Haida and Canada, as well as Guujaaw’s strong views on the term “park,” see Transcript of Panel no. 11, Vancouver, 15 December 2010, 59–62, from “Evidence of Public Hearings of the Commission of Inquiry into the Decline of Sockeye Salmon in the Fraser River,” Watershed Watch Salmon Society, https://watershedwatch.ca/topic-area/cohen-commision-materials, hereafter Cohen Commission Evidence; Jisgang, Athlii Gwaii, 119–28; Molly Clarkson, “Speaking for Sockeye, Speaking for Themselves: First Nations Engagement in the Cohen Commission, 2009–2012” (MA thesis, University of British Columbia, 2016); Haida Gwaii Reconciliation Act, SBC 2010, c.17.

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118 “BC island logging jobs are lost forever, forestry boss says,” Toronto Star, 8 July 1987. 119 “BC loggers decry jobs lost for park in South Moresby,” Globe and Mail, 8 July 1987; “BC island logging jobs are lost forever, forestry boss says,” Toronto Star, 8 July 1987. See also Gordon Hamilton, “Haida-BC deal ‘bleak’ for coastal loggers,” Vancouver Sun, 22 August 2007. In 2006, an analysis of socio-economic conditions on Haida Gwaii prepared for the BC government noted that the non-Indigenous population of the archipelago had declined by 26 per cent between 1981 and 2001 (from 4,719 to 3,485), while the Indigenous population on the Old Massett and Skidegate reserves had increased by 60 per cent over the same period (from 902 to 1,450). The report noted that “the largest drop was on Moresby Island, mainly the result of establishing the Gwaii Haanas protected area,” with the population of Moresby Island, where Sandspit is located, declining from 1,278 to 460 people between 1981 and 2001. See Pierce Lefebvre, Socio-Economic Assessment of Haida Gwaii / Queen Charlotte Islands Land Use Viewpoints: Final Report (Vancouver: Pierce Lefebvre Consulting for BC Ministry of Agriculture and Lands, Integrated Land Management Bureau, March 2006), 75. 120 “Lyell logger hailed by Haida,” Vancouver Sun, 28 July 1987; “Lyell Island logger Frank Beban dies of heart attack,” Vancouver Sun, 27 July 1987; “Frank Beban lost battle to log Lyell,” Toronto Star, 28 July 1987. See also Lisa Fitterman, “Victoria pays $480,000 for laid-off loggers,” Vancouver Sun, 5 October 1987; and Glen Bohn,“Moresby money delay leaves loggers in limbo,” Vancouver Sun, 22 January 1988. 121 John F. Burn, “With logging banned, the logger is mourned,” New York Times, 15 August 1987. 122 Signifcant cases relating to competing claims to forest resources include action by members of the Kwakwaka’wakw Nation to prevent logging at Deer Island off Alert Bay in the Broughton Archipelago in 1986, protracted legal proceedings involving the Okanagan Indian Band in the 1990s, and, more recently, litigation by the Tsilhqot’in Nation. In 1999, BC Supreme Court Justice Jon Sigurdson granted an injunction to the BC Minister of Forests restraining several First Nations in the Okanagan region from logging without a valid permit, in contravention of s.143 of the Forest Practices Code. Sigurdson ruled in British Columbia (Minister of Forests) v. Okanagan Indian Band that the public interest in seeing the existing law upheld was not easily outweighed by any prejudice to the defendant, even in the face of assertion of s.35 Aboriginal rights: “The just and equitable order in these circumstances is to ensure the governing law is enforced while allowing the respondents’ assertions of aboriginal title to be determined as

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expeditiously as possible. I grant the injunctions on that basis.” See British Columbia (Minister of Forests) v. Wilson, 1999 BCSC 1723; British Columbia (Minister of Forests) v. Derrickson, 1999 BCSC 1724; British Columbia (Minister of Forests) v. Okanagan Indian Band, 2000 BCSC 32; British Columbia (Minister of Forests) v. Adams Lake Indian Band, 2000 BCCA 98; British Columbia (Minister of Forests) v. Adams Lake Indian Band, 2000 BCCA 315; British Columbia (Minister of Forests) v. Wilson, 2000 BCSC 1135; British Columbia (Minister of Forests) v. Adam Lake Band, 2001 BCCA 647); and British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 371. Nicholas Blomley, “‘Shut the province down’: First Nations Blockades in British Columbia, 1984–1995.” BC Studies, 111 (Autumn 1996): 5–35. See also “Indians in BC risk jail terms to force settlement of their land claims,” Ottawa Citizen, 21 November 1985. See Nicholas D. Shrubsole, “The Sun Dance and the Gustafsen Lake Standoff: Healing through Resistance and the Danger of Dismissing Religion,” International Indigenous Policy Journal, 2, no. 4 (October 2011): 1–17. See also Shrubsole, “Religion, Land, and Democracy in Canadian Indigenous-State Relations” (PhD dissertation, University of Waterloo, 2013); Ben David Mahony, “‘Disinformation and Smear’: The Use of State Propaganda and Military Force to Suppress Aboriginal Title at the 1995 Gustafsen Lake Standoff” (MA thesis, University of Lethbridge, 2001); Sandra Lambertus, Wartime Images, Peacetime Wounds: The Media and the Gustafsen Lake Standoff (Toronto: University of Toronto Press, 2004); and Splitting the Sky, The Autobiography of Splitting the Sky: From Attica to Gustafsen Lake (Chase: John Pasquale Boncore, 2001), 94. Martin J. Morris, “Overcoming the Barricades: The Crisis at Oka as a Case Study in Political Communication,” Journal of Canadian Studies, 30 (Summer 1995): 79. Shiri Pasternak and Hayden King, Land Back: A Yellowhead Institute Red Paper (Toronto: Yellowhead Institute, 2019), 10. See also Shiri Pasternak and Dayna Nadine Scott, “Introduction: Getting Back the Land,” South Atlantic Quarterly, 119, no. 2 (April 2020): 205–13; Irina Ceric, “Beyond Contempt: Injunctions, Land Defense, and the Criminalization of Indigenous Resistance,” South Atlantic Quarterly, 119, no. 2 (April 2020): 353–69; and Behn v. Moulton Contracting Ltd., 2013 SCC 26. In a case in New Brunswick from 2013 (which, while not binding on BC courts, may have a persuasive effect), the Court of Queen’s Bench refused to grant an injunction to the Elsipogtog First Nation to halt exploration for shale gas on its territory. The First Nation asserted that the provincial government and SWN Resources Canada had not adequately consulted them as required under s.35 of the Constitution

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Act, 1982. Justice Judy Clandening ruled against the First Nation, fnding that the question of whether adequate consultation had occurred should be determined at trial, rather than at the interlocutory injunction stage, thus denying the application and allowing the company’s gas exploration work to proceed. In response, members of the First Nation blockaded a provincial highway, preventing the frm from accessing its exploration site, and, in the weeks that followed, mustered through extra-judicial means suffcient political power to force the company’s retreat from the province. See Andrea Schmidt, “Anti-fracking activists denied injunction in Canada,” Al Jazeera, 18 November 2013; “SWN ending exploration work in NB, will be back in 2015: Elsipogtog War Chief Levi,” APTN News, 6 December 2013. Coastal GasLink Pipeline Ltd. v. Huson, 2018 BCSC 2343. “14 arrested as RCMP break gate at Gidimt’en camp checkpoint set up to stop pipeline company access,” CBC News Online, 7 January 2019; Pasternak and King, Land Back, 29–30. “Hereditary chiefs in B.C. stand opposed to Coastal GasLink pipeline despite injunction,” CBC News Online, 7 January 2019. Delgamuukw v. British Columbia, 1997 3 SCR 1010; Tyler McCreary, “The Burden of Sovereignty: Court Confgurations of Indigenous and State Authority in Aboriginal Title Litigation in Canada,” North American Dialogue, 17, no. 2 (2014): 64–78; McCreary and Turner, “The Contested Scales,” 1–23; McCreary, “Between the Commodity and the Gift,” 122–45; Michael Asch, “The Judicial Conceptualization of Culture after Delgamuukw and Van der Peet,” Review of Constitutional Studies, 5, no. 2 (January 2000): 119–37; Briony Penn, “Who is really breaking the law?,” Focus Magazine (Victoria), March–April 2020, https://www.focusonvictoria.ca/focus-magazine -march-april-2020; “The Delgamuukw decision: When the ‘invisible people’ won recognition,” APTN News, 10 March 2020, https://www.aptnnews.ca /national-news/the-delgamuukw-decision-when-the-invisible-people-won -recognition. Pasternak and King, Land Back, 10. “Contempt charges dropped against 14 protesters blocking B.C. pipeline project,” CBC News Online, 15 April 2019; Coastal GasLink Pipeline Ltd. v. Huson, 2019 BCSC 2264. “BC Supreme Court grants injunction against Wet’suwet’en protesters in pipeline standoff,” CBC News Online, 31 December 2019; Hina Alum, “BC Supreme Court grants natural gas pipeline company interlocutory injunction,” Times Colonist, 31 December 2019; Unist’ot’en Camp, “Wet’suwet’en hereditary Chiefs reject the BC Supreme Court decision to criminalize Wet’suwet’en law,” www.unistoten.camp.

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134 Mike Farnworth (Minister of Public Safety and Solicitor General) to Jennifer Strachan (Deputy Commissioner, RCMP “E” Division), 27 January 2020, letter in possession of author. 135 Zoe Ducklow, “No charges to be laid against 22 northern B.C. pipeline protesters,” Prince George Citizen, 8 June 2020. 136 Vancouver Fraser Port Authority v. Doe, 2020 BCSC 244; British Columbia (Legislative Assembly) v. John Doe, 2020 BCSC 301; Canadian Pacifc Railway Limited v. Doe, 2020 BCSC 388; Vancouver Fraser Port Authority v. Doe, 2021 BCSC 1109; Vancouver Fraser Port Authority v. Joseph, 2021 BCSC 1527; “Recent rail disruptions will cost the economy $275 million, says PBO,” Offce of the Parliamentary Budget Offcer, 13 March 2020, https://www.pbo-dpb.gc.ca; Eric Atkins, “Canadian ports on two coasts congested due to rail blockades,” Globe and Mail, 20 February 2020; “Rail blockades causing containers to pile up at Canadian ports,” CBC News Online, 21 February 2020. 137 “The Delgamuukw decision: When the ‘invisible people’ won recognition,” APTN News, 10 March 2020, https://www.aptnnews.ca/national-news /the-delgamuukw-decision-when-the-invisible-people-won-recognition; “Wet’suwet’en agree to deal with government over rights and title,” Times Colonist, 30 April 2020. 138 “No criminal charges for people arrested during injunction enforcement on Wet’suwet’en territory,” CBC News Online, 5 June 2020; Zoe Ducklow, “No charges to be laid against 22 northern B.C. pipeline protesters,” Prince George Citizen, 8 June 2020. At the time of writing, the outcome of this dispute remains to be seen. The protest movement within Wet’suwet’en territory and across Canada was abruptly curbed in March 2020 with the outbreak of the COVID-19 pandemic, on the heels of several court injunctions to break the rail blockades as well as the commencement of conciliatory talks between the governments of British Columbia and Canada and the Wet’suwet’en hereditary leadership. An environmental assessment completed in June 2020 pointed to the company’s failure to protect wetland areas, resulting in several stop work orders, but Crown permits remained in place and preparatory work on the pipeline continued largely unimpeded. See “Joint statement on discussions on Wet’suwet’en rights and title,” Government of British Columbia media release, 1 March 2020, https://news .gov.bc.ca/21667; “Coastal GasLink pipe installation scheduled to begin in August,” Vanderhoof Omineca Express, 17 July 2020. 139 Amanda Follett Hosgood, “How industry has weaponized BC courts,” The Tyee (Vancouver), 23 June 2020, https://thetyee.ca/News/2020/06/23 /How-Industry-Weaponized-BC-Courts.

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140 Wet’suwet’en Treaty Offce Society v. British Columbia (Environmental Assessment Offce), 2021 BCSC 717; “BC Supreme Court hears petition for judicial review of Coastal GasLink certifcate,” Times Colonist, 1 October 2020. 141 See Ceric, “Beyond Contempt,” 365–7; McCreary and Turner, “The Contested Scales,” 1–23; McCreary, “Between the Commodity and the Gift,” 122–145; and Tsilhqot’in Nation v. British Columbia, 2014 SCC 44. 142 Louis-Alfredo Garcia, “Tsilhqot’in Nation v British Columbia: Aboriginal Title, Indigenous Resurgence, and the Politics of Recognition” (MA thesis: Carleton University, 2015). 143 Jaskiran Dhillon and Will Parrish, “Canada police prepared to shoot Indigenous activists, documents show,” The Guardian, 20 December 2019; Trevor Hewitt, “Skeena-Bulkley Valley MP calling for independent review of RCMP action at Gidimt’en,” Interior News (Smithers), 20 December 2019; “BC’s newest political party calls for investigation of RCMP actions and halt to pipeline construction,” Rossland Telegraph, 24 December 2019. See also McCreary and Turner, “The Contested Scales”; 1–23; McCreary, “Between the Commodity and the Gift”; 122–45; and Michael Simpson and Philippe Le Billon, “Reconciling Violence: Policing the Politics of Recognition,” Geoforum, 119 (February 2021): 111–21.

10 Sovereignty and Legality in the Pines: The Oka Crisis of 1990 MARK D. WALTERS*

More than thirty years have passed since the summer of 1990 when Mohawk warriors and Canadian soldiers faced each other across barricades in the Pines at Oka near the shores of the Lake of Two Mountains. The images recorded from that summer remain shocking today. Canadians have long held what is perhaps a complacent understanding of their country, one symbolized in constitutional law by the commitment to “peace, order and good government.” The armed Mohawk resistance to police and then military forces during the summer of 1990 challenged that received view. True, many Canadians at the time would have remembered the use of military troops twenty years earlier in response to the terrorist acts of the FLQ. But Oka was different. There were masked and armed warriors at the barricades in the Pines, but there were also women, elders, and children with them. The occupation had begun peacefully in March 1990 when Mohawks of Kanesatake, near Montreal, sought to prevent the expansion of a golf course within a pine forest that formed part of lands they had long claimed as their own. There was at this time a growing public awareness about the unjust denial of Aboriginal land claims in Canada. In May 1990 the Supreme Court of Canada had indicated in R. v. Sparrow, a case appealed from British Columbia, that new constitutional protections for Aboriginal and treaty rights adopted in 1982 represented a call for “a just settlement for aboriginal peoples.”1 That the full force of the Canadian state would be turned upon a small Indigenous community seeking to defend a stand of pines

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that held sacred meaning for them was, in this light, diffcult to comprehend. Yet just over one month after the Sparrow decision, the Sûreté du Québec (Quebec provincial police) stormed the Mohawk barricades in the Pines, a police offcer was killed, and a long stand-off that would see the deployment of thousands of Canadian troops began. Oka revealed aspects of ourselves that are still hard to confront today. In the years since that summer, participants and observers have had time to refect upon the meaning of what happened. The vast literature on the Oka Crisis includes accounts and analyses by federal and provincial offcials;2 Mohawk participants and commentators;3 military offcers;4 journalists;5 academics;6 public intellectuals;7 parliamentary and other offcial bodies;8 and, fnally, judges.9 For many people, the meaning of the Oka Crisis is linked to the visual record captured in Alanis Obomsawin’s powerful documentary Kanehsatake: 270 Years of Resistance.10 Reactions to the Oka Crisis are multiple, layered, and complex, with competing lines of interpretation cutting between and through Indigenous and non-Indigenous communities. Any search for the true story of Oka would compromise the integrity of the diverse experiences that people had and still have in relation to the events.11 The following analysis of the Oka Crisis does not try to summarize or synthesize the many accounts of the crisis. Its modest objective is to inquire into the legal dimensions of the crisis within the general framework provided by the concept of “state trial.” The Oka Crisis seems at frst glance to ft squarely within a series of essays on Canadian state trials – that is, a series of essays focused on “the legal responses of Canadian governments to real and perceived threats to the security of the state.”12 In defending the Pines, Mohawks were asserting claims of sovereignty that appeared inconsistent with Canadian state sovereignty, and they used armed force in making those claims. Yet the Oka Crisis is also diffcult to analyse within the state trial framework as so defned. There seems to have been a reluctance to characterize the stand-off as an insurrection or a rebellion against the state. There was a general sense, not always expressly articulated, that Mohawks were not so much attacking the Canadian state as they were appealing to a vision of the state that might honour its own commitment to equal respect for all peoples. However the crisis is understood, there was a confict of visions about the state that exploded into violence, and the question of law’s role in the response should be examined critically. It has been said that Indigenous acts of resistance to the state can be empowering but also potentially

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self-destructive for the Indigenous communities involved, with the barricades of resistance marking out a space where only hard politics mediate the clash of different and opposed legal orders.13 The barricade, on this view, creates a lawless space that divides people physically and juridically. Even after the physical barriers came down at Oka, the juridical barriers remained. An indignant federal justice minister, Kim Campbell, lectured a parliamentary committee investigating the Oka Crisis that by taking up arms, the Mohawks had violated “the rule of law,” by which she meant, of course, the rule of Canadian law.14 In contrast, Walter David, one of the Mohawks who had been behind the barricades, testifed before the same committee that the Mohawks had followed the law throughout, the “Kayonerakowah – our law,” the Great Law of Peace that binds Mohawk and other Iroquois or Haudenosaunee nations into a confederacy.15 Was there no law bridging these two laws? The treaty relationship between the Crown and Indigenous peoples might have helped reconcile different legal orders, but it served to divide rather than unify during the crisis. Mohawk negotiators reprimanded federal and provincial offcials for failing to respect the two-row wampum treaty or kuswentha.16 Indeed, some such lecture was needed: one of the chief provincial negotiators later admitted that he had never heard of the two-row wampum belt.17 The two-row treaty relationship is said to have dated from the early seventeenth century and is symbolized by a belt of shell beads woven together depicting two purple and parallel lines against a white background representing two vessels, a European ship and an Indigenous canoe, travelling along a river together. Each vessel has its own laws and customs, and the three rows of white beads between the purple lines they follow are said to represent a relationship of peace, friendship, and respect.18 However, the Mohawk insistence during the Oka Crisis that the occupants of one vessel could never participate in the affairs of the other vessel implied an uncompromising jurisdictional separateness. In restating the Mohawk understanding of their “statehood” under the treaty, Kahn-Tineta Horn, a well-known Mohawk activist and spokesperson since the 1960s who was behind the barricades at Oka with two of her young daughters, insisted: “You can’t have one foot in one vessel and one foot in the canoe, it’s impossible. You have to be in one or the other.”19 This view of Indigenous sovereignty was one that the federal government felt entitled to ignore. If the two-row wampum protected an internationally sovereign Mohawk nation, then, the justice minister said, it had been washed away over the centuries by “the water [that] has gone under the bridge.”20

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So what role did law play in the Oka Crisis? Had the white space between the two purple lines in the two-row wampum belt become a legal void where only the power of warriors and soldiers reigned? Did the barricades demarcate a state of siege or exception where law and rights were suspended? Or was the space governed by law, but two competing and opposed laws, a Haudenosaunee law and a Canadian law? Each of these possibilities will be considered in the analysis that follows. However, a further possibility will also be considered. It will be suggested that the Oka Crisis may be understood not as a state of emergency in the classic sense, where the established regime is threatened by a hostile challenger, but rather as an attempt at constitutional renovation in which the established regime is asked to reconsider the character of its own sovereignty through a lens that embraces the legal perspectives of its challenger. Indigenous acts of resistance often involve assertions of Indigenous law; but sometimes they are also assertions of alternative visions of Canadian law.21 Perhaps, then, there was, or rather could have been, a law capable of governing the contest in the Pines – an inclusive law that sought to reconcile competing legal visions. oka and kanesatake The village of Oka is in the Province of Quebec about 60 kilometres west of Montreal on the shores of the Lake of Two Mountains, a large body of water formed where the Ottawa River fows into the St Lawrence. The Mohawk community of Kanesatake occupies lands that both neighbour and fall within the village. In 1990, the community consisted of about 1,600 people, of whom about 1,000 were resident within Mohawk lands in or near Oka. Most lived on parcels of rural land west of the village, while some lived on lots within the village itself.22 The Mohawk landholdings were (and remain) interspersed with non-Mohawk lands in a kind of chequerboard fashion. This confguration of landholding makes Kanesatake unique as an Indigenous community in Canada. Unlike the nearby Mohawk communities of Kahnawake and Akwesasne, which are “reserves” under the federal Indian Act,23 Kanesatake Mohawk lands consist of non-contiguous parcels that were purchased by the federal government in 1945 for the use of members of the Mohawk community who had been resident at Oka since at least the establishment of an Indian mission there by the Seminary of St Sulpice in the early eighteenth century.24 Although the lands are not a “reserve,” the Kanesatake community is a “band” under the Indian Act

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with a chief and band council and some statutory powers of local government. At the time of the Oka Crisis, the Kanesatake chief and council were selected by clan mothers pursuant to a modifed form of Haudenosaunee customary law, though some members were Longhouse traditionalists who rejected the Indian Act band council system and followed their own clan mothers and chiefs.25 Indeed, to understand the Mohawks of Kanesatake as a federally recognized band would be to misunderstand the complexity of their history and their aspirations. The Mohawks of Kanesatake have long claimed to be part of a sovereign Mohawk nation that forms part of the Iroquois or Haudenosaunee confederacy of sovereign nations.26 The Oka Crisis involved broader claims of sovereignty; however, the trigger for the crisis was a dispute about a small tract of pine forest. A group consisting mainly of Longhouse traditionalists began a blockade of an unpaved side road in the Pines on 10 March 1990.27 Their immediate objective was to stop a project championed by the mayor of Oka to expand a nine-hole golf course and build houses on lands claimed by the Mohawks as a sacred part of their ancient commons. As the occupation lengthened and tensions increased, the Longhouse group divided between those who wanted to invite warrior societies from other Mohawk communities to help and those opposed to the introduction of weapons into their midst. As spring turned into summer, armed warriors, mainly from Kahnawake and Akwesasne, began to reinforce the encampment in the Pines. The Kanesatake Mohawks may all have wanted to defend the Pines, but it is unclear how many supported an armed resistance.28 During the spring and early summer, Quebec’s Native affairs minister, John Ciaccia, worked in cooperation with Canada’s federal minister for Indian affairs, Tom Siddon, to resolve the matter. However, the mayor of Oka, Jean Ouellette, took a confrontational line: the municipality sought and obtained court injunctions ordering the occupation to end. The provincial minister, Ciaccia was adamant that the matter be settled through negotiations. In a strongly worded letter dated 9 July 1990, which we examine below, he urged the mayor not to seek to enforce the court injunctions. However, as happened with many Indigenous and labour protests examined in other chapters in this volume, the initial legal response was the deployment of the police. Ignoring Ciaccia’s letter, Ouellette asked the Sûreté du Québec (SQ) to enforce the court injunctions that had been granted in the town’s favour. In the early hours of 11 July, around 125 SQ offcers armed with rifes and using concussion grenades and tear gas advanced on the blockade

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in the Pines. In the confusion that followed, there was a brief exchange of gunfre and SQ Corporal Marcel Lemay was shot and killed. The police retreated, leaving police vehicles and a front-end loader, which the Mohawks promptly seized and used to construct new barricades on the main highways around the disputed lands. At about the same time, Mohawks in Kahnawake on the other side of Montreal acted in solidarity by erecting barricades on the Mercier Bridge, which is adjacent to their territory and is one of the principal routes between the island of Montreal (where the city is located) and suburban communities like Châteauguay on the south shore of the St Lawrence River. Other highways running through Kahnawake were also blockaded. So began a stand-off that would not end until late September – seventyeight days later. The degree of disruption and suffering experienced during those seventy-eight days was considerable. More than 3,000 non-Mohawks and 600 Mohawks were forced to fee their homes in and around Oka.29 At Kahnawake and Châteauguay, the blockade of the Mercier Bridge disrupted the lives of thousands of commuters who used the bridge daily, prompting large protests and violent confrontations between non-Natives and law enforcement authorities. Trapped within their own territory, the Mohawks of Kahnawake felt increasingly vulnerable. In one of the ugliest incidents of the summer, a non-Native mob stoned a convoy of some seventy vehicles transporting Mohawk families out of the Kahnawake territory, injuring passengers, many of whom were children or elderly.30 The failed attack on the Mohawk position at Oka on 11 July prompted a massive deployment of police. The SQ limited access to food and medicine for those behind the barricades, who included children and elders as well as armed warriors. The federal government at frst resisted public pressure to get involved. Although constitutionally responsible for “Indians, and lands reserved for Indians,”31 the federal government insisted that the unlawful land occupation by Mohawks was a matter falling within the provincial government’s constitutional authority over policing and the administration of justice within the province.32 Federal offcials stated that they would not negotiate to resolve the underlying issues of land or governance at “the barrel of a gun.”33 In fact, federal offcials worked closely with provincial offcials behind the scenes, and the federal government was willing to purchase the land slated for the golf course (a commitment the federal minister, Siddon, confrmed publicly on 20 July) with a view to addressing some of the broader Mohawk claims in subsequent negotiations.34

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As the stand-off stretched on and political nerves frayed, federal offcials began to play a more direct role. On 8 August, Prime Minister Brian Mulroney appointed the Chief Justice of the Quebec Superior Court, Alan Gold, to negotiate the preconditions for talks aimed at dismantling the barricades. On 12 August, an agreement reached by Gold was signed, allowing free access to food and medicine for those behind the barricades as well as free movement of Mohawk spiritual leaders and legal advisers and monitoring by international observers. However, this development was tainted by controversy that only accentuated the challenge to state authority that the whole affair represented. The federal and provincial ministers responsible for Native issues, Ciaccia and Siddon, found themselves participating in a signing ceremony in the Pines behind the barricades under futtering Canadian, Haudenosaunee, and Warrior fags as masked and armed Mohawk warriors looked on. Outside of Oka and Châteauguay, there had initially been considerable public sympathy for the Mohawk cause; however, support eroded as images of armed warriors at Oka and violence and chaos at Châteauguay proliferated.35 In the end, it was all too much for the regular police forces.36 Civil order was breaking down. On 17 August, Quebec’s beleaguered premier, Robert Bourassa, exercising powers that are examined below, announced that the province would request the aid of the Canadian Armed Forces. Troops from the Royal 22nd Regiment soon replaced police at the barricades at Kanesatake and Kahnawake.37 Normally quiet Canadian communities now looked like war zones. Talks between federal, provincial, and Mohawk representatives aimed at dismantling the barricades began in a Trappist monastery in Oka, but they were perhaps doomed from the start. In effect, the parties talked past one another. One side focused on the practicalities of removing barricades, arresting warriors, and confscating weapons, while the other side insisted that the Mohawks be recognized as an internationally sovereign nation and that warriors either be given amnesty or handed over to an international tribunal. Federal and provincial authorities gave up and announced the end of negotiations on 26 August. At this point, the provincial government asked the military to proceed to dismantle the barricades and recover weapons unilaterally. As explained below, the province retained political control over the military during the crisis; however, the Chief of the Defence Staff, General John de Chastelain, and the offcer commanding the operations, Lieutenant-General Kent Foster, remained in control of all operational decisions involving the Canadian Armed Forces.38 The offcers in charge on the

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ground, Brigadier-General Armand Roy and Major Alain Tremblay, were told to take their time in order to avoid further loss of life. On 29 August, the military reached an agreement with the Mohawks at Kahnawake to dismantle the blockade on the Mercier Bridge, and this and other barricades around Kahnawake soon came down. The military then began slowly to tighten the perimeter at Oka, bringing in three Leopard tanks equipped with ploughs to assist in clearing the logs and wrecked police vehicles that formed the barricades. The Mohawks gradually retreated, and after several weeks they were confned to a single building, an addiction treatment centre. On 26 September, the stand-off fnally ended. Although there was a plan for an orderly exit of the occupiers, instead there was a wild melee as the remaining Mohawks – twenty-eight warriors, sixteen women, and six children – scrambled unsuccessfully to escape custody. Almost all of the adults were charged with various criminal offences arising from the occupation, and most of them would in due course be acquitted. Nobody was charged with the death of Corporal Marcel Lemay. It proved impossible to establish who had fred the fatal bullet.39 As for the golf course, it was never built. Today, the Pines remain standing and the deep and complex questions about Mohawk rights to land and governance that caused the Oka Crisis remain largely unresolved.40 soldiers and rotiskenekete In a now iconic photograph from the summer of 1990, a Canadian soldier, Patrick Cloutier, and a masked warrior, later identifed as Brad Larocque, stand inches apart staring at each other.41 The soldier and the warrior are both armed, and the encounter might have ended in violence. However, both soldier and warrior remained calm, and a moment of potential tragedy, one of countless such moments during the crisis, passed. The image of the soldier and the warrior facing each other may be said to capture the disturbing essence of the Oka Crisis – the breakdown in civil discourse between peoples, the resort to armed force for political ends, and the seeming failure of established institutions to deliver peace and order. Seen in this way, the image confrms that the Oka Crisis was a crisis for law and legality in Canada. Of course, images can be misleading. To understand the Oka Crisis in legal terms, it will be helpful to start by considering the status of the soldier and the status of the warrior from both Canadian and Indigenous legal perspectives. In this way, we may complicate and challenge initial impressions about what the Oka Crisis means today.

