Documents of Quebec History / Documents de l'histoire du Quebec
La loi du cadenas
The Padlock Law
Mr. Lapointe and the Padlock
[This text was written by Eugene Forsey. For the full citation, see the end of the document.]
FOR the last few months the Liberal party has been making a great to-do about its devotion to "national unity," "democracy" and "liberty"; and no one has talked bigger on all three than Mr. King and Mr. Lapointe. Their action, or rather lack of action, on the Padlock Act shows just how much all their speeches are worth. When it is a matter of the liberties (and property) of banks, insurance companies and trust companies in Alberta, they are as brave as lions. But when it comes to defending the liberties of ordinary citizens in Quebec, all their courage oozes away. They cannot even muster up enough to announce their decision while Parliament is still in session. The best they can do is to advise the victims to defend themselves. The Government refuses to act, and Mr. Lapointe seeks to justify its refusal on grounds of constitutional principle and precedent, as follows:
First, the practice of "recent decades" discloses a "principle of fairly uniform application . . . a definite reluctance on the part of Ministers of Justice to recommend disallowance of provincial legislation merely on the ground of its being allegedly ultra vires . . . except when such legislation involves: (a) A clear and palpable attempt to invade the legislative field of the Dominion .. . (b) Injurious interference with Dominion property, interests or policies . . . or (c) Conflict with Imperial interests or Dominion treaty obligations." He goes on to cite Mr. Doherty and Mr. Blake to the effect that questions which relate to the enacting power of the legislature may be determined more conveniently by the courts.
"Recent decades" leaves the period to which the Minister is referring conveniently vague, and neatly avoids the fact that since Confederation at least thirty-one Acts have been disallowed solely on the ground of being ultra vires, seventeen of them by Liberal governments. But even so, Mr. Lapointe is not on very safe ground. Sir Wilfrid Laurier's government, of which he was a supporter, disallowed five Acts for this reason alone; one from British Columbia in 1906, three from Saskatchewan in 1909, and one from Quebec (!) in 1910. What is more, the British Columbia Sessional Papers (1921, second session, vol. II, V 25-29) suggest that the British Columbia Act of 1921 (c. 49) disallowed by Mr. Lapointe himself on March 31, 1922, was disallowed solely for this reason, though Mr. Lapointe now says otherwise.
Disallowance was asked precisely on the grounds, among others, that the Padlock Act is "a clear and palpable attempt to invade the field of the Dominion" and to interfere with the Dominion policy embodied in the Act repealing section 98 of the Criminal Code. As the Civil Liberties Union's petition says, "The statements of the Prime Minister of Quebec when the Padlock Act was under discussion in the Legislature (and since) leave no room for doubt that the Act was a deliberate attempt to interfere with the Dominion law and to reimpose restrictions removed by that law." Mr. Duplessis' organ, the Montreal Gazette, has boasted of this as recently as July 1 of this year. To these contentions of the petitioners Mr. Lapointe offers no reply, for the excellent reason that like every other sensible person he knows they are true.
His second reason for refusing to disallow is that the Dominion Government cannot "pass judgment upon the wisdom or propriety of a provincial Act" if the measure is not open to objection on the grounds already indicated.
This again begs the question. But even if it did not, there is ample precedent for disallowance on other grounds altogether. To cite all the cases would be both tedious and superfluous. For there is one conclusive and damning answer to the Minister's case, and within "recent decades" too. Mr. Lapointe is blessed with a conveniently short memory. On October 22, 1922, the Government of which Mr. Lapointe was an influential member disallowed a Nova Scotia Act on the grounds that it was "so extraordinary and opposed to principles of right and justice," "without parallel in the history of Dominion or provincial legislation," that one provison [sic] was "of doubtful interpretation and effect," that it took away "property and rights acquired on the strength of the judgment of the highest court in Canada," and that it removed the case from the courts. But Mr. Lapointe has forgotten all about it.
It is unnecessary to labour the point. Out of his own mouth the Minister has condemned himself. In disallowing five Alberta Acts last summer and this, he gave, among other reasons: (1) vagueness and lack of definition; (2) conflict with Dominion laws; (3) the vesting of arbitrary power in a provincial body; (4) exceeding the powers of the legislature; (5) "unjust" because confiscatory; (6) deliberate attempt to interfere with operation of Dominion laws, especially where the legislature had denied recourse to courts. Mr. King, in a statement on the Alberta Acts, August 17, 1937, was particularly eloquent on this last point : "To take away the right of any citizen of Canada to appeal to the courts of the land against the exercise of arbitrary power is opposed to the whole spirit of our institutions and the liberties we cherish." But Mr. King also is gifted with a short memory, and proof against reminders. In vain the Civil Liberties Union petition quotes his own words to him; in vain it points out that "The right of any citizen to appeal to the courts of the land is not satisfied by the right of the landlord alone to appeal from the arbitrary decision of an executive officer to a single judge of a single court of a single province."
In the case of the last two disallowed Alberta Acts, Mr. Lapointe was so horrified by their "confiscatory" provisions that he took prompt steps to see that they did not come into effect. As a result, no one lost a penny. The Padlock Act provides not only for confiscation but also for destruction of property, and what is more it has actually been applied. Five tenants have been evicted, dispossessed without even being accused of any offence, and (according to Mr. Duplessis' own figures to May 10) 532 books and 6,500 newspapers have been confiscated. What has Mr. Lapointe to say about this? Nothing. Property must be protected; but this was only poor people's property. This, doubtless, is one of those imperishable Liberal principles for which the Prime Minister's grandfather risked his life.
