William Kaplan, 1989
Unidentified member of Jehovah’s Witnesses distributing Awake! in Montreal, December 1946. Public Archives of Canada (PAC/PA-115256).
In July 1940 the government of Canada banned the Jehovah’s Witnesses. Overnight it became illegal to be a member of the sect. The law, passed under the War Measures Act, was vigorously enforced. Beatings, mob action, police persecution, and state prosecution beset the Jehovah’s Witnesses as they ignored the ban and continued to go about their work spreading the word of God.
William Kaplan has made extensive use of documents obtained under the Access to Information Act in Canada, the Freedom of Information Act in the United States, and archival sources such as the records of the Jehovah’s Witnesses and their lawyers. He offers an insightful account of the sect’s struggle for legitimacy and its implications for Canadian society.
The struggle was bitter indeed. Jehovah’s Witness children who refused to sing the national anthem and salute the flag during patriotic exercises in public schools were often expelled from class and, in a few cases, removed from their parents' care and placed in foster homes and juvenile detention centres. Men of military service age who refused to fight spent the war trying to get out of alternative service camps established across Canada for conscientious objectors. Jehovah’s Witnesses spent a good deal of time in the courts during the war years: they challenged government policies with which they disagreed, and were arrested in the hundreds and charged with being members of an illegal group.
Through those years the sect’s one major goal was to convince the government to rescind the ban. Through nation-wide campaigns, hundreds of thousands of Canadians were convinced to sign Jehovah’s Witness petitions calling for a bill of rights. Post-war developments in the province of Quebec gave this objective new urgency as Premier Maurice Duplessis waged his ‘war without mercy’ on the sect. In the end, the Parliament of Canada passed a bill of rights and eventually a charter of rights. Kaplan concludes by placing these developments in their context and considering the important role which the Jehovah’s Witnesses played. Very simply, in their confrontation with the state the Jehovah’s Witnesses did not vindicate established standards for the protection of minority dissent. They helped to create those standards, and these are the standards which Canadians continue to enjoy today.
WILLIAM KAPLAN teaches in the Faculty of Law, University of Ottawa. He is the author of Everything That Floats: Pat Sullivan, Hal Banks, and the Seamen’s Union of Canada and co-editor of Moscow Despatches: Inside Cold War Russia.
‘The question then arose about what to do about Arthur and, by implication, every other Witness child in Hamilton. Judge Burbidge had an answer. “If he has been and is imbibing wrong ideas in his present environment and I include in this not only his home but the school which he attends, the only logical course is to change this environment and give him the opportunity to grow up in conformity with standard ideas and to develop his own convictions without undue pressure.” Burbidge ordered the boy removed from his father’s care and delivered to foster care. Soon enough the same order was made in the cases of six other Hamilton children. Eight of the “Hamilton 26” had now been sentenced to some kind of state care for respectfully refusing to sing the national anthem.’
ISBN 0-8020-5842-6
Acknowledgments
Preface
1. Setting the Stage
History and beliefs
The constitutional framework
2. This Hour of Trial
Declaration of war
Ernest Lapointe, Quebec, and minority dissent
National security
The 1940 general election
The empire in extremis
3. Difficult Days
The ban
Carrying on
Questions and answers
The death of Ernest Lapointe
4. An Illegal Organization
5. Purely a Matter of Discipline
Excursus: the great American flag-salute cases
The flag-salute and Canadian courts
6. Special Consideration
7. For Conscience' Sake
Obtaining release
How Canada compared
8. The Framework of Freedom
The war without mercy
Epilogue
Index
Notes
This book began as independent research during my final year at Osgoode Hall Law School, where Professor Harry Glasbeek, a model teacher and scholar in every respect, was my supervisor. Professor Harry Arthurs encouraged me to expand the study, which I did, under the supervision of Professor Robert Gordon at Stanford Law School. To Professors Glasbeek, Arthurs, and Gordon go my sincere thanks.
At the National Archives of Canada, I was assisted by Robert Hayward, Dan Moore, and David Smith. The late Phyllis Clarke gave me permission to consult the J. L. Cohen Papers. Glen How and John Burns made available without restriction the wartime records of the Jehovah’s Witnesses in Canada. William Monopoli, one-time Director of Legislation and Law Reform, gave me access to the records of the Canadian Bar Association. Judith Nefsky at the Canadian Jewish Congress Archives was helpful, as were the staff at the Queen’s University Archives. W. A. B. Douglas made available certain Department of Defence records that have not been transferred to the National Archives, while J. Paul Lordon removed obstacles barring the way to the papers of the Department of Justice. P. E. J. Banning gave me access to some of the records of the Royal Canadian Mounted Police, and Gene Montgomery assisted me in obtaining copies of records now subject to the control of the Canadian Security Intelligence Service. The Honourable Ian Scott, Attorney General of Ontario, and Richard Chaloner, Deputy Attorney General, gave me unrestricted access to the Ministry of the Attorney General’s Papers at the Ontario Archives, where I was also given much help by Ian Forsyth, A. J. MacDonald, Richard Ramsey, Cathy Sheppard, and Leon S. Warmski. Reg Whitaker provided me with copies of relevant RCMP Security Service bulletins. Mary Dickerson of the Legislative Library, Queen’s Park, was helpful, as was Helen Detwiler, Chair of the Hamilton Board of Education. Professor Sam Walker of the University of Nebraska drew my attention to Canadian documents in the American Civil Liberties Union Papers, and Nancy Bressler, Curator of Public Affairs Papers at Mudd Library, Princeton University, forwarded copies of those documents to me. In June 1984 Bill C-252, An Act to Grant Access to Records of the Special Committee on the Defence of Canada Regulations, was passed. Blaine Thacker, MP, provided some early assistance in this matter, but credit for passage of this private-member’s bill belongs to John Reid, one-time Member of Parliament for Kenora — Rainy River.
A number of friends, family members, and colleagues read all or part of this book, and they too deserve my thanks. Special mention must be given to Carl Baar, Robert Bothwell, Earl Cherniak, Cara Feldman, David Fransen, Jack Granatstein, Norman Hillmer, Paul Marsden, William Pentney, Georgina Pickett, Robert Sharpe, Thomas Socknat, and Heather Williams. My brother Michael Kaplan gave the manuscript his usual thorough review, and his excellent counsel and wise judgment improved the manuscript in many ways. My wife, Susan Krever, not only accompanied me to Stanford, but supported us both while we were there. Her support for this project continued after we left, and she has given great encouragement at every stage. Virgil Duff at the University of Toronto Press is an excellent editor and good friend; to him go my grateful thanks for seeing this book into print. Copy-editor Beverley Beetham Endersby made an important editorial contribution. Any mistakes are my own.
Financial assistance was provided by Stanford University, the Ontario Arts Council, and Deans H. A. Hubbard and D. M. McRae of the Faculty of Law of the University of Ottawa. Lenore Dewan provided excellent secretarial assistance. In due course, interview summaries, correspondence, research materials, notes, and drafts will be deposited at the archives of the University of Toronto.
This book has been published with the help of a grant from the Social Science Federation of Canada, using funds provided by the Social Sciences and Humanities Research Council of Canada.
WK, Ottawa, November 1988
The men and women who lived, fought, and survived the Second World War will soon be gone and with them will go their testimony of the most calamitous and destructive war in human history. They will, however, leave behind a documentary record of the conflict, awesome in its dimensions, compelling in its proof, and rich in its lessons for many generations to come.
In recent years, the nature and the extent of the mistreatment of Japanese residents in Canada and of Japanese Canadians during the Second World War has been well documented. While the received version of events is currently subject to review, what happened to these men, women, and children is a blot on the record of modern Canadian history. Canadians have also learned about their country’s pre-war immigration policy of deliberately refusing entry to Jewish refugees. While no event is comparable to the internment and dispossession of Canada’s Japanese, and while the practices of the Immigration Branch of the Department of Mines and Resources regrettably reflected prevailing attitudes, there is another story from that period that needs to be told. Acting under pressures created by wartime hysteria; considerations of practical federal politics, in particular the real need to keep the province of Quebec in a coalition of national wartime unity; the intolerance of the Roman Catholic hierarchy towards dissident groups; and the happenstance of political cowardice on the part of strategically placed individuals who knew or should have known better, the Canadian government, in July 1940, passed an order-in-council banning the Jehovah’s Witnesses. This ban ranks as the single most serious interference with religious liberties by the state in all of modern Canada’s history. During the life of the ban it became illegal for Jehovah’s Witnesses to worship God as they wished — and the law was vigorously enforced. Beatings, mob action, police persecution, as well as state prosecution, were the order of the day as Jehovah’s Witnesses ignored the ban and continued to go about their work, spreading the word of God. Witness children were exposed as members of an illegal organization because they conscientiously refused to sing the national anthem and salute the British flag. They were expelled from their public schools and, in some cases, removed from the care of their parents and placed in foster homes. Witness men were refused recognition as conscientious objectors and inducted into the military.
While the story of the Second World War ban of Jehovah’s Witnesses in Canada is a tale of Canadians at their worst, it is also one of Canadians at their best. The courage of the Jehovah’s Witnesses who endured repression and fought for what they believed is a testament to the human spirit. But there is more to the story than this. The ban stands, not as an example of official departure from ideal standards of legal protection for dissident groups, but as an important factor in the creation of those standards. The Jehovah’s Witnesses taught the state, and the Canadian people, what the practical content of legal protection for dissenting groups should be. Moreover, the events of the Second World War ban were but a dress rehearsal for post-war persecution of Jehovah’s Witnesses in the province of Quebec. That persecution led to a series of cases that, in the 1940s and 1950s, made their way to the Supreme Court of Canada. They too made an important contribution to Canadian attitudes about civil rights, and they constitute the bedrock of civil-liberties jurisprudence in Canada today. To understand these cases, and to understand the process of constitutional reform that led to the entrenchment of written rights, Canadians need to know more about this episode from their past.
1 The religious sect known as the Jehovah’s Witnesses sprang from the Bible Students movement begun by Charles Taze Russell in the 1870s in Pittsburgh, Pennsylvania. Initially an Adventist, Russell came to reject the Adventist belief that Christ’s Second Coming would be in the flesh, and in about 1875 he published a pamphlet predicting Christ’s invisible return to earth. This doctrine, along with the printed word as the means of communicating it, became the foundation of Witness practice and belief. Russell claimed that Christ would come invisibly to earth in 1914, and the belief that Christ did so has become a fundamental article of faith for Jehovah’s Witnesses. Members of the group also believe that the world will be destroyed, as predicted in the Bible, at Armageddon. The Jehovah’s Witnesses first predicted that Armageddon would arrive in 1925 and later altered the year to 1975. The group now claims that it will come within the lifetime of persons who were alive in 1914.
2 Jehovah’s Witnesses believe that God’s plan for man is revealed in the Bible, through which they interpret all of human history and predict the future. The Bible teaches the faithful how to prepare for Armageddon and how to conduct their lives in order to be saved when that day arrives. In 1881, the Watch Tower Society was established to spread these views, and Russell’s successor, Judge Joseph F. Rutherford, gave the name ‘Jehovah’s Witnesses’ to those Bible Students who were loyal to the Watch Tower Society, later the Watch Tower Bible and Tract Society, God’s instrument of government here on earth. Judge Rutherford was the central figure in early-twentieth-century Witness history, for he was not only the director of the activities of the expanding Watch Tower empire, but also the Jehovah’s Witnesses' guiding theological mind.
3 Born in 1869 in Morgan County, Missouri, Rutherford was introduced to the law as a court stenographer and, like many lawyers of his day, never attended law school, but learned the law as a law-office clerk. In 1892 he was licensed as an attorney. It was customary in Missouri for local lawyers, when the properly appointed judge was away on circuit, to elect one of their number to act as a judge for minor matters. Rutherford was, on four occasions, so chosen, and as a result earned the title judge. The title was more ceremonial than anything else. Rutherford was a lawyer, and under his direction the Jehovah’s Witnesses would not be strangers to the courts.
4 To Jehovah’s Witnesses, the Kingdom of God is not some vague theological hope but a practical reality. God’s Kingdom has spiritually existed since 1914, when Christ returned invisibly to earth, and the Jehovah’s Witnesses are citizens of it. They believe that two worlds exist simultaneously: Satan’s old world, to which the vast majority of humanity belongs, and Jehovah’s new world, to which the Jehovah’s Witnesses, the chosen people of God, belong. Witnesses believe that 144,000 real Christians will eventually dwell with God in Heaven and that the rest of the group will live forever in paradise on earth. However, while awaiting the arrival of God’s Kingdom, which will physically arrive following Armageddon, Jehovah’s Witnesses must live in Satan’s world. They must, for example, pay taxes, but they refuse to vote. Nor will they salute a national flag or serve in any army, except God’s. Their objection is not to bearing arms per se, but to doing so in one of Satan’s armies. When the time comes to fight for God, no Jehovah’s Witness will conscientiously object. Jehovah’s Witnesses, in short, live in this world but are not part of it. They are, as one historian of the group once described them, ‘a nation without a country.’[1] In the result, Witnesses believe that they are not citizens of the country of their birth, or of any country, for their loyalty is directly to God. Their mission, until Armageddon, is to obey his law as set out in the Bible. That law requires them to spread the word of Jehovah, to make God’s word known, before the end comes. The imminence of the end makes the Witness message all the more urgent. As many people as possible must be shown the truth before the world, as we know it, is destroyed.
5 There are two main means of bringing the message to the people: first, by relentless door-to-door canvassing, in the manner of the early apostolic Christians, and second, through the printed word. Each year Jehovah’s Witnesses meet at huge international conventions. Their purpose is to publicize Kingdom tidings and to bring to the attention of truth-seekers the Lord’s message. Convention attendance is one of the highlights of the Witness religious year, equivalent, for example, to the Roman Catholic celebration of the Easter Mass.
6 Bible Students appeared in Canada in the early 1880s and their door-to-door proselytizing enlarged their numbers slowly but surely.[2] From their earliest days in Canada, Jehovah’s Witnesses have not been strangers to controversy, soon coming into conflict with both secular and ecclesiastical authorities. It was not Jehovah’s Witnesses' persistence in getting their message across that led to their problems with the law. It was their message itself that caused trouble. The Jehovah’s Witnesses are an intolerant group, believing that theirs is the only truth. While Witness literature of the 1920s, 1930s, and 1940s affirms that the group was ‘devoted to the principles of justice, truth, equity and kindness as exemplified in the acts and sayings of the Creator of the Universe and of His King, Christ Jesus,’[3] the record does not bear out this claim. Their intolerance for all other religions is expressed in bitter attacks on other faiths, in particular on Roman Catholicism.
7 Throughout human history, according to the Witness interpretation of events, Satan has been locked in battle with God, from the instigation of Adam’s eating of the forbidden fruit to the murder of Christ. The battle continues and the presence of Satan explains, to Jehovah’s Witnesses, not only the persecution that they must undergo as a result of their faith, but the contemporary condition of mankind. What other reason could there be for the tremendous increase in crime, death, disease, warfare, debauchery, juvenile delinquency, and immorality? Satan’s earthly instrument for this activity is, the Witnesses believe, the Church of Rome. Simply put, Roman Catholics are not Christians. The Witnesses are the only true followers of Christ. In bringing this message to Roman Catholics and other ‘non-Christians,’ Witnesses claim to demonstrate ‘true Christianity’ by helping their neighbours and brothers and sisters who are being deceived by false doctrine.[4]
8 Jehovah’s Witnesses hold that a period of pure religion followed the death of Christ and that Satan was powerless to confront it. In order to counteract the growing influence and power of those being brought to Christ, Satan devised a plan to defeat the early Christians.[5]
9 Satan saw that it would be profitable to his scheme to have the Christians become more popular; therefore the Christian religion became ostensibly the religion of the wicked world. The Devil thereafter planted amongst the Christians ambitious men, those who had a desire to shine amongst themselves and who in the course of time had themselves appointed or elected to the positions of bishops and chief elders; and in due time there was established a clergy class, as distinguished from the common people. The clergy thus organized introduced into the church false doctrines taught by heathen philosophers, which of course were the Devil’s own doctrines. These were used to corrupt the message of the Lord God. The clergy and the rulers in the church then established theological schools wherein men were trained for the clergy for the purpose of carrying on the work of their system already organized and in operation. In due course statements of belief, or creeds, were formulated and presented to the professed Christians and anyone who taught contrary to these creeds was considered a heretic and was dealt with accordingly.
10 False doctrines were freely introduced and substituted for the truth. Amongst these were and are the doctrines of the trinity, immortality of all souls, eternal torture of the wicked, the divine right of the clergy and the divine right of the kings to rule. In the course of time, Mary, the mother of the child Jesus, was deified; and the people were called upon to worship her as the mother of God. Satan’s purpose in all this, of course, was to turn the minds of the people away from Jehovah. Crucifixes were erected, and the worship of the people was turned to these rather than to let them intelligently worship the Lord Jehovah and the Lord Jesus Christ. Beads, so-called ‘holy water,’ and like things were used and are still used, to blind the people. Gradually, seductively, subtly and wickedly the Devil, through willing instruments, corrupted those who called themselves Christians.[6]
11 Satan had thus been able to turn Christians into Satanists through the Roman Catholic church. Catholics secularized Christ while the Pope served as Satan’s representative. Over time there were challenges to Satan’s rule by real God-fearing men, such as Wycliffe and Luther. But it was not long before Satan penetrated the new Protestant denominations and brought them into his earthly fold. The rise of the Jehovah’s Witnesses again challenged Satan’s hegemony over mankind, and with a predictable result. Satan turned his earthly organizations against these real Christians in an attempt to destroy them. Indeed, the Jehovah’s Witnesses believe that the greater the opposition to their work the closer they are to the Great Battle of Armageddon and the ‘vindication of His name.’[7] Governments and other human-made institutions were among Satan’s soldiers in his battle against the real servants of Christ, but the general in this war was the pope of the Roman Catholic church.
12 In all of this, ordinary Roman Catholics were not to blame, for they had been duped. Nevertheless many Roman Catholics did not appreciate being stopped on the way to Mass and informed they were on the ‘Devil’s team.’ It was, Witnesses said, the church leadership, the hierarchy, who bore responsibility for humankind’s ills, for they had created religion, and religion, to use the Jehovah’s Witnesses' memorable phrase, was ‘a racket.’ According to Judge Rutherford, whose writings crystallized Witness theology in respect of Catholicism, ‘the Roman Catholic hierarchy is a selfish and devilish organization, operating under the misleading title of “Christian religion,” and desperately attempting to gain control over all the peoples of the earth in order to satisfy its selfish and ambitious desires.’[8] The Roman Catholic hierarchy aligned itself with political and industrial leaders to serve Satan’s ends, the foremost of which was the destruction of the Jehovah’s Witnesses.[9] Witnesses had no intention of allowing this Satanic conspiracy to stand in their way, for they had a job to do: to proclaim the word of God before it was too late.
13 During the First World War, two Witness publications were outlawed under Canadian censorship regulations because of their attacks on organized religion in general, and Roman Catholicism in particular. However, Canadian Jehovah’s Witnesses were not the only ones to attract the attention of the authorities. Judge Rutherford found that the publication that so exercised officials in Canada, The Finished Mystery, had exactly the same effect in the United States. Equally disturbing to American authorities were some of the Witness teachings about war. ‘Nowhere in the New Testament is Patriotism (a narrow-minded hatred of other peoples) encouraged,’ The Finished Mystery said. ‘Everywhere and always murder in its every form is forbidden; and yet, under the guise of Patriotism the civil governments of earth demand of peace-loving men the sacrifice of themselves and their loved ones and the butchery of their fellows, and hail it as a duty demanded by the laws of heaven.’[10] While Canada merely censored the literature, the United States brought Judge Rutherford and some other Witness leaders to trial.
14 The United States Espionage Act[11] made it an offence to make false statements that would impede the success of American military forces; cause insubordination, disloyalty, or mutiny within the military; or obstruct the draft. It was this act that Rutherford and the others were charged with violating.[12] There were a number of difficulties with the case, the main one being that the book was published before the Espionage Act was passed. But the district attorney in charge of the prosecution argued that it was distribution, not publication, that counted, and that the defendants had continued to distribute the book long after its contents had become illegal. The jurors agreed, and Rutherford and the others were sent to jail. Before he sentenced them, however, the presiding judge made some intemperate remarks, with the result that, a year later, the conviction was reversed on appeal. By that time the war was over, and the Department of Justice had decided not to reprosecute. When Rutherford was released he doubled his proselytizing campaign. Cars and trucks wired to broadcast sound and radio programs were just two of the new means of communication the Jehovah’s Witnesses now employed.
15 While the means of preaching Witness gospel changed with the times, the basic message of the group remained the same. Soon Jehovah’s Witnesses in the United States were being arrested. The first arrest, in 1928, was for house-to-house preaching, their preferred method of spreading the good news. In 1936 more than a thousand of them were charged with sundry offences, including violating sabbath blue laws, selling literature without a licence, and disturbing the peace.[13] The Witness radio station, WBBR NY, was effectively closed down as affiliate stations dropped Witness programs. The Jehovah’s Witnesses responded with petitions to Congress, three between 1933 and 1936, signed by almost five million people in all. But this activity was to no avail.
16 The situation in Canada closely paralleled that in the United States. Witness leaders were not brought to trial during the First World War, but many experienced legal difficulties over outlawed publications and conscientious objection to military service. After the war, Jehovah’s Witnesses increased their efforts to spread the word, as wartime ‘persecution’ was seen as just one more sign of the approaching end of humankind. With Armageddon around the corner, they took to the airwaves to reach more people with their important information, using their own radio stations and time purchased from commercial stations. Undoubtedly, some Canadians enjoyed having the Witness message broadcast directly into their homes. Those who did not made their concerns known and, by March 1928, P. J. Arthur Cardin, the minister of marine and fisheries, who was responsible for the regulation of radio transmission in Canada, decided to close down the Witness stations. It was the same old complaint: ‘Evidence would appear to show,’ Cardin told the House of Commons, ‘that the tone of the preaching seems to be that all organized churches are corrupt and in alliance with unrighteous forces, that the entire system of society is wrong and that all governments are to be condemned.’[14]
17 As in the United States, Jehovah’s Witnesses in Canada began a petition campaign when they were taken off the air and, in a nationwide drive, convinced 450,000 Canadians to subscribe. In Parliament J. S. Woodsworth, the Methodist minister filled with the spirit of the Social Gospel and leader of the Co-operative Commonwealth Federation (CCF), raised the Witness complaint; when the government tabled the evidence in favour of its decision it was clear that the justification for the action was very weak. But the decision stood. For a while, the Jehovah’s Witnesses remained on the air, using time purchased from other stations. However, on 18 January 1933, Hector Charlesworth, the newly appointed chairman of the recently established Canadian Radio Broadcasting Commission, instructed radio stations across the country to censor Witness transmissions: ‘Speeches of one Judge Rutherford, foreign anti-social agitator must not be broadcast on Canadian stations until the continuity or records of same are submitted to the Canadian Radio Broadcasting Commission for approval.’[15]
18 Another petition drive was begun, but in the end, the censorship decision was not reversed, and the Jehovah’s Witnesses, refusing to comply, were taken off the air. In fighting the government decisions taking away their broadcast licences and imposing censorship on Judge Rutherford, the Jehovah’s Witnesses brought their cause, freedom of speech, to the attention of tens of thousands of Canadians who might never otherwise have been aware of their religious broadcasts.
19 The end of religious broadcasting for the Jehovah’s Witnesses in Canada did not end their preaching work. Sound cars, trucks, and, to reach remote communities along the St Lawrence River in Quebec, boats were used, but technological innovation in the mid-1930s pointed to a new means of spreading Judge Rutherford’s word — the portable phonograph. By 1935, 35,000 of these contraptions had been distributed to individual Jehovah’s Witnesses throughout Canada and the United States, and the Watch Tower Society was issuing approximately 300,000 records a year. If the message could not be beamed through the airwaves to American and Canadian homes it would be brought directly to the front door.[16]
20 The number of Jehovah’s Witnesses in Canada continued to grow in the 1930s. While some Canadians sought solace during the Depression in radical political philosophies of the right and left, others turned to God for salvation. In western Canada, the economic decline was accompanied by an agricultural one, and Jehovah’s Witnesses with answers to all the problems that beset humanity were listened to with new attention. Whereas there were almost no Jehovah’s Witnesses in Canada at the turn of the century, there were approximately two thousand in the mid-1930s. By the start of the Second World War this figure had doubled.[17] And as the number of Jehovah’s Witnesses grew, so too did their arrests, especially in Quebec.
21 Witness attacks on organized religion and Roman Catholicism were not ignored as criminal and other charges were often filed.[18] One of the first cases came to court in 1925 when a Jehovah’s Witness named Kinler was charged with blasphemous libel under section 198 of the Criminal Code. Kinler had been caught distributing a pamphlet that denounced the Roman Catholic church. The presiding magistrate dismissed the charge. As distasteful as the judge found the tract, he could see nothing in it that attacked God.[19] In the 1930s, when more and more Jehovah’s Witnesses made their way to Quebec, this decision presented a stumbling-block to crown prosecutors, forcing them to shift their line of attack. Instead of charging the Jehovah’s Witnesses with blasphemous libel, obviously a difficult charge to prove, the crown charged them with seditious libel under section 133 of the Criminal Code.[20]
22 Canada’s Criminal Code did not define sedition. Accordingly, the common law and the treatises had to be examined. Seditious language was viewed by the courts and described by the textbooks as consisting of almost any ‘acts, words or writings intended or calculated to disturb the tranquillity of the State, by creating ill-will, discontent, disaffection, hatred or contempt towards … the established institutions of the country or by exciting ill-will between different classes of the King’s subjects.’[21] Almost anything could fall within the wide wording of this definition; certainly attacks on the Roman Catholic church in the predominately Roman Catholic province of Quebec could not help but disturb local peace. The Criminal Code did provide a statutory defence, however, to a sedition charge. Section 133A declared that good-faith criticism was, in certain circumstances, a defence to those charged with the sedition offence.[22]
23 Jehovah’s Witnesses charged under section 133 were regularly convicted, but it was not until 1938 that the Quebec Court of Appeal, called the King’s Bench, had the opportunity to give its imprimatur to the wide definition of sedition that had made its way into the law. In that year, the appeal court upheld one of the convictions. In light of the common-law definition, the court found that a conviction of the accused was a proper finding of the jury. Leave to appeal to the Supreme Court of Canada was refused.[23] Since it did not take much to convince a French-speaking Roman Catholic jury that the intemperate Witness literature caused disaffection among subjects, convictions for sedition became increasingly commonplace.
24 A related case, also heard by the Quebec Court of Appeal in 1938, upheld the decision of a trial judge denying counsel for the defence permission to cross-examine a priest called as a witness for the crown about the contents of a book entitled Why I Am Not a Protestant, written by another priest. The defence counsel, R. L. Calder, was attempting to show that in attacking the Roman Catholic faith, Jehovah’s Witnesses were doing nothing more than some Roman Catholics who attacked the Protestant faith. The attempt failed and again a court of appeal unanimously agreed that it should.[24]
25 Quebec courts could not but have been aware that at least some of the Jehovah’s Witnesses' activities were deliberately calculated to provoke an angry response. There were, for example, no Jehovah’s Witnesses in Quebec City in 1933, and a decision was made to remedy this situation. A convoy of 40 cars was organized, transporting more than 150 Jehovah’s Witnesses from Toronto and Montreal ‘determined to swoop down on Quebec City like a plague of evangelistic locusts.’[25] The convoy arrived in Quebec at the same time that 47 bishops and archbishops gathered for a plenary session of the Canadian episcopacy. The conclusion is inescapable that the Jehovah’s Witnesses had carefully timed the ‘attack.’ Roman Catholics could not help but see the Jehovah’s Witnesses as enemies of the faith.
26 By their conduct the Jehovah’s Witnesses raised a difficult question: When is free speech no longer the expression of a conscientiously held view but an incitement to violence? In confronting the Roman Catholic church, the Jehovah’s Witnesses were attacking something most Quebeckers held dear. And as more and more Jehovah’s Witnesses were arrested in the 1930s, the literature of the group became increasingly intemperate. The Jehovah’s Witnesses blamed the Roman Catholic hierarchy for the ‘persecution’ they were forced to endure, and the church was portrayed in insulting terms in their literature. Consolation, a new Jehovah’s Witness magazine, contained cartoons depicting priests as fat pigs, and the pope as a whore. In publishing materials of this kind the Jehovah’s Witnesses claimed that they were exercising their right of free speech. However, in Canada, unlike the United States, there was no written bill of rights.
1 The British North America Act (BNA Act), Canada’s constitution, was passed by the Imperial Parliament at Westminster in 1867. It divided legislative authority between the federal state and each of the provinces. The chief architect of the BNA Act was Sir John A. Macdonald, a gifted lawyer who became Canada’s first prime minister. Macdonald was convinced that the powers given to the states under the American Constitution were excessive and, as such, were among the key sources of political instability that had led to the American Civil War. He was determined that Canada not make this same mistake; thus, when the BNA Act was passed, it was the federal state, not the provinces, that was given the balance of power. The Parliament of Canada was given the right to legislate in a number of specific areas, such as national defence and criminal law, as well as the right to pass acts for the peace, order, and good government of the nation. The provinces were given a list of subjects over which they alone could legislate, as well as the general power to legislate in areas of a purely local and private concern. Civil rights was one such area and what that term meant at Confederation was the private law governing relationships between individuals, for example, contracts, not the law governing the relationship between the individual and government.
2 In the same way that the American constitutional division of powers influenced John A. Macdonald and the other Fathers of Confederation, so too did the American Bill of Rights. The American Bill of Rights was, as it remains, a series of amendments to the U.S. Constitution. The first ten amendments were adopted by the House of Representatives in 1789 and approved by Congress in 1791. Subsequently they were ratified by all the American states. Of the first ten amendments, undoubtedly the most important is the first, which begins: ‘Congress shall make no law respecting an establishment of religion.’ Freedom of religion was important to the early Americans, since it was one of the reasons they had settled in the New World. While the early Americans did not always practise what they preached, the importance of freedom of religion in the new society is reflected in the fact that its protection came first. Other rights protected in the American Constitution included free speech and assembly, the right to be secure against unreasonable search and seizure, the right to a speedy and public trial by an impartial jury, and the right to counsel.
3 In the years immediately following the American Civil War three new rights were added to the list. The first abolished slavery and gave Congress the power to enforce that abolition with legislation. The second guaranteed all Americans equal protection under the law. The third enshrined the right of all Americans to vote, irrespective of race or colour. Entrenchment of all these rights in the American Constitution marked a departure from the British tradition, which gives to Parliament complete and unfettered legislative power. The BNA Act contained clauses protecting some pre-existing rights, such as the use of English and French in the Parliament of Canada and in the National Assembly in Quebec, as well as the right to use either language in the courts of Canada and the courts of Quebec. The act required annual sessions of Parliament, elections every five years, an independent judiciary, and separate schools for certain sectarian minorities. But it contained nothing at all like those things guaranteed in the American Bill of Rights. Canada’s heritage was unmistakably and deliberately British, which meant that Parliament, constitutional conventions, along with certain ancient British enactments, the common law, the rule of law, and the courts would be the guardians of freedoms. Canadians had rights — mostly unwritten ones — whose practical content would be determined only as minority and dissident groups challenged the status quo. In claiming a right to distribute their literature, the Jehovah’s Witnesses, especially in Quebec, were trying to push freedom of speech to new limits. The result of the attempt was not recognition of such a right, but the official suppression of the sect in the early days of the Second World War.
1 In September 1939, the Canadian cabinet met and declared that a state of war had existed between Canada and Germany since 25 August (the day on which Germany and the Soviet Union signed a treaty of non-aggression and friendship). On 3 September, England and France declared war on Germany. The Parliament of Canada was summoned to meet on 7 September. Canada would not go to war over Poland, which Germany and the Soviet Union divided between themselves; it would, however, stand at Britain’s side.[26]
2 ‘As you are only too well aware, all efforts to maintain the peace of Europe have failed,’ began the bleak speech from the throne on 7 September 1939. ‘You have been summoned at the earliest moment in order that the government may seek authority for the measures necessary for the defence of Canada, and for co-operation in the determined effort which is being made to resist further aggression.’ The militia, the naval service, and the air force were already on active service. Provision had been made for coastal defence and internal security under the War Measures Act[27] and other existing legislation. Proposals for further action would be brought before the House of Commons, which would also be asked to consider and approve estimates for expenditures related to the war. ‘My ministers are convinced,’ the governor general’s speech concluded, ‘that Canada is prepared to unite in a national effort to defend to the utmost liberties and institutions which are a common heritage.’[28]
3 The big issue for Prime Minister Mackenzie King and the Liberal party was national unity, which meant one thing: reconciling the apparently irreconcilable views of English and French Canada. There was no question about how English Canada viewed participation in the war. Canada was a part of the British Empire and its place was at Britain’s side. French Canada, although not opposed to the war, was dead set against conscription. For the country to stay united the government had no choice but to fully commit itself to the war effort while at the same time pledging not to introduce compulsory military service. Only this contradictory compromise could keep Canada at peace in the midst of war.
4 Prime Minister King, in his address in reply to the speech from the throne, promised that conscription would not be introduced, but in this hour of peril, French Canadians called upon Ernest Lapointe, their undisputed leader in Ottawa, for assurance. Lapointe figures prominently in the events that follow; as minister of justice he was the architect of Canada’s wartime security policy. It was Lapointe who made the decision to declare the Jehovah’s Witnesses, along with numerous other groups, an illegal organization. The ‘rights’ of the Jehovah’s Witnesses and the members of the other banned groups were irrelevant when weighed against national unity. Indeed, insofar as civil rights and liberties were concerned the minister of justice followed a long-established practice of subordinating the interests of minorities to those of the English and French majorities. The national interest, Lapointe had long believed, demanded no less. And the arrival of the Second World War did nothing to change that belief.
1 A lawyer from the small Quebec village of St Eloi, Lapointe was born on 6 October 1876, a farmer’s son. After attending seminary in Rimouski he went on to study law at Université Laval. At age twenty-two he was called to the bar, and six years later, in 1904, he entered the House of Commons as the member from Kamouraska. In 1919 he moved to Quebec City and in a by-election, won Quebec East, the seat previously held by Sir Wilfrid Laurier. In Parliament, Lapointe, a tall, heavy-set man with spectacles and a quick wit, established himself as an impressive debater and one of the House’s finest speakers in both English and French.[29]
2 Lapointe believed that Quebec-based nationalism was a threat to the continued influence of French Canadians on the federal scene. The controversy over the Naval Services Bill of 1910, and the conscription crisis of the First World War convinced Lapointe that French-Canadian interests were best served by having a strong French-Canadian contingent in the federal government. An early proponent of bilingualism in the federal civil service, Lapointe held the traditional view of what the Liberal party was and could be: a broadly based political movement drawing support from all classes of society, from Canadians from all walks of life.
3 As the leading French-Canadian member of that party, however, Lapointe was in a particularly difficult position. On the one hand he had to meet and counter the arguments and militancy of a growing band of French-Canadian nationalists, and on the other he had to advance French-Canadian interests, including the interests of the Roman Catholic church, in the face of English-Canadian resistance. Separate schools, for example, were an issue in Lapointe’s day, as they are today. Lapointe, a staunch, observant, and pious Roman Catholic, was naturally and frequently contacted by members of the Catholic hierarchy when they felt that government activities or policies threatened the interests of the church. In negotiating a middle course between his responsibility to his Catholic constituents and his concern for national unity, Lapointe sought balance through a kind of piecemeal approach, fostered by his belief that militant stridency in pursuit of minority rights was likely to be less effective and possibly harmful and divisive in the Canadian federal state. Consequently, he emphasized moral suasion in his defence of minority rights.[30] The Liberal party came closest to embracing this view and, thus, was the party of French Canadians. In it Ernest Lapointe found a home, and a leader with whom he created a political partnership unparalleled in Canadian history.
4 That leader was Mackenzie King. At the 1919 Liberal-party convention that made King leader, Lapointe, who may have considered running himself, threw his support to King. In return, he became King’s partner in government and uncontested leader of the Quebec branch of the Liberal party. Lapointe led the government in Parliament in 1925 after the general election left King temporarily without a seat (the prime minister had been personally defeated in the general election), and demonstrated both loyalty and ability. He was indisputably the senior French-Canadian politician of his day, so much so that for many years King counted little in the political life of Quebec.[31] Even during the short-lived administration of Conservative prime minister R. B. Bennett (1930–5), Lapointe maintained his position as the spokesman for French Canada in Ottawa. Not one of the Conservative members from Quebec came close to matching Lapointe in stature and prestige.[32]
5 Appointed minister of justice following the 1935 general election, Lapointe was required to execute one of the most contentious Liberal election promises: repeal of section 98 of the Criminal Code. Initially passed as an order-in-council during the First World War, and later adopted by Parliament as an amendment to the criminal law, section 98 declared that it was an offence to be a member of an unlawful organization, which was defined to include organizations that advocated governmental, industrial, or economic change by use of force, violence, or physical injury to persons or property. This definition, a clear reference to the platform of the International, the world-wide communist organization based in Moscow and charged with directing revolutionary movements overseas, left no question about which political movement the government intended to outlaw: the Communist Party of Canada.
6 Some communist leaders and functionaries were charged with breach of section 98, convicted, and sent to jail. But the section itself failed to achieve its desired result, as the 1920s and 1930s were the period of the Communist party’s greatest growth. And it is a fact that the widely worded provision, not to mention an apparent murder attempt on Tim Buck, the leader of the Communist party who had been incarcerated in a federal penitentiary, acted as a magnet, drawing criticism from Canadians concerned about the threat to freedom posed by section 98. For this reason the Liberals promised to repeal the section if they were elected to office. They were and they did.
7 As Lapointe explained to the House of Commons during the debate following second reading of his Criminal Code amendment bill on 19 June 1936, section 98 was wrong. Canadians had, he declared, the right to be free in their own homes, free from the intervention of the authorities unless that intervention was conducted under due process of law. For that freedom to be meaningful it had to apply to all Canadians, even communists. The minister of justice was not just a Liberal, but also, it appeared, a liberal. Repeal of section 98, Lapointe continued, should not be seen as an endorsement of the Communist party. Like most French, and English, Canadians of the day, Lapointe hated communists, viewing their atheism and anti-clericalism as a personal anathema and their subservience to the Soviet Union and its social and economic policies as a threat to the fragile balance of unity and prosperity the Liberal party was seeking to bring about. ‘But,’ as he told the House of Commons in a classical expression of Canadian liberalism, ‘I want to fight them in a successful way, and I believe the way to fight them successfully is by argument, by attempting to have social justice everywhere and sound policies of administration.’[33] Peace, prosperity, decent living conditions, and religious and moral ideals were far stronger weapons in the fight against communism than concentration camps, arbitrary imprisonment, and oppressive laws. Communism, Lapointe continued, could only implant itself in Canada if Canadians failed to give their institutions a spirit of social economy and political justice. Lapointe was opposed to totalitarian ideologies of both the left and the right, but he wanted to fight for social justice with words and deeds, not with bad laws.[34] His stirring arguments and clarion call for freedom carried the day; with the support of the members of the CCF, section 98 was repealed.[35]
8 Lapointe’s speech suggested a deep-seated commitment not just to liberalism, but to the even-handed principles of British justice and to the rule of law. It also suggested a new regime of tolerance for minority dissent. His commitment was tested in less than one year by the 1937 Oshawa strike. When Lapointe acceded to a request from Ontario premier Mitchell Hepburn for the Royal Canadian Mounted Police (RCMP) to suppress the strike, that commitment was found wanting. In fact, it was not a belief of liberalism that motivated Lapointe, rather it was his commitment to the Roman Catholic church. He saw the Oshawa strike, which was led by the American Congress of Industrial Organizations, as the cutting edge of an attempt by the American international-union movement to monopolize Canadian labour affairs, a situation that would lead to the destruction of Catholic unions in Quebec.
9 Very simply, Lapointe perceived a challenge to the established order, in particular, to the hegemony of the church in Quebec. His response was to align himself squarely with the ecclesiastical interest, and he called to its service the legal and coercive might of the state. That Lapointe’s liberalism extended no farther than words was made evident in his subsequent handling of requests for the disallowance of the Padlock Act, Quebec’s version of section 98.
10 In no part of Canada was communism more feared than in the predominantly French-speaking and Roman Catholic province of Quebec. Pope Pius XI condemned communism as the destroyer of the family and society. At the heart of Roman Catholic objections to communism is its atheism, and the terms ‘communist’ and ‘atheist’ were, in the 1930s and 1940s, used almost interchangeably by church leaders. It was a widely held belief among the people of Quebec that the atheistic communists were intent on destroying not only the traditional French-Canadian way of life, but Catholicism itself. The fact that most communist activists in Quebec were not of French-Canadian descent served to further emphasize the alien character of the movement.
11 The Padlock Act was introduced by the government of Premier Maurice Duplessis, which came to power on 17 August 1936. It authorized the attorney general of Quebec, a post that Duplessis retained for himself, to close down (the words ‘padlock’ and ‘lock’ were not used in the act) for twelve months any building used for the composition or dissemination of communist or bolshevist propaganda. The terms ‘communist’ and ‘bolshevist’ were left for the attorney general to define. There was no provision for judicial or other review of the attorney general’s decision, and the owner of the ‘padlocked’ property was left with only limited means of redress. He could go to the superior court of the province and try to show that he was ignorant of the use to which the property had been put. The court was empowered to order removal of the ‘padlock’ if satisfied that the owner had, in effect, proved his innocence. However, even where an owner successfully proved such ignorance to the court, he was required by the legislation to post a bond, which would be forfeited should the attorney general ever order the building closed again. There was no provision in the legislation for appeal to a higher court from this decision.
12 The Padlock Act also gave the attorney general wide power to seize, confiscate, and destroy any papers or documents that he deemed ‘communistic,’ a provision under which there was not even a limited right of appeal. Searches could be conducted and premises ‘padlocked’ without a warrant: all that was required was that the attorney general state his opinion that ‘communistic’ documents were to be found at a certain place or that such place was being used to advance communism. A collateral provision gave the attorney general the right to prosecute persons who printed ‘communistic’ literature. The penalty could be a fine, a prison term, or both.
13 The potential for executive abuse of the legislation, not to mention the threat to freedom of expression that the broadly worded measure posed, was self-evident, and the law led directly to the formation, in Montreal in 1938, of the first civil-liberties association in Canada, the Canadian Civil Liberties Union (CCLU). Quebec was, in fact, becoming an increasingly illiberal society with more and more power being concentrated in the hands of the executive, specifically meaning Premier Maurice Duplessis, a populist lawyer from Trois-Rivières who was first elected to office in 1927. Duplessis had come to power with the help of others dissatisfied with the administration of arch-conservative although officially Liberal premier Louis-Alexandre Taschereau, Duplessis used his party to get control of a movement that, in turn, became a party known as the Union Nationale. The 1936 election was a tremendous victory for Duplessis and his new party. As it would turn out, the lusty and alcoholic premier accomplished little in his first term in office, but he would return. And one of his few accomplishments, if one can call it that, was the passage of the Padlock Act, the very act that the CCLU had been organized to fight.
14 The main activity of the CCLU in its early years was making attempt after attempt to challenge in various courts the constitutionality of the Padlock Act. There were more than enough cases to choose from: between the beginning of November 1937 and the end of January 1938 the Padlock Act was applied fifty times in Quebec.[36] Communists, socialists, and radicals of indeterminate leftist hue were all among its early victims as the Quebec police, on orders of premier and attorney general Maurice Duplessis, launched an aggressive campaign to suppress real and, in some cases, imagined communist activists.
15 There was a serious problem in challenging the law. The Quebec rules of civil procedure, the rules that regulate the operation of the courts, provided that legal proceedings could not be instituted against any officer of the administration or of the police over action taken in enforcing the law. The issue, therefore, was whom to sue. The answer was that there was no one. The law could be challenged only on constitutional grounds. Although constitutional legal challenges of legislation were hardly in vogue, the Padlock Act was so challenged, but the Quebec Superior Court, and later Quebec’s court of appeal, the Court of King’s Bench, upheld the provision, leading the CCLU to call for a constitutional amendment to the BNA Act and entrenchment of a Canadian bill of rights.[37] In making this demand the CCLU was not breaking new ground; the government of Canada was already considering the matter.
16 A senior Canadian diplomat and later minister to Washington, Loring Christie, prepared a memorandum on this subject in late December 1937, stating that two preliminary questions needed to be addressed. The first was whether Canada wished to have a bill of rights passed beyond its shores by a non-Canadian body. The point Christie was making was that Canada was not yet constitutional master in its own house: Britain was. If Canada wished to incorporate civil rights, like those provided for in the American Bill of Rights, into the BNA Act, it would have to ask the Parliament at Westminster to do it. This issue led to the second question, whether Canada should defer the matter until it had full constitutional sovereignty, including elimination of appeal to the Judicial Committee of the Privy Council. Although Canada had a supreme court, there was, in the late 1930s, as there would be until 1949, a final right of appeal to the Judicial Committee of the Privy Council (JCPC), composed of English law lords assembled to hear colonial appeals.
17 Another concern Christie raised, and one that remains timely, was whether Canada wished to have appointed judges determine the content and meaning of a bill of rights, assuming that one was enacted. Were not the rights and liberties of the people a matter for Parliament to decide? Perhaps a middle ground was in order, with Parliament passing an ordinary, in contrast to a constitutional, act. Mackenzie King knew that constitutional reform promised more problems than solutions, and Christie’s memorandum was left to gather dust in a file. In the meantime, the CCLU continued with its work.[38]
18 As well as challenging the Padlock Act in the courts, the CCLU asked the federal government to disallow the law, directing such representations to the minister of justice. Under the BNA Act, provincial legislation must promptly be sent to the governor general who, in council, may within one year of receipt disallow it. By the mid-1930s more than one hundred provincial acts had already been disallowed by the federal cabinet, and although disallowance was quickly falling into disuse, the federal government was not unwilling to use the procedure if the circumstances and the legislation demanded it, that is, if the public outcry was loud enough or if disallowance suited federal purposes. For example, in 1935 the people of Alberta elected the Social Credit party to office. The new premier, ‘Bible’ Bill Aberhart, was a man of the cloth who had pioneered religious broadcasting in Canada. He was also a disciple of a British engineer, Major C. H. Douglas, whose political program, Social Credit, was adopted only in parts of Canada. In brief, party theory advocated distribution of money, called ‘social credit,’ to facilitate the purchase of capitalist production. Legislation was passed to enact Social Credit ideas and, in 1937 the federal government readily disallowed some ‘funny money’ statutes.
19 The Padlock Act arguably threatened civil rights as much as the Alberta legislation threatened property rights, and from the moment it was passed the federal government, and in particular Justice Minister Lapointe, came under heavy pressure to set the Quebec legislation aside. Lapointe was deluged with thousands of petitions and letters, both in favour of the legislation and in opposition to it. And it was not just the civil-liberties associations that were against the act. The Communist party was, for obvious reasons, also opposed. Communist-party opposition, however, did the cause of disallowance more harm than good, for it was seen by Lapointe as ‘proof’ of the fact that only communists and agitators from outside the province of Quebec were against the law. If the general nature of the correspondence in Lapointe’s files is any guide, the minister of justice had good reason to believe that by and large the people of Quebec were behind the law.[39] The fact that the act, in practice, saw families locked out of their homes and left with nowhere to go never entered Lapointe’s discussion in the debate.
20 Lapointe attempted, half-heartedly, to convene a conference with Premier Duplessis and some of the civil-liberties opponents of the legislation; however, Duplessis would have none of it. ‘Our law,’ he wrote to Lapointe on 25 March 1938, ‘has rendered eminent services and contributed powerfully to ridding us of odious and intolerable communists with whom compromise was out of the question.’[40] The meeting was held, nevertheless, and among the protesters was a young McGill law professor, F. R. Scott, who will figure prominently in the events that follow. The CCLU delegation reiterated the arguments put forward in numerous memoranda setting out the constitutional basis for disallowing the Quebec legislation. The law invaded the Parliament of Canada’s exclusive jurisdiction to pass criminal law and sought to regulate freedom of speech and freedom of the press. As the deadline for disallowance, 8 July 1938, rapidly advanced (transmission of the act to the governor general had been deliberately delayed), entreaties both for and against increased. The matter was discussed in cabinet and, by and large, the English ministers lined up in favour of disallowing the act, or at least sending it for review to the Supreme Court. A decision had to be made, and it was up to Lapointe to make a recommendation to cabinet. What would Lapointe decide?
21 When the repeal of section 98 was being discussed Lapointe told the House of Commons that there was only one way to fight communism, and that was with education: ‘If communism is bad, it should be fought with something that is better. If it is wrong, we must provide something that is right.’[41] Guns, prisons, and other arbitrary methods were not, according to Lapointe, effective tools in fighting the communist menace. Repression, similarly, did more harm than good. Who, Lapointe asked the House, had ever heard of the leader of the Communist party before he was put in jail? It was better, he declared, to destroy a communist’s arguments than to put him away. ‘I would rather know what is going on than suspect that meetings were being organized in cellars and other places. Experience in religious and political matters has shown that arbitrary methods of repression have always failed.’[42] The cure for the disease that Lapointe advanced was law and order.
22 ‘I believe,’ Lapointe told the House of Commons, ‘that our best way to fight these doctrines is, first, to try to eliminate the causes of discontent and friction; second, to organize for the dissemination of good ideas to fight bad ideas; third, to see that order and peace are maintained in Canada. But with all of that, I am a strong believer in the British way of administering justice. I believe in the majesty of the law. I do not think that it is a good thing to fight illegality by other illegalities. Arbitrary methods, which are not strictly according to the British practice, do not appeal to me, and I do not believe that their effect is what those who use them have in view.’[43]
23 The Padlock Act stood for everything that Lapointe claimed to oppose. Held up to the light of day, communism would surely disappear. Driven underground by the Padlock Act and other repressive legislation, it was certain to flourish. Perfectly in keeping with these political values, indeed demanded by this commitment to liberalism, was disallowance of the legislation. If Lapointe lacked the political courage to disallow the legislation himself, he could always refer the matter to the Supreme Court. The Liberal government, upon its return to power, had referred some of the Bennett ‘New Deal’ legislation to the Supreme Court, indicating that it had, in some cases at least, few qualms about the reference procedure.
24 On 6 July 1938 Lapointe announced his decision. Notwithstanding his professed allegiance to political liberalism, he had decided that the Padlock Act should stand. It did not affect the rights of citizens outside the province of Quebec, Lapointe said, and, he added, the legislation was popular within the province. Prime Minister King realized that the justice minister’s position meant accepting ‘what really should not, in the name of Liberalism, be tolerated for one moment.’[44] However, in the face of Lapointe’s strong non-interventionist position, King agreed to let matters be. Claiming that disallowance was an extraordinary remedy, Lapointe told the House of Commons that the disallowance power should be used only in clear cases, not ambiguous cases such as this one. The constitutionality of the Padlock Act, he said, was best left to the courts to decide. However, as Lapointe well knew, the Quebec rules of civil procedure effectively precluded such judicial review by creating all sorts of barriers to bringing constitutional challenges to court.[45]
25 Under careful examination it becomes clear that Lapointe laid some groundwork for his decision in the same debate in which he so eloquently articulated his liberal philosophy. That philosophy had a caveat: federal and provincial authorities must confine their activities to what the law and the constitution permit.[46] Lapointe would not interfere with the Quebec legislation, his allegiance to political liberalism notwithstanding, because he considered the legislation to be within provincial jurisdiction. The BNA Act gave each province legislative power over ‘civil rights,’ and Lapointe claimed that the Padlock Act could be constitutionally justified as an exercise of this provincial power. In fact, as Lapointe and everyone else knew, the term ‘civil rights’ had absolutely nothing to do with civil liberties, and restricting civil liberties was exactly what the Padlock Act was all about.
26 Lapointe believed more in law and order than in justice, and there is evidence to suggest that his conception of the former was dictated by his religious faith.[47] ‘In Lapointe’s mind, no freedom of expression which challenged the basis of the Roman Catholic conception of society could be tolerated … his Catholicism took precedence over his liberalism.’[48] While opinions differed on what that conception of society entailed, as the international situation deteriorated Lapointe’s conservatism became entrenched and he became determined to protect what he believed to be the interests of Roman Catholic Quebec. The handling of the Oshawa strike and his ready willingness to provide police reinforcements is a case in point.[49] More than anything else, however, it is Lapointe’s failure to take action against the Padlock Act that demonstrates that he acted to maintain what he considered to be Quebec’s and Canada’s best interests.[50] The rights and liberties of some communist agitators were secondary to the preservation of harmony and unity, a position that would soon be confirmed by his treatment of the Jehovah’s Witnesses.
27 To be fair, there were other reasons for supporting the Padlock Act. The legislation was very popular in Quebec. Lapointe knew that sometime in the next few years another general election would be called, and without its traditional block of Quebec seats the Liberal party would be lost. He may have believed that, without the Liberal party, Quebec would be lost. Disallowing the Padlock Act would be politically disadvantageous for a number of reasons. First, it would assist the Liberals' opponents who regularly charged not only that the Liberals were anti-clerical, but that they were soft on communists. Second, it would annoy Quebec nationalists who resented any intrusion, real or imagined, into the province’s autonomy. And third, it might give Maurice Duplessis the issue and the excuse he wanted to return to the polls for a renewed, and larger, mandate from Quebeckers — a mandate that Duplessis was sure to use to wage his own war against Mackenzie King and the government in Ottawa. With all of this the prime minister was prepared to go along. The cabinet, King later privately explained, accepted the opinion of the minister of justice that the Padlock Act did not fall within the disallowable class of legislation.[51] This explanation gave King a convenient way out, notwithstanding his own genuinely liberal beliefs. This was neither the first nor the last time that King harmonized his own highly tuned political instincts with those of Lapointe.[52]
28 In the result, minority political dissent in Quebec suffered, for it was not just the communists who were affected as a result of the Padlock Act. Left-wingers of more moderate stripe found their premises boarded up, or their literature seized. Paradoxically, however, the Padlock Act may have done more good than harm, for it, along with section 98, galvanized liberal opposition. And that liberal opposition brought credibility to those claiming the right of political minorities to dissent.
29 Moreover, in Quebec, the liberal opposition was given a voice in the newly-formed CCLU, whose call for a bill of rights and for other legal protections was like a cry in the wilderness. For the first time these demands were being made, not by radicals intent on the destruction of Canadian society, but by persons who believed, as Lapointe once claimed he did, that peace, prosperity, decent living conditions, and religious and moral ideas were far stronger weapons in the fight against communism than concentration camps, arbitrary imprisonment, and oppressive laws. The founders of the CCLU did not embrace Communist-party dogma, although certainly some of the members did, but they believed that Canadian society would not be advanced by Draconian and far-reaching laws that placed powers beyond the review of the courts in the hands of the executive and the police. That was not British justice and that is what the CCLU opposed. Gradually their ranks were swelled with men and women of like mind who believed not only that Canada could extend the limits of minority dissent, but that it was imperative that Canada do so. As important as the long-term contribution of the CCLU was, in practice CCLU agitation had little immediate effect. It was the opinion of Ernest Lapointe that mattered. At the outset of the Second World War, the civil rights of some marginal groups, such as the communists and, later, the Jehovah’s Witnesses, were of no political concern. There was only one issue that mattered — keeping the country united. Lapointe knew that Quebeckers would turn against any administration, Liberal or Conservative, that tried to conscript men for service overseas and that the consequences would be disastrous for Canada. On 9 September 1939 Lapointe gave the most important speech of his political career.
30 Lapointe rejected neutrality: when Britain was at war, Canada had to be there too. Lapointe appealed for unity, tolerance, and moderation. ‘Is it not imperative,’ he said, ‘that no section of Canada, no race, no creed, should inflict upon the other sections, races and creeds incurable wounds which might destroy our country forever?’[53] The answer was obvious, as was the only way to bring Canada into and out of the war united: there must be no conscription.
31 ‘The whole province of Quebec,’ Lapointe began, ‘… will never agree to accept compulsory service or conscription outside Canada.’ Neither would he. ‘I am authorized by my colleagues in the cabinet from the province of Quebec … to say that we will never agree to conscription and will never be members or supporters of a government that will try to enforce it.’[54] That, Lapointe said, should be clear enough. Those who believed that they were advancing Canada’s cause by urging immediate conscription of men for military service were gravely mistaken. Any such move would find few supporters from the province of Quebec and would tear the country apart.
32 Lapointe promised the House that if this solitary condition was understood, then the elected representatives from Quebec would offer their services without limitation and would devote their best efforts to the prosecution of the war. ‘Let me assure you,’ he said, ‘that if only I can keep my physical strength, fall I shall not; and my friends shall not fall either.’ His concluding words brought tears to many eyes: ‘Yes, God bless Canada. God save Canada. God save Canada’s honour, Canada’s soul, Canada’s dignity, Canada’s conscience. God give Canadians the light which will indicate to them where their duty lies in this hour of trial so that our children and our children’s children may inherit a land where freedom and peace shall prevail, where our social, political and religious institutions may be secure and from which the tyrannical doctrines of nazism and communism are forever banished. Yes, God bless Canada. God bless our Queen. God bless our King.’[55] It was Lapointe’s finest hour. Canada entered the war united.[56]
33 There is simply no underestimating the importance to national unity of meeting the particular needs and desires of the people of Quebec. Lapointe’s speech went some way towards reassuring Quebeckers that the federal government had their interests at heart. But as important as the speech was, domestic disruption was likely in the province. A predictable source was Quebec premier Maurice Duplessis. He was expected to attack the federal government at the earliest opportunity, real or created. A less predictable source of disruption, or support, was the Roman Catholic church. In the First World War, ecclesiastical opposition to the war, and especially to conscription, was politically disruptive. Accordingly, it was essential that the church, if at all possible, be brought on to the federal government’s side. In many respects, the Roman Catholic church at this time was a more powerful and significant force in Quebec society than the Quebec government itself.[57] On 1 September 1939 Charles ‘Chubby’ Power, a leading Quebec Liberal MP who had been brought into the cabinet on Lapointe’s advice, flew to Quebec City for an interview with Cardinal Villeneuve, the leader of the Roman Catholic church in the province. First, minister of pensions and health (1935–9), then postmaster general (1939–40), and finally minister of national defence for air (1940–4), Power was a lawyer from Quebec City who represented the people of Quebec South, and he knew Cardinal Villeneuve well.
34 Jean-Marie-Rodrigue Cardinal Villeneuve, Archbishop of Quebec and Primate of Canada, was born in Montreal on 2 November 1883. In 1930, he was named first bishop of Gravelbourg, Saskatchewan, and two years later was appointed the twentieth bishop of Quebec, then tenth archbishop, and, in 1933, fourth Canadian cardinal. Villeneuve had a taste for grandeur and he enjoyed the pomp of his position. At the 1938 Eucharistic Conference held in Quebec, for example, he was appointed papal legate and presided from a gilt throne. He made his way to and from the conference proceedings in a silk-covered sedan chair, escorted by papal envoys and local church officials in their most extravagant garb. In some circles he was known as ‘Kodak Villeneuve’ for his willingness to stop and pose for pictures whenever he spotted one of his flock with camera in hand. All such grandstanding aside, Villeneuve was not an ecclesiastical lightweight. He was a brilliant, complex, and dedicated prince of the church, who at a crucial moment in the life of Quebec and Canada occupied a position of power and influence perhaps second to none in the province.[58]
35 As a young priest, Villeneuve came under the influence of Quebec nationalist Abbé Lionel Groulx.[59] However, as cardinal of Quebec during the tumultuous Depression decade, he practised the politics of episcopal survival, helping to find solutions acceptable to both the Catholic hierarchy and the public authorities. Insofar as the latter were concerned, Villeneuve believed that it was not only the right but the responsibility of the clergy to speak out on matters of public importance.[60] In Roman Catholic Quebec, the church hierarchy was the front line against secular depredations.[61] Not surprisingly, Cardinal Villeneuve and Maurice Duplessis got along well. Their relationship was both natural and cordial, as they shared a common vision and aspiration for the province of Quebec, most notably an opposition to social change. Their first collaboration was in the fight against Quebec communists.[62]
36 When Duplessis announced in the Legislative Assembly introduction of the Padlock Act, he broadly hinted that the bill was being introduced at the express wish of Cardinal Villeneuve.[63] Communists, Villeneuve believed, who insulted French-Canadian social concepts, traditions, morals, and religion, had no right to freedom of speech.[64] Indeed, the way Villeneuve saw it, communism was not a social and political system, but rather ‘a gigantic conspiracy organized throughout the world to wage war against all human and Divine laws and destroy Christian civilization.’[65] This view was a popular one — as it had been in Quebec at least since the Spanish Civil War, when communism became associated in Quebec minds with the murder of priests and nuns, the burning of churches, and the destruction of the Christian way of life. Innumerable French-Canadian associations expressed approval of the act, with dissent limited to the communists themselves, supported by a handful of CCFers, Jewish lawyers, and foreign-born radicals of various views.[66]
37 Villeneuve was, like most clergy of his day, ultramontane. He was suspicious of attempts to compromise Roman Catholicism with modern thought, and he demanded the supremacy of religious over civil society. His aspiration for Quebec was that it remain a church-dominated self-contained society and in that way ensure that Quebeckers were not swallowed up into the North American English sea. It was not just the communists who threatened this vision of Quebec, but also the secular authority, as well as any competing religious ideology, especially one as obnoxious to Roman Catholics as that of the Jehovah’s Witnesses. In advancing this view of the world, Villeneuve made no secret of what he believed. ‘I do not wish to doubt your good faith,’ the cardinal said to a non-Roman Catholic audience in a late January 1938 speech subsequently published in Le Devoir. ‘I do not in the least wish to contest the part at least of truth and religion, however incomplete, which are [sic] yours. And that is how, in all practical logic and all charity, I tolerate you … I tolerate you so that you will tolerate me. I tolerate you … so that you may admire at once the splendour of my religion and the delicacy of my charity … I tolerate you in order to have your collaboration in the common good, and when such collaboration stops, when you preach corrosive doctrines and spread everywhere poisoned seeds, then I can no longer tolerate you. Such, gentlemen,’ the cardinal concluded, ‘is Catholic liberalism, the true liberalism.’[67] This view of society was embraced by the huge majority of the people in Quebec, those who were not more extreme, that is.
38 The Roman Catholic church in Quebec controlled almost all of the hospitals, most of the schools, and many charitable organizations in the province. The cardinal of Quebec had a throne on the floor of the Legislative Assembly immediately beside the one reserved for the lieutenant-governor. One way or another much of Quebec was under direct church control, and would remain so for the next twenty years. The church was virtually established and its influence was immense. The mission of the church was, in fact, to make Quebec’s political life conform to the Roman Catholic concept in which truth is Catholicism, error is anything non-Catholic, and liberty is the freedom to speak and live the Roman Catholic truth.[68] Villeneuve had staked his ground, and for the hearts and minds of the people of Quebec it was no contest.[69]
39 Accordingly, when war began there was no doubt that the cardinal’s support was indispensable to a successful domestic policy. The stated purpose of Chubby Power’s hastily arranged visit was to obtain the co-operation of Quebec authorities in air-raid precautions. The real purpose was to learn the cardinal’s views of the war. They were not exactly encouraging. Villeneuve was naturally opposed to Hitler, but he would not publicly support the war — at least not yet. In fact, the cardinal understood the politics of the situation as well as did Power. Villeneuve explained that his overall support for the government would be reduced if he, ‘at this juncture, took any action which might be misconstrued.’[70] The cardinal was keeping all options open, and the message to the federal government could not have been made more clear. If Ottawa wanted his assistance it would have to earn it. The episcopal support was to be neither presumed nor freely given away. Lapointe’s subsequent promise to Quebeckers that conscription would not be introduced laid the foundation for convincing Quebec’s clergy that the federal government had Quebeckers' interests in mind.[71] And the federal government took what steps it could to bring the cardinal over to Ottawa’s side. Later in the fall, for example, Villeneuve was invited to speak to the National Press Club in Washington. After his speech, a private forty-minute meeting was arranged with U.S. president Franklin Roosevelt.[72]
40 While winning Villeneuve over was important, the federal government also had to contend with Quebec premier Maurice Duplessis. The premier was in trouble. His first administration had been fiscally irresponsible and he had failed to provide the sound government he had promised in the election campaign that initially brought him to power. The province was strapped for cash, and following a bizarre series of announcements Duplessis dissolved Quebec’s Legislative Assembly and scheduled an election for 25 October. It was a ‘diabolical act,’ King confided to his diary. Making political hay out of the wide powers given to the governor-in-council under the War Measures Act, Duplessis claimed that Quebec’s autonomy was threatened, and this was the main political issue he took to the people.[73] The election could not be seen as anything other than an attack on the federal government, and Lapointe interpreted it exactly as such. In this assessment he was joined by the two other leading Quebec Liberal politicians: Chubby Power and P. J. Arthur Cardin. Cardin was then minister of public works and later minister of transport. Together, the three men took one of the biggest gambles in Canadian political history.
41 They announced their decision to treat the provincial election as a campaign against them and against the Liberal party. If Duplessis won, they would resign. It was a risky business. The provincial Liberal party was in a shambles and had still not recovered from its disastrous political defeat in 1936 when its numbers were reduced to a mere fourteen members. Duplessis claimed that a vote for the provincial Liberals was a vote for participation in the war, the conscription of French-Canadian youth, and the assimilation of the province of Quebec. The alternative, however, was much worse. ‘Electing Duplessis would not be a bulwark against conscription; it would destroy the existing bulwark, embodied in Lapointe’s pledge that there would be no conscription.’[74] It was obvious to the people of the province that only strong French-Canadian leadership in Ottawa could hold the government party to its promise not to introduce conscription. Lapointe certainly said as much. ‘I am here to protect you,’ the minister of justice told rallies throughout the province, and what he said had the ring of truth.[75]
42 Certainly no one in the Conservative party had Quebec’s interests at heart, and Quebeckers' memories were long. Conservative Prime Minister Robert Borden had introduced conscription in the First World War, resulting in young French-Canadian men being dragged from their homes by the military police and forced into British uniforms. A Conservative government or a coalition government could hardly be relied on now not to conscript and send Quebec’s young men overseas. Forced to choose between Ottawa and Quebec City, the province’s voters put their faith in Lapointe and the federal government. ‘A vote for Duplessis was a vote for conscription, disorder, national disunion and misunderstanding … A vote against Duplessis was a vote for French Canada’s security, all Canada’s unity, for peace in war and war in peace. A vote for Duplessis was a vote for Hitler and Stalin, a vote against Duplessis was a vote for civilization.’[76] On 25 October 1939 the Union Nationale was swept from office and the provincial Liberals returned. Thanks to Ernest Lapointe, the first serious political crisis of the war had been overcome. King’s gratitude to his Quebec lieutenant was enormous, but the campaign left the minister of justice exhausted and he considered resigning.[77]
43 Another provincial premier, Mitchell Hepburn, the Liberal premier of Ontario, immediately took up Duplessis’s role as a thorn in the federal government’s side. Hepburn’s criticism of the federal war effort eventually led to the 1940 general election. In the meantime Parliament recessed. Soon after, the Soviet Union forced the Baltic states of Lithuania, Latvia, and Estonia to accept Russian garrisons, a prelude to the ultimate absorption of the Baltic states into the Soviet empire, and, in November 1939, when Finland could not be persuaded to accept Russian troops, the Soviet Union invited itself in. There matters would stand until the following spring. It was a ‘phony war’ overseas, but in Canada the War Measures Act and the Defence of Canada Regulations left no doubt that the peaceful kingdom was no more.
1 Canada was hoping for peace, but well before the German invasion of Poland it began to prepare for war. A committee on emergency legislation was struck and its preparations established the framework for preserving national security in Canada throughout the Second World War. The proclamation of the War Measures Act and the passage of the Defence of Canada Regulations affected all Canadians' liberty by imposing restrictions on where they could go, what they could read, and what they could say. And it was these regulations that gave to the police and to the state wide general powers to maintain national security during the war. Not only could men and women be arrested and interned without trial, but organizations, including such religious groups as the Jehovah’s Witnesses, that had previously been lawful could be declared unlawful by a stroke of the federal cabinet’s pen. Canada was not a police state, far from it. But the powers assumed by the executive were enormous, and they were exercised without any real opportunity for review. Significantly, the drafting and passage of these emergency powers took place behind closed doors.
2 Well before the war began, the RCMP began to prepare for it. The Mounties compiled long lists of enemy aliens, Nazis, communists, and suspected spies. ‘Orders to arrest these people,’ Stuart T. Wood, a career officer and the commissioner of the force, reported to the minister of justice, ‘could be put into effect at a moment’s notice.’[78] The RCMP did not want to take any chances, so it also proposed that, in the event of war, the government outlaw and seize the property of all the German and Italian organizations identified with Nazism, Fascism, or the Communist party. For good measure, the Mounties also recommended suppression of the communist and Fascist press and the closing down of the Italian consulates, even though Italy was still neutral. The undersecretary of state for external affairs, Oscar Douglas Skelton, was somewhat alarmed by these proposals.
3 Skelton, a liberal democrat and former dean of arts at Queen’s University, was, until his death in January 1941, the pre-eminent Canadian civil servant and the prime minister’s most senior adviser on both foreign and domestic policy. After considering the RCMP recommendations, he wrote the prime minister to advise that not only were such repressive measures unnecessary, but that King consider issuing a statement when war came, calling for vigilance but also reminding the public that there was no reason for it to be stampeded into hysterical or ‘unwarranted persecution of Canadian citizens who happen to be of the race or language of our opponents.’[79] This was an enlightened and thoughtful suggestion and it deserved consideration. But when war came Skelton’s advice was not followed.[80] Rather, the recommendations of the Committee on Emergency Legislation were implemented.
4 That committee, an interdepartmental one, drawing in senior civil servants from most government departments, was established in March 1938 to review existing emergency legislation.[81] At the time of the Munich crisis, the committee had not yet completed that review, but the appeasement policies of British prime minister Neville Chamberlain postponed the inevitable, thereby giving the committee more time to go about its work. The committee eventually concluded that the War Measures Act, an omnibus act, passed during the First World War, that gave the cabinet wide regulation-making authority, continued to provide the government with sufficient power to meet any emergency, and that special legislation would be required only for the vastly increased financial expenditures certain to be demanded by another world war.[82] By invoking the War Measures Act the government would have all the powers it needed, save possibly some financial ones, to fight the war overseas and to protect national security at home. The interdepartmental committee drafted a set of emergency security regulations, the Defence of Canada Regulations, which were submitted to cabinet in July 1939.[83]
5 There is no evidence that the federal cabinet ever considered the draft regulations,[84] and the fact that the recommended regulations were adopted without any amendment suggests that they were accepted without debate. On 3 September 1939 an order-in-council was passed, invoking the Defence of Canada Regulations.[85] The regulations were announced during the September 1939 special war session, but as Parliament was not required to review them, and as other business was judged more important, discussion of the regulations was postponed until Parliament returned, which satisfied almost everyone.[86] There were a few exceptions, of course. The attorney general of Ontario, Gordon D. Conant, wrote Justice Minister Lapointe, recommending that section 98 be re-enacted. An editorial in The Globe and Mail endorsed this recommendation but, for the moment, the regulations were not changed.[87] Sixty-four regulations, in six parts, set out how national security was to be preserved while the country was at war.
6 In general, the regulations were sensible and acceptable in scope and in object; they were intended to prevent espionage and sabotage by fifth-columnists at home and by enemy agents sent from abroad. To achieve these aims, designated ministers of the crown were given broad order-making powers, such as the power of the minister of transport to control radio transmissions. Similarly, the secretary of state was given censorship authority,[88] while the minister of national defence was empowered to order black-outs and curfews. Initially, only a few of these regulations provided for judicial or other review of ministerial orders, but it was to be the policy of the government that the regulations be interpreted so as to interfere as little as possible with ‘the ordinary avocations of life and the enjoyment of property.’[89] It was almost four years before another order-in-council was passed, providing for appeal to the courts for actions taken under these and other wartime regulations.[90] A few of the Defence of Canada Regulations were just silly, and two stood apart from the rest: Regulation no. 21, which authorized internment, and Regulation no. 39, which imposed severe restrictions on what Canadians could say. Neither regulation could be justified as a limited but essential restriction on the rights of citizens occasioned by the circumstances of war.
7 Regulation no. 21 was, in fact, the only one not unanimously approved by the Committee on Emergency Legislation. In brief, the regulation provided that the minister of justice, in order to prevent a person from engaging in activities prejudicial to the public safety or the safety of the state, could make an order directing the detention and internment of that person.[91] The regulation further provided that a person who was subject to detention and internment under Regulation no. 21 was deemed to be in legal custody. The power to arrest and detain was unlimited, but it was subject to modified review. Regulation no. 22 provided for the establishment of one or more advisory committees to hear appeals from any ministerial detention order. The advisory committee could not order anyone’s release; all it could do was make recommendations to the minister of justice, who was under no obligation to follow them. Indeed, the criteria to be considered by the minister of justice in making an internment order, the powers of the advisory committee, and the standards of review were all very vague. The only definite obligation was the duty of the minister of justice to ensure that every person detained under Regulation no. 21 was advised of the ‘right of appeal.’[92]
8 The Committee on Emergency Legislation divided over the recommendation of this regulation. Some members of the committee believed a mechanism was necessary, should war come, for the immediate internment of individuals of ‘internationalist affiliation’ likely to attempt to undermine the war effort. Other members were unwilling to recommend the regulation, believing it to be an unnecessary interference with individual liberty. The committee, in its report to the governor-in-council, attempted to draw the attention of cabinet to the division in its ranks over the propriety of this regulation by marking it with a black line in the margin. Cabinet could then ‘consider whether such a wide power should be assumed by the executive and also whether it is expedient to introduce this regulation at the outset of an emergency or whether its introduction should be postponed until it is known how the situation will develop.’[93] Cabinet, if it considered the matter at all, decided to let the recommendation stand as it was.
9 Regulation no. 39 made it an offence to spread reports ‘by word of mouth’ or make statements, false or otherwise, intended or likely to cause disaffection to His Majesty or to interfere with the war effort or to prejudice relations with foreign powers. It was also an offence under this regulation to spread reports or make statements, again false or otherwise, intended or likely to prejudice the recruiting, training, discipline, or administration of the armed forces. A rather blunt piece of regulatory drafting, this particular regulation made no provision for criticism of the government in good faith. Nor did it provide for the defence of truth. As with Regulation no. 21, enforcement of Regulation no. 39 presented ample opportunity for, and the possibility of, executive abuse. Not everyone, of course, saw it this way. In an editorial praising the first conviction under this regulation, The Globe and Mail declared: ‘Freedom of speech must be curtailed when the nation is at war.’ What use was there, the editorial asked, of fighting enemies overseas if enemies here at home were given a free hand?[94]
10 Three of the enforcement provisions of the Defence of Canada Regulations added to these particular concerns. The first, Regulation no. 58(2), granted to any ‘senior police officer,’ or any person authorized by the minister of justice the authority to conduct a search without a warrant obtained from a justice of the peace.[95] All a constable or designated person had to do was prepare a written search order in his own hand. This regulation provided for the possibility of virtually unfettered and unreviewed police access to every Canadian home. The second, Regulation no. 62(2), allowed for the prosecution to request a closed trial.[96] While the application for the closed trial had to be made on the ground that publication of any evidence would assist the enemy or jeopardize public safety or the efficient prosecution of the war, the scope of these three criteria was left undefined. The potential impact of this regulation was modified, however, by a requirement that sentencing take place, in every case, in public. This eliminated any possibility of secret trials, with the accused disappearing into the night, although with Regulation no. 21 on the books there was, needless to say, no need for any secret trials. The third of these questionable enforcement provisions, Regulation no. 63, made breach of the Defence of Canada Regulations a hybrid offence, meaning that the crown had the choice to proceed summarily, with a lesser maximum fine and prison sentence, or by indictment, with the possibility of more serious penalties.[97] However, unless the crown proceeded by indictment the accused would be denied the option of a jury trial. There was a reasonable likelihood that some accused charged with breaching Regulation no. 39, for example, would want their conduct judged by a jury of their peers, not by a provincial magistrate or police-court judge.[98]
11 The other sections of the Defence of Canada Regulations that deserve mention are nos. 24, 25, and 26, which provided for the registration of enemy aliens, for their internment in specified circumstances, and for their appeal from internment orders. While Regulation no. 24 proclaimed that enemy aliens in Canada, ‘so long as they peacefully pursue their ordinary avocations, shall be accorded the respect and consideration due to peaceful and law abiding citizens,’ there was, in fact, significant scope under what amounted to a miniature criminal code for interference with their ordinary activities.[99]
12 Who were the enemy aliens? They were the nationals of countries with which Canada was at war. In September 1939 this meant German and Austrian citizens. Nationals from other countries would, from time to time, be added to this list, and these men and women were required to register with the registrar of enemy aliens. Approximately 100,000 people had to register and report, usually to their local postmaster. Following registration, more than 20,000 enemy aliens of unquestionable loyalty were exempted from the regulations. The remainder were required to report monthly to one of 3,000 reporting offices for endorsement of their parole certificates. While the authorities had broad powers to intern enemy aliens, by and large this power was not widely used. There was an initial round-up at the start of the war and another dragnet nine months later. However, relative to the overall number of designated enemy aliens in the country, relatively few were actually interned, and their numbers decreased steadily throughout the war.[100]
13 Neither those Defence of Canada Regulations providing for the registration and possible internment of enemy aliens nor any of the other regulations were debated during the special war session of Parliament. Significantly, some of these regulations were amended soon after the start of the war and, one way or another, almost all of them underwent some modification during the six war years.[101]
14 One of the first amendments to the regulations was a positive one. It replaced the two civil servants on the Regulation no. 21 advisory committees with a judge or former judge. If the committees were to exercise a quasi-judicial function, however limited, it was appropriate that they be headed by members of the judiciary or, at the very least, not by civil servants appointed for that purpose by the minister of justice. The problem this amendment did not eliminate was that in practice these ‘committees’ were committees of one — a judge perhaps, but still someone appointed to the job by the minister of justice. A much less positive amendment was the change to Regulation no. 39 made on 27 September 1939, the first of several amendments the section would undergo. A new subsection was added to it, with the effect of broadening the provision by making it an offence to spread reports or to make statements ‘intended or likely’ to be prejudicial to the safety of the state or the prosecution of the war.[102] It was not at all clear what reports or statements were intended to be caught by this amendment: its wording was ambiguous enough to result in its application to a wide variety of criticisms of the war, and it made no provision for the defence of truth. An almost identical, and equally deficient, regulation was soon added, making it an offence to do any of the prohibited things in Regulation no. 39 (a), (b), and (c) by publication, in contrast to speech.[103] One immediate result of this amendment was closure of the Quebec French Communist newspaper, Clarté, in early October.
15 It is a general principle of the common law that for an accused to be found guilty of a criminal offence, he or she must not only commit the act in question, but must have the mental intent to commit that act. Persons found not guilty by reason of insanity, for example, are so found because, being insane, they do not have the mental intent to commit a crime. The Ontario Court of Appeal, however, ruled that it was not necessary in a prosecution under Regulation no. 39 to prove any guilty intent. The case that came before the court, Rex v. Stewart, concerned the business manager of the English Communist party newspaper, The Clarion, which was also closed. Douglas Stewart was charged with an offence under the regulations, namely with publishing materials likely to cause disaffection to His Majesty. At trial he argued that, as business manager, he knew nothing about the content of the newspaper, and so could not be guilty of an offence. In support of this argument, he pointed naturally enough to the language of the regulation, which described the offence as saying or publishing something ‘intended or likely’ to cause disaffection. The regulation itself, Stewart argued, required the accused to have intended to do what he was charged with having done. Both the trial judge and the court of appeal disagreed. Commission of the act itself was sufficient for a conviction to properly result.[104] What this ruling meant, in effect, was that not only could one be charged and convicted for breaching this regulation quite inadvertently, but one could be convicted even if what one had said or published was true. These amendments, along with all the other regulations were, however, positively liberal compared to the proposed changes Justice Minister Lapointe recommended to the cabinet in mid-November.
16 Lapointe had become concerned that the regulations did not give him any power to deal with subversive groups. An analysis of the provisions makes it clear that they applied to individuals, and while hundreds of Canadian Nazis and communists had been taken away to internment camps at the beginning of the war, their associations remained and activities continued. Initially, this lacuna in the regulations only caused limited concern. Domestic Fascists were keeping to themselves, and for the first two months of the war the Communist party was floundering, in part as the result of the breakdown in international communications and the consequent lack of instructions from the Soviet Union on what position to take on the world war. By early November this position had been clarified, and communist associations became increasingly active in denouncing the ‘imperialist war,’ calling on the government to make peace, and, as Lapointe apparently told Prime Minister King, distributing anti-government literature.[105]
17 What the justice minister proposed, in a draft order-in-council that he submitted to the cabinet, can only be described as the recommended re-enactment of the worst features of both section 98 of the Criminal Code and the Padlock Act in Quebec. As a memorandum prepared for O. D. Skelton put it, ‘if the purpose of the new Regulation is to facilitate a Nazi or Fascist revolution in this country, it is well designed.’[106] This assessment could not have been more correct. The additional regulations Lapointe recommended were, simply put, dangerous, unnecessary, and extreme.
18 First the minister of justice suggested a procedure for outlawing groups and associations. Any association, organization, society, or corporation that suggested, advocated, encouraged, advised, or defended 1 / any governmental or industrial or economic change in Canada by any means that would or might be prejudicial to the safety of the state or the efficient prosecution of the war; 2 / the establishment by unlawful means of a form or system of government not authorized by the BNA Act; or 3 / the principles of the German Communist Party, the Communist Party of Canada, the Communist International, or any other similar group, was, under this draft regulation, an unlawful association.
19 Clause 1 was far too broad. As drafted, it could apply to almost any activity the executive wished to suppress, such as a trade union threatening to strike and demanding profit-sharing, or it could apply to the policies of a legitimate political party, such as the Social Credit party. Clause 2 was equally problematic. Communism may not be Canadians' preferred political ideology, but there is nothing in the BNA Act that forbids the establishment by democratic means of a communist government. Clause 3 might have carried more force if it had also banned the various domestic Fascist groups. In the form submitted by Lapointe, it led to the inescapable conclusion that the government was pursuing a hard line on domestic communists, but going soft on Fascists.
20 The draft regulation directed that the property of these unlawful associations, or of persons belonging to them, was to be forfeited to the crown, without any warrant and with only the most limited provision for judicial review. It was an offence under Lapointe’s proposal to be either a member or an officer of an unlawful association. Indeed, even a donation made on the street to a proscribed association was an offence under this regulation. Just as under section 98, it was an offence to attend a meeting of an unlawful association, with the burden of proving that one had not attended falling upon the accused rather than the crown. And just like the Padlock Act, the draft regulation provided that it was also an offence to let premises to unlawful associations. The proposed regulation made only a minor change to the already broad search powers, with the effect of widening them even farther. Instead of requiring a warrant for all searches, albeit one prepared by the police themselves, the new regulation granted the right of a warrantless search in cases where the police officer in question believed an offence was about to be committed.
