Date Published:
November 2005

Documents of Quebec History / Documents de l'histoire du Québec

La loi du Cadenas

The Padlock Law

Civil Liberties in Quebec

[1937]

[This anonymous text was published in the Canadian Forum in 1937. For the full citation, see the end of the document.]

MR. DUPLESSIS' "Padlock Act", passed just as our last issue went to press, is an incredible document, probably without parallel in the world outside Italy and Germany. Rushed through the legislature at breakneck speed and with the minimum of warning to the public, the Act makes it "illegal for any person who possesses or occupies a house within the province to use it or allow any person to make use of it to propagate Communism or Bolshevism by any means whatsoever"; confers on the Attorney-General power to "order the closing of the house against its use for any purpose whatsoever for a period of not more than one year", if he has what he thinks "satisfactory proof" that the house has been used for "Communistic or Bolshevistic" propaganda; makes it unlawful, under penalty of imprisonment (three to twelve months) "to print, to publish . . . or to distribute in the province any newspaper, periodical, pamphlet, circular, document or writing whatsoever propagating or tending to propagate Communism or Bolshevism"; and empowers any constable, on the authorization of the Attorney-General or his representative, to seize and confiscate such literature, whereupon the Attorney-General may order it to be destroyed.

It will be noted that the Attorney-General can close a house (defined as "any building, shelter, penthouse, shed, or other construction, under whatever name known or designated, attached to the ground or portable, erected or placed above or below ground, permanently or temporarily") or order the seizure and destruction of literature at his own sweet will. He does not have to prove anything before a court. It is only after a house has been padlocked that the unfortunate owner may petition a judge of the Superior Court to have the order revised or cancelled; and the burden of proof is on the owner. If he can show that he did not know that the house was being used for "Communistic or Bolshevistic" propaganda, or show that it was not in fact so used during the twelve months preceding the padlock order, the judge may suspend the order on the owner's furnishing security that the building will not again be used for such purposes. If the owner can prove that the place was not used for such purposes during the preceding year the judge may cancel the order. There is no appeal.

The sweeping and arbitrary powers granted to the Attorney-General, the heavy penalties, the placing of the burden of proof on the accused, the denial of the right of appeal, these in themselves are serious enough threats to the civil liberties of all citizens. But what is far more sinister and menacing is that the Act nowhere defines "Communism" or "Bolshevism", and that this omission is deliberate. When the premier, who is also the attorney-general, was asked to insert a definition he replied that it was unnecessary: "Communism can be felt. . . We shall understand by Communism what everyone understands by Communism . . . Any definition would prevent the application of the law." This is revealing. Still more so are the statements of various members of the Upper House, presumably "the sober second thought" of the province. Sir Thomas Chapais, government leader, followed the premier's example in refusing to insert a definition. "He did not believe in restricting such an evil within a narrow compass." (Whether this is Sir Thomas' own phrase or the reporter's is not clear.) "Communism was a thousand-faced movement, different in Russia from what it was in Spain or Mexico. It was a subtle error, a system which aimed to sap the foundations of society wherever it was preached. It is a doctrine by which private property would be abolished. This is nothing we can put in a bill."

Hon. Jacob Nicol believed it "well to have a definition of Communism, and included therein as Communists could be classed those who daily vilify public men." He favored eliminating Communism and Socialism. Hon. John Hall Kelly "said there might be some difficulty in defining Communism, but not of an insurmountable nature. If a definition could not be found he was ready to pass the bill as it was now. He was ready to have a definition which stated the Communism meant those actions which sap the foundations of the things dear to the province. Perhaps the clergy of the various churches could help with a definition. Personally, he did not know the difference between Communism and Bol­shevism, and perhaps a judge on the bench might prove to know as little."

In plain words, the Act gives the Attorney-General practically a free hand to suppress any opinions he may happen to dislike. Private conversations in private homes might be used as ground for turning people on to the street. So might the possession of any literature of which the Attorney-General disapproved. If the section dealing with papers and pamphlets were strictly enforced, it would prevent the circulation of the Bible ("And all that believed were together, and had all things common") or the early Christian Fathers, the writings of Sir Thomas More (recently canonized by the Roman Catholic Church) or Charles Kingsley.