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Confrontation between a Mohawk warrior and Canadian Forces soldier at Kanesatake. The Canadian Press, Oka 1990, Shaney Komulainen, 698687

It is tempting to assume that the involvement of soldiers in a domestic conflict – which is what this conflict was, from the perspective of Canadian law – signals the failure or absence of ordinary laws and that exceptional conditions exist that justify the use of force by the state without the constraints of due process that legality requires.42 Within the common law tradition, however, it is wrong to conflate the presence of soldiers with the absence of ordinary law. At common law, soldiers can be called out in aid of the civil power in domestic conflicts, but in helping to enforce ordinary law soldiers are themselves subject to ordinary law.43 Soldiers have no right to exercise extraordinary powers unless granted those powers by explicit legislation. These common law assumptions form the basis of the law relating to the use of soldiers in domestic conflicts in Canada.44 However, federalism complicates matters somewhat. The militia and military fall within federal constitutional authority,45 so the federal government is able to call out the military in aid of those aspects of the civil power falling within federal jurisdiction.46 However, because the administration of justice as well as property and civil rights fall within provincial constitutional authority,47 problems of civil disorder are often matters of provincial concern. To overcome the fact that provinces have no military forces of their own to call out, and no inherent authority to call out the Canadian military, the federal National Defence Act provides that the Canadian forces may be “called out for service in aid of the civil power” in any case involving “riot or disturbance of the peace, beyond the powers of the civil authorities to

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suppress,” upon a requisition by the provincial government to the Chief of the Defence Staff.48 The aid to the civil power provisions in the National Defence Act do not clothe soldiers with any extraordinary powers; on the contrary, the Act provides that soldiers act with the same powers and duties as “constables,” and thus they are put into the same position as “peace offcers.”49 As A.V. Dicey famously observed, it is a fundamental tenet of the rule of law in the common law tradition that “every offcial, from the Prime Minister down to a constable,” is subject to “the ordinary law” and “the ordinary tribunals.”50 For soldiers to escape the constraints of ordinary law, explicit authorization by or under a statute is required. A province confronting an emergency could perhaps equip soldiers called out under the federal National Defence Act with extraordinary powers by enacting provincial legislation expanding the powers of “constables” generally within the province. However, if an armed insurrection becomes suffciently serious to warrant such extraordinary provincial legislation, it is also possible that the federal government could intervene and displace provincial laws and administration over the confict by declaring a national emergency.51 Indeed, this is what happened twenty years before the Oka Crisis during the FLQ crisis. As examined in Pacione’s chapter in this volume, the Quebec provincial government called out the Canadian armed forces under the National Defence Act and then later the federal government assumed control over the operation, suspending certain civil liberties and creating new temporary public order offences by declaring a “state of apprehended insurrection” under the federal War Measures Act.52 The equivalent statute in force at the time of the Oka Crisis, the federal Emergencies Act of 1988, empowered the federal government to declare a public order emergency and to authorize offcials to act above or beyond the ordinary law, displacing provincial laws and administration if necessary, if there was reason to believe that the use of violence to achieve political, religious, or ideological objectives “seriously” threatened the ability of government “to preserve the sovereignty, security and territorial integrity of Canada.”53 However, the approach taken in response to the 1970 FLQ Crisis, a federal declaration of emergency, was not followed during the Oka Crisis. The legal basis for the deployment of soldiers during the Oka Crisis was, and remained throughout, the request by the provincial government to the Chief of the Defence Staff to call out the military in aid of the civil power in Quebec pursuant to the National Defence Act. The premier of Quebec at the time, Robert Bourassa, had been the premier of Quebec in

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1970 during the FLQ Crisis, but he refused to draw parallels between that crisis and this one. Unlike 1970, on this occasion, he said, the army was being used without “suspending individual liberties.”54 It has been said that the use of the military during the Oka Crisis was a manifestation of what the constitutional theorist (and Nazi jurist) Carl Schmitt called a “state of exception.”55 Schmitt claimed that such an exception arises when the supreme executive leader exercises inherent powers of state sovereignty to identify enemies and suspend law and rights in order to address supposed emergencies.56 The characterization of the response at Oka as a Schmittian state of exception is, however, legally wrong. At no point during the Oka Crisis was ordinary law suspended. The military was called in to help with the enforcement of ordinary law, and soldiers remained subject to ordinary law. As the judge in the trial of several warriors later stated, there was a “military type confrontation” at Oka, but under the National Defence Act “the soldiers were acting as police offcers.”57 Testifying before a parliamentary committee investigating the Oka Crisis, military offcers stated that the operation to clear the barricades took as long as it did because the tactical decision had been made to minimize the chances of any further loss of life. At this point in the hearing, the Chief of the Defence Staff, General John de Chastelain, interjected: “If I can add one point, because the Judge Advocate General reminds me it is the case, there was a legal requirement for us to use only minimum force.”58 Indeed there was. There was no gap or suspension of law during the Oka Crisis. Having no special powers, the military during the crisis had to walk “a legal minefeld.”59 With each step, care had to be taken to stay within the law, and this was arguably critical to the resolution of the stand-off without further loss of life. To say that the armed forces were governed by ordinary rules of law during the Oka Crisis does not mean there were no breaches of that law. “I am confdent,” justice minister Campbell would later state, “that the actions of the armed forces were conducted in accordance with the law and in conformity with the Canadian Charter of Rights and Freedoms.”60 Others were less confdent. A number of legal academics and human rights lawyers claimed at the time that widespread human rights violations occurred. Many allegations focused on restrictions on movement and invasive searches that targeted Mohawk people in a discriminatory fashion. It was even suggested that violations of civil liberties during the 1990 Oka Crisis were greater than had occurred during the 1970 FLQ crisis and that the impact was somehow worse because, as Professor Bradford Morse said, “at least in 1970 the federal government invoked

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a statute that authorized suspension of civil liberties [but] that was not the case here.”61 Yet one wonders whether suspension of civil liberties would have improved matters. Had the Judge Advocate General not been able to remind the Chief of the Defence Staff at each step in the operation that there were “legal” restrictions on the soldiers, would things have gone better or worse? At the height of the crisis, the doors to the courts remained open. The justice minister noted that allegations of human rights violations by the armed forces were litigated during the crisis, which was proof that the law reigned and the rule of law was respected throughout the summer of 1990.62 We may add that she meant the rule of Canadian law, which of course the Mohawks behind the barricades rejected. We may also add that the legal status of the soldiers at Oka is one thing and the experiences of those involved another thing. Whatever lawyers and legal theorists might say, for many people Oka represented the unleashing of “foundational state violence that normally goes unseen,”63 “the violent application of the Canadian war machine against its Aboriginal population.”64 In the end, the mismatch between what the soldiers looked like – an army – and what as a matter of law they were – constables or peace offcers – may well have had legal implications. The occupiers at Kanesatake would eventually be tried for a variety of criminal offences, including obstruction of a peace offcer in the execution of his duties. In one trial involving thirty-nine occupiers, it was argued that the defendants could not have intended to obstruct a peace offcer if all of the circumstances surrounding the stand-off confrmed for them that they were engaged in a military confrontation with soldiers rather than a civil dispute involving the police.65 Given that the jury acquitted this group of all charges, this argument may well have been effective. If the soldiers at Oka were legally just police constables trying to enforce the law, then it can be said that the Mohawk warriors at Oka were legally just suspected criminals whom the soldiers, in their capacity as constables, were trying to apprehend. In a technical sense, this is, from the perspective of Canadian law at least, true. But to assert that the warriors were alleged criminals in Canadian law does not tell us very much about the legal character of the Oka Crisis in Canadian law. From the Canadian legal perspective, what kind of criminal was the warrior alleged to be? During the crisis, the federal deputy minister of Indian affairs, Harry Swain, described the Mohawk warriors as members of an organized criminal gang.66 This statement prompted widespread criticism because it implied that the warriors were acting not for a political cause but for

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illicit criminal purposes.67 In fact, during the spring of 1990, armed warriors who supported gambling and smuggling factions at Akwesasne had battled their opponents from within the community, and this confict had resulted in burned-out houses and vehicles, the evacuation of hundreds of families, and a nine-hour gunfght that left two Mohawk men dead.68 That certain warriors from Akwesasne then surfaced at Oka weeks later affrmed for Swain and others that the land claim in the Pines was being exploited for other (i.e., criminal) reasons. Though controversial, the view expressed bluntly by Lysiane Gagnon – that the warriors were a “paramilitary group that seems to have gained control of the situation by terrorizing the moderate Mohawk leaders” in a “ferce power struggle” over “illegal casinos and contraband” – was one that even some Mohawks at the time would have accepted.69 For many leaders within the Mohawk and broader Haudenosaunee communities, the warrior societies that had emerged alongside controversial business activities in the 1970s and 1980s were, from their own legal perspectives, unlawful.70 The respected Haudenosaunee traditionalist Jacob Thomas was deeply troubled by the rise of warrior societies and insisted that their belief in taking up arms and in supporting gaming activities on reserves contradicted the Kaienerekowa, the Haudenosaunee Great Law of Peace.71 The image of the masked warrior did not help. Why the mask? In his autobiography, Ronald “Lasagna” Cross, one of the warriors at Oka, explained that warriors wore masks because they occasionally had to “deal with” members of their own community who stepped out of line and anonymity protected them from retaliation against their families and friends.72 This explanation is hardly reassuring from any rule-of-law perspective. In fact, it was Cross and another warrior, Gordon “Noriega” Lazore, who would be convicted of some of the more serious criminal offences arising from the Oka crisis, and, ironically, these offences were committed against other Mohawks with whom the warriors had disagreements.73 In her account of their trial, Kahn-Tineta Horn levelled scathing criticism at Mohawks who testifed against the warriors.74 The phenomenon of warriors and their impact on Mohawk societies is thus complex and contested.75 There is a danger, however, that focusing on the connection between some warriors and controversial business activities or the violent internal confict at Akwesasne may obscure the character of the specifc acts of resistance that took place at the barricades at Kanesatake. Justice minister Campbell decried the tendency to “romanticize” the warriors, a tendency she thought was “dangerous to the fabric of Canadian democracy.”76 Years later, the prominent Anishinabe politician

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Wab Kinew, an elected member of the Manitoba Legislative Assembly and leader of the offcial opposition, would offer a very different perspective. Watching the Oka Crisis unfold as a young boy, he came “to identify with the warriors” and thus with a powerful sense of Indigenous identity.77 In the end, the armed acts of resistance at Oka were a genuine attempt to defend the territory and autonomy of a vulnerable Indigenous community from the state.78 If these were criminal acts, then they seem to have been political crimes and there is good reason to consider the legal dimensions of the crisis within the conceptual framework of the state trial. As an exemplar of a confict susceptible to a state-trial analysis, however, an intriguing thing about the Oka Crisis is that the Mohawk and other Indigenous occupiers at Kanesatake were not charged with any of the classic crimes against the state often associated with the concept of state trial. There were no charges of treason, sabotage, seditious conspiracy, or seditious libel. These were political trials nonetheless. The accused were charged with public order and other ordinary offences, but those alleged offences had been committed for political purposes; the trials were, in the typology developed by Otto Kirchheimer, “political trials.”79 The forty-four adults who held out in the treatment centre at Kanesatake until the end of the stand-off on 26 September were all charged with various criminal offences and prosecuted in two separate trials, one mass trial for forty-one defendants and a separate trial for three defendants facing more serious charges. The offences for which they were charged were, in a sense, ordinary criminal offences, such as obstructing a peace offcer in the execution of his duties and carrying a weapon for a purpose dangerous to the public peace. The three defendants tried separately, Ronald Cross, Gordon Lazore, and Roger Lazore, also faced an array of other charges. Some of these charges related to offences committed against other Mohawks (mentioned above). Others were offences committed in relation to members of the Canadian Armed Forces, including simple assault and uttering threats. The one offence that all forty-four defendants faced that had something of a political or state trial dimension was the offence of “riot,” or the assembly of three or more persons who “disturb the peace tumultuously.”80 The lawyer for Cross and the Lazores, Owen Young, appeared almost disappointed when the charge of riot was dropped during their trial, for it seems that he had planned to defend this charge through contextualization of the crisis as a political and thus non-criminal question between nations.81 The downgrading of the legal characterization of the warriors’ acts of resistance to run-of-the-mill criminal offences seemed to

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deny the deeply political nature of the crisis. Cross and Gordon Lazore were convicted of assault and uttering threats against soldiers (Roger Lazore was acquitted on all charges). Still, the larger political dimensions of the event were not absent from the judicial proceedings. In sentencing Cross and Lazore, the trial judge, Justice Benjamin Greenberg, stated that the defendants were “no doubt motivated by a sincere and honest belief in the legitimacy of the natives land claims and the frustration, bitterness and intense anger which are the legacy of centuries of neglect, indifference, unfairness, hostility, contempt, discrimination and racism” and that “[t]he criminal acts committed during the Oka Crisis, try as one might, cannot be entirely dissociated from the historical and political origins and background of that Crisis.”82 The Cross and Lazore trial was, in effect, a state trial. The trial of the other occupiers apprehended at the treatment centre, reduced in number to thirty-nine after one died and another pleaded guilty, was a remarkable event.83 We return to this trial below. For now, it is suffcient to say that the defence presented evidence of Mohawk history and culture, including their law, the Haudenosaunee Great Law of Peace, and that an important aspect to emerge during the trial was evidence as to the status of the warrior from the Haudenausonee legal perspective. Witnesses explained that there is no exact translation of the word warrior in the Mohawk language. However, the relevant Mohawk term rotiskenekete means the “carrier of the burden of peace,” and it represents the role of defender of the nation’s territory, its children, and the Haudenosaunee Confederacy.84 In their study of warrior movements, Taiaiake Alfred and Lana Lowe insist that the objective of Mohawk warrior societies is “to repossess and protect Kanien’kehaka territories according to the Kaienerekoawa, the Great Law of Peace” and thus, those societies are a method of “expressing an indigenous authenticity.”85 “A warrior society operating in the context of an indigenous nationhood struggle,” they observe, “is the practical expression of indigenous peoples’ efforts to survive in an authentic sense by reconnecting to the sources of their strength – the land, their spirituality, their culture, and each other.”86 Like the Canadian soldier, then, the Mohawk warrior occupies a position defned by law and constrained by law. If some Canadian soldiers and some Mohawk warriors breached the laws that defned their respective positions during the Oka Crisis, that did not negate the existence of those laws. The hard question was whether any bridging law could or should have governed how they performed their respective legal duties and responsibilities. Mohawk negotiators had tried to insist that there was

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such a bridging law, namely, international law. Whether international law, properly interpreted, could have offered legal answers to the question of the warriors’ status is hardly clear.87 Even if it could, however, the invocation of international law brings with it ideas about statehood and sovereignty that remain trapped within a European legal mindset. Is there a bridging law that might take seriously the ideal of integrating distinctive Indigenous and non-Indigenous legal cultures? covenant and kaienerekowa Writing of the Mohawk land dispute at Oka, William Scott insisted: “It is high time these misunderstandings and hostilities should cease” and that a “peaceful settlement” be achieved. The year was 1883.88 The dispute was by then already at least a century old, and its origins lay in contested accounts of peoples and promises.89 By one account, the Mohawk community of Kanesatake had its origins in an Indian mission established by the Seminary of St Sulpice on the island of Montreal in the seventeenth century. The Sulpician mission attracted displaced Indigenous peoples from different nations, among them Iroquois or Haudenosaunee peoples, including Mohawks, whose homelands were located south and east of the St Lawrence River.90 The mission was forced to move as settlements around it increased, frst to the Sault-au-Récollet in the 1690s and then to the Lake of Two Mountains in 1721, where the Sulpician priests had been granted a vast seigneury by the French king in 1717. The national groupings within the community divided along Haudenosaunee (Iroquois) and Anishinabe lines. The Anishinabe groups, mainly Algonquins and Nipissings, moved to a separate location in the mid-nineteenth century, and the remaining Iroquois would in time be acknowledged as a distinctively Mohawk community. On this view, the people of Kanesatake were in the same position as the Iroquois / Mohawks in Kahnawake and Akwesasne, and also the Hurons of Lorette located near Quebec – that is, they had been, in the words of British offcials in the late eighteenth century, “invited” by the French to missions in the vicinity of French Canadian settlements and were therefore to be distinguished from the “original Proprietors” or “Aborigines” of the land.91 The counterview is that the Oka lands fall within the ancient boundaries of the traditional Mohawk territory, that Kanesatake Mohawks had occupied the Oka site from time immemorial, and that the residents of the Sulpician mission joined and / or returned to this traditional Mohawk community in 1721.92

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British offcials in the eighteenth century may have thought that the Mohawk and Huron mission communities near Montreal and Quebec lacked Aboriginal rights, but they still treated them as nations with which treaty relationships had to be established upon the British conquest of New France in September 1760.93 One week after the French capitulation at Montreal, the Crown representative for Indian affairs, Sir William Johnson, met at Kahnawake with various communities, including Iroquois / Mohawks from Kahnawake, Kanesatake, and Akwesasne, in order to renew and strengthen “the old Covenant Chain” with them.94 The chiefs thanked Johnson for “opening the Road” between their countries and for making a “frm Peace” with them. The civil chiefs having spoken, Ad’yadarony, “chief of ye War[rio]rs” of Kahnawake spoke on behalf of the “young Men,” stating, “[W]e are now linked together in the Chain of Friendship.” The “Indians in Canada” were thus, as Johnson would later state, “received ... into our alliance,” and “the Covenant Chain ... was then brightened and renewed by us.”95 After France formally ceded Canada to Britain by the Treaty of Paris, and after the Crown set out a general policy for dealing with Indigenous nations in the Royal Proclamation of 1763, steps were then taken to consolidate Crown treaty relations with Indigenous peoples throughout the Great Lakes region and the St Lawrence valley. The resulting Treaty of Niagara in 1764 would prove to be a foundational moment for Canada.96 Among the thousands of Indigenous delegates present at Niagara were 124 representatives from Kanesatake and Kahnawake.97 It was at Niagara in 1764 that the covenant chain treaty relationship was extended generally throughout the Great Lakes region, an achievement marked by the gift to the Anishinabe nations of an impressive wampum belt, a “great Covenant Chain [belt], 23 Rows broad, & the Year 1764 worked upon it.”98 The legal status of nations contemplated by the covenant chain treaty relationship is complex and diffcult to understand without an appreciation of the Indigenous legal traditions that helped shape its meaning.99 One thing is clear: it did not imply the extension of sovereignty over Indigenous peoples in the European sense. When Johnson learned that a treaty had been made at Detroit by which it appeared that the nations agreed to be subjected to Crown sovereignty, he wrote: [T]hese people had subscribed to a Treaty with me at Niagara in August last, but by the present Treaty I fnd, they make expressions of subjection, which must either have arisen from the ignorance of the Interpreter, or from some other Mistake; for I am well convinced, they never mean or intend, anything like it, and that they

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cannot be brought under our Laws, for some Centuries ... I am impatient to hear the exact particulars of the whole transaction, and I dread its consequences, as I recollect that some attempts towards Sovereignty not long ago, was one of the principal causes of all our troubles.100

The covenant chain treaty relationship did not contemplate Crown sovereignty over Indigenous nations; but neither did it contemplate a mere treaty of peace and alliance between sovereign states in the European senses of these terms. One might say that the legal essence of the relationship involved a subtle weaving together of ideas drawn from the European jus gentium and the Haudenosaunee Kaienerekowa or Great Law of Peace. The covenant chain denied the idea of a singular sovereign power and was instead premised on developing and maintaining a relationship of care and trust between equally free peoples who were bound together in a kind of spiritual kinship that assumed the possibility of achieving one good mind on points of difference.101 Although the two-row wampum dominated Mohawk claims during the Oka Crisis, the covenant chain treaty metaphor was occasionally invoked as an alternative way of capturing the ideas underlying the kuswentha relationship.102 It is interesting to note that when violence erupted at Kanesatake in 1767 and a chief was murdered, the Deputy Indian Department Superintendent for Canada, Daniel Claus, travelled to the Lake of Two Mountains to meet in council with the chiefs and elders. Armed with belts of wampum, he participated in the ceremonies of condolence that the Haudenosaunee Great Law prescribed for resolving differences, wiping the tears from the eyes of the aggrieved and clearing their eyes and throats so that they could see, hear, and speak with one another with a good mind again.103 Although Kanesatake fell within the boundary line drawn by the Royal Proclamation of 1763 for the British province of Quebec, and English law had, by the terms of the Proclamation at least, been introduced into the new province, upon entering Kanesatake Claus entered a different and separate legal world where Indigenous law appeared to reign. It may be said that he entered the Indigenous canoe, but only because under the covenant chain treaty relationship he had responsibilities under the Indigenous law prevailing within that canoe. However, it did not take long for disagreements about the treaty relationship to emerge in relation to land at Oka.104 The chiefs of Kanesatake met in council with the Superintendent General of Indian Affairs, Sir John Johnson, in 1787 to explain that when their community moved from Sault-au-Récollet to the Lake of Two Mountains some seventy years

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earlier they were promised that the lands would belong to them, and “as was the custom of their Fore Fathers, [they] immediately set about making an Emblematic [wampum] Belt by which their children would see that the land was to be theirs forever, and as was customary for their ancestors, they placed the fgure of a Dog at each end of the Belt to guard their property.”105 They gave the two-dog wampum belt to Johnson.106 The chiefs then stated that under the treaties Sir William (Sir John’s father) had made in 1760 with them, their ownership of lands was to be protected. These treaty claims would, in time, be largely ignored. Government lawyers would instead focus on the terms of the deed by which the French king had granted the Seigneury of the Lake of Two Mountains to the Seminary of St Sulpice in 1717 and conclude that, though the Sulpicians were to establish an Indian mission on the lands granted, they were absolute owners of that land.107 When the question arose about whether a seminary established in France could hold title to lands within British dominions, a statute was enacted confrming the Sulpicians’ title in 1840.108 Their title to the Seigneury of the Lake of Two Mountains secure, the Sulpician priests began selling parts of the seigneury and restricting Mohawk use in other parts. Matters came to a head in the mid-nineteenth century.109 Mohawk chiefs made complaints to senior ministers in government in the 1860s. Writing to Sir John A. Macdonald, they claimed that their “quiet and peaceable village” had been invaded by “policemen” at the pressing of the priests, “who had falsely and maliciously represented their tribe as being in open rebellion.”110 Indeed, a few years later a prominent Kanesatake chief acknowledged that if “diplomacy” failed they would have “recourse to arms.”111 Attempts by the seminary to fence off sand dunes that the Mohawks considered as their common lands – the site of the Pines today – led to violent confrontations involving gunfre, the alleged use by the Mohawks of a cannon, and eventually the burning of the Sulpician church in 1877.112 The legal and constitutional position of the Mohawks at this time, refected in their written submissions, was complex. On the one hand, they asserted “their rights and privileges as British subjects” and invoked the protections for Indian lands secured by the Royal Proclamation of 1763. Yet on the other hand, the chiefs of the “Iroquois Tribe or Nation of the Lake of Two Mountains” claimed authority under “the laws, usages, and customs of the said Nation” and claimed to be “the descendants and rightful representatives of that same Indian Nation or Tribe, with whom the British Government made an alliance” and who lived under the Crown’s “special protection” before and after the Proclamation was made.113 The

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claim to be a nation with a treaty relationship with the Crown was rejected out of hand by government lawyers at the time; the Oka Indians, one opinion stated, were merely “a gathering of waifs and strays of different tribes, fortuitously collected at the mission location.”114 The Kanesatake Mohawks would press on with their claim, however, litigating the matter through the courts of Quebec and then appealing to the highest court in the British empire, the Judicial Committee of the Privy Council, in 1912. Although the British law lords held that the Seminary of St Sulpice had full title to the Seigneury of the Lake of Two Mountains, largely on a narrow reading of the 1840 statute confrming that title, in delivering the judgment Viscount Haldane hinted that, in English law at least, it might have been argued that the seminary held the lands in trust for the Mohawks.115 In 1944 the Kanesatake Mohawks would invoke Viscount Haldane’s reference to a possible trust when complaining that the seminary continued to interfere with the lands known as “the Commons.”116 The role of the seminary in the dispute came to an end in 1945 when the federal government purchased its remaining lands for the use of Kanesatake Mohawks, but these parcels were a fragment of the original seigneury and did not include the Commons or the Pines, which had a special spiritual meaning for the Mohawks. The federal government would later refuse to negotiate claims to those lands under its comprehensive and specifc claims policies in the 1970s. Centuries of frustration lay behind the decision to occupy the unpaved side road in the Pines on 10 March 1990. legality and kuswentha The Deputy Minister of Indian Affairs at the time of the Oka Crisis, Harry Swain, concluded that the Mohawks had launched “an armed challenge to the sovereignty of Canada,” an “insurrection” that was aimed at “full-bore international sovereignty” for the Mohawks.117 Indeed, it was reported that Mohawk negotiators sought recognition of a new sovereign state, Kahnienkahaka, stretching from Brantford, Ontario, to Oka, to Plattsburg, New York.118 Claims to this kind of sovereignty were, in a sense, easy for the federal government to ignore. However, there was and remains an interesting tendency within the legal and political discourses emerging from the crisis to resist characterizing the Mohawk stand as a rejection of “Canada” in such blunt terms. The Mohawks behind the barricades may have rejected Canadian citizenship and Canadian laws, but this rejection was never taken seriously in

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Canadian legal discourse. Indeed, there would be a judicial ruling that the Oka Crisis did not involve an insurrection. Ironically, this ruling came in the course of a judgment in favour of the Oka Golf Club in an action against its insurer, which had refused to cover the damages suffered by the club during the crisis on the grounds that the terms of the insurance policy excluded coverage for losses suffered during an “insurrection” or a “rebellion.” In concluding that the Oka Crisis was neither an insurrection nor a rebellion, the judge put considerable weight on the fact that the military had been called out under the National Defence Act rather than the Emergencies Act, and also the fact that the primary cause of the crisis had been the forceful methods used by the provincial police on 11 July in response to a protest that was originally meant merely to draw attention to a Mohawk land claim.119 In this legal response, there is evidence of what might be seen, in a negative light, as a kind of wilful blindness about the events of the summer of 1990, or, in a positive light, as an admirable sense of constitutional humility, patience, and hope. The Canadian legal discourse did not ignore – indeed, could not have ignored – the ambiguity surrounding Mohawk claims to sovereignty. The assertion that the Mohawks constituted a sovereign nation or state in international law was hardly new.120 Yet the foundations of that claim were and remain contested. The claim is made that the two-row wampum treaty, the kuswentha, established in the early seventeenth century, secured for the Iroquois or Haudenosaunee nations sovereign statehood in the European sense – yet how or why would Haudenosaunee peoples have agreed to a legal conception of statehood and sovereignty alien to the essence of their own identities? That the conception of sovereign statehood the Mohawks advanced appeared distinctively European has been said to confrm “the distortions that conceptions of sovereignty have” for Indigenous peoples.121 The Kahnawake Mohawk scholar Taiaiake Alfred has argued that the warrior movement adopted an interpretation of the kaienerekowa that was divested of its distinctive spiritual and cultural meaning and abandoned its “uniquely indigenous conceptual framework” in pursuing European-style statehood.122 If the treaty relationship, the kuswentha as understood through either the two-row wampum or the covenant chain metaphors, embraced the juridical ideals of the kaienerekowa, then it founded a relationship not of sovereign separateness but of intense spiritual unity involving duties of care between equally free peoples – a relationship refected not by juridical separation but by the common participation of treaty partners in the ceremonies of condolence central to Haudenosaunee law. The Oka Crisis was, and remains, a call to

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action – a call to fgure out how this kind of relationship can be conceived in terms that could bring justice to peoples today. We may close by returning to the trial of the thirty-nine Mohawk and other Indigenous occupiers apprehended in the treatment centre at the end of the stand-off on 26 September 1990. It may be said that this was a state trial. Many of the charges levelled against the defendants were perhaps ordinary ones, such as obstructing a peace offcer in the execution of his duties and carrying a weapon for a purpose dangerous to the public peace, though, as mentioned above, the defendants also faced the charge of rioting.123 The political context – the enforcement of law by way of public order policing and, when that failed, the resort to military aid to the civil power – and the nature of the prosecutions signify that these were political trials. However, the defendants received due process and the opportunity to challenge fully the Crown’s case at trial. The trial judge, Justice Louis Tannenbaum, gave defence counsel wide latitude in introducing evidence: Mohawk history, territorial claims, and culture were all explored, including accounts of the Haudenosaunee Great Law of Peace. He permitted the court to convene in the Pines, where the principal Mohawk spokesperson during the crisis, Ellen Gabriel, under oath, explained the events to the members of the jury. The testimony of Gabriel and other Mohawk witnesses included detailed accounts of the constitutional structure of Mohawk governance, the division of their society into clans, the role of women as caretakers and guardians of the land, and the authority of clan mothers to select their chiefs and councils. They also explained why they could not have gone to a Canadian court, a foreign court, to establish title to land that was already theirs. They explained how their treaty relationship with Canada, manifested by the two-row wampum belt, protected their sovereign status. Also introduced into evidence was the letter written by the Quebec minister for Native affairs, John Ciaccia, to the mayor of Oka, on 9 July 1990, just two days before the police attack on the Mohawk barricades, urging the mayor not to seek to enforce the court injunction against the occupiers.124 In his letter, Ciaccia encouraged the mayor to see “beyond the strict legality of the situation as interpreted by our tribunals,” to understand the protest in light of Native cultures and perspectives and the long and troubled history of Aboriginal land claims in Canada. Ciaccia reminded the mayor that the law he sought to enforce was a law made by “our society,” that the laws denying Mohawk claims had been imposed by non-Native peoples upon Native peoples. The Mohawks had seen most of their territory disappear over the course of centuries, and to deny them

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what was left for the sake of a golf course was inequitable and unjust. Ciaccia closed his letter with this remarkable statement, quoting Charles Dickens: “Sometimes ‘the law is an ass.’ And if that is the case, those who are elected should not hide behind the laws, but rather act in a generous and responsible manner.” In his closing statement to the jury in the trial of the occupiers, the Crown prosecutor submitted that an acquittal of the defendants would send a message to the world that it is acceptable in Canada to take up arms to resolve disputes about land. Justice Tannenbaum responded to this argument directly in his charge to the jury, stating that it amounted to an attempt at intimidation, that they were to have regard only to the evidence introduced during the trial, and, fnally, that if they were looking for a “message” they should take into consideration Ciaccia’s letter to the mayor of Oka of 9 July 1990.125 We do not know why the jury came to the verdict it did. However, we do know that they were presented with evidence that the defendants had justifed their actions according to Haudenosaunee law and the two-row wampum treaty; and we know too that the trial judge commended to them a letter in which the minister responsible for Native affairs had denounced the strict interpretation of Canadian law as inequitable and unjust. The jury acquitted the remaining defendants of all charges. One of the defence lawyers, Owen Young, had speculated months earlier that given the political nature of the trial, it was one of those cases in which a jury might acquit “even though on legal grounds it should not” in order to send a message that the matter ought to be “solved politically.”126 Nullifcation or verdict according to conscience, a frequent outcome in controversial state trials from the late eighteenth century, would be one way to understand what the jury did. On this interpretation of the state trial resulting from the Oka Crisis, there was a binary relationship between Haudenosaunee law and Canadian law mediated only by politics. To return to the imagery with which we started, we could say that this interpretation suggests that the white rows between the purple lines in the two-row wampum represent a legal void between two competing legal orders – a space occupied by the power asserted by soldiers and warriors but also by the sense of justice asserted by jurors. However, there is another interpretation of the Oka state trial. It may be said that it manifested, if only implicitly and tentatively, a common law linking Haudenosaunee and Canadian legal orders. It has been argued that the white rows between the purple lines in the two-row wampum, when considered together with the covenant chain idea, represent not a

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void but a bridge between peoples and laws.127 On this view, the relationship between Indigenous peoples and the Canadian state is one of law, a law reconciling Indigenous and non-Indigenous laws. Perhaps the jury verdict was legally justifed in this light. On this view, the struggle for sovereignty in the Pines was thus also a struggle for legality, a struggle to fnd common legal ground. NOTES * I wish to thank Gabriel D’Astous, Michelle Pucci, Anna Rotman, Alec Sader, and Alex McPherson for their research assistance. 1 R v. Sparrow, [1990] 1 S.C.R. 1075 at 1105–1106 (Dickson C.J. and La Forest J. quoting Noel Lyon, “An Essay on Constitutional Interpretation” (1988) 26 Osgoode Hall Law Journal 95 at 100. 2 Harry Swain, Oka: A Political Crisis and Its Legacy (Vancouver: Douglas and McIntyre, 2010); John Ciaccia, The Oka Crisis: A Mirror of the Soul (Dorval: Maren, 2000). 3 Ronald Cross and Hélène Sévigny, Lasagna: The Man Behind the Mask (Vancouver: Talonbooks, 1994); Kahn-Tineta Horn, Mohawk Warriors Three: The Trial of Lasagna, Noriega, and 20–20 (Kahnawake: Owera Books, 1994); Donna Goodleaf, Entering the War Zone: A Mohawk Perspective on Resisting Invasions (Penticton: Theytus Books, 1995); Douglas M. George-Kanentiio, Iroquois on Fire: A Voice from the Mohawk Nation (Lincoln: University of Nebraska Press, 2008). 4 Réginald Gagnon, Fait d’armes à Oka (Ottawa: Arion, 1994). 5 Geoffrey York and Loreen Pindera, People of the Pines: The Warriors and the Legacy of Oka (Toronto: Little, Brown, 1991); Craig MacLaine, Michael Baxendale, and Robert Galbraith, This Land Is Our Land: The Mohawk Revolt At Oka (Montreal and Toronto: Optimum, 1990); Rick Hornung, One Nation under the Gun: Inside the Mohawk Civil War (Toronto: Stoddart, 1991), 181–277; Jacques Lamarche, L’été des Mohawks: bilan des 78 jours (Montréal: Stanké 1990); François Dallaire, Oka: la hache de guerre (Québec: Les Éditions la Liberté, 1991). 6 Gilles Boileau, Silence des messieurs: Oka, terre indienne (Montréal: Méridien, 1991); Robert Campbell and Leslie Pal, “Feather and Gun: Confrontation at Oka / Kanesatake,” in Real Worlds of Canadian Politics: Cases in Process and Policy, ed. Robert Campbell and Leslie Pal (Toronto: Broadview, 1991), 267– 333; Timothy C. Winegard, Oka: A Convergence of Cultures and the Canadian Forces (Kingston: Canadian Defence Academy Press, 2008); P.