21 Enactment of these draft regulations was, of course, a matter for cabinet to decide. Prime Minister King approved generally of the suppression of subversive activities and believed the communists, in particular, to be ‘our real enemies,’ but he also thought that Lapointe, in describing the dimensions of the problem, had gone too far and had, in fact, been won over by the RCMP, which reported directly to him. On 16 November 1939 Lapointe, who expected the regulations to obtain immediate council approval, learned that a decision on his proposal was to be delayed until the following cabinet meeting.[107]
22 In that meeting, held on 21 November 1939, there was considerable discussion about the new draft regulations. Lapointe argued adamantly in favour of the cabinet passing the regulations. King did not like the proposed regulations at all, but he liked even less the dissension the matter was causing within the cabinet and the increased isolation from his colleagues of Ernest Lapointe. One report after another analysing the recommended regulations confirmed King’s own view that they were excessive. One government memorandum reported quite accurately that repression was not an effective means of dealing with the threat from either the left or the right.[108]
23 According to the memorandum the regulations were ‘not consistent with the principles of the Canadian government, the traditions of the Canadian people, or the aims for which we are fighting in this war.’[109] Moreover, the memorandum added, while dressed up as anti-communist in inspiration, the proposed regulations had plenty of scope for use against any group unfortunate enough to attract the wrath of the executive. ‘Already free discussion in Canada is blanketed and discouraged by fear of censorship, by colonialism, by the docility of our people.’[110] There was no demonstrated need for the changes, and the regulations went far beyond the comparable provisions in Great Britain, a country so much closer to the front line of the war. Instead of a bill of rights, the memorandum concluded, ‘we are to have a string of “verbotens.”’[111] The point the anonymous author of the memorandum was making could not have been more clear: the draft recommendations had no place in a free and democratic society in war or in peace.
24 Yet Lapointe persisted. ‘At Council, this afternoon,’ King again confided to his diary, following another meeting on the subject of the proposed regulations on 23 November 1939, ‘I saved an unpleasant situation by suggesting that we should wait until Parliament met before giving to the police more in the way of power to search on mere suspicion or without warrant.’[112] King did, however, agree to meet and discuss the matter further with Lapointe and the commissioner of the RCMP, S. T. Wood.
25 At this meeting Wood showed King some papers illustrating what had become, by this point in the war, the well-evidenced intention of the Communist party to create disaffection for the war effort among Canadians. The papers also alleged plans by Fascist organizations to sabotage strategic transportation facilities at Windsor and Welland, along the St Lawrence Seaway system, and at the Montreal airport. The evidence was apparently compelling to King, but he did not agree that a case for Lapointe’s draft regulations had been made, and he told the two men as much. The prime minister agreed in principle to an amendment to the regulations with the effect of providing that an organization could be found guilty for any of the offences that then applied to individuals, but this was as far as he would go. Wood conceded that such an amendment would be sufficient, and Lapointe promised to consider the matter. One matter, however, that the justice minister was not disposed to consider was having a committee of the House of Commons study the regulations when Parliament returned. Lapointe was against the idea, to King’s surprise. The minister of justice had, King later wrote, become quite ‘reactionary.’ This, King added, was the result of ‘nerve strain’ and the justice minister’s apparent inability to resist the demands of his officials.[113]
26 It is noteworthy that at exactly the same time that Lapointe was urging that Canada’s internal-security regulations be strengthened, a similar debate, but to the exact opposite effect, was taking place in Great Britain, a country more obviously in jeopardy. Unlike the Canadian Parliament, which quickly met and then recessed, the British Parliament remained in session. While the British equivalent of the Canadian War Measures Act, the Emergency Powers (Defence) Act, was approved by the Parliament in Britain without debate on 24 August 1939, it was in some important respects a far less restrictive piece of legislation than its Canadian counterpart. This British act, modelled on the First World War Defence of the Realm Act, addressed some of the legal difficulties raised by the predecessor legislation insofar as it took into account every relevant court decision, save one, against the crown during the First World War. Unlike the War Measures Act, it also provided for its automatic expiry at the end of one year unless an address was presented in each House of the British Parliament, requesting its continuance for another year. Not that it had to run for at least one year; its operation could at any time be brought to an end by passage of an order-in-council or by the end of the war. There were, to be sure, very restrictive regulations passed in the first few months of the war pursuant to the broad regulation-making power. The critical difference was that these regulations were subject to parliamentary scrutiny. On 31 October 1939 the British regulations faced their first sustained attack.[114]
27 Regulations providing for internment and for censorship of speech and press were vigorously debated, and in the end the home secretary promised to liberalize some restrictions. For example, the internment regulation, initially quite similar to Canadian Regulation no. 21, was changed to narrow ministerial discretion in making a detention order and to require the home secretary to regularly report to Parliament on the number of persons detained and the number of cases in which he declined to follow the recommendation of Britain’s advisory committee. The advisory committee was also obligated to give detained persons full particulars about the reasons for their detention. The regulation making it an offence to propagandize against the war was redrafted to provide that truth was a defence, as was evidence that a person had reasonable cause to believe what he or she said was true. Another regulation, which allowed the home secretary to delegate authority to close and prohibit meetings, was dropped entirely as it had never been used. These amendments, and they were not the only ones, were declared by both The New Statesman and Nation and The Economist, two journals with quite different views of the world, a ‘victory’ for civil liberties.[115] While the British Parliament met secretly on numerous occasions, the measures it adopted to protect internal security were, in almost every respect more sensible, more liberal, and more balanced than those adopted in Canada.[116]
28 In Canada, his first attempt to bolster the regulations having failed, Lapointe decided to try again, and he wrote the prime minister towards the end of December 1939 to say that he had taken heed of the criticisms of the earlier draft regulations and had made some important changes.[117] Cabinet met to consider a new proposal in early January 1940.[118]
29 Regulation no. 58 was amended to prohibit warrantless searches. Henceforth all searches were to be authorized by a justice of the peace. The Censorship Regulations were revoked. Censorship would now be under the authority of the Defence of Canada Regulations, with the secretary of state continuing in his general supervisory role.[119] As the naming of particular groups and associations in Lapointe’s first draft recommendations elicited some cabinet criticism, the minister of justice redrafted the regulations to allow him to achieve this same result less directly. The regulations now provided that when an officer of an association was convicted, on indictment, of breach of one of the regulations, it was within the discretion of the court to declare the association illegal. Why Lapointe thought that this change, which placed the responsibility for declaring groups and associations illegal in the hands of the court rather than those of the executive, was an improvement over the previous proposal is far from clear. While the War Measures Act gave the governor-in-council virtually unfettered power to protect national security while Canada was at war, the cabinet remained, at some level, accountable to Parliament and to the people. The same could not and cannot be said about appointed judges. But by this amendment Lapointe, and cabinet, had given them the power to declare associations of Canadian men and women illegal. Requiring judicial approval of searches is one thing; giving judges the power to declare formerly lawful organizations unlawful is quite another. The former seeks to restrict the exercise of state power in the name of individual freedom; the latter poses a direct threat to that freedom. The fact that the regulations provided for the appeal of any such declaration fell far short of removing this fatal flaw, for appeal, naturally, was to another appointed judge.
30 Lapointe was able to impose his unpopular views on the majority of his colleagues because King, out of personal regard for his justice minister, agreed. When Chubby Power, who had not been able to attend the meeting at which the new regulations were actually passed, heard about it, he was enraged and went to see King, threatening to resign and protesting strongly the failure of council to refer the whole question of the Defence of Canada Regulations to the cabinet Committee on Legislation, which he chaired. King’s view of Power was mixed. He admired his organizational and other political abilities, but deplored his drinking, which Power often allowed to interfere with his work. King did not, however, wish to lose the valuable Quebec City MP, and convinced him to stay on, taking responsibility for the matter’s having been dealt with while Power was away. He also told Power that while he privately agreed with Power’s civil-liberties views, he could not oppose Lapointe, ‘who had been his right hand man ever since he became prime minister.’[120] All of this seemed to satisfy the minister of defence for air, and King, as he happily wrote in his diary that night, was ultimately able to put Power in a good mood before sending him away.[121] A possible cabinet crisis had been averted, but at what cost? Only time would tell.
31 There were other amendments to the Defence of Canada Regulations during this period that passed without any controversy. In November 1939, Regulation no. 39B was enacted, providing that the consent of the attorney general of Canada, who is always the minister of justice, or the attorney general of one of the provinces was a prerequisite to a prosecution under the Defence of Canada Regulations.[122] Passage of this particular amendment undoubtedly reduced administrative demands on the Department of Justice in Ottawa, as henceforth the provincial attorneys general, who were normally responsible for law enforcement in the provinces, could authorize prosecutions. But this very advantage could easily become a disadvantage and source of unfairness if, as a result, the regulations were unevenly enforced. One provincial attorney general might, for example, exercise greater vigilance than another. More seriously, this new regulation offered much room for abuse. If an attorney general, instead of the police, had the discretionary authority to lay or not lay a charge, what was to stop him from prosecuting some offenders but not others?
32 One amendment to the regulations that received almost universal support was PC 146, passed on 17 January 1940. It provided that criticism in good faith of any government in Canada would constitute a legitimate defence in prosecutions under regulations 39 and 39A. The amendment came too late for prominent trade-unionist and First World War hero Charlie Millard, who was charged in early December 1939 with breach of Regulation no. 39. Millard had said that he expected a lot of men would join the army because that was the only way they could be sure of eating properly. Millard magnified this crime by adding that ‘we should have democracy here in Canada before we go to Europe to defend it.’[123] The amendment, however, failed to clarify whether guilty intent was necessary for a conviction under the regulation. And even as amended, this regulation still provided, by implication, that good-faith criticism of the war effort, if likely to cause disaffection, was a crime. Nevertheless, the amendment was a welcome one and it came just in time for the 1940 general election.
1 Although there was provision in the BNA Act to prolong the life of Parliament, Prime Minister King made clear, from the very beginning of the war, that he would go to the people before his term of office expired; that meant an election had to be called sometime in 1940. King did not want an election to conflict with an active phase of the war, but there was no way of predicting when the ‘phony war’ might end. The election would probably have been called for June, had not the premier of Ontario, Mitchell Hepburn, intervened.
2 On 18 January 1940 King learned that a resolution condemning the federal government’s war effort had passed in the Ontario legislature by a vote of forty-four to ten. After discussing the matter with Lapointe, King decided to call an election. Tired and sick, Lapointe had to be convinced by King to stay on.[124] Parliament met on 25 January 1940, only to immediately dissolve. It is fair to say that the War Measures Act was not one of the major issues of this campaign and, indeed, it was left to the Communist party to demand its repeal. As with much else, the Communist party was out of touch. Even Tim Buck, the leader of the party, was forced to observe that ‘it would be an exaggeration to say that the slogan of the Communist Party of Canada “Withdraw Canada from the Imperialist War” has become the slogan of the masses.’[125] Some CCF candidates tried to get the public interested in civil-liberties issues, and both Lapointe and the regulations came in for some serious criticism, but the subject never captured the public’s attention.
3 Prime Minister King did not speak publicly about either civil liberties or the Defence of Canada Regulations. He did, however, express privately his concern over the whole question of wartime civil rights. In early February he wrote the secretary-treasurer of the recently founded Toronto Civil Liberties Association, and told him that he appreciated the importance of safeguarding the traditional liberties of the people during the war. King promised, notwithstanding Lapointe’s previous objection, to refer all the Defence of Canada Regulations to a House of Commons committee for study and review. The prime minister added that so long as his administration held office, ‘every precaution will be taken to ensure that the greatest degree of freedom, consonant with our belligerent status, will be preserved.’[126] This was fine, as far as it went. And Canadians probably had little to fear from a Liberal government in Ottawa. But the fact was, and this is the point entirely missed by King, that democracy can only be fully guaranteed by governments of laws, not of men. While the pre-election amendment of Regulation 39 to allow good-faith criticism of the government could be viewed as a positive development, the prime minister’s declaration, considered carefully, rings hollow. The excessive and unnecessary amendments to the regulations of early January 1940 were proof enough of that. Civil-liberties issues did not, however, affect the election results.
4 The election took place on 26 March 1940, and the result was a huge victory for the Liberal party: 184 Liberals were returned to a House of 245 members. The Liberals captured all but one of the Quebec seats and won an overall majority of the popular vote. The Conservative party, campaigning for a national government, had failed badly; it returned only 40 members. Its leader, unpopular ex-Liberal Robert Manion, lost his seat, effectively ending his political career. He was soon replaced by someone equally unpopular and even more ineffective: R. B. Hanson, a Fredericton lawyer. The CCF held on to its share of the popular vote, but won only 8 seats. The opposition of the leader of the CCF, J. S. Wordsworth, to the war had not helped the party anywhere, not even in Quebec. The Communist party lost almost all public support. Only one Communist, Dorise Nielsen, an expatriate Englishwoman, former member of the CCF, and tireless advocate of civil liberties, who called herself a Unity candidate, was elected to the House of Commons by the people of North Battleford, a rural riding in Saskatchewan. The new Parliament would assemble just in time to deal with the second great military crisis of the war.
1 On 9 April 1940 Germany invaded Denmark and Norway. One month later, German troops moved into Belgium and the Netherlands and then carried their campaign to Flanders and France. It took almost no time for the German army to smash through the French front, forcing British and French troops to retreat to Dunkirk, from where more than 300,000 of them were safely evacuated. Western Europe was in Nazi hands. On 10 May 1940, the day the Blitzkrieg began, Neville Chamberlain resigned and Winston Churchill, the first lord of the admiralty, became prime minister. In Ottawa the mood changed.
2 ‘The quietest war capital in Christendom,’ Maclean’s magazine reported, ‘has become a cauldron of excitement.’ Complacency, the report from the nation’s capital continued, had been replaced with a wholesome fear as the shadow of the swastika lengthened across the English Channel.[127] The Globe and Mail editorialized in a similar vein. It was the duty of Canada’s national leaders to lift the people out of their rut and make them realize the stupendous nature of the present conflict.[128] This was not sensationalist journalism. The minutes of the cabinet war committee recorded that the empire was in extremis and there was a reasonable expectation that an attempted invasion of England would begin any day. Prime Minister King agreed on 23 May 1940 to send Canada’s four destroyers to Britain, a decision he made with serious misgivings since he worried that the ships would never return.
3 The situation was very grave, indeed, and the very worst — Nazi subjugation of Great Britain — was not unreasonably feared. Responsible civil libertarians appreciated the serious crisis Canada faced. At a previously scheduled meeting to discuss civil liberties in wartime held in Montreal in mid-May, approximately five hundred people heard a slate of speakers, including J. C. McRuer, a prominent Liberal lawyer and future Chief Justice of the High Court of Ontario, who would write a seminal report on civil liberties in Ontario, unanimously agree that Canadians must be prepared to temporarily surrender some civil liberties in order that all their liberty might ultimately be preserved.[129]
4 On 15 May, at the conclusion of a trial of some Communist-party rabble-rousers in Ottawa who had been distributing a pamphlet entitled Withdraw Canada from the War, including the parliamentary press-gallery reporter of the now-banned Clarion, Ontario Supreme Court Justice E. R. Chevrier declared that the Communist Party of Canada was an unlawful association. The legal basis for the ruling was provided by the recent amendments to the Defence of Canada Regulations. Justice Minister Lapointe had been able to achieve indirectly what he had failed to achieve directly.[130] The ruling was criticized in communist circles, but applauded almost everywhere else. The Communist party had continued, if not increased, its opposition to Canadian participation in the war, and communist propaganda proliferated. Ontario attorney general Gordon Conant, who had previously called for stiffer measures against agitators, now renewed his request; he told the press that there was no reason why communists and other subversive disrupters could not and should not be rounded up ‘in a matter of hours after necessary and proper police investigation.’[131] Moreover, said Conant, judicial and other safeguards should no longer be applied to persons accused of subversive activity. While the traditional principles of innocence until proven guilty and proof beyond a reasonable doubt were ‘sacred’ and ‘inviolate,’ they should, Conant declared, be ‘removed in the present war emergency.’[132] Conant had, in fact, taken a hard line on the regulations from the start of the war. When, in September 1939 a group of United Church ministers published a pamphlet entitled Witness against War, which made the case for conscientious objection, Conant referred it to Ottawa and recommended prosecution on the basis that it would undermine enlistment. Sensibly, the federal authorities declined to become involved.[133]
5 Gordon Daniel Conant was a moderately successful Oshawa lawyer, with the touch of the country squire. He first ran for election in 1937 and won despite, or possibly because of, Premier Hepburn’s role in the Oshawa strike. He was immediately appointed attorney general and soon enough captured newspaper headlines for waging war against illegal slot machines that had begun to crop up in the province.[134] More than anything else, Conant believed in law and order, and if there was a law on the books he meant to enforce it.[135] The nation, he believed, came first. ‘The time has arrived when we here in Canada must awake to the situation and take this matter seriously and aggressively in hand.’[136]
6 That some kind of action was necessary was an increasingly popular view, encouraged, no doubt in part, by developments in Great Britain. Following considerable debate, the British Parliament passed the Treachery Act, and British authorities thereupon rounded up some of that country’s prominent Fascists, including Sir Oswald Mosley. Soon enough Canada passed a Treachery Act of its own, providing for a mandatory death penalty for any person convicted of assisting the military operations of the enemy.[137] The whole question of espionage was on many Canadian minds. A Globe and Mail editorial, for example, asked on 17 May 1940, ‘Are we safe from spies?’ The answer the newspaper gave was not that we were not. The editorial went on to say that it was conceivable that there were hundreds of Nazi spies operating in Canada. ‘They are highly organized and dangerous,’ the editorial continued, ‘they are everywhere.’[138] Former prime minister Arthur Meighen agreed and berated the government for its laxity, declaring that there were numerous fifth-columnists at work. Conant again asked Justice Minister Lapointe to do something.[139]
7 Lapointe was, unfortunately, in no position to give a reply. He was in residence at the Ottawa General Hospital, where he was undergoing treatment for a nervous breakdown. An important but tiring pre-election tour of the western provinces had sapped what remained of his strength. He had been wanting to resign for years and the last few months had taken their toll. Only his continuing sense of duty kept him in office.[140] He kept in touch with King, who on at least one occasion came to visit him, where he was relieved to find his Quebec lieutenant ‘greatly improved.’[141] And Lapointe conferred from his hospital bed with other cabinet members as well. Lapointe was discharged, just in time to attend the opening of the first session of the 19th Parliament on 16 May, but it was evident that he was far from fully recovered.[142] Soon enough, however, Lapointe was once again attending cabinet meetings. There was much to be discussed, including the whole question of internal security.
8 That issue was first raised at the 22 May 1940 meeting of the cabinet war committee. Prime Minister King reported that the public was becoming quite exercised over suspected fifth-column activities.[143] Lapointe advised the committee that the entire matter was under consideration.[144] This would not be enough, for there was criticism of the regulations from both the right and the left, the leader of the opposition calling for the re-enactment of section 98, and the head of the CCF concerned about excessive use of Regulation no. 21.[145] On 23 May Lapointe told the House of Commons that his government had been vigilant in preserving national security, and he noted with apparent approval the decision of Justice Chevrier in effect to ban the Communist party. But he offered nothing in the way of additional measures to meet the present emergency.[146] The situation overseas remained grave. In fact, it was getting worse.
9 King told the cabinet on 24 May 1940 that intelligence he received indicated that France might fall without immediate American assistance.[147] Three days later the cabinet was advised that there was a real possibility of Britain’s being invaded within one week.[148] The British Parliament passed amendments to the Emergency Powers (Defence) Act, which gave the government broad powers to conscript persons and property. In Canada, domestic security concerns were moved to the front burner, and a number of strategic industries were declared essential services so as to subject them to the direct application of the Defence of Canada Regulations. The right of appeal formerly enjoyed by interned enemy aliens was suspended, and the minister of justice was given additional authority to arrest enemy aliens believed to be acting against the interests of the state. Regulation no. 21 was, however, amended requiring the minister of justice to report to Parliament all cases in which he had declined to follow the recommendation of an advisory committee regarding an internment appeal.[149] Meetings on internal security began to be held almost around the clock. If England was lost, it was believed Canada was sure to be attacked next. Internal security was again discussed at a meeting on 3 June 1940. Unfortunately the minutes of that meeting do not give a full account of what options were considered. The decision taken was, however, revealed the next day.[150]
10 On 4 June 1940 the governor-in-council banned the Communist Party of Canada and numerous other communist groups. ‘Whereas the Minister of Justice reports,’ began PC 2363 of 4 June 1940 published several days later in the Canada Gazette, ‘that he is advised that there are within Canada numerous organizations of a subversive character which are intended, or are likely, to be prejudicial to the safety of the State it was desirable that such organizations be prohibited and that a regulation should be made for this purpose and added to the Defence of Canada Regulations.’ The Defence of Canada Regulations were accordingly amended to add a new regulation, no. 39C, which made the Communist party and a number of its affiliated groups illegal organizations and continued membership in them a crime. The order-in-council also provided that henceforth the government could ban any group or association merely by publishing a notice to that effect in the Canada Gazette. For good measure the new regulation also made RCMP officers justices of the peace for the purpose of issuing search warrants. Justified in order to save time, the effect of the new regulation was that any time a RCMP officer wished to search any premises all he had to do was prepare in his own hand an order giving him the authority to enter and search for any reason, or no reason. The January 1940 restrictions on the right to search were proven to be a mere sop to satisfy Lapointe’s critics.[151]
11 But both this order giving the RCMP unrestricted power to enter and search and the ban on the various Canadian communist groups were extremely well received. There was a widespread belief that communist-party members were actively frustrating the war effort, and to be sure, their defeatist propaganda had an extremely negative effect on public morale. Criticism, other than the partisan carping of the affected organizations, was limited and, if anything, was directed at urging that even more stringent measures be enacted. This remained the position of Attorney General Conant, who said that the ban on the Communist party was good, but that further steps to secure national security should be taken without delay.[152] Other annoying groups began to attract inordinate public attention; it was as if they had become a magnet for society’s anxiety. Very simply, the change in war fortunes led to demands that something be done, and while very little could be done to halt the Nazi advance overseas, here at home unpopular groups, as the Communist-party ban illustrated, could be easily suppressed.
12 How effective the ban would be remained to be seen. The Clarion, which had been closed down the previous fall, continued to publish and, in fact, another Communist party publication, The Monthly Review, also appeared from time to time. Notwithstanding their best efforts, the RCMP was unable to find the sources.[153] Although the national police force had hired hundreds of new recruits since the beginning of the war (a series of orders-in-council passed in September and November 1939 increased the size of the force, and in June 1940 another order was passed providing for five hundred additional recruits), its numerical strength had actually diminished. The new recruits merely replaced some members of the force who volunteered to serve overseas.[154] The force was small, understaffed, and not equipped to carry on anything but the most rudimentary police work. As far as intelligence-gathering was concerned, RCMP practices left much to be desired. For example, loyal citizens were asked in early June to mail intelligence tips regarding fifth-columnists to the RCMP intelligence division in Toronto. For its part, the Ontario Police Association announced that it was forwarding to Ottawa a list naming 111 persons who should be immediately interned.[155]
13 The international situation, it seemed, would get worse before it got better. On 10 June 1940 the Commonwealth lost an ally and gained an enemy: France fell and Italy declared war against the United Kingdom. The collapse of the free world appeared imminent. Additions to the list of the banned was the immediate government response. The various domestic Fascist organizations were added first; the Jehovah’s Witnesses were next.
1 On 12 June 1940 the recently elected member for Parkdale urged the government to ban the Jehovah’s Witnesses. Dr H. A. Bruce, a former lieutenant-governor of Ontario, in the midst of the first Commons debate on the Defence of Canada Regulations, told the House that the Jehovah’s Witnesses should be immediately added to the proscribed list.[156] Although Bruce’s was not the first such suggestion to be made, it created a stir in the House. Recommendations of this kind had first been made months before, by and large containing the same sorts of complaints: the Jehovah’s Witnesses were a disturbing, possibly dangerous, and definitely unpatriotic group. The cumulative effect of the calls for action was the consideration by Justice Minister Lapointe of various means by which Witness activities could be curtailed. In the end, Lapointe decided to outlaw the group.
2 One of the first requests for action against the Jehovah’s Witnesses came from the Liberal attorney general of Saskatchewan and future judge of the Supreme Court of Canada, J. W. Estey. On 17 June 1940, after observing with apparent approval the ban on communist and Fascist organizations, he wrote to Lapointe, urging him to impose a similar ban on the Jehovah’s Witnesses. Estey was concerned about the effect of the Jehovah’s Witnesses on military recruitment, although his letter does not provide any details about what influence, if any, they would be able to exert. The attorney general claimed to respect the ‘right of every individual to believe and worship according to his own conscience,’ but Estey could not ‘overlook the fact that when it comes to legal proceedings they [Jehovah’s Witnesses] must refer the matter to their officials in Toronto and apparently other matters to their office in New York.’ Further, Estey could not understand why the Jehovah’s Witnesses refused to recognize civil authority, and he concluded with the somewhat improbable observation that some German-born nationals were using the group as a kind of front organization through which they could agitate against the war in the guise of promoting a religiously inspired pacifism.[157] In addition, the Liberal attorney general of New Brunswick also urged action against the troublesome sect,[158] as did the RCMP, who had been watching them for years.
3 Indeed, the Mounties had already formed some definite views about the Jehovah’s Witnesses. By 1939 the RCMP had compiled a thick dossier indicating that the Jehovah’s Witnesses had been under police surveillance since at least 1933. ‘Whilst on patrol in the different districts in this detachment area,’ began a more recent report from Wakaw, Saskatchewan, in August 1939, ‘I made casual and discreet inquiries regarding the above organization. I found that there is a general feeling of dislike towards this organization. However, on no occasion did I receive information to the effect that this organization was advocating revolution, or were engaged in any subversive activities.’ The report concluded with the officer’s assessment that while the Jehovah’s Witnesses in question did not appear ‘to be the most desirable type of citizen as far as the progress of the country is concerned, they do not seem to have any designs on the country or government.’[159] Another report, by an officer who attended a meeting in mid-September 1939 in Kingston, Ontario, at which a recorded speech from the group’s leader, Judge Rutherford, was played, reached a similar conclusion.[160] By early 1940, however, these generally benign appraisals began to change. The sect was surely subversive, according to one RCMP officer, who included with his evaluation copies of Consolation, which he described as an ‘anarchistic’ periodical that attacked ‘established institutions.’ This report concluded with the recommendation that Ottawa take ‘appropriate action.’[161]
4 According to Witness records, 1939 and 1940 were not very different from 1937 or 1938, or any other year for that matter. The first year of the war brought no more arrests for disturbing the peace, unlawful assembly, peddling without a licence, or any other charge than the year before the war. Official opposition to the activities of the group throughout the 1930s was fairly constant: about one hundred of its members were taken into custody every year.[162] The increase in official attention is, therefore, not simple to explain. Certainly it was not because of their religious bigotry alone.
5 As religious bigots the Jehovah’s Witnesses had more than one rival. Thomas Todhunter Shields, for example, pastor of one of Toronto’s largest congregations, the Jarvis Street Baptist Church, equalled at least the fervour, if not the rhetoric, of Witness attacks on the Roman Catholic church. According to Reverend Shields, a Bristol-born, self-educated man eventually expelled from the Baptist Convention of Ontario and Quebec, the Roman Catholic church was a cancer gnawing at the vitals of the nation, which, if not stopped, would destroy society. One Sunday morning, several years after the war began, Shields revealed from the pulpit that the Roman Catholic church was ‘the fourth Axis power,’ and was, therefore, an ‘active fifth column.’ Indeed, Reverend Shields believed that Roman Catholicism was not even ‘Christian.’ Shields was filled with Christian charity for Catholicism’s victims. While he hated the religion, he wished only to deliver its followers, victims of an alien ideology, from their dark delusions.[163] For reasons about which one can only speculate, Shields, whose demagogic views reached perhaps a greater audience than all Canada’s Jehovah’s Witnesses combined, was never arrested or interned and his widely circulated Gospel Witness was neither censored nor suppressed.[164]
6 There was, however, one issue that more than any other thoroughly and completely aroused the public and set the Jehovah’s Witnesses apart from all other groups as the British Empire moved towards war. The Witnesses refused to sing the national anthem or salute the flag. Witness children bore the burden of orthodoxy to this view, for in many of Canada’s public schools the day routinely began with patriotic exercises. The Jehovah’s Witnesses had no intention of praying that God save the king or any other earthly creature. Flag saluting was equally obnoxious to them. Exodus, Chapter 20, verses 3–5, set out the biblical prescription against the flag.[165] Saluting was idolatry and therefore forbidden. Jehovah’s Witnesses would not salute the flag or any other symbol that stood for salvation through a means other than God.
7 In April 1940 reports began to make their way to RCMP headquarters and to appear in the press concerning youths who did not have the patriotism to stand up and salute the British flag. These people were regarded as dangerous. The people of Cobourg, Ontario, took matters into their own hands. In the first week of June an angry crowd of about one hundred men and women chased some Jehovah’s Witnesses who had been playing a Judge Rutherford record in a garage and kept them there until the police escorted them out of town.[166] Similar episodes occurred in other places: the Jehovah’s Witnesses had become, almost overnight, something more than an annoying sect. Their refusal to salute the flag was considered completely unjustified, and in early June 1940 the Supreme Court of the United States said the same thing. Paradoxically, it had released, just weeks before, a related decision involving Jehovah’s Witnesses, which extended all Americans' constitutional rights by finding that religious freedom was included in the Fourteenth Amendment to the Constitution, which forbids states from abridging any of the other protected constitutional rights.[167]
8 It was the flag-salute case, Minersville School District v. Gobitis, however, that attracted the attention of the Canadian press. In this case, the Court sustained the right of school-boards to require flag saluting as a condition of school attendance. The decision was released on 3 June 1940, just as the German army was concluding its successful invasion of Western Europe. Patriotic Americans reacted unfavourably to the unpatriotic Jehovah’s Witnesses. While the American government did not ban the sect, arguably the measures taken by private citizens to suppress it far surpassed government action taken against them anywhere else.
9 Jehovah’s Witnesses in the United States came in for even more criticism than they had in Canada. Some Americans claimed they were Nazis in disguise. Others pointed to their refusal to salute the flag, their militant evangelism, their attitude towards established churches, and their refusal to obey unrighteous laws as examples of seditious behaviour. The response, mostly in small towns, was as swift as it was brutal. In instance after instance (there were more than three hundred confirmed cases in forty-four states in 1940 alone), mobs of angry Americans attacked Jehovah’s Witnesses going about their usual work, playing phonograph recordings of Judge Rutherford’s sermons and preaching their message of Christ. Local police refused Jehovah’s Witnesses protection, and more than a handful of them joined in attacks on the group. Jehovah’s Witnesses' cars were regularly vandalized and their literature confiscated and destroyed. A handful were shot, and many were beaten. Hundreds of adult Jehovah’s Witnesses were arrested and brought to trial, charged with a variety of offences, the most common being sedition. Their crime was advocating another form of government, the Theocracy, the government of God. The American Civil Liberties Union (ACLU) described this activity as religious persecution unparalleled in America since the nineteenth- and early-twentieth-century attacks on the Mormons.[168]
10 The situation was so serious that U.S. Attorney General Francis Biddle went on national radio to appeal for restraint: ‘A religious sect known as Jehovah’s Witnesses have been repeatedly set upon and beaten. They had committed no crime; but the mob adjudged they had, and meted out mob punishment.’ Biddle announced that he had ordered an immediate investigation of ‘these outrages.’ Every American, Biddle declared, was entitled to the equal protection of the law. ‘The people,’ he added, ‘must be alert and watchful, and above all cool and sane. Since mob violence will make the government’s task infinitely more difficult, it will not be tolerated. We shall not defeat the Nazi evil by emulating its methods.’[169] The ACLU offered rewards for the arrest and conviction of persons persecuting the Jehovah’s Witnesses and maintained a keen interest in Jehovah’s Witnesses' fate, even if they, in turn, demonstrated little interest in the ACLU.[170] The catalogue of attacks steadily grew. In some quarters consideration was being given to the official suppression of the group.[171] If the United States banned the Jehovah’s Witnesses it would have been the second country in the world to do so. Ironically, Germany was the first.[172]
11 There is simply no doubt but that the Gobitis decision was the proximate cause of the mob attacks. In the two years following the decision Department of Justice files were filled with an ‘uninterrupted record of violence and persecution of the Witnesses. Almost without exception, the flag and the flag salute can be found as the percussion cap that sets off these acts.’[173] Biddle’s address, the posting of rewards, and the sending of a handful of cases to the grand jury for indictment had some effect in cooling the ardour of the American mob, although most grand juries refused to indict, and only one indictment resulted in a conviction. In that case, the chief of police and a deputy sheriff of Richwood, West Virginia, were found guilty of failing to protect the civil rights of seven Jehovah’s Witnesses who sought their protection from an angry mob. Instead of receiving police protection, the Jehovah’s Witnesses were forced by the police to drink large quantities of castor oil and were then tied up. Ultimately they were escorted by the police out of town on the end of a rope, although their escorts would stop from time to time in a vain attempt to force them to salute the flag. Apparently, this case was not an extreme one. The direct intervention of the attorney general, however, and the reference of some cases to local grand juries, greatly improved the situation. To much less effect, but also a factor, were the activities of the Civil Rights section of the Department of Justice. Established in early 1939, this section was charged with the responsibility for preventing and punishing disregard of Americans' constitutional rights.[174]
12 In the end most of the wrongdoers were not brought to justice. There were enormous investigatory problems as local authorities refused to co-operate (and often enough they were among the perpetrators of the crimes), and there was great difficulty in getting local grand juries to indict. The process itself was, however, to some extent a salutary one. Attacks on Jehovah’s Witnesses during the war would never entirely disappear, but the possibility of prosecution had a deterrent effect.[175]
13 While physical violence against members of the group declined, religious persecution remained; not only adult Jehovah’s Witnesses were under attack, so too were their children. Thousands of children were expelled from their public schools following the Gobitis decision, and in a few cases these children were seized on court orders and ordered removed to state institutions. All of these decisions were appealed and, in the end, none was upheld. Very few schools outside large urban centres, it appeared, merely excused Jehovah’s Witness children from morning exercises, even though there was nothing in the Gobitis decision to preclude arrangements of this kind.
14 Many Americans were appalled by the mistreatment of the group. The American Legion, for example, initiated and supported a bill passed by Congress that provided that full respect for the flag ‘may be shown when the pledge is given by merely standing at attention.’ According to the Civil Rights section of the Department of Justice, the effect of this act was to deprive state and local authorities from prescribing and enforcing a different measure of respect for the flag.[176] It would not be long before the U.S. Supreme Court in West Virginia State Board of Education v. Barnette reversed the Gobitis decision and held that school-boards could not expel children for refusing to salute the flag.
15 The suppression confirmed Witness beliefs that Christ and Satan were locked in mortal combat and that the end of the world was soon to come. However, that did not stop Witness lawyers from fighting back. Although Judge Rutherford was a lawyer, as president he could not devote as much time as was necessary to the Jehovah’s Witnesses' legal affairs, and so he invited a Wisconsin attorney, Olin Moyle, to come and live at the Brooklyn Bethel, the office and home of full-time Witness employees. Moyle’s job was to take charge of the legal department, and he set up a network of lawyers across the United States to serve Jehovah’s Witnesses' legal needs. A competent but not inspired man, Moyle did not hold tenure long as the top Witness lawyer. He was dismissed ‘by reason of his unfaithfulness to the Kingdom interests and to those who serve the Kingdom,’ and soon thereafter he was disfellowshipped, the Witness equivalent of excommunication.[177] Moyle was replaced by a brilliant, hard-drinking Texan named Hayden Covington. Born in 1911 in Hopkins County, Texas, Covington studied law at the San Antonio Bar Association School of Law and was admitted to the Texas bar in 1933. The following year he was baptized a Jehovah’s Witness and in 1939 he was invited to join the legal staff at the Brooklyn Bethel.[178] It was under his direction that many Jehovah’s Witnesses' cases would be fought all the way up to the U.S. Supreme Court.
16 Following the U.S. Supreme Court decision in Gobitis, the Department of Justice was flooded with complaints from Jehovah’s Witnesses and others about the violation of their constitutional rights. The public profile of the group did not improve until a different scapegoat came under attack, Japanese Americans. When the war with Japan began in December 1941 public attention shifted to this new ‘enemy’ within. The treatment of the Jehovah’s Witnesses was, it turned out, no more than a practice session in the repression of Americans' constitutional rights. The difference, of course, between the treatment of the Jehovah’s Witnesses and that of Japanese Americans was that the former was, for the most part, privately inspired while the latter was directed by the state. In Canada the wartime persecution of the Jehovah’s Witnesses, like that of Japanese Canadians, was almost entirely the work of the state (although there was undoubtedly private action taken against Jehovah’s Witnesses as well). But in both countries, the security concerns supposedly raised by west-coast Japanese would eventually result in a diminution of interest in the Jehovah’s Witnesses, as attention shifted to this much more visible group. In the meantime, the Jehovah’s Witnesses were the focus of attention.
17 By 24 June 1940 the RCMP was insisting that official action be taken against the Jehovah’s Witnesses. Religion was not the issue, RCMP commissioner Wood wrote to the deputy minister of justice, W. Stuart Edwards. Subversion was. Witness literature, many complained, was against the Red Cross as well as organized religion. Further, it was reported, persons of German origin formerly active in Nazi groups were now taking part in the work of Jehovah’s Witnesses.[179] Wood ‘strongly recommended’ that the minister of justice declare the Jehovah’s Witnesses ‘illegal’ under the provisions of the Defence of Canada Regulations.[180] Four days later, following the apparent failure of the appeal for immediate action, Commissioner Wood wrote to the minister of justice again. Their activities were getting worse, Wood said, and they should be banned right away.[181]
18 The Jehovah’s Witnesses had no way of knowing about the official letters and reports making their way to Lapointe’s office in Ottawa. But letters and official reports were hardly necessary to drive home the fact that, for Jehovah’s Witnesses in Canada, difficult days had arrived. ‘Thick darkness covers the earth. Distress and perplexity have increased in this country,’ the 1940 Yearbook of Jehovah’s Witnesses said about Canada. ‘The religionists are now rallying quickly to the standard raised by the Government, and hence they more openly identify themselves against the Theocracy. We well know that opposition must increase until all nations have shown themselves as against the Theocracy, and then Jehovah will fight. With full trust and confidence in Jehovah we will go forward, raising high the banner he has placed in our hands and shout aloud, “Victory, for our King, Christ Jesus, and salvation to the obedient!” We are not afraid of the enemy, because Jehovah is with us, and they shall not prevail against [us]. Hence, with calmness and with peace we go forward in the fight.’[182]
19 When Dr Bruce called on the government to suppress the sect, the Witness leadership in Toronto became concerned. Two men were then in charge of Canadian operations, Percy Chapman and Charles Wainwright. As soon as they learned of Bruce’s speech in the House, the two Witness leaders decided to obtain legal counsel.
20 While arrested Jehovah’s Witnesses sometimes retained counsel, such as R. L. Calder in Quebec, their general practice was to defend themselves in court. The cost of providing every arrested Jehovah’s Witness with a lawyer would have been prohibitive. And by representing themselves, Jehovah’s Witnesses could spread the good word. For this same reason, Jehovah’s Witnesses were encouraged not to pay fines even if they had the financial resources to do so. A prison term was just one more opportunity to do the Lord’s work. Jehovah’s Witnesses were not, however, left entirely to their own devices. The Brooklyn legal department prepared a booklet entitled Order of Trial which instructed Witnesses on what to do when they were brought before a judge. These practical suggestions were often complemented by mock trials held in Kingdom Halls.
21 The American booklet, retitled Advice for Kingdom Publishers, was adapted for use in Canada and distributed in large numbers to Canadian Jehovah’s Witnesses. Defending oneself when charged with peddling without a licence was serious enough. But what Dr Bruce proposed was far graver than anything the Jehovah’s Witnesses had yet to confront. The need for experienced counsel was self-evident, and they chose Jacob Laurence Cohen of Toronto.
22 Cohen was born in Manchester in 1898; his father, a hatter, brought his family to Canada in 1905 but died a few years later. Cohen left school at the age of thirteen and wound up working as a clerk in a Toronto law office. He finished high school at night and eventually enrolled at Osgoode Hall Law School, where he stood first in his class. He was called to the bar at age twenty-one and soon, as he liked to put it, began representing ‘all the wrong people in all the right things.’[183]
23 From his office on Bay Street in Toronto, Cohen, a small dapper man with a swift tongue, a large ego, and a harsh, unattractive personality, wrote masterful legal briefs. If there was a wrong, Cohen believed, then the law was there to make it right.[184] He represented demonstrators arrested outside the U.S. Consulate, protesting the execution of anarchists Nicola Sacco and Bartolomeo Vanzetti. He acted on behalf of numerous trade unions, and, while never a communist himself, he was one of a handful of lawyers in Canada willing to represent members of the Communist party who in the late 1920s and early 1930s increasingly found themselves the objects of petty police persecution. For the Jehovah’s Witnesses, Cohen was a good and a natural choice. He was no stranger to unpopular cases or causes; his work with communists and trade unions was ample evidence of that. He had a sympathy for the underdog and was, in his own way, a straight shooter. He refused to accept cases without any prospect of success and he went into court and argued law; any other instructions Cohen refused to accept. Moreover, he was an exceptionally talented lawyer.
24 The day after Dr Bruce called for the Jehovah’s Witnesses to be added to the suppressed list, Chapman and Wainwright met Cohen and hired him. ‘We engage your services to advise us,’ the formal retainer agreement provided, ‘and to act in our interests to prevent possible action being taken by the Federal Government against Jehovah’s Witnesses, in view of Dr Bruce’s statement that Jehovah’s Witnesses are a subversive group.’[185] That serious state action against the group was possible was evident by the government’s treatment of other organizations, such as the Communist party.
25 Concerns over the international situation and about internal security continued. Ontario, for example, initiated plans for a ‘home guard,’ and at the cabinet war committee meeting on 14 June 1940, Chubby Power, acting minister of national defence, reported that he had received numerous requests from provincial authorities for civil guards to maintain order and to secure vulnerable points. Indeed, the premier of Manitoba was asking for authority to raise ‘rifle clubs’ and have them supplied with arms. The committee rejected this request, but it was obvious to everyone that possible fifth-column activity was a matter of vital public and political concern. There had been very limited negative public reaction to the banning of the various communist and Fascist groups. The only related issue that did make it to the agenda was some discussion about the fate of Canada’s Japanese. The concern here, as both these minutes and subsequent events establish, was not with the rights of Japanese Canadians but with the threat to national security some claimed they posed.[186]
26 The mass internments of suspected political agitators that came in the wake of the banning of the communist and Fascist groups may have alleviated some of the fears about the threat from within, but the threat from overseas remained. France fell, but a brilliant and ambitious French general named Charles de Gaulle formed a government in exile. The Battle of Britain continued, and a Nazi invasion appeared imminent. Prime Minister King wrote in his diary on 16 June 1940 that the situation was so grave that it was time to look to the safety of Canadian shores. The possibility of an Axis attack on Canada was no longer remote.
27 More serious measures were required, and on 18 June 1940 the National Resources Mobilization Act[187] was introduced in the House of Commons. The NRM Act received Royal Assent three days later, and authorized the Cabinet to make orders and regulations requiring persons to place themselves, their services, and their property at the disposal of the government ‘as may be deemed necessary’ for securing the public safety and public order, the defence of Canada, and the efficient prosecution of the war. The NRM Act was clearly modelled on British legislation passed the previous May. (By amendment to the Emergency Powers [Defence] Act,[188] the British Parliament provided the government with the authority to introduce regulations requiring ‘persons to place themselves, their services, and their property at the disposal of His Majesty.’[189] The Canadian legislation did exactly the same thing.) There was only one exception to the broad and generalized powers authorized by the NRM Act: there would be no conscription for overseas military service. Nevertheless, the act was viewed by many Quebeckers with real suspicion. Every Canadian man and woman was required to register with the government, and who was to say that this registration was not just a prelude to conscription? Quebec fears would have to be quelled; if they were not the situation could turn ugly as it had in the First World War. The Roman Catholic hierarchy in Quebec came to the rescue.
28 ‘From his Cathedral in Quebec City, Cardinal Villeneuve instructed the clergy to call on their people to obey the law and fulfill the duties which the civil government required of them.’[190] The citizen, Cardinal Villeneuve believed, had no right to choose which laws to obey and which to break. Not everyone felt this way. Camillien Houde, the extremely popular mayor of Montreal, urged French Canadians to defy the law. Houde’s outburst required Lapointe to end his convalescence and return to work. The minister of justice immediately ordered the Montreal mayor interned. To avoid a potentially embarrassing situation, the cabinet passed a new order-in-council providing that no internee could stand as a candidate for public office.[191] L’Action Catholique, the church’s pious daily,[192] roundly denounced Houde and praised Villeneuve. ‘His Eminence,’ said the newspaper, ‘had acted in accord with our best traditions.’[193] A related development was passage, again by order-in-council, of another amendment to the Defence of Canada Regulations, putting the assets and property of proscribed organizations under the control of the custodian of enemy property.[194]
29 And now attention returned to the Jehovah’s Witnesses. The RCMP recommendations, along with the provincial appeals, went a long way towards encouraging Justice Minister Lapointe to add the group to the list of unlawful organizations. Also important were the demands for state action from the province of Quebec. In all of Canada, Catholic Quebec was the centre of indignation over the group’s religious activities. In the months leading up to the war the Jehovah’s Witnesses there, like members of the Communist party, attracted their share of petty official harassment as they went about their proselytizing work.[195] Quebec had a statute, the Freedom of Worship Act,[196] dating from 1851, that gave the people of the province something akin to a religious bill of rights, but in the social climate of the day, the religious freedoms guaranteed by that statute did not in practice extend to the Jehovah’s Witnesses. The French-Canadian concept of religious liberty, Cardinal Villeneuve taught, did not mean freedom of religion for all. What it meant was protection from the religious ideas of others.[197]
30 For protection from the religious ideas of the Jehovah’s Witnesses, Quebeckers looked to Ernest Lapointe. Throughout the 1930s, staff at the Department of Justice was kept busy answering correspondence from priests and their flocks appealing for action.[198] Lapointe, his correspondence reveals, was concerned. There were many things disturbing to him and to all Quebeckers about the Jehovah’s Witnesses: their persistent visits, often on Sunday mornings, interrupting preparations for church; their phonograph records, their sound cars, trucks, and boats bringing an unwanted message in a way not easily ignored. Perhaps most disturbing about the sect was their literature with its unflattering pictorial portrayals of the pope and the episcopate. Their literature was equally offensive, but dense and ponderous as it often was, it had much less effect.
31 It is, therefore, hardly surprising that one of the first things that Lapointe did in response to early Quebec calls for action against the group was to look at means of restricting distribution of their literature. Under the Censorship Regulations and, after they were revoked, the censorship provisions of the Defence of Canada Regulations, it was thought, Witness literature could be easily suppressed. When early on in the war the Jehovah’s Witnesses made application for use of long-distance telephone wires to carry the broadcast of a major speech by Judge Rutherford, censorship authorities in Ottawa had no hesitation in turning down the request. In April 1940, however, the matter of censoring and thereby suppressing Witness literature was referred to the Office of Press Censors, the institution established to co-ordinate press censorship during the war.[199] By mid-June, Justice Minister Lapointe had his reply. The press censors would not ban Witness literature.
32 After giving their literature a thorough review, press censors F. Charpentier and W. Eggleston determined that, while much of the material was undesirable, there was no basis to suppress the literature under the Defence of Canada Regulations.[200] In fact, the two press censors observed, to Lapointe’s undoubted consternation, the Jehovah’s Witness literature revealed a trend towards anti-Nazism, thereby weakening any case for the censorship of the group’s publications.
33 Indeed, there really was not much of a case in law against the organization, and Lapointe realized as much. On 31 May 1940 he wrote Commissioner Wood, returning some Witness materials that Wood had earlier forwarded to him. There was no doubt, Lapointe wrote, that some statements in the materials were anti-British and anti-American. However, Lapointe ordered the RCMP to instruct complainants to communicate with their provincial attorney general. The minister of justice wanted no more to do with the Jehovah’s Witnesses.[201] In a matter of weeks, this order was reversed as mounting pressure forced Lapointe to change his mind.[202]
34 As the international situation deteriorated, appeals for action against the Jehovah’s Witnesses accelerated. They were all from Roman Catholic groups and they came from across the country. The Synod of the Diocese of Kootenay, for example, passed a resolution requesting that the Jehovah’s Witnesses be ‘thoroughly investigated by the police.’[203] L’Action Catholique editorialized against the sect on 20 June 1940. The Jehovah’s Witnesses were, the paper said, public enemies. They were a fifth column and more dangerous than any other group.[204] In the unlikely event that the editorial did not make its own way to Lapointe’s attention, Cardinal Villeneuve arranged for the minister of justice to receive a copy. On 27 June 1940, Monsignor Paul Bernier, the chancellor to the cardinal, wrote to Lapointe, enclosing with his letter a copy of the editorial. The Jehovah’s Witnesses and their publications, Monsignor Bernier wrote, were demoralizing and destructive of the spiritual strength of the country.[205]
35 To Lapointe, who struggled manfully to reconcile the sometimes competing interests of French and English Canadians, and who was now desperately trying to maintain national unity during a world war, the message implicit in this correspondence could not be more clear. A troublesome and nasty sect with an influence and impact far out of proportion to their numbers was disturbing the fragile balance he had devoted his political life to preserving. Cardinal Villeneuve was clearly behind the correspondence, and Lapointe appreciated how important the cardinal’s efforts were in maintaining domestic peace. Also influential, but to an undetermined extent, were Lapointe’s own religious views.[206] The demands for action, at first tentative and isolated, then a persistent din and now an audible roar, could no longer be ignored.[207]
36 In all of this the Jehovah’s Witnesses were not sitting idly by.[208] On 3 July 1940 J. L. Cohen was asked by his new client to make a representation on its behalf to the committee earlier promised by the prime minister and now established by the House of Commons to consider the Defence of Canada Regulations. Cohen wired Ottawa and asked for an appointment.[209] That same day an official at the Department of Justice rejected Cohen’s request. As P. M. Anderson, a senior official in the department, explained in a return wire to Cohen, there was no point in coming to Ottawa since ‘the matter’ had already been considered.[210]
37 Cohen wired Anderson right back. It would be most unfortunate, the Witnesses' lawyer wrote, for any action to be taken against the group without at least giving its officials an opportunity, which they had been seeking since their group was first discussed in the House of Commons, of making representations and presenting their case and position to the federal government. In the strongest possible terms Cohen requested an immediate appointment.[211] The next day, Anderson gave his final reply and repeated that no purpose would be served by a meeting.[212]
38 Justice Minister Lapointe, with well more than a dozen groups already on the proscribed list, decided to add another to their number. In all probability, Mackenzie King merely acquiesced in the decision.[213] The precedential value of having already banned other associations undoubtedly contributed to the move.[214] Lapointe had not given the Communist party an opportunity to make representations before declaring it illegal, nor had any other group been given any hearing. The fact that all the other groups were political and that the Jehovah’s Witnesses were religious did not, according to the documentary record, enter into Lapointe’s decision to suppress the group. So it was, on 4 July 1940, that it became illegal to be a member of the Jehovah’s Witnesses. If Prime Minister King took notice of the ban he made no mention of it in his diary, while in Parliament the order-in-council amending the Defence of Canada Regulations and declaring illegal ‘the organization known as Jehovah’s Witnesses’ was simply announced.[215]
39 This news was immediately communicated to the cardinal of Quebec. Lapointe’s private secretary telephoned Monsignor Bernier at the cardinal’s palace in Quebec and thanked him for his letter and for the copy of the editorial from L’Action Catholique, and advised him that the Jehovah’s Witnesses had been declared illegal.[216] The next day another editorial appeared in L’Action Catholique. Now that the sect has been declared illegal, the paper said, repression will be easier, quicker, and more effective.[217] For his part, the cardinal was delighted.[218]
40 This development was initially reported in the press without comment.[219] The Jehovah’s Witnesses' leadership in Toronto was shocked, but it had already begun to prepare for the worst. That the ban was imminent was brought to their attention a day or two before it actually took place, and around 3 July Jehovah’s Witnesses at the downtown Toronto headquarters on Irwin Street began to work furiously, destroying membership lists and other documents. They worked through the night, continuing until the police arrived late the next day to close the building down.[220]
41 Would the group be able to carry on? Justice Minister Lapointe obviously hoped that it would not. But he himself would soon enough be unable to continue. Prime Minister King realized that all was not well, and on 24 June 1940, a week before the Jehovah’s Witness ban, had considered replacing Lapointe and appointing him to the presidency of the Privy Council. The duties of the post were far from onerous, but the prestige remained high. Lapointe needed a rest. King, however, decided that he needed Lapointe exactly where he was.[221] The prime minister, whose assessments of men were generally correct, had made a mistake. Lapointe was literally on the brink of collapse. The holiday King had earlier advised had not done any good.
42 On 11 July a visibly upset Lapointe came to see the prime minister and announced that he was afraid that he was suffering a complete nervous breakdown. ‘Thereupon, he began to cry like a child,’ King recorded in his diary. ‘I went over and sat beside him,’ King continued. The prime minister told his minister of justice that he was not surprised. Lapointe moaned. He told King that he could not sleep, and said, ‘“I hope I am not leaving too much to you and that you will be able to get along without me.”’ King then told him that he should get away for a nice long rest. ‘We then talked a little together,’ King wrote in his diary, ‘during which time he repeatedly broke down. I did my best to reassure him, saying that in another week, he would feel quite different and that at the end of two weeks, would not know himself, but not to bother with the rest of the session … He seemed very grateful and quieted himself and then went out by the side door into the hall, and said he would get straight away.’[222] In fact, the minister of justice never got his strength back. His physical and mental condition may have made him susceptible to pressures he might have withstood had he been well and had the country been at peace. But he was not and it was not, with the result that suggestions that should have been dismissed became government policy. For Lapointe, the war was effectively over in July 1940. For the Jehovah’s Witnesses it had just begun.
1 When the Communist Party of Canada was banned in June 1940 more than a hundred activists were immediately interned, and the top leadership went into hiding in the United States with the result that the scope and range of communist-inspired activity was significantly reduced. Similarly, after the leader of the National Unity Party, Adrien Arcand, was interned, the remnant of the membership went underground, never to significantly reappear. In contrast, when the Jehovah’s Witnesses were banned, their activity and numbers began to increase.
2 There was absolutely no question of state action terminating Jehovah’s Witness work. ‘How could a puny human power stop the work of Almighty God?’[223] The Witnesses were convinced that Satan was behind the ban, and that he had acted once again through his earthly instrument, the Roman Catholic church. ‘In 1940 political tools of the Roman Catholic Hierarchy guided the nation into outlawing freedom of worship, the freedom hated most by the intolerant Hierarchy, and the one most prized by Christian freedom lovers,’ Consolation later explained.[224] The charge of ecclesiastical interference in a secular matter was not without foundation, but the Roman Catholic intervention was only one of many factors that led to the banning of the group. Nevertheless, there was widespread suspicion that the sect was proscribed at the Quebec clergy’s behest.[225] Cardinal Villeneuve’s intervention may have been the straw that broke the camel’s back, but it is unlikely that it alone could have led to the ban. The Roman Catholic church was not, after all, the only organization calling for state suppression of the group. The RCMP, at least two provincial governments, and countless private organizations and individuals also made representations to Ottawa for action of this kind. Whatever the motivation, or proximate cause, the Jehovah’s Witnesses believed the act itself was an illegitimate use of state power in violation of biblical precepts concerning Jehovah’s Witness work. As such, it was to be ignored. The Jehovah’s Witnesses were also determined to convince the government to rescind the ban, and Witness activity from July 1940 forward was directed towards the achievement of this goal.
3 The immediate question the Jehovah’s Witnesses faced, once their Toronto headquarters was closed, all their literature seized, and their bank accounts frozen, was how to organize their missionary work. A secret letter, intercepted by the RCMP, set out the Witness strategy for continuing God’s work while under ban.[226] ‘The Devil has been permitted to break into the line of communication established throughout this country for contacting all lovers of righteousness,’ the letter to zone servants began, and while it was probably wrong about who was behind the communications disruption, it was right that communications were down. On orders of the RCMP, mail sent to what was once Witness headquarters in Toronto was rerouted to Ottawa, presumably for police inspection.[227] However, as the letter to zone servants went on to say, ‘The preaching of the gospel of God’s Kingdom will continue … All will do their utmost to fully cooperate.’
4 The zone servants were regional superintendents charged with ensuring the faith of the flock. In anticipation of the end of the world and the institution of God’s government every country in the world where Jehovah’s Witnesses work, including Canada, was and is divided into regions, the regions into zones, and the zones into companies, which are the congregations in which individual Jehovah’s Witnesses worship.
5 In normal times this network, directed from headquarters in Brooklyn, New York, operated smoothly enough. When the Canadian branch was banned, serious problems resulted since their monopoly on religious truth made maintenance of orthodoxy in study and in prayer absolutely essential. At no time was their doctrinal purity put to a greater test than when membership in the group itself was declared by the state to be a crime. What the Jehovah’s Witnesses had to do was to keep their message and their mission operating in the midst of state repression. The letter to zone servants explained the Jehovah’s Witness strategy for doing so.
6 First, the Theocracy must be obeyed completely. Zone servants were to contact company servants and individual members of the flock to minister to their needs and assist them in rendering service to the Lord. In some instances, where appropriate (presumably meaning where there was no danger of police interference), zone servants might meet with ‘some of the very interested’ and possibly with small groups of brothers and sisters. With the organization banned, normal lines of communication interrupted, delivery of literature from the United States prohibited, and Canadian printing presses shut down, it was not hard to see how congregations might go astray.[228]
7 Accordingly, in meetings with the flock, the zone servants' main instruction and objective was to ‘help all to keep in line.’ They were to carefully watch anyone who was attempting to step ahead of the organization and assist those who were lagging behind. Meeting places were to be changed from time to time and companies that grew too large were to be divided for the safety of the congregants and the future of the flock. That there was to be a future was never in doubt. Also not in doubt was the continuation of mission work while under ban.
8 The war and the ban were just two more signs of the world’s imminent end. Jehovah’s Witnesses believed that their message was more urgent than ever so that all persons desiring to live under the righteous and perfect conditions of the New World could declare themselves for Jehovah.[229] ‘The people of Canada have a right to hear,’ the Jehovah’s Witnesses believed, ‘and it is not the prerogative of any creature, or any government, to prevent the Lord’s message from going to the people in this land.’[230]
9 As the ban made it an offence to be a Jehovah’s Witness the group altered its methods in the hope of avoiding police prosecution. Literature, Jehovah’s Witnesses were advised, need not be taken on the first call; all they needed to carry was the Bible. For obvious reasons, Jehovah’s Witnesses were cautioned to avoid appearing to be doing systematic work. Instead of proceeding from door to door, they should cultivate a more haphazard approach in their canvassing work. When they got to a door, the letter suggested, the call should begin with a general inquiry about world conditions, business, health, or crops. This discussion could easily be turned, at the appropriate moment, to biblical prophecy. If the person was keen, ‘a person of good will,’ soon enough he or she would be invited to join a Bible study session. That session, or one following it, would ultimately lead to baptism and full membership in the group. In this way, it was hoped, the work of Jehovah would continue.
10 Overall, the strategy was successful. At the start of the war the Jehovah’s Witnesses numbered approximately 3,000. By the middle of the war (when the group was still under ban), there were 4,000 members, and at the end of the war there were between 10,000 and 15,000.[231] The RCMP looked at these numbers and wisely decided against internment as a cure for the Witness ‘disease.’ It was not RCMP policy to intern these ‘misguided people,’ stated Staff Sergeant Johnny Leopold, the intelligence officer who had some years earlier made a name for himself through his successful infiltration of the Communist Party of Canada, and who was now assigned, among other duties, to watching the activities of proscribed groups.[232] RCMP policy was to prosecute Jehovah’s Witnesses as necessary.[233] One criticism of this policy was that the RCMP was not in charge of all prosecutions under the Defence of Canada Regulations. Provincial attorneys general shared responsibility with federal authorities for approving prosecutions, and some prosecuted, while others did not.
11 No attorney general was more zealous than Ontario’s, G. D. Conant,[234] and scores of Jehovah’s Witnesses in the province were soon arrested, with Cohen travelling throughout the province, seeing to their legal needs.[235] The practice in Ontario was generally as follows. Local crown attorneys would write the attorney general in Toronto and request permission to lay charges.[236] Sometimes a summary of the case would be included with the request; whether it was or not, all requests, according to available records, were granted. Jehovah’s Witnesses were charged with a variety of offences.[237] Some Jehovah’s Witnesses, for example, were charged, under Regulation no. 39C, with the offence of being a member of an illegal organization.[238] However, when these cases got to court it was often difficult to prove that a person was still a member of an organization that had been declared illegal under the regulations. A person could not be convicted merely because some police officer concluded that the person he arrested was a Jehovah’s Witness. At the very least a confession or documentary proof, such as a membership card, was usually required by the court to meet the membership test.[239] As convictions under this offence were relatively difficult to obtain since Jehovah’s Witnesses generally refused to admit membership in the group, the practice gradually developed of charging Jehovah’s Witnesses under Regulation no. 39A, which made it an offence to circulate literature likely to cause disaffection to His Majesty. Despite the recommendation in the letter to zone servants that Jehovah’s Witnesses stop carrying literature with them when they went out to preach, many continued to do so, in order to illustrate their ideas to persons who expressed interest in their message.
12 Carrying Jehovah’s Witness literature was not a prerequisite to arrest. Some Jehovah’s Witnesses were arrested even though the only literature they happened to be carrying was the Bible. They would be charged with spreading disaffection by word of mouth and, for good measure, with being a member of an illegal organization. After their arrest they would be taken to jail and, usually the next day, appear in magistrate’s court. Cohen could not represent every Jehovah’s Witness charged with an offence, and it remained Witness policy for individuals to represent themselves in court and thereby give witness to the judge, jury, and anyone else who happened to be there. If sent to prison, they would give witness there too.
13 Arrested Jehovah’s Witnesses were not left to the mercy of the court; they had the pamphlet Advice for Kingdom Publishers to help them mount their own defence.[240] First, they were told to pray before starting out on missionary work: ‘Be bold but not rude, remembering that you are backed up by the Lord in your work and you are doing His will.’[241] More practically, Jehovah’s Witnesses were advised to say, when accosted by the police, that they were ordained ministers sent forth by the Lord to preach the gospel of His coming Kingdom. The pamphlet predicted that some police officers would not be impressed. If that was the case, the Jehovah’s Witness was to accompany the police officer to the police station if placed under arrest, and he or she was instructed to co-operate and not to resist. Once in custody, the Witness was to continue his or her missionary work, although it was much better if someone would post bail, and in that case the Witness was advised to carry on as if nothing had taken place.
14 The pamphlet stated that, if absolutely necessary, a lawyer could be hired for trial, although this was only recommended for cases going to appeal, and if possible, the lawyer retained should be one favourably disposed to ‘the truth.’ These lawyers were somewhat difficult to find; however, in most cases legal counsel was not necessary. Advice for Kingdom Publishers drew to the attention of accused persons appropriate scriptural passages for virtually every contingency. Other advice was provided as well, and facsimiles of legal forms, for example, requesting that the case be dismissed, formed part of the text. Jehovah’s Witnesses were instructed on how to request a jury trial, a crucial point. To be tried before a jury was preferable to standing before a judge. Not only did a jury provide an audience to which to witness, but jury trials were available only for indictable offences that had broader rights of appeal. But the choice to proceed summarily or by indictment was the crown’s alone, and the prosecution invariably chose to proceed summarily. While incomplete records preclude anything more than a tentative conclusion, it seems most magistrates had little time and less interest in a biblically based Jehovah’s Witness defence, and so would readily convict on finding literature or other evidence pointing to membership in the proscribed group.
15 Because most cases came before local magistrates, there are extremely few reported decisions about prosecutions during the war for breach of the Defence of Canada Regulations. Magistrates generally do not give written reasons for decision, and so while the disposition of cases that come before them is known to both the crown and the accused, to the historian the result is lost. The court history of prosecutions under the Defence of Canada Regulations cannot be written.[242] The Jehovah’s Witnesses, however, kept and continue to keep excellent records. This is necessary so that when judgment day comes the good will be saved and the wicked punished.[243] According to their files there were five hundred Jehovah’s Witness prosecutions during the war. How many individual Jehovah’s Witnesses were prosecuted is, however, difficult to say, for it is certain that many of these five hundred were repeat offenders.[244] As the war progressed the police became less and less interested in tracking the Jehovah’s Witnesses down. For their part, the Jehovah’s Witnesses became adept at avoiding capture by the police. As a result, the number of charges against them began to decline.
16 The number of other Canadians prosecuted under the Defence of Canada Regulations is almost impossible to say. Approximately one thousand people were charged and convicted under the Defence of Canada Regulations in each of the first four years of the war.[245] Overall, there were hundreds, but probably not thousands, of convictions. Most of the non-Jehovah’s Witnesses who were charged under the Defence of Canada Regulations were prosecuted, not because they breached internal security, but because they made insulting and disloyal remarks in saloons, or distributed defeatist propaganda of either a Fascist or a communist bent. Most convictions resulted in small fines, although the systematic distribution of enemy propaganda usually earned the propagandist a short jail term.
17 Some persons charged were treated differently than others. What happened to George Drew is a case in point. An eloquent lawyer from Guelph, Drew was elected leader of the Ontario branch of the Conservative party in 1938. In 1943 he led the party to power by a narrow margin. Drew was first charged on 25 December 1941 for criticizing the government’s conduct in the disastrous capture of Canadian and other Allied troops in the garrison at Hong Kong. The second charge, on 25 June 1942, was for alleging that the inquiry into the loss of these troops by Supreme Court Chief Justice Lyman Duff was a cover-up. Both charges were withdrawn on 10 July 1942.
18 Charging and convicting persons for distributing defeatist propaganda was one thing, but charging and convicting a public figure for criticizing the government’s handling of a military matter or charging someone for saying ‘Down with the king’ while intoxicated in a saloon was another. It is difficult to see what public interest was threatened by remarks of this kind. Throughout the war, nevertheless, and especially in its first two years, many Canadians were charged for offences no more serious than this, thereby bringing the Defence of Canada Regulations into disrepute.[246]
19 Almost all Jehovah’s Witnesses who were charged were convicted,[247] although such matters did not unduly concern the Jehovah’s Witnesses. Indeed, they welcomed them. ‘A great witness has been given in and through the courts by our brethren,’ the 1942 Yearbook of Jehovah’s Witnesses later reported. ‘For instance,’ it continued, ‘a witness leaves a booklet at a door, and is arrested, tried, and imprisoned. Fifty or more people listen to his defense in court. Fifty or more talk with him when in prison, and thousands read about it in the newspaper. In this way Jehovah’s name and the acts of His witnesses are carried to many.’[248]
20 It is hard not to admire, albeit somewhat grudgingly, the commitment to conscience of these Jehovah’s Witnesses. Cases reported in the press emphasized this point. One woman who found herself in court was offered release if she agreed to stop attending Witness meetings and to stop distributing literature. Her reply was simple enough. ‘I will not deny Jehovah,’ she told the court, ‘nor will I agree not to do His will.’[249]
21 In Ontario, the practice of approving prosecutions whenever asked proved quite unpleasant to some local authorities. Many of the smaller Ontario judicial districts had no need for a full-time crown attorney, and local lawyers were engaged as required. When it came time to prosecute local people in the local courts, these local and part-time crowns periodically displayed less-than-complete enthusiasm for their task. When, for example, one local part-time crown attorney recommended lenience and asked the attorney general for advice, the recommendation was accepted.[250] Even when there was the will to prosecute, there was not always the way. An RCMP officer reported from Cobourg: ‘It is known that they are having irregular meetings but the location of these meetings cannot be learned. They are at different places each time, according to our information, and they are very hard to find.’[251] In most cases, however, the police did not have to go looking for Jehovah’s Witnesses, for their regular work brought them readily enough to the authorities' attention.
22 T. P., for example, was distributing Jehovah’s Witness literature when she was picked up by the local constable in the town of Barry’s Bay, in the Ottawa Valley, in early July 1941 and taken to the office of the Ontario Provincial Police. ‘A few minutes conversation with the girl,’ the OPP officers' report said, revealed ‘that she isn’t mentally alert. Her excuse for being dressed as a man was indicated by Jehovah to her as the best way to get by the men without being carnally tackled. Her literature, she claims, was old stuff she had [been] given before the ban was clamped on and she just took the notion to get out and save humanity around Barry’s Bay.’ The report went on to say that the girl, who was from the area, admitted to being a Jehovah’s Witness. The report concluded with the opinion that the girl was ‘sub-normal,’ and it requested advice as to what to do. The local crown attorney forwarded the report, without comment, to the attorney general of Ontario. He instructed the police to lay a charge and suggested that if appropriate facilities were available she should also be subjected to a mental examination. If it was found that she was not responsible for her actions, the charge could be withdrawn.[252] The suggestion that an arrested Jehovah’s Witness was of below-average intelligence was present in many of the police reports of the period. Ironically, the police failed to demonstrate their own superior intellect when investigating Jehovah’s Witness activity. Their biggest failure was in the fall of 1940.
23 Although arrests of Jehovah’s Witnesses had not stopped their activities, they wanted to do something dramatic to draw the attention of Canadians to their plight. And after months of preparation their plan was ready to be put into effect. On a late November night, in cities and towns all over the country, more than a thousand Jehovah’s Witnesses went from door to door distributing a small booklet: The End of Nazism: Its Fall Is Certain. Read the Proof Herein. More than thirty pages long, the booklet contained, yet again, an extended attack on organized religion in general and on Roman Catholicism in particular. The Church of Rome, Hitler, Mussolini, and Soviet leader Josef Stalin were all identified as working together with one aim in mind: the victory of Satan over Christ at the final battle at Armageddon, as foretold in the Bible. In the United States, the booklet said, the church hierarchy and the American Legion had merged with a similar goal in mind, while in Canada Catholic-Fascist conspirators, led by Adrien Arcand ‘and directed from the Vatican, intended to seize the Canadian government during 1940.’[253] Mankind was being duped by organized religion, of which Catholicism was the worst offender, followed by Protestantism, then Judaism.[254] Typically, the booklet showed no restraint in its description of the Vatican. For more than sixteen centuries, The End of Nazism revealed, that religious institution carried on ‘the most wicked persecution of human creatures that has ever blackened the pages of history.’ The record of the Roman Catholic church was one ‘too terrible to find complete description in human words. That record is conclusive proof that the Papal system is not Christianity, but is carried on in defiance of God.’ In these circumstances it made sense, as the booklet then went on to suggest, that it was organized religion and the Roman Catholic church that were responsible for destroying freedom of worship, in Nazi Germany as well as in Canada and the United States. There was only one remedy for mankind, and that was the Theocratic Kingdom of God.[255]
24 ‘The worship of Jehovah God is the only true worship.’ Accordingly, being one of Jehovah’s Witnesses was ‘the only way to life, physically and spiritually. Understanding this truth you can see why conscientious Christians can not and will not bow down to creatures or things, but they must and shall give their undivided devotion and service to the Almighty God and his THEOCRATIC King, Christ Jesus.’ To survive the great battles that were sure to come, humankind had only one choice, to come out now for God, for all but the righteous would perish in Armageddon. ‘The rulers of the earth have now forgotten God and turned to religion and are certain to go down in a very short time. Only the “great multitude” will survive, and will live forever on the earth,’ the booklet reported. ‘Then shall the earth become a glorious and blessed place in which to live. Turn your faces and your heart’s devotion now to the Almighty God and to his King, Christ Jesus, and live’[256] The End of Nazism advised.
25 Whether or not the Witness vision of a perpetual paradise for the righteous attracted many, or indeed any, new converts is hard to say. Some of the ideas expressed in the booklet were clearly wrong, the purported alliance between the Roman Catholic church and Adrian Arcand being one. Its content aside, the booklet caused a sensation, and drew public attention to the Witness claim of interference with their religious rights. The police were swamped with calls from persons protesting the distribution, but in general, the authorities had little success in apprehending the distributors. The few Jehovah’s Witnesses actually caught in the act claimed, most improbably, that they had found packages of the tract on their doorsteps and became so interested in the contents that they felt an urge to go out and share the material. This explanation was not readily believed, but only a few of the distributors were convicted.[257] The Jehovah’s Witnesses, while under ban, and during the period of the greatest enforcement of the Defence of Canada Regulations, had been able to smuggle into Canada tens, if not hundreds, of thousands of booklets, distribute those booklets to Jehovah’s Witnesses across the country, and then successfully deliver them to the homes of countless Canadians.[258]
26 The End of Nazism was only one of many periodicals distributed by Jehovah’s Witnesses during the war years. What made it different was the scope of its distribution. The press gave the matter some attention and it is possible that the distribution caused at least one province, Saskatchewan, to stop charging Jehovah’s Witnesses under the Defence of Canada Regulations. It does not appear coincidental that immediately following distribution of The End of Nazism, the attorney general of Saskatchewan came to the conclusion that the overly strict enforcement of the Defence of Canada Regulations had little to commend it, especially where the Jehovah’s Witnesses were concerned. The same attorney general who had urged action against the group in the weeks before the ban now observed that rigorous enforcement created martyrs and did very little good. Local police were therefore advised to enforce the law only in flagrant cases and to be guided by a general policy of moderation, and that practice was followed.[259] For all intents and purposes the ban on Jehovah’s Witness activity in Saskatchewan was over.
27 However, the enforcement of the regulations continued elsewhere in Canada, as did convictions, although, as time went on, some local magistrates began to consider more thoroughly cases brought before them. These judges would not convict an accused unless the crown established beyond a reasonable doubt that the literature Jehovah’s Witnesses were caught distributing could be identified as a product of an illegal organization. The fact that a pamphlet referred to ‘Jehovah God’ and to the ‘Jehovah’s Witnesses’ was not enough, in the absence of other identifying information, to convince some judges that it was a Witness publication, a point that some crown attorneys recognized, on strictly technical grounds, as being legally correct.[260] Indeed, at this early point in the ban, the literature often identified the Watch Tower Bible and Tract Society, Inc., not the Jehovah’s Witnesses, as the publisher.
28 This was no small point. Notwithstanding the time spent before the war in drawing up the regulations and the experience during the First World War, clever lawyers had a way of turning what seemed to be clear provisions into ambiguous ones when it came time to actually enforce the regulations in court. The other problem was that the federal government had banned the wrong group.
29 The Jehovah’s Witnesses were nothing more than an unincorporated association of individuals with no status recognized by law. For legal purposes this association of individuals acted through three corporate bodies, the Watch Tower Bible and Tract Society, the Watch Tower Bible and Tract Society, Incorporated, and the International Bible Students Association. The Watch Tower Bible and Tract Society, formed in 1884, was the corporate entity that set the general policy and programs for world-wide Witness work. The Watch Tower Bible and Tract Society, Inc., was organized in New York in 1909, and it was the corporate vehicle used by the Jehovah’s Witnesses for their work in the United States. As well, it directed the publishing activities of the organization in the United States and internationally, and also directed Witness missionary and educational work. For the purpose of holding title to property in Canada, the International Bible Students Association of Canada was federally incorporated in 1926. However, the result in law of having banned only the unincorporated association of individuals, the group known as the Jehovah’s Witnesses, was to leave these other related groups technically free to go about their business. In fact, even though the International Bible Students Association had not been banned in July 1940, the property it held had been seized. The failure to ban the legal corporations made a difference when Jehovah’s Witnesses were actually brought to trial. Something was needed to prove their membership in the banned group, and some of the magistrates who were hearing the cases refused to convict unless a nexus could be legally drawn.
30 Within days of the ban the RCMP realized that they had erred. RCMP commissioner Stuart T. Wood wrote the minister of justice on 10 July 1940 and recommended that the International Bible Students Association also be proscribed.[261] It would take the government some time to recognize the significance of Wood’s point, and it was not until 17 January 1941, following numerous appeals for action from the attorney general of Ontario, that a new order-in-council was passed adding the Watch Tower Bible and Tract Society and the International Bible Students Association to the list of banned groups.[262] In the meantime, the custodian of enemy property attempted to circumvent the lacuna in the Defence of Canada Regulations by reaching an agreement with Hayden Covington, who was now fully in charge of all U.S. Jehovah’s Witnesses' legal affairs.
31 The agreement provided that the Jehovah’s Witnesses would transport their movable property to the United States and that their real property would be held in trust pending ultimate disposition. The custodian apparently believed that elimination of the group’s physical presence in Canada was the next-best thing to proscribing the associated corporate bodies, something that was out of its control. If this was the goal, it failed, and the authorities realized as much when they eventually outlawed the Watch Tower Bible and Tract Society and the International Bible Students Association.[263]
32 However, even after six months the authorities had yet to get it right. These two organizations were part of the Jehovah’s Witness corporate network, but another corporate body, the Watch Tower Bible and Tract Society, Inc., had been left off the list. It was added at the end of the month. At the very least, it took from the beginning of July 1940 to the end of January 1941 for Department of Justice and RCMP officials to come to grips with the basic corporate organization of one of the banned groups, even though all this information was available to the public in government registry offices. There is even some question about whether the RCMP ever really understood whom they were dealing with. The ‘connection’ between the Jehovah’s Witnesses and the Seventh-day Adventists was still being explored well into the war. Obviously there was none, but the fact that the question had to be asked suggests that the quality of RCMP intelligence about the Jehovah’s Witnesses left something to be desired.[264]
33 Indeed, in tracking down and suppressing the Jehovah’s Witnesses the RCMP was way out of its depth. The Jehovah’s Witnesses were, according to the 1941 annual RCMP report, ‘the cause of endless work, second only to the Communist Party of Canada.’ In ‘their misdirected religious fanaticism,’ the report continued, ‘the members still remain active.’ Their activities, the report concluded, while not directed towards sabotage, constituted a danger to the state if not controlled.[265] For his part, Commissioner Wood wrote, in a widely distributed article, that the Jehovah’s Witnesses were the ‘active enemies of Christianity and Democracy.’[266]
34 As long as the ban was in force the RCMP was determined to enforce it. Following distribution of The End of Nazism, members of the force across the country were ordered to investigate. Their search for the perpetrators of the crime was, in a word, absurd. In some communities anyone known or believed by the police to be a Jehovah’s Witness was interrogated about his or her whereabouts on the night in question. In some cases, search warrants were obtained, but when executed nothing was found.[267] The police did have some successes. In mid-December 1940 The Globe and Mail reported some efficient police work in nearby London, Ontario. There, Joseph Hughes, sixty-nine, was picked up by the police for distributing Jehovah’s Witness literature. Soon enough, he had his day in court. Crown prosecutor A. H. Norman described the accused as a ‘stupid follower’ of the Jehovah’s Witnesses, and the magistrate sentenced him to thirty days or a fine of $50.[268] Many of the charges that did result in a conviction fell somewhat short of conclusively establishing that anything but a nominal offence had taken place. One member of the sect whose membership could not be proved was charged and convicted under the Trading with the Enemy Regulations on the grounds that he was in possession of a record player originating from the Jehovah’s Witnesses in the United States, received by him long before the ban was imposed.[269]
35 Distribution of periodicals was one way of bringing the Witness message — and plight — to the attention of Canadians. Another means was by taking the message directly to the attention of the representatives of the people, to politicians at all levels of government. Numerous documentary collections at the federal and provincial archives establish that no effort was spared by individual Jehovah’s Witnesses to make their case in the halls of government. Thousands of letters were mailed, appealing for the restoration to the Jehovah’s Witnesses of freedom of worship. As almost all of these letters were unsigned they received little attention — except from the RCMP. ‘These letters are obviously the product of above-average intelligence,’ wrote one RCMP officer. The letters, like the distribution of The End of Nazism, the RCMP believed, revealed a highly organized campaign. Accordingly, RCMP officers were instructed that one of their primary objectives, when searching suspected Jehovah’s Witnesses, should be to keep an eye out for a copy of a Witness directive on this letter-writing campaign, which, ‘in view of the facts,’ the RCMP asserted, ‘must exist.’[270]
36 The RCMP allocated significant resources for investigation of the conspiracy. Constable J. Fossum in Saskatchewan found himself, in the early winter of 1941, assigned to exactly this chore. Apparently an anonymous letter had been sent to some prominent politician, protesting against the restrictions on Jehovah’s Witnesses' liberties. The letter was passed on to the RCMP, which determined that it had been sent from the Milleton District. Constable Fossum was thereupon ordered to find the letter-writer. On 24 March 1941 Fossum made his report. It was very unlikely, he said, that the letter was written in the district. Fossum could only find one typewriter, and it was not of the type on which the letter in question had been composed. ‘Because of this fact,’ Fossum concluded, ‘and the fact that the letter appears to have been composed by an educated person and experienced typist, I am reasonably satisfied that the letter originated elsewhere and was merely sent to this district for mailing.’[271]
37 Constable Fossum’s assignment was far-fetched enough, but some of his fellow officers, such as Constable H. F. Price, had it worse. Someone wrote the minister of agriculture with the usual Jehovah’s Witness complaints, and he turned the letter over to the RCMP, who assigned Price to the case. As the letter was postmarked in New Westminster, the RCMP reasoned that one way of tracking the culprit down was to identify where he or she purchased the writing paper. A check was, therefore, made of all the stationery stores in the city. Price reported that the stationery used was a common type, but that the envelope was unusual, and, indeed, none of the stores visited had that particular envelope in stock! ‘Enquiries will be continued in this connection and reports submitted when additional information obtained,’ the report concluded.[272] Another constable devoted his time to searching for the source of some Jehovah’s Witness rubber bands. The RCMP records that have been released do not indicate that a single one of these investigations resulted in an arrest, much less a conviction.
38 The available evidence suggests that the RCMP gave credence to rumour and reported it as ‘reliable.’ For example, contrary to everything that is known about Witness opposition to the war, RCMP headquarters was advised in December 1942 about a particularly nefarious plot to undermine the military effort. The Jehovah’s Witnesses were, the report said, ‘taking steps to conduct a campaign to discourage war salvage collections, particularly scrap metal. Insofar as the latter is concerned, they intend to collect it and conceal it in order to prevent the Government authorities from obtaining same for use in the production of war materials. This activity has not materialized as yet.’[273] Nor did it ever materialize, for this was not the way Jehovah’s Witnesses made known their opposition, not to the war itself, but to any call on them to participate in it.
