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From The Militant, Vol. V No. 19 (Whole No. 115), 7 May 1932, p. 2.
Transcribed & marked up by Einde O’ Callaghan for the Encyclopaedia of Trotskyism On-Line (ETOL).
The doctrine of Criminal Conspiracy was accepted in the early colonies of British North America. The historical details are of no great importance here. The arrest of twenty-four striking printers in Toronto in the seventies of the last century, on a charge of conspiracy, brought home to the workers that there was no law in the Dominion corresponding to the English Trade Union Act of 1871. In 1867 the British North America Act assigned the subject of criminal law to the Dominion and property and civil rights to provincial jurisdiction. Consequently, Parliament in 1872 passed a Trade Union Act identical in most respects with the English legislation of the previous year. It was laid down that the purposes of a trade union shall not by reason merely that they are in restraint of trade be deemed to be unlawful so as to render any member of such a union liable to criminal prosecution for conspiracy or otherwise. This is some sort of recognition of freedom of association.
Section 590 of the Criminal Code deals with the right to strike in these terms:
“No prosecution shall be maintainable against any person for conspiracy in refusing to work with or for any employer or workman or for doing any act or causing any act to be done for the purpose of a combination unless such act is punishable by statute.”
Thus the trade unions in Canada are relieved of the incidence of conspiracy to a very limited extent. For, unfortunately for the trade unionist, nearly every important act “done for the purpose of a combination” in the course of a strike is “punishable by statute.” The definition of a “trade combination” in the Code restricts it to the workers in the direct employment of the employer involved in the dispute. Picketing is punishable by statute as “watching and besetting.” The strike of workers in “public utilities” before invoking the conciliatory provisions of the “Industrial Disputes Investigation Act” is an indictable offence. A sympathetic strike may therefore become a wholesale violation of statutory prohibitions, and on top of that, a seditious conspiracy.
The case of the King versus Russell grew out of the Winnipeg General Strike of May 1919. The leaders were arrested and charged with seditious conspiracy. In their defence it was urged that the strike was the lawful act of a trade combination under Section 590. But the Manitoba Court of Appeal ruled that:
“The immunity provided by Section 590 of the (Criminal) Code does not extend to a general ‘sympathetic’ strike. A conspiracy to bring about a strike involving no trade dispute between the strikers and their employers is illegal. The law in Canada applying thereto is the same as it was in England before the Trades Dispute Act of 1906, to which there is no similar enactment in Canada ...”
Following the Winnipeg strike, the Trades and Labor Congress proposed that the government amend the definition of a “trade combination” by adding the words of the English Act (1906) “workmen means all persons employed in any trade or industry whether or not in the employment of the employer directly or involved in a trade agreement”. The memorandum of the Department of Justice was an illuminating reply wherein it was solemnly stated
“... as a principle of the common law ... that a combination of persons to do an unlawful act or to do a lawful act by unlawful means, is criminal, and it is moreover actionable civilly, if there be special damage. Compatible with this rule a sympathetic strike cannot practically be worked.”
In other words, trade unions, which, finding the craft form utterly inadequate in the struggle with capitalist consolidations would parallel the latter by industrial unions, federations and alliances, are liable to be charged with conspiracy, if they engage in militant action in support of their members working in a given shop for a given employer. But that is not all. Only a strike growing out of a trade dispute within these narrow limits is “legal”. A strike for any political purpose, for the release of class-war prisoners, against the transport of munitions, against intervention in the affairs of the Soviet Union, for social insurance, etc., would all be held illegal conspiracies. As to whether they can be “practically worked”, if the Department of Justice lives long enough it will yet learn many things contrary to statutory provision.
The vulnerability of the trade unions to prosecution for illegal conspiracy has become more acute by virtue of the operation of Section 98 of the Criminal Code (its starting point was an order-in-council issued under the War-measures Act).
The section in question reads as follows:
“98. Unlawful associations. Any association, organization, society or corporation, whose professed purpose or one of whose purposes is to bring about any governmental, industrial or economic change within Canada by use of force, violence, or physical injury to person or property, or by threats of such injury or which teaches, advocates, advises or defends the use of force, violence, terrorism, or physical injury to person or property, or threats of such injury, in order to accomplish such change, or for any other purpose or which shall by any means prosecute or pursue such purpose or professed purpose, or shall so teach, advocate, or defend, shall be an unlawful association.”