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Whitney Lackenbauer, “A Bridge Too Far?: The Oka Crisis,” in Blockades or Breakthroughs?: Aboriginal Peoples Confront the Canadian State, ed. P. Whitney Lackenbauer and Yale D. Belanger (Montreal and Kingston: McGill-Queen’s University Press, 2014), 166–221; Linda Pertusati, In Defense of Mohawk Land: Ethnopolitical Confict in Native North America (Albany: SUNY Press, 1997); Amelia Kalant, National Identity and the Confict at Oka: Native Belonging and Myths of Postcolonial Nationhood in Canada (New York and London: Routledge, 2004). See the Indigenous and non-Indigenous commentaries in Kiera L. Ladner and Leanne Simpson, eds., This Is an Honour Song: Twenty Years since the Blockades (Winnipeg: Arbeiter Ring, 2010). House of Commons, Standing Committee on Aboriginal Affairs, Minutes of Proceedings and Evidence, 34–2; Canada, House of Commons, Standing Committee on Aboriginal Affairs, The Summer of 1990: Fifth Report of the Standing Committee on Aboriginal Affairs (Ottawa: Supply and Services Canada, 1991); Oka-Kanehsatake – Summer 1990: A Collective Shock. Report of the Commission des droits de la personne du Québec (Quebec, 1991); Guy Gilbert, Rapport D’Enquete du Coroner: Guy Gilbert sur les Causes et Circonstances du Deces de Monsieur Marcel Lemay, English Version (Quebec, 1995). The Oka Crisis was one of the principal factors leading to the establishment of the Royal Commission on Aboriginal Peoples, which issued a comprehensive report on Indigenous peoples in Canada in 1996: Canada, Report of the Royal Commission on Aboriginal Peoples, 5 volumes (Ottawa: Canada Communication Group, 1996). MacLeod v. Canadian Armed Forces (Chief, Defence Staff), [1991] 38 F.T.R. 129 (Fed. Ct. Tr. Div.); R. v. Cross, [1992] R.J.Q. 1001, 17 W.C.B. (2d) 376 (Que. Sup. Ct.); Club de golf Oka Inc. c. Continentale, cie d’assurance du Canada, [1996] R.J.Q. 993, [1996] R.R.A. 489 (Que Sup Ct). Alanis Obomsawin, Kanehsatake: 270 Years of Resistance (National Film Board of Canada, 1993). Isabelle St-Amand, Stories of Oka: Land, Film, and Literature, trans. S.E. Stewart (Winnipeg: University of Manitoba Press, 2018), 22. Barry Wright, Eric Tucker, and Susan Binnie, “Introduction: War Measures and the Repression of Radicalism,” in CST4, 3. Val Napoleon, “Behind the Blockades” (2010) 9 Indigenous Law Journal 1–11 at 1, 10. Standing Committee on Aboriginal Affairs, Proceedings, 34–2, no. 46 (31 January 1991), 845. Standing Committee on Aboriginal Affairs, Proceedings, 34–2, no. 51 (6 March 1991), 1595. On the Great Law see Kayanesenh Paul Williams, Kayanerenkó:wa: The Great Law of Peace (Winnipeg: University of Manitoba Press, 2018).

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16 York and Pindera, People of the Pines, 302–3. 17 Alex K. Paterson, My Life at the Bar and Beyond (Montreal and Kingston: McGill-Queen’s University Press, 2005), 128. 18 Royal Commission on Aboriginal Peoples, Final Report, vol. 1: Looking Forward, Looking Back (Ottawa, 1995), 116. 19 Kahn-Tineta Horn, “Beyond Oka: Dimensions of Mohawk Sovereignty” (1991) 35 Studies in Political Economy 29–41 at 40, 41. 20 Standing Committee on Aboriginal Affairs, Proceedings, 34–2, no. 46 (31 January 1991), 955. 21 John Borrows, Indigenous Constitutionalism and Indigenous Freedom (Toronto: University of Toronto Press, 2016), 53. 22 York and Pindera, People of the Pines, 43; Standing Committee on Aboriginal Affairs, The Summer of 1990, 3. 23 Indian Act, R.S.C. 1985, c.I-5. 24 Patricia Begin, Wendy Moss, and Peter Niemczak, “The Land Claim Dispute at Oka” (Ottawa: Library of Parliament, Research Branch, September, 1990). 25 York and Pindera, People of the Pines, 48–51. 26 The Iroquois Confederacy applied (unsuccessfully) for membership in the League of Nations, the precursor to the United Nations, in 1924: “Appeal of the ‘Six Nations’ to the League,” League of Nations Offcial Journal, vol. 6 (1924), 829. In 1946, a Kanesatake submission to a parliamentary committee claimed that by virtue of “ancient treaties” the Mohawks were “a sovereign nation” “not liable to any federal or provincial laws within their territories”: Special Joint Senate and House of Commons Committee on the Indian Act, Minutes of Proceedings and Evidence, no. 33, 1794–97 (James Montour, submission of 24 October 1946). 27 In sketching the events of the Oka Crisis in this and following paragraphs, I have relied upon the detailed accounts cited in footnotes 2 to 8 above, and in particular on York and Pindera, People of the Pines; Winegard, Convergence of Cultures; Swain, Oka; Standing Committee on Aboriginal Affairs, The Summer of 1990. 28 George-Kanentiio, Iroquois on Fire, 121, 125–6. 29 These numbers were given by Greenberg J. in R. v. Cross, at para. 33. 30 The event is vividly captured in Alanis Obomsawin’s documentary flm, Rocks at Whiskey Trench (NFB Canada, 2000). 31 Constitution Act, 1867, 30 & 31 Vict., c.3 (U.K.), s.91(24). 32 These provincial powers are derived from the Constitution Act, 1867, s.92(14). 33 William Claiborne, “Mohawks, army still at standoff; Bridge to Montreal reopens to traffc,” Washington Post, 7 September 1990, 17.

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34 MacLaine and Baxendale, This Land Is Our Land, 34. 35 Lysiane Gagnon, “Did Bourassa dither too long over crisis in Oka?” Globe and Mail, 11 August 1990, D2. 36 St-Amand, Stories of Oka, 54. It was reported that there were some two hundred warriors from various communities at Kanesatake and four hundred at Kahnawake with a range of light and heavy arms: Sean Maloney, “Domestic Operations: The Canadian Approach” (1997) 27 Parameters 135–52 at 146. 37 “Soldiers in position,” Windsor Star, 15 August 1990, A1. 38 Robert McKenzie, “Army responsible for its own actions, minister insists,” Toronto Star, 21 September 1990, A13; Rhéal Séguin, “Quebec adopts handsoff policy in native crisis,” Globe and Mail, 19 September, 1990, A4. 39 Guy Gilbert, Rapport d’enquete du coroner. 40 The federal government purchased parts of the disputed lands, and there is an interim governance regime for Kanesatake: the Kanesatake Interim Land Base Governance Act, S.C. 2001, c.8. However, the underlying Mohawk land claim remains unsettled. 41 Rima Wilkes and Michael Kehl, “One image, multiple nationalisms: Face to Face and the Siege at Kanehsatàke” (2014) 20 Nations and Nationalism, 481–502. 42 Indeed, the use of troops and the imposition of martial law in Canada’s history reinforces this view. See, e.g., CST2. 43 R v. Kennett (1781) 5 Car. & P. 282 at 294; Burdett v. Abbot (1812) 4 Taunt. 401 at 449–50; Redford v. Birley (1822) 3 Stark. 76 at 90–1. In general, Keith Jeffrey, “Military Aid to the Civil Power in the United Kingdom – an Historical Perspective,” in Military Intervention in Democratic Societies, ed. Peter J. Rowe and Christopher J. Whelan (London: Croom Helm, 1985), 51–67. 44 Desmond Morton, “Bayonets in the Streets: The Canadian Experience of Aid to the Civil Power 1867–1990” (1991) 20 Canadian Defence Quarterly 407–25. 45 Constitution Act, 1867, s.91(7). 46 Craig Forcese, “The Executive, the Royal Prerogative, and the Constitution,” in The Oxford Handbook of the Canadian Constitution, ed. Nathalie Des Rosiers, Patrick Macklem, and Peter Oliver (Oxford: Oxford University Press, 2017), 152–69 at 162–3. 47 Constitution Act, 1867, ss.92(13), 92(14). 48 National Defence Act, R.S.C. 1985, c.N-5, ss.275, 277. 49 Ibid. s.282. 50 A.V. Dicey, Introduction to the Study of the Law of the Constitution, 8th ed. (London: Macmillan & Co., 1915), 189. It should be noted, though, that if soldiers are acting as constables, then they enjoy certain powers and

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protections given to “peace offcers” under the Criminal Code of Canada, R.S.C. 1985, c.C-46. Re: Anti-Infation Act, [1976] 2 S.C.R. 373. Public Order (Temporary Measures) Act, 1970, S.C. 1970–1972, c.2, which replaced the Public Order Regulations, 1970, an order-in-council made pursuant to the War Measures Act, R.S.C. 1970, c.W-2, s.6, on 16 October 1970. Emergencies Act, R.S.C. 1985, c.22, ss.3, 16; Canadian Security Intelligence Service Act, R.S.C., 1985, c.C-23, s.2. To be valid, any order under the Act limiting or suspending civil liberties would have to justifed under s.1 of the Canadian Charter of Rights and Freedoms. Andre Picard and Susan Delacourt, “Ottawa sending troops to Quebec; Mediator appointed in Mohawk standoff; forces to relieve police,” Globe and Mail, 9 August 1990, A1. Audra Simpson, Mohawk Interruptus: Political life across the Borders of Settler States (Durham: Duke University Press, 2014), 151–3; St-Amand, Stories of Oka, 51–2. Schmitt famously stated that the “sovereign” is “he who decides on the exception” – that is, who is the enemy of the people beyond legal protections: Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty [1922], trans. George Schwab (Chicago: University of Chicago Press, 2005), 5. R. v. Cross, at para. 89. It is worth adding that even had emergency powers under the federal Emergencies Act been invoked as the basis for military involvement, there still would not have been a “Schmittian” state of exception since the powers would have been exercised pursuant to statute, and thus law, rather than an inherent executive power to set law aside. See generally David Dyzenhaus, “Schmitt v. Dicey: Are States of Emergency Inside or Outside the Legal Order” (2006) 27 Cardozo Law Review 2005–39. Standing Committee on Aboriginal Affairs, Proceedings, 34–2, no. 55, 1650 (19 March 1991) [emphasis added]. Among those appearing with General de Chastelain was the Judge Advocate General Commodore Peter Partner. Desmond Morton, “On calling out the troops,” Ottawa Citizen, 30 September 1990, A10. Standing Committee on Aboriginal Affairs, Proceedings, 34–2, no. 46 (31 January 1991), 855. Elizabeth Payne, “Oka likened to FLQ crisis,” Windsor Star, 28 September 1990, A1. Standing Committee on Aboriginal Affairs, Proceedings, 855–900. Campbell was referring to the unsuccessful challenge by journalists to restrictions

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placed on them by the military: MacLeod v. Canadian Armed Forces (Chief, Defence Staff), [1991] 38 F.T.R. 129 (Fed. Ct. Tr. Div.). St-Amand, Stories of Oka, 90. Arthur Kroker, “The Mohawk Refusal,” in This Is an Honour Song, ed. Ladner and Simpson, 271. Marc Drouin and François Saillant, Le procès des Mohawks: non coupable (Montréal: Regroupement de solidarité avec les Autochtones, 1992), 82. Swain, Oka, 106–9. “The truth is uncomfortable; Harry Swain was simply stating the facts,” The Gazette (Montreal), 26 July 1990, B2; Begin, Moss, and Niemczak, “Land Claim Dispute at Oka,” 23. Hornung, One Nation under the Gun. On the importance of understanding the Akwesasne disorders for understanding the Oka Crisis, see Timothy C. Winegard, “The Forgotten Front of the Oka Crisis: Operation Feather/ Akwesasne,” (2009) 11 Journal of Military and Strategic Studies 1–50; and Winegard, Oka, 131–2. Gagnon, “Did Bourassa dither too long over crisis in Oka?,” D2. George-Kanentiio, Iroquois on Fire, 121–6; Lackenbauer, “A Bridge Too Far?,” 189; Hornung, One Nation under the Gun, 157. On divisions at Kahnawake, see Gerald R. (Taiaiake) Alfred, Heeding the Voice of Our Ancestors: Kahnawake Mohawk Politics and the Rise of Native Nationalism (Toronto: Oxford University Press, 1995); and Gerald F. Reid, Kahnawà:ke: Factionalism, Traditionalism, and Nationalism in a Mohawk Community (Lincoln: University of Nebraska Press, 2004). Rick Monture, We Share Our Matters / Teionkwakhashion tsi niionkwariho:ten: Two Centuries of Writing and Resistance at Six Nations of the Grand River (Winnipeg: University of Manitoba Press, 2014), 191, 192. See also Grand Chief Michael Mitchell, “Akwesasne: An Unbroken Assertion of Sovereignty,” in Drumbeat: Anger and Renewal in Indian Country, ed. Boyce Richardson (Toronto: Summerhill Press, 1989), 105–36 at 130. Cross and Sévigny, Lasagna, 34. R. v. Cross. Horn, Mohawk Warriors Three, 123. Rob LeBlanc, “At the Sacred Intersection of Politics and War: A Discussion of Warrior Societies, Masculine Identity Politics, and Indigenous Resistance Trends in Canada” (2015) 35 Canadian Journal of Native Studies 75–92; Ruth Jamieson, “‘Contested Jurisdiction Border communities’ and Cross-Border Crime – the Case of Akwesasne” (1998) 30 Crime, Law and Social Change 259–72; E.J. DicksonGilmore and Chris Whitehead, “Aboriginal Organized Crime in Canada: Developing a Typology for Understanding and Strategizing Responses” (2002)

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76 77 78

79

80 81

82 83 84 85

86

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7 Trends in Organized Crime 3–28; E.J. Dickson-Gilmore, Communities, Contraband, and Confict: Considering Restorative Responses to Repairing the Harms Implicit in Smuggling in the Akwesasne Mohawk Nation (Canada: Royal Canadian Mounted Police, Research and Evaluation Branch, Community, Contract and Aboriginal Policing Services Directorate, April 2002). Standing Committee on Aboriginal Affairs, Proceedings, 34–2, no. 46 (31 January 1991), 900. Wab Kinew, “Cowboys and Indians” in This Is an Honour Song, ed. Ladner and Simpson, 47. On the complex sociopolitical distinctions between guerrilla groups, insurgent groups, terrorist groups, and organized criminal groups, see Kevin E. Grisham, Transforming Violent Political Movements: Rebels Today, What Tomorrow? (London and New York: Routledge, 2014), 8–10. See Kirchheimer’s distinction between different kinds of “political trials”: trials in relation to political offences, trials in relation to regular offences committed for political reasons, and show trials: Otto Kirchheimer, Political Justice: The Use of Legal Procedure for Political Ends (Princeton: Princeton University Press, 1961), 46. See also the introduction to this volume, n2. Criminal Code of Canada, R.S.C, 1985, c.C-46, ss.64–5. “A Political Problem That Must be Resolved Politically”, Solidarity with Native People (Montréal: Regroupement de solidarité avec les Autochtones), bulletin 9–10 (January 1992). R. v. Cross, at para 48. For accounts of the trial, see Drouin and Saillant, Le procès des Mohawks; and York and Pindera, People of the Pines, 423–6. Drouin and Saillant, Le procès des Mohawks, 39, 47. Taiaiake Alfred and Lana Lowe, “Warrior Societies in Contemporary Indigenous Communities” (2005), a paper prepared for the Ipperwash Inquiry (S. Linden, Commissioner), 4, 10. Alfred and Lowe, “Warrior Societies,” 4. See also Taiaiake Alfred, “Reimagining Warriorhood,” in Masculindians: Conversations about Indigenous Manhood, ed. Sam McKegney (Winnipeg: University of Manitoba Press, 2014), 76–86. Christian D.R. Beaulieu and Andres C. Garin, “The Impact of International Humanitarian Law on Armed Stand-offs Opposing Aboriginal Peoples to Canadian Authorities: An Overview of the Oka-Kanesatake Crisis” (2002), 62 Revue du Barreau 159–204. Rev. William Scott, Report relating to the Affairs of the Oka Indians made to the Superintendent General of Indian Affairs (Ottawa: MacLean, Roger & Co., 1883), preface.

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89 John Thompson, “A History of the Mohawks at Kanesatake and the Land Dispute to 1961,” Part I of Materials Relating to the History of the Land Dispute at Kanesatake (Ottawa: Indian Affairs and Northern Development, Claims and Historical Research Centre, 1991; rev’d 1993). For detailed accounts of the history of the Kanesatake land dispute, see the articles published in special editions of Recherches amérindiennes au Québec, vols. 21 (1991) and 39 (2009). 90 See in general Jean-François Lozier, Flesh Reborn: The Saint Lawrence Valley Mission Settlements through the Seventeenth Century (Montreal and Kingston: McGill-Queen’s University Press, 2018). 91 Sir William Johnson, Supt. Gen. Ind. Affrs., to Thomas Gage, Comm. in Chief, 27 January 1764, in J. Sullivan, ed., The Papers of Sir William Johnson (Albany: State University of New York, 1921–65) [hereafter Johnson Papers], vol. 4, 307–10; Gage to Johnson, 6 February 1764, Johnson Papers, vol. 4, 318; Johnson to William Grant, 28 June 1766, Johnson Papers, vol. 12, 118–20. Perhaps the most forceful denial of Mohawk Aboriginal title to the Oka region comes from the Algonquins, who have long claimed the Ottawa River valley as their own: Standing Committee on Aboriginal Affairs, Proceedings, 34–2, no. 56 (20 March 1991), 1540. The Supreme Court of Canada has found that the “ancestral home” of the Mohawks lay south of the St Lawrence River, though they travelled north of the river “on occasion”: Mitchell v. M.N.R., [2001] 1 S.C.R. 911 at para. 41. See also R. v. Adams, [1996] 3 S.C.R. 101, paras. 34–45. 92 Brenda Katlatont Gabriel-Doxtater and Arlette Kawanatatie Van den Hende, At the Woods’ Edge: An Anthology of the History of the People of Kanehsatà:ke (Kanesatake: Kanesatake Education Center, 1995), 23–9. 93 In R. v. Sioui, released just over one month before the fatal police attack on the Oka barricades, the Supreme Court of Canada enforced one of the resulting treaties from 1760, observing that the “Indian nations had suffcient independence” for it to be good policy for the Crown “to maintain relations with them very close to those maintained between sovereign nations.” R. v. Sioui, [1990] 1 S.C.R. 1025, at 1052–3. 94 Council, Montreal [Caughnawaga] 16 September 1760, Johnson Papers, vol. 13, 163–6. See in general Jean-Pierre Sawaya, Alliance et dépendance: comment la couronne britannique a obtenu la collaboration des Indiens de la vallée du SaintLaurent entre 1760–1774 (Sillery: Septentrion, 2002), 20–4. 95 Sir W. Johnson to the Lords of Trade, 25 September 1763, in Documents Relative to the Colonial History of the State of New York, ed. E.B. O’Callaghan (Albany: Weed, Parsons, & Co., 1856–1861), vol. 7, 559–62 [hereafter DRCHSNY]; treaty council at Johnson Hall, 12 September 1763, Johnson Papers, vol. 7, 558–9.

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96 John Borrows, “Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government,” in Aboriginal and Treaty Rights in Canada: Essays on Law, Equality and Respect for Difference, ed. Michael Asch (Vancouver: UBC Press, 1997), 155–72. 97 “Conference with Indians,” Niagara, 9 July–14 August 1764, Johnson Papers, vol. 11, 262–324 at 276, 297, 298. 98 “Conference with Indians,” 309–10. 99 Mark D. Walters, “The Morality of Aboriginal Law” (2006) 31 Queen’s Law Journal 470–520. 100 Sir William Johnson to the Lords of Trade, 30 October 1764, DRCHSNY, vol. 7, 670–4. 101 Mark D. Walters, “‘Your Sovereign and Our Father’: The Imperial Crown and the Idea of Legal-Ethnohistory,” in Law and Politics in British Colonial Thought: Transpositions of Empire, ed. Shaunnagh Dorsett and Ian Hunter (Houndmills: Palgrave Macmillan, 2010), 91–108; Walters, “Rights and Remedies within Common Law and Indigenous Legal Traditions: Can the Covenant Chain be Judicially Enforced Today?,” in The Right(s) Relationship: Reimagining the Implementation of Historical Treaties, ed. John Borrows and Michael Coyle (Toronto: University of Toronto Press, 2017), 187–205. 102 Standing Committee on Aboriginal Affairs, Proceedings, 34–2, no. 48 (20 February 1991), 1220 (Oren Lyons); no. 49 (21 February 1991), 1030 (KahnTineta Horn). See also Horn, “Dimensions of Mohawk Sovereignty,” 40. 103 Journal of Daniel Claus, 19 August–17 September 1767, Johnson Papers, vol. 13, 427–31 at 428–9. 104 For a collection of documents charting the Oka land dispute, see the appendix to The Seminary of Montreal: Their Rights and Titles (St-Hyacinthe: Courrier de St-Hyacinthe Poer Presses, 1880). 105 Minutes of a speech addressed to Sir John Johnson, Superintendent General Indian Affairs, by the Principal Chiefs of the Village of Lake of Two Mountains, assembled in Council, 7 February 1787, LAC, MG 11, CO 42/66, 52. See also Proceedings of the Privy Council of the Province of Quebec, 16 April 1789, considering “Observations and Remarks of the Attorney and Solicitor General,” Seminary of Montreal, app., 161–166. The two-dog wampum had also been discussed by the Kanesatake chiefs in 1781: Urgel Fontaine, “Documents relatifs aux Droits du Séminaire et aux Prétentions des Indiens sur la Seigneurie des Deux Montagnes (1781 et 1788)” (1991) 21 Recherches amérindiennes au Québec, 93–4. 106 A two-dog wampum belt is now held by the McCord Museum, Montreal (item MCM1904).

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107 The relevant deeds from 1717–18 and 1733–5 are reproduced at Seminary of Montreal, app., 1, 25–32. Report of J. Monk, Attorney General, and J. Williams , Solicitor General, 21 March 1789, NAC, RG10 10024, 75–6; J. Sewell, Attorney General, Report on the claims of the Iroquois Indians to the Seignory of the Lake of the Two Mountains, 22 June 1808, LAC, RG 10, vol. 486, 4179; R. Lafamme, Minister of Justice, to David Mills, Minister of the Interior, 9 January 1878, in Seminary of Montreal, app., 102–28. 108 An ordinance to incorporate the Ecclesiastics of the Seminary of St. Sulpice of Montreal, to confrm their title to the ... Fief and seigniory of the Lake of the Two Mountains, 1840, 3 & 4 Vict., c. 30 (Lower Canada). 109 The contest was waged, in part, through pamphlets: Norman Murray, The Oka Question: Containing the Original Title, and a Brief Account of the Feudal System of Seigniorial Tenure in Canada, and its Abolition in 1854, with a General Review of the Oka Question in Particular and Roman Aggression in General (Quebec: E. Frechette, 1852); An Historical notice on the diffculties arisen between the Seminary of St. Sulpice of Montreal and certain Indians, at Oka, Lake of Two Mountains: A Mere Case of Right of Property (Montreal: La Minerve, 1876); “Beta,” A Contribution to a Proper Understanding of the Oka Question; and a Help to its Equitable and Speedy Settlement (Montreal, 1879); The Seminary of Montreal: Their Rights and Titles (St-Hyacinthe: Courrier de St-Hyacinthe Poer Presses, 1880); Scott, Report relating to the Affairs of the Oka Indians (1883). 110 Petition of the Indian Chiefs and Iroquois of the Lake of Two Mountains to Sir John Macdonald, Minister of Justice, 10 December 1868, Seminary of Montreal, app. 1, 1–4. 111 Thompson, “History of the Mohawks at Kanesatake,” 29–30. 112 Thompson, “History,” See also Edwin C. Guillet, Who Fired Oka Seminary: A Study of the Evidence in the Five Trials of the Oka Indians, 1877–1880 (1944), unpublished MS, Toronto Public Library, Baldwin Collection. 113 Memorial to Viscount Monck, Governor General, from the “Chiefs of the Iroquois Tribe or Nation at the Lake of Two Mountains,” 8 August 1868, Seminary of Montreal, app. 1, 5–13. See also memorial from “the Chiefs and other Indians of the village of Oka” to Sir John Young, Governor General, 7 February 1870, Seminary of Montreal, 72–6 (Mohawks of Kanesatake are “the offspring of the tribes or nations of Indians, with whom the British Government formed a treaty, as allies, and who lived under its benevolent protection a long time, previous to, and since the Royal Proclamation [of 1763],” and are “loyal subjects of her Majesty the Queen”). 114 “Opinion of the Honourable William Badgley. In the matter of the Seigniory of the Lake of Two Mountains and the Oka Indians,” 7 May 1878, Seminary of Montreal, app., 129–59 at 157.

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115 Corinthe et al v The Ecclesiastics of the Seminary of St. Sulpice (1910) 38 C.S. 268; (1911) 21 R.J.Q. 316 (CA), aff’d, [1912] A.C. 782 (J.C.P.C.). 116 Special Joint Senate and House of Commons Committee on the Indian Act, Minutes of Proceedings and Evidence, no. 33, 1788–94 at 1791–3 (submission by George Arirkon, Cree, Angus Aroniahwent, Marten Anonsawenrate, Simone Karoniakeron Simon, 30 June 1944). 117 Swain, Oka, 127, 188. 118 Claiborne, “Mohawks, army still at standoff,” a17. 119 Club de golf Oka Inc. c. Continentale, cie d’assurance du Canada, [1996] R.J.Q. 993, [1996] R.R.A. 489 (Que Sup Ct). 120 See n26. 121 Kalant, National Identity and the Confict at Oka, 7. See also Pertusati, In Defense of Mohawk Land, 8. 122 Gerald R. (Taiaiake) Alfred, Heeding the Voice of Our Ancestors: Kahnawake Mohawk Politics and the Rise of Native Nationalism (Toronto: Oxford University Press, 1995), 85. See also Alfred, “‘Sovereignty’ – an Inappropriate Concept,” in The Indigenous Experience: Global Perspectives, ed. Roger C.A. Maaka and Chris Andersen (Toronto: Canadian Scholars Press, 2006), 322–6l and Alfred, Peace, Power, Righteousness: An Indigenous Manifesto (Oxford: Oxford University Press, 1999). 123 For a detailed account of the trial, see Drouin and Saillant, Le procès des Mohawks. See also York and Pindera, People of the Pines, 423–6. 124 As qtd in Ciaccia, Oka Crisis, 59–60. See also Lettre du ministre John Ciaccia au maire d’Oka, M. Jean Ouellette, et à son conseil municipal, lundi le 9 July 1990”, reprinted in “Les Mohawks” (1991) 21 Recherches amérindiennes au Québec 98. 125 Drouin and Saillant, Le procès des Mohawks, 95–6. 126 “A Political Problem That Must Be Resolved Politically,” Solidarity with Native People (Montréal: Regroupement de solidarité avec les Autochtones), bulletin 9–10 (January 1992). 127 Robinder Kaur Sehdev, “Lessons from the Bridge: On the Possibilities of Anti-Racist Feminist Alliances in Indigenous Spaces,” in This Is an Honour Song, ed. Ladner and Simpson, 105–23 at 112–13; Dale Turner, This Is Not a Peace Pipe: Towards a Critical Indigenous Philosophy (Toronto: University of Toronto Press, 2006), 48–9; Susan M. Hill, “‘Travelling down the river of life together in peace and friendship forever’: Haudenosaunee Land Ethics and Treaty Agreements as the Basis for Restructuring the Relationship with the British Crown,” in Lighting the Eighth Fire: The Liberation, Resurgence, and Protection of Indigenous Nations, ed. Leanne Simpson (Winnipeg: Arbeiter Ring, 2008), 22–45 at 32.