39 Overall, the investigation and prosecution of the Jehovah’s Witnesses during the first part of the ban is a tale of incompetence and stupidity. The work of the RCMP was almost completely ineffectual, while the failure of the Department of Justice to come to grips with the corporate structure of the Jehovah’s Witnesses suggests, at the very least, that officials in the department were not involved when the initial decision to ban the group was made. Nor were they involved as Witnesses were prosecuted after the ban was imposed. There was a law on the books, but practically speaking some Canadians were not affected because its administration varied from place to place.[274]
40 But if the investigation and prosecution of the Jehovah’s Witnesses is not a story of police work at its best, it is a tale that testifies to the strength of the human spirit. Jehovah’s Witnesses put their freedom on the line and went out in the streets with their Bibles in hand in order to fulfil the duty they believed they owed to God. It was not popular to be a Jehovah’s Witness, but they persevered in what they believed. And as they did, their numbers grew. More important, their steadfastness served them well, not just when they went from door to door, but as they did everything they could to persuade the government of Canada to reconsider its decision and remove the ban.
1 Within days of the ban, questions about it were being asked. Angus MacInnis, the CCF member for Vancouver South and son-in-law of party leader J. S. Woodsworth, waited for days for Justice Minister Lapointe to return to the House so that he could directly question him. On 16 July 1940 MacInnis was advised that Lapointe was not likely to return for some time. The gentlemanly spirit of Parliament in the 1940s forbade, of course, any reference to where Lapointe was and why, but MacInnis nevertheless insisted on an answer to the question: Why had the Jehovah’s Witnesses been banned? The prime minister gave the minister of justice’s reply in a prepared statement he read to the House: it is not government policy to disclose confidential information upon which a recommendation under the Defence of Canada Regulations is made by the minister.
2 The literature of the Jehovah’s Witnesses, the prime minister said, disclosed a belief that man-made authority or law should not be recognized when it conflicts with the Bible as interpreted by the Jehovah’s Witnesses. Furthermore, the Jehovah’s Witnesses were opposed to war and they refused to salute the flag. The general effect of their literature and practices was, ‘amongst other things, to undermine the ordinary responsibilities of citizens, particularly in time of war.’[275] This then was the explanation for the suppression of the organization, and it was the explanation, with one or two modifications, that the Department of Justice repeated whenever the question was asked why the Jehovah’s Witnesses had been banned.[276]
3 King would not discuss the Jehovah’s Witnesses in Parliament again. He had not initiated the ban of this group, or of any of the others on the proscribed list. Rather he had gone along with these developments at the behest of his minister of justice, whom he considered indispensable to maintaining domestic tranquillity while the country was at war.[277] King also had other more pressing concerns. Piloting the NRM Act through the House of Commons in June 1940 captured much of King’s attention because of Quebec fears that the legislation was a prelude to conscription. The prime minister was also intimately involved in such matters as the negotiation of the Ogdensburg Agreement and the creation of the Permanent Joint Board of Defence. Throughout the spring and summer of 1940, King was occupied with matters of far greater importance than the Defence of Canada Regulations. And this remained true in the years that followed. King was, nevertheless, remiss in not relieving Lapointe of his portfolio when it became clear that the minister of justice was no longer fit for the job. But political exigencies, King believed, required that Lapointe remain a part of the government. However, in appointing a House of Commons committee to investigate the Defence of Canada Regulations, King was attempting to contain the damage.[278] The new committee, the Special Committee on the Defence of Canada Regulations, met almost immediately.
4 One of the first submissions it received, on 8 July 1940, was from Jehovah’s Witness lawyer J. L. Cohen.[279] The unsolicited brief Cohen prepared was simple but profound. In it Cohen identified what would become the principal objection to internments under Regulation no. 21 — that the advisory committees were one-person committees, not impartial quasi-judicial tribunals. Cohen was willing to concede for the sake of argument the need during a national emergency to deny temporarily the right of public trial but he argued that ‘no committee of a single person … and particularly no committee of a person whose identity to the public is solely that of official authority, can give to a board of review, and through it to the public mind, that aspect of broadness and completeness reasonably necessary to compensate for denial of trial in a court of record.’[280] Accordingly, Cohen recommended that a proper appeal board be appointed to hear internment appeals.
5 Jehovah’s Witnesses were not being interned, but Cohen had no way of knowing that they would not be rounded up. His call for amendments to the appeal procedures was sensible and was eventually implemented. Equally sensible was his recommendation that decisions under the Defence of Canada Regulations declaring an association or society illegal be subjected to some sort of third-party review. Such review was already provided for in the case of individuals ordered interned under Regulation no. 21, notwithstanding the deficiencies Cohen and others identified in the procedure. There should, Cohen said, be a similar procedure in the case of an association or organization proscribed under the regulations, for by banning a group the government was, in effect, constructively holding individuals liable for the activity of others.
6 With respect to the national and international situation, Cohen acknowledged that the state may need, on occasion, to act precipitously. However, once the particular national or international emergency subsided, the circumstances that initially compelled the use of the extraordinary power should be subject to review. In the case of an order under the regulations proscribing an entire group, the need for review was magnified, for the broader the sphere or interest affected or injured by the decision, the greater the need for some compensating procedure of review or appeal that could, as far as possible, correct any mistake that might have been made.
7 Review or appeal of executive action was fully compatible with the principles of British justice and the common law. Indeed, the more effectively a legal procedure provided for means of correcting errors, the more certain it was that the orders made and maintained were in the interests of the community. Conversely, the greater the extent to which any legal procedure was without means of correcting mistakes, the greater the opportunity for excess or injustice. The fact that an arbitrary power was exercised judiciously was irrelevant. Regulation no. 39C did not provide any procedure for review, appeal, or reconsideration. The only remedy available to a proscribed organization was effectively out of reach. Orders-in-council were not, at the time, subject to judicial review; thus, a group could be deleted from the banned list the same way it had been added to it — by another executive order, which in the circumstances was highly unlikely to be issued.
8 Cohen also complained about the process leading up to the decision placing the Jehovah’s Witnesses under ban. That decision, Cohen said, was made on the basis of information received from only one side, despite the prior and persistent pleas of the Witnesses for a hearing. It was evident, Cohen declared, that a decision taken on the basis of incomplete information would, in all likelihood, be incomplete, if not incorrect. Regulation no. 39C made the situation worse because it made it illegal for members of the proscribed group even to consult amongst themselves without offending the law. And, as Cohen’s ignored pleas for a hearing in early July revealed, the government had no intention of communicating with the representatives of groups that were, or were about to become, enemies of society. Furthermore, without a review procedure the proscribed group had no way of knowing what it had done that had led to the state action in the first place. The entire situation was a classic ‘catch-22,’ and Cohen urged the immediate establishment of a committee to review the decision that placed the Jehovah’s Witnesses under ban.
9 The special committee met a number of times over the summer of 1940, and on the day before Parliament adjourned in August, the committee made its first report.[281] The contents of the report were not revealed in the House of Commons, and all the hearings of the committee had been held, for security reasons, in camera. What was made public was the promise of the minister of justice to bring in further amendments.[282] Lapointe kept his word.
10 The most important of these amendments was a change to Regulation no. 21. In May, that regulation had been amended so as to require the minister of justice to report to the House of Commons all the cases in which he declined to follow the recommendation of an advisory committee concerning an internment appeal. Additional safeguards were now introduced. Now the minister had to report every four weeks while the House was in session, and he was required to give details not just of those cases in which he had declined to follow an advisory committee recommendation, but also of the numbers of persons detained under the regulation. This was an important development, for it placed a positive duty on the minister of justice to keep Parliament, and the country, informed about the number of internments and the status of internment review.[283]
11 Another important amendment provided that the advisory committee, on receiving notice of an individual’s objection to internment, should give ‘such directions as may be convenient for the prompt and just disposition of the objection.’ The advisory committee was now also required to give the objector within a reasonable time prior to the hearing ‘the grounds on which the order has been made against him,’ as well as such particulars ‘as are, in the opinion of the Committee, sufficient to enable him to present his case.’[284] It was not, however, clear that these changes had much of an effect and in practice many internees received only the most cursory particulars about the reasons for their internment.[285]
12 Another important recommendation of the Special Committee on the Defence of Canada Regulations led to a decision to use a new consolidation of the regulations.[286] There had been so many changes that it was almost impossible for crown prosecutors to keep up. For the public, with no real access to the regulations, the task was doubly difficult. This amendment, like those requiring the minister of justice to make timely reports to the House on internment appeals and to provide persons appealing their internments with the grounds for their detention, was at least in theory, progressive.
13 The special committee had not, however, been forthcoming in providing details about why the various communist and Fascist organizations had been outlawed, although it did not take a lot of imagination to come up with reasons in favour of these orders. The organizations of the right were agents of an enemy power, and while the Soviet Union was not an enemy, the Communist Party of Canada, in its slavish adherence to international communist policy manifested in the dissemination of defeatist propaganda and other anti-war activity, could not be tolerated. Very few people, in the first two years of the war, questioned the legitimacy of placing communist and Fascist groups under ban. As a result, there was very little immediate criticism of the internment of communist and Fascist activists and the suppression of their activities.
14 The Jehovah’s Witnesses presented a slightly different case. They were not the agents of a foreign power, and while the RCMP had received and continued to receive scattered reports that Witnesses through their conscientious objection to war were impeding recruitment, there was really no solid evidence of that. The explanation for the ban that the prime minister read in the House was weak, and considered point by point it was not enough to justify, or even explain, the prohibition of the group. More details about the reasons for the banning of the communist and Fascist organizations were hardly necessary at this point in the war. A more complete explanation about why the Jehovah’s Witnesses had been outlawed was imperative. An organization of Christian men and women had been declared illegal because they believed that God’s law came first? Not only was a better explanation in order, so too was some mechanism by which the Jehovah’s Witnesses and the other outlawed groups could make representations and have the bans reviewed. This is what Cohen asked for and this, the Witnesses believed, would completely vindicate their group.
15 In making these demands to the special committee the Jehovah’s Witnesses stood alone. The public mood during the summer and fall of 1940 was such that there was little interest in Witness rights — or anyone else’s rights, for that matter. The empire was in danger, and that was what mattered, not the rights of Jehovah’s Witnesses, seen by many as an unpatriotic, shrill, and intolerant religious group. In August 1940, just as the Special Committee on the Defence of Canada Regulations was completing its work, a four-part series published in The Ottawa Citizen examined the banned organizations and concluded that without exception these groups had been trying to ‘destroy democracy in Canada from within.’[287] So persuasive was the series, which was short on fact but filled with speculation and conjecture, that the Office of Public Information, the official wartime news agency, requested and received permission to send the articles to newspapers across the country for simultaneous publication. The articles were, according to the director of public information, ‘based on documents’ and had been ‘read and pronounced correct in substance and detail by the authorities.’[288] One of the articles, published on 10 August 1940, addressed the question of why the Jehovah’s Witnesses had been banned.
16 It was not because of the religious beliefs of its members, the newspaper explained, but because the subversive activities of the organization were detrimental to Canada’s war effort. Members of the group were, according to the report, ‘financially powerful’ and against war, organized religion, and the Red Cross. They did not salute the flag and played gramophone recordings of speeches that, among other things, bitterly denounced organized religion, churches, and the government. Wherever there are followers of the Jehovah’s Witnesses, the paper asserted, ‘there is trouble.’[289] Whether or not any of these reasons justified the state action was not considered in the article. Implicit, however, was the suggestion that the sect was rightfully banned.
17 Whether the Defence of Canada Regulations special committee agreed or disagreed with this sentiment, however, was almost moot. The committee had not considered the whole matter of banned groups in its first report, and it was not yet known whether Parliament, when it returned in the fall, would direct the special committee to resume its inquiry into the operation of the regulations. In its August report the special committee recommended that another committee be appointed in the next parliamentary session to consider again the Defence of Canada Regulations as well as to review the law relating to naturalization and deportation.[290] But whether or not such a committee was appointed was a decision for the government to make.
18 A memorandum prepared for the prime minister in the early fall of 1940, presumably to provide some basis upon which to decide whether or not to ask Parliament to establish another special committee, pointed out that public protests against the regulations had, with one notable exception, dramatically declined. The Jehovah’s Witnesses were the exception, and they were making all sorts of representations against the government.[291] In making their complaints, and there probably was not a single member of Parliament who had not received at least one Witness protest letter, the Jehovah’s Witnesses stood almost alone. Although nothing in this memorandum suggests that the plight of this group was sufficient reason for the appointment of another special committee, at the very least such an appointment would provide a response to charges of state interference in freedom of worship. Moreover, serious problems in the overall administration of the regulations remained, and the internment procedures, as the interdepartmental committee that initially prepared the draft Defence of Canada Regulations had anticipated, were a source of constant complaints. Further, there were political benefits to be reaped by referring the regulations to an all-party committee for review. On 27 February 1941, the government announced that it had decided to re-establish the special committee.[292]
19 The Jehovah’s Witnesses deserve some of the credit for this decision. Distribution of The End of Nazism attracted considerable interest in their cause, and a steady stream of letters poured in to government officials, cataloguing the group’s complaints. Freedom of religion was involved, and the Jehovah’s Witnesses had not suffered in silence. With the war hysteria of the previous spring at an end, the public was slowly awakened to the broad civil-liberties issues the Witnesses claimed were at stake. But to suggest that the Jehovah’s Witnesses had been able to attract significant public support would be incorrect. Mainstream groups were simply not interested in the Jehovah’s Witnesses and in their treatment by the federal government. (It is worth mentioning that their lawyer, J. L. Cohen, was a Jew whose other clients, mostly labour unions, were like the Jehovah’s Witnesses, unpopular organizations.) The Witness ban undeniably raised concerns about freedom of religion, but the only religious groups to display even the most remote interest in the Jehovah’s Witnesses were some of the non-conformist Protestant sects. What little support the Jehovah’s Witnesses initially received came from individuals and organizations somewhat removed from the mainstream. Simply put, the Witnesses were hard pressed to actively interest the Canadian public in the violations of their civil rights. Indeed, Canadians became interested in civil liberties only when, to use the words of the Communist party, the character of the war changed.
20 On 22 June 1941 Germany attacked Russia, bringing the Soviet Union into the war. Hitler’s intention to crush the Soviet Union in one quick campaign was his worst blunder of the war. In Canada, Communist-party leaders came out of hiding and announced that the ‘imperialist war’ had become a ‘just anti-Fascist war.’ Accordingly, Canadian communists became dedicated and enthusiastic pro-war supporters. Tim Buck and a number of other Communist-party chieftains who gave themselves up to the RCMP in August 1941 were briefly interned and then required to register and regularly report to the RCMP. The Communist party remained an illegal organization, but Canadian communists established the Dominion Communist-Labour Total War Committee. This committee urged the government to step up its prosecution of the war and urged the immediate introduction of conscription for military service overseas. This sudden burst of patriotism reflected loyalty to the Soviet Union, not to Canada. As the National Council for Democratic Rights, formed in 1941, explained, with Russia in the war a reassessment of the international situation was required. The National Council was the latest incarnation of the Canadian Labour Defence League and was also a communist front. Its leader was a disgruntled Methodist preacher converted to communism named A. E. Smith, and under his direction it tried to interest Canadians in civil liberties[293] — that is the civil liberties of communists who remained interned. But civil liberties are not just for communists, they are for everyone, and in making this issue their issue, communist activists contributed to a growing public interest in civil rights. The Jehovah’s Witnesses ensured that their objectives were kept in mind.
1 These events took place in the absence of the person who had set them all in motion. By the fall of 1940 Lapointe virtually withdrew from active involvement in government. Some members of the press could see Lapointe’s decline for themselves. Grant Dexter, the well-connected Ottawa correspondent for The Winnipeg Free Press, observed in October 1940 that ‘the lines in his face are deeper and he has lost much weight, not only about the waist but in his face. His shoulders sag much more than I have ever noticed them and there is a hurt look in his big brown eyes. Indeed, there is an aura of sadness about Lapointe which is quite out of character.’[294]
2 Lapointe had become a symbol of French Canada in the national government. Behind the symbol there was little left of substance and much not to his credit. Lapointe’s support for Vichy France, for example, left a great deal to be desired, and so too did his immigration policies — he was opposed, for example, to Canada accepting refugees from Nazism. Justice Minister Lapointe cared little about individual rights. They were properly abrogated, he clearly believed, in the common good as dictated by what he considered to be the exigencies of war and the need to keep Canada united.
3 Charitably understood, his policies and practices can be interpreted as a product of a well-intentioned desire not to polarize French and English Canadians. At no time in his political life was Lapointe put to a greater test than during the Second World War. Lapointe had devoted his entire adult life to the creation of a balance between Quebec and the rest of Canada. World war threatened that balance. If continuing compromises were not made the country might fall apart.
4 In all of this the Roman Catholic church figured prominently. From the first day of the war the federal government realized that the church would be a source either of support or of disruption. Its initial support was obtained as a result of the government pledge not to introduce conscription. This was the foundation to good relations between the Roman Catholic church in Quebec and the Canadian state. In this context, by banning a nasty and unpopular group, the federal government eliminated a source of public disruption in Quebec and at the same time earned for itself some political points, necessary in view of the passage of the NRM Act and other related developments. Lapointe believed that the rights of the few had to be subordinated to the interests of the many. Individual liberty was of no matter to him: the future of the state was what was important, and his mission was to protect and advance the interests of Quebec. Jehovah’s Witnesses were irrelevant. They had no rights. It was as simple as that.
5 The carefully cultivated relationship between church and state was not without its benefits to Lapointe, and indeed to all of Canada. By July 1940 any early doubt about episcopal support had been swept aside as Cardinal Villeneuve became one of the staunchest supporters of the war. Such was his zeal for the war effort that some Quebeckers began calling him ‘le brigadier Villeneuve.’ The cardinal made speeches across Quebec and Canada, calling not just for co-operation with the federal authorities in the prosecution of the war, but for the fullest commitment and participation.[295] In August 1940, when the first registration under the NRM Act began Villeneuve issued a communiqué and a letter was sent to all of Quebec’s parish priests. ‘His Eminence, the Cardinal invites parish priests to do all they can to facilitate to the maximum degree possible national registration, in giving their parishioners the information necessary to the accomplishment, with exactness and submission, of all which is required of them by the public authorities.’[296] This intervention on behalf of the federal government was nothing less than extraordinary. It, like all the cardinal’s efforts in support of the war, made him an essential partner with Ottawa in the national effort. The Montreal mass held in early 1941 is a case in point.
6 With the assistance of the lieutenant-governor of Quebec, Eugene Fiset, Lapointe arranged for a huge mass at Notre Dame Cathedral in Montreal on 9 February 1941. Cardinal Villeneuve spoke first. His sermon condemned Hitler, praised Great Britain, and invoked God’s assistance for an Allied triumph.[297] The minister of justice said a prayer for peace. A similar service was held in all of the province’s fifteen hundred parishes, attendance being accorded fifty days' indulgence. When the ecclesiastical exercise was completed, Villeneuve, Lapointe, and all the other dignitaries in attendance reviewed Canadian troops as they marched through Montreal’s historic Place d’Armes. The affair was a huge and spectacular public-relations success. ‘Remarkably, Lapointe had succeeded in identifying the church hierarchy, at least, with the government’s war policy.’[298]
7 The next month, Villeneuve ordered every Roman Catholic church in the province to have read every Sunday, for the duration of the war, a prayer for victory and peace. Then in April 1941 Villeneuve instructed the clergy to encourage their congregations and the public to subscribe for war bonds. His participation in the war effort was simply outstanding. If, from time to time, he was able to capitalize on his relationship with Lapointe and resolve matters without public controversy, such as suppressing a small and unpleasant group or preventing the internment of isolationist priests,[299] that was only to be understood.
8 The minister of justice carried on to the best of his diminished ability to represent in Ottawa the wishes of the church, which were in his mind identical to the wishes of the people of Quebec. He lobbied vigorously for the appointment of Catholics to the cabinet,[300] and when any discussion of conscription began Lapointe made it crystal clear that he would never accept it. But Lapointe’s mission began to flag as his health declined, and his mental problems soon became exacerbated by serious physical ones. By the fall of 1941 Lapointe knew he had terminal cancer, and though he appeared occasionally in cabinet, his days were almost at an end. He entered hospital in early November and by the middle of the month it was clear that he was near death. On 15 November and then again on the 19th, King went to Montreal to see Lapointe. The visits were extremely moving for both men. Lapointe died in the early morning of 26 November 1941 in his hospital bed. Before he died he received a special benediction and full indulgence, obtained for him by Cardinal Villeneuve from Pope Pius XII and transmitted by Father Pie-Marie Gaudrault, the Dominican provincial who was Lapointe’s counsellor and confessor.[301]
9 ‘But for him,’ Mackenzie King confided to his diary just a few days before Lapointe died, ‘I would have never been Prime Minister, nor would I have been able to hold the office, as I have held it through the years.’ Lapointe was taken to Quebec City, where, at the Legislative Assembly, he lay in state. His funeral, held a few days later, was one of the grandest in the city’s long history. The cardinal delivered a brief and moving eulogy that, along with the rest of the proceedings, was broadcast throughout Canada. Lapointe’s body was returned to Kamouraska, the constituency that had sent him to Ottawa almost forty years earlier. Prime Minister King selected a new justice minister at Lapointe’s funeral, a well-regarded corporate lawyer, former bâtonnier of the Quebec bar, past president of the Canadian Bar Association, and one-time counsel to the Rowell-Sirois Commission. Whether Louis St Laurent’s policies would differ from his predecessor’s remained to be seen.
1 If the Jehovah’s Witnesses were not the first item on Louis St Laurent’s agenda after he was sworn in as minister of justice in December 1941, it should hardly be surprising: the ongoing restrictions on the activities of the group were far from most politicians' minds. Even though the Special Committee on the Defence of Canada Regulations had been reconstituted, the Jehovah’s Witnesses still had not been given an opportunity to defend themselves.
2 Indeed, the whole question of banned groups had not as yet been considered by the special committee. Agitation to remove the Communist Party of Canada, the best known of the proscribed groups, from the banned list increased after Germany attacked the Soviet Union, bringing that country into the war; when these demands became pressing, King consulted St Laurent about what action to take. St Laurent was not in favour of lifting the ban.[302] This anti-communist attitude earned St Laurent important political points, not to mention the support of the cardinal of Quebec.[303] Villeneuve remained an important player on the political scene, and he kept up his contacts with both the prime minister and the minister of justice. His influence, however, began to wane. The cardinal would never enjoy the same rapport with St Laurent that he had had with Lapointe, but he would be consulted about important events affecting Quebec.[304]
3 The Jehovah’s Witnesses continued their efforts towards interesting the public in their plight, and at the same time, their numbers began to grow.[305] In the twelve-month period ending in September 1939 almost one million hours had been devoted to field service and more than 130,000 follow-up calls had been made. In 1944 almost two million hours of service were recorded and more than half a million follow-up calls were made.[306] There were thousands of new members, and they joined the mass letter-writing campaign to politicians of every party, in Ottawa and the provinces, complaining about and documenting the treatment Jehovah’s Witnesses were receiving.
4 Some members of Parliament began to press for an explanation, and the RCMP commissioner drafted a reply that was subsequently cited whenever the Witness ban was questioned. As the most complete statement explaining the government decision to impose the ban, it bears quoting in full:
5 This action was taken owing to the activities of their followers in stirring up animosity between all religions and what they term ‘man-made governments.’ All religions are regarded as ‘rackets’ and ‘Jehovah’s Witnesses,’ to use the name by which they are more commonly known, are definitely opposed to the Red Cross, describing it as the ‘devil’s work’ and ‘belonging to the devil.’ In its teachings of fanatical pacifism, Jehovah’s Witnesses urge their followers, particularly children, to refuse to salute the flag or stand when ‘God Save the King’ is sung. Jehovah’s Witnesses maintain that their object is the dissemination of Bible truths and their activities are guided by a peculiar interpretation of the Bible, thus giving the organization a religious complexion.
6 If the teachings of Jehovah’s Witnesses were confined to religious matters alone there would not be any particular grounds for concern, but they claim to recognize only a heavenly sovereign, maintaining that how could one who is wholly devoted to Almighty God and to His Kingdom under Christ Jesus, take sides in a war between nations, both of which are against God and His Kingdom.
7 Their literature has been the cause of much concern and it is of interest to mention that in an appeal case dealt with by the Court of the King’s Bench in the Province of Quebec some time ago, the judgement mentioned in part that ‘if the pamphlets mean anything they constituted an appeal to all to condemn and have a supreme contempt for every form of organized authority, whether civil or ecclesiastical.’ It is of interest to also mention that certain enemy aliens commenced to take an active part in the work of Jehovah’s Witnesses, obviously for the purpose of using the cloak of religion to justify their activities. Following consideration of the situation, it was decided that their activities could not be regarded as other than subversive and their organizations were therefore declared illegal.[307]
8 Notwithstanding these purported reasons for implementing the ban, by the late fall of 1941, RCMP interest in the Jehovah’s Witnesses began to decline and then disappeared. Inspector Leopold, who had overall responsibility for conducting intelligence operations against subversive groups, had more dangerous associations with which to contend.[308] Individual Jehovah’s Witnesses continued to be arrested, but they were far more adept at avoiding capture than they had been in the first years of the war.
9 More than anything else, the Jehovah’s Witnesses wished to legally challenge the ban and make a positive case for their legal right to be Jehovah’s Witnesses. If J. L. Cohen had, in this period, one overriding instruction, it was to find ‘an all-out test case.’[309] What attempts were made failed, for the only recourse was to challenge the constitutionality of the regulations in court, and there was absolutely no reason to believe that such a challenge had even a remote chance of success. With the group outlawed it could not be a party to a court action and it was very unlikely that a court would agree to hear the case. The only positive development for the Jehovah’s Witnesses was the upsurge of parliamentary interest in them following Lapointe’s death.
10 Reverend Ernest Hansell, the English-born, American-educated Social Credit member for Macleod, Alberta, became one of the strongest advocates of Jehovah’s Witnesses' religious rights. When the ban was first imposed Hansell described the Jehovah’s Witnesses as ‘all haywire’ and ‘all wrong.’ He quickly changed his opinion, not about Witness beliefs, but about the action of the Canadian government in outlawing the group. Canadians, he told the House of Commons in late November 1941, were not free to worship as they pleased. When asked to explain what he meant, Hansell cited the ban on the Jehovah’s Witnesses as a case in point. He also pointed out that it was not the only group to be opposed to war. The Doukhobors were as well, but not only were they left free to worship in their own way, they had not been banned.[310] As a marginal member of a marginal party, Hansell’s about-face on the issue of Jehovah’s Witnesses' religious rights did not provoke any governmental response. Nevertheless, his change in position was significant, for it reflected a general shift away from the unthinking acceptance of official explanation. Indeed, interest in civil liberties was again on the rise.
11 In retrospect the civil-liberties issue of the war that should have galvanized Canadians was the mass evacuation from the British Columbia coast of Canada’s Japanese followed by the virtual confiscation of their property.[311] Some Japanese attempted to challenge the government’s policy of dispossession in court. It had not been made a crime to be Japanese, as it had been to be a Jehovah’s Witness, so there was no legal barrier to bringing the case to court. The jurisdiction problem, however, remained. The legal question at issue was whether or not the custodian of enemy property was a servant of the crown and therefore accountable in exchequer court, the precursor to the modern federal court. The case came before Mr Justice J. T. Thorson, who, as minister of national war services, had been part of the federal cabinet that had initially approved the expulsion. Thorson took the question under advisement and did not release his decision for three years. In 1947, he decided that the custodian was not a servant of the crown and was therefore not accountable in the exchequer court.[312] The court upheld the order giving the custodian power to dispose of seized property as a necessary war measure simply because it had been passed in time of war and deemed necessary by the cabinet. There is no reason to believe that a Witness court challenge would have met with a different judicial interpretation. By the time Thorson released his reasons for the decision, the war had been over for two years. More important, as Thorson was undoubtedly aware, all the Japanese property had been sold. Canadian courts, for the Japanese, as for the Jehovah’s Witnesses, were not places to vindicate the unwritten British bill of rights. The only ‘rights’ Canadians had were those recognized by the courts, and that meant different things to different people at different times. The mistreatment of Canada’s Japanese raised hardly a civil-libertarian eyebrow during the Second World War.[313] As time went on the Jehovah’s Witnesses were able to attract more attention to their cause, but the suppression of their religious freedom was equally not a matter of public concern. Both the Japanese and the Jehovah’s Witnesses were virtually non-issues. There was but one civil-liberties issue during the war: the internment of communist activists and the suppression of communist free speech. The Jehovah’s Witnesses, nevertheless, persevered, and the government decided to again reconstitute the special committee.[314] The special committee began to hold hearings within weeks of its appointment, and in due course the Jehovah’s Witnesses received an invitation to attend and make representations.[315]
12 The job of the special committee was to investigate the reasons and continued justification for the banning of various groups. It therefore needed to know why the government had initially acted in the way that it had. In the case of the Jehovah’s Witnesses, special-committee members were supplied with a ‘secret’ explanation for the ban, prepared either by the Department of Justice or by the RCMP.[316] The document described the Jehovah’s Witnesses as ‘zealots,’ and claimed that they stirred up animosity among religious groups. Jehovah’s Witnesses regarded other religions as ‘rackets.’ They were, moreover, ‘fanatical pacifists,’ and their refusal to salute the flag caused resentment among patriotic Canadians. The report noted that enemy aliens became Jehovah’s Witnesses after the war began in order to use the ‘cloak of religion to justify their activities,’[317] and that the literature of the group revealed a ‘supreme contempt’ for every form of organized authority. Their theology was ‘ecclesiastical Bolshevism,’ and much of their literature consisted of tirades against the Roman Catholic church. ‘The action taken in suppressing this organization was,’ the secret report concluded, ‘therefore, fully justified.’[318] It was not surprising that many of the questions raised by members of the special committee concerned exactly these points.
13 The Jehovah’s Witnesses did not, of course, receive a copy of the secret report and so had to base their defence solely on the reasons given in the July 1940 statement Prime Minister King had read to the House of Commons.[319] The thrust of that statement was that the ban was imposed because the literature of the group revealed that Jehovah’s Witnesses did not obey man-made law where it conflicted with God’s law, that they refused to salute the flag, and that they opposed war. All of this, Lapointe’s statement declared, had the effect of undermining the ordinary responsibilities of citizens, particularly in time of war.
14 Two Jehovah’s Witnesses came to testify on behalf of the group. The principal spokesman was Charles Morrell, the retired former secretary to the chief justice of Canada, Sir Lyman Duff. Although not a lawyer, Morrell was well versed in the law.[320] Preparations for the hearing were obviously thorough, and the session began with the distribution of a lengthy printed brief in which the Jehovah’s Witnesses attempted to rebut the case they presumed led to the ban.[321] Morrell, who spoke calmly and dispassionately, appeared almost to welcome the barrage of questions directed to him by committee members.[322] The Witness spokesman confirmed that Witness literature revealed that they believed that God’s law was superior to human-made law. And in their brief, with one biblical citation after another, the Jehovah’s Witnesses attempted to prove that this was true. The brief also quoted Blackstone, the eminent English judge and legal historian, with approval. The law of God, Blackstone had written in his commentaries, ‘is binding over all the globe in all countries at all times; no human laws are of any validity if contrary to this … human laws are only declaratory of, and act in subordination to, the former.’[323] The duty of a true Christian living in the secular world was, as Jesus had said, simple. Render unto Caesar the things that are Caesar’s and unto God the things that are God’s. It was all in the book of Matthew. Jehovah’s Witnesses willingly obeyed the law of the land except where that law was opposed to the law of the Lord. And there was nothing subversive about that.
15 There was also nothing subversive about the second reason for the ban, their refusal to salute the flag. That too was the law of the Lord. Exodus said as much. What this scriptural provision meant to Jehovah’s Witnesses, they explained, was that they could not salute any graven image, for to do so would be to break their covenant with God. There was also no difference, the brief pointed out, in making a man salute the flag or salute the leader. Both, whether in Canada where the flag stood for freedom or in Germany where ‘Heil Hitler’ stood for Fascism, were equally invidious if compelled by the force of the state.
16 The opposition of some groups, such as the Mennonites and Quakers, to the war resulted in public admiration, not condemnation. Yet, where the Jehovah’s Witnesses were concerned, the opposite was true. The brief also argued that the charge that their literature was subversive was without evidence. Equally baseless was the claim that the group’s activities undermined the prosecution of the war. Point after point, the brief systematically demolished the government’s purported case. In his oral evidence, Morrell rejected a number of charges against the group, including that it had been infiltrated by enemy aliens intent on using it as a front for their subversive work.
17 Both the brief and Morrell also went on to extensively catalogue some of the abuses of freedom of religion caused by the ban. Men and women were being sent to jail for meeting in private homes and studying the Bible. By this point in the war, hundreds of Jehovah’s Witnesses had, at one time or another, been sentenced to terms in jail. Property had been seized, and no provision was available to obtain its return. Not only was Witness property out of reach, but so too was a means of reviewing the order that had placed the group under ban. As a result, the rights of religious worship of thousands had been denied. Morrell told the committee why he thought the Jehovah’s Witnesses had been banned: because of Satanic opposition manifested in the activities of the Roman Catholic church.[324] There was, Morrell said, only one remedy: remove the ban. In all, Morrell testified for five hours, and he later reported that the hearing was fair. The Jehovah’s Witnesses waited with some confidence for the result.[325]
18 The ban on the Jehovah’s Witnesses was not the only issue to be considered by the special committee, nor was it the issue that attracted the most public attention. The plight of Canadian communists was of greatest public concern, much more so than that of the Jehovah’s Witnesses, as became clear when representatives of the Toronto Civil Liberties Association came to testify. There is nothing in the brief that this group filed to indicate that the Toronto Civil Liberties Association was concerned with either the Jehovah’s Witnesses or the Canadian Japanese. ‘Perhaps the most important topic at the present time is the illegality of the Communist Party,’ the brief declared, and it went on to strongly urge the federal government to restore full liberty to Canadian communists.[326] Delegates from the Communist party also attended and gave evidence, impressing some members of the special committee with their dedication to the war effort.
19 Altogether the special committee held twenty-six meetings and heard oral evidence and received numerous written submissions. In early June the committee issued an interim report[327] followed by two more later in the month.[328] A majority of committee members recommended that the Communist party be deleted from the proscribed list. Needless to say, the members of the special committee did not support communism: it was felt that with the Soviet Union now in the war the subversive activities of domestic communists had stopped, and a ban was no longer necessary to suppress this work. It had been justified, the special committee said in its final report, but it was no longer so.[329] The same reasoning to the same end also applied to the Jehovah’s Witnesses and their various affiliated groups. Changed conditions, the special committee reported, made it desirable to amend the regulations to remove the bans.[330]
20 It was now up to the government to act. Prime Minister King confided to his diary concern over the political effect of implementing the committee’s major recommendations in the province of Quebec.[331] The decision was, however, largely Louis St Laurent’s to make. The parliamentary committee had demonstrated in its work, and then in its recommendation, that there was no case for the suppression of the Jehovah’s Witnesses: this finding was unanimous. Despite what the committee said, there had been no case in 1940 and no case had been established since. If anything, the opposite had been shown to be true and it was now time to lift the ban. This was really the critical distinction between the Communist party and the Jehovah’s Witnesses. There had been reason to ban the former, but there had never been any reason to ban the latter. The decision to suppress the Jehovah’s Witnesses had been wrong since its inception. That wrong needed to be made right. This decision would not, however, be made for more than one year, for it was one recommendation (removing the ban on the Communist party being the other) that St Laurent refused to accept.
21 While he would not accept the recommendation, however, he effectively ended the suppression of the Jehovah’s Witnesses and the various communist groups. The Labour Progressive Party (LPP) would be allowed to operate even though it was well known as nothing more than a Communist-party front. The Jehovah’s Witnesses continued to go about their business, but prosecutions dramatically declined. Indeed, the apparent lack of interest on the part of federal authorities in the enforcement of the Defence of Canada Regulations, as well as the great differences in interpretation and administration of the regulations between provinces, so annoyed Ontario attorney general G. D. Conant that on 19 August 1942 he wrote St Laurent and advised him that the Province of Ontario would no longer consent to prosecutions under the regulations.[332] Conant was as good as his word; federal Department of Justice papers show that starting in September 1942 Ontario crown attorneys began to routinely refer Defence of Canada Regulations prosecutions to the attorney general of Canada when consent to prosecute was sought.[333] When asked for advice, Department of Justice lawyers would agree to charges being laid but only where the evidence was so strong that a conviction was assured.[334] As a matter of political expediency, Louis St Laurent did not remove the Witness ban, and knowing that it was wrong he decided to take the easy way out. He would keep the ban on but act as if it was not in force. St Laurent had bowed to political pressure.
22 The struggle to remove the Jehovah’s Witness and Communist-party bans did not abate. If anything, the opposite was true. As in the past, the communist cause received the most public support. The communists did what they could to get the government to change its mind, and new-found friends, such as Premier Mitchell Hepburn, joined Tim Buck and others in asking Ottawa to remove the regulatory restrictions. Hepburn was no communist himself, but his relationship with Mackenzie King had so deteriorated that he would do anything he could to embarrass the prime minister. Louis St Laurent, however, remained firm. The Communist-party ban would not go. The only lenience in this regard was that in September 1943 Buck and the others were told that they no longer had to report monthly to the RCMP.[335] The Jehovah’s Witnesses kept up the pressure as well and in mid-February 1943 an important amendment to the regulations was passed.[336]
23 A new subsection was added that provided that ‘No person shall be guilty of an offence against this regulation by reason only of his attending a meeting the sole purpose of which is religious worship or instruction.’[337] The Jehovah’s Witnesses were not very satisfied with the change. ‘It is not an offence for a person to sit in his own home and adhere to the doctrines, but woe betide that person if he publishes in any manner what he believes, because then he would be guilty of “advocating or defending the acts, principles, or policy of an illegal organization.”’[338]
24 Police action in Montreal in the spring of 1943 illustrates this point. Each year, on Nisan 14, according to the ancient Jewish calendar, Jehovah’s Witnesses celebrate the Lord’s Memorial Day Supper, known to other Christians as the Last Supper (and celebrated on Good Friday), and to Jews as Passover. On that day, an important one to Jehovah’s Witnesses, those who have a heavenly calling, meaning those Witnesses who believe that their destiny is to live with God in heaven, assisting him in the government of a restored paradisical earth, partake in what is in effect holy communion. In 1943 this service was held on 19 April, and on that day police in Montreal decided to check local Jehovah’s Witnesses for national registration certificates. In the midst of their service police barged into Preston Hall, where the local Jehovah’s Witnesses had assembled, just as the amended regulations allowed them to do. The public outcry was enormous. The Winnipeg Free Press, for example, editorialized against the raid: ‘If we believe in freedom of religion, it should be freedom for all religions, not just the religions which are powerful enough to enforce their own freedom.’[339] The newspaper called on the government to rescind the ban.
25 The minister of justice defended the police on the basis that they could not have known that a religious service was taking place. ‘I would think it would be quite improper for the police to go to any of our churches here in Ottawa that are recognized as churches, that are known to be churches, and attempt to check up during a religious service the possession or otherwise of certificates of registration.’[340] This meeting, however, St Laurent said, ‘was not taking place in a hall or church or any building that could be recognized from any exterior sign as being a place of religious worship.’[341]
26 Whether the police were blameless or not, and there were those who charged that the nature of the service was explained to them but that, nevertheless, they continued to disrupt the meeting,[342] the fact of the matter was that the incident moderated police practices. A memorandum was sent to RCMP divisions across Canada explaining what was meant by the religious-freedom amendment to the regulations. Even though the Jehovah’s Witnesses, International Bible Students Association, and the two Watch Tower Bible and Tract organizations were illegal, the memorandum advised the members of the force, it was not illegal for adherents of these organizations to have meetings and discuss and receive religious education. Therefore, it went on, before interfering in any way with meetings of this group, there must be conclusive evidence that the meeting did not have a religious purpose. RCMP officers were ordered, in all cases, to give the Jehovah’s Witnesses the benefit of the doubt, and not to disturb them.[343]
27 Individual Jehovah’s Witnesses nevertheless continued to issue a flood of appeals to politicians and the press to remove the ban. From the United States came representations through the Department of State and the American ambassador to Canada. Indeed, the American government became involved soon after the ban was first imposed and Jehovah’s Witness property seized. At that time J. L. Cohen and Hayden Covington, representing the group, entered into an arrangement with the custodian of enemy property regarding the disposition of Jehovah’s Witnesses' Canadian assets. When that arrangement was not carried out to the satisfaction of the Jehovah’s Witnesses, Covington appealed to the American secretary of state for assistance, who in turn asked the American minister to Canada, Pierrepont Moffat, to investigate.[344] There was not much that Moffat could do, and he soon reported as much.[345] What is most interesting about the correspondence is the seriousness with which the American government took Witness requests for help, and the effort placed on supplying Washington with complete reports.[346] The American government never went so far as to suggest that the bans be removed, but the very fact that it had interested itself in Jehovah’s Witnesses' Canadian affairs was significant and surely not lost on Mackenzie King.[347]
28 While the Americans had every reason not to make suggestions about Canadian domestic policy, members of Parliament were under no such restrictions, and soon after the release of the unanimous special-committee report recommending that the ban be removed, they began to criticize the government. The first occasion was on 22 February 1943, when the minister of justice announced the appointment of another special committee to consider and review the Defence of Canada Regulations. Why, St Laurent was asked, should another committee be appointed when the government had failed to implement the two most important recommendations of the last committee? Speaking of that, other members asked, why had the government not yet removed the Communist party and the various Witness organizations from the proscribed list? Maybe the reason the government decided to appoint another committee was to look into naturalization and deportation — none of the committees previously appointed had turned their attention to those issues although they were within their terms of reference.
29 But even if this was what the government now intended the special committee to do, questions remained about the failure of the government to act on recommendations that the same committee had made earlier.[348] It was especially interesting that many of the members of Parliament who were actually on the special committee contributed to the debate. They had heard the evidence. They had asked questions and received answers. They were the ones who made the two important recommendations, and where the Jehovah’s Witnesses were concerned, unlike the case with the Communist party, their recommendation had been unanimous. And now they wanted to know why the government had failed to enact the recommendations in their report. To be sure the Communist party, operating through its various front organizations, was loyal to the Soviet Union first, but democracy was hardly served by attracting the sympathy of the public to the party and its members and making martyrs out of them. According to Ralph Maybank, the slightly maverick member for Winnipeg South-Centre, the case against the Jehovah’s Witnesses was ‘laughable.’ Their attacks on the Roman Catholic church were not sufficient cause for the ban and it was wrong for the government of Canada to be in the business of seizing Bibles.[349]
30 Despite his parliamentary critics, the minister of justice advised the House that the Communist-party ban would stay. St Laurent announced that he had only released the communist internees because they promised to devote themselves to the prosecution of the war. There was, as a number of members of Parliament pointed out, an apparent contradiction. On the one hand he was releasing Communist-party leaders, but on the other he was retaining the proscription on the activities of their party even though, as St Laurent and everyone else knew, the party, with only the barest of disguises, was carrying out its usual work. The explanation for refusing to remove the ban was simple enough. The minister of justice had no intention of allowing the National Council for Democratic Rights to take credit for forcing the government’s hand, nor did he intend to allow the various groups to claim that by removing the ban the government was encouraging communist doctrine.[350]
31 Insofar as the Jehovah’s Witnesses were concerned, St Laurent was compelled to admit that he had nothing to say. Indeed, he claimed to know nothing at all about the group. All he could tell the House was that since becoming minister of justice he had not authorized a single prosecution against any of its members.[351] (This did not, of course, preclude any of the provincial attorneys general from authorizing prosecutions under the Defence of Canada Regulations.)
32 St Laurent’s action is easy to explain. There was little to be gained, and virtually nothing to be lost, by keeping the ban in force. The people of Quebec and the Roman Catholic hierarchy remained largely opposed to the activities of the Jehovah’s Witnesses, in the same way they opposed the Communist Party of Canada. By keeping the bans on the Communist party and the Jehovah’s Witnesses he could present himself in the province of Quebec as a defender of traditional values. But in each case the reality was not at all what it appeared to be. The Communist party may not have been operating under that name, but it was active. The Jehovah’s Witnesses remained an illegal organization but, practically speaking, the suppression had stopped. Both bans were style without substance. The existence of the two bans, however, played well in Quebec, and opposition pressure was not yet enough to tip the balance. Even when The Globe and Mail joined the fray of the civil-liberties side St Laurent could not be moved.[352] Until he was, both bans would remain.
33 The minister of justice made some inquiries about the Jehovah’s Witnesses following the February debate. St Laurent wrote Commissioner Wood in mid-March 1943 in an apparent attempt to find out about the Jehovah’s Witnesses.[353] Wood reported on 18 March 1943. Just three years earlier Wood encouraged the previous minister of justice, Ernest Lapointe, in the strongest possible terms, to take the strongest possible measures. In all provinces, Wood now reported, the RCMP would investigate provided that someone made a complaint. Where there was sufficient evidence that the Defence of Canada Regulations had been contravened, the matter was referred to the provincial attorney general, except in Ontario, where it was now directed to the federal Department of Justice. In practice, Wood admitted, there were few complaints, and, accordingly, the RCMP only rarely found it necessary to enforce the provisions of the regulations.[354] Within a matter of months regional commanding officers were ordered not to investigate or prosecute any member of the group without prior approval from RCMP headquarters in Ottawa.[355] In fact, if not in law, the Jehovah’s Witnesses were free to go about their work.
34 The Jehovah’s Witnesses, however, had no intention of accepting what was, after all, a political compromise made necessary because of the situation in the province of Quebec, even if that compromise gave them relative freedom in law. They did not just want the freedom to proselytize. They also wanted their legal status restored and their property returned. Members of Parliament had another opportunity to criticize government inaction in the summer of 1943. The occasion for the debate was the point-by-point parliamentary approval of the Department of Justice financial estimates. When the item before the House was the approval of expenses for the administration of the Defence of Canada Regulations, opportunity for discussion about the continued operation of the regulations themselves arose. John Diefenbaker spoke first.
35 The tide of war had changed and so had the ambitious Saskatchewan MP. At first he had equivocated where civil liberties were concerned. In the debate following the Nazi conquests of Western Europe, Diefenbaker declared that neither habeas corpus nor judicial review was affected by the internment provisions of the Defence of Canada Regulations. Both, he said, were merely being held ‘in abeyance.’ Diefenbaker was now opposed to the continuation of the Communist-party ban. Diefenbaker’s indignation, however, was saved for the continuing proscription on the Jehovah’s Witnesses. They were, he said, being persecuted. Diefenbaker knew of one young woman in Quebec who was arrested for distributing literature that contained biblical quotations. Her home was searched and she herself was taken away. It turned out that the woman in question was prosecuted under the censorship part of the Defence of Canada Regulations. The literature that she was distributing did not contain the printer’s name, which was an offence that did not require the attorney general to give pre-prosecution consent.[356] While Diefenbaker did not say as much, what this particular prosecution illustrated was that even if the ban on the Jehovah’s Witnesses was not enforced, and even if it was no longer an offence to meet and worship, the means remained to effectively undermine the activities of the group. Diefenbaker demanded to know why the ban remained.[357] These remarks were echoed by parliamentarians of all parties.[358]
36 Once more St Laurent advised the Commons that he had no intention of removing the Communist-party ban. Besides, he disingenuously explained, he did not have the authority to do so: only the cabinet, which had first passed the ban, could remove it. While what St Laurent said was technically correct, his recommendation to remove the ban was all that was required for it to go. Significantly, St Laurent pointed out that the House could always pass a resolution adopting the recommendations of the special committee, which recommended that the Communist-party ban be removed. If it did so, St Laurent would consider it his duty to recommend that the governor-in-council implement the recommendation. St Laurent was shirking his responsibility. Parliament had not been given the opportunity in July 1940 to vote on the Witness ban. The federal cabinet made that decision all by itself. It passed the ban, it had asked the special committee to examine it, that committee had unanimously recommended that the ban be removed, and it was up to the cabinet to implement that recommendation. Anything else was a sham.[359] St Laurent knew as much but he remained opposed. Parliament had not adopted the special committee’s report, he told the House of Commons, and, he now pointed out, there was ‘serious doubt’ whether such a resolution would receive majority support. Almost certainly the Quebec members would have voted against it.[360]
37 While St Laurent acknowledged being fully informed about the reasons for the Communist-party ban, he again indicated that he still knew very little about the Jehovah’s Witnesses. The minister of justice had, however, some ‘hearsay information,’ which he was willing to share with the House.
38 I have ascertained that this is a very large international organization and the amount of literature that is put out from the Watchtower on behalf of this organization is something fabulous; it runs into tens of millions of tracts and various other publications. It is also known that thousands of phonographs with recorded speeches of their great leader, the so-called Judge Rutherford, are being used to further enlighten the people. There are also, or there were, very large numbers of motor trucks fitted out with these phonographs and loud speakers to blare to the population at large the merits of that particular doctrine and the demerits of all religions. All religions, according to their theory, are satanic missions to establish and maintain the dominion of his satanic majesty over the whole earth. I do not imagine that was the reason why the regulation was originally enacted, but rather because their doctrine is, of course, against war. There is no war, according to their theory, that is anything but the machinations of the devil himself, and not only that, but their view is that human-made laws have no binding force upon the individual if they happen to contravene what these gentlemen regard as being proper human behavior. This doctrine is certainly subversive of organized society.[361]
39 That the minister of justice should say that Witness doctrine was subversive of organized society was really quite remarkable, since the special committee had examined that doctrine and had determined on the basis of first-hand, not ‘hearsay,’ evidence that this was not the case. It is even more remarkable that on the third anniversary of the ban St Laurent could not point to one case of a Jehovah’s Witness who had actually been convicted of subversive activities. When exposed to the light of day Witness literature was intemperate, but no one could reasonably say that it was subversive. St Laurent’s reply was without foundation in fact. None of the activities he described made the group subversive and it is impossible to believe that St Laurent did not know as much.
40 When debate on the Department of Justice item resumed so did the criticism. The House of Commons was now fully engaged by the government treatment of the Jehovah’s Witnesses. What had once been an issue that raised slight interest, if any, had now become a matter of pressing public concern. One reason was that the tide of war had turned in favour of the Allies. With considerable Canadian participation, Allied troops attacked Sicily in July 1943, and plans were well under way for a major landing in Western Europe. While the war was not yet won, that result was seemingly assured, particularly since the American war machine was fully cranked up. Although full civil liberties could not yet be restored, and no one suggested that they could, many members of Parliament felt that the time for the restoration of political and religious rights had arrived, and that the continued suppression of a group of Christians for worshipping Christ in their own way was intolerable. Men and women in Canada were being persecuted for their religious beliefs and, as one of the members of the special committee now revealed, the brief the Department of Justice had filed with the committee did not contain enough information ‘on which you could shut up a dog.’[362] That brief and St Laurent’s most recent statement to the House bore more than a few similarities. But one week later the minister of justice did not recant. Indeed, he endorsed his earlier remarks and added to them.
41 St Laurent reported that the Jehovah’s Witnesses were against war and would not salute the flag. In fact, the minister of justice pointed to a report from Saskatchewan in which it was alleged that certain Witnesses were persuading young men to claim conscientious-objector status when called before local mobilization boards. Removing the ban, St Laurent claimed, would be wrongly construed by both Jehovah’s Witnesses and the public. That, he added, would be ‘detrimental to the morale of this country.’[363] As The Globe and Mail pointed out, however, if individual Jehovah’s Witnesses broke the law, then they could and should be charged. It was quite wrong to outlaw an entire faith on the basis of individual acts. If the government feared the influence of Jehovah’s Witnesses on the war effort it should deal with members of the group on the basis of particular offences, not on the ‘supposition that some peculiarity of their faith might lead them to do some wrong.’[364] The Globe had now joined the civil-liberties side.
42 In and out of Parliament attitudes began to change, in large measure as a result of the unrelenting efforts of Jehovah’s Witnesses to draw attention to their case. The Calgary Herald suggested in an editorial that in banning the sect the government probably ‘made a mistake.’[365] This view was becoming the prevailing one, and while the minister of justice received some half-hearted support from fellow party members in the House for the continuation of the ban, St Laurent’s position was both untenable and unpopular.[366] Rumours about ecclesiastical interference in matters of state persisted. A Social Credit member, Victor Quelch, wondered whether ‘the action against Jehovah’s Witnesses is largely on account of their attitude toward the Roman Catholics, instead of their attitude of a subversive nature.’[367] The Department of Justice, however, rejected from the outset any assertion of improper intervention. When R. B. Hanson wrote and asked whether the Jehovah’s Witnesses were being ‘persecuted’ at the behest of the Roman Catholic church,[368] the Department of Justice was quick to deny it. ‘At the time that the Minister made the recommendation to cabinet, in July 1940,’ a senior Department of Justice official replied in August 1943, ‘the fundamental question under consideration was the effect of the activities of these people upon the war effort, in that they tended to undermine the responsibilities of citizenship in time of war of anyone who would care to listen, and the organization was not declared illegal … at the behest of the Roman Catholic Church.’[369] Still the Jehovah’s Witnesses were convinced not only that the Catholic church was behind the ban, but that the hierarchy was responsible for the continuing suppression of the group.[370]
43 Another factor influencing public perception was the decision of the U.S. Supreme Court in June 1943 in West Virginia State Board of Education v. Barnette,[371] which reversed the court’s earlier decision in Gobitis. The Supreme Court had, in just two years' time, changed its mind. Now the court held that schools could not expel or suspend pupils for refusing to salute the American flag as that was a violation of children’s constitutional rights. Other Supreme Court decisions involving the Jehovah’s Witnesses were released at the same time. They uniformly supported the religious activities of the group by extending to them the protection of the American Constitution.
44 Perhaps even more important than the U.S. Supreme Court decisions was the decision of the High Court of Australia in Adelaide Company of Jehovah’s Witnesses Incorporated v. The Commonwealth,[372] which struck down an order-in-council, much like the Canadian one, banning the Jehovah’s Witnesses in that country. Australia was the only other Commonwealth country to formally ban the Witnesses, but there the ban was fought in court.
45 The Jehovah’s Witnesses arrived in Melbourne at about the same time they made their appearance in Canada. As in Canada, their numbers slowly but steadily grew.[373] By the Second World War there were some 2,000 to 3,000 Jehovah’s Witnesses in the country, and just like their Canadian brothers and sisters, they were placed under ban. With one apparent exception, the similarities between the suppression of Jehovah’s Witnesses in Australia and in Canada are really quite remarkable.
46 In September 1939 the Australian government passed the National Security Act giving the government wide regulation-making power. A second revised National Security Act was passed in September 1940. These acts, based on the War Precautions acts of the First World War, delegated most of the federal defence power to the executive, and the defence power came to rapidly replace practically all other powers as the basis of government. Much of the law ordering the war effort, as well as the wartime economy, was found in the regulations passed under the two National Security acts.[374] The first of these acts inspired Labour Party opposition, and amendments were passed restricting trials in camera on war charges to the higher courts, limiting the period of preventive detention before charge to ten days, strengthening protection against industrial and military conscription, and extending the requirement for the tabling in Parliament of regulations and orders of a legislative character. One of those regulations outlawed the Communist Party of Australia, whose opposition to the war, like that of its Canadian counterpart, was made manifest in protests and demonstrations, and was quickly brought to an end. Similarly, broad censorship regulations were passed and individuals were interned. Not only did provision for secret trials exist, but from time to time Parliament met in secret and it was an offence to disclose what took place at these meetings. Following the fall of France, further amendments to the National Security Act removed the earlier guarantees against industrial and military conscription, although conscription for service beyond Australia and its territories remained prohibited.[375] The Jehovah’s Witnesses were also placed under ban.
47 The Jehovah’s Witnesses had been making a nuisance of themselves. In late July 1940 more than two thousand Jehovah’s Witnesses attempted to stage a demonstration but were frustrated by the police, who arrested almost one hundred of them. ‘Those arrested treated the police with long religious harangues,’ according to a report published in The Ottawa Citizen on 29 July 1940. The article concluded with the observation that demands for the suppression of the sect were growing throughout the Australian Commonwealth.[376] Department of External Affairs papers reveal that the Australian government took a keen interest in the decision of the Canadian government to place the Jehovah’s Witnesses under ban.[377] And like Canadian politicians, some Australian politicians had serious misgivings about the group.
48 This was certainly the view of Australian attorney general William Hughes. ‘Their talk,’ according to Hughes, was ‘the talk of madmen.’ Likewise, their doctrines were ‘a hotchpotch of the scriptures and of cunning interpolations made by the master mummer, “Judge Rutherford.”’[378] Hughes did not know what the ‘real purposes’ of the Jehovah’s Witnesses were, but he did know that ‘they have abused our hospitality and shown themselves unworthy of citizenship.’ The Jehovah’s Witnesses were ‘in’ but not ‘of’ the community.[379] Australian authorities were convinced that the Jehovah’s Witnesses were under the control of the enemy, variously identified as either communist or Nazi, and were acting against the national interest. Indeed, it was believed that the Witnesses were using their Adelaide radio station to pass intelligence to the enemy.
49 Witness radio stations in Canada and the United States had long been shut down. The Australian station was left alone and, ironically, it turned out to be the cause of the ban. One day early in 1941, it purported to describe a boating trip. ‘We are now sailing past the beautiful eastern shore of St Vincent Gulf,’ the broadcaster said, ‘and are approaching Kangaroo Island. Off in the distance I can see a convoy, steaming to the west. We shall now take you to New Zealand to listen to some Maori songs.’[380] It was noteworthy, particularly to the Australian navy, that a troop transport with New Zealand soldiers on board, including some Maori recruits, had sailed from Adelaide just hours before the broadcast was made. The radio station was closed and the Jehovah’s Witnesses were banned on 17 January 1941. Soon after, New Zealand imposed restrictions on the group, while the South African government placed Witness literature under strict censorship control.
50 The radio broadcast may have just been a coincidence, and other records suggest that it was not the Jehovah’s Witnesses who had broadcast the message, but an advertising agency that had booked time on the station.[381] Regardless, the station was owned and operated by the Jehovah’s Witnesses, the mention of a troop transport defies reasonable explanation, and the responsibility was theirs. Even if the broadcast had not been made, the Australians were reaching the limits of their patience. The Jehovah’s Witnesses' ‘defeatist propaganda’ was irritating, especially when given out near military camps. Their financial resources were suspect, and many Witness leaders were thought to be under enemy influence. It was ‘known’ that since the banning of the Communist party, many ‘communists have been inducted into and work with the Witnesses.’ Although, as the American consul reported to Washington, this was somewhat odd, considering that most communists were atheists, while the Jehovah’s Witnesses obviously believed in God. Apparently there were many enemy aliens among the membership in the group. Indeed, the American consul reported that in Tasmania the leader of the Witnesses was a naturalized Australian of German origin.
51 There were other reasons as well for the growing displeasure with the group, and these reasons paralleled the reasons for the Canadian ban. The Jehovah’s Witnesses would not salute the flag and they claimed neutrality. They did not recognize earthly government, only the Theocratic government. They taught that the churches were the instrument of Satan and that their way was the only way. With only 2,000 to 3,000 members in all (and dispersed across the country), the Jehovah’s Witnesses were proscribed. The Witnesses decided, however, to challenge the proscription in court.
52 Australia, like Canada, is a federation. There are six Australian states and a federal parliament. Legislative power is distributed under the Australian constitution, which, like the BNA Act, was passed by the Parliament at Westminster. There is no bill of rights in the constitution, but there is one provision that, like a bill of rights, restricts Parliament’s power. Section 116 of the Australian constitution provides: ‘The Commonwealth shall not make any laws for establishing any religion or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.’[382] Similar in wording to the First Amendment under the U.S. Constitution, this was the provision that the Australian Jehovah’s Witnesses claimed the government had violated by placing the group under ban. On 4 September 1941 the Witnesses went to court. Ultimately, the case came before the High Court of Australia, Australia’s final appellate court, which in June 1943 set aside the ban.
53 The court unanimously held that section 116 did not prevent the Commonwealth from passing laws prohibiting the advocacy of doctrines or principles that, while advocated with a religious objective in mind, were prejudicial to the prosecution of a war in which the Commonwealth was engaged. This did not, however, end the case, for a majority of the judges held that some provisions in the relevant regulations attempted to work so complete a destruction of the property rights of the church and its creditors, having consequences beyond the period of the war, as to make the regulations outlawing the group partially invalid. The opinion of Chief Justice John Greig Latham in this case was for many years, and may in fact still be, the most comprehensive Australian judicial survey of the concept of free exercise of a religion.[383]
54 Chief Justice Latham held that section 116 of the Constitution was a general provision, prevailing over and limiting all other provisions in the Constitution that give power to make law. Therefore, no law could escape the application of section 116 merely because it was made pursuant to another constitutional power, such as the defence power. Latham then reviewed what was a religion and what was not, and concluded that it was up to individuals, not the court, to make that determination. ‘Section 116 … is based upon the principle that religion should, for political purposes, be regarded as irrelevant. It assumes that citizens of all religions can be good citizens, and that accordingly there is no justification in the interests of the community for prohibiting the free exercise of any religion.’[384]
55 The court and the constitution would not protect religious beliefs or practices irrespective of the political or social effect of that belief or practice. Put another way, citizens could not exempt themselves from obedience to law under the cloak of religion. Section 116 did not protect, Latham said, the exercise of religion. ‘When a slogan is incorporated in a constitution,’ and the ‘free exercise of religion’ was just that, ‘and the interpretation of the slogan is entrusted to a court, difficulties will inevitably arise.’[385] What Latham meant was that he had to give meaning to the constitutional term. And the only way of doing that was to look at the context in which the terms in question were used.
56 It was obvious that the word ‘free’ in ‘free exercise of religion’ meant something different from ‘free lunch,’ ‘free love,’ or even ‘free trade.’ Some freedoms had limits, while others did not. Instructive in this context was the interpretation of the U.S. Supreme Court of the First Amendment, which bore more than a superficial resemblance to section 116. That court, Latham said, and in the process cited a handful of Witness cases, had held that freedom of religion did not result in the invalidity of a law that in any degree interfered with that right, any more than did laws limiting freedom of speech or freedom of assembly. There were interests to be balanced, and that was as true where freedom of religion was concerned as it was where any of the other constitutional freedoms came before the court.
57 What Chief Justice Latham had to decide was whether the Australian regulations banning the Jehovah’s Witnesses and seizing their property had gone too far. There was an American case involving a Mormon who committed polygamy in violation of the law. The U.S. Supreme Court had rejected the claim that this was his constitutional right and instead unanimously held that to uphold it would be to make every citizen a law unto himself. There was, obviously, considerable truth in this view, and if decided otherwise, examples of potential disorder come readily to mind. There was more to the issue than merely deciding as a matter of course that the law of the land prevailed over religious beliefs, for was not the very object of the constitutional protection of religious freedom ‘to prevent the law of the land from interfering with either the holding of religious beliefs, or bona fide conduct in pursuance of such beliefs’?[386] The answer given by the U.S. Supreme Court and adopted by the Australian chief justice was that it is the kind of interference that must be determined, and that undue interference could not stand. ‘This view,’ Latham held, ‘makes it possible to accord a real measure of practical protection to religion without involving the community in anarchy.’[387] It was up to the court to determine whether or not a particular law resulted in an undue infringement of religious freedom. Now all Latham had to do was to apply this principle to Australia. Incredibly, at the conclusion of this analysis, Latham decided it was not essential to the case. ‘It is possible, however, in my opinion, to decide the present case upon a narrower principle.’[388] That principle was the right of the state to protect itself. Australia had that right and thus, in Latham’s opinion, the regulations banning the Jehovah’s Witnesses could properly stand. The country was at war and it was within the power of the Commonwealth to terminate the existence of subversive organizations.[389]
58 While the other members of the court generally endorsed the chief justice’s views about the principle to be applied, they took the next step and, in varying respects, considered the regulations, their intention and effect, and struck the ban down. They all agreed that free exercise of religion had limits. They were united in their view that it was the duty of the court to say what those limits were. And they were one in believing that that process could lead to court affirmation of laws and regulations that controlled the activities of religious bodies when such activities were seditious, subversive, or prejudicial to the defence of the Commonwealth or the prosecution of the war. Where they departed from Latham, however, was in their assessment of the regulations.
59 One judge called the regulations ‘arbitrary, capricious and oppressive.’[390] Another disliked the wide and ambiguous way in which they had been framed.[391] And a third objected to the complete destruction of personal and property rights the regulations resulted in. The state had rights, but those rights, like the defence power, were limited by the reasonable necessities of defence during the period of war. If the government needed Witness property, it could follow expropriation provisions. Similarly, the blanket prohibition of all Witness doctrines could not stand judicial review, for that prohibition included perfectly innocent doctrines along with seditious ones. A law that had the effect of making advocacy of Christian beliefs a crime could not be justified by the exigencies of war. It was also prohibited by section 116. Overall, a majority of the judges was convinced that the regulations were an invalid exercise of the defence power. A balancing of interests led them to this view, which returned to Jehovah’s Witnesses in Australia their freedom to go about their work.
60 The Adelaide decision was given in the summer of 1943, and it remains one of the most important in the common-law world for its definition of the concept of religion. Not long afterwards an Australian judge explained why the ban had been introduced. It was instituted, he wrote, in a climate of hysteria where there was a threat of invasion. The hysteria became a panic and the Witnesses were banned. ‘When matters somewhat cooled down, the High Court of Australia, in its traditional British calmness, gave judgement against the banning of the organization and restored to Jehovah’s Witnesses their constitutional rights to religious freedom.’[392] The Adelaide case, in fact, fell squarely within the wartime jurisprudence of the Australian courts. Those courts willingly gave the Commonwealth defence power a wide and flexible construction. However, they equally willingly scrutinized regulations with some degree of closeness to see that the defence and other powers were not abused and to ensure that basic constitutional guarantees were observed.[393]
61 It is noteworthy that this scrutiny, just like the increasing concern for Jehovah’s Witnesses' religious rights in Canada, coincided with a turn in war fortunes. As in Canada, the Jehovah’s Witnesses were not the only proscribed group to benefit; the other major organization proscribed under the Australian equivalent of the Defence of Canada Regulations, the Communist Party of Australia, gained as well. When it was banned in June 1940, at the same time the Communist Party of Canada was banned, the Allies were on the run, and the ban received little mention in Parliament. As in Canada, there were no campaigns of protest.[394] Australian communists had never been popular, and with Western Europe under Nazi control and the Battle of Britain underway, the communists' anti-war attitudes and blind subservience to the Moscow line did no more to advance their political fortunes in Australia than they did in Canada. Communist newspapers went underground, appearing only periodically. The leadership of the party was able to keep in touch, thanks to a sympathetic lawyer who disguised party orders as legal documents. On the whole, however, the ban dealt the party a crippling blow. After the character of the war ‘changed,’ Australian communists dedicated themselves to the war effort, and this work paid off, for they were returned to legal grace well before their Canadian comrades.
62 A new era of Australian political tolerance did not, however, begin. If anything, the opposite was true, for an anti-communist campaign would begin with a vengeance right after the war and would last for the next fifteen years. The Communist party in Australia was, to all intents and purposes, finished. The Jehovah’s Witnesses were another matter. With their right to go about their business, if not their freedom of religion, recognized in law, there was nothing to stop them from spreading the good word. Freedom of religion had been restored in Australia, while in the United States the decision in Barnette was a complete vindication of Jehovah’s Witnesses' constitutional rights.
63 These developments, in Australia and in the United States, did not go unnoticed in Canada, where pressure to remove the ban continued. St Laurent remained unmoved and finally Prime Minister King decided that it had gone on too long. On 14 October 1943 King told the cabinet he wanted the ban rescinded, effective immediately. In his own way, the prime minister was religious, and he was possibly disturbed by the allegations of interference with Jehovah’s Witnesses' religious rights. The very day he made the request the cabinet passed an order removing the unincorporated association, the Jehovah’s Witnesses, from the banned list.[395] However, the International Bible Students Association, along with the two Watch Tower corporations, remained proscribed.
64 Unfortunately, neither the Cabinet minutes nor the King diary reveals what was discussed at the meeting where this decision was made. The government may have been merely playing politics in that it knew that the International Bible Students Association held legal title to Witness property in Canada, and that as long as that group remained under ban the Jehovah’s Witnesses would not have access to their property. The government almost certainly knew that it was one of the Watch Tower societies that published Witness literature, and that by keeping these societies illegal, the literature could continue to be kept out. As a result, the effect of the order was to only incompletely restore to Jehovah’s Witnesses their religious freedom. The motives of the government were, at the very least, suspect, if not cynical, for the special committee unanimously intended that all legal disabilities be removed.
65 In October 1943 Stuart Wood wrote the deputy minister of justice and pointed out the obvious. It was doubtful, according to the commissioner, whether the continued illegality of the three Jehovah’s Witnesses' corporate bodies was serving any purpose, since the Jehovah’s Witnesses were perfectly free to operate lawfully in Canada.[396] This same argument was made the following month by the Jehovah’s Witnesses, in a series of long detailed briefs forwarded to the prime minister, the minister of justice, and various other federal cabinet ministers.[397] Congregations of Jehovah’s Witnesses immediately engaged Kingdom Halls and began to advertise them as they had before the ban.[398] Moreover, a central office was set up on Main Street in Toronto and efforts began to be made, under the direction of Hayden Covington, to regain control of Witness property that had been earlier seized and was now leased to the Salvation Army, a Satanic organization, according to Witness belief.
66 Late in November 1943 Covington wrote the Canadian secretary of state, asking for the return of Jehovah’s Witness property that had been held by the custodian of enemy property since the banning of the group in July 1940. There was some money in the bank and a trust company was managing the Jehovah’s Witness Canadian headquarters on Irwin Street in Toronto.[399] When this letter failed to receive a satisfactory response, Covington wrote the American secretary of state and asked for assistance. As Covington correctly pointed out, the only reason why the other Witness groups had been declared illegal was to give legal effect to the ban on the unincorporated association.[400] In early February 1944 the American embassy in Ottawa was asked to look into the matter, and soon enough the first secretary wrote back with an interesting response.
67 The Jehovah’s Witnesses had been banned, First Secretary Lewis Clark replied, principally because it was believed that members of the organization were obstructing enlistment at a time when it was voluntary. ‘Since the ban was imposed conscription has superseded voluntary enlistments in Canada. Therefore, the teachings of the organization are not considered as detrimental to the war effort as they originally were. Furthermore, the other Statutes of Canada are quite sufficient to stop any activities by members of the organization which are considered to be subversive or contrary to the best interests of the state.’[401] In a confidential section to his report Clark addressed the question about why the remaining bans were kept in force.
68 He had met privately with officials at the Department of Justice and with the legal section of the custodian of enemy property. The reason for maintaining the corporate organizations on the banned list was far from salutary. Although not stated categorically, it could not have been more clear. ‘In addition to the subversive statements made in pamphlets and circulars issued by these organizations the printed matter was objectionable on other grounds. It is said that some of the printed matter seized by the RCMP contained bitter diatribes against the Roman Catholic Church, such matter being particularly offensive in Canada in view of the situation in Quebec. Some of the illustrated matter was considered disgusting and obscene.’[402]
69 Clark had excellent Ottawa connections, and there is every reason to believe that officials told him the truth. The Jehovah’s Witnesses, of course, knew nothing about his report, but continued to believe that the Roman Catholic hierarchy was behind it all. On balance there is something to this claim as is made clear by the Villeneuve-Lapointe correspondence. It is not difficult to understand what motivated Cardinal Villeneuve in making the request he did, or why Lapointe implemented the recommendation. Far better, both men believed, to sacrifice the interests of this unpleasant sect than let it create dissension and disunity when both were detrimental to the prosecution of the war. There were enough other people in the spring and summer of 1940 calling on the government for action against the Jehovah’s Witnesses for this policy to seem attractive. St Laurent may not have agreed, but he was saddled with his predecessor’s decisions and had no intention of reversing them until he had no other choice. The intelligence collected and transmitted by the U.S. first secretary is just one more piece of evidence, and while then unknown to the Jehovah’s Witnesses, it helped to prove their claim that the ban had been originally imposed at the behest of the Roman Catholic Church. Clark concluded his reply with the report that the Canadian government did not wish to be accused of persecuting religious groups. This was undoubtedly correct, but that same government continued to reject requests for the removal of the remaining corporate bans.
70 On the first day of December 1943 the new president of the Jehovah’s Witnesses became involved. Nathan Knorr became president upon the death of Judge Rutherford in January 1942. Like Rutherford, Knorr was a tall and strong-featured man, although he seemed much more retiring than Rutherford had, and his mild manner cloaked an iron will. He continued Rutherford’s programs, but with some subtle changes in the literature. Articles began to be published anonymously, and the virulent attacks on the Roman Catholic church were toned down. Rutherford had done a lot to inflame non-Jehovah’s Witnesses against the group, and intentionally or not, Knorr’s policies helped create a climate in which passions might cool. Knorr wrote Prime Minister King a personal and direct appeal for removal of the ban against the three corporate groups. It was absurd, as Knorr pointed out, to continue the ban against these groups when the ban against the Jehovah’s Witnesses had been dropped. The result was unfair, for while the Witnesses regained their freedom of worship, they were still denied access to their property, which was indispensable to their religious work. Knorr’s letter, filled with references to U.S. judicial decisions upholding the constitutional rights of Jehovah’s Witnesses, failed to sway the prime minister, assuming he even saw it, and what evidence there is suggests that he did not. Certainly, it had no effect on senior officers of the Department of Justice, who had not only initiated the ban, but defended it throughout. W. Stuart Edwards, who had been the deputy minister of justice when the ban was first imposed, was then retired. His successor, F. P. Varcoe, replied to Knorr on 9 December 1943 and indicated that the Government of Canada had no intention at present of removing the ban.[403]
71 What is interesting about this particular request is what happened to it after it arrived at the Department of Justice in Ottawa. P. M. Anderson, a senior official in the department, wrote the RCMP and asked for basic information about the group. Who were they? When did they arrive in Canada? Were they connected with the American-German Bund? Why had they been banned? And on what basis was the ban lifted?[404] Every one of these questions had been asked hundreds of times, thoroughly explored by the Special Committee on the Defence of Canada Regulations, and debated on numerous occasions in the House of Commons. When RCMP inspector Johnny Leopold replied, he reported that there was no information available to indicate a connection between the Jehovah’s Witnesses and the Bund, an overseas Nazi organization. In fact, as Leopold knew, there was no connection at all between the two organizations. Leopold stated that the Jehovah’s Witnesses were banned because they taught that man-made authority or law should not be recognized if it conflicted with Witness interpretations of the Bible. Other equally unpersuasive reasons for the ban that Leopold repeated were the Witness teachings that all religions were rackets and that Red Cross work was the devil’s work. Finally, Leopold wrote, the Jehovah’s Witnesses refused to salute the flag. The ban on the Jehovah’s Witnesses was lifted, Leopold wrote in what was the only new information in the memorandum, because it was felt that it prevented them from worshipping God.[405]
72 A new Special Committee on the Defence of Canada Regulations was struck in February 1944, but it did not even look into the regulations or the bans of various groups. It met a half dozen times and, finally, concerned itself with naturalization and deportation.
73 Meanwhile, the Jehovah’s Witnesses continued to campaign for the repeal of the remaining bans, but there is no evidence that their letter-writing program was having the desired effect. In April 1944 St Laurent told the Witnesses that the remaining bans would stay. A delegation, led by Hayden Covington, was given an audience with the minister of justice. ‘Lengthy discussion was had and the injustices of the situation were brought forcibly to his attention,’ the 1946 Yearbook of Jehovah’s Witnesses recorded.[406] St Laurent was adamant, and he declared that he did not intend to take any action.
74 St Laurent was thereupon informed ‘in cool, measured terms’ that a nation-wide petition campaign would begin on the first day of May if the ban was not removed. He was advised that the Jehovah’s Witnesses expected one million Canadians to subscribe. From coast to coast, 15,000 Witnesses, Covington claimed, would begin to call on their friends and neighbours.[407] St Laurent was as unmoved by this threat as he had been by one made the previous November, when Witnesses reminded him in a printed brief what happened to Pharaoh for trying to keep the people of Israel enslaved.[408] Three days later, W. Glen How, a Jehovah’s Witness who had just been called to the Ontario bar, made similar written representations in a brief he sent to the prime minister.[409]
75 As promised, a petition was prepared, asking the government to restore the International Bible Students Association to its pre-ban status. Why the two other corporate bodies were not included is not clear; perhaps because the ban on them, while real enough, did not interfere in any way with Witness work. The Jehovah’s Witnesses could always print literature that identified the ‘Jehovah’s Witnesses’ as the publisher, but with the ban on the International Bible Students Association in effect, their property remained out of reach. In June 1944, in a space of only ten days, the Jehovah’s Witnesses collected 200,000 signatures. St Laurent was kept informed about the state of the campaign, and he realized that the Jehovah’s Witnesses could be taken at their word. Significantly, that ban was removed literally within days of the receipt of the first petitions in Ottawa.[410] When the amendment to the Defence of Canada Regulations was announced the petition was withdrawn.[411] While it was obvious that only a handful of those who signed the petition were Jehovah’s Witnesses, and it is inconceivable that many more actively sympathized with the sect, the petition proved that there was no public support for the ban, except perhaps in Quebec. ‘Jehovah has blessed His servants with another triumph over totalitarian encroachments and influences,’ a Watch Tower publication declared. The Jehovah’s Witnesses rejoiced in this victory, but knew there was more to be done: the remaining bans had to be removed. ‘Then the Dominion of Canada will have fully restored to thousands of her law-abiding citizens their most precious heritage, the freedom to worship their Creator according to the dictates of their own conscience.’[412]
76 In the meantime, in late July 1944 a handful of Jehovah’s Witnesses were charged with passing out literature prejudicial to the war effort.[413] Just two weeks later, however, Witnesses would be meeting openly at two conventions in Canada and at sixteen in the United States. In Winnipeg, more that 2,500 members of the group packed the amphitheatre to hear speakers from the United States and from ‘theocratic headquarters’ in Toronto. The assembled were told that the world was coming to an end and that the Kingdom of God would soon appear.[414] Literature was freely distributed throughout the amphitheatre and across the city, which had been divided into territories, each of which was assigned to one or more Jehovah’s Witnesses attending the convention. For its part, the RCMP left the convention-goers alone.[415] The same was true when Nathan Knorr came to Toronto in November 1944. He delivered to 11,000 people a speech entitled ‘One World, One Government.’ It was not about the recently established United Nations, of course, but about the Theocracy, which Knorr confidently predicted would soon be running the world.[416]
77 If the Winnipeg and Toronto city fathers were unconcerned about the presence of large numbers of Jehovah’s Witnesses in their midst, the same could hardly be said about their counterparts in Edmonton. The Edmonton Bulletin could not abide the welcome the Jehovah’s Witnesses received when they congregated in that Alberta city for a convention. Particularly repugnant were the sect’s claims that the ban was unjust. The Jehovah’s Witnesses were, the paper said, a dangerous group because they sought to inculcate in the minds of the young a philosophy that refused to recognize the responsibilities of citizenship. Any organization that did so at any time was, the paper declared, at ‘war with society.’[417] Similarly, the Witnesses continued to receive a cool reception in other places as well. In September 1944, for example, RCMP officers entered a home in Kirkland Lake, in Northern Ontario, where services were apparently taking place, and took away Witness literature.[418] The treatment of some Jehovah’s Witnesses in Mitchell, Ontario, was much worse. Standing quietly, holding up copies of their publications in the hope of generating interest in passers-by, they caught the attention of a local constable, who incited a mob to beat them up. Try as he did, W. Glen How could not convince the authorities to take action.[419]
78 Nevertheless, Jehovah’s Witness operations were almost back to normal. There still was the matter of the remaining bans. Instead of launching another petition, How launched a class action in the Ontario courts. Class actions were very complicated in Ontario, and the rules of civil procedure that provided for them were, as they remain to this day, very strict. When How filed a statement of claim in the Supreme Court of Ontario, asking the court to strike down the remaining bans under Regulation 39C because they unlawfully abridged and denied ‘Jehovah’s Witnesses in Canada their rights and their freedom of worship of Almighty God contrary to the unwritten British Constitution,’ he was under no illusion that the court would take jurisdiction to hear the case.[420]
79 The Department of Justice took the case seriously and retained a leading Toronto counsel, John J. Robinette, who was instructed to try to strike out the claim.[421] Incredibly the case came before the new master of Ontario’s Supreme Court, G. D. Conant, the former attorney general who had approved so many prosecutions against Jehovah’s Witnesses when he was in office. After stepping down Conant was appointed to the master’s post, a position traditionally given to senior lawyers with extensive litigation experience, which he had had before entering politics. Now he was going to hear the claim of a group he himself had prosecuted. If ever there was a case crying out for a judge to excuse himself, this was surely it. On 26 May 1945, Robinette succeeded in sending How back to the legal drafting board when Conant released his decision, striking out large and significant parts of the Jehovah’s Witnesses' claim.
80 Master Conant ruled that the Jehovah’s Witnesses and their Canadian leader were not proper parties to a class action against the government. He also expressed doubt, although largely on technical grounds, about the judicial reviewability of the remaining bans. Master Conant may have been right in strict law, but if they were not the proper parties, who were? Surely not the members of the remaining banned organizations, for to act on their behalf was not only to admit membership in an illegal group, but also to act as an officer or member of that illegal organization, and this was exactly what the Defence of Canada Regulations continued to proscribe. It was a classic legal dilemma. All the court would do was give leave for the Jehovah’s Witnesses to amend their statement of claim, but before they did, assuming they could surmount the legal hurdles Conant’s decision created, the remaining bans were removed and the action was, on consent of both parties, dismissed.[422]
81 The end of the war in Europe in May 1945 gave the government an excuse to remove the remaining bans. A memorandum prepared for the prime minister in mid-April 1945 pointed out that removing the remaining bans might have some political repercussions and that perhaps the prime minister might like to have a word with St Laurent before doing anything about it. It was clear that these political repercussions would take place in the province of Quebec.[423] Arguably more important than the political implications in Quebec of removing the remaining bans were the immediate implications of keeping them in force elsewhere in Canada with a federal election on the horizon. King and the Liberals had no desire to be attacked for denying the Jehovah’s Witnesses their religious rights and, in truth, the remaining bans had only symbolic effect. The RCMP was completely in favour of removing them,[424] while other government departments were gradually eliminating what few restrictions on Witness activity remained. (Canadian customs, for example, removed remaining restrictions on the importation of Jehovah’s Witness literature.)[425] Finally, on 22 May 1945, the remaining bans were removed.[426] In all there had been more than five hundred arrests; hundreds of raids had been made on private homes; countless religious meetings had been disturbed, and preaching efforts interrupted. There were convictions, but not a single one was for subversive activities against the Canadian state. Through all of this the Jehovah’s Witnesses became more active than ever before. In April 1945, almost 15,000 Canadian Witnesses attended public lectures in different places across the country. Nathan Knorr was soon back in Canada, and he spoke to thousands of Witnesses. It was, as the Yearbook of Jehovah’s Witnesses for that year later said, ‘a peak of blessedness.’[427]
82 On 14 June 1945 an interdepartmental committee was established by order-in-council to examine the Defence of Canada Regulations.[428] The purpose of the committee, with representatives from the departments of Justice, External Affairs, Secretary of State, National War Services, National Defence, the Privy Council Office, and the RCMP, was to review the provisions of the regulations and make recommendations as to their variation, modification, and revocation. The regulations had been introduced on the recommendation of an interdepartmental committee, and they would be repealed on the recommendation of such a committee. Parliament was left out on both occasions. On 16 August 1945, following the surrender of Japan, twelve of the regulations that most affected civil liberties were revoked; the remaining regulations were removed the following month.[429] Only the liberties of Canada’s Japanese remained restricted, and would be for the next four years. There were two issues concerning the Jehovah’s Witnesses outstanding, however, even after all the bans were removed; patriotic exercises in the public schools and exemption from military service.