Observe the neighborly conjunction of the words “force” and “terrorism” with “industrial or economic change”. Does it require an undue stretch of imagination to conceive that in the electric atmosphere of any considerable “trade dispute” the word “force” may be construed to embrace forms even of slight moral pressure? Thus in his charge to the jury Judge Metcalf in The King versus Russell declared that “sometime it has a deterring effect upon peoples’ minds by exposing them to have their motions watched and to encounter black looks”. The same judge, commenting on Section 132 of the Criminal Code which defines “seditious words” as “words expressing a seditious intention”, added that “sedition is a comprehensive term embracing all those practices whether, by word, deed, or writing which are likely to disturb the tranquility of the State, and to lead ignorant persons to endeavor to subvert the government and the laws of the Empire”. The statement of objects not only of a union which subscribes to a socialist aim which as the abolition of the wage-system, but even of an organization which adheres to the conservative slogan “a fair day’s pay for a fair day’s work” may in the course of any dispute of consequence become “words, deeds, or writings, likely to disturb the tranquility” of the employing class, their police and their courts.
The right to strike, if at all effectual, must carry with it the corollary right to organize the unorganized and persuade them to join the strike. In this connection, Section 501 of the Code makes it an indictable offence for anyone who “wrongfully and without lawful authority, with a view to compel any other person to abstain from doing anything which he has a lawful right to do, or to do anything from which he has a lawful right to abstain ... (f) besets or watches the house or other place where such other person resides or works or carries on business or happens to be”. If, moreover, the “watching and besetting” amounts to a common-law nuisance, it is within the prohibition of the statute (Section 221) as “an unlawful act or omission to discharge a legal duty, which act or omission endangers the lives, health, property or comfort of the public, or by which the public are obstructed in the exercise or enjoyment of any right common to all his Majesty’s subjects’”. Rennes versus The King, a decision of the Supreme Court of Canada practically decided that “peaceful picketing was without legal sanction, there being no legislation in Canada corresponding to Section 2, subsection of the British Trades Dispute Act of 1906.”
As a “common-law nuisance”, picketing is subject to be restricted by injunction. In Canada Paper vs. Brown, the court declared that “our Criminal Code fully reorganizes the right of a man to carry on his business without interference, let, or hindrance.” Occasionally a court has said “Government by injunction is a thing abhorrent to the law of England and of this province.” But abhorrent or not, the number of injunctions that issue to break strikes is on the increase.
In the Dominion, the unions are subject to the doctrine of the courts that “for a number of persons to combine together to procure others to break contracts is unlawful, and if such others are induced to break and do break, their contracts, this constitutes an actionable wrong” and “the unions will be mulcted in heavy damages”. It is cold comfort for the trade union militant that the law on this subject is in a state of “chaotic uncertainty” and that many of the noble and learned law lords have confessed themselves baffled to draw a definite line between “acts whose real purpose is to advance the defendants’ interests and acts whose real purpose is to injure the plaintiff in his trade.” The British Act of 1906, as an aftermath of the famous Taff-Vale Judgment, and as a result of political pressure, provided that “an act done by a person in contemplation of a trade dispute shall not be actionable on the ground only that it induces some other person to break a contract of employment, or that it is an interference with the trade, business, or employment of some other person ...” A further provision at that time relieved the unions of liability under the doctrine of “civil conspiracy.”
The Criminal Code further makes certain statutory breaches of contract indictable offences. The worker connected with the supply of power, light, gas, water, or railroads who “wilfully breaks any contract made by him” etc., that is who may desire to strike without the preliminaries of notice, negotiation, or “conciliation” is subject to fine or imprisonment.
This bare outline of the legal vulnerability of the trade unions in the Dominion, should indicate how fatal on their part would be a policy of “neutrality”, of indifferently passing by, like the Biblical Levite, on the other side of the road, while the Government is throttling the revolutionary vanguard. The Trades Congress officialdom has on several occasions, under rank and file pressure, made “representations” to the government, for the repeal or “amendment” of the obnoxious sections of the Code. But something more is required than a legal brief, read to a cabinet minister by a bureaucrat deputation. Whatever concessions have been wrung from the capitalist class in the past have been along the way of mass struggle and political action. Unions which abandon their militant functions for defensive or offensive purposes, invite legal and governmental strangulation at the hands of a capitalist class which in the epoch of imperialism can less than ever afford to yield concessions from sheer “liberalism”.
The deep-going economic crisis moist work a molecular radicalization in the ranks of “organized labor”. The Communists should throw overboard the self-stultifying Stalinist approach to the old unions as “social Fascist”. That policy has only succeeded in wreaking the havoc of isolation, at a time when every point of militant support in the mass organizations was necessary in defence of party legality. At that, despite the defeatist attitude to work in the reactionary unions, dozens of the most conservative locals and Trade Councils adopted the resolution circulated for the repeal of Section 98. The past has showed, proved, that where the charters of the A.F. of L. run up against the iron exigencies which impel the masses to action, such charters have the worth of a treaty guaranteeing Belgian neutrality.
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