11 Epilogue: The Canadian State Trials Series in Retrospect BARRY WRIGHT

The volumes in the Canadian State Trials series have examined legal responses to real and perceived threats to the state, which traditionally included prosecutions for the political offences of treason and sedition, at times supplemented by emergency measures such as the suspension of habeas corpus. The introductory chapter by Murray Greenwood and Barry Wright in Volume I of the series explained the provenance of the term “state trials” and explored it as a historical genre in legal, constitutional, and political literature. The cases selected for the eighteenth- and nineteenth-century English collections were called state trials to distinguish government prosecutions from routine criminal cases, which remained mostly privately prosecuted until well into the nineteenth century. Notable is the Howells’ series Complete Collection of State Trials, initiated in 1809 by the reformer William Cobbett. Their selection of treason and sedition trials and related measures demonstrated how easily such security responses could undermine political liberties and due process, contradicting formal constitutional claims and public expectations for the rule of law.1 While the Howells inspired and informed the initial terms of reference for this series, we have acknowledged that the term “state trials” is somewhat of a misnomer in Canada, where the public prosecution of all criminal cases became the norm in the early British North American colonies.2 Legal responses have also changed since the Howells’ time. Our series includes not only classic state trials for treason and sedition

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but also political trials more broadly defned that entail prosecutions for routine criminal offences committed in the context of challenges to state authority, as well as the administration of modern national security measures. Scholarly conventions and expectations have also changed. Our interpretative essays (as opposed to the annotated cases found in the Howells’ series and others) place selected trials in political, social, cultural, economic, and comparative contexts.3 Our terms of reference have been adjusted to account for the complexities of the modern state (and contemporary scholarship on it), including the relationship of economic, social, and cultural interests to the maintenance of political order, as well as for the traditionally neglected histories of those participating in resistance to the state, including Indigenous and marginalized settler communities. This epilogue offers a retrospective look at the main general themes of the Canadian State Trials series from the perspective of this fnal volume. Examination of the rich Canadian record of resorts to the legal system in response to real and perceived threats to the state in the series has demonstrated numerous complexities that must qualify any generalizations. Trials for treason and sedition, suspensions of habeas corpus, summary deportations, and martial law and military justice fgured prominently in our frst two volumes; in the latter half of the nineteenth century, these traditional state responses were supplemented by new public order offences and national security laws, as well as the development of intelligence operations and political and public order policing. The modern security responses have become dominant, although the classic political offences remain in Canada’s Criminal Code and have occasionally been resorted to, as seen in Volumes III and IV and even in this volume (charges of sedition and even treason were considered for FLQ activists, and FLQ leaders were prosecuted for seditious conspiracy). A continuing theme has been a pattern of judicial deference to government concerns during emergencies and security crises and, indeed, sometimes ready compliance with and active support of executive security priorities in a manner that contradicts claims of judicial independence. This volume has described the post-war failure of appeals by Japanese Canadians against their mistreatment, the leading role of Supreme Court of Canada Justices Kellock and Taschereau in the Gouzenko spy ring investigations and prosecutions, and the FLQ trials and related contempt proceedings. However, the Canadian record has also demonstrated that legal responses are more complex than the exercise of political power by another means. Constitutional and legal constraints, as well as engaged public opinion and the limits of social

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toleration, have curbed crude political manipulation of the law. We also see that legal proceedings have provided possibilities for successful political resistance as well as opportunities for further challenges to the state. So, notwithstanding government attempts to protect the political and broader prevailing economic and social orders through legal responses to often broadly construed security threats, the courtroom has also been an important terrain of political or “counter-hegemonic” resistance. This has been demonstrated not only in trials for political offences but also in cases of more routine criminal offences committed with political aims, as seen in many examples in this volume. The following sections elaborate on these series themes and then illustrate them by surveying Canadian experiences with political trials and related security measures since the late eighteenth century (as examined in detail in our previous volumes). The Canadian State Trials series comes to an end before the millennium, but many of the security laws and issues identifed remain with us. As noted in this volume, struggles against the Canadian state and challenges to its sovereignty in the past ffty years in Quebec and by Indigenous nations have been met by accommodation but also by criminalization and security responses. International security pressures are ongoing. Some refection based on our historical experiences is therefore appropriate as the series concludes with this ffth and fnal volume. We acknowledge that there are no simple “lessons of history” and that scholars must take care to avoid presentism as well as to recognize that historical parallels are inexact. Nevertheless, an awareness of Canada’s historical experiences of political trials and security measures enhances our understanding of issues around civil liberties and due process and the battles that gave them practical meaning, the integrity of the rule of law, and related matters such as the accountability of our national security institutions. It also enhances our understanding of the self-determination struggles of historically marginalized groups in a climate of discrimination and the legacies of colonialism. As the editors observed in Volume I (while looking ahead from the vantage point of 1996 toward a future fnal volume in this series as conceived by Murray Greenwood), we may fnd that in an era of globalizing forces, fragmenting national identities, challenged sovereignties, and divided loyalties, accommodations will prevail and the repressive security measures of the past will have little place or will be reformed to avoid excesses of the past. It is also possible that new challenges to the state could see a return to old repressive measures and the development of new ones.

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setting the historical scene State trials and related security proceedings in British North America from the period after the American Revolution through to the mid-nineteenth century (during what may be called the “age of revolutions”), and in Canada from Confederation through to the late twentieth century, demonstrate that law is not simply an instrument of political power, nor are the courts simply an alternative means of state repression. Legal responses to real and perceived threats to the existing order may be distinguished from more arbitrary exercises of power such as direct executive measures (decreed through prerogative powers) and resort to military force (martial law and military justice). Legal responses reveal evident complexities that relate, in signifcant part, to prevailing expectations of formal constitutional claims about the rule of law, due process, and impartial justice, as well as to political liberties. As we have seen throughout the series, such expectations have constrained governments and Crown prosecutors, who have needed to be attentive to the integrity of these claims (or at least to appear to respect them). Public perceptions fgured prominently in government decisions about responses to real and perceived security threats. Careful calculations were made about the risks and benefts, in terms of effectiveness and legitimacy, of different state responses, namely whether to deal with real or perceived security threats by way of prosecutions in regular criminal proceedings or by more arbitrary state actions. While legal proceedings lent greater legitimacy to government responses, popular expectations and engaged public opinion limited the law’s repressive potential. Our view here has been informed by Edward Thompson’s insight into the importance of the rule of law in the administration of eighteenth-century criminal law in England. The history of Canadian political trials demonstrates his argument about the importance of the rule of law as a check on arbitrary authority. Thompson observed that for the law to legitimize the exercise of authority, governments must take into account popular expectations of justice and at least appear to respect formal claims about the law and its administration. Legal responses that failed to conform to or confound such public expectations undermined the legitimacy of government actions.4 Political trials bring these matters into sharp focus. As noted, while resort to regular processes of criminal justice tended to enhance public support for government responses to real and perceived security threats compared to more arbitrary measures, the approach also came with costs,

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and governments faced risks. The accused contested their prosecutions in public tribunals where governments had to demonstrate a degree of commitment to the integrity of their constitutional claims around liberties and the rule of law. Effective defences could check prosecutions, leading to their withdrawal or acquittals. Repressive uses of the law could thereby be frustrated, and governments held to popular account and even discredited. Historians have recently been drawn to the study of political trials as a measure of government responses to transgressive political behaviour and resistance movements, and as part of the broader “economy” of political reaction that encompasses both coercion and persuasion. Political trials demonstrate that the courts were not simply a site of state repression. Rival views of the law and the constitution could be expressed and the courtroom could be a site of political resistance where, at times, robust confrontations with authority were acted out. As Michael Lobban puts it in a recent collection on political trials in the “age of revolutions”: If political trials were means through which the state sought to exert its power over its opponents, and in ways in which the odds were often highly stacked against defendants, there remained enough uncertainty in the law for the crown’s legal claims to be contested, enough ambiguity in the constitution for its political claims to be disputed, and enough cultural space for the accused to appeal to the emotions of a wider public.5

He adds that the study of political trials enables us to “learn a great deal not only about the tools of legal repression used by the state, but also the social spaces in which radicalism operated.”6 These proceedings illuminate not only the repressive limits of legal responses but also the importance of the courts as a forum where opposition causes could be further publicized and rival views of law and the constitution could be popularized. Political trials contributed to the articulation of political identity, popular legal and constitutional consciousness, and the development of civic political engagement – what some scholars describe as a broadening popular “public sphere.”7 These insights into political trials and the administration of criminal justice assume public consciousness of the proceedings and associated constitutional claims that inform popular perceptions of fairness and justice; they also call into question contrary assumptions about deference to authority. Canada’s record with political trials, particularly in the decades following the War of 1812, demonstrates the validity of such insights. The

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constraints governments faced in their legal responses were evident as defences became increasingly effective as the nineteenth century progressed. Repressive political trials also presented “counter-hegemonic” opportunities to challenge and condemn a government’s coercive overreach, if contradictions with constitutional and legal claims could be demonstrated. Such proceedings lent publicity to opposition causes and on occasion enhanced their legitimacy, the very opposite of what governments wished to achieve through criminal proceedings. Before turning to illustrations by way of a survey of the early Canadian state trials, some historical context will help to set the scene. Quebec and Nova Scotia remained British North American colonies after the American Revolution, and the new colonies of Upper Canada and New Brunswick were created on their western frontiers to accommodate Loyalist migrants. By the time of the Napoleonic Wars, each of them had its own constitution, legislature, and courts. While much was made of the colonies’ conformity to the “British Constitution,” colonial government and public administration also responded to perceived errors in the administration of the Thirteen Colonies. Beyond enhanced imperial supervision of all the colonial legislatures and courts and the suppression of local assemblies, tight executive control was maintained through appointed government councils with limited accountability to the elected legislative assemblies. Furthermore, colonial judges held offce according to Royal pleasure and played a prominent role in the executive and legislative councils and, in the courts, Crown prerogatives around prosecutions were widely exercised and jury-packing was widespread. Executive domination of colonial government and the administration of justice departed from practices in the metropole (where late seventeenth-century constitutional developments reduced executive infuence) and became increasing controversial in early nineteenth-century Canada. Beyond abstract claims about enjoying the full benefts of the British Constitution, the received laws in the British North American colonies included important specifc checks on the administration of political offences and security measures. The received English laws included not only the medieval Statute of Treasons, which spelled out the reach of the law, but also the Habeas Corpus Act, 1679, and the 1696 Treason Act. (The former limited Royal prerogative and common law powers to suspend the writ beyond individual cases, so that broad suspension was possible only through temporary emergency legislation; the latter provided procedural protections such as the defendant’s right to an advance look at the prosecutor’s evidence, a requirement that the Crown produce two witnesses

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to alleged acts of treason, and the right to defence counsel.)8 Both the law and the constitution in colonial Canada thus provided grounds on which to contest government repression. Constitutional claims, which included the rule of law and related due process claims, featured in the discourse of the colonial legislatures and courts and were prominent in colonial state trials in particular, as we shall see in the following section. And just as there were very different understandings of the British Constitution in the metropole by Tories, court Whigs, libertarian Whigs, and radicals, there were similar differences among colonial political elites and reformers. For example, the Loyalist refugees from the American Revolution became infuential throughout British North America. Having experienced organized opposition and a free press as a prelude to revolution, they understood the impact of both and took full advantage of the executive powers in colonial government to put a decidedly reactionary spin on the administration of local political and legal institutions. Anxieties about government security were amplifed in Quebec, where British administrators, merchants, and settlers were vastly outnumbered by francophones; these fears became acute in the 1790s after the French Revolution. Organized movements of opposition and the development of a broader “public sphere,” noted earlier, were slower to emerge in British North America than in the metropole. The notion of the public sphere describes increasing popular engagement with public affairs, more articulate expectations of government, and increased demands for government accountability. It is characterized by a decline in traditional deference to authority, increasing literacy, popular consciousness of constitutional claims and related rights, and civic awareness and participation in public life. It was not until the 1820s that such movements in British North America were comparable to those in Britain in the 1790s.9 Before this time there were certainly manifestations of organized opposition, which tended to focus on particular local grievances, and at times they coalesced into broader political movements, infuenced by reformers such as the Irish Whigs and more radical British activists. But by the 1820s, organized political opposition was taking more durable form and mobilizing signifcant social support. Popular resistance to colonial government dominated by local political elites intensified, culminating in the ruptures of the 1837–8 Rebellions in Lower and Upper Canada. The previous volumes in the Canadian State Trials series amply illustrate the prevalence and complexity of legal responses to real and perceived security threats, which were readily extended to dissent and organized

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political opposition as British North America experienced the “age of revolutions.” The 1837–8 rebellion crisis in the Canadas prompted modernization of the colonial state and the development of more comprehensive forms of social and political regulation; meanwhile, though, trials for political offences continued as Ottawa replaced London as the nexus of colonial power. The emerging modern security state included new national security laws and operations that supplemented the classic political offences and state trials. The pattern of judicial deference to government security concerns continued, but limits on executive manipulation of the administration of justice, the enhancement of procedural protections in criminal trials, development of the defence bar, and the availability of trial appeals, further supported the counter-hegemonic potential of proceedings. The earlier experiences had not been forgotten in some collective memories in the latter half of the twentieth century. The neglected promises and rights thought protected under the Royal Proclamation, 1763, and the experience of the 1885 North-West Rebellion have informed modern Indigenous struggles. In a similar manner, the patriotes of 1837–8 helped inspire the FLQ. state trials in british north america during the “age of revolutions” Volume I of the series reached back to New France and Nova Scotia in the eighteenth century and British and French regional security concerns in the contested territories in between.10 The 1759 conquest of Quebec expanded British infuence on the North American continent before the American Revolution scaled it back. British military government and courts martial replaced the French colonial regime in Quebec, and transition to civilian administration began when French residents were confrmed as British subjects under the 1763 Treaty of Paris. The Quebec Act, 1774, established a colonial legislature and regularized the administration of justice. Besides refecting pragmatic recognition that British residents would long continue to be a demographic minority, this helped secure the alliance of the seigneurial class and the Church, enabling the southward deployment of British troops as tensions mounted in the American colonies. American rebels invaded Quebec in May 1775, resulting in the suspension of the new colonial courts and legislature and the proclamation of martial law. That invasion failed, and a second failed attempt in November suggested there was minimal local support for the rebel cause, although more support was evident in Nova Scotia. Here, at the end of

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1776, a group of American patriots laid siege to Fort Cumberland; that siege was broken and was followed by treason proceedings, but a later patriot incursion into the Saint John River valley found little support. Property confscations and related battles in the civil courts of Nova Scotia and New Brunswick soon became the focus of local disaffection in the wake of the American Revolution as Loyalist refugees began their long campaign for compensation for their American losses.11 Quebec became the main security preoccupation in what remained of British North America during the period of the French Revolution and the Napoleonic Wars. The Quebec Act accommodations with francophone interests included the restoration of French civil law for private disputes, permitting the use of French in the new colonial legislature and courts, and suspension of the Catholic disabilities that limited offce-holding in Britain and Ireland, which allowed for the appointment of francophone offcials and legal personnel. Governor Sir Guy Carleton’s successors were less accommodating, as what Murray Greenwood has described as a “garrison mentality” took hold. The anxieties of the British governing minority grew in the wake of the American Revolution and were frmly established by the 1790s, a decade that opened with the French Revolution and closed with the Irish Rebellion.12 In Britain, Sir William Pitt’s government had responded to perceived revolutionary republican threats by passing new security legislation and initiating more than one hundred prosecutions for sedition and a dozen for treason.13 The Quebec colonial legislature followed Westminster by suspending habeas corpus in 1794, a temporary measure that continued to be renewed until Napoleon’s defeat in 1815. The Quebec Alien Act, like the 1793 British Act, expanded the defnition of sedition and empowered the government to register, monitor, and summarily deport foreigners and British subjects associating with them.14 These measures supplemented the treason and sedition offences that were already part of the received English criminal laws noted earlier (discussed at length in Volume I).15 Treason indictments were issued in Quebec against four prisoners in early 1797, and Chief Justice James Monk warned in a grand jury address that road-building rioters could also be charged with treason. The Crown proceeded in one case, against David McLane, who had been recruited as a spy in Philadelphia by agents of France’s Revolutionary Directory to help recruit a “ffth column” in Quebec to act in concert with a planned French naval invasion on the St Lawrence River. The case, which appears in the Howells’ English State Trials series, illustrates questions about allegiance and liability for treason (the Irish-born McLane was a naturalized US citizen)

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and judicial constructions of “compassing the death of the sovereign” (extended to overseas republican conspiracies).16 There were other irregularities in the case, and McLane’s defence was far from robust (unlike those of his contemporaries Hardy, Tooke, and Thelwell, tried in London under the same head of treason and for whom counsel secured dramatic acquittals).17 McLane’s conviction saw resort to the grisly traditional form of execution for treason, entailing several symbolic deaths, marking it as the worst offence in English criminal law.18 State repression continued over the next decade, culminating in Sir James Craig’s “Reign of Terror.”19 Notwithstanding the sweeping executive and legal repression in Quebec from the 1790s, the nineteenth-century treason cases examined in the frst three volumes of our series also illustrated complexities. There were checks on political prosecutions in response to the development of organized political opposition – which included a growing independent press – and also some curbs on the administration of security measures during war, invasion, and insurrection. Colonial governments were aware of the advantages and disadvantages of legal responses to real and perceived security threats compared to more arbitrary state responses. The choice of repressive options fgured prominently in their calculations, mindful as they were of how the legitimacy of their actions would be assessed both by the colony’s residents and by imperial overseers in London.20 For instance, while there was deference to the priorities of senior British offcers, wide applications of martial law were avoided in Upper Canada during the War of 1812 and no civilians were tried by court martial. It was recognized that regular trials, eventually held in Ancaster in May 1814, would have greater legitimacy than the expedient of military trials – a pressing concern especially in those parts of the colony where loyalties were divided. Wartime emergency legislation nonetheless suspended habeas corpus and authorized the arbitrary seizure of abandoned property, and these measures were used in combination with the colony’s Sedition Act, which had been enacted in 1804 to permanently replace temporary 1797 legislation similar to the British and Lower Canadian Alien Acts of that period. The Sedition Act was widely used during the War of 1812 to purge aliens and recent American immigrants from the colony.21 Treason trials in Upper Canada during the War of 1812, and in Upper and Lower Canada during the 1837–8 rebellions, illustrate the choices governments faced between regular criminal justice supported by temporary legislated expedients, and more arbitrary responses by way of martial law and the trial of civilians by courts martial. In military trials,

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prosecutorial and judicial roles were blurred by the presiding offcers; also, there were no juries, although defence counsel was permitted. Military justice was widely resorted to in British colonial settings well into the nineteenth century.22 The alternative course – temporary emergency legislation, if it could be enacted – nonetheless considerably strengthened the government’s hand and tilted regular criminal proceedings in favour of the Crown. Such legislation included the suspension of habeas corpus, which supported the indefnite detention of suspects in Upper Canada in 1812–14 and 1838. Another procedural expedient, also resorted to in Upper Canada in 1814 and 1838, was legislation that permitted trials to be moved from where alleged offences had been committed to “loyal” areas where juries were more likely to be compliant. We also see various means to deal with large numbers of political prisoners by more summary forms of justice that encouraged guilty pleas as a mitigating consideration for more lenient punishment. For instance, Upper Canada’s 1838 conditional pardoning legislation extended the Royal prerogative of mercy by offering prisoners who pleaded guilty the prospect of being considered for transportation rather than death. After Confederation there would be a return to suspensions of habeas corpus in response to the Fenians. Following the 1885 rebellion, the expedients of trial relocation and measures to encourage guilty pleas were again pursued. After the War of 1812, political opposition was re-established and became well-organized throughout British North America, with growing popular support that refected a developing public sphere. The trial of Joseph Howe in Nova Scotia is perhaps the best-known seditious libel case, but there were many other prosecutions for the offence throughout British North America. Post-war events in Upper Canada are a good illustration of its place in a range of measures designed to undermine the legitimacy of organized opposition and silence the emerging independent press.23 By the late 1820s, reformers in Upper Canada held majorities in the Legislative Assembly, but their demands for constitutional reform were implacably resisted by the governing elite, known as the Family Compact. In 1818 two prosecutions for seditious libel were brought against Robert Gourlay (recently arrived from Scotland and a colleague of Cobbett and Hunt), who had organized extra-legislative meetings where local grievances were collected for his “statistical account” of Upper Canada. Both cases resulted in highly publicized jury acquittals. Unable to silence Gourlay in the courts, the government again resorted to the 1804 Sedition Act, which enabled it to detain aliens suspected of sedition indefnitely

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or summarily deport them, with return punishable by death. Although Gourlay was a British subject, he was not born in the colony, nor had he taken a local oath of allegiance, so he was found to come under terms of the Act by the Court of King’s Bench. During his eight months’ detention in 1819, Gourlay’s applications for habeas corpus were denied, and he was eventually expelled from the colony. His editor, Bartemus Ferguson, was successfully prosecuted for seditious libel, and that conviction brought ruinous fnes that put his newspaper out of business.24 The strength of the reform movement nonetheless continued to increase over the next decade as Upper Canada’s public sphere developed rapidly, as it did elsewhere in British North America, supported by the proliferation of new independent newspapers and voluntary civic associations, and refected in increasing literacy, growing popular civic engagement and participation in public affairs, and greater expectations of government accountability. The Family Compact’s recalcitrance was highlighted by the frustration of attempts to repeal the Sedition Act (eight bills to repeal the legislation were passed by majorities in the elected legislative assembly, only to be denied by the appointed legislative council; repeal in 1828 resulted from petition of the fnal bill to London).25 However, London’s growing receptiveness to reform concerns, and a series of further jury acquittals in sedition cases against opposition fgures and newspaper editors in the late 1820s, led the government to refrain from further prosecutions. By the early 1830s it had become clear that popular deference to authority was much eroded and that the informed public, not the government, had become the sole judge of legitimate political opinion.26 In Lower Canada (Quebec), growing demands for constitutional reform after the War of 1812 were led by a group of mainly francophone reform members of the Legislative Assembly, the Canadien Party, which became known after 1826 as the patriotes. Their demands were resisted by the governing Chateau Clique, which was supported by anglophone mercantile interests and most Church leaders and seigneurs. London began to respond to Upper Canadian reform concerns by the late 1820s, but it resisted similar calls from Quebec, and London’s outright rejection of reform demands in the 1837 Russell Resolutions appeared to destroy all hopes of reform within existing institutions. The resolutions resulted in popular protests led by Louis-Joseph Papineau, Cyrille Coté, and Wolfred Nelson and the establishment of armed patriote camps later that year. The patriote cause mobilized wide popular support, and the 1837–8 rebellions, which extended to Upper Canada, became the most serious state security crisis in Canadian history.27 In late 1837 the Lower Canada legislature and

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criminal courts were suspended indefnitely, replaced by rule by executive decree of the “Special Council.” In Upper Canada, the legislature and courts continued to operate throughout the 1837–8 crisis, and the rebels drew somewhat less popular support. Reformers and more radical leaders had increasingly diverged in their views before William Lyon Mackenzie’s ill-fated rebel march on Toronto in late 1837, and related scattered uprisings in western Upper Canada were similarly unsuccessful. Trials for treason and other political offences were held in Toronto, Hamilton, and London from March to May 1838.28 In March, legislation was enacted along with other emergency legislation that created the offence of “lawless aggression,” which was punishable by death and which could be tried by the regular civilian or military courts. This new political offence aimed to address a growing problem along the US border: invaders from foreign nations not at war with Britain. American raiders neither owed allegiance to the Crown nor had suffcient residency to come under its temporary protection, and therefore could not be tried for treason. The “patriot” raids of escaped rebels and their American supporters escalated until by late 1838 criminal trials gave way to military courts martial in response to large, organized armed invasions and battles at Prescott and Windsor. Memories of American aggression during the War of 1812 were still relatively fresh, the patriots attracted little local support, and the government calculated that resort to military justice in Kingston and London to deal with the Prescott and Windsor raiders would be uncontroversial.29 The scale of the Quebec crisis, which was deeper and marked by wide popular support for the patriote cause, led the government there to quickly conclude that the colonial order had to be preserved by direct force regardless of public opinion. The establishment of armed patriote camps and the frst revolt in late 1837 led to martial law and the Special Council’s executive rule, although by June 1838 its ordinance under Lord Durham had released more than 150 political prisoners and exiled the rebel leaders to Bermuda.30 Criminal courts resumed operation in the summer, but concerns mounted after the Chartrand case, where four men accused of the murder of a government informer were acquitted by a francophone jury. The council resolved that future political cases would be tried by courts martial, and after the violent military suppression of a second insurrection involving more than 10,000 rebels, 106 men were tried and 99 convicted of treason and related offces at the Montreal general court martial in November 1838.31

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political trials, security measures, and the emerging modern canadian state, 1840–1914 The 1837–8 Canadian rebellions were met in the short term by emergency measures and political trials. In the longer term, close imperial scrutiny during this Canadian episode in the “age of revolutions” prompted liberal and utilitarian reforms of colonial governance in Canada and elsewhere in the British empire. Lord Durham’s interventions in Quebec made it clear that London was no longer receptive to maintaining the status quo in colonial administration in the shape it had taken after the American Revolution.32 As the Special Council continued to govern Quebec until 1841, reforms led by Durham’s successor, Lord Sydenham, modernized colonial government from “above” with the aim of re-establishing the legitimacy and effectiveness of the colonial state, which had been placed in crisis by popular resistance from “below.” Durham’s report, long-debated by historians, led to the union of the colonies of Upper and Lower Canada, thus forming the Province of Canada, as well as to recognition of local calls for responsible government. More recent scholarship, informed by debates about “modern state formation,” has drawn attention to broader colonial institutional reforms under Sydenham. The utilitarian-inspired institutional changes – initiatives characteristic of an emerging modern state – were associated with wider social and cultural transformations. These aimed to curb threats to the prevailing order through enhanced surveillance and policing of sources of disorder, as well as by promoting compliance and self-regulation through new public institutions (schools, hospitals, penitentiaries, etc.). The decline of traditional deference to authority was to be compensated for by way of more fully regulated civic behaviour.33 The modernization of the colonial state from above reduced government reliance on reactive state trials to preserve order. At the same time, effective checks from below increasingly made political trials a decidedly risky proposition for post-rebellion governments. Successful challenges from the 1820s to colonial exceptions in the administration of justice were accompanied by the elaboration and securing of modern procedural rights in criminal trials. The English Prisoner’s Counsel Act, 1836, which included the right to defence counsel in all criminal cases, as long advocated by Lord Brougham, was widely adopted, and meanwhile, the colonial legal profession diversifed and the defence bar matured. These developments were accompanied by yet more sophisticated popular expectations of due process.

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Sir Robert Peel’s English criminal law reforms (Metropolitan London Police, 1828, Criminal Law Consolidations, 1827–32) continued as the new Whig government, following passage of the Reform Act and the imperial abolition of slavery, enacted the Prisoners Counsel Act, expanded professional policing and penitentiaries, replaced residual common law felonies with yet more indictable offences punishable by penitentiary terms rather than death or transportation, and appointed the English Law Commissioners to explore the possibilities of codifcation. These reforms were quickly transmitted to British North America. In Upper Canada, for instance, Peel’s policing model infuenced the new constabulary (when the capital, York, became the City of Toronto), and his criminal law consolidations were adopted in Upper Canada in 1833, the same year construction commenced on the Kingston Penitentiary.34 Although these reforms predated the rebellions, the crisis accelerated the transformation of criminal justice and associated forms of social regulation. As examined in detail in Volume III of the Canadian State Trials series, the modern security state that began to emerge in the mid-nineteenth century built on these and other reforms to the administration of criminal justice. The development of proactive and more comprehensive forms of regulating disorder included enhanced social surveillance by way of an emphasis on crime prevention (in Peel’s model of policing), supported by new public order offences that extended the mandate of police. Breach of the peace offences, discussed further below, were elaborated throughout the nineteenth century to supplement the Riot Act, 1715 (unlawful assembly of more than twelve in disturbance of the peace, refusal to disperse within an hour of a proclamation punishable as a felony) and military interventions in support of the local administration of criminal law. By the 1860s the development of special branches and dedicated intelligence operations (professionalized informers and intelligencers) further enhanced the Canadian state’s ability to monitor and assess real and perceived security threats.35 The older repressive responses, including classic state trials for treason and sedition, certainly did not disappear as colonial reforms continued past mid-century, culminating in the establishment of the frst selfgoverning British Dominion in 1867. Prosecutions for political offences remained an important repressive resource as Ottawa displaced London as the nexus of colonizing power. The Fenian invasions lent urgency to the Confederation project and renewed government anxieties about the immense, easily crossed border with the United States. As we saw in Volume III of the series, Upper Canada’s lawless aggression offence, a legislative remnant of the 1837–8

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rebellion, was adopted by the Province of Canada and used to prosecute Fenian raiders. It was then enacted by the new Dominion government, which also suspended habeas corpus in response to the latter Fenian threat.36 The UK treason felony act, passed in 1848 in response to revolt in Ireland, legislated judicial “constructions” of treason that included conspiracies as well as overt acts, to create a lesser offence than “high treason,” and this was adopted by the Dominion of Canada the following year, in 1868. That same year the consolidation of all criminal laws to unify the diverse laws of the former British North American colonies began as the federal government widely exercised its jurisdiction over criminal law. Sir John A. Macdonald, Canada’s frst justice minister as well as prime minister, regarded the Dominion Consolidations as an important assertion of the new state’s authority and sovereignty, but he carried it out by largely adopting the most recent version of Peel’s English Criminal Law Consolidations as updated by Charles Greaves. The 1885 North-West Rebellion, which directly challenged the authority of the new Canadian state and its development policies, led to Canada’s best-known treason case, the trial of Métis leader Louis Riel.37 The 1885 rebellion involved coordinated Métis and Indigenous resistance to the imposition of European colonial order. Conficts with settlers around customary uses of the land grew as the permanent European presence expanded and government policies refected new economic priorities associated with the shift from the fur trade (and the prominence of the Hudson’s Bay Company) to agriculture and resource extraction. As noted in the volume introduction, undertakings to Indigenous nations thought protected under the Royal Proclamation, 1763, were consistently neglected by colonial legislatures and courts in favour of settler interests. The Crown’s responsibilities as trustee of Indigenous rights related to the land – rights that were to be modifed or extinguished only by treaty – were unilaterally transferred from London to Ottawa in 1867 without consultation with First Nations, and there was a failure to protect the customs of Métis communities as conficts with new settler communities intensifed. Ottawa exercised its new jurisdiction by negotiating numbered treaties on the Prairies involving vast territories, where many Indigenous populations had been reduced to desperate circumstances. It extended its authority through the elaboration of the existing administration of territorial criminal justice, enforced by the newly formed North West Mounted Police (1873). A mixture of regulatory and repressive measures in the Indian Act (1876) prohibited customs and were designed to segregate and marginalize, or assimilate and “civilize,” Indigenous communities.