1 In Canada not only are religion and education interrelated but both are linked with politics, and have been since Confederation, when the Constitution, as a condition of union, provided for state-supported denominational schools and gave the provinces legislative authority over education. These constitutionally protected educational and religious rights are not as clear as they seem in the plain wording of the BNA Act and the country has been bedevilled by controversy over what the religious-education rights of Protestants and Catholics actually are. As conventionally drawn, the controversy concerns rights to publicly funded denominational schools. Unlike the First Amendment of the U.S. Constitution, which prohibits establishment of any religion, the Canadian Constitution expressly provides for such establishment. Although no one need attend a denominational school, Protestants and Catholics in some Canadian provinces have certain constitutional rights to do so. What those rights were has been, and, until recently in Ontario, remains, a subject of sharp debate. Politicians who meddled with the status quo often did so at their peril.
2 Ontario premier Mitchell Hepburn, for example, came up with a plan prior to the war to improve funding and increase the number of Roman Catholic separate schools. When the bill came before the legislature it suffered sustained attack.[430] The Conservative leader, Earl Rowe, called Hepburn a tool of Rome and promised to repeal the law when the Conservatives came to power. With a majority, however, the Liberals were able to push it through, only to repeal it shortly afterwards as an unworkable scheme when a by-election illustrated the public dangers of proceeding with the plan. George Drew, then a rising star in the Conservative party, campaigned against the government in this election. ‘Is it not unfair,’ Drew asked the voters, ‘to remind the French that they are a defeated race, and that their rights are rights only by tolerance of the English element who, with all respect to the minority, must be regarded as the dominant race?’[431]
3 The Tories could be relied on to divide rather than unite over the issue, but no one attacked Hepburn’s plan more vigorously than Reverend T. T. Shields. Usually venomous and vituperative, in this case Shields made a more moderate point. He saw in the plan a conspiracy, directed from the Vatican, to threaten the continued existence of the Canadian state. His attack focused on one point: there should be absolute separation between church and state. To prove that point, Shields’s church, a large sprawling affair that still stands at the corner of Jarvis and Carlton streets in Toronto, voluntarily gave up its charitable status and began remitting to the city what it estimated to be the appropriate property tax for its land. The state should not be involved in the teaching of religion, he argued; that was a job for the churches. To invite in the state was to undermine, if not destroy, Canadian nationhood. ‘I believe,’ Shields told his 2,000-member flock one Sunday morning, ‘when people of different nationalities congregate in this country, and families grow up about them, that all these children should be fused into one common citizenship in a system of national schools.’[432]
4 That the state had no business teaching religion in public schools was generally accepted, but democratic theory and practice often diverge. The state was involved in religious education, and in the province of Ontario it would soon be involved in an unprecedented way. In 1939, religion and education were intertwined through provincial regulations requiring most Ontario schools to conduct opening and closing religious exercises, including the reciting of the Lord’s Prayer and selected Scripture readings. In 1939 a new regulation, no. 14, was passed, adding the singing of the national anthem, then ‘God Save the King,’ to the morning and afternoon ritual. Although the regulations made no mention of it, during the war years saluting the British Ensign was, in many schools, added to these opening and closing exercises. While saluting practices varied from place to place, it was common for the pupils in a class to salute by numbers. Teachers would give the command: ‘Salute the flag by numbers.’ On ‘one,’ the children would come to attention and salute the flag military-style. On ‘two,’ they would drop their hands to their sides. Typically, the singing of the national anthem would be first on the agenda, followed by the religious exercises and then the flag salute. The teacher or, if there was a loudspeaker system, the principal would then make whatever announcements were necessary.[433]
5 The regulations permitted conscientious objectors, both pupils and teachers, to withdraw during or to refrain from participating in the Scripture readings or in repeating the Lord’s Prayer.[434] There was, however, no provision for conscientious objection to the singing of the national anthem, the objection held by the Jehovah’s Witnesses. They had not always been opposed to singing national anthems and saluting national flags, although opposition to the flag salute on religious grounds in the United States was almost as old as the salute itself. Witness opposition to both came late in the group’s history, and is just another instance of the theological developments that accrued under the leadership of Judge Rutherford. The genesis of this particular issue can be traced to the case of Carlton B. Nichols, a grade-three pupil who, in the fall of 1935, told his home-room teacher that he would not salute the American flag. As young Carlton explained, the American government was the instrument of Satan and therefore pledging allegiance to or saluting the American flag would be paying homage to the Devil.
6 Carlton was expelled from school, and within days of the incident Judge Rutherford was on the radio, commending Carlton and telling the faithful that those who were wise would do exactly the same thing. ‘The flag,’ Rutherford said on 6 October 1935, ‘stands for the visible ruling powers. To attempt by law to compel a citizen or child of a citizen to salute any object or thing, or to sing so-called “patriotic songs,” is entirely unfair and wrong.’ As Judge Rutherford saw it, laws were not made to compel a person to violate his conscience but to prevent the commission of acts that cause injury to others. Accordingly, if a person sincerely believed that God’s commandment was against the saluting of flags, then it was wrong to try to compel that person to salute.[435] Even if one rejected entirely the religious basis for the Witness objection, there were other grounds in favour of a policy of laissez-faire. At the very least, the thought of forcing someone to salute a national flag or sing the national anthem was inimical to what both actions stood for.
7 Nevertheless, Carlton B. Nichols and thousands of Jehovah’s Witnesses were out of step with their times, for the requirement that Carlton salute was a new one, passed in his home state only the year before. In the wave of patriotic zeal that was sweeping the United States, many state legislatures and local school-boards enacted laws or passed regulations requiring students to salute the American flag. Carlton’s case was one of many that ended up in court, as state after state joined in on the legislative bandwagon and enacted similar provisions.[436]
8 In Canada, the Jehovah’s Witnesses did not start to refuse to sing the national anthem after their organization was declared illegal, but had been refusing to sing it for years. Prior to the outbreak of the war, the Ontario Education Regulations had not required the singing of the national anthem and the flag salute had never been mandatory. It was government policy in Ontario, as late as May 1940, more than a month before the ban was imposed, that Witness children be excused from the opening and closing exercises; only those children who actually attended the exercises were required to participate in them. As the senior solicitor in the Department of the Attorney General, C. R. Magone, wrote in a letter to a member of a local board of education, ‘We must not become unduly exercised over the refusal of children to salute the Flag at this time. The sect in question is more pacifistic than disloyal and to take drastic action would convert the pupil or the parents into martyrs.’ The minister of education, Duncan McArthur, fully endorsed this view.[437]
9 The deterioration of the international situation and the consequent change in the domestic political climate were such that calls for restraint fell on deaf ears. There were, many Canadians believed, saboteurs and fifth-columnists at large, and the Jehovah’s Witnesses who refused to salute the flag or sing the national anthem came under immediate suspicion of being both — a suspicion that was confirmed when the group was finally banned. Across Ontario, reports of the unpatriotic activities of this now unlawful group began to flood in to, among others, the RCMP and the Ontario Provincial Police.
10 In May 1940 The Ottawa Citizen reported that a number of Witness children had been suspended in nearby Pembroke. Their suspension was upheld by the local school-board, which told the parents that the children would be allowed to return to school only if they obeyed the regulations.[438] Similarly, an RCMP officer in the Rosenheath district was asked to make an investigation into activities of pupils in that rural area who refused to salute or sing.[439] C.R. Magone received many of these reports and continued to try to defuse the situation. Fully aware of international events and the domestic political climate, which demanded action of some kind, the senior solicitor nevertheless urged restraint. He was anxious to ensure that problems in flag-saluting not take on a life of their own. Magone believed that the incidents were being magnified and that publicity made the offence seem greater. Attorney General G. D. Conant did not authorize any charges under the Defence of Canada Regulations.[440] The appeals for action only stopped when the 1939–40 school year came to an end. The respite, for Jehovah’s Witness children and parents in Ontario, was, however, only temporary.
11 The start of a new school year was not, at least according to available evidence, preceded by any consideration of what to do about the unpatriotic children. It was left to local school-boards to devise policies of their own, with the predictable result that some boards left the Witness children alone while others showed less tolerance in their dealings with the sect. In Toronto, the board of education decided that public-school pupils would not be required on pain of expulsion to sing the national anthem or salute the flag.[441] The neighbouring Hamilton Board of Education, however, saw things differently.[442]
12 As early as 8 May 1940 an RCMP officer reported to headquarters that Witness children in Hamilton were causing problems in the public schools. Early in June, the internal management committee of the Hamilton Board of Education met to formally consider what action to take against public-school pupils who refused to sing the national anthem or salute the flag. Current practice, Frank E. Perney, the superintendent of schools, advised the committee, was to simply exclude Witness children from the patriotic part of the opening exercises, just as they were presumably excused from the religious part.[443] This approach failed to satisfy the majority of the members of the committee, who decided to write the attorney general to ask for direction.[444]
13 Loyalty, and questions about loyalty, were obviously in the air. At this meeting a communication from the Hamilton teacher’s council was also read, expressing the willingness of Hamilton teachers to reaffirm their loyalty by taking a formal oath of allegiance. Hamilton teachers were also eager to assist the board ‘in tracking down any and every report that might cast doubt on the loyalty of any teacher.’ After the letter was read a resolution was passed requiring every Hamilton teacher to declare formally that ‘he or she is pro-British in sympathies, and a Loyal British subject.’ Teachers who failed to do so were to be notified that their services were no longer required.
14 On 4 July 1940, the internal management committee met again, with G. D. Conant’s opinion in hand. Conant had written that it was ‘undesirable’ to give these cases any prominence. He suggested to the Hamilton board that they should follow the example of the Toronto board, and he concluded by repeating the words of Senior Solicitor Magone about the need to act with restraint in dealing with Witness children.[445] As Conant’s other actions make clear, restraint was not in order when dealing with parents. The regulations, as the Hamilton board knew, gave the children a legal right to leave while the religious exercises were taking place, and the policy Conant recommended was consistent with the overall regulatory intent in slightly extending that right to conscientious objection to the patriotic part as well.[446]
15 The internal management committee considered Conant’s suggestion and, in early July, passed a resolution calling for its implementation in Hamilton’s primary schools.[447] Ironically, the committee passed that resolution the very same day that the Jehovah’s Witnesses were banned, and when the full board of education met the following week the situation had quite obviously changed.
16 The chairman of the board, David A. Robinson, reported that he had met with the parents of a group of Witness children and that he observed ‘no willingness’ on the part of those parents to have their children co-operate in the religious and patriotic opening and closing exercises.[448] Other board members must have deplored this attitude, for instead of adopting the recommendation of the internal management committee, the board passed a resolution to the effect that failure to conform with the patriotic exercises would result in students losing their right to attend Hamilton’s primary schools.[449] Hamilton authorities had decided to take a hard line against the thirty or so Witness children attending local primary schools.
17 There was not much the parents could do, as the order-in-council banning the group in early July precluded them from openly identifying themselves or their cause, for to do either was virtually to invite arrest and conviction. Nevertheless, a group of parents wrote the chairman and asked the board to reconsider its decision, requesting only what the attorney general had earlier suggested. The letter outlined the religious reasons for Witness opposition to patriotic exercises and declared that both parents and children believed that their failure to obey these biblical beliefs would, in due time, result in their eternal destruction. The Jehovah’s Witnesses, the letter continued, did not disrespect the flag; however, their duty to God came first, and to salute a flag would be to violate their covenant with God. In conclusion the letter pointed out that in Great Britain no action had been taken against Witness children for their refusal to sing ‘God Save the King.’[450]
18 The plea for tolerance fell on deaf ears. When the new school year began, principals across Hamilton were ordered by the board to suspend every child who refused to sing the anthem or salute the flag.[451] Witness parents anticipated this decision, and on the first day of school, their children came armed with a form letter asking that their Christian faith be respected and requesting that they be excused from religious and patriotic exercises, which violated their religious convictions.[452] The letters did not have the desired effect, and Witness children were immediately identified and suspended from school. On 9 September 1940 young Arthur Ellison was sent home from school with a note saying that as a result of his refusal to salute and sing he was suspended until such time as he would agree to conform. One of the great battles in religious freedom in Canada was about to begin.[453]
19 Ellison was one of ten Hamilton children suspended at the start of the school year, and when Premier Hepburn learned of this from a report in The Globe and Mail, he ordered an investigation.[454] Inspector E. D. L. Hammond of the Ontario Provincial Police looked into the situation, and his findings were forwarded to Attorney General Conant. The police inspector reported that the question was not one of disloyalty or subversion but was, instead, a matter of purely religious views.[455] Conant considered the report and, consistent with his pre-ban views, declared that the refusal to salute or sing was a religious matter and not one associated with patriotism. The troubles in Hamilton, however, demonstrated the inadequacy of the scope of the conscientious-objection provisions of the regulations and called out for amendment. All Conant had to do was have passed a regulation extending the conscientious-objection provisions to the patriotic part of the opening exercises. Manitoba had such a regulation and Alberta would soon pass one. If he had followed suit the matter would have ended right there. Conant did nothing.[456]
20 His inaction did not go unremarked. A Globe and Mail editorial criticized the attorney general and recommended that the children be excused from the opening and closing exercises.[457] Instead the members of the Hamilton Board of Education suspended even more Jehovah’s Witnesses from the schools. By the end of the month, twenty-six boys and girls had been sent home and told not to return until they were ready to sing. If the local authorities thought they could eliminate the problem by sending the Witness children away, they soon found out that they were mistaken. The children returned to their schools daily and politely asked to be allowed in. They promised to stand respectfully at attention when the anthem was sung. They would not, however, sing or salute. Every day they were turned away. This charade continued for a month, and then, at the end of September, Witness parents hired a teacher and set up a private school of their own, which they called Kingdom School.[458]
21 The matter might have ended here, but a majority of the Hamilton school-board ensured otherwise. On 3 October 1940 the board met and heard a resolution from the local District Trades and Labor Congress deploring the suspensions and urging the board to reconsider. Instead it decided, with the opposition of only one member, to take action. Action, The Hamilton Spectator agreed, was what was called for. ‘When a few members of a small disloyal and fanatical religious sect can create a situation in Hamilton which stands out as one of the most brazen instances of subversive activity since the war began, it would seem to be about time for a showdown.’[459] Both the Hamilton chief of police and local crown attorney were consulted. The attorney general refused to authorize prosecution of suspended pupils' parents under the Defence of Canada Regulations. There was really only one thing Hamilton authorities could do: prosecute the children and their parents for truancy. The new chairman of the board, Dr W. L. Whitelock, promised action,[460] and attendance officer Walter Rollo was assigned to the case.[461] Two children were immediately charged and found guilty. They were sentenced to two weeks in the custody of the Hamilton Juvenile Observation Home, during which time they were to ‘be examined by the Clinic.’[462] After two weeks the two children were released on probation.[463]
22 Soon thereafter, the mayor of Hamilton, William Morrison, a lawyer and King’s Counsel, called a press conference and announced that legal action against the remainder of the ‘Hamilton 26’ would soon begin.[464] When Attorney General Conant was asked what he thought, he claimed that it had nothing to do with him. The problem, Conant told the press, was ‘entirely a matter for the Hamilton officials as to what action is taken.’[465] While Conant would not come out and say it, both his office and the Department of Education agreed that there was no legal basis for suspending the children for failure to salute the flag. The only uncertainty was what the regulations require in reference to the singing of the anthem.
23 According to a story in The Globe and Mail, the anthem issue was not as clear as the flag-salute issue, for singing the national anthem was recognized in the regulations as part of the opening exercises. ‘At the same time,’ the report continued, ‘it is recognized as a principle that students whose religious beliefs are not in harmony with the Protestant form of opening exercises may be excused from taking a part in those exercises.’[466] Both Department of Education officials and lawyers in the attorney general’s office therefore concluded that students should not be required to sing the national anthem. However, having made his reputation in the months before on his hard line against fifth-columnists, communists, and other enemies of the state, Conant had no intention of taking a soft line against the Jehovah’s Witnesses, children included.
24 For its part, the Department of Justice in Ottawa was equally uninterested in becoming involved. Flag-saluting and anthem-singing, W. Stuart Edwards, deputy minister of justice, wrote to Mayor Morrison, were ‘purely a matter of discipline.’[467] Morrison saw it somewhat differently. Failure to sing and salute was subversive, and this subversion had to be stamped out. ‘It is my duty,’ Morrison said, ‘as it is the duty of every other loyal citizen to take action.’[468]
25 Morrison believed that the Jehovah’s Witnesses needed ‘to be taught a lesson.’[469] Among other acts against individual members of the group, Morrison attempted to arrange for the discharge, without cause, of a school janitor thought to be a Jehovah’s Witness. Hardly a day now passed without one report or another, all of which were unfavourable, appearing in the Hamilton press.[470]
26 The parents of the ‘Hamilton 26’ continued to treat the matter seriously. They wrote Chairman Whitelock in mid-October, and advised him and the board that their children were receiving alternative education.[471] However, as interested as the parents were in avoiding prosecutions for truancy, what they really wanted to do was to get their children back into the public schools. They were working people, and they could not afford the expense of a private school, even though they had established one in response to the suspensions. But it was not just a question of whether they could afford to fund a private school or not, it was a question of principle and they believed the suspension to be wrong. Eric Ellison, the father of one of the first Witness children suspended from school, was particularly active in attempting to convince the Hamilton authorities to reconsider. He wrote numerous letters to the chairman of the Hamilton board explaining what he and his son believed and what they wanted.[472] Just excuse Arthur from the classroom during religious and patriotic exercises, Ellison wrote, or let him show his respect by allowing him to stand quietly alone. For his trouble, Arthur and his parents were selected to be among the first charged and brought to juvenile court.
27 On 26 October 1940 attendance officer Walter Rollo wrote the Ellisons to tell them that Arthur had been truant from school and to instruct them to send him to school, ready to sing.[473] Since Arthur was ready to return, but not ready to sing, he was charged under the Juvenile Delinquents Act,[474] which defined a juvenile delinquent as any child who violated any provision of any law. In particular, Arthur was charged with being unlawfully absent from school, and with violation of Regulation no. 14 of the Public Schools Act, which required Ontario public schools to include the singing of the national anthem in opening and closing exercises. Arthur’s father was charged with contributing to the juvenile delinquency of his son, although this charge was apparently stayed and no more was heard of it. On 30 October 1940 the Ellison family appeared before Hamilton juvenile and family court judge, His Honour Henry Arnold Burbidge. The Ellisons did not come alone: they had hired J. L. Cohen to represent them. Representing the Hamilton Board of Education was local lawyer Orville Walsh. As most, if not all, of the other children and parents had also been, or were about to be, charged with the same set of offences, Walsh and Cohen agreed that this case would be a test case.
28 It is the duty of the state to proceed whenever it charges a person with a violation of an act. The state had to show that Arthur had violated some law and that he was therefore a juvenile delinquent. What Walsh set out to prove was that Arthur was truant, meaning absent from school without lawful cause. Walsh began his case with an unusual request: would the court order Arthur Ellison’s father to leave the room? Cohen protested. To leave the son alone in court without the guidance of his father would be wrong. The court agreed, since the Juvenile Delinquents Act required the presence in court of the parent of the accused. The first witness for the state was Richard Wright, principal of the Adelaide Hoodless School, where Arthur had been enrolled.
29 Wright’s testimony was short and to the point. He told the court that he received notice from the Board of Education on 6 September 1940 to suspend all pupils who did not sing the national anthem, and that it was in compliance with this notice that he had suspended Arthur from school. What was Arthur like, Wright was asked? He was, the principal replied, an ordinary boy. The only thing out of the ordinary about him was that, after his suspension, he returned to school every day, asking to be let back in. Wright routinely refused the request.[475]
30 Walsh then presented Walter Rollo, the truant officer who had laid the charges against the Ellisons, as his second, and last, witness. An important point was raised during his testimony: if Arthur was receiving alternative instruction, in law he could not be found to be a truant from school. Rollo denied having any knowledge that Arthur was receiving such instruction, adding that even if he had been so informed, he had not approved it. Arthur was truant and that was the state’s case in chief. Cohen did not spend much time questioning this witness, but secured one key admission. Under cross-examination Rollo admitted that he had lied about his being unaware that Arthur was in a private school. The case for the state was now over, but the case for the defence was about to begin.
31 As his first witness Cohen called Arthur’s father. Eric Ellison, a First World War veteran who subsequently ‘found the truth,’ began by testifying about his loyalty as a Canadian citizen, then explained the theological basis for his and Arthur’s beliefs. Normally, after a witness gives evidence he is cross-examined by the other side; however, when Cohen finished his case in chief, both Judge Burbidge and Counsellor Walsh cross-examined the witness on his interpretation of the Bible. It was an interesting examination, but from the state’s point of view it was ultimately a failure. Ellison was intractable on the issue of his beliefs. The national anthem was a prayer, he said, and he and his son would not sing it. The words in the anthem did not matter; what was important was the compulsion to sing this prayer. ‘I understand,’ Walsh asked him, ‘that this whole thing boils down to this, that you don’t like to be legislated into being forced to sing a prayer?’ Yes, Ellison replied, ‘that is it.’[476]
32 When Ellison’s testimony was finished, Cohen called his second witness, Margaret Lowell, the teacher hired for the Kingdom School. Lowell, who had a Province of Ontario teaching certificate, testified about her qualifications and about her fifteen years of classroom experience. She swore under oath that she followed the curriculum established by the Department of Education, suggesting that her school was no different from any public school. When Cohen finished Walsh began his cross-examination.
33 ‘What is your religion?’ Walsh asked. Lowell answered that she had no religion at all. ‘Are you a Protestant?’ he asked. ‘Yes,’ the witness replied, ‘I am a Protestant.’ ‘Are you a Jehovah’s Witness?’ Walsh asked next. ‘Do you mean, am I a member of an illegal organization?’ Lowell answered. The back-and-forth continued, and it was clear that Walsh was intending to undermine Lowell’s credibility by proving her to be a member of an illegal organization. The fact that Lowell was a Jehovah’s Witness had nothing to do with the Ellison case. The legal issue to be determined was whether Arthur was a truant, and whether his defence to that charge, that he was receiving alternative education, had been proved. Instead, the judge allowed Walsh to pursue a largely irrelevant course of questioning. But even so, Walsh was able to obtain one striking admission from the private-school teacher.
34 In the Kingdom School, the boys and girls followed the regular curriculum, but not all of the regulations. They did not sing the national anthem, nor did they salute the flag. Thus, Miss Lowell and her Kingdom pupils were, Walsh said with a flourish, in violation of the law.[477] Lowell had no answer to that charge: all she could do was invite Officer Rollo to come and inspect her school. Except for legal argument, the case was over.
35 Judge Burbidge asked Cohen and Walsh to submit their arguments in writing. In most juvenile-court proceedings, counsel make limited argument in law at the conclusion of the hearing. This was obviously a special case, although from Judge Burbidge’s concluding comments there was reason to believe that, written argument or not, he had already made up his mind. Society, Burbidge declared before retiring to his chambers, could not give ‘fanatics’ free rein just because they sincerely believed certain things. That, the judge explained, would be a very dangerous state of affairs, in war and in peace. Burbidge indicated that he would read the Bible to see whether there was anything to the ideas that the Ellisons ‘professed to possess.’[478] That was, Judge Burbidge explained, a fairly straightforward task, for the Bible was just like any other document: ‘the Court reads the document and puts its interpretation to the document.’[479] The hearing was then adjourned.
36 For one of the more important religious-liberty trials in Canadian history, the Ellison case somewhat lacked the drama and sense of occasion one might expect of such an event. What makes the case interesting are the briefs that were submitted at Judge Burbidge’s request.
37 Cohen’s first brief, submitted in early December 1940, began with an attack on the charge under the regulation (no. 14) that stated that in every primary school the singing of the national anthem should form part of the daily opening or closing exercises. All the regulation said was that the national anthem had to be sung as part of the opening or closing exercises. It did not say that any student was actually obligated to sing.[480] Authority for this argument was supplied, Cohen argued, in statements made by the attorney general of Ontario. (Conant had been quoted in the press as saying that he knew of no law compelling anyone to salute the flag or sing the national anthem.)[481] Moreover, Cohen continued, as a general principle of law, a statute or regulation could not fix a liability or obligation on a specific person unless that was clearly directed in the legislation. Regulation no. 14 did no such thing, and it could be complied with completely in Hamilton schools without the participation of Arthur Ellison.
38 Cohen had more arguments in his legal arsenal, and one after another he brought them out. There was a case to be made that Regulation no. 14 was subject to section 7 of the Public Schools Act, the conscientious-objection provision, which was as old as Ontario public schools themselves. This section permitted students to conscientiously decline to participate in religious exercises where those exercises were objected to by a parent. The Jehovah’s Witnesses believed that flag-saluting and national-anthem singing were religious exercises. Accordingly, Cohen argued, they had a statutory right to conscientiously object. At trial there had been no objection to Eric Ellison’s claim that he and Arthur believed singing and saluting were religiously wrong. Now all that remained was for the court to acknowledge Arthur’s legal right. And that, Cohen said, did not depend, contrary to the statement Judge Burbidge had made at the end of trial, on the judge’s interpretation of the Bible, but on whether or not the religious objections that Arthur’s father claimed had been made in good faith. The rightness or wrongness of one’s religious beliefs had nothing to do with one’s legal entitlement to refuse participation in religious exercises.[482]
39 There was also nothing to the charge that Arthur had been unlawfully absent from school. What had really happened, as the uncontroverted testimony showed, was that Arthur had been kept out of school despite his persistent attempts to return. There was also evidence that Arthur had been receiving alternative education, as provided for in the Public Schools Act. Cohen asked that both charges against Arthur be dismissed. On the whole Cohen had made an impressive case, and his arguments in favour of the youth were persuasive indeed. Walsh, in turn, did not make legal arguments; he made emotional ones. He did not refer to sworn testimony; he made up facts. Walsh, in short, made the worst possible case.
40 Despite the fact that Arthur had not testified at trial, Walsh argued in his brief that it was clear that Arthur was under the domination of his father, and that his refusal to sing and salute was on his father’s instructions. No evidence to this end had been introduced. This statement was, seen in the very best possible light, prejudicial, unfounded, and unfair. While Cohen made sensible arguments based on reasonable interpretations of the legislation and regulations, Walsh suggested interpretations that the legislation and regulations could not reasonably bear. Walsh had no answer to Cohen’s argument that Regulation no. 14 did not require individual students to sing, as there was no answer to this argument. Cohen’s case should have been won on this point alone. Walsh provided an alternative interpretation as to which regulation should be read alongside no. 14. It was not, the Hamilton attorney claimed, the conscientious-objection regulation suggested by Cohen; rather, it was section 103 of the Public Schools Act, which set out teachers' general duties, including the duty to suspend pupils who were guilty of truancy, persistent opposition to authority, habitual neglect of duty, or conduct injurious to the moral tone of the school. Walsh argued that Arthur was guilty of the last named, that Arthur’s refusing to sing and salute was surely damaging to the moral tone of Adelaide Hoodless Public School.
41 Religion, Walsh asserted, had nothing to do with it. Eric Ellison had sabotaged, undoubtedly for reasons of his own, his son’s patriotism, and he was now seeking to avoid the consequences of his actions by claiming that this sabotage was religiously inspired. A serious principle was at stake, and Walsh implicitly referred to Judge Burbidge’s final remarks. If the Ellisons were allowed to get away with this, who was to stop others from claiming the cloak of religion as justification for their illegal acts? Besides, the Hamilton lawyer added, both father and son were Jehovah’s Witnesses, members of an organization declared illegal by the government of Canada.[483]
42 Walsh’s other argument had even less merit. If the legislature had intended the religious-exemption provision to apply to national-anthem singing, Walsh argued, then it would have put national-anthem singing in the same place in the act that it had put opening and closing religious exercises. Instead, it put national-anthem singing somewhere else, indicating that it did not intend the two to go together. There was a problem with this argument, however: conscientious objection and exemption from religious exercises were provided for in legislation and in the regulations passed by the executive. National-anthem singing had never been considered by the legislature. It was required solely in the regulations and, as a result, the legislature had never been given an opportunity to decide whether or not it, like religious exercises, as conventionally understood, should have an escape clause for pupils who conscientiously objected. There was no basis, therefore, to claim that the legislature could have provided for conscientious objection to anthem singing. It had never been given the opportunity.
43 Walsh had a few more arguments to make. If Arthur was guilty of failing to sing the national anthem, then he was guilty of being unlawfully absent. This argument, needless to say, ignored the fact that not only did Arthur regularly try to attend school, but that he was in the meantime receiving a private-school education. According to the brief, Officer Rollo’s laying of the charge was sufficient evidence to prove that Arthur was a truant. On behalf of the Hamilton school-board Walsh asked the judge to find Arthur guilty as charged.
44 Cohen, however, had an opportunity to submit a reply to Walsh’s brief, and in so doing he tried to bring the case back into focus. Cohen argued that there were two issues at stake, neither of which was patriotism. The first was whether or not Regulation no. 14 imposed an individual obligation on every child to actively participate in the patriotic component of the opening and closing exercises by singing the national anthem. The second was whether Regulation no. 14 was limited in any way by the conscientious-objection provisions of section 7. Cohen now cited some law in favour of his proposition that the latter limited and therefore assisted in the interpretation of the former.[484]
45 The juvenile-court judge considered the case over Christmas and assembled the parties together in the first week of the new year. He read them his reasons for decision. A proper reading of Regulation no. 14, Burbidge declared, indicated that the national anthem was to be sung by all pupils, without exception. The only way a student could be exempted from anthem-singing was if he or she had a lawful excuse. Judge Burbidge did not identify what constituted a lawful excuse; all he said was that no such excuse had been made in this case. Regulation No. 14 was there for the student’s good. It was there to teach the child ‘the words and music of the anthem and enable them to join in on suitable occasions and to form the habit of doing so and by practice develop a sense of loyalty and patriotism.’[485] On the charge of refusing to sing Arthur Ellison was found guilty.
46 The judge also canvassed some of the other issues in the case and began this review with the remark that, under the guise of giving evidence, Eric Ellison ‘upheld the tenets and doctrines of a sect that has been declared by the Defence of Canada Regulations to be an illegal organization because its theories and preachings are considered subversive.’[486] No evidence had been introduced about the ‘theories’ and ‘preachings’ of the Jehovah’s Witnesses. There were only two significant references made to the Jehovah’s Witnesses in the case, both of which were improper. The first was when Walsh asked Margaret Lowell, the Kingdom School teacher, if she was a Jehovah’s Witness. And the second was the charge Walsh made in his legal brief. Membership in this illegal organization was not the legal question Judge Burbidge was called upon to decide. While nothing prevented the judge from finding that Ellison and his son were Jehovah’s Witnesses, a correct conclusion, such a finding was not the point. Judge Burbidge’s duty was to hear evidence, listen to argument, and make decisions based on his finding of fact and rules of law. He had not been asked to decide whether a person was or was not a member of an illegal organization.
47 After finding the Ellisons to be members of an illegal group, Judge Burbidge went on to comment on Mr Ellison’s religious beliefs. Ellison had not convinced the judge that he had any ‘real honest bona fide scruples based on any reasonable interpretation of the Scriptures.’[487] Ellison’s ideas were ‘peculiar,’ and he relied on ‘isolated passages’ from Scripture, ‘detached from their context,’ to justify them. Even if Burbidge had found some religious basis to Ellison’s beliefs, he would have still convicted Arthur. When law and religion collide, Burbidge declared, it is religion that must step aside. As was the case for many of the other findings in his decision, no reasons were provided for this view. Not a single argument Cohen made had prevailed.
48 The question then arose about what to do about Arthur and, by implication, every other Witness child in Hamilton. Judge Burbidge had an answer. ‘If he has been and is imbibing wrong ideas in his present environment and I include in this not only his home but the school which he attends, the only logical course is to change this environment and give him the opportunity to grow up in conformity with standard ideas and to develop his own convictions without undue pressure.’[488] Burbidge ordered the boy removed from his father’s care and delivered to foster care. Soon enough the same order was made in the cases of six other Hamilton children.[489] Nine of the ‘Hamilton 26’ had now been sentenced to some kind of state care for respectfully refusing to sing the national anthem.
49 Cohen immediately applied for leave to appeal Burbidge’s decision in the Supreme Court of Ontario. There was no right of appeal; Cohen had to convince the court that he had a good case before it would exercise its discretion to hear an appeal. Numerous reasons in favour of granting leave were advanced, the most important of which were that the decision was contrary to the evidence and that the sentence was both excessive and improper. Appellate courts do not generally interfere with the finding of fact made by lower courts. It is a principle of the law that it is the job of lower courts to find the facts and that of appeal courts to hear appeals in law. An appeal court will occasionally set aside a finding of fact at the lower-court level, but even if Cohen could not convince an appellate court that Burbidge had gone off on some lark of his own, he had a good case to make that in ordering the Ellison child to be delivered to a foster home, Judge Burbidge had come up with a penalty far out of proportion to the crime. Leave was granted and the appeal came before Justice Hugh Edward Rose.
50 Justice Rose took no time at all to quash the Burbidge judgment. He was amazed that the case had gone forward in the first place. Children, he said, ‘should not have been brought into court on an issue of this kind.’[490] In almost as many words, Justice Rose told the parties to settle the matter out of court. In the meantime, at least two Witness children in Hamilton had spent two weeks separated from their parents, in custody at the Hamilton Juvenile Observation Home. Rose’s remarks, however, appeared to have the desired result. On 6 February 1941, Walsh appeared before the Hamilton board and explained what had taken place: ‘After considerable discussion it was agreed that the decisions of the court would be followed.’[491]
51 The Ellison case seemed to have some effect, and not just in Hamilton. At the end of January 1941, the Department of Education sent a directive to Ontario school-boards. ‘In some parts of the province children have refrained from singing the National Anthem or saluting the flag,’ the directive began. ‘It is deemed advisable that the children should not be penalized where they adopt a respectful attitude.’ The directive went on to say that if parents desired, children should be allowed to absent themselves from opening exercises. School-boards and trustees were advised to turn over any information they had about subversive activities to their local police. Boys and girls in school they were to leave alone.[492] This was the practice almost every Ontario school had put into effect.[493] As a result of this directive, the situation in Hamilton appeared to improve. Appearances, however, turned out to be deceiving. All that happened was that attention temporarily shifted to other places in the province where Witness children were under similar state attack. London, Ontario, was one such place. In that small southwestern Ontario city there was a case with a slightly different twist.
52 The L. children, a boy and a girl, refused to sing the national anthem and ‘There’ll Always Be an England,’ which was also required in their school. They then went on to compound their crime by declining to participate in additional patriotic exercises. After his children were suspended, their father appeared before the local school-board to protest. With his wife he was placed under arrest and, following a two-hour trial, both parents were sentenced by local magistrate C. W. Hawkshaw to four months in jail. ‘In my opinion,’ the judge wrote, ‘nothing could be more likely to cause disaffection to His Majesty than if children are to be taught to show no respect to the Crown or to the flag and the example of these children among the other children in the school, would, in my opinion, be bound to have a very bad effect.’[494] The couple’s four children, one of whom was a baby, were sent to a foster home. As a result of J. L. Cohen’s efforts, the family was eventually reunited, and ultimately, the charges were stayed. The two children remained out of school for two years, and neither one completed high school. One of the children, the boy, was later committed to a mental institution, the result, his father now says, of this earlier event.[495]
53 In Kitchener, a prosperous town surrounded by fertile farmland mid-way between Toronto and London, David Gakeff and his brothers were suspended from school for refusing to sing. Again, like many other Jehovah’s Witnesses, David and his brothers continued to come to school every day in the hope of being let back in. One day they were admitted, but not to class. The three boys were put in detention rooms and forced to write repeatedly ‘I must sing “God Save the King.”’ The three refused and so the school authorities separated them. David’s two older brothers remained steadfast, but David succumbed. As Canadian Forum observed in its report of these events, ‘the Nazis also have means of convincing people of the rightness of their cause.’[496] Lambro Gakeff, the father of the boys, was charged under the Defence of Canada Regulations. According to the authorities he had caused disaffection to His Majesty by telling his children: ‘Do not sing “God Save the King.”’ When asked about the affair Attorney General Conant gave what was becoming his stock reply to questions of this kind. It was a local matter, he said, ignoring the fact that it was up to him, as attorney-general, to authorize any prosecutions under the Defence of Canada Regulations.[497]
54 Any charge that Gestapo tactics were being used in Ontario by the police was, of course, ridiculous. But there were some extremely disturbing police practices, including forcing children to testify against parents charged under the Defence of Canada Regulations with being members of an illegal organization.[498] Considerable state resource went into keeping the non-conformist children out of public school. In one case, a plain-clothes member of the Kitchener city police testified that he had kept a woman under observation for a month following the refusal of her son to sing the national anthem or salute the flag. Eventually, he decided to arrest Mrs Mary Schmellovich. And when he searched her house, what did he find? A Bible. She was, nevertheless, arrested.[499]
55 These scenes were repeated across the province and, indeed, across the country as local authorities suffering from an excess of patriotic zeal made examples of the unpatriotic Jehovah’s Witnesses. Most schools and school-boards did not behave in this way, and in Ontario, after the 1941 Department of Education directive, action against Witness children all but ceased — except in Hamilton. The Hamilton school-board refused to implement the Department of Education directive to let the Witness children back into the schools. Consequently, the board soon found itself back in court. The Donald case would settle the matter once and for all.
56 Robert Donald, like Eric Ellison, was a Jehovah’s Witness. And like Eric Ellison, he wanted his children, Robert Jr, who in September 1940 was in grade eight, and Graham, who was in grade six, to attend public school. Just like Eric Ellison, he did what he could to get the Board of Education to change its mind and work out a solution acceptable to everyone. His efforts proved unsuccessful, and along with all the other Witness parents in Hamilton, he sent his children to the Kingdom School, at great personal expense. Miss Lowell remained on the job for about one year and then was replaced by another teacher, Grace Lounsbury, who was also a Jehovah’s Witness.[500] Each family’s contribution towards paying her salary was not much, but Donald, a postal clerk, had trouble enough trying to make ends meet without the added financial burden of supporting a private school.
57 The results in the Ellison case, and in particular the comments of Mr Justice Rose that that case should never have been brought to trial in the first place, proved heartening to Donald and the Witnesses in Hamilton. So, too, did the decision of the Hamilton authorities not to take further legal action. But, as it quickly turned out, Justice Rose’s remarks, like the Hamilton board’s decision, had little effect. Arthur Ellison was not permitted to return to school. All the appeal had done was keep him and others out of foster homes. In the end, Ellison never went past grade eight. He was lonely and ostracized as a child, and to this day he laments that he was denied his youth and an education.[501] While the juvenile-court prosecutions ended, nothing had really been resolved. In February 1941 the chief inspector of Ontario schools, V. K. Greer, ordered the Hamilton board to let the children attend classes.[502] This order, along with the Department of Education directive issued the previous month, failed to open Hamilton’s public-school doors. The parents of the Hamilton children made repeated attempts to come to some sort of settlement with the Hamilton board, but it refused to accede to their requests. As a result, the Hamilton children spent the rest of the year at the Kingdom School.[503]
58 The 1941–2 school year again saw Hamilton parents taking what steps they could to get their children back in the public schools. In the summer of 1941, Robert Donald appeared before the Hamilton Board of Education and asked for a hearing. There was substantial risk in making such a request: by this time several people had been charged with being members of an illegal organization after pleading for the readmission of their children to public school. It was no secret that the Jehovah’s Witnesses were the group opposed to singing the anthem and saluting the flag, and so to take a public stand on this issue was, in effect, to declare one’s membership in an illegal organization. Arrest could, and in some cases did, follow representations of this kind. The experience of the L. family is just one such case.
59 Donald was not, however, arrested as a result of these representations. The Hamilton board told him to submit a written statement.[504] Instead, early in September Mr Donald wrote the minister of education and appealed for the application of some common sense. The arguments Donald advanced were scripturally based. Donald wanted the minister to tell the Hamilton board to let his children into school. It was a question of their religious convictions, and the refusal of the Hamilton board to allow Christian boys and girls to refuse to sing a prayer without giving up their right to attend school had to be brought to an end.
60 The minister of education, just like the attorney general, had the power to resolve the issue by simply passing a regulation. As Donald pointed out in his letter, other provincial ministers of education had done so. In Saskatchewan, the minister of education ordered all the local school-boards to leave Jehovah’s Witness children alone, and he backed the order up by threatening public-school teachers and principals with disciplinary action if they failed to educate Witness youth.[505] Meanwhile, in Manitoba, a 1938 regulation gave pupils the right to decline participation in patriotic exercises whenever their parents requested. This did not prevent suspensions, and in one case a parent was charged under the Defence of Canada Regulations with being a Jehovah’s Witness after he wrote a letter to the chairman of the local board of education, protesting the suspension of his son. At trial the man was convicted when the magistrate held that a man must be responsible for whatever he said. The Manitoba court of appeal held otherwise and reversed the conviction, stating that the man’s son had a right to conscientiously object, and all the parent was doing was attempting to enforce that right.[506]
61 An Alberta case, Ruman v. Board of Trustees of Lethbridge School District,[507] upheld the power of a provincial legislature to require as part of school exercises anthem-singing and flag-saluting. This case concerned two girls, Frances and Mary Ruman, aged nine and eleven years, who attended the Galbraith Public School in Lethbridge. In November 1941, the local board of education passed a resolution requiring all pupils in Lethbridge schools to salute the flag, sing the national anthem, and participate in all patriotic exercises upon penalty of expulsion. Very detailed instructions for the flag salute were provided by the board, even though the regulation already described how the flag salute was to take place. The Lethbridge board had other ideas. Flag-saluting in its schools was to mirror the army salute: ‘The principal or teacher in charge and all pupils in attendance shall face the flag and come to attention; then upon command by the principal or teacher to salute the flag shall bring the right hand smartly with a circular motion to the head, palm to the front, fingers extended and close together, point of the forefinger one inch above the right eye, or touching edge of peak of cap just above right eyebrow, thumb close to the forefinger, elbow in line and nearly square with the shoulder, then after a pause equal to two paces in quick time cut away the arm quickly to the side.’ Frances and Mary refused to salute, so they were expelled. The Rumans went to court, and by way of stated case asked the court to answer a number of questions. First, whether the Lethbridge school-board had the power to enact its own code of flag-saluting, which differed from that found in the regulations; second, whether the Ruman children had been properly dismissed; and third, whether they were properly dismissed if they were willing to conform to the flag-saluting procedures set out in the regulations, which only required them to stand silently at attention.
62 The case came before the chief justice of the Alberta trial division in the fall of 1943. On 1 October 1943 Justice William Carlos Ives gave his reasons for decision. They were very short. The Alberta School Act said that flag-saluting ‘may’ be conducted in a certain manner, not that it had to be conducted in that manner. Accordingly, it was within the power of local school-boards to direct that flag-saluting be conducted in another manner. Flag-saluting was required by the act and the Lethbridge school-board could suspend pupils for violation of the act. The reasons for decision give no indication of what arguments were made in the case, but certainly one of them must have been that while the act was, through the use of the word ‘may,’ permissive, it set out limits. While a school-board could develop flag-saluting ceremonies to meet its own needs, it could not exceed, as the Lethbridge school board had done, the requirements of that ceremony set out in the act. If made, this argument had failed to persuade.
63 Immediately following this decision the Alberta legislature amended the act to give Alberta pupils the right to conscientiously object and abstain from participating in patriotic exercises.[508] All Alberta pupils were required to do was to come to attention and remain standing silently at attention during the ceremony. The Alberta legislature, it is fair to say, was prepared to give flag-saluting a religious connotation. In Ontario, the legislature did not need to be involved, for all that was necessary was to have a regulation passed. Donald, when he wrote the minister of education in September 1941, pleaded with him to take action, and warned him that if he failed to do so, he might be forced, very reluctantly, to go to court.[509] At the end of September, the deputy minister of education replied to Donald’s letter, effectively telling him to do what he thought best.[510]
64 The Jehovah’s Witnesses were divided about how to proceed. They did not like the idea of having to continue to send their children to the Kingdom School, but they were uncertain about how to fight the matter in court. There were a number of problems, the most serious of which was the fact that, as Jehovah’s Witnesses, they were members of an illegal organization. Whether their continued membership in this organization was stated or not, the fact that it was illegal would be a serious handicap for them in court. And that raised the second problem: how to get a judge to take jurisdiction to hear their case. They could not simply ask a court to order the Hamilton board to let their children back into school. What they needed to do was to frame their case in a more traditional way. The issue became urgent in February 1942, when a Witness student attending a Hamilton high school was suspended for refusing to sing the national anthem. Until this point high-school students had been left alone, with the result that graduates of the Kingdom School conceivably could attend secondary school. The following month, Robert Donald Jr was also suspended from his high school. He had spent a year at the Kingdom School and then written and passed the high-school entrance examinations. From September 1941 until March 1942 he was left alone. But in the winter of 1942, along with other Witness high-school students, he was suspended from school. A. W. Morris, the principal of Robert’s school, explained that Robert’s refusal to sing and salute was the reason. Morris went on to say that he took ‘this step with great reluctance as Robert otherwise has been most obedient and courteous, and a satisfactory student.’ If Robert would change his attitude, ‘his teachers and I would be very pleased to have him return to us.’[511]
65 With the doors to both primary and secondary schools now closed, Jehovah’s Witnesses in Hamilton realized that persuasion had failed, and Robert Donald, in April 1942, filed suit against the Hamilton Board of Education for damages covering the cost of tuition and other expenses he had incurred as a result of being forced to send his children to private school. Donald was a perfect test plaintiff; one of his children should have been in primary school, and the other in high school. By bringing his case to court, the Jehovah’s Witnesses could settle what rights to public-school education they had in the context of a single case. Actions for damages are recognized by every court, and Donald’s case appeared conventional. He asked for $2,600 in compensation for Kingdom School tuition and related expenses, but what he was really after was a declaration that the children were entitled to attend Hamilton’s public schools and an order, called mandamus, directing the board of education to readmit the Donald and all the other Witness children to those schools.[512]
66 J. L. Cohen was retained as counsel for this case, but this time he worked with W. Glen How.[513] The action began in April 1942, but it took until the end of March 1944 for the trial to take place. Justice John Andrew Hope presided. Hope was a very impressive man. In the First World War he had been wounded at Passchendaele and again at Drocourt-Quéant. He had fought in the Battle of Amiens, and his courage was such that he was mentioned in dispatches. The Donald case was a politically sensitive one. Moreover, it involved issues of law not seen before in Ontario courts.
67 Justice Hope heard evidence and argument for two days in Hamilton, on 30 and 31 March 1944. A great deal of testimony was given by father and son about the bases for the refusal to salute and sing, but most of the facts were not in dispute. It was admitted that the two boys had refused to salute and sing. It was also admitted that prior to their expulsions, they had stood respectfully during the opening and closing exercises and made no commotion of any kind. The judge also heard evidence, which was not admitted, that even though the two boys did not disrupt the exercises in any way, ‘the conduct of the pupils in so refusing to participate as directed, had a serious and injurious influence on the moral tone or welfare of their respective classes.’ This contested evidence turned out to be decisive, and on 12 September Justice Hope gave his reasons for decision.[514]
68 The judge accepted the defendants' evidence that the respectful non-participation in the opening exercises was detrimental to the moral tone of the school, even though the uncontroverted evidence was that neither Donald boy had drawn any attention to himself or created a disturbance of any kind. This finding of fact, however, was the foundation for the judge’s finding in law, a finding that largely adopted the reasons for decision of Judge Burbidge in the Ellison case. The judge declared that the evidence relating to the reasons for the Donalds' conscientious objection to the patriotic ceremonies was not relevant. ‘However sincere and conscientious the particular or peculiar beliefs of the plaintiffs may be,’ Justice Hope wrote, ‘I do not think they may or need be considered in connection with this action.’[515] Surely the reasons for the refusal to salute and sing were material to the case. Ultimately those reasons may prove to be unconvincing, but to dismiss them as irrelevant seems somewhat severe. What was Justice Hope’s authority for doing so? As it turned out, it was, he said, a recent decision of the U.S. Supreme Court.
2 The case began in November 1936 when two Witness children named Lillian and William Gobitis, who attended a Minersville, Pennsylvania, school were expelled for refusing to salute the American flag as directed by a resolution of the local school-board. The two children, then age twelve and ten, along with their parents, sued in federal district court. Other orthodox Christian groups had opposed the flag salute in the past, also because of their views of the proper relationship between church and state, but the Jehovah’s Witnesses were different insofar as they had both the resources and the inclination to fight in court mandatory flag-saluting. The Jehovah’s Witnesses were not strangers to American courts, but this was the first time they had voluntarily appealed to those courts for assistance. In every other case, they had been brought in as criminal defendants. When their children were expelled from public school, the Jehovah’s Witnesses saw the courts as their only recourse. Certainly the elected officials who first passed the regulations and laws requiring flag salutes could not be expected to be sympathetic to these non-voters' needs.
3 In the United States there are two parallel court systems: The state court system, from which appeal can ultimately be had to the U.S. Supreme Court, and the federal court system, which consists, in ascending order, of district courts of appeal (one in each of eleven geographical districts, or circuits), and at the top of the pyramid, the U.S. Supreme Court. A judge may take jurisdiction in federal, as opposed to state, court when a plaintiff establishes that the case arises out of the U.S. Constitution. The Jehovah’s Witnesses began by contesting the saluting requirements in state courts. The decisions were uniformly unfavourable,[518] and the Jehovah’s Witnesses could not convince the Supreme Court to give leave to appeal any of these cases. A change of tactics was called for and, pointing to the First and Fourteenth amendments, the Jehovah’s Witnesses brought the Gobitis case in a federal district court.
4 The Jehovah’s Witnesses asked the federal court to enjoin the school-board from making flag-saluting a condition of attendance at Minersville’s public schools. They argued that the First Amendment to the American Constitution gave them a right of freedom of religion, and that the Fourteenth Amendment incorporated that right and proscribed the states from interfering with it.[519] The Jehovah’s Witnesses argued that flag-salutes violated their religious rights and contravened the U.S. Constitution. At trial the Jehovah’s Witnesses won.
5 The trial court held that flag-salutes could be generally required but created an exemption from saluting for those with sincerely held religious beliefs that forbade such salutes. The only exception to this exemption was that the refusal must not threaten public safety, property rights, health, or morals. Compelling children to salute the flag, the court observed, was hardly a reasonable way to instil loyalty and teach civics.[520] The school district appealed the decision, unsuccessfully. The Third Circuit Court of Appeal affirmed the lower-court decision. In its reasons for decision, the appeal judges unanimously upheld an exemption from flag-saluting for individuals with sincerely held religious beliefs. Like the lower court, the reasons for decision in the appeal case questioned the value of enforced patriotic exercises.[521] The case then made its way to the Supreme Court, where the American Bar Association and the ACLU, as friends of the court, filed briefs supporting the Jehovah’s Witnesses. The Supreme Court reversed the earlier decision.
6 Charles Evans Hughes was the chief justice of the court, and he exercised strong leadership over it. The Witness brief was of little assistance to the court, and may even have hurt their case. Written by Judge Rutherford himself, the brief alternated between long discursive theological explanations and ad hominem attacks. Briefs filed by the American Bar Association and the ACLU helped put the case into legal focus, but to little avail. In the conference immediately following oral argument, Chief Justice Hughes told his brethren that this was one case where the court should not meddle. Individual states, he said, had power over education and there was no infringement of freedom of religion. There was no further discussion. Justice Felix Frankfurter was assigned by Chief Justice Hughes to write the opinion of the court.
7 A professor at Harvard Law School since 1914, Frankfurter was appointed to the Supreme Court by Franklin Roosevelt in 1938. A legal scholar, a man of courage and great intellectual strength, and an early labour supporter, Frankfurter fought the use of injunctions in labour disputes and co-authored an important book on this subject. He was active in the formation of the ACLU, and was also a defender of Sacco and Vanzetti. Frankfurter had a definite view of the role of the court. The Supreme Court’s historic obstruction of social legislation, its attack on the New Deal being the latest in a long list of examples, had convinced him that judicial review was anything but a positive instrument of liberalism. The legislature was directly accountable to the people and it could repeal illiberal laws, but only the Supreme Court could reverse itself. It was up to the people, through their elected representatives, to promote liberal and democratic ends. Judicial restraint was in order, and it was at no time more properly so than on the eve of war, when legislatures needed a free rein to advance the national interest. These beliefs were reflected in his reasons for decision in the Gobitis case.
8 As Frankfurter saw it, local school-boards were entitled in law to prescribe flag-saluting, although privately he apparently conceded that the actions of the Minersville authorities were ‘foolish and perhaps worse.’[522] Since they were legally entitled to pass the legislation, the only question properly brought before a court was whether or not there was a religious exception to this requirement. ‘Must a government of necessity,’ Frankfurter asked, quoting the famous question first posed by Abraham Lincoln, ‘be too strong for the liberties of its people or too weak to maintain its own existence?’ In answering this question Frankfurter observed the value of the salute in ‘the promotion of national cohesion.’ That, Frankfurter went on to say, although he did not give any reasons for saying so, was a good thing, for the ‘ultimate foundation of a free society is the binding tie of cohesive sentiment.’[523] Moreover, Frankfurter and the concurring majority of the court believed that invalidating the compulsory flag salute would be an inappropriate judicial excursion into matters of education policy. With this opinion ready for release, it was distributed to the other members of the court. Only after this was done was it realized that one of the associate justices, Harlan Stone, had not initialled the draft. There was going to be a dissent.
9 Justice Harlan Stone, a conservative and former Republican appointed to the court in 1925 by President Coolidge, had voted to uphold most of the New Deal legislation, and he regularly upheld the legality of statutes, even when he personally entertained doubts about their wisdom. As a member of the presidential board of review of claims for conscientious objection made during the First World War, Stone had been deeply disturbed by the treatment meted out to the truly religious objector. In that same way, he was now deeply disturbed by the treatment of juvenile Jehovah’s Witnesses. If Stone had had his way he would have set aside the requirement, and when the decision was announced, he read his opinion in court in full and with great emotion.
10 There were other options available to the government that did not impinge on individual liberties. It did not have to expel Jehovah’s Witnesses for refusing to salute the flag. The Jehovah’s Witnesses were, Stone wrote, a ‘small and helpless minority.’ Where the rights of such minorities were infringed, the job of the court was not, according to Stone, to balance respective interests, as Frankfurter had done. The constitutional guarantees of personal liberty were not absolutes. ‘But it is a long step, and one which I am unable to take,’ Stone wrote, ‘to the position that government may, as a supposed educational measure and as a means of disciplining the young, compel public affirmations which violate their religious conscience.’[524]
11 Where ‘prejudice against discrete and insular minorities may tend to curtail the operation of those political processes ordinarily to be relied on to protect minorities,’ the job of the court was to subject the legislative enactment to a ‘searching judicial inquiry.’[525] Such scrutiny, Stone declared, was necessary in cases such as Gobitis, where a small minority entertains a religious belief departing from the usual course of human conduct, and one that is regarded with little toleration or concern. ‘In such circumstances careful scrutiny of legislative efforts to secure conformity of belief and opinion … is especially needful if civil rights are to receive any protection.’[526] When that searching scrutiny was applied to the Minersville regulation, Stone could not say ‘that the inconveniences which may attend some sensible adjustment of school discipline in order that the religious convictions of these children may be spared, presents a problem so momentous or pressing as to outweigh the freedom from compulsory violation of religious faith which has been thought worthy of constitutional protection.’[527] There was, Stone declared, no danger to the state posed by the Jehovah’s Witnesses' refusal to salute. Both Justice Stone’s analysis and his preferred disposition of the Gobitis case were quite different from Frankfurter’s reasons and decision for the majority of the court. Where Frankfurter had presupposed constitutional validity of the legislative enactment, Stone had subjected it to review and found it lacking. These were two different views, both about rights and about the role of the court.
12 A dissent in a court of last resort, Chief Justice Hughes once wrote, is ‘an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.’ Not all dissents embody great wisdom or refute the errors of fellow judges. The test of a great dissent is its subsequent acceptance by other courts. Stone’s dissent would meet this test, for the picture of persecution of the Jehovah’s Witnesses in the two years following the Gobitis decision, a decision in which Hughes paradoxically took part, was an eloquent argument in support of his courageous position.[528] The flag salute had become an instrument of oppression.
13 Nevertheless, mandatory flag-saluting had just been justified by a large majority of the Supreme Court. Mob violence was the order of the day as Americans vented their patriotic spleen on this disloyal sect. Even more insidious, perhaps, were the legislative results of the court’s approval of the flag-salute requirement. Judicial approbation of mandatory flag-salutes precipitated passage of legislation similar to that challenged by Gobitis in many American states.[529] And just like in Canada, it was Witness children who suffered the brunt of the attack. Unless you compel your children to salute the flag, one judge told two parents, I will take them away from you ‘and place them in an institution where they would be taught to understand what Americanism really is.’[530] The Jehovah’s Witnesses were, in the United States as in Canada, Australia, and much of the rest of the world, a people under attack.
14 In time, the attorney general took to the airwaves to urge restraint, and the ACLU posted rewards to encourage citizens to bring wrongdoers to justice. But more than anything else, the entry of Japan into the war diverted American attention away from the Jehovah’s Witnesses. With a new scapegoat to attack, interest in them diminished. ‘In light of the almost hysterical fear of a possible invasion of the West Coast abetted by Asiatic traitors in our midst, the threat to national security or loyalty posed by a few elementary school children was manageable if not too insignificant to be noticed.’[531] As well, in June 1942 Congress passed Public Law No. 623, which, in defining the pledge of allegiance and describing the flag salute, stated that civilians ‘will show full respect to the flag when the pledge is given by merely standing at attention, men removing the headdress.’[532] Introduced into Congress with the sponsorship of the American Legion, the law codified the practice that the Jehovah’s Witnesses had long volunteered.
15 In passing this act, Congress was giving expression to widespread public concern over the misuse to which the flag salute was being put. The American flag is a symbol of liberty and justice, and it was repugnant to many Americans to see it used as an instrument of intolerance and repression. Small-minded bigots and patriotic zealots can wreak considerable havoc, but the generous and liberal nature of the American people is the source of the nation’s greatness and strength. The New Republic, a journal of liberal thought that Frankfurter had helped found and to which in the 1920s and 1930s he contributed, took up the cause and wrote article after article on the subject of the Gobitis case, none of which was favourable to the majority opinion of the court. In this view most American thinkers were in agreement, including prominent Roman Catholic academics who had no truck with the Jehovah’s Witnesses or their beliefs.
16 James Joseph Kearney of the University of Notre Dame College of Law, for example, writing in the Catholic Educational Review, was hardly restrained in his attack on the majority opinion of the Supreme Court. ‘Undoubtedly,’ he wrote, ‘the members of the Supreme Court were under great pressure psychologically in reaching their decision.’ Frankfurter, he observed, had been regularly labelled a radical in the press, and any ‘opinion denying the duty to salute the Nation’s Ensign in this hysterical war year’ would have been seized upon as additional evidence of ‘radical tendencies.’ But, Kearney continued, ‘be that as it may, the Supreme Court has always been the refuge of the oppressed minority, and in times of great stress it needs great judges.’ The current members of the court were, he suggested, mediocre and immature. Kearney appealed to the court to act with courage, for, he warned, failure to do so would be to place Americans at the mercy of their legislatures and laws based on the effectiveness of lobbies.[533] What Kearney was saying was that it was up to the courts to act against legislation that encroached on religious rights. If they did not act, who would?
17 The answer to this question in the two years following the decision in Gobitis was that no one would. The Supreme Court would have to set the wrong right. A hint that the court realized its mistake was given in the second major wartime Supreme Court decision involving Jehovah’s Witnesses. On 8 June 1942, two years after the court decided the Gobitis case it gave its reasons for decision in Jones v. City of Opelika.[534] This decision disposed of three cases involving Jehovah’s Witnesses in Alabama, Arizona, and Arkansas, all of which led to convictions for the distribution of literature without a licence. The Alabama case arose in Opelika, which, like many other American cities, had an ordinance requiring payment of a fee and possession of a licence to sell literature within the city. Jones, a Jehovah’s Witness, did not have a licence, nor had he paid any fee, and he was convicted of violating the ordinance. When the case finally got to the Supreme Court, the question before it was whether the distribution of Witness literature constituted a sale and was thus a business transaction properly subject to this kind of regulation, or whether it was a religious activity in the nature of worship and thus protected by the First Amendment.
18 Ultimately the court decided that a city may charge a reasonable and non-discriminatory licence fee from religious followers engaged in the sale of books. There were other reasons given too, but what makes the case important is not these reasons, nor is it the fact that the Supreme Court subsequently reversed itself in this case and held the licence fee to be unconstitutional as a violation of the right to religious freedom.[535] The importance of this case was what was found in the dissent of three of the judges, written by Mr Justice Hugo Black.
19 At the end of the day the majority of the court, Black wrote, approved in Opelika, as it did in Gobitis, the indirect suppression of a religious minority.
20 The opinion of the Court sanctions a device which in our opinion suppresses or tends to suppress the free exercise of a religion practiced by a minority group. This is but another step in the direction which Minersville v. Gobitis took against the same religious minority and is a logical extension of the principles upon which that decision rested. Since we joined in the opinion in the Gobitis case, we think this is an appropriate occasion to state that we now believe that it was also wrongly decided. Certainly our democratic form of government functioning under the historic Bill of Rights has a high responsibility to accommodate itself to the religious views of minorities however unpopular and unorthodox those views may be. The First Amendment does not put the right freely to exercise religion in a subordinate position. We fear, however, that the opinions in these and in the Gobitis case do exactly that.[536]
21 As the great British jurist Baron Bramwell once said, ‘the matter does not appear to me now as it appears to have appeared to me then.’ The first flag-salute case, argued and decided when war fears were at their height and when the Nazi subjugation of Europe was virtually complete, was exactly such a case. The passage of time, the turn of the war, and an opportunity to reflect had convinced at least three of the judges that they had been wrong and that Stone had been right. As it stood, however, this opinion was a minority one and was not directly relevant to the issue being decided in the Opelika case. As such it was of no legal force or effect. What the opinion did do was send out a clear signal that some members of the court wished to reconsider the decision in Gobitis. Another flag-salute case, the dissent seemed to suggest, had a good prospect of reversing Gobitis, for not only had three members of the court repudiated their earlier views (Hugo Black, William O. Douglas, and Frank Murphy), but a fourth, Stone, who was now chief justice, was already on the Jehovah’s Witnesses' side, and there were two new members of the court for the Jehovah’s Witnesses to convince.
22 Jehovah’s Witness lawyer Hayden Covington identified the West Virginia State Board of Education as a good target for a second case. A special U.S. district court agreed to take jurisdiction. Composed of two district court judges and one judge of the court of appeal, these special courts are convened for a particular case and have as their main advantage the possibility of direct appeal to the U.S. Supreme Court. The West Virginia Board of Education was a good choice, for the regulation requiring the flag salute in that state had been passed following the Gobitis decision. Children who refused to salute could be expelled and prosecuted as juvenile delinquents for being unlawfully absent from school. Their parents could be charged too and, if convicted, they were liable to stiff penalties, including thirty days in jail. Covington asked for an injunction enjoining the state school-board from enforcing the regulation against pupils who were Jehovah’s Witnesses. The case was Barnette v. West Virginia State Board of Education.[537]
23 Notwithstanding the Supreme Court’s virtual invitation to reconsider Gobitis, an injunction would require a lower court to disregard a decision of a higher and, in the case of the Supreme Court, binding court. But this is what the federal district court did, observing the apparent turnaround in opinion at the Supreme Court. The court considered the two different approaches taken by Frankfurter and Stone in the Gobitis decision and embraced the latter. In matters of freedom of religion and of speech the court was not there to perform a balancing act. Nor would it assume the validity of legislative regulation of either of these constitutionally guaranteed rights. There was, upon close examination, no justification for state restriction on the free exercise of religion, and it was inappropriate for the court to make an inquiry into the reasonableness of religious beliefs. The Witness children were to be let back into West Virginia schools.[538]
24 A direct appeal was then made to the U.S. Supreme Court. This time, instead of reversing the unanimous lower courts, the Supreme Court reversed itself and did so on Flag Day, 14 June 1943. A newly appointed member of the court, Justice Robert H. Jackson, a former U.S. attorney general who, while well acquainted with the persecution the Jehovah’s Witnesses had undergone, had little sympathy for the group, wrote the majority opinion for the court. It is fair to say that Jackson’s reasons for decision are among the most moving and memorable pleas for tolerance of diversity and human freedom in the whole of the legal literature of the U.S. Supreme Court.
25 What was a flag? Justice Jackson asked. It was, he answered, a symbol.
26 Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design. The State announces rank, function, and authority through crowns and maces, uniforms and black robes; the church speaks through the Cross, the Crucifix, the altar and shrine, and clerical raiment. Symbols of State often convey political ideas just as religious symbols come to convey theological ones. Associated with many of these symbols are appropriate gestures of acceptance or respect: a salute, a bowed or bared head, a bended knee. A person gets from a symbol the meaning he puts into it, and what is one man’s comfort and inspiration is another’s jest and scorn.[539]
27 The American flag was a symbol too, and the issue Justice Jackson went on to discuss was whether the state could require persons to salute. ‘To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.’[540] What about the problem Abraham Lincoln had earlier posed and Justice Frankfurter had raised in his majority reasons for decision in the Gobitis case? Justice Jackson had an answer to that. ‘It may be doubted whether Mr Lincoln would have thought that the strength of government to maintain itself would be impressively vindicated by our confirming power of the state to expel a handful of children from school. Such oversimplification, so handy in political debate, often lacks the precision necessary to postulates of judicial reasoning. If validly applied to this problem, the utterance cited would resolve every issue of power in favor of those in authority and would require us to override every liberty to weaken or delay execution of their policies.’ The purpose of a bill of rights, Jackson said, was to withdraw certain subjects from the vicissitudes of political controversy and to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. Justice Jackson then addressed the main issue of the case:
28 Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.
29 It seems trite to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.
30 The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.
31 If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.[541]
32 ‘We think,’ Justice Jackson concluded, ‘the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.’[542]
33 Justice Jackson’s opinion did not just overrule Gobitis, it overruled the rationale on which that case had been based. The question was not whether the legislation was rational, but whether a state had any right to compel affirmation of any belief. National unity was a legitimate concern. Jackson did not dispute that. But there was no evidence that a mandatory flag salute was necessary to achieve unity and, indeed, there was only speculation of harm if the salute was not required. Moreover, there was no evidence that remaining passive during the flag-salute ritual created any danger. According to Justice Jackson and the majority of the court, the First Amendment freedoms are susceptible to restriction only to prevent grave and immediate danger to interests that the state may lawfully protect. By making this finding, Jackson was introducing the ‘clear and present danger’ rationale earlier developed in a number of free-speech and free-press cases to the religious context. The action of the West Virginia authorities in compelling the flag salute and pledge was, accordingly, struck down. The decision was concurred in by Justices Black and Douglas, who had been with the majority in Gobitis and by Justice Murphy, who had written the dissent in the first Opelika case. But there was a dissent — a lengthy one written by Felix Frankfurter.
34 A judge’s duty, Frankfurter wrote, was to decide which of two claims before the court would prevail. In this case the competing claims were that of a state to enact and enforce laws within its general competence and that of an individual to refuse obedience because of the demands of his conscience. Frankfurter’s allegiance to a balancing approach remained, as did his conclusion, that the state of Virginia could legitimately enact legislation with the promotion of good citizenship as its goal.[543] The court, he said, could only invalidate legislation when it was manifestly contrary to the Constitution. ‘As a member of this Court, I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard.’ There is no doubt that Frankfurter would have preferred to associate himself with the libertarian views of the majority. Those views, after all, represented the thought and action of his lifetime, but for reasons of principle he could not, for to do so would be to read into the Constitution private notions of policy. That was not what he believed to be the appropriate role of the court. As an academic, Frankfurter had been disturbed by the Supreme Court’s rejection of Franklin Roosevelt’s New Deal legislation — for what appeared to be political reasons. And he had no intention of following suit, even if that led to an unfortunate result in a particular case. Frankfurter remained true to the limited role he gave to judicial review.
35 The majority of the court, however, had decided to embark on the more searching inquiry proposed by Jackson. Civil rights, the majority opinion decided, are more important than other rights, and when civil rights were challenged in court the court had to reflect this fundamental fact in making its decision. Perhaps more than anything else, this is the major contribution of the Jehovah’s Witnesses to American constitutional law. At the very least, this principle is what makes Barnette significant, even today. Where civil rights are concerned a rational basis for legislation is not enough. It is not sufficient for a court to find that legislation was passed with a proper end. If the allegation is raised that constitutionally protected rights are involved, it is incumbent upon the court to subject the legislation to a more searching review. At the very least it must be tested by consideration of alternative means that do not affect civil rights, but that achieve the same legislative end. ‘Whether the Jehovah’s Witnesses leave a mark on the religious history of the United States,’ The New York Times observed after the Barnette decision was released, ‘they are certainly leaving one on its constitutional history.’[544] The same was true about the influence of Jehovah’s Witnesses on Canadian law. The Donald case was evidence enough of that.
1 In Donald Mr Justice Hope cited the Barnette case as authority for his decision that the Donald children’s reasons for not singing the national anthem or saluting the flag were not material to the case. The Barnette case decided that it was unconstitutional to force children to salute the flag as a condition of attending public school. Underlying the majority decision was a concern for minority religious rights. How could Justice Hope say that the religious views of the Donald children had nothing to do with the case? Perhaps because there was no bill of rights in Canada available to the court to use as an instrument of judicial review. Did this mean that Canadians had no rights to be vindicated by the courts? What about Canada’s unwritten constitution? Its contours were uncertain, but surely freedom of religion was part of British law and as such part of Canadian law? Religious views and the right to exercise them had everything to do with the case and much to do with what Canadian society is all about. But Justice Hope dismissed these views with the result of enabling him to decide the case in the way that he did.
2 The overall effect of the Ontario legislation, Hope decided, was to impose an imperative obligation on schoolteachers to forcibly teach patriotism by order or command and illustration.[545] The religious-exemption provision, Hope said, citing Barnette for authority, did not apply because it was not a religious matter in issue. Unfortunately, no extended analysis was given for this finding, which is more a conclusion than a reason. With regard to Cohen’s argument that nothing in the regulations required individual students to sing, Justice Hope had this to say: ‘I must conclude that in passing the regulation which has the authority of a statute, it was intended that in referring to the singing of the National Anthem it should be sung as is customary in all public gatherings or assemblages, namely, in unison.’[546] Moreover, Hope declared, haphazard singing would create ‘uncertainty and even friction’ among the pupils in a public-school class.[547] Hope cited the Barnette decision, but it was clear that while he may have read it, he did not understand it.
3 Justice Hope also referred to Ruman v. Board of Trustees of Lethbridge School District. The court in that case had held that the Lethbridge Board of Education had the power to dismiss pupils who failed to perform the prescribed patriotic activities. There was case law on point, Hope declared, giving short shrift to the much more relevant point that the Alberta legislature, seeing what the Alberta court decided, amended the Alberta School Act to nullify the holding in the case. Justice Hope said this did not affect ‘the applicability of the decision,’ but it clearly did, for by amending the act the legislature was saying that the legislation, if not the decision interpreting it, was wrong.[548]
4 Although anthem-singing was prescribed in the regulations and flag-saluting was not, teachers had, Justice Hope said, by the general imperative duty to teach patriotism imposed in the regulations, the authority to require pupils to salute. The religious-exemption provisions, the judge added, were equally inapplicable here. The problem with this approach, however, was that while the primary-school regulations required, to use Hope’s words, ‘the forcible inculcation of patriotism,’ the high-school regulations had no such requirement. So while there was, perhaps, an argument to be made that there was a statutory basis to require flag-salutes in the primary schools, it did not appear to be justified in the high schools. However, one of the high-school regulations provided for the suspension of pupils ‘guilty’ of persistent opposition to authority or of conduct injurious to the moral tone of the school. Refusing to sing and salute fell, Hope declared, within this definition, and so the older Donald child had also been properly expelled. What made this part of the ruling especially strange was the judge’s first finding of fact that both Donald children had, at all times, demonstrated a respectful attitude. The Hamilton Board of Education, its teachers and principals, Hope concluded, have acted with nothing but the ‘greatest consideration and kindliness, and fully as a wise parent would have acted in like circumstances.’[549] The case was, accordingly, dismissed.
5 Although there is no basis for such speculation in his reasons for decision, what might, perhaps, have been behind his holding was the legal principle that an exemption under a statute may be more narrowly construed than a similar guarantee under a constitution. Put another way, there is a principle of law that a fundamental right in a constitution or a bill of rights should be interpreted broadly. A mere exemption provision in a piece of legislation or regulation should, in contrast, be narrowly interpreted. This view, however, even assuming it was the one underlying Hope’s decision, fails when applied to the Donald case, because in his decision Hope appears to allow the authorities to designate patriotic as opposed to religious exercises, thereby eliminating the conscientious-objection provision in the legislation.[550]
6 Whether or not there was any deep-seated principle behind the case, and the reasons that were given suggest that there was not, the Jehovah’s Witnesses immediately filed notice of their intention to appeal. They were no longer under ban and, as a result, had no hesitation in bringing cases to court. W. Glen How took the case to the Ontario Court of Appeal. How’s argument was short and to the point, although the legal brief that he submitted was more than one hundred pages long.[551] How, a short, squarely built man with a powerful presence, argued that both the High Schools Act and the Public Schools Act, as well as the various education regulations, recognized a right to refrain from taking part in religious exercises. What constituted a religious exercise, he said, was not defined in either act or in any of the regulations. There was, How said, no authority in law for a teacher or principal to force a child to participate in a religious act. Indeed, the law gave children a right to attend school and conscientiously object. The issue, therefore, was whether anthem-singing and flag-saluting were religious acts.
7 Symbolism, or a salute or any other form of respect, the Jehovah’s Witness lawyer explained, in words reminiscent of Jackson’s in Barnette, is in the mind of the person giving it. ‘In the case of a super-patriot, it might be a form of worship. It is important to know,’ he continued, ‘the intent in the mind of those setting up the regulations.’ As far as the Donalds were concerned, ‘their understanding of the prescribed acts is that they have a definite religious aspect.’ For them it was not a gesture of respect. The Donald children believed that by singing the national anthem or saluting the flag they would be attributing salvation to the state; and this, they were convinced, was contrary to the will of God. Religious freedom, How told the three judges hearing the appeal, was provided right in the statutes, while the power to force children to participate was not. The statutes and regulations were clear, and the common law, How argued, required the court to interpret both to maintain, and not restrict, freedom of worship.[552]
8 It was really very simple, How elaborated in his written brief. The Witness children were just like the children of various other religious groups, and their rights deserved equal respect under the law. Jewish children would not be forced to eat pork, or Roman Catholics meat on Fridays. Would it be destabilizing to a school with a meal program for children of either faith to conscientiously object? Similarly, in the Donald case, the Donald children ‘are not hurting anybody,’ How argued. ‘The school board is, by this guise, trying to dictate to Donald and his children the very thoughts which they may have in their minds.’ What the school-board was doing, How said, was telling the Donald children to either conform or be expelled.[553]
9 The danger was not that a conscientious objection would lead to moral decay, but the exact reverse. If Jehovah’s Witnesses were not allowed to conscientiously object, it was society itself that would decay. In this very province, How told the court, one woman’s family-assistance payments were terminated after the authorities learned her children refused to sing the national anthem and salute the flag. ‘This,’ How said, ‘is an attempt to starve people into submitting to regimentations of thought.’[554] Judge Burbidge tried to do the same thing when he ordered that Arthur Ellison be placed in a foster home. It was not the Jehovah’s Witnesses who were disrupting the social fabric, it was individuals backed by the power of the state. ‘It is difficult to imagine,’ the Jehovah’s Witnesses' lawyer observed, ‘to what ultimate lengths bigotry and intolerance will travel if given the opportunity.’[555]
10 O. M. Walsh, who continued to represent the Board of Education, said little in reply. He argued, of course, that Justice Hope’s decision was correct. He also said that the statutes and regulations requiring patriotic exercises were not religious, and, therefore, gave pupils no right to conscientiously object. There was a thrust to his argument that went beyond the law. Public policy was in issue. ‘If this appeal succeeds,’ Walsh said, ‘all kinds of ridiculous situations are likely to arise.’[556] The court, Walsh pleaded, should not ‘allow 245 sects to state what conflicts with their religious beliefs in matters of this kind, particularly where school discipline is involved.’[557]
11 The Ontario Court of Appeal had a choice. It could, as Frankfurter urged, find a basis in the regulations for the position the Hamilton board took, and limit its review to a narrow investigation of this kind. Or it could look at the regulations and consider their overall effect with a view to determining what liberties, if any, were being circumscribed. It chose the latter course. The statutes and regulations, Justice John Gordon Gillanders said in his reasons for decision, which was unanimously accepted by the two other members of the court, could not be read separately; they had to be read together. There was, as How had essentially argued, only one question to be decided, and that was whether the contested exercises had religious or devotional significance. In making this determination the Ontario court had the benefit of Justice Jackson’s opinion in Barnette, and Gillanders quoted extensively from that opinion. Unlike Justice Hope, he applied this case correctly. Mr Justice Gillanders agreed that symbols meant different things to different persons, and that one man’s comfort was another’s jest. It was plainly obvious that certain acts, exercises, and symbols to certain people at certain times have certain meanings, which to other people at other times they do not. This fact, Justice Gillanders said, was so obvious from history and observation as to need no more elaboration.[558]
12 The Jehovah’s Witnesses, the record made clear, entertained certain beliefs about the meaning of flag salutes and the national anthem. They believed that both were contrary to scriptural commands. These beliefs were conscientious, and since they were, their nature and significance were not, Gillanders said, at issue. What mattered was that the statutes and regulations absolved boys and girls from joining in exercises of devotion and religion to which they or their parents objected, and they did not specify the circumstances in which that objection could be raised. ‘For the Court to take to itself the right to say that the exercises here in question had no religious or devotional significance might well be for the Court to deny that very religious freedom which the statute is intended to provide.’[559] The regulations, Justice Gillanders said, specifically provided for a pupil who conscientiously objected to either remain but not participate while the exercises were taking place, as long as decorous conduct was maintained, or to retire from the room where they were taking place. Justice Gillanders, on behalf of the court, accepted Hope’s finding that this is all the Donald children had ever done, and he rejected Hope’s finding, which was really an opinion, formed without any basis in fact, that the respectful conscientious objection of the Donald boys had injured the moral tone of the school.[560]
13 The expulsions were, accordingly, unlawful, and Justice Gillanders made a declaration to that effect. The Donald children were entitled to return to school and the school-board was directed to excuse them from both saluting the flag and singing the national anthem. It was not, of course, just the two Donald boys who had benefited from this decision. Witness children across the province and country gained as well, and so too did the children of other Christian sects with similarly firm views about the appropriate degree of separation between church and state.
14 In the immediate aftermath of the decision, the Donald boys continued to find their entry to school barred. The Hamilton Board of Education decided to appeal the decision to the Supreme Court of Canada. A senior counsel and later chief justice of Canada, J. R. Cartwright, was retained to take the case. When the press asked Glen How about this move he replied briefly but aptly: ‘I am suggesting that the board has little to win and nothing to lose.’[561] Indeed, while the board may have had nothing to lose, the Donald children and other children in like positions had a great deal to lose. Their right to attend school and conscientiously object had been upheld by a senior appellate court. If the Hamilton Board of Education wished to challenge that decision, let it do so. But there was nothing to be gained by continuing to keep Witness children out of school, pending that appeal. Mr Justice Hope had found, and so had Mr Justice Gillanders, that the Hamilton school-board had at all times acted in good faith. There was, however, ample reason to believe that this had not been true in the past. There was no reason to believe that it was true now. The board had a legal right of appeal, but in not allowing Witness children to attend school pending the appeal it left no doubt but that it was persecuting them for their religious beliefs.
15 There was no right of appeal to the Supreme Court; it was up to the court to decide whether or not to give leave. A hearing took place on 23 October 1945. Cartwright abandoned the spurious statutory-construction arguments first developed by Walsh and endorsed by Justice Hope. He argued instead that the decision of the Ontario Court of Appeal was sure to have a disturbing effect on public-school pupils in Ontario and across Canada.[562] If the Jehovah’s Witnesses were allowed in this case to conscientiously object, then what was to stop schoolchildren across the country from placing society itself at their whim through the purported exercise of a religious right? It was the same sort of argument earlier made to the court of appeal by O. M. Walsh, when he warned of chaos if ‘245 sects’ were all to be given their way.
16 Cartwright was closely questioned by a recent appointee to the bench, Justice Ivan Rand. Rand had just drawn attention to himself for his dissenting opinion in a case in which a majority of the court upheld the right of the Canadian government to deport Japanese Canadians to Japan. He questioned Cartwright carefully, and when Cartwright had finished his submission the court dismissed his application. They did not even need to hear from How. The next day, just a little more than five years after they were first expelled, Witness schoolchildren in Hamilton were allowed to return to school.
17 For some of them the decision came too late. Their lives were ruined. For others the decision mattered little, for they were busy getting ready for Armageddon. But for all Canadians the decision was an important one. Canadians' right to say no had been tested and affirmed.[563] And for that they have the Jehovah’s Witnesses to thank.
