1919 Section 98

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| Copyright Dominique Clément / Clément Consulting

Canada’s modern security apparatus began to take shape soon after the First World War. When the war ended in November 1918, the police force consisted of 303 men. In February 1919, the number of detectives and secret agents was almost doubled, and a system of security files was created (housed in Ottawa). By September 1919, the police force had expanded to reach 1,600. It quickly adopted the use of fingerprinting, one of the weapons deployed by the Canadian state to deal with criminal activity. By 1919, the Canadian Criminal Identification Bureau was collecting and disseminating fingerprints among police forces in cities across the country. And by 1920, the newly formed Royal Canadian Mounted Police (RCMP), a merger of the Royal North-West Mounted Police and the Dominion Police, which was responsible for all federal law enforcement and national security, was regularly exchanging fingerprints with Britain to identify people who were deported for criminal activity. Much of the force’s increased efforts during the post-war period focused on labour and radical organizations. The expanding security apparatus was effective enough to plant an agent (Inspector John Leopold) in the secret meeting of the twenty-two people who founded the Communist Party of Canada in 1921.

Yet another aspect of the emerging security state was the creation of section 98 of the Criminal Code, part of the government’s response to the Winnipeg General Strike of 1919. Under the new section, which remained in force until 1936, any organization that sought to overthrow the state or to bring about economic change through violence became illegal. As the section explained,

“Any association … whose professed purpose … 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 … in order to accomplish such change, or for any other purpose, or which shall by any means persecute or pursue such purpose … or shall so teach, advocate, advise or defend, shall be an unlawful association.”

Section 98 was an unusual law: it did not criminalize an action; rather, it made it illegal simply to belong to a political party. The penalty was up to twenty years in jail. Furthermore, individuals who rented space to members of such an organization were liable for imprisonment or a fine of $5,000. The RCMP could seize without warrant all property suspected of belonging to an illegal organization. The government also removed Section 133 from the Criminal Code, which had provided that a person could not be charged with seditious intent for merely pointing out defects in government or the constitution. In addition, complementary amendments to the Immigration Act created new powers to deport anyone who was not a citizen and to deport individuals advocating the destruction of property or belonging to an organization promoting the overthrow of the government (other amendments dramatically expanded the classes of foreigners who could be excluded). Not to be outdone, the federal government also amended the Naturalization Act  so that it had the power to revoke an individual’s citizenship. These powers were used to suppress political dissent. There had been an average of 1,000 deportations each year from Canada between 1902 and 1928; soon after the amendments, the number of deportations skyrocketed, to 4,025 in 1930 and to nearly 7,000 the following year. In 1931 the leaders of the Communist Party of Canada were placed on trial under Section 98. The trial was a farce. As on historian has suggested,

Assuming that the underlying purpose of the legislation was to prevent revolutionary dogma from developing into revolutionary fact, this particular prosecution was itself unusual, in that there was no evidence to suggest that the particular accused were in the slightest degree capable of accomplishing their Party’s stated goals; nor was there evidence to suggest that they had ever tried. The accused, however criminal their associations and their rhetoric, had by time of trial done rather more violence to the English language than to the Government.

Other legislative changes amplified the state’s authority. Section 133 of the Criminal Code, which had provided that merely pointing out defects in government or the Constitution did not equate with seditious intent, was removed. The Immigration Act was amended to facilitate the deportation of non-citizens who advocated the destruction of property or who belonged to an organization that promoted the overthrow of the government (a move that dramatically expanded the classes of foreigners who could be expelled). Ottawa also amended the Naturalization Act so that it could revoke the citizenship of naturalized Canadians.

The main purpose of these new powers was to suppress political dissent. Between 1902 and 1928, Canada deported an average of 1,000 people each year, but the number of deportations rose after the amendments, skyrocketing to 4,025 in 1930 and over 7,000 in the following two years. And in 1931, the leaders of the Communist Party of Canada were placed on trial under section 98. Tim Buck and his colleagues were found guilty and spent several years in jail. Their convictions effectively confirmed that the Communist Party was banned in Canada – the only democratic country to do so at the time. Within a year, another 1,500 people had been prosecuted, and 355 convicted, for political crimes.

Further Reading

Lambertson, Ross. Repression and Resistance: Canadian Human Rights Activists, 1930-1960. Toronto: University of Toronto Press, 2005.

Molinaro, Dennis. An Exceptional Law: Section 98 and the Emergency State, 1919-1936.  Toronto: University of Toronto, 2017.

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