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An array of repressive and regulatory measures thus aimed to minimize disruption of European settlement and development priorities. The state’s response to the rebellion took matters a step further. The government perceived the events of 1885 as a national security crisis bound up with the assertion of Ottawa’s sovereignty over the vast North West Territories and related concerns, including continued anxieties about American incursions across the long, vulnerable border. There was certainly Indigenous resistance to the imposition of a European colonial order before 1885, and Métis challenges to Ottawa’s authority had become evident from 1869 as tensions with settlers in what became southern Manitoba led to the Red River Rebellion. Earlier Indigenous resistance had often been met by unprosecuted trader and settler violence against Indigenous people or direct armed interventions, and sometimes by legal responses and criminal trials.38 However, Canadian “state trials” before 1885 had been responses to conficts between European colonizing powers, settler population resistance to colonial governments inspired by the European age of revolutions, and unrest associated with European migration. The response to the 1885 rebellion made it clear that Indigenous resistance would now be considered a national security concern. As detailed in Volume III, more than 130 political trials followed, including charges of treason against Riel and his leading Métis associates, as well as against First Nations leaders Poundmaker and Big Bear, who were accused of widening the resistance. The expedient of moving trials away from where offences had been committed to locations where more compliant jurors could be found (as was the case in Upper Canada in 1814 and 1838) was again taken advantage of by the Crown in 1885, using special procedures designed for the more effcient routine administration of justice in the North West Territories. And guilty pleas were again encouraged in 1885 as they had been in Upper Canada in 1838. In the shadow of Riel’s conviction and execution, others charged with treason pleaded guilty to the lesser offence of treason felony to avoid Riel’s fate and were sentenced to penitentiary terms.39 In the longer term, the marginalization of Indigenous communities in the face of settler interests, government paternalism, and the suppression of Indigenous advocacy, as well as the neglect of treaty obligations and of broader Indigenous rights thought protected under the 1763 Royal Proclamation, led to further resistance throughout the twentieth century as surveyed in this volume’s introduction. Section 35 of the Constitution Act, 1982, now obliges Canadian courts and legislatures to recognize Indigenous title and associated rights, but as noted in the chapters by Isitt and

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Walters, Indigenous resistance continues to be met by criminalization and repressive responses, as well as accommodations accompanied by security measures where conficts are perceived to threaten public order and established interests. In the shorter term, the 1885 Rebellion lent momentum to the codifcation of Canadian criminal law in 1892 as the culmination of ongoing efforts to update, rationalize, and organize the Dominion Consolidations, including the political and public order offences. As noted, the Statute of Treasons, 1351/52, and the Treason Act, 1696, were part of the received English criminal laws that took full effect when legislatures and courts were frst established in each British North American colony. The UK Treason-Felony Act, 1848, which was not part of the received English criminal laws, was enacted by Ottawa, as was the colonial lawless aggression legislation (the only other signifcant change in the laws of treason was repeal of the traditional brutal form of execution in Peel’s consolidations, included in the Dominion Consolidations). All of these political offences were considered by the Department of Justice and Crown prosecutors for the trials in 1885. The Statute of Treasons was relied upon for Louis Riel’s trial, and other leading accused were also charged under it, but there remained some ambiguity about its status. The North West Territories had not gone through the process of formal reception of English laws (apart from Manitoba, which had become a province in 1870), because there had been no local legislature or courts, although the imperial Jurisdiction Act, 1803, made it clear that English criminal laws could and did apply, and that Act made provision for serious cases to be tried in the Canadas, pending the eventual appointment of territorial magistrates. After 1867, the new federal government’s jurisdiction over criminal law extended across the Dominion and its territorial administration of criminal justice was further elaborated, with the NWMP later set up to enforce it. Any remaining ambiguity about the Statute of Treasons was fully resolved when the Canadian Criminal Code was enacted in 1892. Codifcation had been advocated by utilitarians led by Jeremy Bentham during the early nineteenth-century English criminal law reform debates, but it was never realized domestically. Thomas Macaulay’s India Penal Code, belatedly implemented shortly after the 1857–8 rebellion or “Mutiny,” was the frst in the British empire. It was a key element of the utilitarian modernization of colonial governance in India, designed to engender greater compliance among colonial subjects and reduce reliance on military interventions. Further rationalization of English criminal laws in the metropole had stalled following Peel’s consolidations as proposals by English Law Commissioners to codify criminal law

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encountered determined resistance from the established bar and bench. James Fitzjames Stephen’s Draft English Code 1880, a narrow codifcation that preserved common law for liability principles and defences, fell well short of Bentham’s and Macaulay’s comprehensive conception but came close to success when it was presented as a bill, only to lapse with a fall in government.40 The prospects of success were greater in Canada. The simple adoption of the most recent English consolidations by Ottawa in 1869 led to frequent amendments to adjust for Canadian conditions and to restore reforms made previously in the British North American colonies. However, common law offences still existed, and, as highlighted by events in 1885, there were gaps in Canada’s criminal legislation. These circumstances lent greater momentum to codifcation here, and this reform faced little opposition from the bar and bench. Stephen’s Draft English Code provided a ready, modest codifying conceptualization that converted residual common law offences and was easily combined with the existing Dominion Consolidations.41 Stephen’s 1880 Draft English Code restated the classic three heads of high treason in modern language and added a lesser indictable offence of treason based on the mid-century treason felony offence (which accompanied misprision of treason for assisting high treason). Sections 65 to 67 of the new Canadian Code rendered these provisions similarly but added the lawless aggression offence as section 68.42 As noted in the volume introduction, the provisions remained unchanged until the early 1950s, when the language was updated and penalties modifed. The opportunity to abolish sedition offences altogether was missed, and moreover the 1892 Code failed to narrow the defnition of the offence to the legislative language found in Stephen’s bill, which refected nineteenthcentury British legislative changes and judicial decisions that limited the reach of the offence.43 Sedition, and the newly added offences of espionage and unauthorized disclosure of offcial secrets, derived from recent UK legislation and, enacted in Canada shortly before codifcation, proved to be signifcant security laws in the twentieth century as seen in this volume and surveyed in the following section. The public order / breach of the peace provisions in the 1892 Code also diverged from Stephen’s English Draft Code, which had eliminated the offence of unlawful assembly and presented a single breach of the peace offence that simply distinguished between summary and indictable versions of riot. The more elaborate Canadian Code provisions refected elements of the 1869 Peace Preservation and 1878 Blake Acts and other post-rebellion public order legislation, including unauthorized frearms

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and paramilitary training. The Code set out summary and indictable unlawful assembly offences (unlawful assembly of three or more causing reasonable fear of a tumultuous disturbance of the peace) as well as summary and indictable riot offences (unlawful assembly that disturbs the peace tumultuously; twelve or more who assemble tumultuously, similar to the 1715 Riot Act, that triggered a proclamation punishable by up to life imprisonment if rioters failed to disperse within a half hour). Other breach of the peace offences included the pre–First World War section 98 directed at Indigenous resistance, which made it an offence for persons to incite “Indian, non-treaty Indians or half-breeds” to make any demand or request of a government offcial or agent in a riotous, threatening, or disorderly manner or any act calculated to cause a breach of the peace.44 Military interventions to manage rioters and other major public order situations were further regulated by separate military aid to the civil power legislation, which was introduced in Dominion militia and defence legislation from 1868. The law authorized local requests for military assistance from the federal government (administration of justice came under provincial jurisdiction) in situations where the regular local criminal law enforcement and administration of justice was deemed inadequate.45 The Pacione and Walters chapters in this volume illustrate the use of this power, but long before those events, such military intervention was supplemented by the passage of sweeping new emergency executiveenabling powers at the outbreak of the First World War. world war, cold war, and the twentieth century security state, 1914–1990 As we saw in Volume IV of this series, the passage of the War Measures Act (WMA) in 1914 marked a signifcant change in the security-related management of the civilian population. This new response to war and situations of “apprehended insurrection” empowered the federal executive with sweeping authority to regulate public order and domestic resources for defence and security purposes. These matters had previously been handled by temporary emergency legislation of limited duration, by the wider exercise of prerogative or executive powers, or by martial law and military justice and more minor military interventions (e.g., prerogative to enforce Riot Act proclamations and military aid to the civil power). The new powers under the WMA were based on the federal government’s residual jurisdiction over “peace, order and good government,” and these

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emergency measures could supersede provincial jurisdiction and include matters falling under provincial legislative authority, As explained in Volume IV and in the introduction to this volume, once proclaimed in situations of war or apprehended insurrection, the WMA delegated defence- and security-related legislative powers to the government cabinet as executive council. The cabinet could then enact and implement any appropriate regulations or orders-in-council for the duration of the emergency. Parliament was merely asked to ratify the government’s proclamation of a war or apprehended insurrection emergency. Measures during both world wars included registration of enemy aliens, property confscation, the suspension of habeas corpus and internment, and deportations. Wartime measures affected all Canadians in matters such as censorship, expropriations of property, and the monitoring of persons identifed as non-conforming or potentially compromising the war effort. The WMA was not repealed at the end of the war in 1918. Any questions about its permanent status and potential application to emergencies other than war were laid to rest by 1927 amendments that clarifed the Act’s reference to “apprehended insurrection.”46 The courts deferred to these emergency powers, and legal challenges proved futile. The WMA and executive regulations issued under its authority were upheld by the Supreme Court of Canada in 1917 (on the delegation of legislative powers from Parliament to cabinet) and by the Judicial Committee of the Privy Council (JCPC) in 1923. Breaking from its usual decentralizing approach to federalism cases and restriction of federal residual powers, the JCPC confrmed the federal government’s jurisdiction to enact the WMA on the grounds of peace, order and good government and upheld the validity of emergency measures that extended to matters falling under provincial jurisdiction.47 The WMA was proclaimed a second time on the eve of the Second World War, and even more sweeping emergency measures were implemented during that confict, including those examined in the frst chapter by Adams, Stanger-Ross, and the Landscapes of Injustice Research Collective in this volume. Wartime orders had continued in effect after November 1918 by way of temporary emergency transition legislation, and some wartime labour and immigration measures became permanent legislative amendments to the Criminal Code and Immigration Act. Following the Second World War, emergency transition legislation once again sustained wartime executive measures, which supported the post-war deportation of Japanese Canadians and the responses to the Gouzenko affair (surveyed shortly).48 The authors of chapter 1 examine the 1947 JCPC appeal,

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where the court reiterated and expanded on its 1923 decision by upholding the validity of continuing emergency measures post-war and emphasizing that judges must defer to executive determinations of their necessity.49 The October Crisis of 1970 would be the only direct peacetime invocation of the WMA under “apprehended insurrection,” and another challenge to its constitutionality (including the federal government’s authority to pass emergency measures that violated due process protections) failed at the level of the Quebec Court of Appeal in 1971.50 The War Measures Act marked a new approach to security emergencies, but it was by no means the only new development in legal responses to real and perceived security threats. The classic political offences remained in the Criminal Code, and the reach of espionage offences was extended with the introduction of the Offcial Secrets Act in 1939. These laws were accompanied by elaboration of the security state in the form of political Security Branch policing and refned forms of public order policing. During the First World War and in its aftermath, governments returned to sedition prosecutions, and in 1919 the offence was renewed by way of amendments to the Criminal Code. As noted, James Fitzjames Stephen had doubts about the modern legitimacy of the common law offence, although he gave it legislative shape in his Draft English Code. However, his narrow formulation was not adopted in the Canadian Code, whose vague provisions left wide powers to judges in the determination of seditious intent.51 These provisions were relied upon to suppress dissent during the war, and immediately following, when radical infuences in labour movements were prosecuted as seditious conspiracies.52 The 1919 Winnipeg General Strike provided a pretext for conversion of some wartime measures into more permanent changes to criminal law and immigration legislation. Section 98 extended the post-war criminalization of organizations that advocated revolutionary changes to the political or economic order. Sections 41 and 42 of the Immigration Act expanded summary deportation powers, and these were used widely to deal with perceived security threats from migrant populations in the 1920s and 1930s.53 Despite the 1951 Supreme Court of Canada decision in Boucher, which adopted a modern defnition of seditious intent, as developed in nineteenth-century common law by the English courts, seditious conspiracy remains a malleable form of the offence. And as we see in this volume, although section 98 was repealed in 1936, a similar prohibition on “revolutionary” organizations was resurrected in the wake of the 1970 October Crisis under the War Measures Act. The prohibition supported the prosecution of the FLQ

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leadership (the Montreal Five) for seditious conspiracy as examined in the Pacione chapter in this volume. Canada’s espionage and offcial secrets offences were introduced in Volume III of the series. They refned legal responses to espionage, which otherwise required constructions of existing treason or sabotage offences, and also enforced government secrecy with the creation of a new unlawful disclosure or “leakage” offence. Breach of offcial trust offences, applicable to government offcials, employees, and contractors, had been enacted by Westminster in 1889, adopted by the Dominion of Canada the following year, and then included as provisions in the 1892 Canadian Criminal Code.54 These laws became more comprehensive and sweeping with the passage of the UK Offcial Secrets Act, 1911, in effect throughout the British empire. Under the OSA, punishment for disclosure of offcial information extended to the general public, and special procedures (reverse onus and in camera proceedings) created exceptions to the usual due process protections. The UK Act with its 1920 amendments was replicated in Canada’s own Offcial Secrets Act, 1939 (OSA), replacing the older overlapping secrecy and espionage provisions of the Criminal Code. The Offcial Secrets Act came into wide use in response to the new security challenges of the atomic age. The post-war emergency transition legislation sustained wartime executive measures against Japanese Canadians; it was also the source of the executive order that created a Royal Commission, with secret deliberations, in response to the Gouzenko affair. These revelations in Ottawa of a Soviet spy ring and the alleged disclosure of atomic secrets in September 1945 heralded the rapid transition from world war to a new global confict that became known as the Cold War. The commission’s investigations and recommendations for prosecutions, under Justices Kellock and Taschereau of the Supreme Court of Canada, and the spy trials under the Offcial Secrets Act that followed, are examined in the chapters in this volume by Whitaker and by Falk and Wentzell. The temporary emergency transition measures were renewed annually until 1950, when they were replaced by the Emergency Powers Act, which remained in effect until 1954.55 The modern security state reached maturity in Canada during this period, and as examined in more detail in the volume introduction, reforms were made to the security-related provisions of the Criminal Code in the 1951 amendments and 1953–4 revisions. In introducing the latter, Justice Minister Stuart Garson declared: “This new sort of treason is in line with the great change which has come over the offence of treason ...

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today there could be disclosure of information with regard to the H-Bomb or the atomic bomb which might have consequences much more serious for the state than even a personal attack on the monarch.”56 The amendments and revisions to “modernize” the treason provisions in the Code simply updated the language and modifed the punishments, and arguably extended the reach of the treason offences by adding reference to armed conficts related to “police actions” against insurgencies (e.g., Korean Communists). Cold War concerns likewise led to the restoration of espionage offences to the Criminal Code, giving rise to overlaps and inconsistencies with the Offcial Secrets Act. These amendments to the Criminal Code in the early 1950s were accompanied by the further development of security operations in this period in the form of political policing, covert surveillance, and the collection and assessment of intelligence as detailed in this volume’s introduction. Early security operations predated Confederation and were further developed in response to the Fenian threat, after 1867 becoming the responsibility of the Dominion Police, which worked in conjunction with the military and British intelligence operations through the late nineteenth century and the First World War. Following the Winnipeg General Strike, the amalgamation of the RNWMP and the Dominion Police led to the creation of a dedicated Security Branch within the RCMP. Its undercover operations focused on surveillance of labour and immigrant organizations and the collection of evidence for prosecutions under section 98 of the Criminal Code and summary deportations under sections 41 and 42 of the Immigration Act. In the wake of the Gouzenko affair, RCMP security operations were renewed and expanded. Security vetting extended widely within government and outside it, in atomic research, defencerelated industries, and beyond. In response to renewed concerns about Communism, covert surveillance again targeted migrant populations and radicals in the labour movement, and “Red lists” compiled in the 1920s and 1930s were updated. Communists were purged from unions from within, as conservative union leaders were encouraged by concessions around collective bargaining and by the importation of Cold War American labour practices.57 Counter-intelligence operations accompanied the expansion of RCMP surveillance and political policing. These operations were coordinated through interdepartmental security committees that had continued from the war period. They included military communications and signals intelligence, eventually consolidated with National Research Council operations and becoming the Communications Security Establishment.

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By the late 1960s the need for law reform and stronger legal restraints on security operations was identifed by the Mackenzie Commission on Security and by the Pearson–Laskin Accord, which sought to limit RCMP activities on university campuses. But the October Crisis of 1970 intervened. The RCMP’s covert operations continued for another decade with little legislative oversight and accountability, and its “dirty tricks” (i.e., alleged illegal and criminal acts) were kept away from the courts and any meaningful legal review. The government’s eventual response was the McDonald Commission, examined here in the Kyer chapter. The McDonald Commission’s recommendations resulted in the reorganization of Canada’s security services. Many of the RCMP’s security responsibilities were transferred to the new civilian Canadian Security Intelligence Service, whose mandate was spelled out in the accompanying Security Offences Act. The reforming legislation included sunset clauses requiring periodic parliamentary review, regular annual reports to the Solicitor General, and civilian oversight to review complaints through the Security Intelligence Review Committee. The decades since the adoption of the Charter of Rights have seen some further reforms to Canada’s national security laws. The federal government announced its intention to reform the War Measures Act soon after the October Crisis, but this was only belatedly achieved with the passage of the Emergencies Act, 1988. Canada’s current emergency law preserves the WMA model of executive-enabling legislation, and extends such powers to other emergencies in addition to war and apprehended insurrection, but also includes more robust checks on emergency powers. The Charter of Rights is applicable (the WMA and 1970 public order regulations were exempt from the 1961 Bill of Rights), and the new Act includes limitations on the duration and scope of emergency measures and also mandates a retrospective legislative review of circumstances of the emergency and actions taken in response. Amendments were also made to the Offcial Secrets Act when in 2001 it was renamed the Security of Information Act, with minor changes to the espionage and leakage offences.58 The Anti-Terrorism Act, 2001, also resulted in other amendments to existing security legislation: offences related to the operations and fnancing of international terrorism were added to the Criminal Code, and a legislative mandate and rudimentary oversight and review were created for the Communications Security Establishment in the National Defence Act. Despite these advances, the Anti-Terrorism Act has renewed concerns about the reach of Canada’s current national security laws.59 These include the potential for abuse around matters such as indefnite detention and

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deportations under security certifcates and related Immigration Act powers, as well as the summary extradition or rendition of immigrants and refugees at the request of foreign security agencies. Electronic surveillance, intelligence assessment, and intelligence sharing, further shaped by recent technological developments in the “cybersphere” and the obligations of the “Five Eyes” network of Canada, the US, the UK, Australia, and New Zealand, add a further dimension to concerns about unchecked surveillance sparked by controversies from the 1950s through the 1970s around the opening of mail and warrantless searches and wiretapping. Contemporary concerns about the overreach of Canada’s security laws and operations are not confned to matters arising from international security arrangements. As noted in the volume introduction, the aspirations and struggles for self-determination since the 1960s among Quebec francophones and Indigenous nations have shifted between violent challenges to the existing order and state authority prompting repressive security responses, on the one hand, and lawful advocacy of greater autonomy and self-government and some accommodation within existing legal and political structures, on the other. As we have seen, the FLQ’s violent revolutionary rejection of the Canadian state drew inspiration from the patriotes of 1837–8, and there are some parallels in government responses between Canada’s frst invocation of the War Measures Act for apprehended insurrection in 1970 and the suspension of government and regular law and executive rule by the Special Council in 1838. More recently, the limits of federal accommodation to the idea of sovereignty-association promoted by the Parti and Bloc Québécois appear to be set out in the 1998 Supreme Court of Canada secession reference and the 2000 Clarity Act, which were responses to two close referenda on Quebec independence and the prospect of others in the future. For Indigenous nations, the repressive responses and the paternalistic regulatory policies of the Canadian state since the nineteenth century continue, despite section 35 of the Constitution Act, 1982, and recent advances in the recognition of Indigenous rights and self-government in Canada’s courts and legislatures. As suggested in the volume introduction, it remains an open question whether aspirations for greater self-government or perhaps even some form of blended sovereignty can be achieved. While the circumstances and interests of Indigenous nations are diverse, activists who challenge settler interests remain subject to state security surveillance, public order policing, and criminalization.60 There is no question that these large and diffcult contemporary issues are relevant to the extensive Canadian history of security responses.

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Our twentieth-century national security laws overlay earlier, largely unchanged political offences, and together they constitute a potent repressive resource for the Canadian state. Modern national security operations have largely pushed treason and sedition to the sidelines, yet those offences remain in their essentially pre-modern form in the Criminal Code, raising the question of whether they have a legitimate place in today’s criminal law. As we have seen, Stephen had doubts about the relevance of sedition in modern political culture, and Canada’s provisions were broader than those set out in his Draft English Code. New Zealand also used Stephen’s Code as the model for its 1893 Criminal Code, including his tightly drawn sedition provisions, and abolished the offence in 2007. The 1951 Canadian Criminal Code amendments and 1953–4 revisions did not modernize the offence of treason, and the minimal changes to language and punishment refect the tendency of governments since the Code’s inception in 1892 to simply add to existing provisions rather than engage in systematic review, renewal, and reform. Recommendations for a comprehensive review of Canada’s laws in this area in the Criminal Code and elsewhere, made by the Mackenzie and McDonald Commissions, and suggested reforms in a 1986 report of the Law Reform Commission of Canada, have been ignored.61 Reforms to these provisions in Canada’s Criminal Code are long overdue, as is coordinated robust oversight and accountability for all of Canada’s security agencies in addition to CSIS. These matters are beyond the scope of the Canadian State Trials series, but they are relevant to the historical experiences examined in it. As we have seen from the colonial period through to the late twentieth century, there has been a consistent, ready willingness by governments to resort to security laws to respond to real and perceived threats to the state, to do so expansively beyond tangible security threats to potential threats, and to continue the duration and effect of exceptional measures once the crisis or emergency has passed. This has been accompanied by a pattern of judicial deference to government security concerns. At the same time, we have also seen the complexity of these responses to real and perceived security threats and signifcant challenges to state authority. While our studies have sought to illuminate Canada’s surprisingly rich historical record in this area, we do not claim to offer the fnal word, let alone defnitive accounts, and much historical work remains to be done. Our series has been concerned about more than the state and the laws designed to protect it; we have also attempted to illuminate the experiences of those subject to these security responses. That said, there are neglected histories here that warrant more attention.62 An awareness

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of the Canadian record of the prosecution of political offences and the administration of national security measures can nonetheless inform our understanding of the current security state in the twenty-frst century as it faces supranational pressures from “above” and new challenges to state sovereignty from “below.” The study of the courts and the Canadian constitution tends to refect the preoccupation in Westminster parliamentary systems with matters such as jurisdiction and constitutional conventions that regulate relations between different branches of the state, supplemented since 1982 with consideration of rights issues in the Charter era. Yet an aspect of American constitutional scholarship described in the conclusion of chapter 1 draws attention to the historical “anti-canon,” and certainly Canadian rights struggles before 1982 warrant more attention. They are bound up in broader efforts to protect the integrity of the rule of law in the face of state security concerns in Canadian history, efforts that have given practical meaning to our liberties and due process and that are relevant to ongoing struggles against discrimination. Although the parallels are inexact, we have been there before. NOTES 1 See F. Murray Greenwood and Barry Wright, “Introduction: State Trials, the Rule of Law, and Executive Powers in Early Canada,” in CST1, 3–8. 2 The exercise of Crown prosecutorial prerogatives was less circumspect and less controversial in late eighteenth- and early nineteenth-century British North America; see Douglas Hay, “Controlling the English Prosecutor” (1983) 21 Osgoode Hall Law Journal, 165–86. The resort to the expedients of ex offcio informations/preferred indictments and nolle prosequi/stays is a recurring series theme not examined in this overview: The departure from the prevailing English conventions assumed broader constitutional proportions in Upper Canada in the late 1820s when those who destroyed reformer William Lyon Mackenzie’s newspaper were not brought to trial and recently arrived King’s Bench judge John Walpole Willis was removed from the bench for questioning this and other colonial divergences from the administration of criminal justice; see n25 below. For examination of these practices throughout British North America see Philip Girard, Jim Phillips, and R. Blake Brown, A History of Law in Canada Volume One: Beginnings to 1866 (Toronto: University of Toronto Press, 2018), 572ff. As seen in the Kyer chapter in this volume, the failure to prosecute RCMP offcers for criminal actions committed in the wake of the October Crisis was one of the criticisms of the McDonald Commission,

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but the Crown’s prosecutorial discretion to stay a private prosecution was upheld by the Supreme Court of Canada (Dowson v. The Queen (1983), 7 C.C.C. (3d) 527). The political context of political trials is of obvious relevance, but questions of social, cultural, and economic power are also relevant to scholarly assessment of their signifcance. Comparative studies that situate Canadian experiences in the context of similar responses in other jurisdictions also assist with sound historical assessment; in this series see Falk and Wentzell in this volume; F. Murray Greenwood, “Judges and Treason Law in Lower Canada, England, and the United States during the French Revolution, 1794–1800” in CST1, 241; F. Murray Greenwood, “The General Court Martial at Montreal, 1838–39: Operation and the Irish Comparison,” in CST2, 279; Desmond H. Brown and Barry Wright, “Codifcation, Public Order, and the Security Provisions of the Canadian Criminal Code, 1892,” in CST3, 516; and Peter McDermott, “Enemy Aliens in the First World War: Legal and Constitutional Issues,” in CST4, 71. See E.P. Thompson’s infuential Whigs and Hunters: The Origins of the Black Act (Harmondsworth: Penguin, 1977), esp. 262–7; and, more generally, “The Moral Economy of the English Crowd,” Past and Present 50 (1971): 76. On a review of the debates about the rule of law generated by Thompson, see Douglas Hay, “E.P. Thompson and the Rule of Law: Qualifying the Unqualifed Good,” in The Cambridge Companion to the Rule of Law (Cambridge: Cambridge University Press, 2021), 202–20. Michael Lobban, “Foreword,” in Political Trials in an Age of Revolutions: Britain and the North Atlantic, 1793–1848, ed. Michael T. Davis, Emma Macleod, and Gordon Pentland (London: Palgrave Macmillan, 2019), v–vi. Lobban, “Foreword,” v. On historical applications of the concept of the public sphere, as developed by Jürgen Habermas and others to describe the growing popular engagement with public affairs, literacy, and new ideas of citizenship and deliberative democracy during the “age of revolutions,” see, e.g., C. Calhoun ed., Habermas and the Public Sphere (Cambridge MA: Harvard University Press, 1992); and on application to political trials in particular, see John Barrell, Imagining the King’s Death: Figurative Treason, Fantasies of Regicide, 1793–1796 (Oxford: Oxford University Press, 2000). See also Davis, Macleod, and Pentland, “Introduction” in Political Trials in an Age of Revolutions, 4–6. In the early periods of British infuence over claimed, conquered, ceded, or discovered overseas territories, British subjects were subject to English laws as far as British executive authority determined feasible in local circumstances (an “informal reception” law derived from the 1608 Calvin’s Case (Case of the Postnati, 7 Co.Rep.1). Once colonial legislatures and courts were

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established, all English criminal laws in effect on the date the legislatures frst convened were “formally received.” They could be supplemented and amended by local legislatures and court decisions, subject to imperial review (see n20 below). After formal reception, statutes passed at Westminster did not apply unless explicitly imperial in reach, a colony was indicated, or a colonial legislature expressly adopted them (for instance, Upper Canada legislated Robert Peel’s consolidations of English Criminal Law in 1833 but Lower Canada did not, which meant that when they were combined into the Province of Canada, Upper Canada had eleven capital indictable offences, while more than two hundred felonies punishable by death remained part of Lower Canada’s criminal laws as received in 1774). The Statute of Treasons, 1351/2, set out the three major heads of high treason (“compassing” or plotting the death of the sovereign, insurrection or levying war, and “adhering” or assisting enemies at war). The Treason Act, 1696, added important key procedural protections in those cases that were extended to the trial of more routine criminal offences in the nineteenth century. Sedition emerged as a common law misdemeanour prohibiting words or publications that promoted disaffection. For more details, see Greenwood and Wright, “Introduction,” in CST1, 11–31; and on further developments of the classic political offences and their legislative restatement in the Canadian Criminal Code, 1892, see nn41–3 below. 9 See n7 above. On the development of widening popular engagement with politics and civic life, fuelled by new local voluntary associations, libraries, and reading rooms, and a proliferation of independent newspapers in Upper Canada, see J.L. McNairn, The Capacity to Judge: Public Opinion and Deliberative Democracy in Upper Canada, 1791–1854 (Toronto: University of Toronto Press, 2000). 10 On Quebec before 1759, see Peter N. Moogk, “The Crime of Lèse-Majesté in New France: Defence of the Secular and Religious Order,” in CST I, 55. On the Acadian expulsion see Thomas Garden Barnes, “‘Twelve Apostles’ or a Dozen Traitors? Acadian Collaborators during King George’s War, 1744–8,” in CST1, 98. On early prosecutions for political offences in Nova Scotia see Barry Cahill, “The Hoffman Rebellion (1753) and Hoffman’s Trial (1754): Constructive High Treason and Seditious Conspiracy in Nova Scotia under the Statocracy,” in CST1, 72. 11 On early British trials in Quebec, see Douglas Hay, “Civilians Tried in Military Courts, 1759–64,” in CST1, 114. On Nova Scotia, see Ernest A. Clarke and Jim Phillips, “Rebellion and Repression in Nova Scotia in the Era of the American Revolution,” in CST1, 172 (more than thirty-fve rebels were named on treason indictments in Nova Scotia, but only two were tried and

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convicted; they escaped custody and fed to New England before London could confrm their death sentences). See also D.G. Bell, “Sedition among the Loyalists: The Case of Saint John, 1784–6,” in CST1, 223. Carleton’s successor Haldimand confscated property and repeatedly suspended habeas corpus by executive order, affecting twenty-fve activists, lawyers, and journalist / printers; see Jean-Marie Fecteau and Douglas Hay, “Government by Will and Pleasure Instead of Law: Military Justice and the Legal System in Quebec, 1775–83,” in CST1, 129. As Greenwood describes the garrison mentality, “this frame of mind was generated by numerous factors – among them the small number of regular troops in the Canadas; the absence of professional police; a sense, by no means confned to loyalists, of the fragility of the social order; and the common eighteenth-century belief in the effcacy of a few conspirators manipulating the ignorant masses, examples of such supposed situations being the American colonies in 1776 and France in 1789. But of the greatest importance was the simple fact that the English were outnumbered about ffteen to one by people still culturally French.” Greenwood, “Judges and Treason Law in Lower Canada, England, and the United States during the French Revolution,” in CST1, 243. See Barrell, Imagining; see also, F.K. Proschaska, “English State Trials in the 1790s: A Case Study” Journal of British Studies, 13 (1973), 63; and the chapters by Emma Macleod, Michael T. Davis, and Nancy E. Johnson in Political Trials in an Age of Revolutions, 79, 137, 163. After the acquittals of Hardy, Tooke, and Thelwall, the remaining “Jacobin” cases were dropped. 34 Geo. III c.5 (L.C.). The legislation led to the deportation of dozens of French and American citizens and indefnite detention of almost one hundred Quebec residents; see Greenwood, Legacies of Fear: Law and Politics in Quebec in the Era of the French Revolution (Toronto: Osgoode Society, 1993). See n8 above. 26 English State Trials, 826–8. McLane was a potent low-risk example, and treason proceedings against three francophone prisoners were dropped; see Greenwood, “Judges and Treason Law in Lower Canada, England, and the United States during the French Revolution,” in CST, 266–9; and “The Treason Trial and Execution of David McLane,” in Glimpses of Canadian Legal Histor, ed. D. Gibson and W.Wesley Pue (Winnipeg: Legal Research Institute of the University of Manitoba, 1991), 11–13. Judges in the London treason trials during this time had expanded the compassing head of treason (one of the three heads of high treason) beyond physical attempts to kill the sovereign or regicidal conspiracies to kill the sovereign, to advocacy of a republican form of government that implied ending the monarchy – as Barrell n7 puts it, a fgurative construction that imagined the death of the sovereign.