1 When Canada went to war in September 1939, few Canadians thought that conscription would be necessary. The prime minister personally believed that the days of sending great expeditionary forces of infantry overseas were over, and that Canada’s contribution to this war would be largely an economic one. Moreover, in the days following the Canadian declaration of war there was an abundance of volunteers. So successful was the first recruitment drive that such efforts were virtually suspended at a very early date.[564] But with the fall of France and the Nazi subjugation of Europe, it became clear that men were as badly needed as materials. The government passed the National Resources Mobilization Act on 21 June 1940. The act provided that there would be compulsory military service in Canada, but that no Canadian would involuntarily be sent abroad. Lapointe, Power, and Cardin, and Prime Minister King as well, had pledged in the fall of 1939 that conscription for overseas service would not be introduced, and in passing this act the government remained faithful to their pledge.
2 Beginning in September 1940, Canadian men and women over the age of sixteen were required to register for service; this they did virtually without incident. To administer the new act, the Department of National War Services was created, and James Garfield Gardiner, a former Saskatchewan premier who had come to Ottawa following the general election of 1935, was put in charge. In the beginning relatively few NRM Act recruits were called up, and those who were trained for only thirty days. It quickly became apparent that little military training could effectively take place in this short span. Starting in 1941 the training period for those called to duty was extended to four months and, after April of that year, training became duty for the duration of the war in Canada.[565] If the regular-service recruits were permanently assigned, then so too, the government decided, should be those called up under the NRM Act.
3 There were, therefore, two different categories of Canadian soldiers: the volunteers, who were available for duty anywhere; and the NRM Act conscripts or, as the volunteers called them, the ‘zombies,’ who could not be sent overseas.[566] To satisfy political needs in both English and French Canada a compromise had been achieved. However, compromise soon turned to crisis. In 1942, and then again in 1944, Canada faced conscription crises over the need to send reinforcements overseas. The story of those conscription crises has been told before, and well, and need not be repeated here. Suffice it to say that the government decided to conscript men for service overseas, a decision made possible, in part, through the co-operation of Cardinal Villeneuve in Quebec, illustrating once again the important role that he played in keeping Canada united during the war. What is of concern here, however, is how the government treated conscientious objectors to military service, and in particular, what happened to Jehovah’s Witnesses who made these claims.
4 Responsibility for staffing and training of the home-defence program was entrusted to the Department of National War Services. The country was divided and in each ‘division’ a three-member national war services board was appointed to administer, among other things, the call-up regulations for military training and service. Not everyone called up was inducted into the military. Clergymen, police officers, university students, and workers in essential industries were all eligible for exemption from service, and there was provision for persons who conscientiously objected to military service to be ‘postponed’ from military training and service. Thus, persons who fell within these designated classes would not be required to join the military. Responsibility for making this eligibility determination belonged to the national war service boards, which were charged with hearing individual applications for exemption and postponement.
5 Initially, the government decided to call to service under the NRM Act only childless twenty-one-year-old unmarried men or widowers. The class of eligible recruits was gradually expanded throughout the war and by 1945 included single men in their thirties. The intention of the program was to maintain the home army with these conscripts, leaving the volunteers free to serve overseas.[567]
6 An order-in-council of 26 September 1942[568] modified this arrangement by transferring responsibility for administering the registration program and for directing men to both civilian and military service to the Department of Labour as of 1 December. The director of national selective service was placed in charge and the National War Services Regulations were replaced by the National Selective Service Mobilization Regulations. The thirteen administrative divisions were retained, and thirteen judges were appointed to preside over the divisional registrars and mobilization boards. The job of these boards remained the same — to administer the regulations and hear applications for exemption and postponement.
7 In both world wars, Canada has recognized the rights of conscientious objectors. The Military Service Act of 1917 contained a conscience clause, which acted to exempt conscientious objectors from military service.[569] By contrast, while section 18 of the National War Service Regulations and the National Selective Service Mobilization Regulations respected conscience, they did not exempt objectors from military service, but merely ‘postponed’ them.[570]
8 ‘Postponement’ made the issue far more complex. Fact-finding had to be undertaken to determine who qualified and who did not. Recognition of conscientious-objector status did not mean, as it had in the First World War, that the objector was free to do what he wished. Under the regulations it seemed that even if a mobilization board was satisfied of the bona fides of a conscientious-objector claim, it could still direct the claimant to report for military service in a non-combatant role. While this may not have been the regulation’s intent, it was a possible interpretation, and caused great concern among the leaders and members of Canada’s historic peace churches, the Quakers, Mennonites, Hutterites, and Doukhobors.
9 There was another factor to take into account as well. By orders-in-council of 1873 and 1898, descendants of certain Mennonites and Doukhobors had the legal right to refuse military service, granted as a condition of their immigration to Canada. Did this mean that the descendants of these settlers were automatically entitled to postponement, while the descendants of members of these and other religious groups who arrived later had no such rights, requiring them to submit applications to be considered individually? The descendants of one group could hardly be treated any differently than those of another. Besides, how were the mobilization boards to determine to which group a particular Mennonite or Doukhobor belonged?[571]
10 The government really had no choice, following passage of the NRM Act, but to formulate a definitive policy on the eligibility of conscientious objectors for postponement. In 1941, the National War Service Regulations were amended to permit conscientious objectors to perform alternative service, but what that entailed was not spelled out. The historic peace churches, so called because of their well-known and long-standing opposition to war, were concerned that setting of government policy not be done in a vacuum. Most active in this matter were Canada’s Mennonites, whose behind-the-scenes lobbying, beginning soon after the NRM Act was passed, ensured that the conscientious-objector policies of the government met their particular needs.
11 Modern Mennonites are the present-day inheritors of the Anabaptist tradition, which emerged from the religious ferment of the early sixteenth century. There were some 100,000 Mennonites in Canada at the start of the war, primarily German-speaking and in rural areas, and they refused to fight.[572] As a result many Canadians viewed the group (and to most Canadians Mennonites were a monolithic group) with suspicion and concern. The Mennonites were not, some feared, a quaint relic from a bygone era, but were a source of potential disruption, if not a sizeable fifth column, ready to act on Germany’s behalf. This suspicion could hot have been farther from the truth.
12 The appearance of homogeneity within the Mennonite community was misleading as the sect comprised several groups. The first Mennonite migration to Canada occurred after the American Revolution, with Swiss Mennonites relocating in Ontario. In the 1870s, Russian Mennonites arrived, most of them settling in western Canada. A term of settlement of these people, known as the Kanadier, was embodied in an order-in-council and provided for their permanent exemption from military service. Another Mennonite migration, also from Russia, occurred in the 1920s, with settlement in both Ontario and western Canada. The Russlaender, another Russian group, followed. This group was viewed with some misgivings by the Swiss and Kanadier settlers, because they had compromised the Mennonite position by agreeing to participate in alternative, that is, non-combatant, service.
13 One thing all of Canada’s Mennonites were agreed on was the necessity of presenting a united front to the federal government when war came. In March 1940, the Mennonite central relief committee was formed to represent all Mennonites in the west. The effort failed, however, as the Kanadier Mennonites had no intention of associating themselves with the Russlaenders and possibly jeopardizing their special legal status, believing that since the Russlaenders had compromised on principle once, they were likely to do so again. Accordingly, the Kanadier formed their own organization, the Aeltestenkomitee (the Committee of Elders). By September 1940 Ontario Mennonites, in conjunction with other peace churches in the province, notably the Quakers and the Brethren in Christ, formed the Conference of Historic Peace Churches.
14 In no time at all it became apparent that the division between the Russlaender and Kanadier groups in western Canada was irreparable. The Russlaender saw no reason not to perform non-combatant military service, for example, in the medical corps, which would provide young Mennonite men with an opportunity to practise brotherly and Christian love, while the Kanadier were anxious to guard their postponement status. It was a matter of principle, and it could not be resolved. However, the Russlaender’s Mennonite Central Relief Committee and the Conference of Historic Peace Churches agreed to co-operate and beginning in November 1940, began to meet with authorities in Ottawa to work out the details of conscientious postponement from military service during the war.
15 Some time previously the Conference of Historic Peace Churches had submitted a lengthy proposal outlining the types of activities Mennonites and other conscientious objectors could and would agree to participate in should they be called up for service by the Department of National War Services, the government agency charged, at this time, with the administration of selective service, and the NRM Act. For their part, the Mennonite Central Relief Committee submitted recommendations later. In brief, the two proposals urged that government mobilization boards grant postponement from military training on the basis of lists of names supplied to them by church leaders. The advantage in this procedure, the Mennonites argued, was elimination of case-by-case review of requests for conscientious postponement. In exchange for the automatic postponement, the Mennonites and other conscientious objectors would willingly perform alternative service, provided it was not military and was subject to civilian control.
16 Neither Justice T. C. Davis nor Major-General L. R. LaFlèche, both associate deputy ministers of national war services, responded enthusiastically to these suggestions. First of all, they were not convinced that special provision should be made for conscientious objectors. Administrative and other concerns argued against establishment of special arrangements for them, and the expense of a parallel machinery would be enormous. The government proposed instead that Mennonites and others claiming to be conscientious objectors be processed by the mobilization boards in the usual way, and once their status was confirmed they would be assigned to military camps for non-combatant service. The associate deputy ministers were even prepared to concede that this service could be performed in civilian clothes.
17 The government proposal was rejected; the Mennonites would not serve under military control in military camps, in uniform or not. On 13 November 1940 a new joint proposal was submitted. The Mennonites and other conscientious objectors repeated their interest in, and agreement to, alternative service, this time, however, spelling out in detail what that service should be.
18 The Mennonites and representatives from the other historic peace churches wished their members to be directed to agricultural work or to work in the nation’s forests. They wanted the work to be done on crown land to ensure that the benefit from their labour accrued to the nation as a whole. It was also suggested that the men in the camps receive first-aid training to equip them to respond in the event of a medical epidemic or some other national emergency arising from the war. The camps were to be under the direction of civilians, and the joint statement urged that they be open not just to Mennonites and members of the other historic peace churches, but to all conscientious objectors, regardless of religious affiliation. This latter suggestion was of major importance. There were many conscientious objectors in Canada who did not belong to one of the historic peace churches. Moreover, as then drafted, the postponement regulation applied only to conscientious objectors who belonged to a religious denomination that had, as a tenet of its faith, opposition to bearing arms. The new proposal was that postponement and alternative service be available to all conscientious objectors, as a matter of principle.
19 The joint proposal was not warmly received by the authorities, but Justice Davis and Major-General LaFlèche agreed to give it their consideration. Then, B. B. Janz, a Russlaender representative from the Mennonite Central Relief Committee, acting entirely on his own, submitted a new proposal, on 14 November, to the Department of National War Services. It was almost a carbon copy of the settlement worked out with the Russian czar at the turn of the century. Civilian supervision of alternative service and work of a forestry or agricultural nature, two of the main points of the joint proposal, were dropped and were replaced by a scheme whereby alternative-service workers would be directed into medical corps supervised by the Red Cross. General LaFlèche wired the other Mennonite leaders and the Conference of Historic Peace Churches, inquiring whether this new, and different, proposal was acceptable to them.
20 Needless to say, it was not. The Conference of Historic Peace Churches was completely opposed to any service under military control; the Mennonite Central Relief Committee was largely amenable to alternative service of this kind, but having taken a joint position with the Ontario group it was determined to stick to the terms of the joint agreement. Representatives from the Mennonite Central Relief Committee and the Conference of Historic Peace Churches returned to Ottawa, but in a matter of days Janz had seriously damaged the Mennonite and conscientious-objector cause.
21 Major-General LaFlèche now pressed for non-combatant conscientious-objector service under military control in the medical corps. The Mennonite and other church leaders could not accept this proposal, and in a meeting with Major-General LaFlèche, also attended by B. B. Janz, they completely repudiated Janz’s statement of 14 November. The major-general took a hard line. What would you do, he asked the assembled pacifists, if the penalty for not accepting military service was to be shot? The answer was, we will be shot. In fact, Bishop Ernie Swalm of the Brethren in Christ, who had served time in jail during the First World War for refusing to accept military service, estimated that half of the members of his church would willingly die. Understandably unhappy with the progress of the negotiations, the church leaders requested a meeting with the minister, J. G. Gardiner.
22 Gardiner, a Saskatchewan native, former premier of the province, and then federal minister of agriculture, had more than a passing acquaintance with Mennonites, the large majority of whom made their living on the land. That did not mean that he was necessarily sympathetic to their cause. Many western farmers were concerned about large Mennonite land holdings and resented their agricultural success. Gardiner, as it turned out, was not among this group. Presented with their problem, he was able to appreciate its dimensions, and declared that there were many things Mennonites and other conscientious objectors could do without going to war. ‘We will see that you get to do them,’ he said, concluding the meeting.[573]
23 B. B. Janz continued to meddle, but to little avail. On 24 December 1940 PC 7215 was passed providing for postponement from military training, largely along the lines of the joint statement submitted to the government on 13 November 1940. Section 18 was amended to allow anyone to make a conscientious-objection claim, not just persons belonging to a religious denomination that prohibited the bearing of arms as a matter of faith. The effect of this important change was to make application for conscientious objection a matter of individual choice.[574] The Kanadier Mennonites, who had eschewed any negotiations with the government in the hope that they would continue to enjoy complete exemption from any kind of service, were dismayed over this amendment, but their chance to make their case to the government had come and gone. Kanadier youth would be subject to the same regulatory regime as everyone else.
24 Under the postponement scheme the options included alternative service in a civilian camp, non-combatant training in a military camp, or first-aid training outside a military camp. Of these three alternatives available to persons postponed by mobilization boards, the first named made the most sense. The second was poorly conceived, as it quickly became apparent that military commanders would not accept these men into their ranks. The effect, they said, would be destabilizing, particularly since the others in their charge were conscripts and not volunteers.[575] The third option was of relatively little use, unless the men trained were later assigned to military units, and there was little likelihood of them agreeing to that.
25 Passage of the order-in-council had no immediate effect. Very few men were being called up for service on the home front; Canada’s war effort was initially dedicated to supplying Britain with much-needed military supplies, just as Mackenzie King had hoped. This situation changed, however, in 1941, as Canadian volunteers began to make their way overseas. On 29 May 1941 Gardiner announced that the first call-up for alternative-service work would begin the following month.[576] Alternative-service camps were established in five national parks.[577] The men directed to these camps were given room and board and paid fifty cents a day. In persuading Ottawa to accept this plan, the Mennonite Central Relief Committee and the Conference of Historic Peace Churches succeeded in both surmounting military and public suspicion of those who had applied for postponement as well as creating a program of service acceptable to the vast majority of Canadian conscientious objectors and largely agreeable to the public as well.
26 However, the program did not garner universal acceptance. In fact, a number of mobilization-board chairmen expressed disapproval of the plan, and encouraged Ottawa to vastly broaden the scope of alternative-service options. As one board chairman observed, alternative service added nothing to the war effort, annoyed the old soldier, and was unsuited to many educated Mennonites and other conscientious objectors who appeared agreeable to participating in any dangerous war service, provided, of course, it did not involve the taking of human life. Some of the alternative-service work was, it is true, relatively useless insofar as the prosecution of the war was concerned. Yet over the long term some of this work proved useful for the country. Conscientious objectors fought forest fires and cleared a right-of-way for the future Trans-Canada Highway, providing that project, which did not formally begin until 1950, with a significant head start. Likewise, some of the reforestation projects in British Columbia continue to pay dividends today. But in 1940 these benefits of alternative-service camp work were not readily appreciated, and perhaps rightly so. The situation was made worse by farmers, logging operators, lumber-mill operators, and even the Canadian Pacific Railway asking that these alternative-service workers be directed to them, since, with labour in short supply, it was exasperating to see good workers planting seedlings in isolated camps. Indeed, the general labour shortage was so serious that it was discussed at the highest political levels. What would bring matters to a head was the change in the scope of the alternative-service program.
27 Responsibility for the program had been transferred to the Department of Labour at the end of 1942 but no changes had been made to the types of work postponed objectors were assigned to perform. That mistake was now corrected. L. E. Westman, a Toronto publisher who came to work in Ottawa at the start of the war, was appointed chief alternative-service officer. Westman, an intelligent and dedicated public servant, shared the prejudices of his generation and would never come to understand conscientious objection to war. What he did understand was his job, which he believed was to make the best possible use of available resources and thereby assist in the prosecution of the war.
28 After reviewing the situation, Westman determined that the best use of alternative-service workers was in the labour force. Indeed, this suggestion had already been made but until Westman intervened, the only way a conscientious objector could be released from camp was for compassionate reasons or for a farm leave of limited duration. Westman wanted conscientious objectors to contribute meaningfully, whenever possible, to the economy. Many conscientious objectors endorsed this view; they did not want to fight, but they wanted to make a contribution. As a result, new regulations were passed,[578] and conscientious objectors began to be redirected from the camps to positions on farms, in industry, and wherever there was demand for their skills. The pacifists considered this a great victory and believed that it gave their movement legitimacy. Whether it did or not was unimportant to anyone but them. The redirection of labour helped Canada contribute to the Allied war effort and that was what mattered. All conscientious objectors were eligible to participate in this program of alternative service. All they had to agree to do was to work where directed and to contribute a portion of their earnings, that is, the amount of their market wage minus twenty-five dollars a month, to the Red Cross. The intention of this requirement was to ensure that no alternative-service worker benefited financially from his conscientious objection to bearing arms.[579] Alternative-service officers were appointed in those mobilization districts where a large number of conscientious objectors were found, including Toronto, London, Winnipeg, Regina, Edmonton, and Vancouver.
29 Most conscientious objectors welcomed the new regime. Overall, about 12,000 men during the war received postponement as conscientious objectors. All but a handful of these men accepted the conditions for alternative service outside the camps, and most were directed to agricultural service, often the family farm. For those who refused to accept out-of-camp alternative service, the camps became places of detention.[580] There were few Mennonites among that group, as Mennonites were enthusiastic about the opportunity to make a more direct contribution to the national good and chafed to do more. B. B. Janz, who had sorely tested the fragile unity among the peace churches in 1940 over this issue, finally succeeded, in the fall of 1943, in convincing the authorities to allow conscientious objectors to serve in the Royal Canadian Army Medical Corps and in the Canadian Dental Corps.[581]
30 The Mennonites were able to shape the alternative-service system in such a way as to suit their own needs. Their integrity, their co-operative reputation (some said, docility), and their obvious willingness to work hard for the national good served them well,[582] as these characteristics enabled them to negotiate alternative service outside of military control, to leave the camps, and to return to their communities. Although there were never more than a few thousand of them, they succeeded in attracting the attention of the authorities, who understandably were occupied with problems far more pressing than Mennonites' and the historic peace churches' views about war. It is interesting to observe that, notwithstanding conscientious objection to war, many Mennonites actually enlisted. Estimates as high as 50 per cent of those eligible have been suggested by some historians, while others put the number closer to 25 per cent of those eligible for military service.[583]
31 More important than the numbers of Mennonites who actually served was the fact that they benefited from official comparison with other conscientious objectors, most notably the Doukhobors and the Jehovah’s Witnesses. To a lesser extent, the same is also true about official attitudes towards Quakers, who left the camps for alternative-service work closer to home. While opposed to combatant service, these men were willing and anxious to assume the risks of war, and many volunteered to serve in an overseas ambulance unit sponsored by the Canadian Friends Service Committee.[584] The government could not but help take positive notice.
32 In marked contrast to the Mennonites, the Doukhobors went into the war with a bad official reputation — the reputation of the Sons of Freedom for arson and nude demonstrations tainted the entire sect — and they left the war with that reputation intact. Untold problems were caused by Doukhobor refusal to register under the NRM Act. The authorities, confronted by non-compliance on a massive scale, decided that the best response was no response. Indeed, a secret cabinet directive made this policy official. It was felt ‘that to compel universal compliance in the communities in question would involve a very heavy undertaking and that no substantial effort could be anticipated from the Doukhobors so drafted for alternative service.’[585] Doukhobors were, in effect, exempted from service of any kind. Those few who did comply with the regulations were assigned to all-Doukhobor work crews for road-building.[586]
33 The Jehovah’s Witnesses, while far fewer in number, distinguished themselves early on from the other conscientious objectors. They did not co-operate. They did not negotiate. They were dogmatic, disliked, and, as far as the authorities were concerned, unreasonable and not very good workers. Indeed, the mobilization boards were far from convinced that Jehovah’s Witnesses were conscientious objectors.
34 Unlike the Mennonites and members of the historic peace churches whose bona fide conscientious-objection claims were generally accepted without reservation, the Jehovah’s Witnesses making such claims were not well received. The Jehovah’s Witnesses believed that the state had no right to postpone them from training or service. Witnesses had, they claimed, been set apart by God for the special task of proclaiming the end of the world. They conscientiously objected to the Second World War, but they were not pacifists, for they would willingly take up arms on God’s behalf. Military or alternative service for the Satan state was another matter, and both were equally unacceptable, since they involved a breach of their covenant with God to spread the good word of mankind’s imminent end. Jehovah’s Witnesses argued that they were not just entitled to postponement from military service, but to complete exemption by virtue of the fact that every male Jehovah’s Witness was a minister. Their faith was, they claimed, a priesthood of the believers; believers were ministers; and ministers were entitled to what amounted to exemption under the regulations. Another regulation, section 3(2)(c), said that ‘regular clergymen or a minister of a religious denomination’ were not required to perform either military or alternative service. To claim ministerial status was more than problematic when the group was banned, for it was tantamount to admitting to leadership of an illegal organization, an offence under the Defence of Canada Regulations. When the ban was removed the claim was more readily made. In the meantime, making a conscientious objection to war was the only practical option. National registration began in August 1940, and by November the issue of how to treat Jehovah’s Witnesses who claimed to conscientiously object arrived at the deputy minister of justice’s office in Ottawa. The associate deputy minister of national war services wanted a legal opinion about the mobilization status of male members of the recently outlawed organization.
35 The first case arose in Prince Edward Island, where the chairman of what was then the local national war services board determined that the Jehovah’s Witness in question sincerely held a conscientious objection to military service and so was entitled to postponement. But he was concerned about this determination, and so decided to check with Ottawa first.[587] The legal question that needed to be addressed was whether Jehovah’s Witnesses came under section 18 of the National War Services Regulations. The problem Witnesses faced was that they were not members of an ‘organized religious denomination.’ They were members of an illegal organization. On 19 November 1940, the deputy minister of justice, W. Stuart Edwards, gave his opinion.
36 The Jehovah’s Witness faith was not, Edwards wrote, a religion. No reasons were given for this opinion, which went on to add that, as a result, Jehovah’s Witnesses did not fall within the exceptions to military service provided for in section 18 of the regulations.[588] Edwards’s opinion was not a reasoned assessment of the state of the law; it was a conclusion, and as such did not, in theory, affect the duty of every mobilization board to hear or receive evidence and arrive at its own decision in every application for postponement. Legal theory and legal practice often diverge, and this was such a case, for the effect of the deputy minister’s opinion, which was distributed to all mobilization boards, was that Jehovah’s Witnesses were regularly denied recognition as conscientious objectors. Those called up were ordered to serve in the conscript ranks as was everyone else.[589]
37 A medical examination was a formal pre-condition to enrolment in military ranks. It was at this stage that many Jehovah’s Witnesses would be identified to military authorities, for they invariably refused to co-operate in the exam. They could not be formally enrolled as a result, but they were still subject to military discipline. Other Jehovah’s Witnesses, unaware of its legal significance, took the medical examination and then refused to put on a uniform. In both cases, the charge they were guilty of was the same: disobeying a lawful command.[590] Some commanding officers took a hard line when faced with these recalcitrant conscripts. ‘He will be ordered to put on the uniform — and he will put it on,’ said Lieutenant-Colonel R. B. Harkness, who was in charge of the military training camp in Newmarket, Ontario, where Willem Hansler, a Jehovah’s Witness, found himself, following the refusal of his local mobilization board to recognize his conscientious-objector claim. Hansler refused to put on the uniform, and soon enough he was in hospital, suffering the results of being put into his uniform against his will.[591]
38 There was no official policy that Witness conscripts be treated in this way. In fact, many military officers were disturbed by this case and other related ones. In August 1943, for example, the deputy minister of the army wrote the deputy minister of labour and asked him to look into whether or not the mobilization boards were doing their job. According to the deputy minister of the army’s letter, there were numerous incidents occurring in which Jehovah’s Witnesses were refusing to obey orders and, as a consequence, being sent to the stockade. The army wanted to know if the mobilization boards were ‘properly functioning with regard to investigation and disposal of the cases of bona fide conscientious objectors.’ Reading between the lines, what the deputy minister of labour, Arthur MacNamara, was really being advised was that the army did not want the diehard conscientious objectors, and that the mobilization boards should take note.[592]
39 In fact, numerous Jehovah’s Witnesses claimed that they were beaten for following their beliefs instead of their commanding officer’s orders. While many incidents of this kind occurred,[593] false claims of mistreatment were also made. The system was partly to blame. When a Jehovah’s Witness refused to co-operate in a medical exam, or to obey any order for that matter, the military had a choice. A court martial could sentence him to either a military or a civilian prison. Those Jehovah’s Witnesses who were sentenced to civilian prisons drained state resources but caused little difficulty. Those sentenced to military detention drained resources and caused untold trouble because they refused to accept military command.[594]
40 ‘Handling of Jehovah’s Witnesses,’ the commanding officer of one district wrote to headquarters, ‘presents a very difficult problem. We have at all times 150 to 200 men in custody or detention. From time to time these Jehovah Witnesses refuse to obey orders when on parade with the other men. If these cases of disobedience were ignored it would not be long before we were faced with a mass refusal to carry out orders.’[595] Detention was one thing, but being beaten for refusing to follow orders was quite another. The Stanley Street barracks in Toronto was a source of a few complaints, but it was an incident at the Fort Osborne barracks in Winnipeg, Manitoba, in the spring of 1944, that attracted national attention.[596]
41 The result, no doubt, of some very bad luck, four Jehovah’s Witnesses found themselves at the Fort Osborne detention barracks in the spring of 1944 instead of at some alternative service camp. It appears that they had just been called up and directed to military training. Naturally, they refused to obey any orders, but in particular, the usual first order to submit to a medical exam. Two of the men had unsuccessfully claimed conscientious-objector status before their mobilization board, a third had not made that claim, and the fourth had ignored numerous orders to report and was finally found in the United States and deported to Canada.[597]
42 Subject to military discipline under the regulations, the four were charged with disobeying an order and were sentenced to varying terms in the Fort Osborne detention barracks, a military jail. Like all other new arrivals at the detention barracks, they were to be given a full military kit, a haircut, and a shower. Soon a storm of telegrams assailed the minister of national defence. The men had, the telegrams claimed, been beaten with ‘fist and sticks’ and given the ‘cold-water treatment.’ It was also claimed that they had been forcibly stripped of their civilian clothes and put into uniform. The minister of national defence, J. L. Ralston, immediately ordered an investigation, and a hearing was held.[598]
43 The board of inquiry heard thirty witnesses, including the complainants, their relatives, and just about every soldier with whom they had had any contact. There was evidence that the four men’s civilian clothes had been removed, and arguably, as the office of the judge advocate general later concluded, with no legal authority.[599] There was also evidence that the water for their showers may have been cold. It was uncontroverted that one of the men had been forced against his will to attend church services and had been denied access to Witness literature. However, the only evidence that the men were beaten came from the men themselves and was not substantiated by medical examination. There were no physical signs of any beatings having taken place. It was noteworthy, in this regard, that none of the men took advantage of numerous opportunities to make complaints of mistreatment to the commanding officer. Instead they made their complaints to their relations on visiting day, who thereupon telegrammed the minister of defence and notified the press. In all these circumstances there was only one conclusion the board could realistically reach: the allegations were unfounded. This information was communicated to Ralston on 12 May 1944.[600]
44 Ralston had, in ordering the investigation, more than discharged his duty. But, probably to put to rest any lingering doubt, he asked the inspector general for western Canada to visit the Fort Osborne detention barracks and investigate the allegations. On 18 May 1944 Ralston had the final report. It fully corroborated the interim report that the minister had earlier read in the House.[601] Intentionally or not, however, for the Jehovah’s Witnesses it had a positive result. While the sentencing of NRM Act conscripts to military prison remained a discretionary matter to be decided on a case-by-case basis, the experience at the Fort Osborne detention barracks amply illustrated to the military authorities that there was nothing to be gained, and much to be lost, by such sentencing. There was provision in the regulations to send them to civilian jails, and following this incident most court-martials began to do so. The practice became entrenched following an amendment to the applicable regulations.[602] Discussion of the allegations in the House of Commons gave the opposition parties another opportunity to take the government to task for its failure to fully implement the recommendations of the Special Committee on the Defence of Canada Regulations on removing the remaining Witness bans.
45 It also gave some parliamentarians an opportunity to raise with the government the whole question of the ministerial exemption as applied to the Jehovah’s Witnesses. Reverend Hansell, who had established himself as their pre-eminent champion in the House of Commons, wanted to know why ordained Jehovah’s Witnesses were not exempted from military service.[603] St Laurent explained that the Jehovah’s Witnesses belief that a man could become an ordained minister as a result of his own compact with God was not a question of freedom of conscience but was subversion.[604] That one man’s subversion is another man’s salvation was missed entirely by St Laurent, and also missing from his thinking was any appreciation that out of ten thousand members (a figure, it must be said, supplied by the Jehovah’s Witnesses), there should be at least one minister. In St Laurent’s view, since all Jehovah’s Witnesses claimed to be ministers, none of them would be recognized as such. Surely, as Joe Noseworthy, a newly elected CCF member from Toronto, pointed out to the House, the group deserved an exemption for one of their leaders.[605] The government said no.
46 In the meantime, little changed. Some Jehovah’s Witnesses were postponed, while others were not. L. E. Westman wrote Major-General H. J. Riley, the head of Selective Service, to say he was having as much difficulty in getting postponed Jehovah’s Witnesses into the alternative-service camps as the army was having in getting them to follow orders. Westman suggested that the Jehovah’s Witnesses were a special case, and he endorsed the recommendation of one of his alternative-service officers that they be used by the army as a ‘labour unit.’[606] Westman did not believe that the Jehovah’s Witnesses were real conscientious objectors since they refused to perform alternative-service work. ‘They appear to expect force to be applied,’ Westman wrote. ‘They object to all suggestions made by the state.’[607]
47 Westman did not want the Jehovah’s Witnesses in his alternative-service camps, since they were less effective as workers than were Mennonites and other ‘real’ conscientious objectors. But the army,[608] after some three hundred courts martial, had had enough.[609] ‘My own opinion,’ Major-General Riley wrote, ‘is that they will never be any use in the Army … I think it might be advisable to point out … that it would be in the national interest to give applicants of this type postponement so that their labour could be employed, instead of having them a burden.’[610] Riley suggested that the Jehovah’s Witnesses already in military detention be discharged and sent to alternative-service camps, while those who were called up for military service should in future be sent directly to the camps.
48 Tremendous resources, from the Department of National Defence, the Department of Justice and the army, were being wasted in trying to make soldiers out of Jehovah’s Witnesses. It was obvious that they had a conscientious objection to the Second World War; it was part of their overall rejection of the secular state. Postponement and alternative service were the only solutions, a conclusion that began to be reached in most cases, following a number of critical events. First, responsibility for the regulations was transferred to the Department of Labour. Second, the conscientious-objection provision of the National Selective Service Mobilization Regulations was much broader in scope than that in the parallel National War Service Regulations. Third, there was a new deputy minister at the Department of Justice; Edwards resigned and was replaced by F. P. Varcoe. And fourth, in October 1943, the Jehovah’s Witnesses were removed from the banned list. How could these four apparently unrelated events affect the treatment of Jehovah’s Witnesses? Each of these developments will be examined in turn.
49 The transfer of authority for NRM Act mobilization to the Department of Labour put the matter into civilian hands; a number of the civilian mobilization boards decided that they were not bound by the November 1940 legal opinion of the deputy minister of justice, and that Jehovah’s Witnesses were entitled under the regulations to conscientiously object. Other boards held to the previous view and ordered that Witnesses be inducted for military service. Clarification of the matter was both required and requested.[611]
50 A significant and related development was the decision of the government, on 14 October 1943, to remove the Jehovah’s Witnesses from the banned list. The legal status of the group had not been completely restored, but the government decision was a clear signal that Jehovah’s Witnesses were a legitimate religious group, and it suggested that the July 1940 ban had been a mistake. On 14 December 1943 the deputy minister of labour asked the deputy minister of justice, in light of all the changed facts, to prepare a new legal opinion in the matter of the eligibility for postponement for conscientious objectors. The legal issue the new deputy minister was asked to address was whether mobilization boards could consistently postpone Jehovah’s Witnesses under section 13(2) of the National Selective Service Mobilization Regulations which incorporated the conscientious-objection provision of the National War Services Regulations but with the important change that membership in a religious denomination, or, as the Jehovah’s Witnesses would have it, a ‘racket,’ was not a pre-condition to postponement.[612]
51 A former trade unionist Humphrey Mitchell, whom Prime Minister King had urged to stand for office and who, upon his election, was immediately appointed minister of labour, urged the Department of Justice to give an opinion that the mobilization boards could consistently postpone Jehovah’s Witnesses. Not only did this interpretation of the regulations seem right, but as Arthur MacNamara, his deputy minister pointed out, it also made a lot of sense. Experience showed that where postponement was refused and Jehovah’s Witnesses were inducted into the service, ‘army authorities have been unable to do anything with them as they have refused to take military training.’ The Fort Osborne allegations provided evidence enough of that. Jehovah’s Witnesses would, MacNamara pointed out, ‘be of much more use to the State performing alternative service.’[613] The parliamentary assistant to the minister of labour, Paul Martin, an ambitious member from Windsor, also urged that the government not just consistently postpone Witness conscientious objectors, but give them the ministerial postponement that would relieve them from any alternative-service work. Martin, who had met with Witness leaders in Toronto, argued that Witness ministers were entitled to the same treatment as ministers of other religious denominations.[614]
52 Deputy Minister of Justice Varcoe was not prepared to accept the suggestion that Jehovah’s Witnesses were ministers. He was, however, willing to agree that they were entitled to the conscientious-objection provisions of the regulations: ‘I am of the opinion,’ he wrote, ‘that Jehovah’s Witnesses entertain a “religious belief” within the meaning of section 13(2) of the Regulations, and my information is that this belief involves a conscientious objection, in certain cases, to war and to participation in combatant service. The regulation therefore enables a Board to postpone the military training of a member of Jehovah’s Witnesses upon being satisfied that the applicant conscientiously objects, by reason of his religious belief, to war and to participation in combatant military service.’[615]
53 As a result of this legal opinion most Jehovah’s Witnesses who had previously been called up, refused to obey military orders, and been sentenced to military detention were discharged and referred back to the mobilization boards. The boards now postponed them from military service and directed them to alternative-service camps.[616] Mobilization boards were also encouraged to postpone new Jehovah’s Witness conscripts: ‘In view of the considerable number of instances which have occurred where the refusal of postponement to a member of this sect, as a Conscientious Objector, has resulted in continued detention by Military authorities, or a series of jail sentences without changing the attitude of the men, due weight should be given to the beliefs of persons who are evidently whole-heartedly members of the sect, when considering their applications for postponement,’ Arthur MacNamara wrote. Furthermore, as the deputy minister pointed out, ‘a man who maintains consistently his position as a Conscientious Objector is more use to the country performing alternative service than in jail or military detention.’[617] The only problem with the policy reversal was that it no longer met Witness needs. Jehovah’s Witnesses could now admit membership in the group, since it was no longer an illegal organization, and men called up for service under the NRM Act began to claim that they were ministers of Jehovah and entitled to exemption from any service under the ministerial exemption provisions of the regulations.
54 These ministerial-exemption claims were virtually ignored, but Jehovah’s Witnesses who were called up were given an opportunity to claim conscientious-objector status. Some Jehovah’s Witnesses personally appeared before their local mobilization board, while other boards asked claimants to make such representations as they wished in writing. The Jehovah’s Witness would then be asked whether he would accept direction to alternative service. An alternate-service officer described to Westman what happened next:
55 These fellows answer, ‘No.’ Then the Boards give them the status of COs. They are referred to me. Then I try to get them into essential work under a CO agreement. They refuse, in every case, to sign any agreement. Then I order them to an Alternative Service Work Camp, knowing quite well that they will not go. Then I go ahead and get an affidavit from the Superintendent of the camp to the effect that the CO has not arrived. Then, after some other preparation, a Warrant is sworn out for the CO's arrest. Then after it is delivered, he finally comes to trial. Then he is given a sentence which carries a rider to the effect that he will be escorted to an Alternative Service Work Camp by the police on the completion of his sentence. Then, finally, the police escort him to a Work Camp.[618]
56 There were approximately seven hundred prosecutions of persons for failure to report to their mobilization board, of which more than 90 per cent were Jehovah’s Witnesses.[619] Forceful government interference apparently cleared the Jehovah’s Witnesses' conscience in a way that voluntary compliance did not.[620]
57 This is not to say that the Jehovah’s Witnesses were model workers and inmates when they got to the camps. ‘They complain continually about illnesses, their inability to work and anything else which they think may annoy or make them difficult to handle,’ Westman reported to MacNamara.[621] M. B. Morison, the superintendent of the Chalk River Camp, suggested that a special camp be opened up for the Jehovah’s Witnesses, ‘low category men, men of doubtful category and generally obnoxious characters.’ The Department of Mines did not have the resources to deal with these types. They were, Morison wrote, a Department of Labour problem and should be treated as such.[622] Westman was not unsympathetic. ‘When Mines and Resources made arrangements for Camps they had in mind the very excellent Mennonite labour that willingly went to Camp and was the best labour they had ever received.’ Now, Westman wrote, they had to deal with ‘problem children.’[623] Maybe a special camp was not such a bad idea.
58 The deputy minister was not convinced that a special troublemakers' camp was needed. Such a camp, MacNamara feared, would feed the propaganda mills. All that the troublemakers needed, MacNamara thought, was a little discipline. Camp authorities, he suggested, ‘might try a little local discipline in these camps by simply refusing to feed men who won’t work, or at least cutting their rations to the minimum.’ If the situation deteriorated, then establishment of a special camp could be considered. In that case, MacNamara thought, it ‘should be in an isolated place, and in it the men should simply be provided with rations and left to feed themselves and chop their own wood, etc.’[624] Penal colonies in the north had been suggested for years but not for conscientious objectors exercising a statutory right. They may have been malingerers, but they were exercising a right given to them by law. MacNamara was undoubtedly frustrated, but his suggestions were ludicrous.
59 In the end, most Jehovah’s Witnesses obeyed orders and carried out assigned work, although from time to time some of them would wander off to spread their message. They never tackled their assigned chores with the enthusiasm of the Mennonites, but they performed some work, and that was better than no work, which is why Westman encouraged mobilization boards across the country to postpone Jehovah’s Witnesses as conscientious objectors. He did not like the Jehovah’s Witnesses, and well into the war he revealed a profound misunderstanding of their practices and beliefs, but he understood that it was far better to have the Witnesses doing something useful than sitting in jail. Westman could not direct the mobilization boards to follow this policy, but he made it clear that this is what they should ideally do.[625] With the deputy minister of justice and just about everyone else in government on side, the mobilization boards followed the suggestion.
60 In any case, the Jehovah’s Witnesses were only marginally happier in the camps than they were in the army. It was, they claimed, an infringement of their religious rights. Two CCF members of Parliament were convinced to take up this latest Jehovah’s Witness cause. Both M. J. Coldwell, now leader of the CCF, and J. W. Noseworthy wrote the minister of labour in August 1944 and asked why the religious liberties of Witness conscientious objectors were being infringed upon. They did not have all the details, but they had heard of some troubles in the Wallaceburg area, a farming community in southwestern Ontario. Westman, in his unrelenting campaign to get the most benefits from the conscientious objectors under his control, had sent a group of forty inmates from the Chalk River Camp in central Ontario to a new camp near Wallaceburg, where they were directed to perform agricultural work in connection with the harvest, at the urgent request of provincial authorities. Since by this point most, if not all, non-Jehovah’s Witness conscientious objectors had agreed to accept alternative-service work outside of the camps, the job fell to Jehovah’s Witnesses.
61 The men were to put to work in the fields under the direction of an alternative-service officer, J. Davidson. Six of the men proved to be ‘agitators and malingerers,’ and were sent back to Chalk River.[626] The remaining men performed their duties satisfactorily, and in a display of good will Westman agreed to let the men go to Wallaceburg two nights a week to attend religious meetings. Soon enough, the men were not just attending religious meetings, but they were canvassing from door to door and soliciting subscriptions for Witness literature. The townspeople were apparently less than appreciative, and one night the chief of police was forced to intervene, in order, it was later claimed, to protect the men from an ‘unfriendly crowd.’ In any case, they were given ‘a piece of advice’ from the police, and letters to members of Parliament soon followed. Labour minister Humphrey Mitchell ordered an investigation, and his deputy set the story straight.
62 We are not dealing with the religious rights of Jehovah’s Witnesses, MacNamara reported, we are dealing with conscientious objectors who have been postponed and directed to alternative-service camps in lieu of military training. As such they were subject to direction and had no right to leave of any kind, for religious reasons or for social ones.[627] When six of the men left work and did not return they were charged under the regulations for absenting themselves from directed work without permission. Five received sentences of one year in Guelph Reformatory, while the sixth was returned to the camp at Chalk River. As Westman subsequently observed, the experiment of directing postponed Jehovah’s Witnesses to work outside the camp had not been successful. They require ‘closer custody supervision than we can give them anywhere other than in an official Alternative Service Work Camp.’[628] The sentences themselves, Westman hoped, would have a positive effect. It was expected that their severity would ‘temper the disobedience to orders of this group.’[629]
63 The chief alternative-service officer became even more set in his negative attitudes about the group. ‘Their approach is parasitical and wholly selfish. Their private lives are without economy or mental balance.’ What vexed him the most, however, was that they were not very good workers. The Wallaceburg harvest had been run at a loss, while the previous year, with a different type of worker, there had been a balance of $800 to be turned over to the Red Cross.[630] Any hope that the one-year sentences would have a deterrent effect quickly proved unreal because, if anything, Witness demands to worship in their own way increased. And so too did the charge that the state was interfering with Jehovah’s Witnesses' religious rights. In the fall of 1944 another letter-writing campaign was begun when the superintendent of the Chalk River camp refused to give his Witness charges leave to attend a convention in Toronto. It was, they said, a violation of their freedom of religion. When the camp superintendent proved adamant, they directed their protests to Westman, who backed up the camp superintendent.
64 ‘I realize,’ he wrote to Clayton Morrell, the leader of the Chalk River group, son of Charles Morrell, and future leader of the Jehovah’s Witnesses in Canada, ‘that the claim will be made that this travel and these assemblies are of a religious nature and of short duration and therefore should be given special consideration. However … I think it will be far better if Jehovah’s Witnesses who have been sent to camp under circumstances familiar to you, and especially prosecution, should remain in camp and cease for the time being to hope to engage in such activities as involve mass assemblies.’ Westman went on to remind the men why they were in the camps in the first place. ‘You have been postponed from bearing arms … The state has asked you to undertake certain work and make certain economic sacrifices because of your postponement … I must suggest that you accept this discipline as reasonable and sensible and that you remember constantly that you are engaged in work in lieu of military service and that in the main your cooperation with the authorities has required considerable legal action and force.’[631]
65 When the Jehovah’s Witnesses received this reply they immediately complained to Westman’s senior, Deputy Minister MacNamara. They were, they claimed, being required to agree, as a condition of leave, to refrain from distributing literature. Westman explained that the alternative-service program only exercised control over the men while they were under direction. When on leave the men could do as they pleased. Yet, there are records suggesting that Westman had recommended to the camp superintendents that they advise Jehovah’s Witnesses given leave to try to keep out of the public eye.[632] The complaints led directly to the end of suggestions of this kind.[633] The issue of Jehovah’s Witnesses' religious rights would not, however, go away.
66 Regulations were passed, providing for religious services in the camps and allowing the inmates to attend religious services and receive visits from religious leaders. Why the Jehovah’s Witnesses needed religious visitors when so many of them claimed to be ministers is far from clear.[634] In any event, the regulations accommodated the respective interests of the state, and the men subject to state control. Most of the conscientious objectors, who understood that as a result of this status they could not hope to enjoy civilian standards of personal liberty. The balance did not, however, satisfy Witness desires, for the Jehovah’s Witnesses believed that free exercise of religion meant the freedom to call on strangers and warn them of mankind’s imminent end.
67 Labour minister Mitchell was sufficiently disturbed by Witness protests that he decided to ask the minister of justice if his department was proceeding correctly. On 26 October 1944 he wrote St Laurent and explained the situation. The Jehovah’s Witnesses, he said, defined freedom of religion as freedom to discuss religious matters with strangers from door to door and freedom to either sell or give away literature in a similar way. Jehovah’s Witnesses also took the view that they should be free to meet among themselves to discuss the Bible from their own point of view. ‘All of these actions,’ Mitchell wrote, ‘are stated to be essential elements in freedom of worship according to their claims.’[635]
68 As Mitchell made clear in his letter to St Laurent, he did not agree with the Witness view. Neither did the commanders of the various alternative-service camps. They believed that Jehovah’s Witnesses, like all other conscientious objectors postponed to an alternative-service camp, did not have any statutory right to leave. The general practice in the camps was for ‘satisfactory workers’ to receive one week’s leave of absence each year. Additionally, and subject to the discretion of a camp commander, a man could apply for and receive compassionate leave in appropriate circumstances. Mitchell knew that in some quarters the very idea of conscientious objection had never been accepted and, in late 1944, with conscription about to be introduced, the public would not likely react with enthusiasm to the idea of Jehovah’s Witnesses being released from the camps to solicit conversations with strangers about the end of the world. There was also the question of whether or not such men, given leave, would return.
69 ‘Our view,’ he concluded in his letter to St Laurent, ‘is that freedom to worship is a personal consideration not involving a second party relationship, and that freedom of worship is amply satisfied by arrangements at camp where the men may come together privately for such exercise of religious rights as they may see fit to pursue. We have taken the ground that freedom to worship does not require us to permit such men any leave of absence for the purpose of calling upon the public, the distribution of literature or the selling of literature of a special character deemed necessary by them for the religious welfare of others.’ In brief, Mitchell wanted to know whether he had gone astray in interpreting the regulations and formulating this policy. Was his a fair interpretation of freedom to worship and practise religion while within an alternative-service camp?[636]
70 On 8 November 1944 he had a reply. It was not, however, from the minister himself. His deputy, F. P. Varcoe, had been passed the letter, and while his views may have diverged from St Laurent’s, they are instructive, nevertheless, for the potentially wide interpretation Varcoe gave to determining what was and what was not a religious act. ‘I have no information,’ he began, ‘to the effect that calling upon members of the public for the purposes of proselytizing or religious discussion and the distribution of religious literature is not a form of worship in the case of this sect. The purpose of an act and the motive behind it rather than the nature of the act would determine whether it is an act of worship. It is possible, therefore, that your refusal to grant the required permission is a restriction on their freedom to practise certain forms of worship in the fullest possible sense.’[637] Thoughtful and intelligent, this opinion was valid. In demanding the right to preach, the Witness members of the camps were arguably seeking to perform a religious act — something that the regulations, broadly read, entitled them to do.
71 Varcoe did not, however, think that the Jehovah’s Witnesses should be allowed to exercise this right — far from it. Every person, his opinion letter continued, ‘under restraint in an alternative service camp, or, for that matter, under military discipline, is subject to a similar restriction on his freedom in relation to worship and religious practices. He cannot choose the time and place for exercising his religious rights.’ ‘I do not,’ he concluded, ‘consider that in refusing these persons permission to leave the camp as requested you have placed them under any greater restrictions as regards religious worship than any other persons under military discipline or engaged in alternative service.’[638]
72 The Jehovah’s Witnesses would not be given leave whenever they wished to attend a religious meeting. Nor would they be given liberty to proselytize while confined to alternative-service camps. Preaching may have been a religious act, but that act, like many others, could, in appropriate circumstances, be circumscribed by the state, such as when those who sought to fully exercise their rights were subject to state supervision. The country was at war, Jehovah’s Witnesses were conscientious objectors, and their freedom in war could not be the same as in peace. It was as simple as that.
1 As of February 1943, it was not an offence under the Defence of Canada Regulations for a Jehovah’s Witness to attend a religious gathering, and as of October 1943 it was no longer illegal to be a Jehovah’s Witness. By these two amendments to the Defence of Canada Regulations the government, whether tacitly or not, had recognized that the Jehovah’s Witnesses were a religious group, and as such, naturally would have religious leaders. Who those leaders were became an issue following the removal of the ban, for the Jehovah’s Witnesses believed that every male member of their faith was a minister; thus, they argued, as the National Selective Service Mobilization Regulations exempted ministers from selective service, all their male members were exempt.[639]
2 The belief that every male member was a minister was a long-standing tenet of their faith. When it was an offence to be a member or leader of an illegal organization, Jehovah’s Witnesses could hardly be blamed for not volunteering information about their real roles. With the legal status of the organization restored, Jehovah’s Witnesses could identify themselves for what they were, ministers of the gospel, without fear of prosecution.[640]
3 Occasional claims by Jehovah’s Witnesses for exemption had been made in the past.[641] For example, on 1 March 1943 The Globe and Mail reported the decision of Ontario Justice Ian Macdonnell, who ruled that a Witness minister could not be considered a minister in the accepted sense and as such was not exempt from what were then the National War Service Regulations. The case, an appeal from a magistrate’s ruling sentencing Teije Hoornveldt to thirty days in jail for refusing to comply with an order to report for military training, was one of the first of its kind.
4 The appeal-court judge based his decision on an analysis of the meaning of the word ‘minister,’ and he consulted a number of dictionaries to assist him in this task. The judge was led to define a minister as someone who served as a pastor of a church or a clergyman of a religious organization authorized to preach or administer its sacraments. According to Justice Macdonnell, Hoornveldt did not meet the requirements of this definition. The fact that Hoornveldt ministered to some seventy-five homes a month in door-to-door work was not sufficient to meet the definition, for the occupants of these homes had not invited Hoornveldt to minister to them and they never met for prayer in a group.[642] Justice Macdonnell obviously had a very conventional notion of what a minister was. The Hoornveldt case was, however, an exception, as most Jehovah’s Witnesses asked to be postponed as conscientious objectors during the ban.
5 Beginning in January 1944 claims for postponement were no longer made. Jehovah’s Witnesses now ignored any call to report for military training on the basis that they were ministers and, therefore, exempt. ‘Being members of the clergy or Ministers of a religious denomination, [we] are not subject to the Regulations,’ was the argument they made, ‘and therefore, cannot be compelled to appear before the board to prove [our] contentions.’[643] Jehovah’s Witnesses who now appeared before mobilization boards did so under police escort.[644] Charges were invariably filed, and when they were finally heard in court the Jehovah’s Witnesses put forth the ministerial-exemption defence. One of the first such cases following the removal of the Witness ban came before Supreme Court of Ontario Justice Hope, who had been the presiding judge in the Donald case. Hope heard evidence, and ruled that the Jehovah’s Witness was not a minister.[645] No reasons for decision appear to have been given.
6 A second case was fought in British Columbia, and Vancouver lawyer Walter C. Hodgson took the case of a Jehovah’s Witness who had been refused ministerial recognition. The man in question, Earl K. Stewart, was ordered to report for military training. Stewart refused the order and, as he intended to make his case a test one, he was arrested. In early 1944 the case went to trial.[646] The local crown attorney, S. J. Remnant, was worried about whether he would be able to win the case, and wrote Ottawa to ask for guidance. In this appeal for assistance he set out the essential conundrum the case raised.
7 ‘All this brings me to this point,’ Remnant wrote:
8 Assume that Mr Hodgson calls as witnesses some twenty or thirty people, each of whom swears that he is a member of Jehovah’s Witnesses, that Jehovah’s Witnesses is a religious denomination, that they follow closely the teachings of the Bible, that they consider it their one object and motive in life to spread the gospel by going from house to house and talking about Christ and his works and the teachings of the Bible, that they meet together as a body for religious worship, and that Stewart is their minister; who is to say them nay; who is to say that they are not a religious denomination, who is to say that the man they choose to look upon as their minister is not their minister. We know that they recognize the same God as is recognized by the established churches of this country, the Church of England, the Presbyterian Church, the United Church to mention only three, but even if their god were some other god who is still to say that they are not a religious denomination.[647]
9 There were problems with this reasoning, and Remnant recognized some of them. If this argument were turned into a principle of law, who was to stop any group of crackpots from forming a group and electing one of their own for the purpose of avoiding national service? However, just because such an attempt was made did not necessarily mean that it would succeed. A mobilization board could refuse to postpone, and when it did, the question could be referred to a court to decide when the unsuccessful claimant refused to report and was, as a result, charged with violation of the regulations. Alternatively, regulations or guidelines could be drafted that set out in more specific terms what criteria mobilization boards should consider when faced with a ministerial-exemption claim. An appeal tribunal could also be established to hear appeals from either side. It was most unlikely that widespread fraud could be maintained for very long, and even if the occasional individual was able to duplicitously avoid national service, the cost to society would not be very great.
10 There were some very important issues to be considered in the Stewart case.[648] In early February the case came to trial before Judge Charles J. Lennox. Because of the way the regulations were worded, Stewart had the legal onus of convincing the court that he had a defence to the charge of failing to report and it was, therefore, necessary for him to lead evidence on this point.
11 Born a Jehovah’s Witness in 1915, Stewart had been preaching since 1933. In 1938 he gave up his secular job and devoted himself to spreading the gospel. Some documents attesting to this status were entered into evidence but others were not, having been destroyed by Stewart when the Jehovah’s Witnesses were banned. He had not been ordained, as that term was conventionally understood, but he had, like many other Jehovah’s Witnesses, conducted services and engaged in house-to-house work, and had been, for a period of time, a zone servant, which meant that he had overall responsibility for numerous congregations. This evidence was compelling, and it suggested that Stewart was, as he said, performing ministerial work.[649]
12 Stewart was, however, the only person called to testify on his behalf. None of his congregants provided evidence substantiating his claim. Thus, one man was asking the court, on the basis of his uncorroborated evidence, to recognize his ministerial-exemption claim. Perhaps the missing evidence would not have materially affected the ultimate disposition of the case, but its absence hardly helped.
13 In the end Stewart was decided on the basis of an earlier decision, Saltmarsh.[650] Saltmarsh was one of Jehovah’s Scottish Witnesses who ignored a summons to report for a medical examination. (In Scotland, as in Canada, these medical exams were a prelude to induction.) Saltmarsh was convicted for violating the order, and he appealed the conviction to the High Court of Justiciary, Scotland’s highest criminal court. Saltmarsh claimed that as a minister of a religious denomination he was exempt from service. The Scottish judges heard evidence about his ministerial position, and it is fair to say that they were far from impressed by the method of his ordination: an appointment letter signed by another Jehovah’s Witness. The judges concluded that Saltmarsh was not a minister, and his appeal was therefore denied.
14 While it was appropriate for Judge Lennox to look at similar cases, particularly ones decided elsewhere in the Commonwealth, his job was to decide the case before him on its particular facts. Yet Judge Lennox did not review the facts and consider them in light of the law, including the Scottish case and any other case on point, and then come to a reasoned decision. Rather, he simply adopted the reasoning in the Saltmarsh case and found Stewart guilty.
15 This raised an interesting legal issue. Since Stewart was guilty, the judge had the power to order him taken to a military camp for military training. But that, Defence Attorney Hodgson pointed out, would mean that Stewart came under military control. And if he did, his rights of appeal would be prescribed by military law. Hodgson suggested that Stewart be sent to jail. ‘It is the first time that I have asked the court to send a man to gaol,’ Hodgson remarked.[651] The reason for the request was not lost on either the judge or the crown attorney. The case had begun as a test one, and the fight was not over yet. Stewart immediately launched an appeal. The crown attorney did not oppose this disposition, and the judge complied.
16 In the meantime, another case came up, in Sudbury. The presiding judge indicated that he thought the Jehovah’s Witnesses were a religious denomination, although he rejected the claim that the person before him was a minister.[652] The same result was reached in the case of Charles Bryce Davidson. This man had trained at Gilead Bible College, a Jehovah’s Witness Bible school in upstate New York. He worked full time as a minister until he was called up. Davidson claimed that, as a minister, he was exempt. His request was turned down by his mobilization board. Davidson appealed to a county-court judge and then to the Manitoba Court of Appeal. He lost in every instance and was ordered to report for military training. When he refused to put on a uniform, he was court-martialled and sentenced to eighteen months in the Fort Osborne detention barracks, where he claimed that he was abused.[653]
17 Fighting these cases in court did not force the government’s hand, if that is what the Jehovah’s Witnesses intended. If anything, it caused the government to retrench. The matter was before the courts so let them decide, seemed to be official policy, although not for long.[654] Westman, in a bid to resolve the matter, and as suggested by Deputy Minister MacNamara,[655] travelled to Toronto for consultations with W. Glen How. What he wanted to do was arrive at some procedure for designating ministers that was acceptable to both government and the Jehovah’s Witnesses.[656] The Jehovah’s Witnesses had earlier proposed that they supply the government with a list of their ministers and that the government change the regulations to exempt full-time preachers from any service requirement.[657] No agreement on this or any other proposal could be reached, apparently because the Jehovah’s Witnesses would accept no compromise position. Their claim that all of their male members were ministers was one the government steadfastly refused to accept.
18 The minister of justice, however, had a suggestion, and on 28 February 1944 St Laurent wrote to Labour Minister Mitchell, recommending that section 3 be amended to define a minister or clergyman as someone authorized by law to solemnize marriages. ‘Otherwise,’ St Laurent wrote, ‘all these religious cranks are apt to claim that they are clergymen ordained by the Deity itself, under the terms of Holy Scripture.’[658] Mitchell asked a capable Department of Labour researcher, Edith Lorentsen, to look into St Laurent’s proposal, and after he received her analysis he contacted St Laurent.[659] Mitchell agreed that St Laurent’s suggested amendment would ‘take care’ of the Jehovah’s Witnesses. Mitchell worried, however, about what effect the amendment would have on other denominations, such as Seventh-day Adventists. There seemed to be little cause for concern in that the courts had not yet sustained a Witness ministerial claim. Mitchell recommended that matters be left alone.[660]
19 While no court had yet recognized any Jehovah’s Witness’s ministerial claim, no court of appeal had yet heard the issue (the decision of the Manitoba Court of Appeal came later). In April 1944 that situation changed when the Stewart case was argued before the British Columbia Court of Appeal. After three days of argument, the three-man court retired to consider its decision. At the end of the month Justice Sidney Smith issued the court’s judgment. The appeal, in short, was denied. Even if the Jehovah’s Witnesses were a religion, the appeal court was convinced that Stewart was not a minister ‘in any sense in which that word can reasonably be used.’[661] Like Judge Lennox, Justice Smith came to this decision following his examination of the Saltmarsh case. The only documentary evidence Stewart had offered about his ministerial status was a November 1939 letter identifying him as such issued by the New York office of the International Bible Students Association. Stewart testified at trial that the International Bible Students and two Watchtower Bible and Tract societies were separate from the Jehovah’s Witnesses, as these groups were still banned. But this testimony boxed him in, for he had introduced evidence of ministerial status not formally issued by the Jehovah’s Witnesses but by one of these still-banned groups he now claimed was unrelated to the Jehovah’s Witnesses. He also testified that he had subsequently been appointed a minister by the Jehovah’s Witnesses after that group had its legal status restored. However, according to Justice Smith, his testimony regarding the latter appointment was ‘of such a flimsy nature and so entirely unconvincing that in my opinion the learned trial judge was fully justified in not attaching any evidentiary value thereto.’[662] The appeal was therefore denied.
20 Loss of the Stewart ‘test case’ did not unduly discourage the Jehovah’s Witnesses. They continued to issue ministerial certificates, and Jehovah’s Witnesses who were called up for military service continued to ignore the orders and wait for the authorities to make the first move. When brought to trial, as most were, since the policy of the government was to prosecute in every case,[663] the unwilling recruits would give the Stewart defence. With a judgment of the British Columbia Court of Appeal as authority against them, not to mention the ubiquitous Saltmarsh case, the Jehovah’s Witnesses were routinely convicted. As a test case, Stewart could have been better argued. Another test case was prepared, and the minister this time was long-standing Jehovah’s Witness, Leo Greenlees.
21 Greenlees, a Witness minister who had been engaged in full-time service since 1931, submitted in May 1943 to a medical examination, following which he was certified fit for military training. Greenlees then wrote the registrar of the Selective Service in Toronto and explained that as a minister of the gospel he was exempt from the operation of the regulations. Inexplicably, one year passed before anything happened. But on 7 June 1944 Greenlees was ordered to present himself before his local mobilization board for a hearing. Instead of appearing, Greenlees wrote a letter claiming that he was not subject to the jurisdiction of the board by reason of the section of the regulations that provided for ministerial exemption. On 17 June 1944 he was told that unless he immediately gave reasons for his failure to appear before the board, action would be taken against him, meaning a short prison term for his failure to comply, after which he would be taken under escort to an alternative-service camp.
22 Jehovah’s Witness lawyers Cohen and How thought they had good facts with which to convince a court that Greenlees was entitled to the ministerial exemption. They decided to take the offensive, and began an action in the Supreme Court of Ontario, in which they asked the court to give them a declaration that Greenlees was a minister of a religious denomination, who therefore fell within the exemption provided for in the regulations. While there were a number of technical legal matters that had to be considered, there were only two substantive questions in issue: first, whether Greenlees was a minister of the Jehovah’s Witnesses; and second, whether the Jehovah’s Witnesses were a religious denomination. The way the exemption regulations were worded, a person had to be both a minister and a minister of a religious denomination to be exempted.
23 Percy Chapman, who ran the Jehovah’s Witness headquarters in Toronto, testified, as did Hayden Covington. The two told the court how the Jehovah’s Witnesses operated, and enlightened the presiding judge about the beliefs of the organization. It must have been very confusing to Justice Frederick Drummond Hogg. These people were against religion but said they were for Christianity. However, they did not teach the gospel as other Christians did, by services conducted in churches, but by going from house to house. Their organization was a bit mysterious, and they claimed that every male was a minister, but they had no ordination ceremony to properly induct the clergy into their ranks.
24 The plaintiff himself fit this mould. He had come to Canada from Scotland and began, in 1932, to devote his activities to the interests of Jehovah’s Witnesses. He became a minister in the same way as everyone else and was never formally ordained. His ministerial work largely comprised preaching the gospel from door to door. He also, Mr Justice Hogg heard, officiated at meetings of members of the group, directed studies, and conducted funerals and services welcoming new members. Moreover, he assisted in administering the Toronto office. In January 1944, after the Jehovah’s Witnesses were removed from the banned list, he received a letter announcing his appointment as ‘company servant.’[664]
25 Like Judge Lennox in British Columbia, Justice Hogg was very interested in the Saltmarsh case. But unlike Judge Lennox, he also had a keen interest in the facts of the particular case before him. And he was disturbed about the claim that every Jehovah’s Witness was a minister. Justice Hogg observed that at the same time that a man became a member of the Jehovah’s Witnesses, he also became one of their ministers. ‘This circumstance, in my opinion,’ Justice Hogg wrote, ‘is entirely contrary to the conception of one who can be termed a minister of a religious denomination.’[665] A minister, at least a minister as contemplated by the regulations, was, Hogg believed, a person with special status, not just an ordinary member. It is interesting to note that although Hogg did not believe that Greenlees was a minister, he was inclined to think that the Jehovah’s Witnesses were a religious denomination. ‘Although they claim not to be a religious sect, nevertheless I think the evidence shows that they are a group, which inasmuch as they appear to have a particular system of faith or belief, might be said to come within the ordinary and general conception of the term “religious denomination.”’[666] The second tier of the requirements was, in Hogg’s mind, met, but not the first. As a result, the Greenlees case was dismissed.
26 It is hard to fault Justice Hogg for his decision, for he was undoubtedly correct in his understanding that the term ‘minister’ in the regulations was intended to provide conventional clergymen with an exemption from military service because of their special status as spiritual leaders. Not contemplated were non-conformist groups, such as the Jehovah’s Witnesses, who made no distinction, because of their interpretation of the Bible, between the laity and the clergy.
27 What Justice Hogg might have done was to go beyond the world as conventionally understood to look at the world as it actually was. He could have considered whether Greenlees performed ministerial functions different from the norm, whether the regulations could be interpreted to exempt persons who did not precisely fit into the conventional definition, and whether there were policy considerations that argued in favour of or against a wide interpretation of the word ‘minister.’ Answers to these questions were not self-evident, and missing from the judgment was any attempt at analysis of them.
28 Also absent from the judgment was any recognition, much less consideration, of the overriding validity of the Jehovah’s Witnesses' particular religious expression. ‘Though their beliefs may seem crude, fanatical and childish, the point is that they seem to be religious beliefs, and in a democratic country, one religious belief is held to have the same rights as others. If one is attacked all will be vulnerable,’ was the way Saturday Night saw it.[667] The judgment demonstrated the application of preconceived ideas in a conventional way and it sought to preserve the status quo. Instead of the law responding to new social needs, it was being used to suppress them. Undoubtedly, Justice Hogg feared the consequences of allowing the Greenlees defence. The absolutism of the Jehovah’s Witness position proved fatal to the Greenlees case.
29 The Jehovah’s Witnesses immediately announced their intention to appeal. Cohen would no longer be able to represent them. Appointed a member of the Royal Commission on Coal, his duty there precluded further participation in the Greenlees case.[668] In fact, his services to the Jehovah’s Witnesses were over, and he did not part with the group on good terms. They believed that their lawyer was abandoning them in the middle of an important case, and they were right. He had, W. Glen How later recalled, ‘grown too big for his britches.’[669] Cohen would soon have problems of his own. A conviction for assault led the Law Society of Upper Canada to disbar him in 1947. Reinstated in 1950, he died three months later. After Cohen withdrew, W. Glen How took charge of the Greenlees case.[670]
30 The Greenlees appeal was heard by three judges of the Ontario Court of Appeal in October 1945. More than two years had now passed since Greenlees had been ordered to report to his mobilization board. The wars in Europe and Japan had been won, and no more men were being called up for military or alternative service. However, the issue was still an important one. If his appeal failed Greenlees would probably go to jail and then to a camp. As well, the Jehovah’s Witnesses were intent on establishing the principle that their ministers were not liable to service of any kind, military or alternative.
31 There were a number of preliminary matters at issue, the jurisdiction of the court to entertain the action in the first place being one of them. The court, however, reserved on the preliminary objections, and asked How and John J. Robinette, the lawyer representing the attorney general of Canada, to get to the merits of the case. Robinette’s legal talents had already been put to use in defeating the Witness attempt to judicially review the order-in-council that initially placed the group under ban.
32 W. Glen How argued that Greenlees was a minister of a religious denomination and therefore entitled to exemption. Dictionary definitions of ‘minister’ were no help, How told the court. Definitions of this kind were simply not exhaustive of the types of ministers and clergy who must be recognized for the exemption regulation to be given its proper scope. Moreover, in determining whether or not the Jehovah’s Witnesses were a religion for the purposes of judicially construing the regulations, the job of the court was not to decide whether or not the Jehovah’s Witnesses repudiated the term ‘religion,’ but to look at the beliefs and practices of the group and determine whether or not the legal term ‘religion’ could be properly applied to them. How said that it could.
33 He was then asked by Chief Justice Robert Spelman Robertson what the term ‘denomination’ meant. It meant being separate and apart from other groups, he replied. The Jehovah’s Witnesses were separate. They had a separate organization and separate principles of organization. Indeed, as How now pointed out, Justice Hogg had found that the Jehovah’s Witnesses were a religious denomination. Furthermore, the regulation providing for the exemption of ministers of a religious denomination must be construed so as to encompass all sects, no matter how small. What about, How was then asked by a member of the court, the Witness claim that all members were ministers? The answer to that question, according to How, was a matter of degree — a response that, as How well knew, had no validity. All Jehovah’s Witness men were ministers, for to be a Jehovah’s Witness was to accept that role. To be a Jehovah’s Witness was to be a full-time witness for God. It was part and parcel of the covenant with Christ. How did not say as much, for to do so would have, for obvious reasons, seriously undermined his case. What he did say, however, had some merit.
34 ‘If there is a religious denomination,’ he told the court, ‘it must have some ministers, and if Jehovah’s Witnesses, as a denomination, have any ministers, then the plaintiff is one of them. Before the Court can hold that the plaintiff is not within the exemption, the Regulations must be read as saying “a minister of some religious denominations.” The Crown is in effect arguing that they mean “a minister of any religious denomination except Jehovah’s Witnesses, and the Court is being asked in effect to amend the Regulations.”’[671] The court did not need to find that every Jehovah’s Witness was a minister; all it had to do was to say that, on the facts as found by Justice Hogg, Greenlees was one and was therefore exempt from the regulations. An excellent factual basis had been laid for the court to conclude, if it wished, that Greenlees was a minister. J. J. Robinette did not agree.
35 There was no organization known as the Jehovah’s Witnesses, Robinette told the court. That was just a term used by some adherents of a Pennsylvania corporation. The Jehovah’s Witnesses had no constitution or creed. A religious denomination, Robinette said, was a recognized and organized body. And this was something the Jehovah’s Witnesses were not. Robinette drew the court’s attention to the lack of an ordination ceremony, and to the Witness claim that they were all ministers. That, he argued, was something for which the regulations did not provide. They were designed to exempt the leader of a flock, not a group in which everyone was a minister. Greenlees did not claim to be any more or any less of a minister than any other Jehovah’s Witness, and that went directly to How’s argument about degree. ‘The real point of this case,’ Robinette concluded, ‘is that these people are conscientious objectors, and the plaintiff should have presented himself before the tribunal specifically constituted to deal with such persons.’[672] At the end of December 1945, reasons for decision were released and the Jehovah’s Witnesses had lost another case.
36 Chief Justice Robertson rejected, on behalf of the court, Justice Hogg’s finding that the Jehovah’s Witnesses were a religious denomination. A convoluted review of the evidence given at trial, followed by an equally hard-to-follow exposition of the religious views of the group, was the basis for this finding. Justices Hogg and Robertson had looked at the same evidence and come to two completely different determinations. Could any two judges, one might wonder, or any two persons, ever agree on what was and what was not a religious denomination? In this case there was agreement about one essential point, however, and that was that Greenlees was not a minister. It did not matter, Robertson wrote on behalf of the court, that the Jehovah’s Witnesses believed that it was the duty of everyone to become a Jehovah’s Witness and then to be a preacher of the gospel. The reason that this basic theological belief was, in Robertson’s mind, irrelevant was that such beliefs were not contemplated by the regulations. The word ‘minister’ in those regulations was not ‘intended to include all such persons as are members of the denomination.’[673] Besides, the chief justice added, there was not enough evidence to support Greenlees’s contention that he was a minister. Where the evidence on this point was lacking, Robertson did not say.
37 The judgment in this case might have ended the matter, for there was little reason to appeal. Persons were no longer being called up for military service, and the question of ministerial exemption was, for all intents and purposes, moot. The Jehovah’s Witnesses believed that the decision was wrong. Moreover, in suggesting that the Jehovah’s Witnesses were not a denomination and that Greenlees was not a minister, the court was in effect saying that the Witnesses were not a religious group. Jehovah’s Witnesses might not use the term ‘religion’ to describe themselves, but they knew this was the term commonly used, and to exclude them from the application of the term was to open a Pandora’s box of future legal and social problems. All that was needed was one religious bigot to hold up the reasons for decision of the Ontario Court of Appeal and say that since the Jehovah’s Witnesses were not a denomination they had no religious rights. It could then be argued, for example, that they should not be exempt from property taxation on their Kingdom Halls. The potential consequences of the decision were far-reaching. There was also the matter of Greenlees’s fate; in particular, there was some likelihood that he would go to jail for his earlier failure to report. From the Jehovah’s Witnesses' point of view the decision could not stand. But there was a problem in getting the Supreme Court of Canada to agree to hear an appeal.
38 Such an appeal could be launched in one of two ways: with the leave of the Ontario Court of Appeal, or by the Supreme Court itself granting leave. How applied for leave from the Ontario court first and it was rejected. The decision of that court had been unanimous, but only two of the three judges hearing it had concurred in the result. The third judge had died before the reasons were issued. A dissenting opinion is not required before an appeal court will grant leave, but it helps since it demonstrates disagreement about the state of the law. With this door likely closed How decided to ask the Supreme Court of Canada itself to grant leave.
39 The Supreme Court Act[674] provided for an automatic right of appeal in any matter in which more than two thousand dollars was at issue. Otherwise one could only obtain leave from the Supreme Court itself where ‘the taking of any annual rent, customary or other fee, or, other matters by which rights in future of the parties may be affected’ was at stake. This was the only leave provision under which the Greenlees application could be filed. What How tried to do was to argue that the court should not look at this sentence as a whole, but look at it as two parts, the second of which should be applied by itself to his leave application in the Greenlees case. Future rights were in issue, he told the court, and he drew a parallel between the Greenlees case and a 1939 Supreme Court decision, Christie v. The York Corporation, concerning the rights of a black man to buy beer in a public tavern. The court rejected, however, an attempt at an analogy between Christie and Greenlees. Mr Justice Patrick Kerwin told How that the Christie case was different because it did not concern civil rights, but economic ones. Besides, he added, damages had been requested in that case, while in Greenlees the appeal was not about money. Some of the Supreme Court judges apparently agreed that the issues in the Greenlees case were important; nevertheless Justice Kerwin, on behalf of the court, denied leave to appeal. The court held that it had no jurisdiction to grant leave where the matter in controversy did not involve present or future economic rights.[675]
40 This, How believed, was mad, and at least one commentator agreed. ‘When the Supreme Court begins to reject admittedly important questions of law because they do not involve twenty-five dollars’ — a reference to the amount of money Christie had claimed — ‘absurdity reaches completion,’ an anonymous contributor said in the Fortnightly Law Journal.[676] The Jehovah’s Witnesses decided to try to appeal the decision to the Judicial Committee of the Privy Council (JCPC).
41 Until 1949 the JCPC was Canada’s final court of appeal in all but criminal matters. The Law Lords of the JCPC were not constrained by the Supreme Court Act in deciding what cases to hear, and How believed he had a better chance of getting a sympathetic hearing in the United Kingdom than he did in Canada. After all, the Jehovah’s Witnesses had never been banned in Great Britain. How, however, dropped the Privy Council appeal. The issue of Supreme Court jurisdiction would not go away, and became more than academic in 1949, after legislation was finally passed terminating imperial appeals. How argued, and so did others, that the Supreme Court had to expand its jurisdiction to hear matters of social importance as well as matters of money, and eventually these arguments bore fruit.[677] Needless to say, How, as counsel to the Jehovah’s Witnesses and a Witness himself, was interested in ensuring that civil-liberties issues involving Jehovah’s Witnesses could be appealed to the Supreme Court, but the point he was making was still a good one. ‘It is the issues arising,’ How wrote, ‘not the amount of money or form of procedure, that renders a case of sufficient moment to be determined by the highest tribunal.’[678] There was no point in having a Supreme Court that was limited, in effect, to resolving commercial disputes, but it would be a while before a new Supreme Court Act was passed, giving the court general jurisdiction to decide in which cases it would grant leave. Notwithstanding this deficiency in the statute, the Jehovah’s Witnesses were, in the late 1940s and 1950s, able to take a number of important cases to the Supreme Court for a hearing.
42 Even though the Greenlees case had never been heard by the Supreme Court of Canada or the JCPC, what judicial consideration had taken place was still important. Canadian courts had been asked to consider what was and what was not a religious denomination. In that task the judiciary had arrived at conflicting results. Canadian courts had also been asked to consider who was and who was not a minister. On that issue Canadian judges agreed, but they did so without giving the matter more than cursory thought. Canada’s was, especially in the war years, a vibrant and changing society. But instead of broadly construing an issue as fundamental as religious rights, Canadian judges interpreted it narrowly and, in effect, voted to perpetuate the past. The judiciary, all the decisions in the ministerial-exemption cases suggest, had no interest in considering the limits of dissenters' religious rights. This is not to say that the decisions they reached were necessarily wrong, but it is the process and thinking that led to those decisions that are open to criticism. None of the judges hearing the various ministerial-exemption cases ever seriously grappled with the idea that some religious faiths might be organized differently than others, but were religious denominations nevertheless.
43 It is interesting to observe that almost at the same time that the Ontario Court of Appeal was called upon to consider the Greenlees case, it was also deciding the Donald case. In that case, religious liberties had been advanced. The difference between the two, to borrow the language of W. Glen How, is one of timing, and one of degree. In the gloomy spring of 1940 children had no religious rights, and it would take the tide of war to turn for the court to rule that they did. With victory at hand children’s religious rights became easy to protect. Suddenly the plaintiffs' cause was attractive, for it was virtually without social cost. The cause had not changed; what had changed was the degree of freedom society felt it could afford.
44 Ministerial exemption for all Jehovah’s Witnesses was something that society might have been able to afford, but it was something that society would never countenance. The courts feared that by exempting an individual they would be exempting the group. Moreover, unlike what they had done in the problem of the patriotic exercises, the Jehovah’s Witnesses presented no compromise solution. In the national-anthem cases the Jehovah’s Witnesses had agreed that their children would stand silently at attention. In the ministerial-exemption cases, the issue was black and white. By claiming that every one of their number was a minister, they had forgone any right to the exemption. To allow every man, by virtue of his religious beliefs, to claim total exemption from the responsibilities of being a citizen in a country endangered by war was, the judiciary believed, to shirk responsibility for the preservation of the nation. Conscientious objection and alternative service were barely acceptable, while blanket exemption was unacceptable, particularly for the adherents of a formerly unlawful organization. No court would allow it, nor would any legislature. The state had the right to call upon its citizens in time of grave national emergency. What the Jehovah’s Witnesses wanted neither the courts nor Parliament would let them have.
45 Postponement and alternative service were, most Canadians believed, a satisfactory, fair, and generous resolution of Jehovah’s Witnesses' conscientious-objection claims. But in some cases it was wrong. Some Jehovah’s Witnesses were ministers in something approximating the conventional sense, and there is no question but that the Jehovah’s Witnesses were a religious denomination, even if they themselves eschewed that term. Where the courts had gone astray was in not taking a closer look at who the ministerial claimants were and what they wanted. Underlying the judicial decisions was a fear that recognition of one Jehovah’s Witness’s ministerial claim would open the floodgates to everyone making that claim. The fear was real, but what the courts should have done was consider the facts of each case and come to a resolution based on those particular facts. There are not enough facts reported in the Stewart case to question what the court did there. But in Greenlees it was demonstrated that the defendant had done nothing but work for the Jehovah’s Witnesses since 1932. Moreover, he lived in their Bethel, along with all other full-time employees of the group, and dedicated his entire life to advancing Jehovah’s Witnesses' religious interests. In the early 1960s he was invited to serve on the governing council of the Watch Tower Bible and Tract Society in New York, and continued to do so until his death in 1988.[679]
46 It was simply not enough for the court to compare Greenlees with the other ministers of conventional denominations that it knew. Greenlees was not ordained, nor did he have a congregation, but that did not mean that he was not a minister. It is far from clear that a comparative approach should be applied in matters of religious practice and belief. Nor does it seem appropriate for the courts to enter into matters of scriptural interpretation and organizational analysis when a religious group comes before them. It is a time-tested principle of the common law that internal practices of voluntary associations are private matters, not subject to regulation by the courts. That is not to say that the courts have no role in matters of the church, for it may be necessary to determine whether or not a group is, as it claims, an organized religion. In that case, the job of the court is a limited one: to determine whether or not there is a reasonable basis for the status being claimed. During the war more than one court went off track.[680] Interestingly enough, however, where the rights of groups other than the Jehovah’s Witnesses were at issue, some courts were inclined towards a liberal view.
47 Clarence Allen Bien, for example, was a minister of the Church of Christ. Like Greenlees, he was called up for military service. His claim for conscientious-objector status was denied and he was inducted into the army. He then filed a writ of habeas corpus and claimed that as a minister he was exempt from both military and alternative service. The application came before Justice Donald Maclean of the Saskatchewan Court of King’s Bench. Justice Maclean had to determine whether or not the Church of Christ was a religious denomination, and whether or not Bien was one of its ministers, the same two questions that had come before the court in the various Jehovah’s Witness ministerial-exemption cases.
48 Justice Maclean turned first to the question of whether or not the Church of Christ was a religious denomination. It had a general secretary and a number of congregations, but no bishops, moderators, or any other persons with duties corresponding to those of other religious organizations' temporal heads. Justice Maclean found that the various congregations met every week or so to sing hymns, read Scripture, and engage in prayer. Their ministers, including Bien, were unpaid and were authorized to perform marriages. ‘On this whole evidence I must conclude that the “Church of Christ” as it exists here in this province and in this application is a religious denomination.’[681] The next question was whether or not Bien was a minister. The judge found that Church of Christ ministers had no special education or training, were expected to earn their livings independent of their church, and were not ordained or confirmed in their ministerial positions in any special way. However, it was significant that Bien’s congregation recognized him as their minister. The judge decided that Bien was a minister and his application for habeas corpus was granted.
49 The Jehovah’s Witnesses obviously presented a slightly different case. They were not entitled to perform marriage ceremonies, but that was because their ministerial status was not recognized by the state. Further, they had no congregations that recognized them as their minister, as most Witness men claimed the world was their congregation. While congregations of Jehovah’s Witnesses met as a group in Kingdom Halls to sing, study, and pray, they were not under the spiritual leadership of any particular individual. But many of the other characteristics, such as the lack of ordination, education, and training, along with demonstrated preaching or ministerial activity and an articulated theology, that Justice Maclean considered significant were also shared by Jehovah’s Witnesses.
50 What set the Jehovah’s Witnesses apart was their claim that they were all ministers. While that did not mean that all of these claims should have been accepted, there is reason to suggest that, in rejecting every such claim, the courts were not giving the Jehovah’s Witnesses the same substantive consideration that they gave to other religious groups. Not every Witness should have been entitled to a ministerial exemption, but some, such as Greenlees, arguably fell within the eligible class, even if the Jehovah’s Witnesses themselves failed to differentiate among their male members in any way. A comparison of judicial consideration of Witness ministerial-exemption claims with similar Doukhobor claims would be instructive; however, because the federal government adopted a policy early in the war of allowing Doukhobors, who were even more radically rejectionist than the Jehovah’s Witnesses, to ignore alternative service, such a comparison cannot be made.
51 No right is absolute, and freedom of religion means different things at different times. In time of war, as in any time of emergency, the state must be entitled to call upon its citizens. And when it does it can limit the right of those citizens to say no. In making that determination a searching inquiry is required. The ministerial-exemption claims of the Jehovah’s Witnesses offered no easy answer. But the approach taken by the courts failed to give the members of the group their judicial due.
1 While attention shifted to the courts as the Jehovah’s Witnesses fought and lost their ministerial-exemption claims, many Witness men remained in the alternative-service camps. Westman’s view of the group never improved. They were, he declared, of a low mental type.[682] They were poor workers, although for the most part they were sincere as they really believed that their cause would eventually sweep the world. As Westman recorded, most of them would be Jehovah’s Witnesses even if there was no war. Nevertheless, they constantly complained and wrote letters. The best thing Westman could say about them was that they would usually obey orders of persons in authority over them.