Indeed, the possibilities are almost limitless. The Attorney-General has given us one display of his psychic powers to "feel" Communism by denouncing as a Communist Alderman Schubert of Montreal, who has again and again opposed the Communists and been opposed by them, and who holds a responsible position under the Collective Labor Agreements Act. This is a very fair sample of the spirit in which the Act is likely to be applied.

So far there has been no overt action under the law. There may not be much in the future. To a large extent it will be unnecessary. The mere threat of padlocking held over the heads of hall owners, or for that matter owners of ordinary houses or apartments, or the proprietors of newsstands, will often be enough to enable the Attorney-General to suppress criticism or opposition of any kind without anyone but the victims knowing anything about it.

What the Attorney-General may do with his new powers we can perhaps surmise from an incident which took place two or three days before the padlock bill was brought down. At two o'clock in the morning provincial police officers suddenly swooped down on the offices of the Montreal Unemployment Relief Commission, and for some time kept out the commissioners and their staff. The only authority they produced for this action was a telegram from the provincial auditor, acting on the instructions of the provincial government. They had no warrant at all. In other words, the whole proceeding was completely and palpably illegal. Two of the com­missioners are General Planet, a high official of the C.P.R., and Colonel Perry, of the Sun Life Assurance Company. If these things are done in the green tree, what shall be done in the dry? If, without any legal power, the provincial government is ready to treat important officers of two of the largest corporations in the country this way, what will it do to ordinary citizens now that it has full powers conferred on it by the legislature?

It may be added that the new Act shows a singular lack of confidence in Quebec juries. The Attorney-General can, whenever he pleases, proceed against "subversive elements" under the sedition section of the Criminal Code. But he evidently prefers not to risk it.

Competent lawyers say that the Act is almost certainly invalid, beyond the powers of the province, a clear attempt to invade the Dominion's field of criminal law. If and when the Attorney-General publicly applies the law it will be, no doubt, fought through the courts, right up to the Privy Council if necessary. Meanwhile, are there no other means of protecting the liberties of Quebec citizens? Yes. Two. In the first place, the Dominion Cabinet, under the Supreme Court Act (R.S.C. 1927, chapter 35, section 55) can refer any Dominion or provincial legislation to the Supreme Court for a test of its validity. Mr. Woodsworth has asked for this and the Minister of Justice has replied that the suggestion "will receive the most serious consideration."

In the second place, there is the Dominion's power to disallow, within one year of its passing, any Act of a provincial legislature. This power has been used about one hundred times. Mr. Lapointe now says, however, (Hansard, March 30, 1937, p. 2473), that "For many years the power of disallowance has not been resorted to by the government of Canada . . . I do not think that in a federation such as this the power of disallowance could be exercised by the central government." This is interesting, especially as coming from Mr. Lapointe. In the years 1922-1924, the Cabinet of which he was a member disallowed four provincial Acts: three in Nova Scotia and one in Alberta. What is more, the last provincial Act to be disallowed, the Alberta Mineral Tax Act, 1924, was disallowed on the advice of none other than the Honorable Ernest Lapointe! (P.C. 701 or 702 — the number is differently given in different state documents — dated April 29, 1924). At that date, the Minister of Justice had evidently not discovered the scruples which now stay his hand. In fact, there is no legal or constitutional reason against disallowance; on the contrary, there is ample precedent for such action. Plenty of provincial Acts have been disallowed on the grounds that they were "beyond the powers of the province", "contrary to Dominion policy" (expressed in this case in the repeal of section 98 of the Criminal Code), and "contrary to reason, justice and natural equity". The Dominion Cabinet can disallow if it wants to. Some timid radicals, to be sure, turn pale at the mere suggestion, fearing that the power might be used to frustrate the intensions of other provincial legislatures bent on doing things which would be altogether praiseworthy. This is quite possible. Any power given to any authority may be used for purposes we disapprove as well as for those we approve. But in the struggle to preserve civil liberties we must make use of every weapon the law allows us. In the United States, the "due process" clause has been shamelessly prostituted for the purposes of repres­sion; but no American liberal would think that sufficient ground for declining to make use of it to protect civil liberties. In the absence, in Canada, of any constitutional guarantees of the rights of the citizen such as are contained in the first ten amendments to the United States Constitution (something which should be attended to in any revision of the B.N.A. Act), it is more than ever necessary to avail ourselves of what meagre possibilities of protection the existing Constitution provides.

Source: "Civil Liberties in Quebec", in Canadian Forum, Vol. XVII, No 196, May 1937, pp. 42-43.