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The Howells’ commentary notes that McLane illustrates the breadth of this judicial construction to republican conspiracies in an overseas colony more than 5,000 kilometres away. McLane was born a British subject but was subsequently naturalized as a US citizen, and the doctrine of “perpetual allegiance” by birth had become discredited after the American Revolution, replaced with the doctrine of “temporary allegiance,” where foreigners residing in a British dominion could be considered under the protection of the Crown, thus owing a reciprocal duty of allegiance. Greenwood (1991) notes that while McLane was tried under the 1696 Treason Act, his inexperienced counsel was personally connected to the Crown law offcers and failed to challenge the selection of the trial jury, comprised exclusively of wealthy British merchants. The Crown’s two required witnesses received land grants in the Eastern Townships after their testimony. See Greenwood (1991), 5–8, and his reference to a contemporary pamphlet held at Harvard University, published in 1798 in Wyndham Connecticut: The Trial, Condemnation and Horrid Execution of David M’Lane, which contains further dramatic descriptions of the execution. After McLane’s execution, the Alien Act was replaced by the Better Preservation Act, which combined earlier habeas corpus, alien, and sedition provisions. It was renewed every year to the War of 1812; see J.-M. Fecteau, J.-P. Wallot, and F.M. Greenwood, “Sir James Craig’s Reign of Terror and Its Impact on Emergency Powers in Lower Canada, 1810–13,” in CST1, 323. Upper Canada passed a similar temporary Act in 1797 (37 Geo. III c.1), which in 1804 was rolled into the permanent Sedition Act, repealed in 1828. A similar package of counter-revolutionary alien and sedition laws was enacted in the United States in 1798 as the Federalists attempted to work around constitutional constraints on federal powers (Sedition Act, Alien Enemies Act, Alien Friends Act, and the Naturalization Act, Statutes at Large, 1798, 1: 566–97); see J.M. Smith, Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties (Ithaca: Cornell University Press, 1956); L.W Levy, Freedom of Speech and the Press in Early American History: A Legacy of Suppression (New York: Harper, 1963); and Barry Wright, “Migration, Radicalism and State Security: Legislative Initiatives in the Canadas and the United States c. 1794–1804,” 16 (2002) Studies in American Political Development, 48. Petitions concerning colonial government and law could be made to the British government if local appeals to governors were unsuccessful. After 1801, colonial legislation was reviewed by the Colonial Offce and could be subject to disallowance; review was later regularized by James Stephen. After

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1833 colonial cases could be appealed to the Judicial Committee of the Privy Council (JCPC). There were limited local applications of martial law, but wide resort to the 1804 Sedition Act resulted in summary deportation of hundreds of aliens and recent American immigrants, whose property was confscated under emergency legislation, along with that of persons who fed from the colony. Under the suspension of habeas corpus, more than ffty civilians were held on suspicion of treason by 1813, and by the end year about one third of the suspects were indicted. At Ancaster in 1814, ffteen men were convicted of treason and four acquitted in 1814, eight were executed and seven received pardons on condition of banishment from British dominions; see Paul Romney and Barry Wright, “State Trials and Security Proceedings during the War of 1812,” in CST1, 379. See Greenwood, “The General Court Martial at Montreal, 1838–39: Operation and the Irish Comparison,” in CST2, and several other chapters in CST1 and CST2. On controversial suspensions of regular law and resort to military justice in other British colonial contexts (India, Jamaica, and Ireland) that prompted concerns about contradictions with formal claims about British justice and the rule of law, see N. Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (Ann Arbor: University of Michigan Press, 2003); and R.W. Kostal, A Jurisprudence of Power: Victorian Empire and the Rule of Law (Oxford: Oxford University Press, 2005). Barry Cahill, “R. v. Howe (1835) for Seditious Libel: A Tale of Twelve Magistrates,” in CST1, 547. Outside the courtroom elected opposition leaders were subject to punitive parliamentary privilege proceedings, with legislatures acting as courts, sympathetic judges having been removed from the bench (colonial judges held offce according to Royal pleasure). Such leaders were also subject to legislative censure; see F. Murray Greenwood and Barry Wright, “Parliamentary Privilege and the Repression of Dissent in the Canadas,” and Paul Romney, “Upper Canada in the 1820s: Criminal Prosecution and the Case of Francis Collins,” in CST1, 409, 450, 505. Also, more generally on the removal of judges who clashed with local colonial elites, see John McLaren, Dewigged, Bothered, and Bewildered: British Colonial Judges on Trial, 1800–1900 (Toronto: University of Toronto Press, 2011), esp. 74–87 on Upper Canada. On Lower Canada, see Evelyn Kolish and James Lambert, “The Attempted Impeachment of the Lower Canadian Chief Justices, 1814–15,” in CST1, 450. See Barry Wright, “The Gourlay Affair: Seditious Libel and the Sedition Act in Upper Canada, 1818–19,” in CST1, 487.

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25 The repeal of the Sedition Act came in the wake of controversies around the opposition press and the removal of John Walpole Willis from the Kings Bench for his concerns about the exercise of the Crown’s prosecutorial powers. On the failure to prosecute those who destroyed the press equipment of Mackenzie’s Colonial Advocate newspaper and the Crown’s termination of an attempted private prosecution, the seditious libel charges against other newspaper editors, and repeated expulsions of Mackenzie once he was elected to the legislative assembly, see Romney, “Upper Canada in the 1820’s,” in CST1, 505. 26 On the development of Upper Canada’s public sphere, see McNairn, The Capacity to Judge; for a comparative colonial examination of its relevance to government attempts to silence independent newspapers by way of seditious libel prosecutions, see Barry Wright, “Libel and the Colonial Administration of Justice in Upper Canada and New South Wales, c. 1825–30,” in The Grand Experiment: Law and Legal Culture in British Settler Societies, ed. Hamar Foster, Benjamin Berger and A.R. Buck (Vancouver: UBC Press, 2008), 15. 27 In total, more than 350 were tried for treason and equivalent political offences punishable by death by way of criminal trials and courts martial. Thirty-two were executed and 168 were transported to penal colonies after conviction; see CST2 and chapters referred to in nn28–31 below. 28 Indictments for high treason were issued in March 1838 against 133 prisoners. Three of those convicted of treason were hanged. The others also convicted of treason or the new lawless aggression offence received conditional pardons; twenty-four of them were designated for transportation to Van Diemen’s Land, Lieutenant-Governor Sir George Arthur’s previous posting; see R. Baehre, “Trying the Rebels: Emergency Legislation and the Colonial CST2, 41; P. Romney and B. Wright, “The Toronto Treason Trials, March-May 1838,” in CST2, 62; and C. Read, “The Treason Trials of 1838 in Western Upper Canada,” in CST2, 100. 29 In all, 184 prisoners were tried by court martial. John A. Macdonald, then a young lawyer, defended some of the prisoners at Kingston. Of the 181 convicted of treason or the capital offence of lawless aggression, 17 were executed and 78 were added to the numbers transported to Australia; see B. Wright, “The Kingston and London Courts Martial,” in CST2, 130. The 78 transported joined 24 convicted and conditionally pardoned convicts from the earlier Toronto, Hamilton, and London criminal trials, who were also transported to Australia; see C. Pybus, “Patriot Exiles in Van Diemen’s Land,” CST2, 188. On later uses of military justice, see n37 below. 30 See Jean-Marie Fecteau, “This Ultimate Resource: Martial Law and State Repression in Lower Canada, 1837–38,” in CST2, 207; and Steven Watt, “State

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Trial by Legislature: The Special Council of Lower Canada, 1838–41,” in CST2, 248. See Greenwood, “The General Court Martial at Montreal, 1838–39: Operation and the Irish Comparison,” and “The Montreal Court Martial, 1838–39: Legal and Constitutional Refections,” in CST2, 279, 325. All ninety-nine men convicted of treason or treason and murder were sentenced to death: twelve were hanged and ffty-eight were given conditional pardons and transported to New South Wales; see Beverley Boissery, “The Punishment of Transportation as Suffered by the Patriotes Sent to New South Wales,” in CST2, 383. On the scholarly neglect of women’s experiences and the nature of their involvement in the resistance, see Beverley Boissery and Carla Paterson, “Women’s Work: Women and Rebellion in Lower Canada, 1837–39,” in CST2, 383. Responses to the Canadian crisis refected a wider push for the liberal reform of colonial governance in the 1830s that extended from the plantation colonies (the abolition of slavery in 1834), to India (Thomas Macaulay’s utilitarianinspired reforms) and Ireland (1829 Emancipation Act) as well as to the more distant British settler colonies. In the plantation colonies the shift from slave to imported indentured labour and London’s enhanced supervision did not greatly erode the powers of local plantocracies. While India became a laboratory for utilitarian reform, commercial and military interests continued to prevail there, and Irish autonomy remained an intractable challenge before and after the 1848–9 rebellion. See also n22 above. The response to the Canadian crisis smothered local radical republicanism but also discredited local forces of reaction, as evidenced by Upper Canada’s Chief Justice Robinson’s failed mission in London to defend the colonial government and to counter the sweeping recommendations in Lord Durham’s Report on the Affairs of British North America. The British government, having dealt with the international repercussions of the patriot invasions and the wide resort to transportation for political convicts, some of whom were US citizens, was decidedly unreceptive to Robinson, who had drafted Upper Canada’s emergency legislation. P. Corrigan and D. Sayer, The Great Arch: English State Formation as Cultural Revolution (Oxford, Blackwell, 1985). In the Canadian context, see A. Greer and I. Radforth eds., Colonial Leviathan: State Formation in Mid-Nineteenth Century Canada (Toronto: University of Toronto Press, 1992). See n8. On the shift to heavier reliance on public order offences in the English context, see M. Lobban, “From Seditious Libel to Unlawful Assembly: Peterloo and the Changing Face of Political Crime c. 1770–1820” (1990) 10

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Oxford Journal of Legal Studies, 307. The creation of Robert Peel’s Metropolitan London Police in 1828 and the rapid expansion of professional policing accelerated this trend. On the refnement in regulating collective disorder in Canada in the nineteenth century after the rebellions, see Ian Ross Robertson, “The Tenant League and the Law, 1864–7,” Donald Fyson, “The Trials and Tribulations of Riot Prosecutions: Collective Violence, State Authority, and Criminal Justice in Quebec, 1841–92,” Susan Binnie, “Maintaining Order On the Pacifc Railway: The Peace Preservation Act, 1869–85,” and Eric Tucker, “Street Railway Strikes, Collective Violence, and the Canadian State, 1886– 1914,” in CST3, 123, 161, 204, 257. On early Canadian intelligence operations, see David A. Wilson, “The D’Arcy McGee Affair and the Suspension of Habeas Corpus,” and on imperial intelligence coordination and security concerns around migration, see A. Parnaby, G.S. Kealey, and K. Niergarth, “High-Handed, Impolite, and Empire-breaking Actions: Radicalism, AntiImperialism, and Political Policing in Canada, 1860–1914,” in CST3, 85, 483. On responses to the Fenian invasions, see R. Blake Brown, “Stars and Shamrocks Will Be Sown: The Fenian State Trials 1866–67,” and David A. Wilson, “The D’Arcy McGee Affair,” in CST3, 35, 85. Riel’s was the last trial for high treason in Canada, although other Canadians, military and civilian, were subsequently tried for the offence by British and allied military tribunals. Canadian-born Kanao Inouye (the Kamloops Kid) was the last Canadian civilian tried, convicted, and executed for treason, in Hong Kong in 1947. On military justice procedures for other offences, see B. Isitt, “Court-Martial at Vladivostok: Mutiny and Military Justice during the First World War,” in CST4, 172; and the chapter by Craig Forcese in this volume. See L. Knafa, “Treasonous Murder: The Trial of Ambroise Lepine, 1874,” in CST3, 297. On the usual pre-Confederation responses to Indigenous resistance and early cases, see, e.g., Hamar Foster, “Long-Distance Justice: The Criminal Jurisdiction of the Canadian Courts West of the Canadas, 1763–1859” (1990) 34 American Journal of Legal History, 1; and Tina Loo, “The Road from Bute Inlet: Colonial Identity in British Columbia,” in Essays in the History of Canadian Law, Volume 5, ed. J. Phillips, T. Loo, and S. Lewthwaite (Toronto: Osgoode Society, 1994), 112. See Bob Beal and B. Wright, “Summary and Incompetent Justice: Legal Response to the 1885 Crisis,” in CST3, 353; J.M. Bumsted, “Another Look at the Riel Trial for Treason,” in CST3, 411; and Bill Waiser, “The White Man Governs: The 1885 Indian Trials,” in CST3, 451. See also Martin L. Friedland, “Louis Riel and his Appeal to the Privy Council” (2021) 69 Criminal Law Quarterly, 280.

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40 For further examination of the English criminal law reform debates and their broader impact, see e.g., K.J.M. Smith, Lawyers, Legislators, and Theorists: Developments in English Criminal Jurisprudence, 1800–1957 (Oxford: Clarendon, 1998); see also Smith, James Fitzjames Stephen: Portrait of a Victorian Rationalist (Cambridge: Cambridge University Press, 1988); Barry Wright, “Renovate or Rebuild?: Treatises, Digests, and Criminal Law Codifcation,” in Law Books in Action: Essays on the Anglo-American Legal Treatise, ed. A. Fernandez and M. Dubber (Oxford: Hart, 2012), 181; and Barry Wright, “Macaulay’s India Penal Code and Codifcation in the Nineteenth Century British Empire” (2012) 2, no. 1 Journal of Commonwealth Criminal Law, 25. 41 See Desmond H. Brown and Barry Wright, “Codifcation, Public Order, and the Security Provisions of the Canadian Criminal Code, 1892,” in CST3, 516; Graham Parker, “The Origins of the Canadian Criminal Code of 1892,” in Essays in the History of Canadian Law, Volume One, ed. D.H. Flaherty (Toronto: Osgoode Society, 1981), 251; and Desmond H. Brown, The Genesis of the Canadian Criminal Code of 1892 (Toronto: Osgoode Society, 1989). 42 See Desmond H. Brown and Barry Wright, “Codifcation, Public Order, and the Security Provisions of the Canadian Criminal Code, 1892,” in CST3, 529–32. 43 As described in the introductory volume of this series, sedition emerged as a highly malleable common law offence directed at criticism of the state or political authority intended to promote disaffection. Judges used their powers to limit jury verdicts to fnding authorship of the alleged words or publication, by making the determination of their seditious quality a question of law. This legal fction was overturned by Fox’s Libel Act, 1792, which confrmed the right of the jury to give a general verdict. The 1792 legislation applied in parts of British North America and came into issue in Robert Gourlay’s trials. By the 1830s, jury acquittals had led the Upper Canadian government to refrain from prosecutions – see nn24–6 above. In England, 1819 legislative modifcation of the common law offence specifed that advocacy of change must be other than by lawful means in order to be considered seditious, and the 1843 Libel Act, which included cases of seditious libel, permitted truth as a defence (including in cases of seditious libel). A series of nineteenth-century English decisions also narrowed the common law doctrine to make it clear that there must be intent to incite violence, or create public disorder, for the purpose of resisting public authority, and required proof that public disturbance was indeed incited. Stephen’s Draft English Code included these developments in succinct statutory language, and although tempted to make it a summary offence, his conversion of the common law misdemeanour to an indictable offence

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meant the accused was entitled to trial by jury. Stephen elaborated on his doubts about the modern legitimacy of the sedition offences in A History of the Criminal Law of England, Volume Two (London: Macmillan, 1883), 298–9, 370, noting that from the perspective of John Locke’s political philosophy, such activities should not be criminalized. See also Brown and Wright, “Codifcation,” 538–46. 44 See generally Brown and Wright, “Codifcation,” in CST3, 534–38; Susan Binnie, “The Blake Act of 1878: A Legislative Solution to Urban Violence in Post-Confederation Canada,” in Law, State and Society: Essays in Modern Legal History, ed. S. Binnie and L. Knafa (Toronto: University of Toronto Press, 1995), 215, and n35 above. S.97, which was added to the Criminal Code in 1919 to continue the wartime prohibition of revolutionary organizations, became s.98, and prohibitions on defence counsel to assist with Indigenous claims was added the Indian Act; see the volume introduction at n59. 45 Brown and Wright, Wright, “Codifcation,” 536. It is estimated that there were at least 133 military call-outs between Confederation and 1933, with public disorder the main pretext; see Don McGillivray, “Military Aid to the Civil Power: The Cape Breton Experience” (1974) 3 Acadiensis, 45. The deployment of this power and jurisdictional issues were refned in militia and defence legislation, although some deployments in matters under federal jurisdiction, such as 1885 and penitentiary riots, were by order in council. See the Pacione and Walters chapters in this volume regarding resorts to such deployments in 1970 and 1990. The On-to-Ottawa Trek and the Regina Riot were managed by the RCMP public order policing; see Bill Waiser, “Wiping out the Stain: The On to Ottawa, the Regina Riot, and the Search for Answers,” in CST4, 402; also, the more recent development of this aspect of police powers is examined in Chris Madsen’s chapter in this volume. 46 The legislative history around the passage of the War Measures Act and its post-war continuation is detailed in Barry Wright, Eric Tucker, and Susan Binnie, “Introduction: War Measures and the Repression of Radicalism,” in CST4, 10–13; see also F. Murray Greenwood, “The Drafting and Passage of the War Measures Act in 1914 and 1927: Object Lessons in the Need for Vigilance,” in Canadian Perspectives on Law and Society: Issues in Legal History, ed. W. Wesley Pue and Barry Wright (Ottawa: Carleton University Press, 1988), 291. This approach differed from the UK’s, which entailed passage of the temporary Defence of the Realm Act and exercise of prerogative powers, and Australia’s sole reliance on temporary war-time legislation; see McDermott, “Enemy Aliens in the First World War,” in CST4, 71. On the impact of War Measures on Ukrainian Canadians, see Bodhan S. Kordan,

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“They Will Be Dangerous: Security and the Control of Enemy Aliens, 1914,” CST4, 42. See Fort Francis Pulp and Power Co. v. Manitoba Free Press [1923] A.C. 695; and In re George Edwin Gray (1918) 57 SCR 150. See also, Patricia I. McMahon, “Conscription and the Courts: The Case of George Edwin Gray, 1918,”in CST4, 132; and “Editors’ Note: Judicial Review of the War Measures Act, 1914,” in CST4, 475. Having previously rejected the justifcation of national dimensions or national concerns as the basis for exercising federal jurisdiction under Peace, Order and Good Government as interfering with matters falling under provincial jurisdiction, Viscount Haldane, a former British War Minister, approved reliance on it as an emergency power, which he defned expansively, including continuation of war measures into peacetime should government provide evidence that exceptional measures were still required.. Emergency transition legislation in 1918 and 1919 sustained war-time orders outlawing labour and immigrant organizations and expanded the reach of sedition, and later became legislative amendments to the Criminal Code (s.97, later s.98, criminalized organizations that sought revolutionary change to the political and economic order through the use of force) and Immigration Act (ss. 41 and 42 expanded summary deportation powers for migrants and extended these to British subjects born outside of Canada). For the emergency transition measures after the end of the Second World War, see n55 below. In a similar fashion, when the War Measures Act ceased to be in effect in December 1970 many of its emergency regulations continued under the authority of the Public Order (Temporary Provisions) Act, Stat. Can. 1970–71– 72, c.2. Co-Operative Committee on Japanese Canadian v. Attorney General of Canada [1947] A.C. 87, 101–2. See R. v. Gagnon and Vallières (1971) 14 C.R.N.S. 321 (Que. C.A.). See also this volume’s introduction and the Pacione chapter for commentary on this appeal. The 1970 emergency regulations and Public Order Act specifed that anything done under their authority would not be deemed an infringement of the Bill of Rights, 1960, and later amendment to the WMA explicitly exempted it from the Bill of Rights (Statutes of Canada 1970–71–72 c.2). The Quebec Court of Appeal deferred entirely to earlier high court WMA decisions, and on the specifc challenged matter of retroactivity, suspects could not challenge their indefnite detention by renouncing their membership in outlawed organizations. See Brown and Wright, “Codifcation,” in CST3, 538–46, and n43 above. See J. Swainger, “Erroneous and Detestable: Seditious Language and the Great War in Western Canada,” R. Kramer and T. Mitchell, “David de Leon

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54

55

56 57

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Drew the up the Diagram: The Winnipeg Seditious Conspiracy Trials of 1919– 20,” and D. Frank, “The Devil’s Drum: Seditious Libel in Industrial Cape Breton,” in CST4, 97, 217, 251. See n48 and D. Molinaro, “Section 98: The Trial of Rex v. Buck et al. and the State of Exception in Canada, 1919–36” in CST4, 324. Section 98 charges were laid against the leaders of the On-to-Ottawa movement and the Regina Riot in 1935, but the election defeat of the Bennett Conservatives and the movement toward repeal by the Mackenzie King Liberals saw withdrawal in favour of riot prosecutions; see Waiser, “Wiping out the Stain,” CST4, 402. On other provincial responses to Red scares, see Andrée Lévesque, “Red Scares and Repression in Quebec, 1919–39,” in CST4, 290. On the peacetime uses of immigration legislation to regulate immigration and migrant non-conformity, see Parnaby, Kealey, and Niergarth “HighHanded,” CST3, 483; and John McLaren, “The Canadian State, Ethnicity and Religious Non-Conformism: The Trials of Peter Petrovich Verigin,” in CST4, 364. See Brown and Wright, “Codifcation,” in CST3, 532–4, and further background on twentieth-century developments of the Offcial Secrets Act in the introduction to this volume. National Emergency Transitional Powers Act (9–10 Geo. VI), S.C. 1945, c.25; Continuation of Transitional Measures Act (11 Geo. VI), S.C. 1947, c.16; further continued in amended form by S.C. 1948, c.5, S.C. 1949, c.3, and S.C, 1950, c.6. Emergency Powers Act (15 Geo. VI) S.C. 1951 c.5. The Emergencies Powers Act took effect March 1951 and expired in May 1954. House of Commons, Debates, 1953–4, vol. 4, 3668. See this volume’s introduction; see also R. Whitaker, G.S. Kealey, and A. Parnaby, Secret Service: Political Policing in Canada from the Fenians to Fortress America (Toronto: University of Toronto Press, 2012), 179–267; and Whitaker, “Fighting the Cold War on the Home Front: America, Britain, Australia and Canada,” Socialist Register 1984, 24. The US 1947 Taft-Hartley Act allowed intervention into unions’ internal business, and senior union offcials encouraged “rough justice” by organized crime. American labour practices were exported. The purge of Communists and radical elements in the labour movement in Canada was facilitated by the expansion of international unions, which absorbed smaller, more radical unions. The Canadian Labour Congress prohibited Communists from holding leadership positions in any affliated unions, and similarly, the Labour Party Secretary in Britain recommended that Communists be prohibited from unions, while union leaders worked with the Special Branch to purge militant unions. In Australia, the election of the Liberal Menzies government in 1949 led to

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sedition prosecutions and the attempt to outlaw the Communist Party as a criminal organization. Anti-Terrorism Act S.C. 2001 c.41, ss. 24–34. On the origins of the Security of Information Act, see this volume’s introduction, nn25–9. Emergencies Act S.C. 1988 c.29, see also n50 and this volume’s introduction, n49. At the time of writing the Emergencies Act had been resorted to, following the failure of regular criminal law enforcement in response to anti-government protests and blockades in Ottawa and on the international border. The military aid to the civil power option was rejected in favour of this second peace-time resort to these exceptional federal emergency powers (the frst was in response to the October Crisis 1970). It seems that the now-applicable legislative and judicial checks were an effective restraint on executive powers in this case, but further assessment will be needed after the completion of the mandated legislative review. See, e.g., R.J. Daniels, P. Macklem, and K. Roach, eds., The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill (Toronto: University of Toronto Press, 2001); and K. Roach, September 11: Consequences for Canada (Montreal and Kingston: McGill-Queen’s University Press, 2003). Re Secession of Quebec [1998] 2 SCR 217; Clarity Act, SC 2000 c.26. I am grateful to Reg Whitaker for sharing his thoughts on these issues here and where they are discussed by the volume editors in the introduction. See, e.g., 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 [McDonald Commission] (Ottawa, 1979); Law Reform Commission of Canada, Crimes against the State, Working Paper no. 49 (Ottawa, 1986). The main change since the 1953–4 revisions to the treason and espionage provisions has been the abolition of capital punishment. Friedland’s report contained numerous reform concerns and suggestions about privacy, warrants, and overlap and contradictions between the espionage provisions of the Code and the Offcial Secrets Act. The LRCC recommended replacing the existing provisions with a new special part, a “mini-code” of offences against the state, that would abolish sedition and “compassing the death of the sovereign” as treason. “Primary offences against the state” would include the remaining heads of high treason (armed support of or assistance to hostile foreign powers, use of force or violence for the purpose of overthrowing government), as well as espionage in the form of communicating classifed national security information to another state or its agent or obtaining or recording classifed national security information for a hostile foreign power. “Secondary offences against the state” would include use of force to compel government decisions or measures, sabotage, failure

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to inform authorities of offences assisting enemy powers, and the leakage or unauthorized disclosure of classifed national security or otherwise classifed government information. 62 The experiences of marginalized immigrant and Indigenous communities have featured in several chapters in this series. For a study focused on the role of women in the 1837–8 rebellions, see Boissery and Paterson, “Women’s Work,” in CST2, 383. Gender issues are also raised in other series chapters, from Marie-Josephe Corriveau’s conviction in 1763 for petit treason, one of the cases of civilians in Quebec tried by British courts martial after the 1759 Conquest (see Hay, “Civilians Tried in Military Courts,” CST1, 121), to the protests against the exclusion of women from juries in Quebec in the FLQ contempt proceedings (see the Warren and Pacione chapters in this volume). For refections on gender and political violence, see Steve Hewitt, “Happy-Go-Lucky Fellow: Lone-Actor Terrorism, Masculinity, and the 1966 Parliament Bombing in Ottawa” (2019) 100 Canadian Historical Review, 46. There are, of course, other neglected histories; Ravi Malhotra and Benjamin Isitt, Able to Lead: Disablement, Radicalism, and the Political Life of E.T Kingsley (Vancouver: UBC Press, 2021) explores disability and political resistance (Kingley appeared in RCMP “red lists” as a labour radical).