2 When the war in Europe ended in May 1945, those Jehovah’s Witnesses still in camps stepped up their efforts to secure release by writing innumerable letters to Ottawa.[683] All they had to do to secure their release was agree to accept alternative-service outside of the camps, but that was a solution the majority of Witnesses declined, even after the mandatory contribution to the Red Cross was dropped for married conscientious objectors over thirty years of age. Few Jehovah’s Witnesses would enter into a contract under which they agreed to perform alternative-service work, in camp or out. Besides, most of the inmates were unmarried and relatively young. To sign a contract with the government would be to violate the only covenant their consciences allowed them to make: the one with God. Accordingly, most of the postponed Witnesses remained in the camps.
3 The surrender of Japan in August 1945 did not change the situation. Alternative service, the government announced, would continue. ‘I am confident,’ Chief Alternative Service Officer J. F. MacKinnon wrote in a letter to be brought to the attention of Canada’s ten thousand postponed conscientious objectors, ‘that Alternative Service Workers who are performing Alternative Service in lieu of military service will, on reflection, appreciate the fairness of retaining Alternative Service controls while such a large percentage of serving soldiers, sailors and airmen are still waiting to be returned from Overseas and to be rehabilitated into suitable civilian employment.’[684]
4 Despite MacKinnon’s confidence, conscientious objectors gradually began to disobey authority. Postponed Jehovah’s Witnesses increasingly wandered away from their jobs to attend to their religious work.[685] And they were not the only postponed conscientious objectors who felt that since the war was over they should be released. The alternative-service officer in Kitchener reported the same sentiment among the Mennonite men under his charge. The difference between the Jehovah’s Witnesses and the Mennonites was not just a matter of their penchant for work, but of how the two groups wished to appear to the world. ‘The Mennonite Committee is very much concerned in maintaining the good record and reputation of their group, and are always willing to bring a little pressure to bear through their church connections, where it becomes necessary.’[686] Mennonite dissenters were informally dealt with by the Mennonite religious leadership. Witness protesters were encouraged by the Witness group to do whatever was necessary to expedite their release.
5 The steady stream of correspondence became a flood as Jehovah’s Witnesses still in camps spent every spare moment preparing petitions and letters, asking for their immediate release. ‘With conscription at an end,’ a typical petition argued, ‘there appears to be no good reason why we should be compelled to continue in the performance of Alternative Service.’[687] This petition, like numerous others, left Westman more than a little perturbed. ‘My own conclusion,’ he wrote the deputy minister of labour in late May 1945, ‘is that it was a most unfortunate day for Canada when this organization was given any kind of legal status.’[688] More to the point, however, was that while there were still men in uniform, conscientious objectors directed to alternative service should not have their full liberties restored. The Witness claim that they were ministers had not been accepted by a single Canadian court.
6 Even when these points were made forcefully in reply, the petition- and letter-writing campaign persisted. As it did, political, if not public, concern began to grow. ‘I realize that these people can be very difficult,’ Angus MacInnis, MP, wrote Mitchell in mid-July 1945, ‘but they have certain rights under our constitution no matter how much we may disagree with their ideas.’[689] The BNA Act, which MacInnis was likely referring to as ‘our constitution,’ does not say anything about religious rights. It was nevertheless interesting that MacInnis should make this statement, for parliamentary interest in constitutionally protecting rights was about to begin. MacInnis was not the only politician to urge the Jehovah’s Witnesses' release. James G. Gardiner, back in his post as minister of agriculture, made the same suggestion. The sooner the regulations were repealed, he wrote Mitchell in early August 1945, the better.[690]
7 A very interesting discussion of this subject began within the Department of Labour. J. F. MacKinnon, the alternative-service officer who had been appointed assistant chief and then chief upon Westman’s death in July 1945, wrote to MacNamara, saying that one reason for keeping the Jehovah’s Witnesses in camps was so that they did not take the jobs of returning veterans. It is hard to imagine how the relatively small number of Jehovah’s Witnesses in camps could glut the job market (and this argument was brought to the attention of the authorities by M. J. Coldwell, among others), while almost all the other postponed conscientious objectors, almost ten thousand in all, had been working outside the camps, in some cases for years.[691] Besides, the only thing that was keeping the Jehovah’s Witnesses in the camps was their refusal to accept directed alternative service outside the camps. And the only thing keeping them from such service was their refusal to donate any of their earnings to the Red Cross. It was interesting that MacKinnon himself urged alternative-service officers in the last months of the war to do whatever they could to avoid sending any more Jehovah’s Witnesses to the camps, even if that meant they were not required to perform alternative service.[692]
8 On closer examination it was not jobs that were the reason for keeping the Jehovah’s Witnesses in custody, and MacKinnon admitted as much. ‘This factor of employment is not present in the case of those particular Jehovah’s Witnesses who were full time ministers prior to being called up and who wish to return to this work on their release.’[693] While the government had steadfastly maintained that no Jehovah’s Witness was a minister as that term was properly understood, it privately admitted that some were. What MacKinnon proposed was that the former full-time ministers be released in stages to avoid unfavourable publicity. ‘I wish to effect these releases individually rather than as a group of “ministers” because I do not wish to create the impression that we are recognizing them in a capacity which was not recognized by their Mobilization Boards.’ There were, MacKinnon reported, some four hundred Jehovah’s Witnesses in the camps, of which about one hundred and fifty could be regarded as ministers.[694]
9 The decision was referred to Deputy Minister MacNamara. He told MacKinnon to raise it at the next advisory-board meeting, which was presumably a committee that decided policy questions. His own view was that Witness ministers should no longer be kept in the camps. MacKinnon wrote Witness headquarters in Toronto and asked to be supplied with a list of full-time ministers, to be checked against the alternative service’s own list.[695] Soon enough, Witness ministers, the formerly full-time ones now recognized by the authorities as such, began to be released. Some of these ministers were not given unconditional releases. They were instead released on ‘compassionate leave,’ which was one way the Department of Labour had of controlling their out-of-camp activities. These Witness ministers, MacKinnon advised MacNamara, ‘are not as outspoken because we still have them under our control with the power of returning them to Camps.’[696] They were at least out of the camps, where most of their co-religionists remained.
10 The government was in no apparent hurry to release the remaining Jehovah’s Witnesses. The cabinet considered the matter in November and ‘after discussion it was agreed that no action be taken in this matter for the present.’[697] MacKinnon then wrote the approximately two hundred conscientious objectors still in the camps with the bad news.[698] With only limited exceptions every other conscientious objector had accepted alternative service outside the camps. It remained true, though, that the conscientious objectors outside the camps were still subject to the Alternative Service Regulations, but for men back home and working on the family farm they were subject to the regulations in the most superficial way. All that MacKinnon could assure the Jehovah’s Witnesses still in the camps was that the matter of the continued operation of the Alternative Service Regulations was under review, and that a decision would be announced shortly.
11 The future of the regulations was, as promised, soon announced. ‘It is likely,’ the minister of labour said in early December 1945, ‘that Alternative Service control will carry on through the winter. The revocation of this control will in all probability be synchronized with the anticipated betterment of employment conditions in the early spring.’ Mitchell went on to point out that by that time almost all of Canada’s troops would have returned home, suggesting that they should have an opportunity to re-enter the job market before conscientious objectors could leave their assigned duties and look for more attractive work.[699] One reason for the apparent delay was to avoid political problems in the House of Commons. What Mitchell was doing had a kind of rough justice to it. There were some ten thousand postponed conscientious objectors working in alternative service, and while the vast majority were Hutterites, Mennonites, and others destined to return to the family farm, if they were not already there under assignment, it would not have been right for them to enjoy full liberty while soldiers remained on duty. This was the position taken by the Canadian Legion.[700]
12 The Jehovah’s Witnesses in the camps were, however, a different case. Many of them were, as MacNamara and MacKinnon had already admitted, destined to a life on the street, spreading the gospel. The others who were not full-time ministers would return to the private sector, taking jobs of relatively little interest to returning veterans, as the bulk of these Witnesses were not dedicated to their careers, but to making a living so that they could support themselves to carry out Jehovah’s work. A belief that the end of the world, as we know it, is at hand, undoubtedly affects one’s commitment to secular work. The Jehovah’s Witnesses were simply not in competition for the good jobs. Although the economic climate in late 1945 and early 1946 was not buoyant, there was no real justification for keeping them in the camps, and so, quietly and slowly, they began to be released. No public announcement of this was ever made.[701]
13 The government took a number of small steps to improve the conditions of the Jehovah’s Witnesses who were not released, such as increasing the length and number of leaves.[702] The Chalk River superintendent, for example, was inclined to grant many requests, especially for important Jehovah’s Witness religious holidays like Nisan 14, the memorial service that is the high point of the Jehovah’s Witness religious year. These concessions were not enough to eliminate protests about ‘unfairness.’[703] Some Jehovah’s Witnesses nursed grievances about the failure of local municipalities to support their dependants while they performed alternative service in remote camps. Refusing any responsibility to the state is one thing, but then going on to claim that the state had a responsibility to them was really too much. Letters concerning these dependants made their way to Ottawa.[704] There was never very much official sympathy for these complainers for, like all other conscientious objectors, they were invited to perform alternative-service work outside of camps, in most cases in their home communities. Nevertheless, the alternative-service authorities arranged for a federal contribution to municipalities for the relief of Witness dependants, and fewer than twenty Jehovah’s Witness families applied for this relief.[705]
14 It is interesting that in making their concerns known, the Jehovah’s Witnesses successfully identified members of Parliament most amenable to their cause. During the war it was the CCF members whom they relied on. After the war it was John Diefenbaker who assisted them the most.[706] Notwithstanding Diefenbaker’s increasing interventions, and the hundreds, if not thousands, of letters members of the government received, the cabinet had no intention of rescinding the Alternative Service Regulations.
15 On 25 March 1946 Mitchell again made this point: ‘I do not intend, nor do I believe that the citizens of this country would agree, to relieve conscientious objectors from alternative service work until all enlisted men in the armed forces, or at least the majority of them, have been discharged.’[707] Mitchell’s statement in the House of Commons undoubtedly had both political and symbolic value. The fact was, however, that there were very few conscientious objectors still left in the camps; only 126 Jehovah’s Witnesses remained by the end of March.[708] By the beginning of June there were fewer than 100 objectors, all Jehovah’s Witnesses, while at the end of the month there were only 73 left.[709] All the rest had been set free.[710] Patience was not one of the virtues of the handful of Jehovah’s Witnesses kept in custody, and their demands for information about the date of their release only increased.
16 Getting the Jehovah’s Witnesses still in the camps back out on the streets was among W. Glen How’s priorities. The Witness lawyer submitted a long brief to the minister of labour. Entitled ‘Representations with Respect to Alternative Service,’ the brief was not likely to endear How or his client to the authorities. The alternative-service system, How said, ‘resembles the position of English serfs of the middle ages, and American slaves in the Southern States, who were bound to the land and could not leave without a permit from their owner.’[711] Apart from this type of rhetoric, which predominated in the brief, How pointed out that the operation of the regulations was not indiscriminate; they acted to discriminate against only the Jehovah’s Witnesses. How had examples to illustrate this claim, and his arguments on this point were logical and clear. MacNamara and Mitchell could say what they wanted, but the only people still in the camps were Jehovah’s Witnesses, and they were there because they refused to compromise their religious beliefs. They would not sign contracts and they would not contribute money to the Red Cross. Some of them would, How admitted, seek secular employment upon their release, but most intended to enter full-time missionary work. No purpose was being served by keeping the Witnesses in the camps.
17 This view had been privately shared by MacKinnon and MacNamara for some time; the former had in fact urged release at the end of 1945. The camps were really serving no purpose. The Jehovah’s Witnesses had never been the greatest workers, and since the end of the war their efforts had further flagged. Administrative costs had risen and it was expensive to operate the camps for a small number of people. It was time to close down the camps and send the Witnesses home.
18 Jehovah’s Witnesses at the Chalk River camp in Northern Ontario received this news in a most interesting way. Early in July 1946 the Witnesses, through the Watch Tower Bible and Tract Society, which had by then been restored to legal status, wrote the new chief alternative-service officer, G. R. Carroll, to advise him that another one of their travelling ministers would be passing through and wished to visit the brethren at Chalk River. On 8 July 1946, almost six years to the very day that the Jehovah’s Witnesses had been banned, Carroll wrote back: ‘As from July 15th, there will be no more alternative service workers in Camps, and it is therefore presumed that it will not be necessary for your representative to visit this Camp.’[712] With the repeal of alternative service, the last act in the Second World War drama of the Witness ban in Canada had come to an end.
19 Overall, the Canadian government’s treatment of Witness conscientious objectors left something to be desired. The according of the status of conscientious objectors to Jehovah’s Witnesses came late. Even after that wrong was made right, government policy, which was aided and abetted by compliant courts, failed to give the group its due. There was nothing wrong with directing Witness men called up for national duty to alternative-service camps, and if they refused to accept the conditions established for alternative-service work outside the camps, that was their decision. The government’s failure to recognize the legitimate claims of ministerial exemption made by some members of the group is more problematic. The floodgates need not have been opened; that decision could have been made, with the assistance of guidelines from the alternative-service branch, by mobilization boards, on a case-by-case basis. Instead government policy was to the exact opposite effect. By their failure to compromise, the Jehovah’s Witnesses bear some of the blame, but it was not this failure alone which determined their treatment. Their widespread unpopularity, as compared to the Mennonites in particular, also dictated the response their claims for ministerial exemption received. They were a dissident and unpopular group, and they were treated as such.
1 In Australia, the other Allied country in which the Jehovah’s Witnesses were banned, Witness ministerial status was not recognized by the authorities at the beginning of the war, although the status of ministers of the mainstream groups received an exemption under the equivalent Australian regulations. Witness ministers, however, were jailed for refusing to serve. Even after the Australian court set aside the ban, the military continued to try to induct Witness men. And just like in Canada, the Jehovah’s Witnesses brought a test case to court. The conscription of one Frank Grundy was brought before Mr Justice Holt, who decided that Grundy was a bona fide minister, and accorded him exemption from the regulations.[713] This decision did not mean that every Jehovah’s Witness was recognized in law as a minister, but it established the necessity of making an inquiry into the facts of each and every case.
2 In contrast, in the United States, where the Jehovah’s Witnesses were not banned, Witness conscientious objectors did not do as well as they did in the two countries where they were outlawed.[714] More than one year before the Japanese surprise attack on Pearl Harbor brought the United States into the Second World War, Congress passed the Selective Training and Service Act. Provision for conscientious objectors was made in the act with the basis of recognition placed on a person’s religious training and beliefs not, as in the First World War, on membership in one of the historic peace churches.
3 There were two types of conscientious objectors recognized in the United States during the Second World War. The first group consisted of men who were not opposed to non-combatant service. These men were classified 1-A-O, and were assigned to the army medical corps. The second group comprised men opposed to both combatant and non-combatant service. These men were classified IV-E, and were assigned to work of ‘national importance’ under civilian direction. Most of these conscientious objectors ended up in civilian public-service camps and were put to work on projects not directly related to the war effort. The operation of the camps is one of the things that made the American camps different from their Canadian counterparts. While the assigned work was carried out under the supervision of the camp superintendent, who was a government employee, camp life, in marked contrast, was under the direction of an employee of a private organization, meaning a member of one of the American historic peace churches.
4 This system was developed as a result of an agreement between the director of selective service and the United Religious Groups, an organization composed mostly of Mennonites, Quakers, and Brethren. Under the agreement certain churches agreed to provide clothing, medical attention, and heat and light for all men classified IV-E and directed to one of the civilian public-service camps. During work hours, the inmates, who were not paid, were under the control of the camp superintendent. The rest of the time they were under the control of the camp director, the title of the representative from the United Religious Groups. While the camp director had some government duties (for example, the administration of leave regulations) his primary responsibility was seeing to the physical and spiritual welfare of the men in the camps. American conscientious objectors were assigned to the camps for the duration of the war plus six months.[715]
5 From the start of the war, Jehovah’s Witnesses claimed exemption from training and service. They wished to be classified as ministers, status IV-D.[716] At first, American authorities were inclined to accept Witness ministerial claims. ‘By their adherence to the organization of this religious corporation, the unincorporated body of Jehovah’s Witnesses are considered to constitute a recognized religious sect,’ was the way one Selective Service opinion put it.[717] It was clear that certain members of the Jehovah’s Witnesses ‘by reason of the time which they devote, the dedication of their lives which they have made, the attitude of other Jehovah’s Witnesses toward them, and the record kept of them and their work, are in a position where they may be recognized as having a standing in relation to the organization and the other members of Jehovah’s Witnesses similar to that occupied by regular or duly ordained ministers of other religions.’[718] The Jehovah’s Witnesses assisted in this process by providing to the American Selective Service a list of full-time ministers and persons subject to Selective Service living in the various American Bethels.
6 The status of all the other Jehovah’s Witnesses was a question left to the determination of the local selective-service board ‘based on whether or not they devote their lives to the furtherance of the beliefs of Jehovah’s Witnesses, whether or not they perform functions which are normally performed by regular or duly ordained ministers of other religions, and, finally, whether or not they are regarded by other Jehovah’s Witnesses in the same manner in which regular or duly ordained ministers of other religions are ordinarily regarded.’[719] American selective-service authorities appreciated that no two religious organizations were the same, and that the criteria applied to ministerial determination for one sect did not necessarily apply to another. For example, selective-service boards were advised to consider the historic nature of the ministerial function in the church of each applicant for ministerial recognition. ‘In some religious organizations both practice and necessity require the minister to support himself, either partially or wholly, by secular work.’[720] Moreover, selective-service boards were instructed not to place any weight on documents, or lack of documents, indicating ministerial status. This was so because the ministerial exemption was a statutory right, and the only job of the boards was to determine whether or not a certain person was a minister, not whether he had a letter designating him a minister. The Americans succeeded in developing a test for ministerial exemption that did not depend upon the application of conventional norms and definitions of minister to the unconventional Jehovah’s Witnesses. This did not mean that the end result was much better than that reached in Canada. In fact, it was much worse.
7 There were so many Jehovah’s Witnesses who claimed ministerial status but who were employed during the day at some secular pursuit that the selective-service boards soon became clogged with their exemption applications.[721] These boards were advised to take special care in applying the ministerial exemption tests to the Jehovah’s Witnesses because of the large number claiming to be ministers.[722] Members of the Bethel family were virtually guaranteed exemption, and so were Jehovah’s Witness Pioneers, who were persons who had no secular employment and who spent all of their time spreading the word of God. The exemption applications of all others were to be determined on a case-by-case basis. This led to very different results.[723]
8 Some Jehovah’s Witnesses whose claims were rejected found themselves severely beaten in military stockades and sentenced to long terms in solitary confinement.[724] All other Witnesses who were refused the ministerial exemption were either classified as conscientious objectors and ordered to report for work of national importance at one of the civilian camps or ordered to report to a military institution for induction and training. In contrast to their Canadian brethren, American Jehovah’s Witnesses refused to accept alternative-service work. They had no intention of voluntarily agreeing to place themselves in camps effectively run by representatives of the United Religious Groups.
9 At first there was no alternative because there were no government camps; all the camps were operated by one or another religious group. That situation subsequently changed, but the change did not affect the Jehovah’s Witnesses, since the American brothers were opposed to all forms of service, alternative or not. They were prosecuted because they refused to report to whatever civilian public-service camp they had been assigned to (or to some branch of the military if their claim to conscientious objection had been refused). Apparently most Jehovah’s Witnesses in the United States submitted to physical examination and classification. It was when their request for ministerial exemption was refused that they refused to report for work of national importance or, in the rare cases where the conscientious-objector status had not been accepted, to a military camp for induction into the ranks. All together, more than five thousand American conscientious objectors were prosecuted during the war, 75 per cent of whom were Jehovah’s Witnesses.[725]
10 The technical charge was failure to report, but when the Jehovah’s Witness got to court he was faced with a serious dilemma. He could not object to his selective-service classification because there was an existing process for this kind of objection, and it required that the objector first complete the administrative process by reporting to either the camp or the military, as the selective-service board had directed. To demonstrate any acceptance of the conscientious-objector program would be to violate the covenant with God. Jehovah’s Witnesses in the United States had no more intention of completing the administrative process by reporting than did their Canadian confrères by agreeing to accept a medical examination. In any case, unless they completed that process they could not ask the court to review the classification. Only when the process was complete would the courts consider a habeas corpus application.[726]
11 The basis of the legal decisions, which effectively denied Jehovah’s Witnesses any judicial review, was the court’s typical finding that the ‘correctness of the classification made by the local draft board and the question whether the board acted in an arbitrary or capricious manner are not defenses to a prosecution under the Act for a failure to comply with the board’s order.’[727] It was ironic, for the person could not follow the ordinary process, because he had scruples that forbade him from doing so, and this was exactly what the legislation was there to protect. In one case the court took note of this fact and observed that it might be that Congress had ‘unintentionally deprived persons in the position of the defendant of the benefit of the writ of habeas corpus unless they abandon the very conscientious scruples which they are seeking to have recognized … If so, their very appeal must be to executive clemency or legislative action failing which they must be prepared to endure the suffering for conscience sake from which the courts are not empowered to relieve them and which has been the common lot throughout the ages of those whose scruples have brought them into conflict with governmental authority.’[728] Attempts at arguing that the draft violated Jehovah’s Witnesses' freedom of religion as protected by the First Amendment were equally unsuccessful.[729]
12 The Jehovah’s Witnesses who were charged with failing to report were found guilty, since the sole legal question at issue was whether or not the objector had disobeyed the order to report. This was obviously more a matter of fact than a question of law. Jehovah’s Witnesses did not deny their ‘guilt’; many of them proclaimed it. All that was left to the court was to impose sentence. At the discretion of the trial judge, it could be anywhere up to five years in prison and a fine of no more than ten thousand dollars. Sentences varied greatly. The average sentence for convicted Jehovah’s Witnesses in 1944 was forty-two months. Non-Jehovah’s Witnesses convicted of exactly the same offence received in this same period sentences averaging thirty-four months. As a general matter, sentences were highest during active periods of the war and lowest during quiet periods. Jehovah’s Witnesses in prison were allowed to meet, and their literature, by and large, was allowed in. Very few Jehovah’s Witnesses were released on probation, especially during the first years of the war, in part because of representations against their probation from the American Legion. After Japan surrendered, applications for parole received a more sympathetic hearing, although some parole boards precluded any applications from succeeding by making it a condition of parole that the parolee give up his Witness work. The alternative-service camps in Canada may not have given Canadian Jehovah’s Witnesses the freedom they yearned for, but they were certainly a step above American prisons.
13 At the end of the war there were three thousand conscientious objectors serving time in American prisons, most of whom were Jehovah’s Witnesses. One year later, two thousand were still incarcerated, and by the end of 1946 there were five hundred left, all but fifty of whom were Jehovah’s Witnesses. Numerous applications for amnesty were made to President Harry Truman by countless conscientious objectors and groups representing them, and the Jehovah’s Witnesses made representations too. On 23 December 1946 the White House announced that there would be no general amnesty for conscientious objectors, but that individuals could apply to an amnesty board, which had been formed to hear their applications. In general, Jehovah’s Witnesses were rarely pardoned; the few exceptions were where the amnesty board concluded that an individual’s local board had inconsistently applied the ministerial exemption.
14 In the United States, as in Canada, the Jehovah’s Witnesses did not leave the administrative actions unchallenged in court. There was no real legal issue about the right of the state to conscript, for that law had been settled for years. Quickly settled in law were the limits of judicial review of selective-service-board decisions. A great number of cases were heard, but only two are important. The first of these was Nick Falbo v. United States.[730] Falbo was a Jehovah’s Witness convicted for failing to report for work of national importance, as ordered by his local selective-service board. His case made it to the U.S. Supreme Court in November 1943, and that court decided the following January that Falbo, and by implication all other Jehovah’s Witnesses, had no right to ask the court to judicially review his selective-service-board classification in a criminal prosecution for violation of an order to report to one of the work camps. An obvious and explicit consideration of the court was that there be no litigious interruption of the important induction process.[731]
15 This restrictive interpretation was broadened in the second important case involving William Murray Estep, who, like most Jehovah’s Witnesses, refused to report for military induction. He was charged, went to court, and tried to bring into issue the failure of his local selective-service board to classify him as a minister. In November 1945 the case was heard by the U.S. Supreme Court, which approved the existing practice and statute limiting the jurisdiction of the lower courts to review the bases upon which the selective-service boards came to their decisions. Simply put, the courts were not to weigh the evidence to determine whether or not a classification made by a local board was justified. However, because of the finality of the classification provision of the Selective Training and Service Act, the courts could consider, when a registrant was charged with failure to obey an induction order, whether the board acted within its jurisdiction in its initial classification. This did not mean that under this interpretation of the law all Jehovah’s Witnesses would be classified as ministers, but it did mean that Witnesses could challenge the initial classification order without taking the next administrative step. The only problem was that by the time this decision was released the war was over.[732] As Hayden Covington, who argued both the Falbo and Estep cases, said, it ‘was too late to help the 4,500 men who had gone to prison without a right to be heard.’[733] The issue of what Jehovah’s Witness entitlement to the ministerial exemption was would not be settled for years.[734]
16 In some respects the American ministerial-exemption regulations were much broader than their Canadian counterpart. The guidelines issued by the director of selective service on what constituted ordination, and the suggestion that the question of who was a minister was not one of general acceptance but one requiring individual investigation, are examples of that. However, American Jehovah’s Witnesses did not have their ministerial-exemption claims recognized any more often than did Canadian Jehovah’s Witnesses. The very way in which the American system was structured led to most Witnesses performing no alternative service at all, but rather spending long periods of time, at great social cost, in federal prisons. The system may have served the needs of America’s historic peace churches and the odd objector who developed conscientious scruples on his own, but it completely failed to meet the needs of Jehovah’s Witnesses or of those who believed that any compulsion, even an order to report, was a violation of conscience. Sincere religious beliefs, even the unusual and unorthodox, deserve searching consideration, not, unless they cause harm to others, imprisonment. On balance, the Canadian system had its deficiencies, but the American one was much worse.
17 Paradoxically, the Allied nation most affected by the war, Great Britain, had the most humane conscientious-objector program. That is not to say, however, that Witness claims for ministerial exemption received anything but short shrift. On 25 May 1939, the Military Service Act 1939 became law. It provided for three years of enforced enlistment of British subjects, ages twenty to twenty-one, resident in Great Britain. On 3 September 1939 this act was repealed and replaced by the National Service (Armed Forces) Act, which for the duration of the war gave the government power to call up men between the ages of eighteen and forty-one. In April 1941 the National Service Act instituted conscription for civil defence and provided for national registration of men above the military age and women for employment in essential services.[735]
18 The following December another National Service Act was passed extending the scope of the first act and providing, for the first time in British history, for the conscription of women. Unmarried women, between the ages of twenty and thirty-one, who were not caring for a child under the age of fourteen were required to serve in an auxiliary military service, a civil-defence force, or a war industry. Supplemental defence orders required the registration of young people over the age of sixteen, and also provided for the direction into civil-defence and war industries of many persons not subject to military conscription.
19 By the 1939 legislation a separate register for conscientious objectors was established, and independent local tribunals were formed to pass upon the claims of those seeking conscientious-objector status. A person could conscientiously object for any reason, and if his claim was accepted he would be exempted in one of three ways. The first was unconditionally, which meant that that person was not subject to any service obligations during the war. The second was conditionally, which meant that the person could be directed to civilian work, and the third exemption provided for the person’s registration as someone liable to be called up for service but for non-combatant duties. In Great Britain, alternative-service work included coal mining, food distribution, hospital work, and social-welfare and relief work. Non-combatant corps were established for conscientious objectors subject to military service, including special medical corps and the royal army pay corps.
20 Applicants aggrieved by the disposition of their applications could appeal to the appellate tribunal, and the minister of labour, who was responsible for the conscientious-objector tribunals, could also appeal a decision. As in the United States, the decisions of the local tribunals, as well as those of the appellate tribunals, were protected by a strong privative clause limiting the grounds for judicial review.
21 There was more to the British scheme than this, but in sum it can be fairly said that Great Britain had the most liberal and generous approach to persons with conscientious objection to war. The British have a historical respect for conscientious objectors, in part because of a deep-rooted pacifist tradition, and in part because of a greater respect for individual eccentricity. But as was the case everywhere else, there were limits, and one of those limits was the recognition of Jehovah’s Witness claims to ministerial exemption. The British, like the Americans and the Canadians, drew the line at this demand and said no.
22 The ministerial-exemption provision in the British legislation was similar to the Canadian provision. There were two prongs to the test: first, that the organization in question be a religious denomination; and second, that the applicant requesting exemption be a regular minister of that denomination. As the British Ministry of Labour saw it, even if the first condition was met by Jehovah’s Witnesses, the second was not. ‘Even if the Society could be regarded as a religious denomination,’ an official document declared, ‘the view is taken that a person, in order to be regarded as a “regular” minister of a religious denomination, must be empowered to perform and must regularly carry out all the rites and ceremonies of the denomination which fall to be performed by a minister.’[736]
23 This left the Jehovah’s Witnesses out. ‘The ministers or “servants” of this Society could not be regarded as regular ministers,’ the document continued, because ‘they cannot perform certain rites without being specially appointed for each occasion … [and] … in any case no clear distinction in principle can be made between the general body of Witnesses and those Witnesses who are selected by the association for special authority inasmuch as it is said that all Witnesses are ordained by God, being appointed by the Association to act as “ministers of the Gospel” are equally qualified to perform any rites if they are specially authorized to do so.’ Since there was no distinction between clergy and laity, as all members were both, none could be regular ministers, as regular ministers were persons who occupied positions of leadership, and in the Witness organization such persons did not exist. Moreover, to exempt one of these applicants would be, it was feared, to exempt them all. This went far beyond the purpose of the ministerial-exemption provision, which was aimed at providing for continuity in religious leadership, not the exemption of entire religious groups, a result that British authorities were ‘for obvious reasons … reluctant to accept.’[737] Jehovah’s Witnesses in Great Britain either accepted their status as conscientious objectors or went to jail.
24 In Canada, the United States, or Great Britain, the Jehovah’s Witnesses experienced the war the way they did primarily because they wanted something no state believed it could give when it is fighting for its very existence: blanket exemption from the responsibilities of living under the protection of the state. Thus, if the ministerial exemption had to be construed by government officials and the courts to exclude Jehovah’s Witness ministers, some of whom, such as Leo Greenlees, were entitled to the exemption in the regulations, then so be it. The alternative, it was believed, would surely have been much worse.
25 In Canada, the Jehovah’s Witnesses suffered from official comparison with the more agreeable Mennonites. Their refusal to compromise, or, as one historian of conscientious objection has described it, ‘to play the game,’[738] determined government policy towards them. The government, in its treatment of conscientious objectors, was probably not guilty of excessive zeal and insufficient consideration. On the whole the conscientious-objector administration that was established was sensible and fair. And it provides an interesting contrast to the government’s treatment of ethnic groups, notably the German, Italian, and Japanese. In conscientious objection the state showed that in a democracy at war some fundamental differences could be tolerated without sacrificing the overriding interests of the state. This suggests that other fundamental differences, such as those presented by the Jehovah’s Witnesses, could have been tolerated as well.
26 The episode is also instructive for another reason. If, on balance, government policy towards conscientious objectors as a group was benign, that was the result of the largely favourable relationship that developed between Mennonite leaders and government officials. There is no doubt that the result of this relationship was the establishment of a conscientious-objector program perfectly suited to the needs of the Mennonites and most other conscientious objectors. The Jehovah’s Witnesses, by contrast, had no such favourable relationship with the authorities. They did not vote, they were disinclined to work, and they were shrill and unpleasant. They also claimed that all their members were ministers, and this was a claim the authorities refused to accept. Personality, as well as principle, determined the treatment the group received, and some injustice was the result. Unfortunately, it was also personality, and not principle, that would determine the future treatment the group would receive.
27 ‘In the event of another war it is difficult to suggest what action should be taken with this group if they continue in their present attitude that man’s laws are to be obeyed only when, in their opinion, they do not conflict with what Jehovah wishes them to do,’ the alternative-service-branch final report declared. ‘The Branch,’ it continued ‘is quite definitely sure that this group are not conscientious objectors and is of the opinion that they should not be so classed in the event of another war.’[739] What, if anything, had been learned?
8. The Framework of Freedom
1 The end of the war in Europe, in May 1945, had no immediate effect on the Jehovah’s Witnesses. Two of their corporate bodies remained banned, and in Hamilton their children were still being kept out of school. By the time Japan surrendered in August, no Witness organization remained proscribed, but even the Ontario Court of Appeal decision in their favour in the Donald case was not enough to get Witness children into Hamilton’s public schools. It took a decision of the Supreme Court of Canada refusing the Hamilton Board of Education leave to appeal before the Donald boys, and the other Witness children in Hamilton, were allowed to return to the classroom. And it was not until the summer of 1946 that Witness men who were postponed as conscientious objectors were released from their alternative-service camps. The Canada they returned to was a nation transformed by the events of the war.
2 Government intervention in the Canadian economy during the war had reached a high-water mark, and passage during the war years of a constitutional amendment giving Ottawa legislative power over unemployment insurance set the framework for a new and expanded post-war role for the federal government. This shift from a laissez-faire state suited the CCF perfectly, for from its earliest days the party was imbued with the spirit of the social gospel. The war revived many CCFers' millenary beliefs and hopes for a more just, equitable, and prosperous post-war world. ‘It brought convictions to many that governments, which had shown such increasing expertise and efficiency in fighting the war, would be equally capable of saving the peace and building the just society of the future’[740] — and, needless to say, avoiding another post-war depression.
3 These were views many Canadians found attractive, and discussion of these ideas was part of a fertile and important debate about the kind of post-war society in which Canadians wished to live. The rising public clamour for social and economic reform could not be ignored. Prime Minister King realized that the socialists were on to something, and he had no intention of letting them cut into Liberal-party support.
4 Indeed, even before the war was over the federal cabinet moved on the social front. More than one million men and women, out of a population of just over twelve million, had served in uniform. It was intended from the start of the war to demobilize these troops at the earliest possible moment, and to assist their re-entry into Canadian society the Department of Veterans Affairs was established. It would keep the returning soldiers happy with pensions and benefits along with a number of rehabilitation and re-establishment programs. Another new department, National Health and Welfare, had as its mandate the promotion and preservation of health, welfare, and social security of Canadians, while the Department of Reconstruction directed readjustment of the economy through the reconversion of industrial plants to peacetime needs. The Canadian economy had expanded at an unprecedented rate during the war, and there was a fear that the end of the war would lead to an economic down-turn. The fear turned out to be groundless, for by and large the economic prosperity continued. This too affected the social and political climate.
5 The federal government was committed, whether out of politics or principle, or perhaps both, to a new social order, and it repeatedly said as much. In the January 1944 Speech from the Throne, for example, the governor general declared that both social security and human welfare ‘should be advanced as rapidly as possible.’[741] In particular, the government promised to seek agreement with the provinces for health-insurance programs and for a more generous national old-age pension.
6 National health insurance, like more generous old-age pensions, was a formerly unpopular program whose time had come. The time of the CCF also seemed to have come. Although it failed to come to power in a close election in Ontario, it achieved the seemingly impossible in the June 1944 Saskatchewan election. Under the leadership of veteran social democrat T. C. Douglas, who had left Ottawa for Regina, the CCF won forty-seven of fifty-two seats. In response, the federal Liberals' leftward drift accelerated. A federal election was called in 1945. ‘Build a New Social Order’ was the Liberal campaign slogan, and it just succeeded. The prime minister lost his own seat and had to seek another, while his party came back to power with only a slim majority.
7 Canadians emerged from the war with a stronger sense of themselves, and Canada was poised on the brink of major change. The fact that Canada had, on its own, declared war in September 1939 suggested that it was no longer a colony but a nation. The huge contribution of labour, money, and materials it made to the successful prosecution of the war proved this was true. Indeed, the country’s change in status could be seen in myriad ways, from the upgrading of the legation in Washington to a full-fledged embassy with a Canadian ambassador, to Canada’s participation, which was second to none, in the creation of the United Nations. There was great optimism that the UN would succeed where the League of Nations had so obviously failed.
8 There were other changes as well. The war brought women into the work-place, and when it ended, many of them stayed on the job. There were new demands, not just for social welfare, but for social services. Urbanization increased, and post-war immigration began to turn Canadian cities into active and vibrant places. While many of the old problems persisted, such as the two solitudes of English and French, Mackenzie King had brought the country into and out of the war in one piece. And that was the singular accomplishment of his long and fruitful career. The attainment of national unity remained the central goal of Canadian political life, but in the immediate post-war period there was more that united Canadians than kept them apart. The emergence of the United States as the pre-eminent world power also had something to do with this. At one time, the United Kingdom stood as a counterweight to the influence in Canada of the United States. However, the war left Britain exhausted, and what balance Britain had once provided was gone. Defining their relations with the Americans became a Canadian preoccupation, if not the major one.
9 That Canadians considered themselves distinct was reflected in calls for a Canadian flag, to replace the British Ensign, for a Canadian national anthem to replace ‘God Save the King,’ and for Canadian, not British, citizenship. These three post-war demands would have been considered radical before the war, but afterwards they were indicative of the awakening of a new national identity. A Canadian citizenship act came first; in time, the anthem and flag followed.
10 Canadians also became interested in human rights, and that term, as well as the term ‘civil rights,’ entered the popular vocabulary.[742] The world recoiled in horror as the full magnitude of Nazi war crimes became known. Before the war, Canadian Fascists had been permitted to spread their message of hate reasonably unhindered. The Holocaust demonstrated the evils of discrimination. Adrien Arcand, leader of the National Unity Party, emerged from internment in July 1945. He attempted a come-back and even ran for Parliament. But the public was largely uninterested in him and in his views. Fascist organizations would never disappear, but they were no longer a threat or viewed as such.[743]
11 Public defamation of a race was unacceptable after the Holocaust. Racial discrimination, indeed discrimination of any kind, could have no place in the post-war world. The UN began to draft the Universal Declaration on Human Rights. It was to be a bill of rights applicable to everyone in the world and binding on every government. The UN was not the only body asked to consider a bill of rights in the aftermath of the war: so too was the Parliament of Canada.
12 On 10 October 1945, CCF member Alistair Stewart gave the House of Commons notice that he intended to introduce a motion calling for the incorporation into the BNA Act of a bill of rights ‘protecting the minority rights, civil and religious liberties, freedom of speech and freedom of assembly, establishing equal treatment before the law of all citizens, irrespective of race, nationality or religious or political beliefs and providing necessary democratic powers to eliminate racial discrimination in all forms.’[744] The motion, like the notice, did not lead to any immediate results, but as numerous religious, ethnic, and labour organizations made discrimination their issue, legislation to combat overt racism became the order of the day.
13 Ontario led the way with passage in 1944 of an anti-discrimination act by the new Conservative government. John Glass, the MPP for the Toronto riding of St Andrew, inspired the initiative with a private-member’s bill, but his Discrimination Prevention Bill died on the order paper. However, the support it did receive from, among others, J. B. Salsberg and A. A. MacLeod, two recently elected communists running under the banner of the Labour Progressive Party, was enough to convince Premier George Drew that some action was in order, parliamentary arithmetic being what it then was.[745]
14 In the result, the Racial Discrimination Act was introduced and passed in 1944.[746] The act prohibited publication of advertisements, publications, and notices that indicated an intention to discriminate, in employment or otherwise, by reason of race or creed. The legislative initiative was sharply criticized in debate, and in petitions and resolutions that made their way to Drew’s office, as an abridgment of the right to free speech. This criticism was not without foundation. Free speech, however, had limits. A balancing of interests was taking place, and discriminatory signs were a limit to freedom of speech.[747]
15 The Racial Discrimination Act was, however, subject to some serious limitations. First of all, the consent of the attorney general was a necessary pre-condition to prosecuting an alleged offender under the legislation. Second, the fines provided for in the act were so small as to be little more than a licence to discriminate, assuming that consent was given for a prosecution to take place. It quickly became clear that the act was not the beginning of an enlightened era of law-making in the province. It proved instead to be the apex of the Drew government’s political liberalism. Significantly, when his party was returned to power with a majority government in 1945, no more civil-rights measures were passed.[748]
16 Passage of the Racial Discrimination Act did not bring discrimination in Ontario to an end. Discrimination in employment, housing, and access to public accommodation and facilities continued. In Dresden, Ontario, for instance, blacks were not served in the town’s restaurants and were just as likely to be run out of town as refused a meal. Their plight received considerable public attention and sympathy, particularly in the Toronto press, but they were still not being served and would not be for years. What was different was that many Canadians now said that this situation was wrong, and had to change. Canadians were also more than a little interested in continuing parallel developments in the United States.
17 A presidential order of June 1941 prohibited employment discrimination and established the Fair Employment Practices Committee. Two years later, in May 1943, another executive order beefed up the earlier provision. And then on 6 December 1946, President Harry Truman appointed fifteen men and women to a special committee on civil rights. That committee gathered evidence and held hearings before submitting a report to the president on 29 October 1947. Only twice before in American history had the nation reviewed the status of its civil rights. The first scrutiny was in 1791 when the U.S. Constitution was ratified, at which time the first ten amendments, the Bill of Rights, were passed. The second time was after the Civil War, which led to further amendments to the Constitution. The hard-hitting report of the Fair Practices Committee noted the lacuna in the American legislation and made many positive recommendations for the strengthening of federal and state civil-rights enforcement mechanisms.[749] Discussion of civil rights was in the air. In 1947 in Saskatchewan it became more than academic. The social democrats in Saskatchewan introduced and then passed the Saskatchewan Bill of Rights. A Canadian province now had meaningful human-rights legislation on the books. Attention turned to Ottawa and to demands that the Parliament of Canada follow suit.
18 One of the main proponents of a bill of rights for Canada was John Diefenbaker, the ambitious Conservative MP. As a youth, Diefenbaker felt persecuted about his German-sounding name, and he had a sincere concern for the underdog.[750] In May 1946 he made his first proposal in the House of Commons for a bill of rights. Clauses guaranteeing freedom of speech and religion, a right against self-incrimination, and no abrogation of the writ of habeas corpus except by Parliament were all among the features of the first Diefenbaker bill. (This was the same man, of course, who had told the House of Commons during the early days of the war that habeas corpus had not been suspended, but had merely been placed in ‘abeyance.’) Diefenbaker’s proposal, like the one Stewart earlier made, died on the order paper, but the idea was here to stay.[751]
19 The fundamental freedoms set out in the 1941 Atlantic Charter — freedom of speech, freedom of worship, freedom from want, and freedom from fear — were incorporated into the articles of the United Nations. Following three years of discussion by the General Assembly of the UN, the Universal Declaration of Human Rights was adopted at a meeting in Paris in 1948. John Humphrey, a McGill University law professor, was one of the principal architects of the declaration, which stated in its preamble that ‘recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world,’ and that ‘disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind.’ The declaration went on to list a number of rights, including the right of all to life, liberty, and the security of the person; to equal treatment before the law; to a fair trial; to freedom of movement; to a nationality; to freedom of thought, conscience, and religion; to own property; to freedom of opinion and expression; to peaceful assembly and association; and to periodic and genuine elections by universal and equal suffrage. Behind all this activity was a belief that for there to be peace, every person must be guaranteed these rights.
20 The UN declaration spawned other conventions such as the Convention on Racial Discrimination and the European Convention on Human Rights. Such institutions as the UN and such declarations as the one on human rights could, many believed, make the world a better place in which to live. These international developments continued to be paralleled on the domestic scene. Demands for a Canadian bill of rights had grown, and one reason for the increase in demands was the treatment of Jehovah’s Witnesses in Quebec.
The war without mercy
1 With the defeat of Maurice Duplessis and the Union Nationale as a result of the intervention of Ernest Lapointe, P. J. A. Cardin, and Chubby Power in the October 1939 provincial election, the Liberal party’s leader, Adelard Godbout, became premier.
2 While in opposition, a number of Liberals had attacked the Padlock Act, expressing serious reservations about the wide powers given to the attorney general. This perspective changed, however, once the Liberals moved to the government side of the Legislative Assembly. The explanation, as Duplessis, Lapointe, and Adelard Godbout knew, was that the act was extremely popular in the province. The ‘opposition of the local CCF leader, the president of Le Devoir, and a couple of Jewish lawyers and their friends was a great political asset’ to Duplessis and to electoral success at the polls.[752] The Padlock Act might not have been used, but Godbout had no intention of attempting to repeal the law, for to do so would have put him at some political peril.
3 There was no doubt that Godbout had come to power on the tail of the federal Liberals, and there was equally no doubt that, as a result, the premier was politically indebted to Ottawa. As the war progressed both he and his government suffered as a result of their association with the federal government. There was the matter of heavy taxes, rationing, and price and wage controls, all of which Quebeckers, not enthusiastic about the war in the first place, accepted only grudgingly. More important, however, was Godbout’s support on the ‘Yes’ side during the national plebiscite called to release King from his pledge not to introduce conscription. In contrast, Duplessis announced that he was voting ‘No,’ a far more popular and politically expedient decision. Indeed, the federal association that had initially propelled the provincial Liberals to power, by the time a provincial election was required, had become a liability. Godbout could not, despite his valiant efforts, remove the blot from his political escutcheon.
4 Cardinal Villeneuve again supported Duplessis, who promised to utilize the Padlock Act, and so did most of the Roman Catholic hierarchy in Quebec. Between Godbout and his anti-clerical Liberal entourage, and Duplessis and the more trustworthy Union Nationale, it was far from a close race for episcopal support. Officially the church remained neutral, but unofficially its choice was clear, and on 8 August 1944 when the people went to the polls Duplessis returned to power with a large majority of seats. Duplessis began a political epoch in Quebec while next door, in Ontario, a Conservative-party dynasty had just begun. The Conservatives would keep their party fresh by periodic leadership changes, while in Quebec Duplessis would remain premier of the province until his death on 7 September 1959.[753]
5 Duplessis ran the province in an authoritarian manner, but it was in his dual role as premier and attorney general that he stamped his pattern on the government. Duplessis had two overriding and complementary political objectives: first, to resist any attempt by the federal government to intervene in Quebec affairs; and second, to promote provincial autonomy in the face of federal intervention, real or imagined. Paradoxically, however, in the pursuit of these goals Quebeckers lost out. Every other province, for example, received generous federal financial contributions to education. Duplessis, claiming that federal funding was an intrusion into provincial affairs, rejected federal assistance. In cause after cause Duplessis was there to ‘protect’ French-Canadian ‘rights.’ The Padlock Act was just one of many instruments in Duplessis’s arsenal for doing so.
6 French-Canadian attitudes towards communism did not soften between 1939 and 1945 as English-Canadian ones had. The events during the Spanish Civil War as well as the news of mass arrests of bishops, priests, and prominent lay church leaders following the Soviet occupation of Hungary and Poland provided compelling evidence of what communists were really like. A post-war poll reported that four out of five Quebeckers believed communism was a ‘serious threat’ to Canada.[754] And upon his return to power, Duplessis began an attempt to eradicate communist influence in Quebec life. With the Padlock Act as the principal tool, the premier and attorney general launched a campaign against the Labour Progressive Party, as the Communist party was now known. LPP premises were seized and padlocked, as were the premises of LPP printers and activists. Anti-communist trade-union legislation was enacted, and the government refused to certify unions in which LPP members played an active role. Politically, Duplessis made every effort to associate, in the public mind, his political opponents with the communists; Adelard Godbout was reviled for having been soft on communism as he had made no attempt to enforce the Padlock Act. The federal government was criticized because the National Film Board had sponsored wartime documentary films favourable to the Soviet regime. Equally troubling, in French-Canadian eyes, was Ottawa’s refusal to accord diplomatic recognition to the Vatican while it maintained diplomatic relations with a number of countries that had come under communist rule. LPP support for Liberal candidates in certain constituencies in which the communists were not themselves running for office also raised suspicions about the existence of a secret communist-Liberal pact.[755] The end result was that many Quebeckers came to see the Union Nationale as a bulwark against the forces of subversion. Fighting the communists, as well as associating the Liberals with them, was an indispensable ingredient to Duplessis’s overall political success. A parallel campaign against the Jehovah’s Witnesses was equally important. Duplessis referred to it as his ‘war without mercy.’
7 At the end of the Second World War there were about ten thousand Jehovah’s Witnesses in Canada, but fewer than five hundred in Quebec. The people of Quebec, the Jehovah’s Witnesses believed, were ‘sitting in darkness’ and were in urgent need of their attention.[756] The Jehovah’s Witnesses believed that Roman Catholics in Quebec were responsible for the wartime ban, and they were intent in the post-war period on revealing the hierarchy as an iniquitous institution. They also knew that Quebec, more than any other place in Canada, was hostile to their work, although whether or not this increased their enthusiasm for seeking converts in Quebec is difficult to say.[757]
8 The sedition provisions of the Criminal Code were put to as good use suppressing Witness activities after the Second World War as they had been before it. But section 133 was not the only tool available to prevent the Jehovah’s Witnesses from going about their work. Many towns and municipalities also passed by-laws making it an offence to distribute literature without a licence. Invariably, these by-laws were intended to keep Jehovah’s Witnesses off city streets, but they were also employed from time to time to keep Baptist missionaries, Seventh-day Adventists, and assorted others from spreading their equally unwanted messages. In the years before the Second World War, approximately one hundred Jehovah’s Witnesses were arrested every year. During the war these figures, as might be expected, increased. But it was after the war that the number of arrests showed exponential growth. More than eight hundred charges against Jehovah’s Witnesses were filed in 1946. The explanation for the increase was simple enough. Duplessis believed that Witness activity in the province was a deliberate assault on values and virtues Quebeckers held dear. And like just about everything else, Witness conduct could be reduced to a question of provincial rights. If the federal government and the RCMP refused to discipline a seditious group that sought to destroy the Roman Catholic church then Duplessis, as attorney general, had no option but to intervene and defend the faith.[758] As a result, he encouraged local authorities and provincial police to stamp out the sect.
9 The Jehovah’s Witnesses did not respond to what they believed was another Satanic attack on God’s work by turning the other cheek. Instead, they entered the lion’s den. One of their ways of doing so was in print. Quebec’s Burning Hate was issued first. The full title of the short leaflet, issued in the fall of 1946 in a first printing of 1.5 million copies, 500,000 of which were in French, was Quebec’s Burning Hate for God and Christ and Freedom Is the Shame of All Canada. The tract painted a sordid and disturbing tableau.
10 Since the end of the war, Quebec’s Burning Hate reported, the Jehovah’s Witnesses had been the subject of province-wide persecution. From one parish to another, Witnesses had been beaten, arrested, and sentenced to jail. Civil authorities were involved, either by refusing Jehovah’s Witnesses police protection or by passing by-laws directed against the sect, making distribution of their literature without a permit an offence, or usually by both. The church was behind it, the leaflet charged, goading the mobs and the local councils on, and sometimes parish priests led their flock in driving Witnesses out of town.
11 The Jehovah’s Witnesses had not been sitting idly by. Montreal and Verdun were centres of activity against the sect, and the by-laws prohibiting Witness activity were challenged in court not long after the end of the war. Justice C. Gordon MacKinnon ordered writs of prohibition against the recorder’s courts (which were equivalent to magistrates' courts elsewhere in Canada), in the two jurisdictions. Notwithstanding MacKinnon’s finding that the by-laws in question were unconstitutional for their interference with free worship, charges continued to be laid. And the courts convicted more often than not.
12 The Quebec judiciary was, according to Quebec’s Burning Hate, dominated by the church. Therefore, it was no accident to see the crucifix installed in all the province’s courts, in the Legislative Assembly, and in government buildings throughout the province. The cardinal’s personal chair, alongside that of the lieutenant-governor in the Legislative Assembly, was just further evidence of the diabolical church-state link. The province was priest-ridden and the priests, working in concert with the police and local authorities, were waging war against God, Christ, and Freedom, meaning, of course, the Jehovah’s Witnesses. Quebec Catholics were not serving God by mobbing Jehovah’s Witnesses; they were merely serving corrupt priests and dooming themselves to damnation. ‘Quebec,’ the leaflet concluded, ‘you have yielded yourself as an obedient servant of religious priests, and you have brought forth bumper crops of evil fruits.’[759] Soon after the appearance of Quebec’s Burning Hate a new wave of arrests began. Typical were the cases against Charles Elvey, a twenty-two-year-old English-speaking Jehovah’s Witness from Montreal, who was tried by an English-speaking jury, and Mrs René Ouellette, a French-Canadian Witness convert, who was tried by a French-speaking jury.
13 Charged with seditious libel for distribution of the leaflet, Elvey requested a jury trial. He was represented by A. L. Stein, who told the jurors that there were only two points for them to consider. First, whether the accused had published a seditious libel. According to Stein, he had not. And second, that even if he had, the accused was saved by the good-faith defence provision of the Criminal Code.
14 The presiding judge was Justice Wilfrid Lazure who, before sending the English jury off to consider its verdict, cited two paragraphs from the leaflet: ‘Before hot denials and protests and false countercharges boom out from the priestly keepers of Quebec Province and whip up unreasonable frenzy, calmly and soberly and with clear mental faculties reason on the evidence in support of the above-headlined indictment. Words in lip service to God and Christ and freedom can be as cheap as the free wind it takes to utter, but actions speak louder to reasoning minds,’ and ‘Quebec, Jehovah’s Witnesses are telling all Canada of the shame you have brought on the nation by your evil deeds. In English, French and Ukrainian languages this leaflet is broadcasting your delinquency to the nation. You claim to serve God: you claim to be for freedom. Yet if freedom is exercised by those who disgrace you, you can crush freedom by mob rule and Gestapo tactics.’
15 Justice Lazure then reminded the jury that the leaflet had been published in an edition of more than 1.5 million copies and asked the jury if such ‘tactics’ were not deliberately used to arouse ill-will and hatred among different classes of the people. The accused were, as Stein earlier said, entitled by law to criticize in good faith, but the judge then went on to note that Catholics, Protestants, Anglicans, and Jews had been living peacefully together in Quebec for years without engaging in ‘any such activities.’ The message to the jury could not have been made more clear. The jury, however, acquitted the accused after only thirty-five minutes of deliberation.
16 In contrast, when Mrs Ouellette was tried she was convicted on exactly the same charge, arising out of exactly the same incident as the one in which Elvey had been acquitted. Elvey and Ouellette had distributed the same leaflet, Elvey’s in English and Ouellette’s in French. Mrs Ouellette was sentenced to three months in jail. Typically, English juries acquitted while French-speaking, Roman Catholic juries convicted persons accused of similar if not identical crimes, often in adjacent courtrooms.[760] Equality under the law depended on whether you were English or French.
17 If the Jehovah’s Witnesses expected that Quebec’s Burning Hate would bring what can only be described as religious persecution to an end, they soon found out otherwise. Premier Duplessis described the leaflet as ‘intolerable and seditious.’[761] The Jehovah’s Witnesses saw things differently. ‘The Hierarchy,’ the Witnesses declared, ‘set up a howl of rage and counter-attacked; not with denial of the disgraceful account of her actions, but with her favourite weapons of slander, lies, violence and the pressure of Quebec’s corrupt political machine upon the law enforcement bodies.’[762] In sixteen days, 260 arrests were made in the Montreal area alone, although not one arrest was made in any part of Canada outside of Quebec. ‘You bunch of crazy nuts,’ one judge boomed at some arrested Jehovah’s Witnesses from the bench, ‘could at least have waited until the appeal of your judgment had been heard before resuming your activities.’[763] The Jehovah’s Witnesses had no intention of doing so, and another leaflet, Quebec: You Have Failed Your People, this time in an edition of almost two million, was issued and distributed throughout the country. Readers could not help but be impressed with the case the Jehovah’s Witnesses had made in detailing their persecution. All were invited to write the prime minister of Canada and tell him as much. Shouldn’t Canadians, the leaflet asked, have freedom of religion?
18 The answer to that question was that freedom of religion was a matter of degree. B. K. Sandwell, the editor of Saturday Night magazine, who had one of the best civil-liberties records of the war, summed up his views at the annual conference of the Canadian Institute of Public Affairs, held each year at Lake Couchiching. Sandwell wondered whether the Jehovah’s Witnesses had any right to ring doorbells and try to purvey their ideas. He told the other delegates to the conference that any opinion should be lawful provided that it neither caused a nuisance to others nor was likely to lead to the commission of an unlawful act. ‘It should be lawful to believe,’ Sandwell said, ‘that the King, the Governor-General or the Prime Minister ought to be assassinated, or that their assassination would be a meritorious act, and it should be lawful to say so in circumstances which are not likely to lead to the act being committed.’ Why Sandwell thought such activity should be lawful while proclaiming the word of God by going from door to door should not be is really quite difficult to see.[764] Sandwell believed, however, that the rights of the majority did not extend to mob action in matters of disagreement with the views of the minority.[765] The problem with the Jehovah’s Witnesses, declared F. R. Scott, was they insulted their fellow citizens ‘by calling them evil names in widely distributed pamphlets.’[766] That, succinctly put, was the issue the Jehovah’s Witnesses raised. How far could free speech and freedom of religion go?
19 Whatever the limits on these freedoms, Duplessis believed that they did not extend to sanctioning attacks on the Roman Catholic church. These attacks, not to mention the first real attempt by a religious organization to seek converts in the province, account for Duplessis’s ‘war without mercy’ on members of the sect. Between 1946 and 1953 he instigated 1,665 separate prosecutions against individual Jehovah’s Witnesses. The charges ranged from trivial disturbances of the peace, such as handing out tracts on street corners without permits, to arrests and trials for sedition, a term which Duplessis twisted to mean almost any publicly spoken criticism of the established order.[767] The result of the battle in the courts was a victory for both the Jehovah’s Witnesses and for human rights. There are a number of cases that could be considered, but three of them stand out: Boucher, Saumur, and Roncarelli.
20 Aimé Boucher, a Jehovah’s Witness, was arrested in December 1946. A farmer in the rural St Germain Parish, Boucher was charged with sedition for distributing copies of Quebec’s Burning Hate. There was a defence to the offence and Boucher relied on it. At trial he testified that he distributed the literature in good faith and in the hope that it would convince Quebeckers to stop persecuting Jehovah’s Witnesses. Boucher was, however, convicted, an almost foregone result when the trial judge neglected to instruct the jury that it was up to it to decide whether or not Boucher had acted in good faith and was entitled to rely on the statutory defence. The Court of King’s Bench denied Boucher’s appeal. A dissent in the court of the appeal gave Boucher an entrée to the Supreme Court.
21 Boucher had been arrested in 1946 and convicted in 1947. By the time his case came to the Supreme Court of Canada, that court was supreme not just in name. As of 1949, it was no longer possible to appeal Canadian decisions to the Judicial Committee of the Privy Council in Great Britain (although criminal appeals to the JCPC had not been available for many years). In the context of a sedition charge, the Boucher case raised important questions about the scope of freedom of religion and freedom of speech. And it, along with the other Witness cases that followed, illustrated that the Supreme Court of Canada, in its first decade of independence, was of first rank. Credit for that rank belonged, in large measure, to recent appointee Ivan Rand.
22 Rand was the judge who had questioned J. R. Cartwright carefully when that prominent Toronto attorney sought leave on behalf of the Hamilton Board of Education to appeal the decision in the Donald case. At that time, Rand had just been appointed to the Bench, but he brought with him the experience of a full life. The son of a railway mechanic, Rand studied law at Harvard where he became friends with Felix Frankfurter and came under the tutelage of Professor Louis Brandeis. Between 1913 and 1920 he practised law in Medicine Hat, a southern Alberta town, and then returned to his home town, Moncton, New Brunswick. A spell as attorney general of the province was enough to convince Rand that New Brunswick politics were not for him, and in 1926 he became corporate counsel to the Canadian National Railways. Mackenzie King appointed him a justice of the Supreme Court of Canada in 1943.
23 Rand immediately established a reputation for himself. He refused to give judicial approval to a government plan to deport Canada’s Japanese and his extra-judicial duties included the settling of an important labour dispute in Windsor and a leading role in the UN Special Committee on Palestine. Unlike Frankfurter, Rand was committed to judicial activism in the search for social justice, and he had no qualms about using the court in the pursuit of this goal. The Boucher case is demonstrative of this point.[768]
24 The Boucher case was actually heard twice by the Supreme Court. The first time five judges assembled to hear the case, three of whom, as indicated in their reasons for decision, would have directed a new trial, while the other two would have directed an acquittal. Moreover, the judgments gave conflicting views of the state of the law so as to make it almost impossible for a trial judge to give a good direction to the jury on retrial. Accordingly, an application was filed, requesting re-argument before the full court. It was an extraordinary application, and even more unusual was the fact that it was granted. A second decision was rendered the following year, and five of the nine judges directed Boucher’s acquittal. The decision was significant in respect of the division in the judicial ranks on the proper definition of sedition. Moreover, the case says a lot about the ability of courts to respond to social change.
25 The generally accepted definition of sedition had proved a potent weapon against the Jehovah’s Witnesses in Quebec, as it was no great task to convince a French-speaking jury that Witness literature caused disaffection or ill-will and hostility between groups of people. When heard by the five-man court, two of the judges were prepared to accept the continued accuracy of this definition, while the three other members of the court, including Rand, rejected this view. When the case was re-argued before the full Supreme Court, all but one, the Chief Justice, agreed that the definition was narrower in scope than had been previously accepted.
26 While eight of the nine judges wrote reasons for decision — multiple opinions were one of the characteristics of the Supreme Court in this period — it is fair to say that, on second hearing, the Court found that an intent to create hostility and ill-will between different classes of subjects was not enough to constitute the crime of sedition. It was an ingredient, but also necessary was an intention to incite to violence or resistance to, or defiance of, constituted authority. In and of itself, the narrowing of the definition constituted an important victory, for the earlier broad definition of sedition had proved to be an effective tool — not in preventing sedition, but in preventing Witness speech.
27 That is not to say, and no one on the Supreme Court did so, that there were not limits to free speech, for clearly there were. But the broadly worded ‘sedition’ definition could no longer be one of them. In considering the offence and its applicability to Canada, Justice Rand made one of his many great contributions to the law. Rand began by considering the facts in issue:
28 The incidents, as described, are of peaceable Canadians who seem not to be lacking in meekness, but who, for distributing, apparently without permits, bibles and tracts on Christian doctrine; for conducting religious services in private homes or on private lands in Christian fellowship; for holding public lecture meetings to teach religious truth as they believe it of the Christian religion; who, for this exercise of what has been taken for granted to be the unchallengeable rights of Canadians, have been assaulted and beaten and their bibles and publications torn up and destroyed, by individuals and by mobs; who have had their homes invaded and their property taken; and in hundreds have been charged with public offences and held to exorbitant bail. The police are declared to have exhibited an attitude of animosity toward them and to have treated them as the criminals in provoking by their action of Christian profession and teaching, the violence to which they have been subjected; and public officials and members of the Roman Catholic Clergy are said not only to have witnessed these outrages but to have been privy to some of the prosecutions. The document charged that the Roman Catholic Church in Quebec was in some objectionable relation to the administration of justice and that the force behind the prosecutions was that of the priests of that Church.[769]
29 Rand next considered the conduct of Aimé Boucher.
30 He had, Rand wrote, done nothing wrong. Boucher was ‘an exemplary citizen.’ Moreover, he was ‘at least sympathetic to doctrines of the Christian religion which are, evidently, different from either the Protestant or the Roman Catholic versions: but the foundation in all is the same, Christ and his relation to God and humanity.’[770] It did not matter to Rand that Boucher, as a Jehovah’s Witness, had different beliefs. What mattered was Boucher’s right to his expression of his Christian faith. All that was now left to determine was whether or not the leaflet Boucher distributed met the definition of sedition. In turning to that task, Rand began by placing the definition of sedition in the context of its time. It was, Rand said, an expression of eighteenth-century social assumptions, one of which was that governors of society were beyond public criticism. The nineteenth century brought with it new social assumptions, including the idea that administrators of government were servants of and owed a duty to the public. As a result, English sedition cases, after the eighteenth century, began to emphasize that incitement to violence must be part of the offence, not just criticism, whether intended or not to cause disaffection among the people. In England, the common law had evolved to the point where criticism was no longer enough to constitute the sedition offence. And in his reasons for decision Rand explained why:
31 Freedom in thought and speech and disagreement in ideas and beliefs, on every conceivable subject, are of the essence of our life. The clash of critical discussion on political, social and religious subjects has too deeply become the stuff of daily experience to suggest that mere ill-will as a product of controversy can strike down the latter with illegality. A superficial examination of the word shows its insufficiency: what is the degree necessary to criminality? Can it ever, as mere subjective condition, be so? Controversial fury is aroused constantly by differences in abstract conceptions; heresy in some fields is again a mortal sin; … but our compact of free society accepts and absorbs these differences and they are exercised at large within the framework of freedom and order on broader and deeper uniformities as bases of social stability. Similarly in discontent, disaffection and hostility: as subjective incidents of controversy, they and the ideas which arouse them are part of our living which ultimately serve us in stimulation, in the clarification of thought and, as we believe, in the search for the constitution and truth of things generally.[771]
32 Quebec’s Burning Hate was, Rand wrote, part and parcel of this democratic give and take.
33 The writing was undoubtedly made under an aroused sense of wrong to the Witnesses; but it is beyond dispute that its end and object was the removal of what they considered iniquitous treatment. Here are conscientious professing followers of Christ who claim to have been denied the right to worship in their own homes and their own manner and to have been jailed for obeying the injunction to ‘teach all nations.’ They are said to have been called ‘a bunch of crazy nuts’ by one of the magistrates. Whatever that means, it may from his standpoint be a correct description; I do not know; but it is not challenged that, as they allege, whatever they did was done peaceably, and, as they saw it, in the way of bringing the light and peace of the Christian religion to the souls of men and women. To say that is to say that their acts were lawful. Whether, in like circumstances, other groups of the Christian Church would show greater forbearance and earnestness in the appeal to Christian charity to have done with such abuses, may be doubtful. The courts below have not, as, with the greatest respect, I think they should have, viewed the document as primarily a burning protest and as a result have lost sight of the fact that, expressive as it is of a deep indignation, its conclusion is an earnest petition to the public opinion of the province to extend to the Witnesses of Jehovah, as a minority, the protection of impartial laws. No one would suggest that the document is intended to arouse French-speaking Roman Catholics to disordering conduct against their own government, and to treat it as directed, with the same purpose, towards the Witnesses themselves in the province, would be quite absurd … That some of the expressions, divorced from their context, may be extravagant and may arouse resentment, is not, in the circumstances, sufficient to take the intention of the writing as a whole beyond what is recognized by section 133A as lawful.[772]
34 Justice Rand was not opposed to placing limits on freedom of expression. What he was against was the interpretation of the sedition provision, which had enabled the state to suppress freedom of speech because it did not like what was being said. There were, in Rand’s view, limits to dissent, but they were not at the point where dissenters merely caused some ill-will, but at the point where the words themselves incited violence against the state. The fact that Roman Catholics in Quebec were insulted by what the Jehovah’s Witnesses had to say, or by the literature that they produced, was not enough for Rand, or for the majority of the court. Freedom of speech and freedom of religion in the context of the Boucher case took a step forward. And so did the Supreme Court. The judgments, one commentator wrote in the pages of The Canadian Bar Review, ‘inspire pride and confidence in the court that is now in all matters Canada’s final court of appeal.’ They represent, the commentator concluded, ‘the judicial process at its best.’[773]
35 The Boucher case took years to decide and in the meantime state action against the Jehovah’s Witnesses continued. Hundreds of sedition charges had been laid following the distribution of Quebec’s Burning Hate, and many of them resulted in convictions long before the Supreme Court finally disposed of the Boucher case. Pending the ultimate disposition of that case, Jehovah’s Witnesses continued to be arrested, and even when the sedition law was placed out of reach, authorities in Quebec used other means to curtail Witness work. One of these means was local by-laws and ordinances requiring permits as a pre-condition to peddling literature in the streets. Persons charged with violations of these laws found themselves in front of lower-level courts, and when convicted, they had extremely limited rights of appeal. The prerogative writs, ancient legal orders by which official action can be reviewed, were largely unavailable to the people of Quebec. The absence of appeal and judicial review placed a potent weapon in the hands of those eager to suppress Jehovah’s Witness speech. However, Laurier Saumur, a Jehovah’s Witness, found a way to challenge one of these ordinances.
36 In October 1933 the city of Quebec passed a by-law forbidding the distribution of any book, pamphlet, circular, or tract without a permit from the chief of police. There was no appeal from the police chief’s decision and it was an incontrovertible fact that the measure was initiated and directed solely against Jehovah’s Witnesses. They rarely, if ever, obtained permits, while for other groups approval was virtually routine. Saumur claimed that the province of Quebec had no right to confer upon a municipality the power to pass laws restricting the distribution of literature without a licence.
37 The Jehovah’s Witnesses argued that they had a legal right to preach on the streets, and they cited in support of their claim a pre-Confederation statute, the Freedom of Worship Act. This long-forgotten statute, passed by the Parliament of Canada one hundred years earlier, provided: ‘Whereas the recognition of legal equality among all Religious Denominations is an admitted principle of Colonial Legislation … be it therefore declared … That the free exercise and enjoyment of Religious Profession and Worship, without discrimination or preference, so as the same be not made an excuse of acts of licentiousness, or a justification of practises inconsistent with the peace and safety of the Province, is by the constitution and laws of this Province allowed to all Her Majesty’s subjects within the same.’[774]
38 Lawyers for the attorney general of Quebec argued that the by-law in question was a proper and constitutional exercise of provincial powers, and should be allowed to stand. The Freedom of Worship Act, they added, did not apply because the Jehovah’s Witnesses were not a religious denomination. This was the same argument made in the ministerial-exemption and conscientious-objection cases. More to the point, lawyers for Quebec argued that if that act did apply, the publications of the Jehovah’s Witnesses constituted acts of licentiousness and so were not protected under the act. Moreover, the Quebec government claimed that the Jehovah’s Witnesses' refusal to abide by the law was inconsistent with the peace and safety of the province, and that the by-law was not infringing their religious rights as its purpose was traffic control.
39 At the Supreme Court of Canada five of the judges held that Saumur’s rights had been infringed, and seven of the nine members of the court gave reasons for their decision. Four judges, with Rand at the lead, held that the by-law was legislation in relation to freedom of religion and freedom of the press. These two freedoms were not, this liberal quartet held, provincial matters. They did not fall within the property and civil-rights grant of power given to the provinces by the BNA Act and so were beyond the legislative purview of the province. A fifth member of the court, Justice Kerwin, held that religious rights did fall within the provincial powers, but that the Freedom of Worship Act proscribed Quebec’s passing legislation interfering with the Jehovah’s Witnesses' religious rights.
40 It was on this basis that Saumur won his case. The court had come very close to saying that it was beyond the reach of a provincial legislature to interfere with fundamental freedoms, such as those of speech and religion. To have said this would have been to logically extend the decision of the court in a pre-war reference to the Supreme Court on the constitutionality of certain Alberta legislation. In that case,[775] the federal government asked the Supreme Court to decide whether Alberta legislation compelling newspapers in the province to publish a government reply to any criticism of provincial-government policies exceeded provincial legislative jurisdiction. The Supreme Court held that it did, and it struck the legislation down. Chief Justice Duff and Justice Lawrence Arthur Cannon held that free political discussion was a matter of national importance and could not, therefore, be subordinated to other legislative objects or be regarded as a local or private matter within a province or, indeed, as a civil right as set out in the BNA Act. The court, in effect, said that freedom of speech was a fundamental right that could not be interfered with by a province. The Saumur case was an opportunity to entrench this view. Instead, when Justice Kerwin’s opinion was added to the four dissents, a majority of the court had held that freedom of religion, along with the right to limit it, was a matter of provincial concern. The decision was not a victory, if victory meant judicial recognition that Canadians enjoyed certain rights that legislatures could not proscribe.[776]
41 Nevertheless, the reasons of the four judges who found that freedom of religion and freedom of the press were beyond provincial powers would prove, in the end, to be more influential than the opinion of the five who placed these ‘rights’ in the provincial camp. For these opinions, none more so than that of Justice Rand, established the philosophical and jurisprudential basis for the ultimate recognition in Canadian law that certain fundamental freedoms lie beyond the reach of any legislature, provincial or federal.
42 Justice Rand began by looking at the Quebec City by-law. When a licence was sought, the practice was for the chief of police, or some other senior police officer, to peruse the literature intended to be distributed and, if ‘nothing objectionable’ was found, to issue a permit.[777] This practice, Justice Rand believed, was wrong:
43 What the practice under the by-law demonstrates is that the language comprehends the power of censorship. From its inception, printing has been recognized as an agency of tremendous possibilities, and virtually upon its introduction into Western Europe it was brought under the control and licence of government. At that time, as now in despotisms, authority viewed with fear and wrath the uncensored printed word: it is and has been the bête noire of dogmatists in every field of thought; and the seat of its legislative control in this country becomes a matter of the highest moment.[778]
44 Justice Rand then considered which level of government in Canada was entitled to exercise legislative power over freedom of speech.
45 Quebec argued that the term ‘property and civil rights’ in the BNA Act encompassed civil liberties such as freedom of religion and freedom of speech. Justice Rand, however, disagreed, concluding that there was no basis for giving ‘civil rights’ an interpretation of that kind. Justice Rand declared that this term meant matters of private law, the negotiation of a contract, or the right to sue in tort. Provincial legislation in relation to religion was not a local matter, of concern only to a province. Rather, it was a matter of national dimension: ‘it appertains to a boundless field of ideas, beliefs and faiths with the deepest roots and loyalties; a religious incident reverberates from one end of the country to the other, and there is nothing to which the “body politic of the Dominion” is more sensitive.’[779] The same was equally true about freedom of speech: ‘Under [our] constitution, government is by parliamentary institutions, including popular assemblies elected by the people at large in both provinces and Dominion: government resting ultimately on public opinion reached by discussion and the interplay of ideas. If that discussion is placed under licence, its basic condition is destroyed: the government, as licensor, becomes disjoined from the citizenry. The only security is steadily advancing enlightenment, for which the widest range of controversy is the sine qua non.’[780] The way Rand saw it, no province could legislate in regard to a fundamental freedom. In an earlier case he had declared that Canadian citizenship carried with it certain rights with which no level of government could interfere.[781] He now further developed this doctrine. Freedom of speech, religion, and the inviolability of the person were, Rand said, ‘original freedoms which are at once the necessary attributes and modes of self-expression of human beings and the primary conditions of their community life within a legal order.’[782] It would be some time before this principle achieved constitutional protection, but in the Saumur case the jurisprudential bedrock had been formed.[783]
46 The decision in the Saumur case, like that in the Boucher case, did little to improve the lot of Jehovah’s Witnesses in Quebec. The Legislative Assembly immediately amended the Freedom of Worship Act so as to make it inapplicable to the Jehovah’s Witnesses by giving the government the power to outlaw any religious group that published abusive and insulting attacks on established religions.[784] The effect of the amendment was to make the majority decision in the Saumur case a minority one, for the deciding vote on Saumur’s behalf had been based upon the freedoms set out in the Freedom of Worship Act. In commenting on the case, The Ottawa Citizen said ‘it means that no community anywhere in Canada can require advocates of religious views to be licensed. The ruling is one of several court decisions in recent years by which civil liberty has been clarified within the provinces or throughout the country … In a free country, the few must be allowed to try to change the opinions of the many, whatever the issue. Canadians can be proud that their courts are showing themselves vigilant against the intolerance that would whittle freedom away.’[785] In fact, with a legislature at his beck and call this was not the case. Duplessis had passed, with no real opposition, a religious Padlock Act. Eventually the act lapsed but where the Jehovah’s Witnesses were concerned, Duplessis did not relent until the disposition of a suit filed against him by a Jehovah’s Witness named Frank Roncarelli.
47 Roncarelli was the owner of the Quaff Café in Montreal’s west end. Disturbed by the treatment other Jehovah’s Witnesses were receiving, Roncarelli arranged bail for some four hundred Witnesses arrested during the first part of Duplessis’s ‘war without mercy’ against the sect. When Duplessis learned about Roncarelli he was enraged. In late November 1946, Duplessis publicly warned him to stop posting bail.[786] Roncarelli failed to heed the warning, and on 4 December 1946 Duplessis telephoned the chairman of the Quebec Liquor Commission, Judge Edouard Archambault, and instructed him to cancel Roncarelli’s licence. Archambault did as he was told, and the police came and seized Roncarelli’s stock. The next day Duplessis was quoted in The Montreal Gazette, explaining why: ‘A certain Mr Roncarelli has supplied bail for hundreds of Witnesses of Jehovah. The sympathy which this man has shown for the Witnesses in such an evident, repeated and audacious manner, is a provocation to public order, to the administration of justice and is definitely contrary to the aims of justice. He does not act, in this case, as a person posting bail for another person, but as a mass supplier of bails, whose great number by itself is most reprehensible.’[787] In fact, Roncarelli was put out of business because he had exercised a right given to him in law to post bail for persons accused of an offence. Especially interesting about the case was the public attention it drew.
48 News of these events was publicized in the press, and the public reacted.[788] The closing of a business was an issue many people could sympathize with. More than twelve hundred McGill University students, for example, signed a petition demanding that the attorney general reverse his decision on the basis that Roncarelli had not violated any of the Quebec Liquor Act regulations. Other protesting groups included the McGill University Progressive Conservative Association, the Montreal Presbytery of the Presbyterian Church, and the Montreal Civil Liberties Committee, a group of both French- and English-speaking Montrealers. On 7 December 1946 this group announced that it intended to hold a meeting to protest Duplessis’s decision. In response, Duplessis offered an explanation of his actions:
49 To have permitted Frank Roncarelli, self-styled leader of the Witnesses, to continue the use of funds derived from a privilege granted him by the Province of Quebec to conduct a campaign inciting to sedition, public disorder and disregard of municipal bylaws would have been to put the Attorney-General of the Province in the position of an accomplice. The fact that a man goes bail for a friend or two is quite in order, but when a man creates an organization of freeing masses of people who are jointly engaged in law-breaking, it becomes a different matter. In the case of the cancellation of the Roncarelli permit, action has not been taken hastily. The matter has been studied in its various angles and the conclusion reached that because of his action in helping to spread sedition and break municipal bylaws, he was not a man who should enjoy the privileges given to him.[789]
50 Duplessis, as demonstrated in the Roncarelli affair, did not tolerate the activities of a group that was engaged in a vicious campaign aimed at members of the province’s principal faith. In preventing Roncarelli from supplying bail to arrested Jehovah’s Witnesses by putting him out of business, the premier had a potent weapon. While many Quebeckers were aghast at Duplessis’s arbitrary use of power, he had many supporters, both English and French.[790] But this was one issue, and an issue is what it had become, that captured the public imagination.
51 On 12 December 1946 the Civil Liberties Committee held a demonstration against Duplessis in a downtown hall. Among the speakers was Chubby Power, who had forever earned the respect of French Canadians for his principled resignation when Prime Minister King broke his promise and introduced conscription. ‘We have seen within the past ten days a citizen deprived of his means of livelihood merely because in an exercise of his undoubted legal right he has run counter to the views of a political Attorney-General,’ Power said.[791] When news of this demonstration was brought to his attention, Duplessis fought back.
52 He summoned the members of the Legislative Assembly press gallery to his office and began by criticizing the role of Chubby Power. Was this the same Chubby Power, Duplessis asked, smiling, who had in July 1940 participated in the decision to ban the sect? Indeed, Duplessis continued, if the group had been subversive in 1940, surely it was still subversive today. Had they changed in any way? Although it was not the content of their ideas that was in issue, but their right to express them, Duplessis was able to plant in the public mind a rationale justifying state action against members of the group by labelling them as a subversive group. There matters stood for the next four weeks.
53 The Roncarelli issue returned to the public eye on 1 February 1947 when Roncarelli launched a suit against Judge Archambault in his capacity as head of the Quebec Liquor Commission. This suit, along with a subsequent one, failed as Quebec rules of civil procedure precluded legal actions of this kind. In a change of tactics, Roncarelli’s lawyer, A. L. Stein of Montreal, made a bold move and sued Duplessis personally. There was no technical barrier to this claim. In the action Roncarelli asked for more than one hundred thousand dollars in damages. The suit precipitated a new wave of prosecutions against members of the sect, and Jehovah’s Witnesses by the hundreds were taken into custody, including Laurier Saumur.
54 Throughout the province what can only be described as a reign of terror against the Jehovah’s Witnesses began. Prayer meetings in private homes were broken up by the police, and Jehovah’s Witnesses were taken into custody in the middle of the night and later released. Arrests were made and charges filed and then withdrawn. Men and women were sent to jail, or were chased out of towns and villages by screaming mobs as the police stood idly by. Witness literature was burned and Witness members beaten. It was the most extensive campaign of state-sponsored religious persecution ever undertaken in Canada.[792]
55 In the meantime, A. L. Stein proceeded with Roncarelli’s case. Stein held no brief for the Jehovah’s Witnesses or their beliefs, but was personally offended by the action Duplessis had taken against Roncarelli. However, Stein needed some help, and he reasoned that the best co-counsel he could get would be a prominent French-Canadian, Roman Catholic lawyer. Of the half dozen or so whom he approached none would agree to help. F. R. Scott, who was not a French Canadian, however, agreed to assist. Together they fought a case that would take them to the Supreme Court of Canada and that, even today, tells us much about what is meant by the rule of law.
56 Duplessis attempted to delay the proceedings, but by May 1950 the premier of Quebec and the former restaurateur faced each other in a Montreal court. Duplessis, the defendant, bustled into the room and made his way to the bench. There he found Justice C. Gordon MacKinnon. The two conferred, then Justice MacKinnon announced that Duplessis would give his evidence first, for urgent business required his immediate return to Quebec City.
57 Duplessis told the court that it was Judge Archambault who had telephoned him in November 1946 recommending that action be taken against Roncarelli, not the reverse. Duplessis concluded his evidence, which overall was as brief as it was unrevealing, with the statement that he had conscientiously administered the law. The other evidence led at the six-day trial did not, however, support this contention, and Duplessis’s lawyers urged that the case be dismissed because Duplessis had acted in his ministerial status and so, under the same Quebec rules that had earlier precluded a successful lawsuit against Judge Archambault, he could not be sued. Justice MacKinnon took the whole matter under advisement and did not release his reasons for decision for almost a year.