Mr. Lapointe tries to buttress his case with the statement that "the numerous protests against the Act have come almost exclusively from persons in other provinces unaffected by the law," and sneers at "the few gentlemen in Montreal who have petitioned against it." At least 108 organizations in Quebec have protested, including 46 trade union bodies, the Montreal and Ottawa Conference of the United Church, the United and Presbyterian Presbyteries of Montreal, the Montreal Youth Council, the Montreal Ministerial Association, and several women's clubs and student organizations. The names of at least 48 of these organizations are on file in the Minister's office. So is a resolution of protest from a Civil Liberties Union Conference in Montreal early in May, stating the unanimous request of representatives of more than a hundred organizations for disallowance or reference to the Supreme Court. The organizations in question have over 100,000 members, of both races, and all classes and creeds. These are the "few gentlemen."
But what about those last two Alberta Acts? Where did the protests come from in that instance? Here is the Minister's own list: the Canadian Life Insurance Officers' Association, the Dominion Mortgage and Investments Association, the Investment Dealers' Association of Canada, the Edmonton Chamber of Commerce, the Canadian Bankers' Association, the Boards of Trade of Toronto, Winnipeg, Calgary, Lethbridge, Montreal and Three Rivers, the Hamilton Chamber of Commerce, the Board of Regents of Victoria University, the Anglican Diocese of Calgary, and "numerous other corporations and individuals in various parts of Canada, the United States and abroad." But the Minister speaks of those petitioners with the utmost respect and grants their petition in two cases, deferring action in six others.
Mr. Lapointe might reply that in the case of, the Padlock Act the outsiders who protested were unaffected by the law. Even here the facts are against him. A very large number of the outside protests against the Padlock Act came, as the Minister well knows, from trade unions. The trade unions have branches in Quebec, just as the banks, insurance companies and mortgage institutions have in Alberta; and the trade unions know that their offices in Quebec may be closed and their records and literature seized and destroyed whenever the Attorney-General takes it into his head that they are "Communistic." As he has publicly branded the American Newspaper Guild, and the C.I.O. generally, "Communistic," and has instituted raids against a large number of trade unionists and seized records, the threat to the unions is nothing less than a threat of extinction. Is this being unaffected by the law? Another important body of protest from outside the province came from Protestant churches. These bodies also have branches in Quebec. Are they unaffected by the law? Ask the Reverend R. G. Katsunoff or the Grande Ligne missions. Ask the Protestant School commissioners. (See previous Forum articles.)
Mr. Lapointe makes some play with the wholly irrelevant fact that the Padlock Act was passed unanimously by both Houses of the Quebec Legislature. It was. And now we have the provincial Liberal party's betrayal of Liberal principles pleaded by the Dominion Liberal Minister of Justice as a reason why the Dominion Liberals should follow suit. Simple logic!
The Minister's parting shot is to advise the Civil Liberties Union to fight the Act in the courts. It would be interesting to know why he did not give the same advice to the Life Insurance Officers, the Mortgage and Investments Association and the rest three weeks before. Why the discrimination?
Mr. Lapointe is careful to explain why he does not take his own advice and carry the case to the courts himself on a reference. Stern constitutional virtue forbids. He cannot approve of submitting an "abstract question" to the Supreme Court when it is open to private litigants to take a concrete case. He has evidently changed his mind since 1936, when he submitted Mr. Bennett's New Deal Acts. Why not have let private persons test the law in those instances? He was even willing, last August, to submit the three Alberta Acts subsequently disallowed. He has actually submitted three Alberta bills (one of them, like the Padlock Act, an interference with the freedom of the press) which he could perfectly well have allowed to come into force and left it to private litigants to contest.
It was perhaps asking a good deal to expect any Cabinet to disallow an Act which enjoyed the firm (if usually silent) support of Montreal big business, and which had been publicly and ostentatiously blessed by the Quebec hierarchy. In such circumstances only a great statesman will dare to be loyal to his principles; and it has long been evident that as democratic leaders Mr. King and Mr. Lapointe belong to the Plaza Toro school: they lead their regiment from behind, they find it less exciting.
But to grant a reference to the Supreme Court would have been so easy, and so safe. Mr. Lapointe could have pleaded that the constitutional points were, as he says now, "not free from difficulty," and that it was of public interest to have the matter judicially determined without delay and without putting private persons to the expense of fighting the public's battle. He could have claimed that he was taking a middle course, neither disallowing nor refusing to disallow but leaving the courts to decide a legal question. He could have said that he was meting out to Quebec the same treatment given to Alberta (a trifle disingenuous.) He could have said, with truth, that he was not pronouncing on the merits of the case. Armed with such defences he could surely have braved even the thunders of the Cardinal and the hysterical accusations of Dominion tyranny and pro-Communist tendencies which Mr. Duplessis would have hurled at him. He might even have presented some appearance of consistency, some show of loyalty to Liberal principles. In short, politically, a reference would have been comparatively harmless in Quebec and an asset in the rest of Canada.
The opportunity is still open, if only because the Civil Liberties Union may well find, when it takes Mr. Lapointe's advice, that the courts are effectively barred to it. If the Government chooses, it can yet partially redeem its reputation. It is also possible for the Conservative party, which carefully refrained from committing itself on disallowance and has so far refrained from committing itself on reference, to prove its much vaunted devotion to British traditions by supporting a reference now and promising one when it gets into power. It is a forlorn hope, perhaps. But the Padlock Act has been an acid test of the sincerity of the Liberal party. It should also be made the test of the sincerity of the Conservative party. Then perhaps the Canadian people will learn where not to look for genuine and resolute defenders of democracy and liberty.
Source: Eugene FORSEY, "Mr. Lapointe and the Padlock", in Canadian Forum, Vol. XVIII, No 211 (August 1938): 148-150.
© 2004 Claude Bélanger, Marianopolis College