In the aftermath of the 1919 Winnipeg General Strike, the Conservative government of Sir Robert Borden enacted Section 98 of the Criminal Code. This new law gave the federal government extraordinary powers to combat what it saw as an imminent threat to Canadian society. The law was extremely broad and carried a penalty of up to 20 years in prison. It was used throughout the 1920s and early half of the 1930s to harass Communists, other left parties and organizations, and labour unions generally.
Trade unions, left-wing parties like the Cooperative Commonwealth Federation (CCF) and civil libertarians united to have the law repealed, eventually succeeding in 1936 following the sound defeat of Bennet’s Conservatives. However, the newly elected conservative Union Nationale government of Maurice Duplessis was quick to pick up where his federal predecessors had left off, and passed it’s own anti-communist law the following year.
The Padlock Act (Act Respecting Communistic Propaganda) empowered the attorney general to close (often with a padlock on the door) any building used for propagating “communism or bolshevism” for one year. A judge could order the lock removed if the owner could prove that the building had not been so used during the preceding year. Further, the Act empowered the attorney general to confiscate and destroy any printed matter propagating communism or bolshevism. Anyone printing, publishing or distributing such material could be imprisoned for up to a year, without appeal.
This meant the Premier could close down any house, apartment, or place of business without the necessity of formally laying charges or going to court. Duplessis said this was not necessary because “communism can be felt”.
Ultimately, the government took advantage of these new powers and used the law to persecute anyone whom it and the Premier disliked: Jehovah’s Witnesses, Jews, communists, trade union members and activists, and anyone else it suspected of “subversion”. It used the law to confiscate literature from the Montreal Jewish Cultural Center, Protestant missionary groups, and non-French ethnic clubs. It even sent police to raid the provincial headquarters of the CCF.
This abuse of power made the law a rallying point for civil libertarians. Opponents formed the Canadian Civil Liberties Union a month after it came into force, and it spent most of its efforts attempting to have the federal government disallow the law, or refer it to the Supreme Court for a ruling. Despite this, Mackenzie King and his federal Liberals knew that there was political support for the law in Quebec and did not want to harm its chances in the province.
For the labour movement, the law was a disaster. It outlawed closed shops and allowed the government to change collective agreements at will. In an effort to divide labour’s opposition, the government drove a wedge between international and Catholic trade unions. The Research Director of the Canadian Congress of Labour (and later the Canadian Labour Congress), Eugene Forsey, was a leading critic of the law.
The law remained in effect for 20 years until 1957 when the Supreme Court in 8 to 1 decision struck the law down as unconstitutional because it not only violated the constitutional right to free speech, but also because provincial governments did not have the power to legislate in the field of criminal law.
In the years since, Canada’s unions have stood up for fairness in defence of civil liberties and the rights of workers including, most recently, the Anti-terrorism Acts of 2001 (Bill C-36) and 2015 (Bill C-51). They have also played key roles in upholding the Charter rights of unions and workers, including the right to union activism, the right to bargain collectively and the right to strike. Unions have also succeeded in thwarting attempts by employers to use surveillance cameras, surveillance software, random drug tests and other unfair violations of worker rights.