58 The campaign against Quebec Jehovah’s Witnesses continued, although with diminished vigour. On 2 May 1951 Justice MacKinnon released his decision. It was a stunning, and unexpected, indictment against Duplessis. He was censured by the court for remaining attorney general and appearing in that capacity in a case in which he was involved. In addition, Justice MacKinnon found, in effect, that Duplessis had lied on the stand when he gave evidence as to who was behind the decision to cancel Roncarelli’s liquor licence, and that Duplessis had acted without authority of law in ordering the licence to be taken away. Roncarelli was awarded a little more than eight thousand dollars in damages.
59 The money meant nothing to the Quebec premier; the Union Nationale had all the discretionary funds it needed. What was important was the challenge to his authority. It was not the only one. At the same time that MacKinnon was raking Duplessis over the judicial coals, other judges were doing the same thing to him, with the same effect. The decisions in the Boucher and Saumur cases are just two of the more prominent examples. There was nothing Duplessis could do about either of these decisions, but he could and did appeal the Roncarelli decision.
60 Roncarelli’s lawyers were amazed by their victory. Not that justice had triumphed, but that a Jehovah’s Witness had received justice in Quebec. Stein advised Roncarelli to take the money and to try to rebuild his shattered life. Roncarelli agreed; he had no intention of appealing the damage award, until Duplessis filed his notice of appeal. When he did, Roncarelli had no choice but to cross-appeal. The case took some time to go to appeal. Duplessis was a good enough lawyer to know that he would lose this legal battle in the end. But, as one of his biographers observed, ‘Politics is a matter of immediate concern; the final judgements of the law lie somewhere in the distant future.’[793]
61 In the meantime, Duplessis was occupied with a strike in the Quebec asbestos industry that challenged the existing order as much as it did the employer. Quebeckers rallied around the five thousand striking workers, and among those making appearances on the picket line was a young Université de Montréal law professor named Pierre Trudeau. The premier was enraged by the strike and he claimed that communists were behind it. Indeed, ‘communists’ were, it seemed, behind almost everything that went wrong. When the bridge at Trois-Rivières collapsed, for example, Duplessis claimed that ‘the communists’ were at fault. Communist activity was on the increase, Duplessis alleged, and the ‘Reds’ were linked, he said, with the Jehovah’s Witnesses and the RCMP. There was no evidence at all for this claim, but the premier knew his audience, and the small-town and rural voters gave him majority after majority in the Legislative Assembly. His political campaign against the communists, much like the campaign against the Jehovah’s Witnesses, ended up on more than one occasion in court. His main tool against communism was the Padlock Act. However, that legislation was finally successfully challenged in court.[794]
62 One case, Switzman v. Elbling, proved to be especially important. The Supreme Court decided that the Padlock Act, as had been long claimed by its opponents, infringed on the federal power to legislate in matters of criminal law.[795] ‘It is declared,’ the court said in an eight-to-one decision, ‘that “An Act to Protect the Province against Communist Propaganda” is ultra vires of the Legislature of the Province of Quebec in toto.’[796] Ironically, the only dissenter in this case was Justice Robert Taschereau, son of the former premier of Quebec whom Duplessis had defeated in the 1936 Quebec provincial election. The law that Duplessis had promised more than two decades before would destroy communism had been set aside on the lawsuit of a communist. Not that it mattered any more to Maurice Duplessis. The law served him well in the 1930s and it continued to serve him well upon his return to power. The same was equally true about Duplessis’s war without mercy against the Jehovah’s Witnesses. It was useful on the hustings and it contributed to Duplessis’s continued electoral success. But as Quebec society changed, state action against the Jehovah’s Witnesses lost much of its appeal.
63 With the beginning of the ‘Quiet Revolution’ and the industrialization and urbanization of Quebec, the Union Nationale’s hold on power, like the great influence of the Roman Catholic church, was coming to an end. Another reason why the campaign against the Jehovah’s Witnesses might have lost some of its momentum was the death, in January 1947, of Cardinal Villeneuve. The torch was passed, but to a new generation of Catholic leaders who quickly became more threatened by a rising tide of anti-clericalism than they ever were by the activities of the Jehovah’s Witnesses. Indeed, public attacks against the Jehovah’s Witnesses no longer gained the political mileage that they once did. Moreover, none of Villeneuve’s successors had the supremacy to either unite the bishops or influence the political agenda in an issue of this kind. For their part, the Jehovah’s Witnesses had also changed, not in substance but in style, and their literature lost some of its immoderate edge.[797] Perhaps they realized that this was the compromise they needed to make for state protection of their freedom of speech. They remained active in Quebec, but they considerably softened their attacks on the Roman Catholic hierarchy. The midnight raids and the disruption of prayer meetings and Bible study came to a virtual end. The courts were no longer, as some once were, agents of the state. A charge against a Jehovah’s Witness was no longer enough to ensure a conviction. The only really unfinished business from Duplessis’s holy war was the case of Frank Roncarelli.
64 While some public funds had been raised for the legal fight, it was Roncarelli who had to bear most of the expense, and financially it ruined him. Duplessis made numerous legal moves to frustrate the process of justice, and it took until 1956 for the appeal to be heard. The decision on the appeal and cross-appeal was released in April 1956 but, after all this time, neither side could declare victory. Duplessis’s appeal was effectively dismissed, but, at the same time, Roncarelli’s cross-appeal for an increase in damages did not succeed. Once again Duplessis decided to take the case further, to the Supreme Court of Canada. A. L. Stein and F. R. Scott again argued the case.
65 Francis Reginald Scott, the son of an Anglican clergyman, was born in Quebec City on 1 August 1899. A Rhodes scholar, Scott studied history at Oxford University and returned to Montreal and took up law at McGill, graduating in 1927. Along with Frank Underhill, Scott founded the League for Social Reconstruction in 1931–2. A socialist study group, it became the brain trust for the emerging CCF, the precursor of the New Democratic party. In 1933 Scott helped draft the Regina Manifesto, the CCF blueprint for a socialist society. Although an active man of letters and a celebrated Canadian poet, Scott earned the most renown, and criticism, for his public life. His campaign for Canadian neutrality prior to the outbreak of the Second World War was not well received in English Montreal, and his increasingly active efforts on behalf of the socialist CCF even less so. But popular or not, his public life was a courageous one, and one of its high points was Roncarelli v. Duplessis.[798]
66 By the time the Supreme Court handed down its decision in this case, the Quaff Café had long been closed down, and Roncarelli was working for the St Lawrence Seaway Authority. The decision of the court did not restore his restaurant, nor did it return to him what he had lost for exercising a legal right. But the case stands as the pre-eminent expression in Canadian law of the rule of law, the notion that all men are subject to, and equal under, the law of the land. And here too, Justice Rand led the way in setting a framework by which the rule of law could be understood.
67 Roncarelli was, Rand wrote, nothing more than a private citizen who furnished funds to enable arrested persons to be released on bail pending the determination of the charges against them. No other relevant consideration needed to be taken into account.[799] In issue was the exercise of administrative discretion.
68 It is a matter of vital importance that a public administration that can refuse to allow a person to enter or continue a calling which, in the absence of regulation, would be free and legitimate, should be conducted with complete impartiality and integrity; and that the grounds for refusing or cancelling a permit should unquestionably be such and such only as are incompatible with the purposes envisaged by the statute: the duty of a Commission is to serve those purposes and those only. A decision to deny or cancel such a privilege lies within the ‘discretion’ of the Commission; but that means that decision is to be based upon a weighing of considerations pertinent to the object of the administration.
69 In public regulation of this sort there is no such thing as absolute and untrammelled ‘discretion,’ that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute. Fraud and corruption in the Commission may not be mentioned in such statutes but they are always implied as exceptions. ‘Discretion’ necessarily implies good faith in discharging public duty; there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption. Could an applicant be refused a permit because he had been born in another province, or because of the colour of his hair? The ordinary language of the legislature cannot be so distorted.
70 To deny or revoke a permit because a citizen exercises an unchallengeable right totally irrelevant to the sale of liquor in a restaurant is equally beyond the scope of the discretion conferred.[800]
71 And this is exactly what Duplessis had done. Justice Rand wrote that it was ‘intentional punishment by what was virtually vocational outlawry.’[801] Moreover, it was a gross abuse of legal power, for it had one goal: the destruction of Roncarelli’s ‘economic life as a restaurant keeper within the province.’[802]
72 In all of this, Duplessis could not claim immunity from prosecution, for his persecution of Roncarelli was not an official act. ‘Whatever may be the immunity of the Commission or its members from an action for damages, there is none to the respondent.’[803] Regulation of economic activity was expanding, and there could be no immunity for injury caused by unwarranted intrusion into the activities of a regulatory agency. ‘That, in the presence of expanding administrative regulation of economic activities, such a step and its consequences are to be suffered by the victim without recourse or remedy, that an administration according to the law is to be superseded by action dictated by and according to the arbitrary likes, dislikes and irrelevant purposes of public officers acting beyond their duty, would signalize the beginning of disintegration of the rule of law as a fundamental postulate of our constitutional structure.’[804] Duplessis had finally been brought to justice.
73 The Boucher, Saumur, and Roncarelli cases were not the only Quebec civil liberties cases to come before the Supreme Court in the 1950s. There were other important cases as well,[805] but none of them pushed the Supreme Court any closer to saying that freedom of religion was beyond provincial reach. Indeed, it was in the Saumur case that the Supreme Court came closest to holding that freedom of religion was a fundamental right entirely out of legislative reach. While other cases advanced civil rights, the case striking down the Padlock Act, for example, they did so without making any new law. All of this illustrated the absolute need for a written bill of rights. The Jehovah’s Witnesses, in the epilogue to this story, would help set the stage for that.
Epilogue
1 The Jehovah’s Witnesses' battles in the courts focused public attention on the group and drew sympathizers to their cause, not to mention members to their faith. The Supreme Court decisions in Boucher, Saumur, and Roncarelli reaffirmed the principle that all Canadians are subject to the rule of law. However, there was nothing inevitable about the decision in any of these cases, and each of them could have been decided differently. In the Boucher case a majority of the Supreme Court came close to saying that all Canadians enjoyed certain fundamental rights that no legislature could infringe, but the Saumur case demonstrated that this principle was not yet part of Canadian law. Saumur’s ‘victory’ was immediately turned into a defeat as the Legislative Assembly in Quebec passed amending legislation under which Jehovah’s Witnesses in the province were arrested, convicted, and sent to jail. Although they were an indispensable step in bringing the ‘war without mercy’ to an end, the Supreme Court decisions in and of themselves did not stop the mistreatment. There was, the Jehovah’s Witnesses believed, only one thing that would ensure the regular vindication of their rights: a bill of rights.
2 In March 1947 every Witness congregation in Canada put on a public lecture entitled ‘The Fight for Freedom of Worship in Quebec! Awake Canadians to the Facts!’ This lecture inaugurated a nation-wide campaign inviting the people of Canada to petition the government for a bill of rights. The petition called for a bill guaranteeing freedom of speech and freedom of worship. In just one month, the Jehovah’s Witnesses persuaded more than five hundred thousand Canadians to sign.[806] In a nation of just over twelve million, five hundred thousand signatures was an enormous number. The government promised to consider the request, as well as a proposal that a special committee be established to review the matter and make recommendations. Indeed, the government had considered a bill of rights earlier in the year. On 21 January 1947, the cabinet had met, and a bill of rights was one of the subjects the ministers discussed.[807]
3 Louis St Laurent was now secretary of state for external affairs, and he advised the cabinet that the United Nations had the question under review, referring to the declaration that would soon become international law. He also pointed out that ‘civil rights’ was a provincial power. This was true enough, but the meaning of the term was far from settled. ‘The Cabinet, after discussion, noted the observations of the Prime Minister and the Secretary of State for External Affairs and deferred decision with respect to a bill of rights.’[808] King and St Laurent probably feared the political consequences in Quebec of enacting a bill of rights, as there was no doubt that the activities of Maurice Duplessis would be reviewed under any such legislation or constitutional amendment.[809] And that would only give the premier of Quebec more ammunition in his fight for provincial rights.
4 The Witness petition did not force the government to enact a bill of rights, but undoubtedly contributed to the government decision, later in the year, to establish a special joint committee of the Senate and the House of Commons to consider the question of whether Canada should enact a bill of rights. Ironically, the motion establishing the Committee on Human Rights and Fundamental Freedoms was made in the House by Ian Mackenzie, who incidentally bore considerable responsibility for the evacuation of Canada’s Japanese. Mackenzie, the minister of veterans' affairs, made no secret of his personal views. Canada did not need a bill of rights, he said; it needed a bill of duties.[810]
5 Parliament ignored Mackenzie’s remarks and approved the motion. The committee was established, and it heard some evidence and received a few briefs.[811] Eventually it recommended that no attempt be made to enact a Canadian bill of rights because of the problems concerning constitutional jurisdiction.[812] Canada’s constitution continued to be an act of the Parliament at Westminster, and it could only be amended by another act of that Parliament. A constitutional bill of rights would, of necessity, limit provincial powers, and the only way of doing that was by amending the BNA Act. Provincial agreement was required for any amendment that affected their powers, and before the provinces would agree to a bill of rights they needed to know what that bill would contain. And consensus about that, as the joint committee correctly pointed out, had not emerged.
6 Respect for and observance of these rights and freedoms depends in the last analysis upon the convictions, character and spirit of the people. There is much to be said for the view that it would be undesirable to undertake to define them before a firm public opinion has been formed as to their nature. It is not evident to your Committee that such an opinion has reached an advanced stage in Canada. There is need for more public discussion before the task of defining the rights and freedoms to be safeguarded is undertaken. But whatever steps be advocated by way of statutory enactment or otherwise to preserve human rights and fundamental freedoms, Canadians must never fail to recognize that the ultimate and effective safeguard of those rights and freedoms lies in the people themselves, and in a resolute and effective public opinion.[813]
7 In concluding that more discussion was required before attempting to enshrine rights, the committee was completely correct. There was no point in Canada adopting a bill of rights: what was required was a Canadian bill of rights. Agreement about what rights should be included could not be hastily reached; consensus could only develop with time.[814] A national debate was in order and there was, in the post-war period, no shortage of issues to be discussed.
8 The treatment of the Jehovah’s Witnesses in Quebec was one major subject of discussion, and so, once again, was the Communist Party of Canada. It was at the centre of the debate because of the revelations of a Soviet cipher clerk, Igor Gouzenko, who defected in Ottawa in September 1945. Gouzenko brought with him a mass of documents proving the existence of a Soviet spy ring operating in Canada. The sole Communist member of Parliament, Fred Rose, turned out to be a Soviet spy, and he, along with a number of others, was eventually sent to jail. The Communist party, still called the Labour Progressive Party, disavowed any knowledge of Russian espionage, but it loudly complained about the way the investigation of the Gouzenko allegations had been carried out.
9 Under the authority of the War Measures Act, which remained in force until the end of 1945 when the National Emergency Transitional Powers Act came into force, the government passed a secret order-in-council that provided for the secret arrest of persons identified by Gouzenko as espionage agents. The writ of habeas corpus was again put in abeyance, and those arrested were denied counsel and later brought before a secret royal commission, headed by two Supreme Court judges charged with investigating the case. The interim and the final royal commission reports revealed the names of those arrested, some of whom were acquitted at trial. Many reputations were ruined and ‘it is difficult to avoid the conclusion that the Canadian government, confronted with an extraordinary situation, reacted with arbitrary and harsh measures that threatened to ape the standards of the society that the Soviet spies were serving.’[815]
10 These events, when they were finally revealed, galvanized civil libertarians and revitalized Canada’s civil-liberties associations, which had all but faded away.[816] In addition to these associations the Canadian Bar Association, which had only become marginally involved in civil-liberties issues during the war, became interested in, and divided over, the infringements of the suspected espionage agents' civil rights.[817]
11 The spy trials had the possibility of becoming the cause célèbre of the 1940s, but in the end they did not, in part because a number of those charged were actually found guilty of espionage.[818] Besides, the Cold War had begun, and when it did association with a communist cause was only for the very brave. The LPP continued to praise the virtues of life in the Soviet Union, and in the 1945 federal election it fielded a large number of candidates and garnered more than one hundred thousand votes. As a percentage of the total votes cast, however, the number was minuscule. The party platform maintained its progressive bent, but the party itself had begun its decline. The final blow to Canadian communists came when Nikita Khrushchev revealed that Stalin was a murderer of Hitlerian proportions. The Soviet Union was many things, but a workers' paradise was not one of them.
12 In the years before the Second World War the Communist party had been in the vanguard of the struggle for many important rights, including free speech and free association. To be sure, much of this activity was in the Communist party’s own interest: the fight against section 98 is a case in point. But in bringing to the attention of the public repressive and unfair laws, the Communist party helped to create a climate in which discussion of civil liberties could eventually take place. During the war, many Canadians became interested in civil rights because of the attention Communists were able to draw to their cause, and in this limited respect the Communist party advanced the interests of all Canadians. It is ironic that it was forced, by the Gouzenko revelations and the Cold War, into involuntary retirement just as the fight for human rights and civil liberties was about to break new ground.[819]
13 While civil-liberties organizations and civil libertarians initially focused their attention on the issues the Gouzenko revelations raised, they became aware that there were other important ones too.[820] In December 1946, representatives of civil-liberties associations from Toronto, Montreal, and Ottawa gathered for a meeting in Ottawa. The purpose of the meeting was to canvass the state of civil liberties in Canada, discuss solutions to civil-rights abuses, and consider their merger and the creation of one national civil-rights organization. The spy trials were one issue that the assembled civil libertarians discussed; the Padlock Act and the treatment of Jehovah’s Witnesses in Quebec were two more. The fourth major issue was the government treatment of Japanese Canadians. All of a sudden it was apparent that not only had Japanese Canadians been mistreated, but they were still being abused.[821]
14 When the representatives from the three civil-liberties associations met in Ottawa, it was clear to them that a bill of rights was needed to restrain executive power. F. R. Scott argued that a bill of rights did not involve a reversal of the theory of the Canadian constitution. Already existing in the BNA Act was the concept of a bill of rights limiting the sovereignty of Parliament. The language and separate-school provisions were two examples of this. Scott strongly urged entrenchment of a bill in the constitution as an amendment to the BNA Act.
15 John Diefenbaker raised the issue whenever he could, but the decision to introduce a bill was the government’s to make. The Jehovah’s Witnesses ensured that their quest for a bill of rights was not forgotten. They believed that their first petition had led directly to the establishment of the joint committee.[822] And even though the first petition failed, the Jehovah’s Witnesses had no intention of giving up the campaign: ‘Under the Lord’s direction we shall be victorious for no power can successfully withstand the Almighty. Our fight for freedom to worship Jehovah in this country is by no means over.’[823]
16 In fact, after the final report of the joint committee was published the Jehovah’s Witnesses launched another petition in an effort to convince the government to change its mind. Jehovah’s Witnesses began in September 1948 to knock on doors. The Toronto Civil Liberties Union urged its members and the general public to support the drive.[824] The petition specifically called attention to the persecution of Jehovah’s Witnesses in Quebec, and almost one and one-half million leaflets illustrating the need for constitutional rights were handed out. More than six hundred thousand Canadians signed the petition, and in early February 1948 Allistair Stewart, the CCF member for Winnipeg North, filed the petition with the Speaker of the House. He gave the clerk an eleven-foot-high stack of names.[825]
17 The second petition was no more effective than the first in persuading the federal government to pass a bill of rights. Indeed, while the government re-established the joint committee in 1948, there would be no bill of rights. Although briefs were received,[826] the committee concerned itself with the international protection of human rights, not their protection in Canada.[827] In 1949 there was even some doubt about whether the committee would be re-established. John Diefenbaker urged that it should: ‘This parliament,’ he said on 22 September 1949, ‘has an appointment with destiny … We in this parliament have a responsibility which transcends all others, that of preserving, maintaining and extending the boundaries of freedom. To that end, sir, I have suggested a committee on a national declaration or a bill of rights.’[828] The suggestion was not followed until the spring of 1950, when the Senate established the Special Committee on Human Rights and Fundamental Freedoms under the chairmanship of Senator Arthur Roebuck. As attorney-general of Ontario, Roebuck, along with the minister of labour, David Croll, had resigned from the Ontario government over Mitchell Hepburn’s handling of the Oshawa recognition strike. The principal reason this committee was set up was the coming into force of the Universal Declaration on Human Rights. Once it was on the books, and Canada had signed, consideration of state implementation measures was necessary.
18 The committee, however, gave itself a wide mandate. It decided to consider the whole issue of human rights and fundamental freedoms, ‘what they are and how they may be protected and preserved, and what action, if any, can or should be taken to assure such rights.’[829] More briefs were received and testimony taken.[830] In the end the committee recommended that because of the constitutional difficulties raised by the absence of a constitutional amending formula, Parliament should proceed first by adopting a declaration of human rights, limited to the federal jurisdiction, that would be a non-binding but guiding instrument. Eventually, the committee suggested, there should be either a statutory or constitutional bill of rights.[831]
19 This recommendation accorded with the wishes of St Laurent, who in November 1948 had succeeded King as prime minister. St Laurent took the position that a Canadian bill of rights was unnecessary to implement Canada’s international obligations, and in this respect he was correct. St Laurent knew that a bill of rights would be used to attempt to restrain the activities of Maurice Duplessis. By this point it was becoming apparent that all the civil-rights cases making their way to the Supreme Court came from Quebec and, by and large, when they got to the Supreme Court the English judges lined up against their French-speaking brethren. St Laurent wished to avoid disunity, and the adoption of a bill of rights was potentially very disrupting to the body politic.
20 The failure of the committee to recommend a bill of rights did not, however, signify that no progress in the protection and advancement of human rights was taking place. As compared to the decade before the Second World War, the ten years that followed were ones of tremendous activity on the legislative front. Although Saskatchewan was the first province to pass a bill of rights (and would be the only province to have one for a great many years), Ontario led the way in passing anti-discrimination legislation.[832]
21 The Toronto City Council began, in 1944, with a by-law prohibiting discrimination in all recreation and amusement facilities licensed by the Toronto Police Commission. The law was passed following protests by Toronto blacks and Jews over discriminatory practices banning them from certain skating rinks. Publicity and protest obviously made a difference, and similar by-laws were passed in Windsor, Hamilton, and Oshawa. With elections every other year, municipal politicians could not afford to ignore the public clamour to end blatantly discriminatory practices. This is not to say that these by-laws ended racist practices: municipal by-laws prohibiting discrimination were easily circumvented, if not totally ignored, for they depended on the good will of the public for compliance. Members of the community inclined towards discrimination could hardly be relied on to voluntarily respect the law, but the very fact that there was a law added an entirely new dimension, for it put the state on the victim’s side and made clear that discrimination was wrong.
22 For the victims of discrimination, these by-laws, and related acts, were too little if not too late. Incredibly, some of the more odious examples continued to receive sanction from the courts — in particular, restrictive covenants in the sale of land. The Canadian Jewish Congress (CJC) had been pressing provincial legislatures to pass laws nullifying these covenants for more than a decade. The covenants were provisions forming part of the deed to parcels of land that restricted to whom the land in question could be sold. In particular, blacks, Jews, and Asians were the three groups generally prohibited by the covenants from taking title. When the CJC requests continued to fall on deaf ears, the decision was made to challenge the covenants in the courts. When the Racial Discrimination Act was passed in 1944 counsel for the Canadian Jewish Congress thought they could challenge the covenants on the basis that they violated this act.
23 The first case came before Mr Justice Chevrier, who had in 1940 made headlines with his finding that the Communist party was an unlawful organization. The case was Re McDougall and Waddell,[833] and it came before the courts when the purchaser of land objected to a provision in the deed that the land could not be sold or occupied by persons other than Gentiles. This restrictive covenant, the purchaser claimed, violated the 1944 Racial Discrimination Act. Justice Chevrier disagreed. He decided that restrictive covenants were not caught by the legislation and could therefore stand. Another judge, Keiller Mackay, two months later decided an identical case somewhat differently. In Re Drummond Wren,[834] Justice Mackay struck the covenant down. It violated public policy, he declared.[835]
24 Obviously public policy had not changed in two months. What had changed was the judge hearing the case. Mackay searched the authorities and declared that there was no guidance to be found on point. He then turned to a general principle of law, namely that any agreement that tends to be injurious to the public or against the public good is void as being contrary to public policy. The existence of legislation prohibiting discrimination illustrated to Justice Mackay a public policy against discrimination. So did, as far as Justice Mackay was concerned, Canada’s signature on the Universal Declaration on Human Rights. Justice Mackay held that restrictive covenants had no place in Canadian society because their continuation was divisive and created animosity among different classes of British subjects. The restrictive covenant in the case before him was therefore held to be void.
25 It is a settled principle of the common law that judges decide only the case before them. Accordingly, while Justice Mackay’s reasoning might prove persuasive in other similar cases, it was no more binding than Justice Chevrier’s reasoning had been on Justice Mackay. Only legislation prohibiting all restrictive covenants could bring the practice to an end. Without it, individuals' rights would depend on the roll of the judicial dice. In 1948 another restrictive-covenant case was argued before the Supreme Court of Ontario, and Justice Walter Frank Schroeder was asked to decide whether a covenant in a conveyance of a summer cottage, which stated that the property was reserved for whites and ‘shall never be sold, assigned, transferred, leased to and … occupied or used by any person of the Jewish, Hebrew, Semitic, Negro or coloured race or blood,’ was contrary to the public good. Justice Schroeder rejected Mackay’s reasoning and explicitly criticized him for ‘inventing’ new law. Schroeder’s decision was upheld by the Ontario Court of Appeal. In Re Noble and Wolf[836] eventually went to the Supreme Court. Significantly, the Supreme Court did not adopt Mackay’s public policy grounds; rather it held that the covenants were void for uncertainty. The end result was, however effectively, the same: restrictive covenants could not stand. And by this time the Ontario legislature had finally taken notice of this basic fact.[837]
26 On 7 June 1949 the Association for Civil Liberties (Toronto), another recently established civil-liberties association, submitted a brief to the new premier of the province, Leslie Frost. The brief called upon the government to introduce and pass legislation prohibiting discrimination in employment and to pass legislation eliminating racist restrictive covenants in the conveyance of land.[838] On 9 December 1949 the association again wrote the premier, saying there was a need for urgent action as the Racial Discrimination Act did not go far enough, in that it only really dealt with objectionable advertising. There was a need, the association said, for strong measures against discrimination in employment, discrimination in the use of public places, and discrimination in housing and in the ownership of property.[839] Civil libertarians were not the only ones discussing issues of this kind. For example, the Canadian Association for Adult Education prepared, and widely distributed, a pamphlet entitled Should We Have Fair Employment Practices in Canada? The answer was an emphatic ‘yes.’[840]
27 A meeting to discuss these issues with the premier was held in late January 1950. Three hundred people, representing more than seventy organizations, assembled at Queen’s Park and strongly urged the premier to begin a program of legislative reform. The brief they filed on the occasion of this visit asked that a board be established to investigate complaints of discrimination, and to conduct a continuous program of education to promote understanding and harmony among all members of the community. Conciliation followed by adjudication was the recommended model.[841] The whole point of a board or commission was to place the burden of administration and enforcement of antidiscrimination legislation in the hands of someone other than the victim. Discrimination was not a private matter; it affected everyone, and so enforcement of anti-discrimination legislation was an appropriate activity for an agency of the state.
28 Premier Frost was concerned about civil liberties — far more, certainly, than his predecessor at Queen’s Park. A country lawyer from Lindsay, Ontario, Frost entered elected politics in 1937, and joined the cabinet as provincial treasurer and minister of mines in 1943. Six years later, he became premier. He was interested in the representations that were being made and he promised to consider them seriously. Legislation banning restrictive covenants came first.[842] It was hardly an unpopular move; a 1949 Gallup poll revealed that 68 per cent of Canadians would refuse, when purchasing a home, to sign an agreement promising never to sell or rent it to people of certain races or colours.[843]
29 In 1950 the Conveyancing and Law of Property Act[844] prohibited restrictive covenants by declaring void covenants in deeds to property with limitations based on race, religion, creed, nationality, ancestry, or place of origin. The only serious flaw in the legislation was that the act was not retroactive. But for all practical purposes restrictive covenants in Ontario were finished. It was significant that this legislation was introduced in the Legislature within days of the late-January meeting between Premier Frost and the representatives of the seventy-odd interest groups who converged at Queen’s Park to press for government action in a field increasingly known as human rights. This new act signalled to the various groups a willingness on the part of the government to consider human-rights legislation. And inspired by this receptiveness they increased their lobbying activities.[845]
30 Indeed, 1950 turned out to be a very productive year. The legislation on restrictive covenants proved to be the beginning, not the high-water mark, of legislation in this area, notwithstanding the fact that the government was secure in power with a majority of the seats. Leslie Frost was a different kind of man from George Drew, and his legislative program reflected this. A political pragmatist, Frost realized that Canada and Ontario were becoming increasingly urban and cosmopolitan, and that if his government wished to be re-elected he had to take cognizance of this fundamental fact. Not everyone was pleased with these developments.
31 J. M. McAree, an influential Globe and Mail columnist, asked what reason there was for anti-discrimination legislation. In his view there was none, and he dismissed the projected reforms as just another instance of minority-group pressure nibbling at the rights and privileges long enjoyed by the majority. There were other critics of the proposed reforms as well; they argued, much more effectively, that one cannot impose morality by law. Nor can one legislate goodness and fair play. McAree, however, was an anachronism, a throw-back to an earlier age, and whatever constituency he represented — and it remained sizeable to be sure — had long ceased to hold any significant political power. His opposition to the projected reforms was fruitless.[846]
32 The reforms continued in the fields of labour, housing, and employment. One legislative enactment after another materially improved the lot of people in Ontario, and to a lesser extent elsewhere in Canada, particularly members of minority groups. None of the legislation was perfect, but progress was slowly being made. For example, the Fair Accommodation Practices Act[847] was passed in 1954, making it an offence to deny a person on the basis of race, religion, or ancestry accommodation, facilities, or services normally made available to the public. Incidents, however, still occurred. The world-renowned jazz pianist Oscar Peterson was refused a haircut in Hamilton, and while such incidents invariably caused a flurry of excitement in the press, they reflected the fact that systemic institutional discrimination could only be curbed, not eliminated, by legislative intervention. This remained true even when the full force of the act was brought down on discriminatory practices.
33 The Fair Accommodation Practices Act clearly outlawed discrimination in access to restaurants and hotels, but blacks in Dresden were still not allowed to go into cafés and order a meal. Judge W. F. Schwenger was appointed a one-man board of inquiry to investigate the situation. Judge Schwenger reported that the local restaurateurs brazenly admitted their discriminatory practices. The judge then submitted a report to the minister of labour, Charles Daley, in which he recommended that the restaurateurs in question not be prosecuted, as they could have been under the legislation, claiming that education, not prosecution, was the way to eliminate discrimination. The situation in Dresden had attracted national attention, which was renewed when Daley refused to release Judge Schwenger’s report; Daley argued that the communists were behind the problems in Dresden. Finally Daley agreed to prosecute the perpetrators, and it was widely rumoured at the time that he only did so following the direct intervention of the premier, who could not abide this sort of conduct. Charges were filed, and two restaurateurs were convicted of violating the act. Both appealed and Judge Grosch of the County Court quashed their convictions. The evidence was clear that the two charged had refused to serve blacks. Yet Judge Grosch found that ignoring customers was not equivalent to denying them service. More than anything else, the episode illustrated the limits of antidiscrimination legislation. Eventually, blacks were served in Dresden, and a handful of prosecutions were authorized elsewhere in the province. But anyone intent on discrimination could not be effectively stopped. Much more effective was public attention and opinion, and that continued to change, undoubtedly in part because of the attention incidents like these attracted.[848]
34 More and more legislation was passed, and each act was a small step forward. It was a ‘revolution,’ the Canadian Labour Congress’s associate secretary, Sid Blum, wrote in a January 1962 article.[849] Not all the legislation passed in this period was of a liberal bent. Some was deliberately discriminatory. In Alberta there was both wartime and post-war legislation restricting Hutterites from buying or leasing land,[850] and this legislation was unsuccessfully challenged in court. While the legislation was clearly aimed at stopping the spread of Hutterite communities, the Supreme Court eventually found that it was not legislation in regard to religion but property, which, along with ‘civil rights,’ was, under the BNA Act, a provincial power. Eventually the Alberta Legislature repealed the act. There were some steps backwards, but the thrust of post-war legislation across Canada was directed at eliminating discrimination in Canadian life.
35 On the parliamentary front, following the report of the Senate Special Committee on Human Rights and Fundamental Freedoms, discussion on a bill of rights was virtually suspended, although draft bills of rights continued to be circulated by interested groups.[851] There was relatively little parliamentary consideration of the issue in part because of developments on the international scene. In 1949 Mao Tse-tung and the Chinese Communist Party drove the Nationalists off the mainland, and China was thus ‘lost.’ There were very serious troubles in Indo-China, which would eventually lead to the French withdrawal and the American arrival. The world was divided on East-West lines, and the gulf continued to grow. The climate worsened when senator Joseph McCarthy made a speech on 9 February 1950 in Wheeling, West Virginia, claiming to have the names of 205 ‘Communists’ employed by the State Department.
36 The June 1950 invasion of South Korea by North Korea warmed up the Cold War. And in the United States, and to a lesser extent, Canada, the governments responded in a variety of ways. In both countries government employees had their loyalty questioned, while those in the private sector, for instance, Canadian and American seamen, were ‘security screened’ because of the threat that some said they posed.[852] The Internal Security Act, popularly known as the McCarran Act, authorized this activity in the United States, while in Canada it was done by vaguely worded regulations passed by the governor in council. These events set back the fight for a bill of rights. It was not ‘rights’ that concerned some politicians, including the new leader of the federal Conservative party, George Drew, but the threat to national security posed by Canadian communists. Drew urged that repressive measures be taken to suppress the domestic threat,[853] and in doing so he was not alone. John Diefenbaker was also concerned about communist activities.[854] In a world beset with fear about another war, discussion about a bill of rights lost some of its urgency. Racial discrimination was now intolerable, but political discrimination persisted, and once again it was the communists who bore the brunt of the attack.[855] International events had caused Canadians to detour from the road to a liberal destination, to borrow the words of a historian of Canadian immigration policy.[856]
37 If international affairs were one reason why the campaign for a Canadian bill of rights was delayed, they were also one reason why the campaign resumed. In 1956, Soviet tanks entered Budapest, crushing the Hungarian revolt against the Russian rulers, but by that year the international climate had greatly improved. The death of Soviet dictator Josef Stalin, the election of American president Dwight Eisenhower, and the signing of an armistice in Korea, all did much to bring the Cold War to an end. So too did the eventual discrediting of Senator McCarthy. A high point in the United States was the unanimous decision of the Supreme Court in Brown v. Board of Education.[857] This decision effectively declared that ‘separate but equal’ public schools were in violation of American constitutional law. The ruling of the increasingly active Warren court demonstrated that racial segregation and constitutional rights were inconsistent with each other.[858] Canadians were well aware of this case, and approved. In the United States the Bill of Rights was, it seemed, an instrument of social justice, and more and more Canadians wanted a bill of rights of their own. A Canadian bill of rights returned to the political agenda following the June 1957 federal election, which put John Diefenbaker in power.
38 Louis St Laurent resigned as leader of the Liberal party and as a member of Parliament after his government’s defeat, and former minister of external affairs and Nobel Peace Prize winner Lester Pearson was elected leader. The son of a Methodist minister, Pearson had grown up in small-town Ontario, but he had wide experience of the world, if little of the House of Commons, as was reflected in his first act as leader of the official opposition. Pearson challenged Diefenbaker to resign even though the Conservative party held more seats in the House than did the Liberals. An experienced parliamentarian, Diefenbaker ridiculed Pearson, and in the general election that followed the Conservatives received a huge majority of seats. Diefenbaker now had the power to implement his dreams, including a Canadian bill of rights.
39 In 1958 Diefenbaker introduced Bill C-60, An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms. As pre-arranged, the bill was given first reading and then withdrawn. The intention was to provide an opportunity for study, discussion, and debate. It was a simple statute, no more, no less, for Diefenbaker knew that without agreement on a constitutional amending formula, the provinces would never accept a constitutionally entrenched bill of rights that put limits on the exercise of their powers.[859]
40 F. R. Scott considered the applicability of the Diefenbaker draft bill to the situation in Quebec, and his prognosis, from a civil-liberties point of view, was not encouraging.[860] Bora Laskin, a law professor at the University of Toronto and a future Chief Justice of Canada, predicted that the bill would have a role as a political charter, and none other. The bill of rights, Laskin wrote, ‘unsupported by any enforcement provisions to give it an independent vitality, cannot be relied upon to open a new chapter in judicial law-making. It will remain largely a hair shirt for Parliament itself, with such reinforcement as may come from its public character and from public vigilance.’[861] Indeed, there was little dispute from the time Diefenbaker first introduced his bill that it was symbolic but not much else.[862] One reason why the Liberal party had never introduced a bill of rights was its view that a statute alone would only raise false hopes. There were also political considerations at work, but the Liberals rightly pointed out that constitutional reform was required before a bill was passed. Diefenbaker, in contrast, argued that a bill, even if it was just a statute, was an indispensable step in a longer-term process of constitutional reform. Without a constitutional amending formula there was not a great deal that he could do other than make the War Measures Act subject to the bill of rights. In that way, at least, the bill of rights would ensure that in the event of another war, or some national emergency, the federal government could not infringe civil rights with unrestricted abandon.
41 No federal politician could make the provinces agree to limit their powers, nor was the time yet right for major constitutional reform. But with his huge majority in the House, Diefenbaker had it in his power to ensure that all future invocations of the War Measures Act were explicitly subject to the bill of rights. Instead, Diefenbaker did the reverse and in so doing he proved that where civil liberties were concerned his record, like his bill of rights, was just a collection of words.
42 Diefenbaker claimed that his record was second to none. His memoirs are filled with accounts of his various civil-liberties activities, and it is a fact that Diefenbaker opposed the government treatment of the Jehovah’s Witnesses, but not when it mattered. Diefenbaker had an immense capacity for self-deception combined with an attraction for the bandwagon, and this is one of the reasons why he was so much in favour of a bill of rights. That there was little to his professed civil-liberties beliefs is amply illustrated by the bill of rights he introduced in Parliament, which was eventually passed, that provided that the War Measures Act overrode the bill of rights. All the liberties that Diefenbaker claimed to cherish, not to mention the wartime and post-war infringements of civil liberties that he claimed to abhor, continued to be subject to the wide and virtually unfettered power of the executive in time of national emergency. Why had Diefenbaker not repealed the War Measures Act? ‘The reason was simple: Canada was living in dangerous times internationally, and hanging over the world was the fear of an atomic holocaust.’[863] Instead of making the civil-liberties violations of the past just that, a lesson for history, Diefenbaker did the reverse. It is on this basis that Diefenbaker’s bill of rights must be judged a fraud.
43 While not apparent from the bills of rights later printed in large numbers and distributed across Canada, there was a section in it that revealed its true character. Section 6 amended the War Measures Act to the effect that anything done under the provisions of that act ‘shall be deemed not to be an abrogation, abridgement or infringement of any right or freedom recognized by the Canadian Bill of Rights.’ As the dean of the University of Alberta Faculty of Law, W. F. Bowker, observed: ‘Of all the actions the Dominion government has ever taken, some of the measures under that Act are the most open to question. The handling of the Japanese during World War II perhaps comes first and one can include aspects of the general internment programme under the Defence of Canada Regulations, and some aspects of the Espionage investigation. Yet the Bill affirmatively ensures that they might happen again.’[864] As another commentator put it, ‘when interference with civil liberties is most likely, protection of these liberties is least available.’[865]
44 Diefenbaker had an answer for his critics. ‘We decided that Parliament should have the right to review the circumstances under which the War Measures Act is invoked.’[866] It is correct that there was provision in the bill that required any government invoking the War Measures Act to immediately lay the proclamation of the act before the House of Commons (and if the House was not sitting to lay the proclamation before it within fifteen days of its next sitting). The War Measures Act itself provided that issuance of a proclamation was conclusive evidence that an emergency existed, but by this amendment to the act, once the proclamation was brought before Parliament, any ten members of Parliament could, by notice of motion, require a debate of the proclamation. Moreover, both Houses of Parliament could, by resolution, rescind the proclamation. However, if the debates from the Second World War are any guide, in national emergencies the government is more likely to be criticized for insufficient, not excessive, vigour in the protection of what is then perceived to be in the best interests of the state.
45 Instead of amending the War Measures Act to provide that the bill of rights would not apply when the act was invoked, the act could have been amended to ensure that it did apply, and that certain fundamental rights continued in war and in peace. It is well worth mentioning that when the Korean War broke out, Louis St Laurent did not, as he could easily have done, invoke the War Measures Act. Instead, Parliament, on 21 March 1951, passed the Emergency Powers Act. There were wide executive powers in the legislation, but it was a far cry from the discretionary authority given to council by the War Measures Act. The preamble to the act referred to the ‘fundamental liberties of the individual,’ and the legislation specifically restricted the government from arresting, interning, or deporting anyone outside of what was ordinarily provided for in the law. It was extremely noteworthy that an expiration date was written right into the legislation, subject to Parliament’s extending its operation. There was criticism of the act, of course, and in pointing out that Canada had from 1939 forward been subject to some form or another of emergency legislation, the critics made a telling point.[867] The act was, however, significant for its explicit recognition that certain rights could not be infringed. That was surely more important than a bill of rights that expressly provided for its own complete suspension when the War Measures Act was invoked.
46 Diefenbaker was taken to task, inside and outside the House of Commons, for failing to guarantee the right of Canadians to remain in Canada and for failing to ensure the availability of judicial review for anyone taken into custody at any time. These issues, and they were not the only ones raised in the special committee formed to hear evidence and receive briefs on the bill, were difficult ones, for their resolution required something more than a resort to platitudes about rights. Diefenbaker promised that he would establish a House of Commons committee to consider the War Measures Act, but that committee was never struck.[868]
47 On 4 August 1960 the bill of rights was given a unanimous third reading in the House of Commons. The following day it was passed by the Senate, and on 10 August 1960 it received Royal Assent.[869] As far as the Jehovah’s Witnesses were concerned, the Diefenbaker bill of rights did not do them much good. The bill applied to federal law only, and by and large, it was in the provinces, like Quebec, where their rights were most frequently attacked. Moreover, another national emergency, in October 1970, revealed that Canadians had no more rights in a crisis than they had enjoyed during the Second World War.[870] Parliament’s appointment with destiny had, it seemed, passed.[871]
48 As it turned out, the appointment with destiny was merely delayed. Pierre Trudeau became prime minister and brought with him an agenda that ultimately led to an agreement on a constitutional amending formula, patriation of the BNA Act, and entrenchment of the Charter of Rights and Freedoms. No mere statute, the Charter is part of the fundamental law of Canada. The Charter lists rights, and guarantees them to everyone in Canada. The campaign for a Canadian bill of rights was finally at an end.
49 The Charter of Rights is the culmination of a long process that began before the Second World War, accelerated during the war, and bore fruit after the war. In this process, the Jehovah’s Witnesses played an important part, although they did not volunteer for the role. They pushed Canadians' rights to their existing limits, and those rights were found lacking. They then made their cause every Canadian’s cause, and one of the results was the long process of discussion and debate that led to the Charter of Rights. The Witness struggle continues, and their battle in the courts for recognition of their religious beliefs remains as they fight for recognition of a ‘right’ to refuse, on behalf of their children, unwanted transfusions of blood. How that battle will end no one can say. What can be said is that in their earlier struggles for freedom, and in their ongoing confrontations with the state, the Jehovah’s Witnesses helped create a climate of opinion, an attitude, that continues to influence the way in which we think about civil rights.
50 The Charter is no panacea; in every generation there will always be dissenters, such as the Jehovah’s Witnesses, as well as ‘strangers in our midst,’ such as the Canadian Japanese. The difference, of course, is that Canadians now have an instrument of constitutional law to fight infringements of civil rights. However, the Charter is, at best, an imperfect instrument for the protection of basic human rights. By its very terms the Charter permits Parliament and the provincial legislatures to pass laws that contravene basic Charter rights. Moreover, the lessons of history are hardly promising. During the Second World War proved all too willing to set aside Canadians' rights for what was then believed to be the national good. Acting in fear and in haste, people and institutions acted badly. And there is no reason for confidence that this will never happen again, even though formal legal protection now exists. The Charter may become a bulwark of freedom, but only the people can prevent arbitrary action by the state.
Aberhart, Bill
21
ACLU
See American Civil Liberties Union
Adelaide
109
Adelaide Company of Jehovah’s Witnesses Incorporated v. The Commonwealth
108–13
Adelaide Hoodless School
132, 136
Adventism
3
Advice for Kingdom Publishers
59, 70, 71
Alabama
152
Alberta
21, 94, 120, 129, 143, 159, 237, 243, 265
Alberta Legislature
144, 159, 265
Alberta School Act
143, 159
alternative service
See conscientious objection; conscription; Jehovah’s Witnesses and conscription
Alternative Service Regulations
See conscientious objection; conscription; Jehovah’s Witnesses and conscription
American Bar Association
148
American Civil Liberties Union
55, 56, 146, 148, 151
American Constitution
See Constitution, United States; see also Bill of Rights (United States)
American-German Bund
See Bund
American Legion
57, 74, 151
American Revolution
168
Anderson, P. M.
64, 65, 117
Anglicans
235
Arcand, Adrien
66, 74, 75, 227
Archambault, Edouard
245, 247, 248
Arizona
152
Armageddon
3, 4, 6, 8, 74, 75, 164, 211
Arkansas
152
Association for Civil Liberties (Toronto)
262
atheism
17, 18
Atlantic Charter
229
Australia
108; see also conscientious objection, Australia
Baptist Convention of Ontario and Quebec
54
Barnette
See West Virginia State Board of Education v. Barnette
Barnette v. West Virginia State Board of Education
See West Virginia State Board of Education v. Barnette
Barry’s Bay
73
Bennett, R. B.
16, 23
Bernier, Paul
64, 65
Bethel
57, 58, 215, 216
Bible
3, 4, 54, 69, 70, 74, 80, 81, 93, 97, 102, 118, 124, 133, 134, 138, 141, 187, 192, 194, 197, 250
Bible Students
3
Biddle, Francis
55, 56
Bien, Clarence Allen
205–6
Bill of Rights (Canada)
xii, 11, 13, 20–1, 25, 40, 62, 95, 158, 227, 229, 230; passage of 254–70
Bill of Rights (United States)
12, 13, 20, 108, 112, 123, 147, 152–3, 155, 156–7, 217, 228, 266
Black, Hugo
152–3, 157
Blackstone
96
Blitzkrieg
46
BNA Act
See British North America Act
Borden, Robert
30
Boucher
236–41, 244, 248, 252, 254
Boucher, Aimé
236–41
Bowker, W. F.
268
Bramwell, Baron
153
Brandeis, Louis
237
Brethren in Christ
169, 171, 214
Britain
14, 15, 20, 26, 40, 41, 46, 47, 48, 49, 51, 61, 90, 128, 172, 202, 226, 237; see also conscientious objection, Britain
British Columbia
173, 191, 197
British Columbia Court of Appeal
195–6
British Constitution
See Constitution, Britain
British North America Act
12, 13, 20, 21, 24, 39, 44, 110, 123, 208, 227, 243, 244, 255, 258, 270–1
British Parliament
See Parliament (Britain)
Brooklyn
57, 58, 68
Brown v. Board of Education
266
Bruce, H. A.
52, 59, 60
Buck, Tim
17, 44, 87, 99
Budapest
266
Bund
117–18
Burbidge, Henry Arnold
132–9 passim, 146, 161
cabinet
14, 21, 22, 25, 30, 32, 33, 34, 40, 42, 61, 90, 104, 105, 175, 210, 225, 255, 266
Calder, R. L.
11, 59
Calgary Herald
107
Canada Gazette
49
Canadian Association for Adult Education
262
Canadian Bar Association
91, 257
Canadian Bar Review
241
Canadian Civil Liberties Union
19, 20, 21, 22, 25
Canadian Dental Corps
174
Canadian Forum
140
Canadian Friends Service Committee
175
Canadian Institute of Public Affairs
235–6
Canadian Jewish Congress
260–1
Canadian Labour Congress
265
Canadian Labour Defence League
88
Canadian Legion
210
Canadian National Railway
237
Canadian Pacific Railway
173
Canadian Radio Broadcasting Commission
9
Cannon, Lawrence Arthur
243
Cardin, P. J. Arthur
8, 30, 165, 230
Carroll, G. R.
213
Cartwright, J. R.
163, 164, 237
Catholic Educational Review
151
CCF
See Co-operative Commonwealth Federation
CCLU
See Canadian Civil Liberties Union
censorship
7, 9, 40, 42, 63, 108, 109
Chalk River
184, 185, 186, 211, 212
Chamberlain, Neville
32, 46
Chapman, Percy
59, 60, 196
Charlesworth, Hector
9
Charpentier, F.
63
Charter of Rights and Freedom
270–1
Chevrier, E. R.
47, 48, 261
China
265
Chinese Communist Party
265
Christ, Jesus
3, 4, 5, 6, 55, 57, 59, 74, 75, 93, 106, 192, 210, 234
Christians
4, 5, 6, 106, 113, 197, 238–9, 240
Christie, Loring
20, 21
Christie v. The York Corporation
202
Church of Christ
205–6
Church of England
192
Churchill, Winston
46
civil liberties
xii, 24, 42, 43, 45, 46, 87, 88, 94, 122, 202; post-war passage of legislation to protect 226–70 passim
Civil Liberties Committee
See Montreal Civil Liberties Committee
civil rights
xii, 24, 56, 87, 158; postwar passage of legislation to protect 226–70 passim
Civil War
12, 228
Clarion
37, 47, 50
Clark, Lewis
116–17
Clarté
37
clergy
See Roman Catholicism
Cobourg
54, 73
Cohen, Jacob Laurence
59–60, 64, 69, 82–3, 85, 87, 94, 101, 132–40 passim, 145, 159, 196, 197
Cold War
257, 265, 266
Coldwell, M. J.
185, 209
Coolidge, Calvin
149
Committee on Emergency Legislation
32–3, 34
Committee on Human Rights and Fundamental Freedoms
255–6, 258, 259
Common Law
13, 83
Commonwealth
51, 108
Communism
See Communist Party of Canada
Communist International
17
Communist Party of Australia
108, 110, 114
Communist Party of Canada
17, 18, 20, 22, 23, 24, 32, 37, 38, 39, 40, 44, 45, 46, 47, 48, 49, 50, 60, 61, 62, 69, 78, 85, 87, 88, 92, 95, 98, 99, 102, 103, 104, 105, 108, 114, 227, 231, 256, 257; ban of 49, 50, 65, 66, 84
Communists
See Communist Party of Canada
Conant, Gordon Daniel
33, 47, 50, 69, 99, 120–1, 127, 128, 129, 130, 131, 140
Confederation
12, 123
Conference of Historic Peace Churches
169, 171, 172
Congress
See United States Congress
Congress of Industrial Organization
18
conscientious objection
4, 106, 165–89, 190–223; Australia 213–14; Britain 220–2; United States 214–20, 221
conscription
15, 27, 30, 49, 61, 81, 88, 90, 108, 116, 165–89, 190–223
Conservative party
16, 26, 30, 31, 45, 72, 123, 227, 229, 231, 266, 267
Conservatives
See Conservative party
Consolation
11, 53, 67
Constitution:
Australia 110–11; Britain 13, 120; Canada, see British North America Act; United States 12, 13, 55, 123, 147, 156, 228
Convention on Racial Discrimination
229
Co-operative Commonwealth Federation
9, 28, 45, 81, 180, 185, 211, 224, 225, 227, 230, 251
Court of King’s Bench (Quebec)
See Quebec courts
Court of King’s Bench (Saskatchewan)
205
Covington, Hayden
58, 77, 101, 115, 118, 153–4, 196, 219
Criminal Code
10, 17, 22, 38, 232, 234
Criminal Law
See Criminal Code
Croll, David
259
Daley, Charles
264
Davidson, Charles Bryce
194
Davidson, J.
185
Davis, T. C.
169, 170
Defence of Canada Regulations
31, 47, 49, 58, 62, 63, 64, 69, 71, 72, 75, 77, 82, 83, 85, 86, 87, 92, 95–8, 99, 114, 115, 117, 118, 121, 122, 127, 130, 137, 140, 143, 176, 179, 190, 268; amendments to 38–41, 42–4, 45, 65, 84, 99–100; debates on 52, 81, 101–3, 104–7; description of 33–7
Defence of the Realm Act
41
de Gaulle
61
Denmark
46
Department of the Attorney General
126
Department of Education
130, 131, 133, 139, 141, 142
Department of External Affairs
109, 122
Department of Justice:
Canada 43, 62, 64, 77, 80, 81, 95, 99, 103, 104, 106, 107, 116, 117, 120, 122, 131, 180, 181–2; United States 8, 56, 57, 58
Department of Labour
167, 173, 181, 194, 208, 209
Department of Mines and Resources
xi, 184
Department of National Defence
122, 180
Department of National Health and Welfare
225
Department of National War Services
122, 165, 166, 170
Department of Reconstruction
255
Department of State
101, 265
Department of Veterans Affairs
225
Depression
9, 27
Dexter, Grant
88
Diefenbaker, John
104, 211, 229, 258, 259, 266, 267–70
disallowance power
21–3
Discrimination Prevention Bill
227
Dominion Communist-Labour Total War Committee
88
Donald
141–6 passim, 158–64 passim, 191, 203, 224
Donald, Graham
141–6 passim, 158–64 passim
Donald, Robert
141–6 passim, 158–64 passim
Donald, Robert Jr.
141–6 passim, 158–64 passim
Douglas, C. H.
21
Douglas, T. C.
225
Douglas, William O.
153, 157
Doukhobors
94, 167, 175, 206
Dresden
228, 264–5
Drew, George
72, 123–4, 227–8, 263, 266
Drocourt-Quéant
145
Duff, Lyman
72, 96, 243
Dunkirk
46
Duplessis, Maurice
19, 20, 22, 24, 25, 27, 28, 30, 31, 230–53 passim, 255, 260
Economist
42
Edmonton
120, 174
Edmonton Bulletin
120
Edwards, W. Stuart
58, 117, 131, 176, 181
Eggleston, W.
63
Eisenhower, Dwight
266
Ellison
134, 139, 141, 146
Ellison, Arthur
129, 131–9 passim, 141, 161
Ellison, Eric
131–9 passim, 141
Elvey, Charles
234–5
Emergency Powers Act
269
Emergency Powers (Defence) Act
41–2, 49, 61
enemy aliens
36, 49
England
See Britain
English Channel
46
Estep
219
Estep, William Murray
219
Estey, J. W.
52–3
Estonia
31
European Convention on Human Rights
229–30
Fair Accommodation Practices Act
264
Fair Employment Practices Committee
264
Falbo
218–19
Falbo, Nick
218–19
Fascism
32, 38, 39, 40, 48, 50, 61, 74, 84, 85, 97, 227
Fascists
See Fascism
federal elections
44–6
federal government
60, 76, 117, 206, 259, 269
Finland
31
First Amendment
See Bill of Rights (United States)
First World War
7, 8, 16, 17, 27, 30, 33, 41, 44, 61, 76, 108, 145, 149, 167, 171, 214
Fiset, Eugene
89–90
flag salute
See Jehovah’s Witnesses, flag salute and
Flanders
46
Fortnightly Law Journal
202
Fort Osborne
178–9, 182, 194
Fossum, J.
79
Fourteenth Amendment
See Bill of Rights (United States)
France
13, 46, 51, 61, 108, 165, 265
Frankfurter, Felix
148–9, 150, 151, 154, 155, 157–8, 237
Fredericton
45
freedom of the press
22
freedom of religion
12, 74, 86, 87, 94, 97, 99–100, 101, 111–13, 114, 118, 119, 120, 187, 233–53 passim
freedom of speech
9, 11, 12, 22, 28, 95, 112, 233–53 passim
freedom of worship
See freedom of religion
Freedom of Worship Act
62, 242, 244
French Canadians
See Quebec
Frost, Leslie
262, 263
Gakeff, David
140
Gakeff, Lambro
140
Galbraith Public School
143
Gardiner, James Garfield
165, 171, 172, 208
Gaudrault, Father Pie-Marie
90
German Canadians
222; see also enemy aliens; internment
Germany
14, 46, 56, 74, 92, 97, 168
Gilead Bible College
194
Gillanders, John Gordon
162–3
Glass, John
227
Globe and Mail
33, 35, 46, 48, 78, 103, 106, 107, 129, 130, 190, 263
Gobitis
See Minersville School District v. Gobitis
God
3, 4, 54, 67, 74, 75, 80, 85, 90, 93, 96, 100, 110, 118, 120, 125, 128, 161, 175, 176, 180, 192, 194, 207, 216, 217, 233, 234, 258
Godbout, Adelard
230–2
Gospel Witness
54
Gouzenko, Igor
256–8
governor general
21, 22
governor in council
See cabinet
Great Britain
See Britain
Greer, V. K.
142
Greenlees
196–205 passim, 206
Greenlees, Leo
196–205 passim, 206, 222
Grosch, Judge
264
Groulx, Lionel
27
Grundy, Frank
214
Guelph
72
Guelph Reformatory
185
Hamilton
127–46 passim, 158–64 passim, 224, 260, 264
Hamilton Board of Education
127–46 passim, 158–64 passim, 224, 237
Hamilton Juvenile Observation Home
130, 139
Hamilton Spectator
130
Hammond, E. D. L.
129
Hansell, Ernest
94, 179
Hansler, Willem
177
Hanson, R. B.
45, 107
Harkness, R. B.
177
Harvard University
237
Hawkshaw, C. W.
140
Hepburn, Mitchell
18, 31, 44, 47, 99, 123, 124, 129, 259
High Court of Australia
108, 110
High Court of Justiciary
193
High Court of Ontario
See Supreme Court of Ontario
High Schools Act
160
Hitler, Adolf
29, 30, 74, 87, 90, 97, 257
Hodgson, Walter C.
191, 193
Hogg, Frederick Drummond
196–8, 200
Holocaust
227
Holt, Mr Justice
214
Hong Kong
72
Hoornveldt, Teije
190–1
Hope, John Andrew
145–6, 158–61 passim, 162, 191
Hopkins County
58
Houde, Camillien
62
House of Commons
See Parliament
How, W. Glen
118, 120–1, 145, 160, 162, 163, 194, 196, 198–203 passim, 212
Hughes, Charles Evans
148, 150
Hughes, Joseph
78
Hughes, William
109
human rights
See civil liberties
Humphrey, John
229
Hungary
231, 266
Hutterites
167, 210, 265
Indo-China
265
Internal Security Act
266
International
See Communist International
International Bible Students Association
76, 77, 101, 114–15, 118–19, 195
interment
34, 49, 66, 69, 82, 84, 87, 88, 90, 95, 102, 108, 227
Italian Canadians
222; see also enemy aliens; internment
Italy
32, 51
Ives, William Carlos
143
Jackson, Robert H.
154–7, 158, 162
Janz, B. B.
170, 171, 174
Japan
122, 150, 198, 207, 214, 218, 224
Japanese Americans
58, 150
Japanese Canadians, internment and treatment of
xi, 58, 61, 94–5, 98, 122, 164, 222, 237, 255, 258, 268–9, 271
Jarvis Street Baptist Church
54, 124
Jehovah’s Witnesses
xi, xii, 15, 25; activities while under ban and effort to remove ban 65–122; ban of and removal of ban 52–3, 58–9, 65, 114–15, 118–19, 121, 181; ban of and removal of ban in Australia 108–13, 213; conscription and 165–89, 206–23; flag salute and 54–6, 81, 86, 93, 96, 97, 106, 110, 118, 123–64; history and beliefs 3–13; pre-Second World War treatment of 54–7, 62–5; post-Second World War activities and 224–53, 255, 258; pre-ban legal problems and 59–60; ministerial exemption and 176, 182, 190–223; national anthem and 123–64; public schools and 123–64; Roman Catholic Church and 28, 62–3, 64–5, 74, 102, 107, 116, 117, 230–53 passim
Jews
xi, 235
Jones v. City of Opelika
152–3
Judaism
74
Judicial Committee of the Privy Council
21, 202, 237
Juvenile Delinquents Act
132
Kamouraska
15, 91
Kearney, James Joseph
151–2
Kerwin, Patrick
202, 242, 243
Khrushchev, Nikita
257
King, William Lyon Mackenzie
14, 16, 21, 23, 25, 30, 31, 32, 38, 39, 40, 41, 43, 44, 45, 46, 47, 48, 61, 65, 66, 81, 82, 90–1, 92, 96, 98, 99, 101, 114, 117, 121, 165, 172, 181, 224, 226, 230, 237, 246, 255, 259
Kingdom Halls
59, 115, 206
Kingdom of God
4, 119
Kingdom School
133, 134, 141, 142, 144, 145
Kingston
53
Kinler
10
Kirkland Lake
120
Kitchener
140, 141, 207
Knorr, Nathan
117, 119, 122
Kootenay
64
Korean War
269
L. family
139, 142
Labour Party
108
Labour Progressive Party
See Communist Party of Canada
L’Action Catholique
62, 64, 65
LaFlèche, L. R.
169, 170–1
Lake Couchiching
236
Lapointe, Ernest
29, 30, 31, 33, 38, 39, 40, 41, 42, 43, 44, 45, 47, 48, 50, 52, 59, 62, 63, 64, 65, 66, 94, 103, 116, 165, 230; background and beliefs 15–26; death of 88–91; mental breakdown of 48, 66, 81, 82
Laskin, Bora
268
Latham, John Greig
111–12
Latvia
31
Laurier, Wilfrid
15
Law Society of Upper Canada
198
lawyers
4, 12, 19, 27, 28, 45, 46, 57, 58, 60, 114, 118, 191, 242
Lazure, Wilfrid
234
League for Social Reconstruction
251
League of Nations
226
Le Devoir
28, 230
Legislative Assembly (Quebec)
28, 29, 30, 91, 230, 233–4, 247, 249, 254
Lennox, Charles J.
192–3, 195, 197
Leopold, Johnny
69, 92, 117–18
Lethbridge
143, 144, 159
libel:
blasphemous 10; seditious 10
Liberal party
14, 16, 17, 24, 26, 30, 31, 45, 46, 52, 53, 121, 123, 224, 230, 232, 266, 267
Liberals
See Liberal party
Lincoln, Abraham
149, 155
Lindsay
263
Lithuania
31
London
78, 139, 174
Lord’s Memorial Day Supper
100, 211
Lorentsen, Edith
194
Lounsbury, Grace
141
Lowell, Margaret
133–4, 138, 141
LPP
See Communist Party of Canada
Luther, Martin
6
McAree, J. M.
263–4
McArthur, Duncan
126
McCarran Act
266
McCarthy, Joseph
265, 266
Macdonald, John A.
12
Macdonnell, Ian
190–1
McGill University
229, 246
McGill University Progressive Conservative Association
246
MacInnis, Angus
81, 208
Mackay, Keiller
261
Mackenzie, Ian
255
MacKinnon, C. Gordon
233, 248
MacKinnon, J. F.
207, 208, 209, 210
Maclean, Donald
205
Maclean’s
46
Macleod
94
MacLeod, A. A.
227
MacNamara, Arthur
177, 182, 183, 184, 185, 187, 194, 208, 209, 210, 212
McRuer, J. C.
46
Manchester
60
Magone, C. R.
126, 128
Manion, Robert
45
Manitoba
60, 129, 142, 178
Manitoba Court of Appeal
143, 194, 195
Martin, Paul
182
Maybank, Ralph
102
Medicine Hat
237
Meighen, Arthur
48
Melbourne
108
Mennonite Central Relief Committee
169, 171, 172
Mennonites
97; conscientious objection and 167–75, 184, 207–8, 210, 214, 222, 223
Military Service Act:
Canada 1917 167; Britain 1939 220
Millard, Charles
44
Minersville
See Minersville School District v. Gobitis
Minersville School District v. Gobitis
55, 56, 57, 58, 107, 146–53
Ministry of Labour
221
Missouri
3, 4
Mitchell
120
Mitchell, Humphrey
181, 185, 187–8, 194–5, 208, 210, 211–12
mobilization boards
See conscientious objection; conscription; Jehovah’s Witnesses and conscription
Moffat, Pierrepont
101
Moncton
237
Monthly Review
50
Montreal
27, 40, 46, 62, 90, 100, 235, 245, 248, 258
Montreal Civil Liberties Committee
246, 247
Montreal Gazette
245
Montreal Presbytery
246
Morison, M. B.
184
Mormons
55, 112
Morrell, Charles
96, 186
Morrell, Clayton
186
Morris, A. W.
145
Morrison, William
130, 131
Moscow
17, 114
Mosley, Sir Oswald
48
Moyle, Olin
57
Munich crisis
32
Murphy, Frank
153, 158
Mussolini, Benito
74
National Council for Democratic Rights
88, 102
National Emergency Transitional Powers Act
256–7
National Film Board
232
National Resources Mobilization Act
61, 81, 89, 165, 166, 167–8, 169, 175, 179, 181, 183
national security
See Defence of Canada Regulations
National Security Act
108
National Selective Service Mobilization Regulations
167, 181, 190
National Service Act
220
National Service (Armed Forces) Act
220
National Unity Party
66, 227
National War Services Regulations
167, 168, 176, 181, 190
Naval Services Bill
15
Nazis
See Nazism
Nazism
32, 38, 46, 48, 55, 58, 61, 63, 74, 88, 109, 114, 118, 153, 165, 226–7
New Brunswick
53, 237
New Deal
148, 149, 158
Newmarket
177
New Republic
151
New Statesman and Nation
42
New Testament
7
New Westminster
79
New York
53, 68, 76, 194, 195, 204
New York Times
158
New Zealand
109
Nichols, Carlton
125
Nielsen, Dorise
45
Norman, A. H.
78
North Battleford
46
North Korea
265
Norway
46
Noseworthy, Joe
180, 185
Notre Dame Cathedral
90
Notre Dame College of Law
151
NRM Act
See National Resources Mobilization Act
October Crisis
270
Office of Press Censors
63
Office of Public Information
85–6
Ogdensburg Agreement
81
Ontario
46, 47, 53, 54, 69, 73, 77, 99, 103, 120, 123, 124, 127, 139, 141, 168, 171, 177, 185, 225, 228, 231, 259, 260, 263, 264, 267
Ontario Court of Appeal
37, 160, 161, 164, 198, 201, 203, 224
Ontario Legislature
44, 144, 262, 263
Ontario Police Association
50
Ontario Provincial Police
129
Opelika
See Jones v. City of Opelika
Order of Trial
59
Osgoode Hall Law School
60
Oshawa
260
Oshawa strike
18, 24, 47, 259
Ottawa
46, 47, 50, 64, 67, 88, 91, 92, 99, 100, 103, 115, 116, 117, 118, 165, 172, 173, 176, 191, 207, 211, 224, 229, 230, 232, 256, 258
Ottawa Citizen
85, 109, 126, 245
Ottawa General Hospital
48
Ouellette, Mrs René
234–5
Oxford University
251
Padlock Act
18, 19, 20, 21, 23, 24, 25, 28, 38, 39, 230–2, 245, 249–50, 252, 258
Parkdale
52
Parliament:
Britain 12, 20, 41, 47, 110, 255; Canada 8, 9, 12, 13, 14, 15, 17, 22, 23, 26, 30, 33, 36, 40, 41, 45, 46, 48, 52, 64, 65, 81, 82, 83, 84, 86, 92, 94, 96, 101, 102, 103, 104, 105, 106, 114, 122, 179, 185, 204, 208, 210, 212, 227, 229, 242, 255, 256, 259, 266, 267, 268, 269, 270, 271
Passchendaele
145
patriotism
7
Pearl Harbor
214
Pearson, Lester
266–7
Pembroke
126
Pennsylvania
146
Permanent Joint Board of Defence
81
Perney, Frank E.
127
Peterson, Oscar
264
petitions
8, 9, 118–19, 120, 246, 254–5, 258–9
Pittsburgh
3
Poland
14, 231
Pope
See conscientious objection; conscription; Jehovah’s Witnesses and conscription
Power, Charles
27, 29, 30, 42, 60, 165, 230, 246–7
Presbyterian Church
192
Price, H. F.
79–80
Prince Edward Island
176
Priests
See Roman Catholicism
Privy Council
66, 122
Protestantism
See Protestants
Protestants
6, 74, 87, 123, 130, 133, 235
Public Schools Act
132, 135, 136, 160
Quakers
97, 167, 175, 214
Quebec
xi, xii, 9, 10, 13, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 37, 38, 45, 59, 61, 62, 63, 65, 81, 88, 89, 92, 93, 98, 103, 104, 105, 116, 119, 120, 166, 230–53 passim, 254, 255, 256, 258, 260
Quebec City
11, 15, 43, 62, 91, 241, 243, 248, 251
Quebec courts
10, 11, 13, 20, 23, 233–53 passim
Quebec Liquor Act
246
Quebec Liquor Commission
245, 247
Quebec nationalism
15, 24
Quebec’s Burning Hate
233–4, 236, 240, 241
Queen’s Park
See Ontario Legislature
Quelch, Victor
107
Racial Discrimination Act
227–8, 261, 262
Ralston, J. L.
178–9
Rand, Ivan
164, 237–53 passim
RCMP
See Royal Canadian Mounted Police
Re Drummond Wren
261
Re McDougall and Waddell
261
Re Noble and Wolfe
261–2
Red Cross
58, 86, 92, 118, 170, 174, 186, 207, 209, 212
Regina
174, 225
Regina Manifesto
251
Remnant, S. J.
191–2
restrictive covenants
261–2
Rex v. Stewart
37
Richwood
56
Riley, H. J.
180
Robertson, Robert Spelman
199–201
Robinette, John J.
120–1, 199–200
Robinson, David A.
128
Roebuck, Arthur
259
Rollo, Walter
130–9 passim
Roman Catholic Church
See Roman Catholicism
Roman Catholic hierarchy
See Roman Catholicism
Roman Catholicism
xi, 5, 6, 7, 10, 11, 16, 18, 24, 27, 28, 29, 54, 61, 62, 63, 64, 67, 74, 75, 88, 89, 90, 96, 97, 102, 103, 107, 116, 117, 123, 151, 230–53 passim
Roncarelli
236, 245–53, 254
Roncarelli, Frank
236, 245–53
Roosevelt, Franklin
30, 158
Rose, Fred
256
Rose, Hugh Edward
139, 141
Rosenheath
126
Rowe, Earl
123
Rowell-Sirois Commission
91
Royal Canadian Army Medical Corps
174
Royal Canadian Mounted Police
18, 32, 39, 40, 49, 50, 53, 54, 58, 62, 63, 67, 69, 73, 77, 78, 79, 80, 85, 87, 93, 95, 99, 100, 101, 103, 117, 119, 120, 121, 122, 126, 127, 233, 249
Royal Commission on Coal
198
Ruman, Frances
143
Ruman, Mary
143
Ruman v. Board of Trustees of Lethbridge School District
143, 159
Russell, Charles Taze
3
Rutherford, Judge Joseph F.
3, 4, 6, 7, 8, 9, 53, 54, 55, 57, 63, 105, 109, 117, 125, 148
Sacco, Nicola
60
St Laurent, Louis
91, 92, 98, 99, 100, 102, 103, 104, 105, 106, 107, 114, 116, 118, 119, 121, 180, 187, 188, 194–5, 255, 259–60, 277, 269
St Lawrence Seaway
40, 251
Salsberg, J. B.
227
Saltmarsh
193, 195, 196, 197
Salvation Army
115
San Antonio Bar Association School of Law
58
Sandwell, B. K.
235–6
Saskatchewan
46, 52, 53, 75, 76, 79, 104, 106, 142, 165, 171, 205, 225, 260
Saskatchewan Bill of Rights
229
Satan
4, 5, 6, 57, 67, 97, 105, 110, 115, 118, 125, 229, 233
Saturday Night
198, 235
Saumur
236, 241–5, 247, 248, 252, 254
Saumur, Laurier
241–5
Schmellovich, Mary
141
school prayer
See Jehovah’s Witnesses, public schools and
Schroeder, Walter Frank
261–2
Schwenger, W. F.
264
Scotland
193, 197
Scott, F. R.
22, 236, 247, 250–1, 267
Second World War
xi, 10, 13, 31, 61, 63, 72, 92, 106, 108, 114, 121, 153, 165, 172, 175, 181, 207, 213, 214, 218, 224, 232, 251, 257, 260, 270, 271; national security and 30–44, 46–50; national unity and 14–15, 26–7, 30, 64, 88–9, 116, 166, 226
Secretary of State
122
Section 98
17, 18, 22, 25, 33, 38, 39, 257
security screening
266
sedition
10, 55, 232, 241; see also Boucher
selective service
See conscientious objection; conscription; Jehovah’s Witnesses and conscription; Jehovah’s Witnesses and ministerial exemption; National Selective Service Mobilization Regulations; National War Services Regulations
Selective Training and Service Act
214, 219
Senate
See Parliament (Canada)
Senate Special Committee on Human Rights and Fundamental Freedoms
259, 265
separate schools
16
Seventh-Day Adventists
78, 195, 232
Shields, Thomas Todhunter
54, 124
Sicily
106
Skelton, Oscar Douglas
32, 38
Smith, A. E.
88
Smith, Sidney
195
Social Credit party
21, 39, 94, 107
South Africa
109
South Korea
265
Soviet Union
13, 17, 31, 38, 85, 87, 88, 92, 98, 102, 231, 232, 256–7, 266
Spanish Civil War
28, 231
Special Committee on the Defence of Canada Regulations.
See Defence of Canada Regulations
Stalin, Josef
31, 74, 257, 266
Stein, A. L.
234–5, 247, 249, 250
Stewart
191–6 passim, 204
Stewart, Alistair
227, 229, 259
Stewart, Douglas
37
Stewart, Earl K.
191–6 passim
Stone, Harlan
149–50, 153, 154
Sudbury
194
Supreme Court Act
202–3
Supreme Court of Canada
xi, 11, 22, 23, 52, 72, 163, 201–3, 224, 237–53 passim, 254, 257, 260, 262, 265, 267
Supreme Court of Ontario
46, 120, 138, 196, 261; see also Ontario Court of Appeal
Supreme Court of the United States
55, 107, 108, 112, 146–58 passim, 219, 266
Swalm, Ernie
171
Switzman v. Elbling
249–50
Taschereau, Louis-Alexandre
20
Taschereau, Robert
249
Texas
58
The End of Nazism
74, 75, 78, 79, 87
The Finished Mystery
7
theocracy
55, 59, 68, 74, 110, 119
Theocratic Kingdom of God
See theocracy
Thorson, J. T.
95
Toronto
59, 60, 65, 67, 69, 115, 119, 127, 140, 174, 178, 180, 182, 186, 194, 196, 197, 209, 258
Toronto City Council
260
Toronto Civil Liberties Association
45, 98
Toronto Civil Liberties Union
258
Toronto Police Commission
260
Trades and Labor Congress
130
Trading with the Enemy Regulations
78
Trans-Canada Highway
173
Treachery Act
48
Trois-Rivières
19, 249
Trudeau, Pierre
249, 270
Truman, Harry
218, 228
Tse-tung, Mao
265
Union Nationale
20, 30, 231, 232, 248, 250
United Church
47, 192
United Kingdom
See Britain
United Nations
119, 226, 227, 229, 255
United Nations Special Committee on Palestine
237
United Religious Groups
214, 215
United States
7, 8, 9, 11, 12, 55, 57, 60, 66, 68, 74, 76, 77, 78, 101, 109, 114, 116, 117, 119, 125, 146–58 passim, 178, 226, 228–9, 265, 266; see also conscientious objection, United States
United States Congress
151, 214, 217
United States Constitution
See Constitution, United States
United States Espionage Act
7, 8
Universal Declaration on Human Rights
227, 229, 259, 261
Université de Montréal
249
Université Laval
15
University of Alberta
268
University of Toronto
267
Vancouver
174
Vanzetti, Bartolomeo
60
Varcoe, F. P.
117, 181, 182, 188–9
Vatican
74, 124, 232
Vichy France
88
Villeneuve, Jean-Marie-Rodrigue
27–30, 62, 64, 65, 67, 89, 90, 92, 116, 166, 230, 250
Wainwright, Charles
59, 60
Wakaw
53
Wallaceburg
185, 186
Walsh, Orville
132–9 passim, 161, 163, 164
War Measures Act
14, 30, 31, 32–3, 41, 42, 44, 256, 267–70
War Precautions Act (Australia)
108
Warren, Earl
266
Washington
20, 110
Watch Tower
3, 9, 114, 115, 119
Watch Tower Bible and Tract Society
3, 76, 77, 101, 195, 204, 212
Watch Tower Bible and Tract Society Incorporated
76, 77, 195
Welland
40
Westman, L. E.
173, 180, 183, 184, 185–6, 187, 194, 207, 208
West Virginia
56, 265
West Virginia State Board of Education
See West Virginia State Board of Education v. Barnette
West Virginia State Board of Education v. Barnette
57, 107, 114, 153–8, 159, 162
Wheeling
265
Whitelock, W. L.
130, 131
Why I Am Not a Protestant
11
Windsor
40, 182, 237, 260
Winnipeg
102, 119, 174, 178
Winnipeg Free Press
88, 100
Wisconsin
57
Witness against War
47
Wood, Stuart T.
32, 40, 58, 63, 77, 78, 103, 115
Woodsworth, J. S.
9, 45, 81
Wright, Richard
132
Wycliffe
6
Yearbook of Jehovah’s Witnesses
59, 72, 118, 122
Notes
1 The Ernest Lapointe Papers, the Mackenzie King Papers, and the J. L. Cohen Papers were consulted extensively in the preparation of this book. These papers are available at the National Archives in Ottawa. The citation for the Lapointe Papers is NAC, MG 27, III, B10; for the King Papers, NAC, MG 26, J4; and for the Cohen Papers, NAC, MG 30, A94. Only the name of the collection and the volume and file number will be cited here for these three collections. All other manuscript collections are cited in full.
1. Marley Cole quoted in M. James Penton, Jehovah’s Witnesses in Canada (Toronto: Macmillan 1976), 27. There is a huge literature, scholarly, popular, and partisan, about the Jehovah’s Witnesses. For their history in Canada see M. James Penton, Jehovah’s Witnesses in Canada. For a nearly complete bibliography of Jehovah’s Witness literature, see Jerry Bergman, Jehovah’s Witnesses and Kindred Groups: A Historical Compendium and Bibliography (New York: Garland Publishing Inc. 1984). As to the date of Jesus Christ’s return to earth see M. J. Penton, ‘Jehovah’s Witnesses,’ New Canadian Encyclopedia, 2nd ed. (Edmonton: Hurtig 1988), 1107, and an apparently contradictory date given in M. J. Penton, ‘Jehovah’s Witnesses and the Secular State: A Historical Analysis of Doctrine,’ 21 (1979) Journal of Church and State, 55–76,56.
2. For the history of the group in Alberta, see W. E. Mann, Sect, Cult and Church in Alberta (Toronto: University of Toronto Press 1955, 1962).
3. Kingdom News, July 1940.
4. A. H. Macmillan, Faith on the March (Englewood Cliffs, NJ: Prentice-Hall 1957), 162.
5. This section is substantially derived from Herbert H. Stroup, ‘The Attitude of the Jehovah’s Witnesses toward the Roman Catholic Church,’ 2 (January 1942) Religion in the Making, 148–63, at 151–2.
6. Deliverance cited by Stroup, ‘The Attitude of the Jehovah’s Witnesses toward the Roman Catholic Church,’ 152–3.
7. Watch Tower, June 1935.
8. Cited in Stroup, ‘The Attitude of the Jehovah’s Witnesses toward the Roman Catholic Church,’ 158.
9. In 1940 Judge Rutherford wrote in his last book, Religion: ‘The Devil practices all manner of fraud and deception. He organized the chief religious systems on earth, now under the Roman Catholic Hierarchy, and falsely designates that as “the Christian religion.” Even the so-called “Protestant” systems of religion claimed to be opposed to Romanism, but, in fact, they all work together. The Devil then organizes and brings into action Communism, which openly fights the so-called “Christian religion” and also true Christianity. He uses atheists likewise to fight against those who serve God, and thus the Devil uses all these means and organizations to fight against God and against God’s faithful servants on the earth and to deceive men.’ Cited in Stroup, ibid.
10. Cited in William Shepard McAnnich, ‘A Catalyst for the Evolution of Constitutional Law: Jehovah’s Witnesses in the Supreme Court,’ 55 (1987) University of Cincinnati Law Review, 997–1077,1008.
11. Pub. L. No. 24, ch. 30, 40 Stat. 217 as amended Pub. L. No. 150, ch. 75, 40 Stat. 553.
12. See McAnnich, ‘A Catalyst for the Evolution of Constitutional Law,’ 1008ff.
13. Ibid, 1013.
14. Cited in Penton, Jehovah’s Witnesses in Canada, 97.
15. Ibid, 102.
16. Herbert Hewitt Stroup, The Jehovah’s Witnesses (New York: Russell & Russell 1967), 25–6, 57; David Leslie McLean, ‘History of the Jehovah’s Witnesses: A Study in Biography,’ BDiv thesis, McMaster University 1963, 62–3.
17. Penton, Jehovah’s Witnesses in Canada, 118.
18. Much of this section is derived from ‘In Re Jehovah’s Witnesses,’ 16 (15 February 1947) The Fortnightly Law Journal, 221–2.
19. R. v. Kinler (1925), 63 R. J. Q. 483 (SC), but see R. v. St. Martin (1933), 40 R. J. Q. 411 (Ct. Sess. P.).
20. The history of the provision is described in Boucher v. R. (1950), [1951] SCR 265,274.
21. As cited in ‘In Re Jehovah’s Witnesses,’ 221. This common-law definition appears to have been lifted from Sir James Stephen’s Digest of the Criminal Law, which was in turn adopted by the commissioners put to work codifying the criminal law.
22. It is interesting, however, to observe that the draftsman of the proposed but never enacted English statute upon which the Canadian one was based, Sir James Stephen, believed that seditious libel required nothing short of direct incitement to disorder or violence. See J. T. Eyton, ‘The Jehovah’s Witnesses and the Law in Canada,’ 17 (1959) University of Toronto Law Journal, 96–114, 100, footnote 30.
23. Duval v. R. (1938), 64 R. J. Q. 270 (KB); [1938] SCR 390.
24. Incidentally, the court of appeal also decided that French-speaking accused would have their cases decided by French-speaking jurors. Calder had attempted to have the case heard in English, undoubtedly believing that an English-speaking and therefore more likely Protestant jury would be less inclined to convict. The court of appeal held, however, that the special rights conferred by the Quebec Civil Code, dealing with the administration of justice in the province and providing for English juries, could only be exercised by an English-speaking accused.