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APPENDICES

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Appendix 1 Previous Titles in the Canadian State Trials Series

Canadian State Trials Volume I: Law, Politics, and Security Measures, 1608–1837 (1996) Introduction: State Trials, the Rule of Law, and Executive Powers in Early Canada, F. Murray Greenwood and Barry Wright 1. The Crime of Lèse-Majesté in New France: Defence of the Secular and Religious Order, Peter N. Moogk 2. The Hoffman Rebelllion (1753) and Hoffman’s Trial (1754): Constructive High Treason and Seditious Conspiracy in Nova Scotia under the Statocracy, Barry Cahill 3. “Twelve Apostles” or a Dozen Traitors? Acadian Collaborators during King George’s War, 1744–8, Thomas Garden Barnes 4. Civilians Tried in Military Courts: Quebec, 1759–64, Douglas Hay 5. “Government by Will and Pleasure Instead of Law”: Military Justice and the Legal System in Quebec, 1775–83, Jean-Marie Fecteau and Douglas Hay 6. Rebellion and Repression in Nova Scotia in the Era of the American Revolution, Ernest A. Clarke and Jim Phillips 7. Sedition among the Loyalists: The Case of St. John, 1784–6, D.G. Bell 8. Judges and Treason Law in Lower Canada, England, and the United States during the French Revolution, 1794–1800, F. Murray Greenwood 9. The Offcial Mind and Popular Protest in a Revolutionary Era: The Case of Newfoundland, 1789–1919, Christopher English

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10. Sir James Craig’s “Reign of Terror” and Its Impact on Emergency Powers in Lower Canada, 1810–13, Jean-Marie Fecteau, F. Murray Greenwood, and Jean-Pierre Wallot 11. State Trials and Security Proceedings in Upper Canada during the War of 1812, Paul Romney and Barry Wright 12. Parliamentary Privilege and the Repression of Dissent in the Canadas, F. Murray Greenwood and Barry Wright 13. The Attempted Impeachment of the Lower Canadian Chief Justices, 1814– 15, Evelyn Kolish and James Lambert 14. The Gourlay Affair: Seditious Libel and the Sedition Act in Upper Canada, 1818–19, Barry Wright 15. Upper Canada in the 1820s: Criminal Prosecution and the Case of Francis Collins, Paul Romney 16. Liberty of the Press in Early Prince Edward Island, 1823–9, J.M. Bumsted 17. R. v. Howe (1835) for Seditious Libel: A Tale of Twelve Magistrates, Barry Cahill Canadian State Trials Volume II: Rebellion and Invasion in the Canadas, 1837–1839 (2002) Introduction: Rebellion, Invasion, and the Crisis of the Colonial State in the Canadas, 1837–9, F. Murray Greenwood and Barry Wright 1. Trying the Rebels: Emergency Legislation and the Colonial Executive’s Overall Legal Strategy in the Upper Canadian Rebellion, Rainer Baehre 2. The Toronto Treason Trials, March–May 1838, Paul Romney and Barry Wright 3. The Treason Trials of 1838 in Western Upper Canada, Colin Read 4. The Kingston and London Courts Martial, Barry Wright 5. The Prince Affair: “Gallant Colonel” or “The Windsor Butcher”?, F. Murray Greenwood 6. Patriot Exiles in Van Diemen’s Land, Cassandra Pybus 7. “This Ultimate Resource”: Martial Law and State Repression in Lower Canada, 1837–8, Jean-Marie Fecteau 8. State Trial by Legislature: The Special Council of Lower Canada, 1838–41, Steven Watt

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9. The General Court Martial at Montreal, 1838–9: Operation and the Irish Comparison, F. Murray Greenwood 10. The Montreal Court Martial, 1838–9: Legal and Constitutional Refections, F. Murray Greenwood 11. “Women’s Work”: Women and Rebellion in Lower Canada, 1837–9, Beverley Boissery and Carla Paterson 12. The Punishment of Transportation as Suffered by the Patiotes Sent to New South Wales, Beverley Boissery Canadian State Trials Volume III: Political Trials and Security Measures, 1840–1914 (2009) Introduction: From State Trials to National Security Measures, Susan Binnie and Barry Wright 1. “Stars and Shamrocks Will be Sown”: The Fenian State Trials, 1866–7, R. Blake Brown 2. The D’Arcy McGee Affair and the Suspension of Habeas Corpus, David A. Wilson 3. The Tenant League and the Law, 1864–7, Ian Ross Robertson 4. The Trials and Tribulations of Riot Prosecutions: Collective Violence, State Authority, and Criminal Justice in Quebec, 1841–92, Donald Fyson 5. Maintaining Order on the Pacifc Railway: The Peace Preservation Act, 1869–85, Susan Binnie 6. Street Railway Strikes, Collective Violence, and the Canadian State: 1886–1914, Eric Tucker 7. Treasonous Murder: The Trial of Ambroise Lépine for the Resistance, 1874, Louis A. Knafa 8. Summary and Incompetent Justice: Legal Responses to the 1885 Crisis, Bob Beal and Barry Wright 9. Another Look at the Riel Trial for Treason, J.M. Bumsted 10. The White Man Governs: The 1885 Indian Trials, Bill Waiser 11. “High-handed, impolite, and empire-breaking actions”: Radicalism, Anti-Imperialism, and Political Policing in Canada, 1860–1914, Andrew Parnaby and Gregory S. Kealey with Kirk Niergarth 12. Codifcation, Public Order, and the Security Provisions of the Canadian Criminal Code, 1892, Desmond H. Brown and Barry Wright

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Canadian State Trials Volume IV: Security, Dissent, and the Limits of Toleration in War and Peace, 1914–39 (2015): Introduction: War Measures and the Repression of Radicalism, Barry Wright, Eric Tucker, and Susan Binnie 1. “They Will Be Dangerous”: Security and the Control of Enemy Aliens in Canada, 1914, Bohdan S. Kordan 2. Enemy Aliens in the First World War: Legal and Constitutional Issues, Peter McDermott 3. Erroneous and Detestable: Seditious Language and the Great War in Western Canada, Jonathan Swainger 4. Conscription and the Courts: The Case of George Edwin Gray, 1918, Patricia I. McMahon 5. Court Martial at Vladivostok: Mutiny and Military Justice during the First World War, Benjamin Isitt 6. “Daniel de Leon Drew Up the Diagram”: Winnipeg’s Seditious Conspiracy Trials of 1919–20, Reinhold Kramer and Tom Mitchell 7. The Devil’s Drum: Seditious Libel in Industrial Cape Breton, 1923, David Frank 8. Red Scares and Repression in Quebec, 1919–39, Andrée Lévesque 9. Section 98: The Trial of Rex v. Buck et al. and the “State of Exception” in Canada, 1919–36, Dennis G. Molinaro 10. The Canadian State, Ethnicity, and Religious Non-Conformism: The Trials of Peter Petrovich Verigin, John McLaren 11. Wiping out the Stain: The On-to-Ottawa Trek, the Regina Riot, and the Search for Answers, Bill Waiser

Appendix 2 Supporting Document: Chapter 1, Adams, Stanger-Ross, and the Landscapes of Injustice Research Collective

Order in Council revoking naturalization of persons deported in pursuance of Order in Council P.C. 7355, 15th December 1945 P.C. 7356 AT THE GOVERNMENT HOUSE AT OTTAWA SATURDAY, the 15th Day of DECEMBER, 1945 PRESENT: HIS EXCELLENCY THE GOVERNOR GENERAL IN COUNCIL: WHEREAS by Order in Council P.C. 7355 of 15th December, 1945, provision is made for the deportation of persons who, during the course of the war, have requested to be removed or sent to an enemy country or otherwise manifested their sympathy with or support of the enemy powers and have by such actions shown themselves to be unft for permanent residence in Canada; THEREFORE, His Excellency the Governor General in Council, on the recommendation of the Secretary of State (concurred in by the Secretary of State for External Affairs) and under the authority of the War Measures Act, chapter 206 of the Revised Statutes of Canada, 1927, is pleased to order and dot hereby order as follows: 1. Any person who, being a British subject by naturalization under the Naturalization Act, Chapter 138, R.S.C. 1927, is deported from

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Canada under the provisions of Order in Council P.C. 7355 of 15th December, 1945, shall, as and from the date upon which he leaves Canada in the course of such deportation, cease to be either a British subject or a Canadian national. 2. The Secretary of State shall publish in the Canada Gazette the names of all persons who have ceased to be British subjects or Canadian nationals by virtue of this Order. A.D.P. Heeney, Clerk of the Privy Council

Appendix 3 Supporting Document: Chapter 3, Whitaker

Draft agreement on procedures for dealing with the “Corby” case [Gouzenko revelations / alleged spy network], November 1945 (MI5 Records, KV 2/1425 No.765, National Archives U.K.) 1. The controlling consideration in dealing with the Corby case are: (a) The practices of the Soviet Embassy in Ottawa, which undoubtedly are followed also in the United States and United Kingdom, are not to be tolerated. (b) While the case should be handled frmly, it should dealt with, nevertheless, so as to disturb as little as possible the continuance of normal diplomatic relations with the U.S.S.R. (c) The case provides an opportunity for exposing the uses to which the Soviet Government puts local Communists elements, and one objective should be to make it as diffcult as possible for them to continue (or, in Canada, to reconstruct) their network based largely on these elements. (d) It should, however, be so handled as to give the least possible substance to charges that counter-action has been taken for ideological reasons. 2. It is agreed that the Corby case should lead to appropriate police action in Canada against identifed agents and that supporting action should be taken in the United States and the United Kingdom. In the frst place, it should consist of the interrogation of agents, accompa-

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4.

5. 6.

Appendix 3

nied, when legal power exists and this course is considered desirable, by temporary detention. In all cases in which enough evidence is discovered, prosecutions should be instituted. In Canada, the police interrogation may be followed by an investigation by a Judge, acting as a Royal Commissioner, and authorized to sit in camera. The position in the United States is described in Annex I. It is agreed that diplomatic action should be taken at the same time in Canada to secure the removal of those members of staff of the Soviet Embassy who are directly implicated in espionage. This should take the form of declaring to the Soviet Ambassador that the Military Attaché and those associated with him are persona non grata and requesting their immediate removal from Canada. The Ambassador should be given a concise statement of the reasons for the request. His own recall should not be demanded. Once police action has started, publicity is unavoidable. It is desirable that it should be guided and controlled as much as possible. Initially, this can probably best be done by means of a public statement by the Prime Minister of Canada. A tentative draft statement is attached as Annex II, but its precise terms cannot be fnally settled at this stage. Publicity in the United States and in the United Kingdom should, as far as possible, follow the same general course as in Canada. It is for consideration whether action against agents should be accompanied by the despatch of a message to Marshal Stalin from Mr. Mackenzie King. It is agreed that police action in the three countries should be taken in the course of the week beginning November 25th, and should immediately be followed by diplomatic action in Canada.

Appendix 4 Supporting Document: Chapter 7, Pacione

An Act to provide temporary emergency powers for the preservation of public order in Canada [Assented to 3rd December 1970] Short Title 1. This act may be cited as the Public Order (Temporary Measures) Act, 1970. [ ... ] General 3. The group of persons or association known as Le Front de Libération du Québec and any successor group or successor association of the said Le Front de Libération du Québec, or any group of persons or association that advocates the use of force or the commission of crime as a means of or as an aid in accomplishing the same or substantially the same governmental change within Canada with respect to the Province of Québec or its relationship to Canada as that advocated by the said Le Front de Libération du Québec is declared to be an unlawful association. 4. A person who:

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a. is or professes to be a member of the unlawful association; b. acts or professes to act as an offcer of the unlawful association; c. communicates statements on behalf of or as a representative or professed representative of the unlawful association; d. advocates or promotes the unlawful acts of, or the use of the unlawful means advocated by, the unlawful association for accomplishing its aims principles or policies; e. contributes anything as dues or otherwise to the unlawful association or to anyone for the beneft of the unlawful association; f. solicits subscriptions or contributions for the unlawful association; or g. advocates, promotes or engages in the use of force or the commission of criminal offences as a means of or as an aid in accomplishing the same or substantially the same governmental change within Canada with respect to the Province of Quebec or its relationship to Canada as that advocated by the unlawful association, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fve years. 5. A person who, knowing or having reasonable cause to believe that another person is guilty of an offence under this Act, gives that person any assistance with intent thereby to prevent, hinder or interfere with the apprehension, trial or punishment of that person for that offence is guilty of an indictable offence and liable to imprisonment for a term not exceeding fve years. 6. An owner, lessee, agent or superintendent of any building, room, premises or other place who knowingly permits therein any meeting of the unlawful association or of any branch, committee or members thereof, or any assemblage of persons who advocate or promote the unlawful acts of, or the use of the unlawful means advocated by, the unlawful association for accomplishing its aims, principles or policies, is guilty of an indictable offence and liable to a fne of not more than fve thousand dollars or to imprisonment for a term not exceeding fve years or to both. [ ... ] 8. In any prosecution for an offence under this Act, evidence that any person either before or after the coming into force of this Act, a. participated in or was present at a number of meetings of the unlawful association or of any branch, committee or members thereof, b. spoke publicly in advocacy for the unlawful association, or

Appendix 4

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c. communicated statements on behalf of or as a representative or professed representative of the unlawful association, is, in the absence of evidence to the contrary, proof that he is a member of the unlawful association. 9. (1) A peace offcer may arrest without warrant a. a person who he has reason to suspect is a member of the unlawful association; b. a person who professes to be a member of the unlawful association; or c. a person who he has reason to suspect has committed, is committing or is about to commit an act described in any of paragraphs (b) to (g) of section. 4. (2) Subject to subsection (3), a person arrested under subsection (1) may be detained in custody by a peace offcer but shall be taken before a justice, magistrate or judge having jurisdiction and charged with an offence under section 4, or shall be released from custody, not later than three days after his arrest, unless the attorney-general of the province in which the person is being detained has, before the expiry of those three days, issued an order that he be further detained until the expiry of a period not exceeding seven days after his arrest, in which case the person arrested shall, forthwith upon the expiry of that period unless he has sooner been released, be taken before such a justice, magistrate or judge and charged with an offence under section 4, or be released from custody. (3) In its application to a person who, immediately before the coming into force of this act, was being detained in custody without his having been charged with an offence under section 4 of the Public Order Regulations, 1970 made pursuant to the War Measures Act, subsection (2) shall be read and construed as though for the reference therein to “three days” there were substituted a reference to “seven days” and for the reference therein to “seven days” there were substituted a reference to “twenty-one days”, except that nothing in this subsection shall be construed to authorize the detention of any such persons in custody, without his having been charged with an offence under section 4 of this Act, for any longer period than the Attorney General of the province in which he is being detained deems warranted having regard to the exigencies of the situation.

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10. A peace offcer may enter and search without warrant any premises, place, vehicle, vessel or aircraft in which he has reason to suspect, a. anything is kept or used for the purpose of promoting the unlawful acts of, or the use of the unlawful means advocated by, the unlawful association for accomplishing its aims, principles or policies; b. there is anything that may be evidence of an offence under this act; c. any member of the unlawful association is present; or d. any person is being detained by the unlawful association. 11. Anything that a peace offcer has reason to suspect may be evidence of an offence under this Act may, without warrant, be seized by a peace offcer and detained for not more than ninety days from the date of such seizure, unless before the expiry of those ninety days a justice, magistrate or judge is satisfed upon application that, having regard to all the circumstances, its further detention for a specifed period is warranted and he so orders, or proceedings in respect of an offence under this Act are instituted in which such things may be required. [ ... ] 14. On, from and after the day this Act is assented to, any offence committed under section 4, 5 or 6, respectively, of the Public Order Regulations, 1970, made pursuant to the War Measures Act shall be deemed to be an offence committed under section 4, 5 or 6, as the case may be, of this Act, and any investigation, proceeding or other act or thing instituted, commenced or done under the authority or purported authority of those regulations shall be deemed to have been instituted, commenced or done under the authority or purported authority of this Act and as though this Act had come into force on October 16, 1970.

Index

American spy trials: Cold War context, 204; comparison with Canadian spy trials, 201–5; generally, 201; Gouzenko defection, fallout from, 181–2; Hiss, Alger, trials of, 195–7, 202, 204; Hollywood Ten, 193; Hoover, J. Edgar, 133, 135, 194–5; House Un-American Activities Committee, 180, 193–5; Rosenberg–Sobell trials, 196–7, 202–3; treason context, 203. See also Canadian spy trials; UK spy trials anti-terrorism, 342, 344; Anti-Terrorism Act 2001, 486 Beban, Frank, 395, 396, 402, 403 Becker, Theodore L., political trials theory, 283–4 Bennett, Premier Bill, 394, 401 Bentley, Elizabeth, 182, 191 Berger, Thomas, 248–52 Bill of Rights, 1961, 70–1, 204, 320, 486 Borovoy, Alan, 355, 366 Bourassa, Premier Robert, 434, 437 Boyer, Raymond, 185, 186, 187, 190 Brewin, F. Andrew, 66–7, 69 British Columbia, Indigenous land claims: armed conflict, 404; Church, Justice

Marguerite, 407; Clayoquot Sound, 380, 385, 405; Coastal GasLink Pipeline Ltd. injunction case, 406–8; colonization patterns, uneven nature of, 384, 404–5; criminal contempt proceedings, generally, 380–1; environmental advocacy campaigns, 386, 388, 391–2, 400, 405–6; Friends of Clayoquot Sound, 386, 406; generally, 380–2, 409; geographic factors, 384, 404–5; Indigenous and Canadian law, reconciliation of, 409; Indigenous direct action strategy, 381–2. See also Lyell Island claims British Columbia, labour disputes. See Lenkurt Electric Canadian Charter of Rights and Freedoms, 21, 114, 161, 204, 486 Canadian Security Intelligence Service (CSIS): creation of, 21, 342, 368, 369; mandate of, 486; surveillance of labour unions by, 255. See also McDonald Commission Canadian spy trials: Bentley, Elizabeth, testimony of, 182; Canadian Bill of Rights, effects on development of, 204; charges, table of, 191, 192;

520 Canadian spy trials (continued) civil liberties issues, 201–2; comparison with American spy trials, 201–5; Criminal Code, s. 98, 13, 15, 20, 178, 204, 307–9, 341, 481, 483, 484; generally, 10–12, 177, 201; Gerson, Harold Samuel, 185–6, 188; Labor-Progressive Party, 179, 181, 201, 203; Linton, Freda, 191; Lunan, Capt. David Gordon, 184–5, 188; Official Secrets Act offences, breaches of and conspiracy to breach (CC), 183; Pappin, W.M., 189; Royal Commission Inquiry reports, 181–2, 192; Sedgwick, Joseph, 186, 188; self-incrimination issue, 184, 187; treason vs. OSA offences, 183; Willsher, Kathleen, 181, 183; Woikin, Emma, 181, 183, 188. See also American spy trials; UK spy trials Canadian State Trials, 1759–1840: British North American colonies, English laws of, 467; colonial constitutional claims, 467–8; generally, 465; Loyalist refugees, 468; organized opposition, emergence of, 468; political trials, 465–7; public sphere, notion of, 468; rule of law, 465; seditious libel prosecutions, 472–3; treason cases, 470–1 —Quebec: American patriot invasions, 469 –70; conquest of, 469; constitutional reform agitation, 473; Rebellion of 1837–8, 474; security preoccupation, as, 470 —Rebellions of 1837–8: generally, 468–9; Quebec, government measures, 474; Upper Canada, government measures, 474 —Upper Canada: Family Compact, opposition to, 472–3; habeas corpus, suspension of, 472; Rebellion of 1837–8, 474; reform movement agitation, 472; summary justice expedients, 472 —War of 1812: generally, 466; martial law, 471; Sedition Act, use of, 471; temporary emergency legislation, 472; treason trials, 471 Canadian State Trials, 1840–1914: Canadian Criminal Code, emergence of, 480–1; criminal offences codification movement, 479–81; criminal trial procedural rights, introduction of, 475; Durham report reforms, 475; English criminal law

Index reforms, 476; Fenian invasions, 476; Indigenous population issues, 477–8; Macaulay’s India Penal Code, 479; modern security state features, emergence of, 476; North West Mounted Police, formation of, 477; North-West Rebellion, 477–9; Peel, Sir Robert, reforms of, 476, 477; riot management, military interventions, 481; sedition offence, 480; Statute of Treasons and Treason Act, use of, 479; Stephen’s Draft English Code, 480; Treason Felony Act, adoption of, 477 Canadian State Trials, 1914–1990: AntiTerrorism Act, 486; Canadian Intelligence Service, 486; Criminal Code securityrelated provisions, 484–5; Emergencies Act, 1988, 486; emergency transition legislation/Emergency Powers Act, 484; espionage offences, 483, 484; Immigration Act deportation powers, 13, 307, 483, 485; Indigenous rights/sovereignty issues, 487; intelligence sharing, international, 487; McDonald Commission recommendations, 486; Official Secrets Act, 483, 484; post-Charter reforms, 486; Quebec independence movements, 487; RCMP surveillance and political policing, 485; sedition offences, 483, 488; treason offences, 484–5, 488. See also War Measures Act Canadian State Trials, series themes, 4–5, 462–4, 488–9 Carr, Sam: appeal, denial of, 183, 190; charge against, 188; passport scheme, 188–9; Soboloff, Dr John, testimony of, 189; trial of, 185, 183, 188–90; verdict and sentence, 190 Chapman, Agatha, 151–4; acquittal of, 153; blacklisting of, 153; distinguished background and lineage, 152; fate of, 154; guilt by association, 151; political views and colleagues, 152 Church, Justice Marguerite, 407 Ciaccia, John, 432, 449–50 Cohen, Joseph, L., 155, 186, 191 Cold War: Canadian context, 10–15, 484–5; ideological context, 141, 204; trade union communist infiltration, 230, 232, 233. See also American spy trials; Canadian spy trials; Gouzenko affair; UK spy trials

Index colonial contexts. See British Columbia, Indigenous land claims; Canadian State Trials, series themes; FLQ trials (1960s); Oka crisis Communications Security Establishment (CSE), 485, 486 Communist Party of Canada, surveillance and prosecutions, 177–9; Criminal Code s. 98, 178; Defence of Canada Regulations ban, 179; Labour Progressive Party political activities, 179; Official Secrets Act, use of, 178–9; Quebec Padlock Law, 178, 204; radical groups offence prosecutions, 178; Soviet spy ring backing, suspicions of, 181 Communist Party of the United States of America: AG’s List of Subversive Organizations investigations, 179, 194; Alien Registration Act (Smith Act), effects of, 180; anarchist bombings, 179; Communist Political Association, 180; House of Un-American Activities Committee, 180, 193–5; Soviet spy ring backing, suspicions of, 181; Un-American Activities Committees, 180, 193–5. See also American spy trials Constitution Act, 1867, 9, 65, 310, 312, 384, 428, 481, 482 Constitution Act, 1982, 21, 24, 381, 384, 387, 478 contempt of court proceedings: FLQ trials, 289–90, 291; Indigenous protests, 380–1, 398; Montreal Five, seditious conspiracy trial, 305, 307, 318–20, 327–8. See also Lenkurt Electric counter-intelligence, 12, 127, 129, 130, 485 Criminal Code: breach of the peace offences, 476, 480–1; Canadian, emergence of, 480–1; conspiracy to breach Official Secrets Act, 183; espionage amendments, 11, 359; public order and political offences, 12–13, 463, 483; security-related provisions, 484–5; terrorism offences, 486; unlawful assembly offences, 441, 481; unlawful organizations offences, 13, 15, 20, 178, 204, 307–9, 341, 481, 483, 484. See also anti-terrorism; Official Secrets Act

521 Cross, James, 280 CSIS. See Canadian Security Intelligence Service de Grasse, Guy, 282 defence counsel: Brewin, F. Andrew, 66–7, 69; Cohen, Joseph, L., 155, 186, 191; Lemieux, Robert, 284, 286–7, 291, 296, 304, 306, 314, 316, 321, 324–5, 327–9; MacKeen, H.P., 109–10; Mergler, Bernard, 284, 306: right to, Prisoners’ Counsel Act, 1836, 475, 476; right to, Treason Act, 1696, 467–8; Scott, Frank, 37, 77 Defence of Canada Regulations, 8, 12, 49–53, 132, 179 Edwards, Prof. LL.J., 350–1 Emergencies Act, 20, 369, 437, 486 Emergency Powers Act, 1951, 14, 484 emergency transition legislation: post–First World War, 7, 482; post–Second World War, 7, 9, 11, 13, 132, 307, 482, 484. See also Montreal Five, seditious conspiracy trial espionage: counter-espionage, 143–4; McDonald Commission report, 359; offences, overview, 11–13, 480, 483–6; Soviet, 130–2, 134–7, 141, 145, 153, 161. See also American spy trials; Canadian spy trials; Criminal Code; Gouzenko affair; Official Secrets Act; UK spy trials Five Eyes network, 487 FLQ, justice system critiques, 292–6; abuse of judges, 293; colonial courts attack, 293; corruption, 294; economic and political elites, demonizing of, 293; executive–judiciary overlap, 294; judicial independence, lack of, 294; jury selection process, 295–6; justice system reforms, 296–7; lawyers, political dominance of, 294; Rose, Paul, 290, 293, 295; Vallieres, Pierre, critique of, 292 FLQ messaging, 285; generally, 280, 284–5; jury selection, 286; Lemieux, Robert, 284, 286–7, 291, 296; MDPPQ, 284, 291; Mergler, Bernard, 284, 306;

522 FLQ messaging (continued) political grandstanding, 285–7; representation/counsel issue, 285; subpoenas, issuing of, 287 FLQ trials (1960s): anti-colonial struggles context, 279; arrests and prosecutions, criticisms of, 281; Cross, James, 280; de Grasse, Guy, 282; felquites, 281, 284, 287, 295; Gagnon, Charles, 280, 282, 288, 291, 296, 297; generally, 17–19, 279; Geoffroy, Pierre-Paul, 19, 288–9; government response, 280; judicial counter-guerrilla warfare, 287–91; judicial guerrilla warfare strategy, 280, 284–7; Ouimet, Judge Robert, 287, 294; Rose, Jacques, 291, 293, 296; sentencing, 288–9 Fox, Francis, 345, 346 Franks, Prof. Ned, 351 Friedland, Prof. Martin L., 352, 353, 367–8 Gagnon, Charles, 280, 282, 288, 291, 296, 297 Gee, George, 233 Geoffroy, Pierre-Paul, 19, 288–9 Gerson, Harold Samuel, 185–6, 188 Gibbs, Justice Reginald, 388–9 Gouzenko affair: British Security coordination/involvement, 127–30; Carr, Sam, trial of, 157; as celebrity, 203; cooperative vs. uncooperative defendants, 154; courtroom venue, publicity disadvantages, 157; defection, fallout from, 181–2; defence strategies, 157–8; diplomacy issues, 126–7; FBI, 127; generally, 154–5; individual/civil rights vs. emergency powers context, 159–60; Liddell, Guy, 128–31, 134, 135, 142; Lunan, Gordon, 148, 158, 159; Mazerall, Edward, trial of, 158–9; MI5 involvement, 127, 128, 130–5; MI6 involvement, 127, 129; Nunn May, Dr Alan, 128–32, 134–6, 154; public attention, lack of, 157; Rose, Fred, trial of, 155–7; securityintelligence community context, 127; self-incrimination issue, 158–9; show trial context, 155–7; verdicts, 154, 157; Zabotin, Col. Nicolai, 141, 148. See also American spy trials; Canadian spy trials; Chapman, Angela; Shugar, David; UK spy trials

Index —detention and interrogation phase, 136–7; confessions obtained, 137; legal counsel, denial of, 136; success of, 137 —long-term impact of, 160–2; Canadian international role, 161; federal public service screening process, 160; national security imperatives vs. individual rights, 161; Soviet espionage, destabilization of, 161 —and RCMP: civil service communist purge, 145; detention and interrogation by, 136–7, 158–9; early involvement, 128; MI5, RCMP relationship with, 130–1; suspect surveillance by, 134 —and Royal Commission Inquiry, 11–12, 138–54; accusations in, 147; as antiCommunist document, 144–5; Carr, Sam, 142; Cold War ideological context, 141; commissioners, 138; CPC indoctrination focus, 141–2; Executive Order PC 411, jurisdiction/authority, 138, 140; Fifth Column focus, 142; Grierson, John, questioning of, 144–6; GRU military intelligence network, picture of, 141; guilt by association analysis, 146; Halperin, Israel, experience of, 138–40; Kellock, Commissioner Hon. Roy Lindsay, 138; King, Prime Minister Mackenzie, 127, 132–4; National Film Board focus, 145–6; Official Secrets Act, 138, 140, 146–8, 154–6, 183, 192; Philby, Kim, 129, 134; powers of, extensive, 140; Rose, Fred, 142; scope of, 140–1; “Star Chamber” characterization, 140; study group “cells” as recruitment foundation, 146; Taschereau, Commissioner Rt Hon. Robert, 138; US Communist witch-hunts prefigured by, 143, 145; Williams, E.K., 144–5 —undercover phase, 126–36; Communist activity, opportunities re, 131; delay, 132, 134–5; detention and interrogation of suspects, 131–2; Hoover, Herbert, involvement, 133, 135; King, Mackenzie, aborted initiative of, 132–4; lone wolf, credibility issue, 128; MI5 involvement, 130–5; Nunn May, Alan, arrest timing issue, 129–32, 135–6; Pearson, Drew, apprehended spy ring

Index scoop, 135; plan of action, 131; timing of legal action, 134 Graham, John, 351 Grierson, John, 144–6 habeas corpus: applications for, 50, 66; suspension during October Crisis, 19, 304, 309, 311, 313, 320, 324, 328, 462; suspensions of, 4, 7, 470–2, 477, 482 Haida Nation. See Lyell Island land claims Haida road blockade, 396 Halperin, Israel, 138–40, 147–50; address book of, 149; Crown’s case against, 148; innocence, evidence of, 148; Queen’s University, career at, 149; uncooperativeness of, 147–8. See also Gouzenko affair Haudenosaunee law. See Oka crisis Hiss, Alger, 191, 195–7, 202, 204 Hoover, Herbert, 133, 135 Hoover, J. Edgar, 133, 135, 194–5 Horn, Kahn-Tinenta, 430 Hunter, Charlton, 234, 237, 245 Immigration Act: deportation powers, 13, 307, 483, 485; Japanese, limitations on, 53; political policing and, 15; RCMP surveillance, 14. See also Gouzenko affair Indigenous land claims. See British Columbia, Indigenous land claims; Oka crisis Indigenous law. See British Columbia, Indigenous land claims; Oka crisis Indigenous law/rights challenge to property rights, 382–5, 409; assertions of, 382, 385, 409; Constitution Act, 1867 and 1982 as factors, 384; decolonization context, 383; geographic/spatial analysis, 384; Indigenous rights cases, 383; infrastructure and resource licences, 384; injunctions, generally, 380–1, 406; judicial shift re, 382; persistence of Indigenous law, 384; public order policing, use of, 380–1; recent studies, 383–4; scattered geography factor, 384, 404; Tsilhqot’in case, interpretation of, 383, 408; Wet’suwet’en protests, 382, 406–8. See also Meares Island land claims

523 Indigenous resistance, background to: Calder case, 24; Constitution Act, 1982, 21, 24; eastern Canada controversies, 23; 1885 Rebellion, 22; federal government policy goals, 22–3; land claim negotiation processes, 24; Lyell Island land claims, 25; Meares Island land claims, 25; Nisga’a Nation, efforts to assert land rights, 23, 24; Oka standoff, 24–5; Prairie west, treaties, 22–3; Riel, Louis, 22; Royal Proclamation, 1763, expectations re, 21, 22, 24; selfdetermination struggles, 27; sovereignty issues, 24–7 intelligence and counter-intelligence: counter-intelligence, 12, 127, 129, 130, 485; covert operations, 12, 486; deportation, 13, 307, 483, 485, 487; Five Eyes network, 487; FLQ context, 281, 360, 363; generally, 12–14, 21; immigration context, 14, 179; international coordination, 127; surveillance, 12–15, 134, 150, 178, 281, 360, 363, 475, 485, 487. See also Canadian Security Intelligence Service; Lenkurt Electric injunctions: BC Indigenous land claims, generally, 380–1, 406; Coastal GasLink Pipeline Ltd. case, 406–8. See also Lenkurt Electric Japanese Canadians: British Columbia Security Commission, 47; as British subjects, 55; Committee on Orientals in British Columbia, 47; Defence of Canada Regulations, 47, 49–53; deportation of, 9, 46, 60, 65–70; exile, 65, 511; exile applications, 58–9; exile policies, 57–8; exile ships, 59; fishing vessel seizures, 54–5; Nakashima case, 61–5, 72; PC Orders re uprooting/internment, 47–9, 55–6; pre–Second World War, 60; property of, 47–9, 55–6, 61–6; registration system, 47; sale of property (Order 469), 60; Tonomura family, 44–5, 60, 71, 72; uprooting of, 47–9; War Measures Act powers, measures against, 8–9, 46–51; wartime constitution, effects on, 8–9, 46–51

524 Japanese internment: dispersal solution, 57; peacetime, during, 56–7; race as organizing principle of, 55; Read, John Erskine, opposition of, 55–6; Tonomura family, 47–9 Japanese race laws: alternatives to, 54; BC discriminatory laws, 53; enemy alien regulations and, 52; essence of, 52; generally, 71–4; immigration limitations, 53; race defined, 53; race vs. citizenship, 53; voting restrictions, 53 Japanese resistance, Amalgamated Property Owners’ Association litigation: basis of, 65; Brewin, Andrew, 66, 69; Canadian press criticism, 70; categories of Japanese, 65; constitutional theory of rights and citizenship, emergence of, 67– 70; Crown immunity issue, 61; Crown’s arguments, 62; decision in, 63–5; exile case: abandonment of exile policy, 70; formation of group, 61; lawyers in, 66; Order 7355, 65, 511; plaintiffs’ arguments, 62; plaintiffs’ lawyers, 61; Privy Council decision, public criticism, 66; Re Persons of the Japanese Race, 66–70; SCC decision, 66 Jesionek, Jan, 92, 99, 103, 104, 115 Johnson, Harold R., 353 judicial independence, 12, 140, 294, 357–8, 463 juries: FLQ trials context, 286, 291, 295–6; Gouzenko affair context, 155, 157; jury acquittals, historical context, 472–4; Oka crisis context, 450; spy trials context, 185–90, 195 Kanesatake Mohawk community. See Oka crisis Keable Inquiry, 346–8; establishment of, 347; federal government concerns re, 347; judicial challenges to, 347; jurisdictional issue, 347–8; Law Union of Ontario application re bias, 356–7; Security Service concerns re, 347 Kellock, Commissioner Hon. Roy Lindsay, 138 Kellock–Taschereau Commission. See Gouzenko affair

Index King, Prime Minister William Lyon Mackenzie, 127, 132–4 Kirchheimer, Otto, typology of political trials: 229, 246, 249, 256; FLQ trials, 18, 305; generally, 4; Lenkurt Electric strike and, 229, 249; police as auxiliary of prosecution, 249 Laporte, Pierre, 280, 290, 293: message of, 279; Montreal Stock Exchange, bombing of, 280, 288; murder of, 280, 290, 293; October Crisis, 280; Patriote Rebellion 1837, inspiration of, 279; phases of campaigns, 280; political violence, incidents of, 280; politicization of justice, 281–4; Quiet Revolution, 280; revolutionary violence context, 279. See also Montreal Five, seditious conspiracy trial Lemay, Corp. Marcel, 433, 435 Lemieux, Robert, 284, 286–7, 291, 296, 304, 306, 314, 316, 321, 324–5, 327–9 Lenkurt Electric: General Investigation Section, 237, 239, 242, 243, 248; Hunter, Charlton, 234, 237, 245; MacDonald, Angus, 237, 244, 245; MacDonald, Justice James, 248, 249, 251–2; national policing role, 231–2; Northorp, Sergeant Bruce, 237–40, 242–5, 249, 250, 252; obstruction and assault prosecutions, 247, 253; O’Neal, Patrick, 254–5; operations of, 234; organized labour struggles, generally, 229; perspective on strike, 229; plant photo, 235; Power, Jeffrey, 242, 250, 251, 252, 253, 254; public order policing approach, 230–1, 255–7; RCMP afteraction report, 244; RCMP, role in, 230–1; tactical units, development of, 230; union schisms, 244; union settlement and collective agreement with Lenkurt, 247; workforce of, 234 —contempt of court charges, 228, 245–52; Berger, Thomas, 248–52; Crown case, 249–51; CSIS surveillance of labour unions, 255; defence case, 251; defence lawyers, 248; defence motions, 251; defence strategy, 248; injunction violations, investigations re, 246; judgment, 251–2; Murray, George, 246–7;

Index persons charged, 247; police undercover methods, attack on, 248; proceedings, 248–52; prosecution lawyers, 248; Rankin, Harry, 247; sentences, 252–3 —strike: arrests, 242; conciliation board, appointment of, 235; electronic surveillance, 254–5; facts re, 228; firing of striking workers, 235; first day, 239–40; general labour movement support, 237; generally, 16–17, 228–31; grounds of, 234; injunction application allowing use of non-unionized workers, 228; injunction enforcement, 238–45; injunction violations, investigations re, 246; injunctions, BC history, 236; mass picketing, 239; picketers’ behaviour, 239, 242; police neutrality, 238; police strategies, 243; preservation of law and order, 238 second day, 240–3; settlement and collective agreement, 247–8; third day, 243; wildcat strike, 235 Liddell, Guy, 128–31, 134, 135, 142 Linton, Freda, 191 Lunan, Capt. David Gordon, 148, 158, 159, 184 Lyell Island land claims: background to, 392–5; BC natural resources jurisdiction, 394; Beban, Frank, 395, 396, 402, 403; Council of the Haida Nation, 392; Haida land claim against Canadian government, 394; Heritage Site declaration (1985), 394; Island Protection Society, 392, 393; logging permits moratorium, 394–5; 1970s Haida challenges to logging licenses, 392–3; 1970s Haida political organization, 392; Skidegate Band Council opposition, 392, 393 —and Bennett, Premier Bill, 394, 401; cessation of logging, 403; Guujaaw, 393–5, 399, 400, 403; Gwaii Haanas National Park Reserve, establishment of, 403 —and Haida road blockade, 395–401; arrests, 397; consequences of, 401; convictions, 399; criminal contempt of court charges, 398; injunctions against, 396; launch of, 395; McEachern, Chief

525 Justice Allan, 393, 397–400; mischief charges, abandonment of, 400; permanent moratorium on logging, 403; RCMP deployment, 397; Richardson, Miles, Jr, 386, 394–6, 399, 402, 403; Robinson, Svend, 381, 396, 397, 400; sentences, suspension of, 399–400; Skidegate Band Council opposition, 392, 393, 395; South Moresby negotiations, 401–2; support of, widespread expressions of, 400–1 MacDonald, Angus, 237, 244, 245 MacDonald, Justice James, 248, 249, 251–2 Macdonald, Lt.-Col. Bruce, 101–5, 110–12, 115 MacKeen, H.P., 109–10 Mackenzie Commission, 15, 341, 352, 365, 486; Edwards, Prof. LL.J., 350–1; evidence-gathering personnel, 349; foreign experts, 352; Franks, Prof. Ned, 351; Friedland, Prof. Martin L., 352, 353, 367–8; Graham, John, 351; lawyers, 349; mandate of, 348–51, 355, 358, 360–1, 365; McDonald, Commissioner David C., 348, 349–50, 354, 356, 357, 358; Nadon, Commissioner Maurice, 345; naming names issue, 360–1; Pearson–Laskin Accord, 15, 341, 486; RCMP Security Service, 341–2; research director, 350; reasonable apprehension of bias allegations, 356–7; research director, 350; Russell, Prof. Peter, 350–2, 356, 357, 367; Rutan, Prof. Gerald, assessment of, 369; staffing of, 349–54; Starnes, John, 342, 343, 352–3 —reports: 1979, 358–60; 1980 (confidential “Special Report”), 361; 1981 (incidents catalogue), 362–3 MacMillan Bloedel. See Meares Island land claims Mazerall, Edward Wilfred, trial of, 183–5; confession admissibility issue, 184; Gouzenko testimony, 184; Lunan, Capt. David Gordan, 184; McRuer, CJO James Chalmers, 184; self-incrimination issue, 184; verdict and sentence, 185

526 McDonald Commission: Bill C–9, 368; Bill C–157, reactions to, 367; Borovoy, Alan, 355, 366; calls for inquiry, 346–7; Canadian Civil Liberties Association concerns, 355, 366; civil liberties groups, response to recommendations, 366; commissioners, 348; creation of, 342, 368, 369; critique of RCMP practices, 363–4; experts consulted, 342; federal government response to, 365–6; federal government’s subsequent action, 367; findings and recommendations, 363–5; Fox, Francis, 345, 346; generally, 20–1, 341–2, 368–9; national security, confusion re, 363; procedural safeguards, need for, 364–5; rule of law imperative, 364; Scalia study, endorsement of, 364; security intelligence agency, need for separate, 364; Senate Committee hearings, 368 —genesis of, 342–6; anti-terrorism unit, creation of, 344; APLQ break-in, investigation re, 344–5, 346; October Crisis, 344; Quebec nationalism/ separatism concerns, 344; Samson, Robert, testimony of, 344–5; Security Service, criminal acts by, 344–5; War Measures Act, special police powers under, 344 —hearings, 354–8, 360; CCLA, concerns and participation, 355; first formal hearing, 354; in camera sessions, 356; judicial independence, exercise of, 357–8; Law Union of Ontario application re bias, 356–7; “national security,” defining, 354; open sessions, 356; RCMP and federal government files, access to, 354; resumption of (1979), 360; submissions from interested groups, 356 McEachern, Chief Justice Allan, 393, 397–400 McGohey, John F.X., 198 McRuer, CJO James Chalmers, 184 Meares Island land claims: Ahousaht Band, 386, 389, 391; background to, 386–7; Gibbs, Justice Reginald, 388–9; land claim trial, 391; MacMillan Bloedel injunction application, 387; MacMillan Bloedel injunction, limited grant of, 388; MacMillan Bloedel logging operations, 385, 387; Meares Island Planning Team, failure of, 386; Nuu-Chah-nulth Nation,

Index 385; Nuu-Chah-nulth Nation injunction application, 387–9; Seaton, Justice Peter, 381, 385–6, 389–90 —appeal of injunction dismissal, 389–92; balance of convenience issue, 391; Calder case recognition of Indigenous title, 390; destruction of evidence issue, 389; ecological rights issue, 389; environmental activists, criticism of, 391; forest sector damage argument, 389–90; irreparable harm issue, 390; significance of decision, 391 —Tla-o-qui-aht Band actions: blockade of logging, 386; march on provincial legislature, 387; private property interest, grant of, 391; tree spiking activities, 388; Tribal Park declaration, 386 Medina, Judge Harold R., 198 Mergler, Bernard, 284, 306 Meyer, Kurt: culpability, doubts re, 106; defence testimony, 103; good character evidence, 106; interrogation of, 100; petition for clemency, 109; release from prison, 110; SS veteran, as subsequent, 116; transfer to Germany, 110 Meyer trial: charges, 100; command responsibility rules, 115; controversy subsequent to, 108–10; court panel, 101; current international law context, 115; defence counsel, 102; defence evidence, 103–4; Macdonald, Lt.-Col. Bruce, 101–5, 110–12, 115; MacKeen, H.P., 109; opening of prosecution, 102; prosecution evidence, 103, 111; prosecutors, 101; review, 107; sentence delivery, commutation, and reaction, 106, 108–9, 110; subsequent effects of sentence commutation, 110; trial speed and fairness, 114; verdict, 105–6; Vokes, Maj.Gen. Chris, 101, 107, 116; War Crimes Regulations, vicarious responsibility presumption, 103, 104, 107 military, use of in domestic conflict. See Oka crisis Military Aid to the Civil Power, 19, 22, 25, 310, 344, 381, 449, 481 military justice. See treason; war crimes law Montreal Five, seditious conspiracy trial: Chartrand, Michel, 304, 316, 317–20,

Index 322–3, 327; Chénier Cell, 305, 314, 327; contempt of court citings/proceedings, 305, 307, 318–20, 327–8; Cross, James, 304, 309, 314; declaration of apprehended insurrection, challenge of, 312; FLQ as unlawful organization, 309, 311, 312; Gagnon, Charles, 304, 305, 312, 316, 321, 326; habeas corpus, suspension of, 304, 309, 311, 313, 320, 324; Kirchheimer political trial definition, 305; Laporte, Pierre, 304, 309, 314, 327; Larue-Langlois, Jacques, 304, 306, 320, 326; Lemieux, Robert, 304, 306, 314, 316, 321, 324–5, 327–9; October Crisis arrests and detentions, 304–5, 311; Ouimet, Justice, 318–26; prior FLQ prosecutions, 305; proclamation/invocation of Act, 304, 309, 310, 328; prosecutorial strategy, 313–14; provincial discretion re charges, 313; Public Order Regulations executive orders, 311; Quebec requests for military aid under National Defence Act, 310; seditious conspiracy charges, 313–14; stage setting for FLQ trials, 328; Turner, John, 311, 313; Vallieres, Pierre, 304, 305, 312, 316–17, 321–3, 326, 327 —Public Order (Temporary Measures) Act, 1970, 311–14, 515–18; introduction of, 311; judicial review of, 311–12; offences created under, 311–12, 314; provisions of, 311; retroactive effect of, 311; seditious conspiracy offence, 305, 306, 307–9, 313–14; text of, 515–18 —seditious conspiracy offence, 305, 306, 307– 9, 313–14; Criminal Code history of, 308; political offence, as, 18, 283; prosecutorial strategy, 313–14; sedition vs., 308; War Measures Act context, 307–9 —seditious conspiracy proceedings, 314–27; arraignment, 316–17; closed sessions, move to, 323–4; defendants’ goals, 315, 328–9; defendants’ politicization of, 314–15, 317; dismissal of indictment, 325–6; disruptive and recalcitrant behaviours, 315; Lemieux, Robert, arguments of, 324–5; Ouimet, Justice, provocation of, 318–19, 321–3; preferred indictment, 313, 316, 318; pretrial motions, 317–20; selfrepresentation by defendants, 306, 315;

527 special prosecutors, 318; staying of charges, 327; withdrawal of charges, 326 —trial proceedings, 320–6; closed session, movement into, 323–4; defendants’ playacting, 320; dismissal of indictment, 325–6; evidentiary burden, Crown’s failure to meet, 325–6; motion to dismiss indictment, 321–3; preliminary motions, 320; recusal request, 321 Murray, George, 246–7 National Defence Act, 22, 114, 310, 436–8, 448 National Film Board (Canada), 145–6 Northorp, Sergeant Bruce, 237–40, 242–5, 249, 250, 252 Nunn May, Alan, 129–32, 135–6 Nuu-Chah-nulth Nation. See Meares Island land claims October Crisis. See Montreal Five, seditious conspiracy trial Official Secrets Act: amendment and reform of, 191; breach of official trust offence, 11, 484; breaches of, 183; Canadian statute, 11– 13, 178, 483, 484; communists, use against, 178–9; conspiracy to breach offence, 183, 192; Gouzenko affair context, 138, 140, 146–8, 154–6, 183, 192; presumptions and procedures, 146–7, 178; Security of Information Act, 191, 369, 486; treason vs., 183; UK statute, 11, 12, 136, 178, 202 Oka crisis: Bourassa, Premier Robert, 434, 437; chronology of events, 432–35; Ciaccia, John, 432, 449–50; covenant chain treaty relationship, 444–5, 448; criminal offences prosecuted, 441–2; criminal trials, 441–2; generally, 428–31; Gold, Judge Alan, 434; Greenberg, Justice Benjamin, 442; Haudenosaunee vs. Canadian law, 430, 431, 432, 440, 442, 445, 448–50; Horn, KahnTinenta, 430; human rights violations, alleged, 438–9; initial road blockade, 432; insurrection/rebellion issue, 447–8; jurisdictional issue, federal–provincial, 433; Kaienerekowa (Great Law of Peace), 430, 440, 445, 448; Kanehsatake: 270 Years of Resistance, 429; Lemay, Corp. Marcel, 433, 435; literature re, 429; meaning of, 429; Mercier Bridge, solidarity barricade

528 Oka crisis (continued) of, 433; Mohawk sovereignty concept, 430; municipal court injunctions, 432, 433; National Defence Act, invocation of, 22, 436–8, 448; Oka, village description, 431; Ouellette, Mayor Jean, 432; R. v. Sparrow, 428; rule of law, maintenance of, 439; Schmittian state of exception, as, 438; Siddon, Tom, 432, 433 —historic land dispute, 443–7; British Crown, under, 444–6; covenant chain treaty relationship, 444–5; federal government acquisition of Sulpician land, 447; French Crown, under, 443; Kanesatake Mohawk appeal before Privy Council, 447; Mohawk legal and constitutional claim, 446; Seigneury of the Lake of Two Mountains, 446–7; sovereignty issue, 444; Sulpician title, 446; Treaty of Niagara, 1764, 444 —Kanesatake Mohawk community: as band under Indian Act, 431; Iroquois/ Haudenosaunee confederacy context, 432; land development trigger of, 432; landholdings in, 431; legal dimensions of, 429–30; origins of, 431 —soldiers, use of in domestic conflict: civil power, use in aid of, 436; common law assumptions, 436; federal jurisdiction, 436; FLQ crisis analogy, 437; National Defence Act jurisdiction, 437–8; ordinary law, powers limited to, 437; peace officers, powers limited to, 437–9; soldier–warrior confrontation image, symbolic meaning, 435, 436; warriors and occupiers, sovereignty claims, 448 —stand-off: armed warriors, arrival of, 432; Chateauguay violence and chaos, 434; commencement of, 433; disruption caused, 433; federal government position, 433; negotiation and temporary agreements, 434–5; police withdrawal, 434; provincial control of military, 434; Royal 22nd Regiment, installation of, 434; stand down and dismantling of barricades, 435; “state trials” context and, ambiguity of, 429, 441; Swain, Harry, 439, 447; Tannenbaum, Justice

Index Louis, 449, 450; treatment centre occupiers, 441, 442, 449 —trial of treatment centre occupiers, 449–51; charge to jury, 450; Ciaccia letter, 449; Crown prosecutor’s statement to jury, 450; evidence, wide latitude of, 449; political context, 449, 450; symbolism, 450–1; tworow wampum treaty (kuswentha), 430–1, 445, 448, 450; verdicts, 450 —warriors, legal status of: Akwesasne gangs, 440; generally, 439; international law, 443; intra-violence, 440; masks, wearing of, 440; Mohawk context, 442; paramilitary group, as, 440; warrior societies, gaming activities of, 440 Orders in Council: executive orders, 49–50; PC 288, 54–5; PC 411, 11, 135, 138, 140; PC 469, 60; PC 1003, 15; PC 1665, 47–9, 55–6; PC 3486, 14; PC 7355, 65, 511; PC 7357, 59; PC 9591, 52. See also War Measures Act Ouellette, Mayor Jean, 432 Ouimet, Judge Robert, 287, 294 Pappin, W.M., 189 Peace, Order and Good Government, Constitution Act, 1867, 9, 65, 310, 312, 428, 481, 482 Pearson, Drew, 135 Pearson–Laskin Accord, 15, 341, 486 Peel, Sir Robert, reforms of, 476, 477 Philby, Kim, 129, 134 policing: generally, 6, 11, 13–16, 20, 232, 341, 485; labour movement context, 14–17; public order, 16, 230–1, 255–7, 380–1. See Lenkurt Electric political trials: Becker, political trials theory, 283–4; historians’ interest in, 4; meaning of term, 283–4, 441, 463–7; public sphere and, 4; state trials, as, 3–4; See also FLQ; Kirchheimer, Otto; Montreal Five Power, Jeffrey, 242, 250, 251, 252, 253, 254 Public Order (Temporary Measures) Act, 1970. See Montreal Five preferred indictments, 316, 318, 325 preliminary proceedings, pleas, 287, 314, 346, 472, 478 Public Order (Temporary Measures) Act, 1970. See Montreal Five

Index Rankin, Harry, 247 RCMP: covert operations by, 12, 14, 341, 485–6; FEATHERBED program, 14; immigration surveillance, 14; labour movement, political policing of, 14–17; Pearson–Laskin Accord, 15, 341, 486; PICNIC program, powers under, 14; political policing by, 6, 11, 13–16, 20, 232, 341, 485; public order policing by, 16, 230–1, 255–7, 380–1; public servants vetting by, 13, 14; Security Branch activities, 13–14, 16, 232, 381, 397, 485. See also Gouzenko affair; Lenkurt Electric; McDonald Commission —and surveillance of labour unions, 230–4, 254–5; Communist union infiltration, 232, 233; Directorate of Security and Intelligence (DSI), role of, 232; electrical union, DSI coverage of, 233; Gee, George, 233; generally, 230, 232; O’Keefe, Arthur, 233, 237, 244, 245, 251, 252, 253; open source information collection, 232; union infiltration by police, 232 Riel, Louis, 22, 477, 478 Robinson, Svend, 381, 396, 397, 400 Rose, Fred, trial of, 183, 185–6; co-conspirators, allegations re, 185; Cohen, Joseph L., 186; closing remarks, 186; counsel, 187; Crown witness testimony, 185; verdict, 186 Rose, Jacques, 291, 293, 296 Rose, Paul, 290, 293, 295 Royal Commission Inquiry. See Gouzenko affair, and Royal Commission Inquiry Royal Proclamation, 1763, 21, 22, 24, 381, 444, 445, 469, 477, 478 Rule of Law, 20, 25, 63, 315, 321, 324, 366, 437, 465, 489 Russell, Prof. Peter, 350–2, 356, 357, 367 Rutan, Prof. Gerald, 369 Scott, Frank, 37, 77 Seaton, Justice Peter, 381, 385–6, 389–90 Security of Information Act, 191, 369, 486 Sedgwick, Joseph, 186, 188 sedition: abolition in New Zealand, 488; Criminal Code provisions, 308,

529 480; eighteenth-century offences, 470–1; elements of offence, 306, 328; Stephen, James Fitzjames, views of, 480, 483, 488 Sedition Act, 471–3 seditious conspiracy. See Montreal Five, seditious conspiracy trial self-determination. See sovereignty Shugar, David, 147, 150–1; blacklisting of, 151; CAScW, relationship with, 150; charges against, 151; Communist sympathies, 150; Soviet Union, diplomacy issues, 126–7; Stephenson, Sir William, 127, 130; treatment by Commission, 150 Siddon, Tom, 432, 433 signals intelligence, 13, 232, 485 Smith Act trials, 194, 197–200; appeals, 199–200; commencement of, 197; CPUSA, effects on, 197, 200; defence in, 198–9; evidence in, 198; McGohey, John F.X., 198; Medina, Judge Harold R., 198; subsequent trials, 200; Supreme Court judgment, results of, 200; verdict, 199 Soboloff, Dr John, 189 sovereignty: Constitution Act, 1982 section, 35, 21, 24, 26, 381, 383, 387, 478; Indigenous Nations’ assertions of, 386–7, 429–32, 444, 447–8; issues re, 6, 21, 26–7, 487, 489; and Royal Proclamation, 1763, 21, 22, 24, 381, 444, 445, 469, 477, 478; Secession Reference and Clarity Act, 27, 487. See also FLQ trials; Montreal Five, seditious conspiracy trial Soviet Union, 126–7, 130–2, 134–7, 141, 145, 153, 161, 181 Starnes, John, 342, 343, 352–3 state trials: classic offences, 3; Oka crisis, ambiguity of, 429, 441. See also political trials Stephen, James Fitzjames, 480, 483, 488 Stephenson, Sir William, 127, 130 Swain, Harry, 439, 447 Tannenbaum, Justice Louis, 449, 450 Taschereau, Commissioner Rt Hon. Robert, 138

530 Tla-o-qui-aht Band. See Meares Island land claims Tonomura family, 44–5, 60, 71, 72; uprooting of, 47–9 treason: Criminal Code provisions, 463, 479–80; eighteenth-century prosecutions, 4, 470; 1953–4 revisions, 12–13, 484–5, 488; nineteenth-century prosecutions, 4, 22, 471, 474; Riel trial, 22, 477, 478; spy trials context, 183, 203; Statute of Treasons, 1351/2, 467, 479; Treason Act, 1696, 467, 479; TreasonFelony Act, 1848, 22, 477, 479, 480 UK spy trials, 12, 135–6, 181, 191 United Nations War Crimes Commission, 93 unlawful assembly: breach of the peace offence, 476, 480–1; Criminal Code offences of, 441, 481; Riot Act, 1715, 476, 481 unlawful organizations: Criminal Code section 98, 13, 20, 178, 204, 308–9, 341, 481, 483, 484; Public Order (Temporary Measures) Act, 311–12, 326–7 US constitutional law, anti-canon cases, 73 Vallieres, Pierre, manslaughter trial (LaGrenade affair), 19, 282–4; Becker “political trials” analysis, 283–4; circumstances of, 282; convictionreversal, 284; Crown prosecutors’ tactics, 282–3; international reaction, 283; justice system critique, 292; revolutionary beliefs as crime, 283; seditious conspiracy trial vs., 283. See also Montreal Five, seditious conspiracy trial Vokes, Maj.-Gen. Chris, 101, 107, 116 war crimes, circumstances: Canadian Graves Concentration Unit, discoveries of, 91; German 12th SS Panzer Division, actions of, 88–91; Juno Beach operations, 88, 90; murders of Canadian soldiers, described, 88–91; prosecutions of senior officers, 113–14; 3rd Canadian Infantry Division, 87, 88. See also Meyer trial war crimes investigation: British prosecutions, 113; Canadian War Crimes Investigation Unit cases of,

Index 112–13; Jesionek, Jan, 92, 99, 103, 104, 115; Macdonald, Lt.-Col. Bruce, 92, 93, 99, 101–5, 110–12, 115; Meyer commutation, effects on, 110–12; Supreme Headquarters Allied Expeditionary Force court of inquiry finding, 91–2; termination of, 112; United Nations War Crimes Commission, 93 war crimes law, pre–Geneva Conventions: British military law, application of in Canadian law, 97; British military tribunal trials, 96; Charter of the International Military Tribunal, 95; death penalty, 99; evidence, rules of, 99; Field General Courts Martial procedures, 96, 97, 98; Nuremberg Military Tribunal, 95; order-incouncil basis, 97; presumptions, 99; principle violations, 94; regulations and conventions, 94; superior’s responsibility, 99; US Army Courts, 95; “war crimes,” use of term, 94; War Crimes Regulations, 98; War Measures Act analogy, 97; witness statements, 99 war crimes trial. See Meyer trial War Measures Act: amendments to, 7; “apprehended insurrection,” 481; Chemicals Reference, 51; constitutionality of, 46, 51; criticism of, 50; Defence of Canada Regulations, 8, 12, 47, 49–53, 132, 179; deportation challenges, 9; effects of, 8; Emergencies Act vs., 20, 369, 437, 486; enactment of, 7; Japanese residents, measures against, 8–9, 46–51; judicial deference to, 49; judicial review of, 9, 63, 68, 482; legal challenges to, 9; powers under, 8, 344, 481–2; property confiscations under, 8; re internment and detention, 49; rights and liberties, limiting of, 50; Second World War context, 7–9, 482; wartime regulations, 51. See also Montreal Five, seditious conspiracy trial; Orders in Council Williams, E.K., 144–5 Willsher, Kathleen, 181, 183 Woikin, Emma, 181, 183, 188 Zabotin, Col. Nicolai, 141, 148

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Hamar Foster, Benjamin Berger, and A.R. Buck, eds., The Grand Experiment: Law and Legal Culture in British Settler Societies 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 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 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 Philip Girard, Jim Phillips, and Barry Cahill, eds., The Supreme Court of Nova Scotia, 1754–2004: From Imperial Bastion to Provincial Oracle 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

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