25. Penton, Jehovah’s Witnesses in Canada, 113.
26. For the history of the Second World War, see C. P. Stacey, Six Years of War (Ottawa: Queen’s Printer 1957); C. P. Stacey, Canada and the Age of Conflict, II: 1921–1948 (Toronto: University of Toronto Press 1981); and J. L. Granatstein, Canada’s War: The Politics of the Mackenzie King Government (Toronto: Oxford University Press 1975).
27. RSC 1927, c. 206.
28. Debates, 7 September 1939, 1.
29. I am indebted to Paul Bychok for much of this section. See Paul Bychok, ‘“La muraille qui vous protège”: Ernest Lapointe and French Canada, 1935–1941,’ MA Thesis, Queen’s University 1984.
30. Ibid, 85–6.
31. Norman Ward, ed., A Party Politician: The Memoirs of Chubby Power (Toronto: Macmillan 1966), 377; The Globe and Mail 27 November 1941.
32. Bychok, ‘“La muraille qui vous protège,”’ 37.
33. Debates, 19 June 1936, 3899ff.
34. Ibid.
35. At the same time, the sedition section of the Code (133) was amended by adding the following: ‘Without limiting the generality of the meaning of the expression “seditious intention” everyone shall be presumed to have a seditious intention who publishes, or circulates any writing, printing or document in which it is advocated, or who teaches or advocates, the use, without the authority of the law, of force, as a means of accomplishing any governmental change within Canada.’
36. ‘Testing Padlock Law,’ Saturday Night, 10 September 1938; see also Debates, 1 February 1938, 75.
37. Bulletin, No. 9, CCLU June 1939, ACLU Papers, Mudd Library, Princeton University, Vol. 2085.
38. NAC, RG 25 DI, Department of External Affairs Papers, Vol. 722, File 60, ‘Notes on the Question of a Canadian Bill of Rights,’ 31 December 1937, Loring C. Christie.
39. See, for example, Lapointe Papers, Vol. 40.
40. Conrad Black, Duplessis (Toronto: McClelland & Stewart 1977), 180. See also Lapointe Papers, Vol. 35, File 18-23, Memorandum of Law, 4 April 1938, Warwick F. Chipman; Debates, 30 May 1937, 3377.
41. Debates, 30 March 1937, 2294.
42. Ibid, 2295.
43. Ibid, 2296.
44. King Diary, 6 July 1938, cited in H. Blair Neatby, ‘Mackenzie King and French Canada,’ 11 (1976) Journal of Canadian Studies 3–13, at 9.
45. King Papers, Vol. 199, File 1864, Padlock Law. See also Eugene Forsey, ‘Mr Lapointe and the Padlock,’ Canadian Forum, August 1938, 148. For Forsey’s involvement in these early civil-liberties activities see Eugene Forsey Interview, 11 September 1987.
46. Debates, 30 March 1937, 2296.
47. Ibid. See also J. W. Pickersgill Interview, 25 June 1987.
48. Bychok, ‘“La muraille qui vous protège,”’ 132. When, for example, the minister of national revenue, J. L. Isley, lifted the customs ban on the importation of an American atheist periodical, Lapointe made representations to Mackenzie King to have this decision reversed.
49. On the Oshawa Strike see Irving Abella, ‘Oshawa 1937,’ in Irving Abella, ed., On Strike (Toronto: James Lewis & Samuel 1974), 93–125. See also NAC, RG 25 DI, Department of External Affairs Papers, Vol. 812, File 627, Vatican. Another contemporary example of Lapointe attempting to strengthen the position of the Roman Catholic church was his recommendation to raise the status of the papal delegate in Canada to that of nuncio, a diplomatic status equivalent to ambassador. Lapointe may have persevered, had not Cardinal Villeneuve travelled to Ottawa to express his opposition to the proposal. See Lapointe Papers, Vol. 44, File 162, Vatican and Vol. 16, File 42. See also NAC, RG 25 DI, Vol. 812, File 627, Vatican. For information on attempts by the cardinal in the 1930s to get restrictions on the importation of anti-clerical and communist materials see King Papers, Vol. 155, File 1345, Censorship.
50. Lapointe continued to turn down requests for a Supreme Court reference even when it became clear that the Padlock Act was being used for petty political harassment, not to mention to lock people out of their own homes merely because they expressed left-wing political views. Debates, 25 January 1939, 306.
51. Lapointe Papers, Vol. 43, W. L. M. King to L. V. Smith, 23 July 1938.
52. For one view of their relationship see H. Blair Neatby, ‘Mackenzie King and French Canada,’ 1 (1976) Journal of Canadian Studies, 3–13.
53. Debates, 9 September 1939, 68.
54. Ibid.
55. Ibid, 69.
56. See Debates 12 September 1939, 185–6.
57. One of the more forceful proponents of this view is novelist Hugh Mac-Lennan. See Maclean’s, August 1971, 23, 49.
58. Eugene Forsey Interview, 11 September 1987.
59. See J. M. R. Villeneuve, ‘And Our Dispersed Brethren …?’ in Ramsay Cook, ed., French Canadian Nationalism (Toronto: Macmillan of Canada 1969), 202–14.
60. Black, Duplessis, 107.
61. Villeneuve was also opposed to the CCF. See Debates, 1 May 1939, 3422. See also Duarté Nuno Lopes, ‘The Co-operative Commonwealth Federation in Quebec, 1932–50: A Study,’ MA thesis, McGill University 1986, 112.
62. Black, Duplessis 147,161.
63. Ibid, 162.
64. Ibid, 175.
65. The Montreal Gazette, 30 November 1939, cited in H. F. Quinn, The Union Nationale (Toronto: University of Toronto Press 1966), 124, note 60.
66. One history of the left in Quebec in the decade before the war is Andrée Lévesque Olseen, ‘The Canadian Left in Quebec during the Great Depression: The Communist Party of Canada and the Co-operative Commonwealth Federation in Quebec, 1929–1937,’ PhD. thesis, Duke University 1972.
67. Translation of passages from a speech by Cardinal Villeneuve to the Cercle Universitaire, Montreal, ‘Liberty and Liberties,’ 28 January 1938, reported verbatim in Le Devoir, 31 January 1938. Supplied to author by Eugene Forsey.
68. For an excellent contemporaneous account of the role of the Catholic church and for the then current Quebec political situation see ‘Embryo Fascism in Quebec,’ 16 (1938) Foreign Affairs, 454–66. Although published anonymously, the author was McGill law professor F. R. Scott. A contrary, and much less persuasive, account is provided by H. F. Quinn, ‘The Bogey of Fascism in Quebec,’ 18 (1938–9) Dalhousie Review, 301–8.
69. See Michael D. Behiels, Prelude to Quebec’s Quiet Revolution (Kingston and Montreal: McGill-Queen’s University Press 1985).
70. ‘Memorandum’ 2 September 1939, in Lapointe Papers, Vol. 23, File 78; see also Ward, ed., A Party Politician 126.
71. Black, Duplessis, 196.
72. Ibid, 220.
73. J. W. Pickersgill, The Mackenzie King Record, I: 1939–1944 (Toronto: University of Toronto Press 1960), 35.
74. Robert Bothwell, Ian Drummond, and John English, Canada, 1900–1945 (Toronto: University of Toronto Press 1987), 320.
75. For a very critical assessment of Duplessis’s role in these and other events see Leslie Roberts, The Chief (Toronto: Clarke, Irwin 1963).
76. Black, Duplessis, 208.
77. See generally Elspeth Chisholm, ‘“Never”: Ernest Lapointe and Conscription,’ 3 (1975–6) Canada, 2–21.
78. Lapointe Papers, Vol. 41, File 41, S. T. Wood to E. Lapointe, 25 August 1939.
79. See King Papers, Vol. 230, File 2218, O. D. Skelton to W. L. M. King, 28 August 1939. See also RCMP Report to Skelton of same date.
80. For a review, and scathing critique, of the government’s policy of internment as applied to German Canadians, see Robert H. Keyserlingk, ‘“Agents within the Gates”: The Search for Nazi Subversives in Canada during World War II,’ 66 (June 1985) Canadian Historical Review, 211–39.
81. The single best collection of records relating to the work of the committee is to be found in NAC, Department of Finance Records, RG 19 Vol. 3535, File, Committee on Emergency Legislation.
82. The War Measures Act, RSC, 1927 c. 206. For a history of this act see F. Murray Greenwood, ‘The Drafting and Passage of the War Measures Act in 1914 and 1927: Object Lessons in the Need for Vigilance,’ unpublished paper, June 1987.
83. First Report, Committee on Emergency Legislation, July 1939 (Ottawa: King’s Printer 1939).
84. Cabinet minutes were not taken until February 1944. The Cabinet War Committee took minutes (although it did not begin to meet regularly until May 1940) but there is no evidence, from this period, indicating any discussion of the Defence of Canada Regulations. See King Papers, Vol. 424, Minutes of the Cabinet War Committee, August and September 1939.
85. PC 2483.
86. For one of the few early protests against the Canadian regulations see Canadian Civil Liberties Union, Montreal Branch, ‘The War and Civil Liberty,’ Montreal n.d. [c. October 1939]. Similarly, in Britain, although there was opportunity for debate, the comparable regulations passed without dissent. Even the arrival of a lawyer from the National Council for Civil Liberties with amendments in hand failed to arouse many members of Parliament or attract their support. See Ronald Kidd, British Liberty in Danger (London: Lawrence & Wishart Ltd. 1940), 194. For information about wartime emergency legislation in the United Kingdom see also Annual Survey of English Law, 1939 (London: Sweet & Maxwell Ltd. 1940).
87. The Globe and Mail, 9 September 1939 and 21 September 1939.
88. Specific censorship regulations were passed on 1 September 1939, also pursuant to the War Measures Act. These regulations were revoked on 22 January 1940 by PC 254 and from that point forward the regulatory basis for censorship was Defence of Canada Regulations, no. 15. The secretary of state, however, continued to exercise control over censorship. See King Papers, Vol. 42, File, World War Two, Chronology Internal Security, 1039–44.
89. Defence of Canada Regulations, 1938, Regulation no. 1 (Ottawa: King’s Printer 1939).
90. PC 4600, 7 June 1943.
91. Separate provision was made for enemy aliens in Regulation no. 24.
92. Regulation no. 22, Defence of Canada Regulations, Consolidation 1939.
93. First Report, Committee on Emergency Legislation, July 1939 (Ottawa: King’s Printer 1939), 7.
94. The Globe and Mail, 23 September 1939.
95. Regulation no. 58(2), Defence of Canada Regulations, Consolidation 1939.
96. Regulation no. 62(2), Defence of Canada Regulations, Consolidation 1939.
97. Regulation no. 63(2), Defence of Canada Regulations, Consolidation 1939.
98. See King Papers, Vol. 290, File 1940, Lab to Lawrson, J. W. P. to W. L. M. King, 27 January 1940, re W. P. M. Kennedy.
99. Regulation no. 24(2), Defence of Canada Regulations, Consolidation 1939.
100. It is noteworthy that following the start of the war applications for naturalization tripled from seven hundred or eight hundred a month to more than two thousand. See ‘Topical Chronology of War Effort — Internal Security and Public Welfare’ in King Papers, Vol. 42, File PCO, Emergency Council and War Committee Minutes, 1939–40. It is also noteworthy that the number of enemy aliens who were actually required to register and report amounted to only a small percentage of the people who technically fit within the class of enemy aliens. By various orders-in-council, for example, PC 3623 of 14 November 1940, provision was made to reduce the number of enemy aliens registering and reporting. Furthermore, the reporting requirements were in almost all cases merely procedural. See Debates, 11 June 1940, 676. While the regulations did not provide that the person appointed to hear enemy-alien appeals had to be a judge, in practice this was the case, and the advisory committees that came into being appear to have had their release recommendations accepted and executed. In most respects Canadian internal-security measures during the war were far more severe than those in Great Britain. The treatment of enemy aliens is the single exception. At the outbreak of war, for instance, the United Kingdom immediately interned some six hundred enemy aliens, including some Jewish refugees. Canada interned fewer than three hundred enemy aliens, although that number apparently later increased. The critical difference, of course, was that the United Kingdom was literally swamped with German and other European refugees. Some of the enemy aliens interned in Britain were later sent to Canada. For one account of this see Eric Koch, Deemed Suspect (Toronto: Methuen 1980). For an account of the Ukrainian experience see Thomas M. Prymak, Maple Leaf and Trident: Ukrainian Canadians during the Second World War (Toronto: Multicultural History Society of Ontario 1988). See also Lester H. Phillips, ‘Canada’s Internal Security,’ 12 (1946) Canadian Journal of Economics and Political Science, 18–29, at 22,27.
101. Reconstructing the amendments is much easier said than done. While consolidations of the regulations were published in 1939, 1940, 1941, and 1942, these consolidations were not published on a specific and consistent annual date; nor can one determine from direct examination of them when exactly a particular amendment was passed. To determine that, it is necessary to examine all the orders-in-council during this period. A multi-volume listing of all orders-in-council creating, amending, and deleting orders-in-council does exist but it is not complete. I welcome criticism and correction.
102. Regulation no. 22 was also amended. See Debates, 11 June 1940, 667.
103. Regulation no. 39A was passed by PC 2891 on 27 September 1939.
104. Rex v. Stewart, [1940] OWN 95. His sentence was, however, reduced on appeal. See R. v. Stewart [1940] 1 DLR 689 (CA); Canadian Forum, April 1940, 20. See also Debates, 2 July 1942, 3890. In England the equivalent regulation not only required intent but also falsity in the statement made by the accused. In Canada the prosecutions under this regulation made it look more than a little ridiculous. Countless persons were sentenced to jail for drunken statements prejudicial to the war effort, a handful were remanded for mental examinations, and most were acquitted with a tongue-lashing from the magistrate hearing the case. For a partial list, see NAC, Special Committee on the Defence of Canada Regulations, RG 14, Acc. 84-5/384, Box 2, File 53. See also R. v. Bronny [1940] 3 WWR 423 (BCCA).
105. King Diary, 16 November 1939.
106. ‘Memorandum for the Secretary of State,’ 20 November 1939, King Papers, Vol. 156, File 1381, Communism.
107. King Diary, 16 November 1939.
108. ‘Proposed New Defence of Canada Regulations,’ 23 November 1939, King Papers, Vol. 155.
109. Ibid.
110. Ibid.
111. Ibid.
112. King Diary, 23 November 1939.
113. Ibid, 24 November 1939.
114. Annual Survey of British Law (London: Sweet & Maxwell 1940), 34ff. See also Cecil T. Carr, ‘Crisis Legislation in Britain,’ 15 (1940) Columbia Law Review, 1309–25; Harold Laski, ‘Civil Liberties in Great Britain and Canada during War,’ 55 (1942) Harvard Law Review, 1006–18.
115. Also in Britain every regulation passed under the authority of the enabling legislation had to be laid before Parliament as soon as possible after its passage by order-in-council. Either the House of Lords or the House of Commons could, within twenty-eight days, amend, ratify, or annul the particular regulation. Regulations that were ratified, and almost all were, had a statutorily limited life-span of one year, after which they were again subject to parliamentary review. In theory, certainly, this procedure vested in the British Parliament control over the wide range of regulatory activity. See King Papers, Vol. 229, File 2194, ‘A Comparison of Canadian and British Regulations Dealing with Free Speech, Control of the Press, and Imprisonment without Trial,’ 29 December 1939; ‘Memorandum, Internment Operations, 13 October 1939’; United Kingdom Debates, 31 October 1939; The Times, 29 November 1939; The New Statesman and Nation, 2 December 1939; and The Economist, 2 December 1939. Needless to say, there were those who claimed that these improvements to the regulations did not go far enough. See, for example, Ronald Kidd, British Liberty in Danger (London: Lawrence & Wishart Ltd. 1940), 193–241.
116. For discussion about the British Parliament during the war see W. Ivor Jennings, ‘Parliament in Wartime,’ 11 (1940) Political Quarterly, 351–67; Harold Zink and Taylor Cole, eds, Government in Wartime Europe, rev. ed. (Boston: Houghton Mifflin Company 1943), and for the development of emergency-power legislation during the war see Jennings, ‘Emergency Legislation,’ Annual Survey of English Law (London: Sweet & Maxwell 1943), 10–41.
117. See Lapointe Papers, Vol. 16, E. Lapointe to W. L. M. King, 20 December 1939.
118. Following the meeting, amendments to the regulations were passed by PC 37, 4 January 1940.
119. King Papers, Vol. 42, File World War Two, Chronology Internal Security, 1939–44.
120. Ward, ed., A Party Politician, 375.
121. King Diary, 4 January 1940.
122. PC 3139, 11 November 1939.
123. Ramsay Cook, ‘Canadian Liberalism in Wartime: A Study of the Defence of Canada Regulations and Some Canadian Attitudes to Civil Liberties in Wartime, 1939–1945,’ MA thesis, Queen’s University 1955, 179. The amendment to the regulation regarding good-faith criticism did not necessarily mean that free speech was restored. See R. v. Coffin [1940] 2 WWR 592 (Alta. Police Ct.). On amendments to the Censorship Regulations see King Papers, Vol. 352, File 3794, World War Two Censorship; PC 254 on 22 January 1940; Lester H. Phillips, ‘Canada’s Internal Security,’ 12 (1946) Canadian Journal of Economics and Political Science, 18–29, at 23.
124. Granatstein, Canada’s War, 82–3.
125. Ivan Avakumovic, The Communist Party in Canada (Toronto: McClelland & Stewart 1975), 144. For the Communist party’s political platform see Debates, 15 July 1943, 4863.
126. Cited in Debates, 11 June 1940, 660–1. See also Debates, 29 May 1940, 322. See Minutes of the Meeting of the Council of the Toronto Civil Liberties Association, 11 March 1940, J. A. Dewar to Members of Council, 19 March 1940, Queen’s University Archives, G. M. Grube Papers; Toronto Civil Liberties Association, ‘Memorandum for the Members of the House of Commons on Democracy in Wartime and Particularly on the Defence of Canada and Censorship Regulations’ (Toronto: May 1940), Queen’s University Archives, G. M. Grube Papers.
127. C. P. Stacey, Canada and the Age of Conflict II: 1921–1948 (Toronto: University of Toronto Press 1981), 298–9.
128. The Globe and Mail, 1 May 1940. For more primary information on Canadian perceptions of the international situation see King Papers, Vol. 166, File 1512 and File 1513, European Situation.
129. The Globe and Mail, 14 May 1940. See, however, A. R. M. Lower, ‘Wartime Democracy in Canada,’ The New Republic, 15 April 1940, 503; Canadian Tribune, 25 May 1940.
130. The decision was appealed and two of the men charged were released because of lack of evidence, but then they were immediately interned. See also Mudd Library, ACLU Papers, Vol. 2195, Press Release, 27 May 1940; New York, Daily Worker, 16 May 1940, 19 May 1940; Canadian Forum, June 1940, 75; August 1940, 143.
131. The Globe and Mail, 16 May 1940.
132. King Papers, Vol. 355, File 3814, document dated 23 May 1940.
133. See Thomas P. Socknat, Witness against War (Toronto: University of Toronto Press 1987), 202–3.
134. ‘What Kind of a Man Is Ontario’s New Premier?’ Saturday Night 31 October 1942; see also David Croll Interview, 2 November 1987.
135. And he was also quick to make the deficiencies in the Defence of Canada Regulations known to the proper authorities; see NAC, Special Committee on the Defence of Canada Regulations, RG 14, Acc. 84-5/384, Box 2, File 53, G. D. Conant to A. G. Slaght, 2 July 1940.
136. OA, Gordon Conant Papers, MU 722, Box 2, Address to the Toronto Kiwanis Club, 15 May 1940.
137. See F. A. Brewin, ‘Civil Liberties in Canada during Wartime,’ 1 (1940–1) Bill of Rights Review, 112–21, at 114.
138. The Globe and Mail, 17 May 1940.
139. Ibid, 21 May 1940.
140. Bychok, ‘“La muraille qui vous protège,”’ 238.
141. King Diary, 7 May 1940; see also King Papers, Vol. 300, File 3087.
142. King Diary, 16 May 1940, ‘I confess,’ King wrote that night in his diary, ‘I feel very anxious about him.’
143. Ibid, 22 May 1940.
144. Minutes of the Cabinet War Committee, 22 May 1940, King Papers, Vol. 424.
145. See Debates, 20 May 1940, 26,50.
146. Ibid, 23 May 1940, 144–6.
147. King Diary, 24 May 1940.
148. Ibid, 27 May 1940.
149. PC 2322, 31 May 1940.
150. Some government supporters were given advance warning of the decision. See Sir William Mulock to E. Lapointe, 22 May 1940, and E. Lapointe to Mulock, 3 June 1940, Lapointe Papers, Vol. 16.
151. The significance of the new regulation was hardly lost on Prime Minister King: ‘Today has been excessively hot. Dictated diary, then signed important orders making illegal large numbers of organizations liable to be troublesome in the light of developments that may follow. It is a strong thing for me to be signing orders of this kind. They are absolutely necessary for the preservation of freedom today.’ See King Diary, 4 June 1940. The decision to ban the Communist Party of Canada and various affiliated and sympathetic organizations was, according to one first-person account, only taken following prolonged debates in the inner sanctums of government and only after the Communist party had proved, by its conduct, that it was dedicated to disrupting the ‘imperialist’ war effort. Whether or not this is so, the War Committee minutes do not authoritatively reveal. There is, notwithstanding this account, no reason to believe that this regulation was not passed in exactly the same way as all the rest: at the request of Justice Minister Lapointe. See J. W. Pickersgill to W. Kaplan, 17 November 1982: ‘I did what I could, without success, to try to persuade Mackenzie King not to permit this decision to be made’; and J. W. Pickersgill Interview, 25 June 1987. See also Debates, 5 June 1940, 533.
152. The Globe and Mail, 6 June 1940.
153. An order, pursuant to the Defence of Canada Regulations, prohibiting further publication of the paper was passed on 21 November 1939. See E. Lapointe to S. Morgan-Powell, 18 June 1940, Lapointe Papers, Vol. 13. In January 1940 The Canadian Tribune began publication under the editorship of well-known Communist-party member, and future MPP in the Ontario legislature, A. A. MacLeod. It was closed down in February 1941. ‘The government,’ Secretary of State P. F. Casgrain explained, ‘has ample reason to believe that if it is not actually a communist publication it is pursuing the policy which a communist publication in this country would be instructed by its headquarters to follow.’ Debates, 27 February 1941, 1079.
154. Debates, 11 June 1940, 676.
155. The Globe and Mail, 4 June 1940, 6 June 1940.
156. Debates, 12 June 1940, 725–8. T. C. Douglas later took on Dr Bruce. To come into the House and give a list of organizations and label them publicly as subversive without submitting any supporting evidence was, according to Douglas, a ‘rank injustice to thousands of good Canadian citizens who are not in any position to defend themselves in this house.’ Debates, 13 June 1940, 752. See also H. A. Bruce, ‘Propagation of the Unfit,’ (March 1943) The Canadian School Journal 77–8.
157. Department of Justice Papers, J. W. Estey to E. Lapointe, 17 June 1940. See also Department of Justice Papers Brief re International Bible Students et al, Saskatchewan, unsigned, undated; RCMP Papers, C. D. LaNause to the Deputy Attorney General, 13 June 1940.
158. Department of Justice Papers, J. B. McNair to E. Lapointe, 28 June 1940.
159. RCMP Papers, Report, 26 August 1939, Wakaw, Saskatchewan.
160. Ibid, Report, 19 September 1939, Kingston, Ontario.
161. Ibid, Report, 19 March 1940.
162. Jehovah’s Witness Yearbook, 1940, 129.
163. The Gospel Witness, 7 May 1942, Vol. 21, No. 1, 7–10. See also Debates, 4 March 1941, 1208.
164. See Debates, 4 March 1941, 1208–10.
165. It provides: ‘3 / Thou shalt not have other gods before me; 4 / Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; 5 / Thou shalt not bow down thyself to them, nor serve them.’ For an extended Jehovah’s Witness interpretation of this commandment see The End of Nazism (1940), 19–21.
166. The Globe and Mail, 3 June 1940.
167. Cantwell v. Connecticut, 310 U.S. 296 (1940). See Charles G. Hasson, ‘Constitutional Law — Jehovah’s Witnesses,’ 22 (1946–7) Notre Dame Lawyer, 82.
168. American Civil Liberties Union, The Persecution of Jehovah’s Witnesses (New York: ACLU 1941).
169. Ibid, 22.
170. For Jehovah’s Witness views of the ACLU see Herbert H. Stroup, The Jehovah’s Witnesses (New York: Russell and Russell 1967), 126.
171. H. Rutledge Southworth, ‘Jehovah’s 50,000 Witnesses,’ The Nation, 10 August 1940, 110–12, at 112.
172. J. S. Conway, The Nazi Persecution of the Churches, 1933–45 (New York: Basic Books, Inc. 1968), 196–8. See also Christine Elizabeth King, The Nazi State and the New Religions: Five Case Studies in Non-Conformity (New York and Toronto: The Edwin Mellen Press 1982).
173. Victor W. Rotnem and F. G. Folsom, Jr, ‘Recent Restrictions upon Religious Liberty,’ 36 (1942) American Political Science Review, 1053–68, at 1062.
174. See Henry A. Schweinhaut, ‘The Civil Liberties Section of the Department of Justice,’ 1 (1941) The Bill of Rights Review, 206–17. See also Frank Coleman, ‘Freedom from Fear on the Home Front,’ 29 (1943–4) Iowa Law Review, 415–29; Robert K. Carr, Federal Protection of Civil Rights: Quest for a Sword (Ithaca, NY: Cornell University Press 1947); Victor W. Rotnem, ‘Civil Rights during War: The Role of the Federal Government,’ 29 (1943–4) Iowa Law Review, 409–14; and Rotnem and Folsom, ‘Recent Restrictions upon Religious Liberty,’ 1053–68.
175. American Civil Liberties Union, The Bill of Rights in War (New York: ACLU 1942), 8,34–7; Jehovah’s Witnesses and the War (New York: ACLU 1943), 17.
176. American Civil Liberties Union, Jehovah’s Witnesses and the War, 30.
177. Stroup, The Jehovah’s Witnesses, 25–6.
178. M. J. Penton, Apocalypse Delayed (Toronto: University of Toronto Press 1985), 79.
179. RCMP Papers, 15 July 1940, Monthly Intelligence Bulletin.
180. Ibid, S. T. Wood to W. Stuart Edwards, 24 June 1940.
181. Department of Justice Papers, S. T. Wood to W. Stuart Edwards, 28 June 1940.
182. Jehovah’s Witness Yearbook, 1940, 131.
183. Carolyn Cox, ‘J. L. Cohen Has a Philosophy,’ Saturday Night, 26 June 1943, 2.
184. David Croll Interview, 2 November 1987.
185. Cohen Papers, Vol. 19, File 2799, Watch Tower Bible and Tract Society (Canadian Branch) to J. L. Cohen, 15 June 1940.
186. See Debates, 3 June 1940, 441, and King Papers, Vol. 424, Minutes, Cabinet War Committee, 14 June 1940.
187. SC 1940, c. 13.
188. 1940, 3 & 4 Geo. 6, c. 20 (U.K.).
189. W. Ivor Jennings, ‘Emergency Legislation,’ Annual Survey of English Law (London: Sweet & Maxwell 1943), 10–41, at 12.
190. Leslie Roberts, The Chief (Toronto: Clarke Irwin 1963), 68.
191. PC 6124, 29 October 1940. See also Lapointe Papers, Vol. 24, File 84.
192. Conrad Black, Duplessis (Toronto: McClelland and Stewart 1977), 185.
193. Roberts, The Chief, 69.
194. PC 2667, 20 June 1940. See Judith Roberts-Moore, ‘The Office of the Custodian of Enemy Property: An Overview of the Office and Its Records, 1920–1952,’ 22 (1986) Archivaria, 95–106.
195. See, for example, the reports in The Ottawa Citizen, 15 June 1939, and The Montreal Gazette, 1 July 1939.
196. 1851, 14 & 15 Vict., c. 175 (Province of Canada).
197. See B. K. Sandwell, ‘Why French Canada Hates Witnesses of Jehovah,’ Saturday Night, 28 December 1946, 6.
198. Lapointe Papers, Vol. 34, File 1939–41, Témoins de Jéhovah.
199. Ibid, Trudeau to E. Lapointe, 29 April 1940. On the operations of the Office of the Press Censor see Wilfrid Eggleston, ‘Press Censorship,’ 7 (1941) The Canadian Journal of Economics and Political Science, 313–23.
200. Lapointe Papers, Vol. 34, File 1939–41, Témoins de Jéhovah, F. Charpentier and W. Eggleston to J. Maurice Bernier, 17 June 1940, and Charpentier and Eggleston to Bernier, 28 June 1940. Bernier was Lapointe’s private secretary. See also W. Eggleston to W. Kaplan, 1 March 1983.
201. Department of Justice Papers, E. Lapointe to S. T. Wood, 31 May 1940.
202. Quebec was not the only source of this pressure. See Globe and Mail, 1 July 1940.
203. Department of Justice Papers, T. J. O’Neill to E. Lapointe, 24 June 1940.
204. L’Action Catholique, 20 June 1940, by Louis-Phillipe Roy.
205. Lapointe Papers, Vol. 34, File 1939–41 Témoins de Jéhovah. Paul Bernier to J. M. Bernier, 27 June 1940. See generally Damien Jasmin, Les Témoins de Jéhovah (Montreal: Les Editions Lumen 1946).
206. J. W. Pickersgill Interview, 25 June 1987.
207. There were some voices, however, that urged restraint. See Lapointe Papers, Vol. 34, File 1939–41, Témoins de Jéhovah, E. J. McMuarry to T. C. Crerar, 19 June 1940. What Mackenzie King thought is hard to say. According to wartime aide J. A. Gibson, King was aware of the Jehovah’s Witnesses and amusedly tolerant of them. He may have been convinced that they had become a civil nuisance and that trouble could be avoided by proscribing them. See J. A. Gibson Interview, 16 February 1989.
208. Cohen Papers, Vol. 19, File 2799, Watch Tower Bible and Tract Society (Canadian Branch) to J. L. Cohen, 3 July 1940.
209. Ibid, J. L. Cohen to Department of Justice, 3 July 1940.
210. Ibid, P. M. Anderson to Cohen, 3 July 1940.
211. Ibid, Cohen to Anderson, 3 July 1940.
212. Ibid, Anderson to Cohen, 4 July 1940.
213. J. W. Pickersgill to W. Kaplan, 17 November 1982.
214. See, for example, Lapointe Papers, Vol. 34, File 1939–41, Témoins de Jéhovah. James H. Gallagher to E. Lapointe, 6 June 1940. Other examples can be found in the Department of Justice Papers.
215. Debates, 4 July 1940, 1319.
216. By PC 2943, 4 July 1940.
217. L’Action Catholique, 5 July 1940, 4; and see Lapointe Papers, Vol. 34, File 1939–41, Témoins de Jéhovah, J. M. Bernier to P. Bernier, 4 July 1940.
218. Lapointe Papers, Vol. 34, File 1939–41, Témoins de Jéhovah, P. Bernier to J. M. Bernier, 8 July 1940, ‘Je n’ai pas besoin d’ajouter, — puisque déjà son Éminence aura Elle-même écrit à Monsieur Lapointe pour lui dire sa satisfaction de l’arrêté ministériel en question, — combien une aussi prompte et aussi heureuse solution mérite nos félicitations et nos remerciements.’
219. See, for example, The Ottawa Citizen, 5 July 1940, The Globe and Mail, 5 July 1940.
220. Ted Noseworthy Interview, 29 October 1982; see The Windsor Star, 9 July 1940.
221. See King Diary, 24 June 1940, 25 June 1940. There is a suggestion in the Debates that the members of the House were aware of Lapointe’s mental state. See Debates, 12 June 1940, 716.
222. J. W. Pickersgill, The Mackenzie King Record, 1939–1944 (Toronto: University of Toronto Press 1960), 103.
223. Jehovah’s Witness Yearbook, 1941, 157.
224. Consolation, 11 October 1944, 3.
225. See J. L. Granatstein, Canada’s War (Toronto: Oxford University Press 1975), 102.
226. See RCMP Papers, ‘Jehovah’s Witnesses’ 6 December 1940 and ‘To All Zone Servants.’
227. Ibid, V. A. M. Kemp to Price Waterhouse, 27 August 1940.
228. Ibid, Memorandum, Department of National Revenue, 10 July 1940, prohibiting all Jehovah’s Witness related material from entering Canada.
229. Ezekiel 3:17–20 was one of the scriptural foundations for this belief.
230. Jehovah’s Witness Papers, Representations to the Minister of Justice, n.d., 11.
231. See Jehovah’s Witness Yearbook, 1943, 145, and Department of Justice Papers, Hayden Covington to L. St Laurent, 11 April 1945.
232. Apparently only one Jehovah’s Witness was interned and he was subsequently released. See Cohen Papers, File 2796, re A. d’A.
233. RCMP Papers, E. V. Bavin to J. Leopold, 31 July 1940.
234. For criticism of Conant see Debates, 25 July 1940, 1925.
235. Cohen Papers, File 2803.
236. OA, RG 4, Series 4-32, no. 843B, 1941, W. M. Martin to H. E. Stone, 18 March 1941. For an account of legal actions against Jehovah’s Witnesses in New Brunswick see Cohen Papers, Vol. 19, File 2799, Résumé of New Brunswick Interference. For an account of an arrest in Saskatchewan see ibid, Re: D. I have made an effort, except where information about individuals is already publicly available, such as in contemporary newspaper accounts, to avoid identifying any accused persons.
237. The first charge against a Jehovah’s Witness in British Columbia was laid on 13 July 1940. The accused was a ‘cripple’ named Fred Sallis of Courtenay, BC. In Ontario the first charges laid against Jehovah’s Witnesses were laid the day after the ban came into effect. See R. v. Bottomley, R. v. Moore, (unreported), OA, RG 4, Series 4-32, no. 843-1941. See also Transcript of Evidence, 23 September 1940, OA, RG 4, Series 4-32, no. 843-1941; Allin F. Annis to W. M. Martin, 1 October 1940; Allin F. Annis to Attorney General’s Department, 11 February 1941.
238. For details about how the various offences were set out in the originating documents, see W. M. Martin to H. R. Deyman, 22 November 1940, OA, RG 4, Series 4-32, no. 508B, 1940.
239. Not everyone saw it this way. See W. M. Martin to J. Pike, 1 October 1940, OA, RG 4, Series 4-32, no. 508B, 1940. For his part, Attorney General Conant submitted many suggestions for strengthening the regulations to authorities in Ottawa. See OA, RG 4, Series 4-32, no. 843B, 1941, W. M. Martin to V. A. M. Kemp, 12 May 1941.
240. A copy may be found in Cohen Papers, Vol. 21, File 2812.
241. Advice for Kingdom Publishers, 4.
242. F. A. Brewin, ‘Civil Liberties in Canada during Wartime,’ 1 (1940–1) Bill of Rights Review, 112–21,117.
243. Jehovah’s Witness Yearbook, 1942, 158–9; see also Cohen Papers, Vol. 32, File 2931, undated bulletin to ‘The Companies from the Theocracy.’ ‘We require a complete record of the persecutions of the Lord’s people.’
244. Jehovah’s Witness Yearbook, 1979, 138.
245. How many of them were Jehovah’s Witnesses is impossible to determine. See OA, RG 4, Series 4-32, no. 940, 1944, V. A. M. Kemp to L. H. Phillips, 1 June 1944.
246. See for example, RCMP Papers, Report, 15 June 1940, Division File 40-A-269-E431, which refers to a man being prosecuted for saying that he thought Germany would soon win the war, and G. D. Conant to H. B. Johnson, 16 October 1940, giving permission to prosecute, in OA, RG 4, Series 4-32, no. 508B, 1940. For examples of some cases see OA, RG 4, Series 4-32, file 843A and File 508(1).
247. Department of Justice Papers, S. T. Wood to W. H. Stringer, 9 October 1940.
248. Jehovah’s Witness Yearbook, 1942, 158.
249. Ibid.
250. OA, RG 4, Series 4-32, no. 508B, 1940, W. S. Maguire to G. D. Conant, 14 November 1940, and C. L. Snyder to W. S. Maguire, 15 November 1940.
251. RCMP Papers, Report from Cobourg, 3 July 1941.
252. See OA, RG 4, Series 4-32, no. 843A, 1941, OPP Report, re T. P., 17 July 1941, H. B. Johnson to H. H. Bull, 15 August 1941, and H. H. Bull to H. B. Johnson, 18 August 1941. See also Frank Hammond to Attorney General, 19 June 1941.
253. The End of Nazism (n.p.: n.d. [c. September 1940]), 17.
254. Ibid, 30.
255. Ibid, 14.
256. Ibid, 32.
257. See generally OA, RG 4, Series 4-32, no. 843-1941 and no. 843A, 1941, and see OA, RG 4, Series 4-43, no. 508B, 1940, for details on some of these cases. And see Jehovah’s Witness Yearbook, 1941, 156–7; The Globe and Mail, 18 November 1940, Vancouver Daily Province, 19 November 1940, and RCMP Papers, ‘newspaper articles.’ See also RCMP Papers, R. R. Tait to OC, J Division, 28 November 1940, R. R. Tait to OC, All Divisions, 29 November 1940; OA, RG 4, Series 4-32, no. 508B, 1940, W. M. Martin to W. E. Kelly, 22 November 1940.
258. Jehovah’s Witnesses in the Divine Purpose, 1959, 158.
259. RCMP Papers, C. D. LaNauze to All Detachments, 9 December 1940.
260. OA, RG 4, Series 4-32, no. 843B, 1941, E. D. Wilkins to W. M. Martin, 7 January 1941.
261. RCMP Papers, S. T. Wood to Deputy Minister of Justice, 10 July 1940.
262. Department of Justice Papers, F. M. Martin to W. Stuart Edwards, 8 January 1941; Edwards to Martin, 9 January 1941; Martin to Edwards, 11 January 1941; and Edwards to Martin, 13 January 1941. See also OA, RG 4, Series 4-32, no. 843B, 1941, and Department of Justice Paper, E. H. Coleman to Department of Justice, 10 January 1941.
263. Department of Justice Papers contain details of the agreement reached between Hayden Covington and the custodian of enemy property, including W. C. MacDonald to L. Desilets, 14 August 1940, and Covington to Secretary of State, 23 November 1943. PC 289, 17 January 1941, and PC 582, 29 January 1941, were the orders that banned the corporate groups.
264. See RCMP Papers, Vol. 6. For more information about subsequent prosecutions of the Jehovah’s Witnesses and some of the ongoing legal problems raised, see OA, RG 2, 1941, 4-32, no. 850, ‘Proposed amendment to the Defence of Canada Regulations,’ 1 March 1941.
265. 1941 Annual RCMP Report, 15.
266. S. T. Wood, ‘Tools for Treachery,’ 2 (1941) The Canadian Spokesman, 1–6.
267. RCMP Papers, E. Swailes to H. Division, 19 December 1940. Other mass deliveries of Witness material, although not on the same scale, took place on 15 and 16 December 1940 and then again in early January. See Daily Province, 3 January 1941.
268. The Globe and Mail, 12 December 1940. See also ibid, 14 December 1940.
269. Department of Justice Papers, W. Stuart Edwards to G. Hansell, 4 August 1941.
270. RCMP Papers, E. H. Perlson to OC All Divisions, 17 February 1941.
271. Ibid, J. Fossum to OC, Regina, 24 March 1941.
272. Ibid, H. F. Price to Vancouver, CIB, 8 April 1941.
273. See CSIS Papers, 15 December 1942, RCMP Monthly Intelligence Review.
274. This situation was simply unfair, and in late November 1940 one of the prime minister’s advisers, J. W. Pickersgill, told King as much. See King Papers, Vol. 355, File 3815, Memorandum for the Prime Minister, Re: Defence of Canada Regulations, 23 November 1940.
275. Debates, 16 July 1940, 1645–6. See also Debates, 25 July 1940, 1937–8; Department of Justice Papers, Hatfield to Minister of Justice, 23 July 1940; A. W. Neill to P. M. Anderson, 5 May 1941; P. M. Anderson to A. W. Neill, 6 May 1941.
276. See, for example, Department of Justice Papers, W. Stuart Edwards to N. A. Robertson, 22 July 1941.
277. J. W. Pickersgill Interview, 25 June 1987.
278. Prior to announcing the appointment of the special committee King had a memorandum prepared discussing the Defence of Canada Regulations and the various concerns that had been expressed in regard to them. See King Papers, Vol. 355, Defence of Canada Regulations.
279. Cohen Papers, Vol. 19, File 2799, Submission to the Committee on the Defence of Canada Regulations, 8 July 1940. There was some earlier correspondence, which can be found in NAC, Special Committee on the Defence of Canada Regulations, RG 14, Acc. 84-5/384, Box 2, File 53.
280. Cohen Papers, Vol. 19, File 2799, Submission to the Committee on the Defence of Canada Regulations, 8 July 1940. The following section is drawn from these representations. See also NAC, Special Committee on the Defence of Canada Regulations, RG 14, Acc. 84-5/384, Box 2, File 53, E. J. McMurray to Special Committee, 15 June 1940, 19 June 1940; B. S. Keirstead to A. L. Burgess 6 July 1940; and R. B. Hanson to A. J. Brooks, 4 July 1940.
281. It later turned out that they were not given full access to Department of Justice files. See Debates, 27 February 1941, 1069.
282. For what appears to have been a proposed, but not implemented, change, see NAC, RG 14, Special Committee on the Defence of Canada Regulations, Acc. 84-5/384. Box 3, File 79, Internment and Parole Order.
283. See B. K. Sandwell, ‘Democracy Defends Itself,’ Saturday Night, 13 July 1940, 3.
284. See J. L. Cohen, ‘Is Canada Setting up a Gestapo?’ Saturday Night, 23 November 1940, 12–13.
285. Ibid and see Re Sullivan, [1941] OR 417, aff’d [1942] 2 DLR 799 (CA); Canadian Forum, June 1941, 73.
286. See PC 4750, 12 September 1940, which brought the Defence of Canada Regulations 1940 Consolidation into effect as of 16 September 1940. Consolidations were also brought out in 1941 and 1942.
287. NAC, RG 36/31, Vol. 24, Office of Public Information, Release, 10 August 1940.
288. Ibid.
289. The Ottawa Citizen, 10 August 1940.
290. See Debates, 27 February 1941.
291. See, however, B. K. Sandwell, ‘The Growing Sense of Insecurity,’ Saturday Night, 9 November 1940, 6.
292. Debates, 27 February 1941, 1067.
293. A. E. Smith, All My Life (Toronto: Progress Books 1977).
294. Cited in Granatstein, Canada’s War, 106.
295. The importance of this support was not lost on Lapointe or the country. Whenever the cardinal said anything in support of the war, Lapointe made sure that it received wide press. The speech or sermon would be translated and, through the censorship authorities, sent to newspapers across the country. See Lapointe Papers, Vol. 22, File 71A, for a representative example. See also Maurice A. Pope, Soldiers and Politicians (Toronto: University of Toronto Press 1962), 172.
296. Black, Duplessis, 233.
297. Ibid, 239.
298. Paul Bychok, ‘“La muraille qui vous protège”: Ernest Lapointe and French Canada, 1935–1941,’ MA Thesis, Queen’s University 1984, 258.
299. Black, Duplessis, 240.
300. See Lapointe Papers, Vol. 35, File 163, Villeneuve.
301. Black, Duplessis, 245; note 27, at 718.
302. King Papers, Vol. 246, File 2529, L. St Laurent to W. L. M. King 6 January 1943; Debates, 22 February 1943, 630–1.
303. King Papers, Vol. 245, File 2528, Cardinal Villeneuve to L. St Laurent, 7 November 1942.
304. J. W. Pickersgill and D. F. Foster, The Mackenzie King Record, II (Toronto: University of Toronto Press 1968), 68. See also King Papers, Vol. 246, File 2527, Cardinal Villeneuve to L. St Laurent, 7 November 1942.
305. Jehovah’s Witness Yearbook, 1945, 116.
306. Ibid.
307. Lapointe Papers, Vol. 34, File 1939–41, Témoins de Jéhovah, S. T. Wood to J. M. Bernier, 10 October 1941; see also E. Lapointe to H. R. Fleming, 10 October 1941.
308. See RCMP Papers, report undated, [c. 1941].
309. Cohen Papers, Vol. 32, File 2931, Memorandum for Mr Cohen, 14 April 1942.
310. Debates, 29 November, 1941, 532.
311. On this issue see Ann Gomer Sunahara, The Politics of Racism (Toronto: James Lorimer & Co. 1981) and Ken Adachi, The Enemy That Never Was (Toronto: McClelland & Stewart 1976); ‘Democracy Betrayed: Submission to the Federal Government by the National Association of Japanese Canadians,’ 54 (February 1985) Rights and Freedoms, 1–11. The received version has been criticized. See J. L. Granatstein and Gregory A. Johnson, ‘The Evacuation of the Japanese Canadians, 1942: A Realist Critique of the Received Version,’ unpublished Paper, 1987.
312. ‘Democracy Betrayed,’ 8.
313. Forrest E. LaViolette, The Canadian Japanese and World War Two (Toronto: University of Toronto Press 1948), note 16, 153–4. And see also Forrest E. LaViolette, The Japanese Canadians (Toronto: Canadian Institute of International Affairs 1945).
314. On the work of the committee during this period see King Papers, Vol. 352, File 3798, World War Two Civil Liberties, Memorandum of Representations by the Civil Liberties Association of Toronto to the Prime Minister of Canada and Summary Meeting of Members of the Government with a Delegation from the Civil Liberties Association of Toronto, February 20, 1942 in the Prime Minister’s Office in the East Block, at 11 a.m.; Debates, 4 May 1942, 2080ff; J. W. Pickersgill, The Mackenzie King Record 1939–1944 (Toronto: University of Toronto Press 1960), 354–5.
315. NAC, Special Committee on the Defence of Canada Regulations, RG 14, Acc. 84-5/384, Box 1, File 31, Charles Morrell to J. E. Michaud, 6 June 1942; NAC, RG 14, Acc. 84-5/384, Box 2, File 55, J. E. Michaud to C. Morrell, 18 June 1942.
316. Ibid, File 29, ‘Jehovah’s Witnesses,’ n.d.
317. Ibid, 2.
318. Ibid, 1–2.
319. See Debates, 16 July 1940, 1756.
320. NAC, Special Committee on the Defence of Canada Regulations, RG 14, Acc. 84-5/384, Box 4, File 101, Minutes of Evidence, No. 6; Jehovah’s Witnesses Yearbook, 1979, 138.
321. Representations to the Select Committee of the House of Commons on the Defence of Canada Regulations respecting Jehovah’s Witnesses, Watch Tower Bible & Tract Society, International Bible Students Association, Watch Tower Bible Tract Society, Inc., June 1942. A copy may be found in NAC, Special Committee on the Defence of Canada Regulations, RG 14, Acc. 84-5/384, Box 1, File 33.
322. See, for example, NAC, Special Committee on the Defence of Canada Regulations, RG 14, Acc. 84-5/384, Box 4, File 101, Minutes of Evidence, No. 6, AA-3; and ibid.
323. Representations to the Select Committee of the House of Commons on the Defence of Canada Regulations respecting Jehovah’s Witnesses et al, 10.
324. NAC, RG 14, Acc. 84-5/384, Box 4, File 101, Minutes of Evidence, No. 6, EE-2ff; see also Representations to the Select Committee of the House of Commons on the Defence of Canada Regulations respecting Jehovah’s Witnesses et al, 18.
325. Jehovah’s Witness Yearbook, 1943, 150.
326. NAC, MG 30, A94, Vol. 20, File 2807, Representations to the Select Committee of the House of Commons on the Defence of Canada Regulations, June 1942.
327. Debates, 3 June 1942, 3015.
328. Ibid, 23 July 1942, 4578.
329. Votes and Proceedings of the House of Commons, 23 July 1942, 595–6.
330. The special committee also recommended that another committee be established to continue the review of the Defence of Canada Regulations in the next session of Parliament. Votes and Proceedings of the House of Commons, 23 July 1942, 595–6.
331. King Diary, 25 July 1942.
332. Ramsay Cook, ‘Canadian Liberalism in Wartime: A Study of the Defence of Canada Regulations and Some Canadian Attitudes to Civil Liberties in Wartime 1939–1945,’ MA thesis, Queen’s University, 1955, 232–3; Lester H. Phillips, ‘Canada’s Internal Security,’ 12 (1946) Canadian Journal of Economics and Political Science, 18–29,26.
333. See, for example, Department of Justice Papers, R. L. Cadiz to Deputy Minister of Justice, 21 September 1942.
334. Ibid, F. P. Varcoe to S. T. Wood, 8 December 1942.
335. King Papers, Vol. 42, File, Topical Chronology of War Effort, Internal Security and Public Welfare.
336. PC 1266, 15 February 1943.
337. The Defence of Canada Regulations were also amended at this time to provide that it was no longer an offence to be an officer or member of an illegal organization. Now it was an offence to act as an officer or member. The amendment responded to criticisms that the regulations were retroactive and therefore unfair. See Debates, 15 July 1943, 4861; 21 July 1943, 5202.
338. Jehovah’s Witness Yearbook, 1944, 150.
339. The Winnipeg Free Press, 23 July 1943.
340. Debates, 21 July 1943, 5204.
341. Ibid.
342. Ibid.
343. RCMP Papers, F. J. Mead to OC All Divisions, 8 May 1943; see also Report, 20 August 1943.
344. National Archives (U.S.), Department of State Papers, NND, File 342.1163, Covington to Department of State, 14 February 1941.
345. Ibid, P. Moffat to Secretary of State, 18 March 1941.
346. One report noted that a Canadian official volunteered that J. L. Cohen represented ‘all Communists in Canada.’ National Archives (U.S.), Department of State Papers, NND, File 342.1163, P. Moffat to Secretary of State, 20 June 1941.
347. In fact the American position about assisting American Jehovah’s Witnesses and their property interests in foreign countries was straightforward: ‘Recognizing their organization as an American corporation holding property in foreign lands, the Department of State directed that efforts be expended only to protect the property rights of the Jehovah’s Witnesses in other countries. The United States has refused to give them any help in getting repeals of prohibitions in the entry and distribution of their literature which are applied under existing laws. Our representatives have also refused to intervene to prevent the deportation of a Witness who was an American citizen working abroad. Our legations, consulates and embassies have given much time and care to protecting the physical property of the Witnesses and of handling its disposition when the organization was banned.’ National Archives, RG 59, Department of State Papers, File 800.20211, Memorandum, 10 June 1943.
348. Debates, 22 February 1943, 611ff.
349. Ibid, 616.
350. Ibid, 631. See also ibid, 23 May 1943, 2937; 21 June 1943, 3827.
351. Debates, 22 February 1943, 630.
352. The Globe and Mail, 24 February 1943.
353. The records are not complete, but from those available it appears that St Laurent’s practice was to refer complaints by MPS and the public about the Defence of Canada Regulations directly to the RCMP. See, for example, RCMP Papers, S. T. Wood to L. St Laurent, 3 March 1943.
354. RCMP Papers, S. T. Wood to L. St Laurent, 18 March 1943.
355. Ibid, S. T. Wood to DCI, 16 July 1943; RCMP Papers, F. J. Mead to OC All Divisions, 15 July 1943.
356. Debates, 13 June 1940, 748. The regulation provided: ‘Every printed newspaper, pamphlet, circular, handbill, dodger, or other like document having reference to or containing any comment on a political, social or religious question, shall bear upon it printed in a conspicuous place and in legible characters the name of an existing natural person.’
357. Debates, 15 July 1943, 4853.
358. A collection of newspaper clippings about the debate can be found in the RCMP Papers.
359. For press reaction see The Globe and Mail, editorial, 24 February 1943.
360. Debates, 15 July 1943, 4861.
361. Ibid, 4861–2.
362. Ibid, 21 July 1943, 5199.
363. Ibid, 5202.
364. The Globe and Mail, 23 July 1943. See also Consolation, 15 March 1944, 14; Debates, 21 July 1943, 5205.
365. The Calgary Herald, 14 August 1943.
366. Debates, 21 July 1943, 5210–14.
367. Ibid, 5215.
368. Department of Justice Papers, R. B. Hanson to P. M. Anderson, 27 July 1943.
369. The letter continued: ‘In fact, I recollect that when discussing the matter at that time with the late Right Hon. Mr. Lapointe, when the religious angle was referred to and it was suggested that he would be blamed for recommending the banning of the organization as he was a Roman Catholic, he stated, in effect, that this was unfortunate but, from the information available he felt that he was bound to perform his duty in the interest of the safety of the state, notwithstanding that his action might be so misinterpreted.’ Department of Justice Papers, P. M. Anderson to R. B. Hanson, 3 August 1943.
370. See Consolation, 15 March 1944, for a detailed review, from the Jehovah’s Witnesses' perspective, of the events leading to and following the ban.
371. 319 U.S. 624 (1943).
372. (1943), 67 CLR 116 (hereafter Adelaide).
373. For general information about the Jehovah’s Witnesses in Australia see Tess Van Summers, Religions in Australia (Adelaide: Rigby Limited 1966), 87–93.
374. Geoffrey Sawer, Australian Federal Politics and Law, 1929–1949 (Carlton, Victoria: Melbourne University Press 1974), 105.
375. Ibid, 112–49.
376. The Ottawa Citizen, 29 July 1940.
377. NAC, RG 25, Vol. 2911, File 102, FP-40, High Commissioner for Canada in Australia to Secretary of State for External Affairs, 13 July 1940.
378. Cited in National Archives (U.S.), Department of State Papers, File 847.404/3, Erle R. Dickover to Secretary of State, 5 February 1941. On Hughes, see L. F. Fitzhardinge, The Little Digger, 1914–1952 (Sydney, Australia: Angus & Robertson Publishers 1979).
379. Cited in National Archives (U.S.), Department of State Papers, File 847.404/3, Erle R. Dickover to Secretary of State, 5 February 1941.
380. Ibid.
381. National Archives (U.S.), RG 59, Department of State Papers, File 800.20211, H. Freeman Matthews to Secretary of State, 20 May 1942.
382. Commonwealth of Australia Constitution Act, 1900, 63 & 64 Vict., c. 12, S. 116. See generally Enid Campbell, ‘Civil Rights and the Australian Constitutional Tradition,’ in Carl Beck, ed., Law and Justice (Durham, NC: Duke University Press 1970), 295–322.
383. Sawer, Australian Federal Politics and Law, 1929–1949, 153.
384. Adelaide, 126.
385. Ibid.
386. Ibid, 129.
387. Ibid, 131.
388. Ibid.
389. Ibid, 155.
390. Ibid, 154.
391. Ibid, 150.
392. 1945 Jehovah’s Witness Yearbook, 1945, citing the judgment of Justice Brennan. The case does not appear to have been reported.
393. Sawer, Australian Federal Politics and Law, 1929–1949, 154.
394. Alastair Davidson, The Communist Party of Australia (Stanford: Hoover Institution Press 1969), 81.
395. Also removed from the proscribed list was Technocracy Inc., and a number of Finnish and Ukrainian communist groups.
396. RCMP Papers, S. T. Wood to Deputy Minister of Justice, 26 October 1943.
397. Department of Justice Papers, ‘Memorandum for The Hon. The Prime Minister of Canada,’ undated; Cohen Papers, Vol. 37, File 3084, Representation to the Minister of Justice on Behalf of the Watch Tower Bible and Tract Society, the Watch Tower Bible & Tract Society Inc. and the International Bible Students Association (Canada).
398. Jehovah’s Witness Yearbook, 1944, 117.
399. For the details of the disposition of the property following the ban and the case made in November 1943 for its return, see Department of Justice Papers, Hayden Covington to Secretary of State, 23 November 1943.
400. National Archives (U.S.), Department of State Papers, NND, File 342.1163, Covington to Secretary of State, 3 January 1944.
401. Ibid, Lewis Clark to Secretary of State, 19 January 1944, Letter No. 584.
402. Ibid.
403. See Department of Justice Papers, Nathan Knorr to W. L. M. King, 1 December 1943, and F. P. Varcoe to Knorr, 9 December 1943. A reply to the same effect was given to a similar request from J. L. Cohen. RCMP Papers, J. L. Cohen to P. M. Anderson, 20 May 1944.
404. RCMP Papers, P. M. Anderson to Inspector J. Leopold, 18 May 1944.
405. RCMP Papers, J. Leopold to P. M. Anderson, undated. For his part, the assistant deputy custodian of enemy property, with responsibility for Witness affairs, had no desire to exercise what discretion he had in favour of the group. His door-bell rang one day in early 1944 and, a confidential memorandum prepared for the secretary of state at the American Embassy in Ottawa reported, he was given ‘a long spiel with phonographic accompaniment, of a very repugnant and subversive nature.’ National Archives (U.S.), Department of State Papers, NND, File 342.1163, O. B. North to Secretary of State, 8 February 1944.
406. Jehovah’s Witness Yearbook, 1946, 102.
407. Ibid. See also Department of Justice Papers, Hayden Covington to L. St Laurent, 11 April 1945.
408. Cohen Papers, Vol. 37, File 3084, Representations to the Minister of Justice on Behalf of the Watch Tower Bible and Tract Society, The Watch Tower Bible & Tract Society Inc. and the International Bible Students Association (Canada).
409. Department of Justice Papers, ‘Memorandum for The Hon. The Prime Minister of Canada,’ undated.
410. For the Jehovah’s Witnesses' account of these events, see Consolation, 11 October 1944. The petition drive was seen, by the Jehovah’s Witnesses, as yet another example of God’s divine plan. ‘Though the signatures were not used for their original purpose, yet it was a pleasure for the publishers to call back on these persons and acquaint them with the good news of the ban’s removal, and stimulate their interest in the Theocratic message. Jehovah thus granted another victory to His chosen people.’ Jehovah’s Witness Yearbook, 1945, 119.
411. PC 4476, 13 June 1944; Jehovah’s Witness Yearbook, 1944, 119.
412. Consolation, 11 October 1944, 7.
413. The Montreal Gazette, 1 August 1944.
414. The Winnipeg Tribune, 10 August 1944, 12 August 1944; The Winnipeg Free Press, 10 August 1944, 11 August 1944, 12 August 1944.
415. See RCMP Papers, V. A. H. Kemp to OC D Division, 8 July 1944.
416. Jehovah’s Witness Yearbook, 1946, 102.
417. The Edmonton Bulletin, 11 August 1944.
418. Department of Justice Papers, S. T. Wood, 5 September 1944.
419. See OA, Attorney General Papers, RG 4, File 4-02, 16.1.
420. Jehovah’s Witness Papers, Writ of Summons, 12 April 1945, Statement of Claim, 11 April 1945.
421. Ibid, Notice of Motion, 23 April 1945. For information on Conant’s appointment as master, see OA, RG 3, Box 420. See also J. M. Ferron, ‘The Masters,’ Vol. 22, No. 9 (1988) Law Society of Upper Canada Gazette 323–65,349.
422. Watch Tower Bible and Tract Society Et Al v. A. G. Canada, [1945] OWN 537.
423. King Papers, Vol. 284, File 2967, Memo for the PM, 13 April 1945.
424. RCMP Papers, S. T. Wood to Deputy Minister of Justice, 21 May 1945.
425. Ibid, Memorandum from the Deputy Minister of National Revenue, Customs & Excise, 15 May 1945.
426. PC 3635.
427. Jehovah’s Witness Yearbook, 1946, 102.
428. PC 4136.
429. PC 5637, 16 August 1945; PC 5972, 14 September 1945; see also Law and Order in Canadian Democracy (Ottawa: King’s Printer 1949), 123.
430. See Neil McKenty, Mitch Hepburn (Toronto: McClelland & Stewart 1967), 167, 76ff.
431. Cited in Robert Bothwell, A Short History of Ontario (Edmonton: Hurtig Publishers 1986), 141.
432. T. T. Shields, ‘The Hepburn Government’s Betrayal of Its Public Trust by Diverting Public School Revenue to the Support of Roman Catholic Separate Schools,’ Jarvis Street Baptist Church, 14 April 1936.
433. J. Campbell, ‘The Regulations of the Department of Education Concerning Religious Instruction in the Public Schools of Ontario,’ (September 1939) Canadian School Journal, 316–17.
434. See the Department of Education Act, RSO 1937, c. 356, S. 4; the Public Schools Act, RSO 1937, c. 357, SS. 1,2,7,89,103; General Regulations, Public and Separate Schools, 1939, SS. 6(2),7(2),8,13,14; High Schools Act, RSO 1937, c. 360, SS. 1,8,24; The Regulations of the High Schools and Collegiate Institutes, 1939, SS. 9,10,11,12. On 20 June 1940 The Regulations of the High Schools and Collegiate Institutes, 1939, were amended to add to section 11 the following subsection: ‘(3) In every High and Vocational School, the singing of the National Anthem as authorized by the Department shall form part of the daily opening or closing exercises.’
435. Joseph F. Rutherford, Loyalty (New York: Watch Tower Bible and Tract Society 1935), 16–17; see also The Baltimore Evening Sun, 28 September 1935.
436. See William G. Fennell, Compulsory Flag Salute in Schools (New York: Committee on Academic Freedom, American Civil Liberties Union 1938); Leonard A. Stevens, Salute! (New York: Coward, McCann & Geoghegan Inc. 1973); ‘The Flag Salute,’ 32 (1943) Journal of the National Educational Association, 264–6. There is some question about how much understanding public-school students had of both the pledge and the salute. See Herbert T. Olander, ‘Children’s Knowledge of the Flag Salute,’ 35 (1941) Journal of Educational Research, 300–5.
437. OA, RG 4, 4-32, 1940, no. 508(2), C. R. Magone to N. E. Bye, 10 June 1940. See also D. McArthur to Lillico & Macpherson, 30 May 1940.
438. The Ottawa Citizen, 14 May 1940.
439. RCMP Papers, Report by K. M. Lockwood, 3 June 1940.
440. OA, RG 4, 4-32, 1940, no. 508(2), C. R. Magone to H. B. Johnson. See also Magone to P. C. Ibbetson, 29 May 1940: ‘my judgment would be to allow the incident to close so that the public would not become hysterical over something that is really not serious. I suppose these people are more pacifistic than disloyal, and dragging them into the Police Court is certainly not going to improve their loyalty’; and Canadian Forum, July 1940, 103.
441. The Toronto Daily Star, 26 November 1940.
442. Jehovah’s Witness Papers, ‘Facts on Hamilton Case.’
443. Minutes of the Internal Management Committee of the Hamilton Board of Education, 6 June 1940.
444. OA, RG 4, 4-32, 1940, no. 508(2), R. W. Treleaven to G. D. Conant, 12 June 1940.
445. Minutes of the Internal Management Committee, 4 July 1940.
446. There is a hint in the Conant Papers that he was not pleased with the strict line being taken in Hamilton and that an effort was made to try to talk the local authorities out of their super-vigilant attitude. OA, RG 4, 4-32, 1940, no. 508(2), W. M. Martin to Attorney General, 23 October 1940.
447. Minutes of the Internal Management Committee, 4 July 1940. The minutes also indicate that secondary schools were initially to be covered as well, but were, at some point, struck out.
448. Ibid, 11 July 1940.
449. Ibid.
450. Cohen Papers, Vol. 22, File 2823, ‘To the Chairman of the Board of Education’ (undated).
451. Ibid, Vol. 19, File 2799, Principal D. Morrow to Anthony Hafner, 9 September 1940.
452. Ibid, Vol. 22, File 2823. See, for example, letter to the Principal of Adelaide Hoodless School, 27 July 1940.
453. Ibid, R. J. Wright to Harvey Ellison, 9 September 1940.
454. And for taking this step Hepburn was severely criticized in the Hamilton press. See, for example, The Hamilton Review, 20 September 1940.
455. Jehovah’s Witness Papers, ‘Facts on Hamilton Case.’
456. The Globe and Mail, 1 October 1940.
457. Ibid, 21 September 1940.
458. Jehovah’s Witness Papers, W. O. Morrow to Peter Gabla, 10 September 1940.
459. The Hamilton Spectator, 4 October 1940. ‘Heavy fines, jail terms or internment’ was the solution this newspaper recommended for Witness parents. For the children, reform schools were the answer because it was important that they be educated.
460. Ibid, 8 October 1940.
461. Minutes of the Internal Management Committee, 3 October 1940; Minutes of the Hamilton Board of Education, 3 October 1940.
462. Minutes of the Internal Management Committee, 7 November 1940.
463. Cohen Papers, Vol. 22, File 2823, R. v. Ellison, Reasons for Decision, (unreported), 6 January 1941, 1, hereinafter R. v. Ellison (Decision).
464. The Globe and Mail, 5 October 1940.
465. The Hamilton Spectator, 15 October 1940.
466. The Globe and Mail, 19 September 1940; see also editorial 21 September 1940.
467. The Hamilton Spectator, 11 October 1940.
468. Ibid.
469. Ibid, 9 October 1940.
470. Jehovah’s Witness Papers, Newspaper Scrapbook, October 1940.
471. R. v. Ellison (Decision), 13.
472. See, for example, Cohen Papers, Vol. 22, File 2803, E. J. Ellison to Dr Whitelock, 14 October 1940.
473. Ibid, Vol. 22, File 2823, W. R. Rollo to Mr and Mrs Ellison, 26 October 1940.
474. SC 1929, c. 46.
475. Cohen Papers, Vol. 22, File 2823, In the Juvenile Court of the City of Hamilton, 31 October 1940, 9 November 1940, Transcript of R. v. Ellison 6,17, hereinafter R. v. Ellison (Transcript).
476. R. v. Ellison (Transcript), 37.
477. Ibid, 53.
478. Ibid, 74.
479. Ibid.
480. Cohen Papers, Vol. 22, File 2823, Memorandum of Argument on Behalf of the Accused, 2 December 1940.
481. Canadian Forum, November 1940, 241.
482. Cohen Papers, Vol. 22, File 2803, Memorandum of Argument on Behalf of the Accused, 2 December 1940.
483. Ibid, Memorandum of Argument on Behalf of the Complainant.
484. Basically Cohen’s argument was this. Statutes should be given their plain, natural, and grammatical meaning and to do more was legislating not interpreting. In this case, the statute did not require individual participation by every child. Moreover, where a statute was ambiguous, there was, Cohen explained, a general principle of law that the interpretation that avoids penalty to the subject is the one to be preferred. There was, as well, another principle of the law, a presumption against abrogation or interference with the rights of the subject. While not deserving of reply, Cohen put the matter of the Ellisons being Jehovah’s Witnesses back to Walsh. If the government wished to charge them with being members of an illegal organization it had the right to do it. Since it had not, it was wrong for Walsh to ‘charge’ them with such in his legal brief. There the matter stood for Judge Burbidge to decide. Cohen Papers, Vol. 22, File 2803, Reply to Memorandum of Argument on Behalf of the Complainant, 18 December 1940.
485. R. v. Ellison (Decision), 3.
486. Ibid, 4.
487. Ibid, 7.
488. Ibid.
489. M. James Penton, Jehovah’s Witnesses in Canada (Toronto: Macmillan 1976), 142.
490. Ibid.
491. Minutes, Hamilton Board of Education, 6 February 1941.
492. Cohen Papers, Vol. 22, File 2823, J. Cowles to J. L. Cohen, 30 January 1941.
493. See, for example, ibid, Vol. 22, File 2823, T. E. McMurray to F. W. Brown, 4 December 1940.
494. Rex v. C. L., unreported decision, copy in Cohen Papers, Vol. 25, File 2823. See also OA, RG 4, Series 4-32, no. 843, 1941, Re: C. L. and A. L.; The London Daily Press, 12 October 1940, 6 November 1940, 29 November 1940, 5 December 1940; The Globe and Mail, 12 December 1940; C. L. Papers (including judgment and trial transcript); C. L. Interview, 31 May 1987; C. L. to W. Kaplan, undated, 1988.
495. See OA, RG 4, Series 4-32, no. 843, 1941, Re: C. L. and A. L.; and see C. L. Interview, 31 May 1987. The L. parents were not the only ones charged after their children were identified as Jehovah’s Witnesses in schools. See, for example, OA, RG 4, Series 4-32, no. 508B, 1940, W. B. Common to W. P. Clement, 3 October 1940.
496. Canadian Forum, December 1940, 283.
497. Jehovah’s Witness Papers, Newspaper Scrapbook, October 1940. See also R. v. Clark, [1941] 3 WWR 228, rev’d [1941] 4 DLR 299 (Man. CA).
498. F. A. Brewin, ‘Civil Liberties in Canada during Wartime’ (1940–1) Bill of Rights Review 112–18,118; see also RCMP Papers, Memorandum to S/Sgt. Pepper from Inspector A. Drysdale, 4 April 1941.
499. Jehovah’s Witness Papers, Newspaper Scrapbook, October 1940.
500. Grace Lounsbury Interview, 27 August 1983.
501. Arthur Ellison Interview, 10 February 1983.
502. The Globe and Mail, 10 February 1941.
503. Witness parents in Hamilton were ‘oppressed with the heavy expense of running the school’ and were ‘pressing for action.’ Jehovah’s Witness Papers, Memo re J. L., 20 March 1943.
504. Ibid, ‘Facts on Hamilton Case.’
505. Penton, Jehovah’s Witnesses in Canada, 143.
506. R. v. Clark [1941] 3 WWR 228, rev’d [1941] 4 DLR 299 (Man. CA). The applicable regulation of the Department of Education was passed on 23 September 1938.
507. (1943) [1944] 1 DLR 360. The relevant provisions may be found in the Alberta School Act, RSA 1942, c. 175.
508. The School Act was amended to exempt from participation ‘any pupil whose parent or guardian presents to the principal of the school a written statement setting forth he or she is a member of a religious organization whose tenets forbid or are opposed to its members individually saluting the flag.’ SA 1944, c. 46, S. 9.
509. Jehovah’s Witness Papers, Robert Donald to Minister of Education, 5 September 1941; see also OA, RG 3, Hepburn, Public Education, Box 214, Donald to M. Hepburn and D. McArthur, 5 September 1941, and related documents in this file.
510. Jehovah’s Witness Papers, Deputy Minister of Education to R. Donald, 30 September 1941.
511. A. W. Morris to R. Donald, 2 March 1942, cited in Donald v. Hamilton Board of Education (hereafter Donald), [1944] 4 DLR 227, at 229.
512. ‘Patriotic Exercises,’ (September 1944) Canadian School Journal, 363. For an account of the Donald case from the Jehovah’s Witness perspective see Consolation, 7 November 1945, 13–16.
513. A memorandum prepared by Charles Morrell at this time reported that there was some difficulty in getting Cohen to do ‘what we want in the way we want.’ Jehovah’s Witness Papers, Memo re J. L., 20 March 1943.
514. Donald, 227.
515. Ibid, 231.
516. 310 U.S. 586 (1940).
517. The definitive book on the flag-salute cases in the United States is David R. Manwaring’s Render unto Caesar: The Flag-Salute Controversy (Chicago: University of Chicago Press 1962). A good account of the Gobitis case is Alan Barth’s Prophets with Honor (New York: Alfred A. Knopf 1974), 108–30.
518. See for example Nicholls v. Mayor and School Committee of Lynn, 297 Mass. 65, where the court held that the flag-salute had nothing to do with religion. It was, Chief Justice Rugg said, quoting from Matthew 22:21–22, one of those things ‘that are Caesar’s.’
519. The relevant provision of the Fourteenth Amendment said: ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny any person within its jurisdiction the equal protection of the laws.’
520. 24 F. Supp. 271 (Dist. Ct. 1938).
521. 108 F.2d 683 (3rd Cir. 1939).
522. Manwaring, Render unto Caesar, 136.
523. 310 U.S. 586 (1940), 596.
524. Ibid, 602.
525. Ibid, 606.
526. Ibid.
527. Ibid, 607.
528. Victor W. Rotnem and F. G. Folsom, ‘Recent Restrictions upon Religious Liberty,’ 36 (1942) American Political Science Review 1053–68,1063.
529. William Shepard McAnnich, A Catalyst for the Evolution of Constitutional Law: Jehovah’s Witnesses in the Supreme Court, 55 (1987) University of Cincinnati Law Review 997–1077,1019.
530. Leo Pfeffer, The Liberties of an American (Boston: The Beacon Press 1953), 51.
531. Leo Pfeffer, ‘The Legitimation of Marginal Religions in the United States,’ in Irving I. Zaretsky and Mark P. Leone, eds, Religious Movements in Contemporary America (Princeton: Princeton University Press 1974), 9–26, at 19.
532. Ibid, 20.
533. James Joseph Kearney, ‘Supreme Court Abdicates as Nation’s School Board,’ 38 (1940) Catholic Educational Review, 357–60, at 360.
534. 316 U.S. 584 (1942).
535. 319 U.S. 103 (1943).
536. 316 U.S. 584,623–4 (1943).
537. 47 F. Supp. 251 (Dist. Ct. 1942).
538. Ibid, 253–4.
539. 319 U.S. 624, 632 (1943).
540. Ibid, 634.
541. Ibid, 640.
542. Ibid.
543. Ibid, 647.
544. The New York Times, 19 June 1943; John E. Mulder and Marvin Comisky, ‘Jehovah’s Witnesses Mold Constitutional Law,’ 2 (1942) Bill of Rights Review, 262–8. American school-prayer cases parallel, to some extent, the flag-salute cases, and for a discussion of the impact of the former, see Donald R. Reich, ‘The Impact of Judicial Decision Making: The School Prayer Cases,’ in David H. Everson, ed., The Supreme Court as Policy Maker: Three Studies on the Impact of Judicial Decisions (Carbondale, IL: Public Affairs Research Bureau 1972), 44–116. An afterword to this volume canvasses some of the literature on the general subject of compliance with Supreme Court decisions.
545. Donald, 235.
546. Ibid, 235–6.
547. Ibid, 236.
548. Ibid, 235.
549. Ibid, 238.
550. For a comment on the Donald decision, see ‘Schools and Civil Liberties,’ 22 (1944) Canadian Bar Review, 840–2.
551. Jehovah’s Witness Papers, ‘Memorandum of Law.’
552. Donald, [1945] OR 518, at 520–1 (CA), hereafter Donald (CA).
553. Jehovah’s Witness Papers, ‘Memorandum of Law,’ 48.
554. Ibid, 83.
555. Ibid.
556. Donald (CA), 524.
557. Ibid, 523.
558. Ibid, 530.
559. Ibid.
560. Ibid.
561. Jehovah’s Witness Papers, Newspaper Clippings, undated. See also W. Glen How Interview, 4 April 1983.
562. Jehovah’s Witness Papers, Newspaper File, undated clipping entitled ‘Seeking to Appeal the Flag Case.’
563. From time to time the flag-salute controversy would return. See D. Wayne Elhard, ‘The Brooks, Alberta, National Anthem Controversy,’ MA thesis, Baylor University 1976.
564. C. P. Stacey, Arms, Men and Government (Ottawa: Queen’s Printer 1970), 398.
565. Ibid, 399.
566. On the conscription crisis, see J. L. Granatstein, Canada’s War (Toronto: Oxford University Press 1975); Stacey, Arms, Men and Government; J. W. Pickersgill and D. F. Foster, The Mackenzie King Record, II (Toronto: University of Toronto Press 1968); R. Macgregor Dawson, The Conscription Crisis of 1944 (Toronto: University of Toronto Press 1961); J. L. Granatstein and J. M. Hitsman, Broken Promises: A History of Conscription in Canada (Toronto: Copp Clark Pitman 1985). Conscientious objectors were called ‘conchies.’
567. Debates, 11 May 1942, 2334.
568. PC 8800.
569. SC 1917, c. 19, S. 11.
570. ‘Any man,’ section 18 said, ‘who, from the doctrines of his religion is averse to bearing arms or undertaking combatant service, may apply for an order deferring or postponing his military training indefinitely, provided that it is established that such man conscientiously objects to the bearing of arms or the undertaking of combatant service and is prohibited from the bearing of arms or undertaking combatant service by the tenets and articles of faith in effect on the first day of September 1939, or any organized religious denomination to which said man aforesaid, in good faith belongs.’ For interwar concern over the fate of conscientious objectors see NAC, RG 24, Vol. 5953, File HQ 1064-30-67.
571. Stacey, Arms, Men and Government, 416; NAC, RG 25, Vol. 2911, File 102-FP-40, G. R. Benoit to N. A. M. Robertson, 30 July 1942.
572. Much of the following section is drawn from David Fransen, ‘Breaking Down Barriers: Mennonites in Canada during the Second World War,’ Unpublished Paper, 1986, and Thomas P. Socknat, Witness against War (Toronto: University of Toronto Press 1987), 227–58. On the Mennonite experience in the alternative-service camps, see Lawrence Klippenstein, That There Be Peace (Winnipeg: The Manitoba co Reunion Committee 1979).
573. Fransen, ‘Breaking down Barriers,’ 11.
574. NAC, RG 24, Vol. 6573, File HQ-1161-3-4, Press Release, 7 January 1941.
575. See for example NAC, RG 24, Vol. 6573, File HQ-1161-3-4, Memorandum to the Minister, 3 June 1941.
576. Debates, 29 May 1941, 3261.
577. Riding Mountain in Manitoba; Prince Albert in Saskatchewan; Banff and Jasper in Alberta; and Kootenay in British Columbia. In Ontario the conscientious objectors were assigned to a camp north of Sault Ste. Marie. Subsequently, three more camps were established. The first, in July 1942, was temporary. Located in Glacier National Park, it operated for only four months. The other two, established in 1942 at Petawawa, Ontario, and at Seebe, Alberta, were more permanent.
578. PC 2821, 7 April 1943.
579. Debates, 5 June 1944, 3514–15. Conscientious objectors directed to urban employment received a larger amount to compensate for the room and board agricultural workers automatically received. By 30 June 1946 the Red Cross received some $2,347,767.36 from contributions from postponed persons directed to non-camp alternative service. RG 27, Vol. 3058, File 21-25-4-1, Memorandum, G. R. Carroll to A. MacNamara.
580. See NAC, RG 35, Vol. 21, ‘Historical Account of the Wartime Activities of the Alternative Service Branch, Department of Labour,’ 11 April 1946, 19.
581. PC 7251, 16 September 1943.
582. Debates, 14 March 1941, 1551–4.
583. Fransen, ‘Breaking Down Barriers,’ 14; see also Debates, 28 May 1942, 2872.
584. See Arthur Garratt Dorland, The Quakers in Canada: A History (Toronto: The Ryerson Press 1968), 335.
585. Cited in Socknat, Witness against War, 238–40. British Columbia, however, passed legislation which provided that anyone who failed to register under the NRM Act forfeited provincial licences including their driver’s licence and this was clearly a move directed at enforcing Doukhobor compliance with the regulations. Joseph Francis Krauter, ‘Civil Liberties and the Canadian Minorities,’ PhD thesis, University of Illinois 1968, 30–1.
586. See Debates, 3 March 1942, 1007, and also Debates, 28 April 1942, 1961; 2 May 1944, 2561; and 26 May 1944, 3300–1. See also Socknat, Witness against War, 237–8.
587. Department of Justice Papers, L. R. LaFlèche to Deputy Minister of Justice, 18 November 1940. Similarly, the supervisor for recruiting and military training asked W. Stuart Edwards, deputy minister of justice, in early February 1941 how we could say that an organization is a religious denomination or sect under the regulations if such organization was illegal. Supervisor for Recruiting and Military Training to W. Stuart Edwards, 1 February 1941.
588. See ibid, W. Stuart Edwards to L. R. LaFlèche, 19 November 1940; Supervisor of Mobilization to Deputy Minister of Justice, 13 December 1943; Assistant Director of Mobilization to Deputy Minister of Justice, 5 February 1945.
589. See NAC, RG 27, Vol. 992, File 2-101-8-NSS, for some representative transcripts of evidence heard by national war services mobilization Boards, containing sworn testimony of conscientious beliefs of Jehovah’s Witnesses that were, for no apparent reason, summarily dismissed by those boards.
590. NAC, RG 24, Vol. 6573, File HQ-161-3-4(2), Deputy Minister Army to Deputy Minister Department of Labour, 27 August 1943.
591. The Toronto Daily Star, 27 November 1940.
592. NAC, RG 24, Vol. 6573, File HQ-161-3-4(2), Deputy Minister of Army to Deputy Minister of Labour, 27 August 1943. Although for a view that rigid discipline was the best solution, see ibid, ‘Annual Army Estimates, — 1944–45,’ Draft Memorandum, Conscientious Objectors, 26 January 1944.
593. See Department of Defence Papers, e.g., File T.36-10-214A4(b), regarding an incident in 1945 involving several Witness soldiers who were allegedly beaten following their refusal to obey orders. And see Cohen Papers, Vol. 36, File 3158, Re Keith Louis Cook, for an incident alleged to have taken place in London, Ontario, which also resulted in a long inquiry.
594. An attempt was made to count them; see NAC, RG 24, Vol. 6573, File HQ-161-3-4(3), Appendix One. It is not clear whether this table is a cumulative or annual count.
595. Department of Defence Papers, Q. A. Dunlop to HQ, Military District No. 2, 27 July 1945.
596. Debates, 8 May 1944, 2704–5; The Ottawa Journal, 16 May 1944.
597. See NAC, RG 24, Vol. 2199, File 54-27-67-9, pt. 1, ‘Memorandum,’ 15 May 1944.
598. See NAC, RG 24, Vol. 2199, File 54-27-67-9, pt. 1, ‘Proceedings of a Board of Officers,’ 9 May 1944.
599. NAC, RG 24, Vol. 2199, File 54-27-67-9, pt. 1, ‘Memorandum,’ 12 May 1944, but see ‘Memorandum,’ 16 May 1944.
600. Debates, 15 May 1944, 2908.
601. Ibid, 18 May 1944, 3001.
602. PC 4769, 23 June 1944.
603. Debates, 15 May 1944, 2911.
604. Ibid, 2917.
605. Ibid, 2936.
606. NAC, RG 27, Vol. 131, File 601.3-6, Vol. 3, L. E. Westman to H. J. Riley, 13 October 1943.
607. Ibid.
608. See NAC, RG 24, Vol. 2199, File 54-27-67-9, pt. 1, ‘Memorandum,’ 12 May 1944.
609. The figure 300 is given in Mulford Q. Sibley and Philip E. Jacob, Conscription of Conscience: The American State and the Conscientious Objector (Ithaca, NY: Cornell University Press 1952), 9.
610. NAC, RG 27, Vol. 131, File 601.3-6, Vol. 3, H. J. Riley to A. MacNamara, 3 September 1943.
611. Department of Justice Papers, Supervisor of Mobilization to Deputy Minister of Justice, 13 December 1943.
612. Section 13(2) provided: ‘If, upon an application under these regulations for a postponement order the Board is satisfied that the applicant conscientiously objects, by reason of religious training and belief, to war in any form and to participation in combatant military service in which he might be required to take human life, the Board shall grant him an order postponing his military training until further notice.’ See NAC, RG 27, Vol. 131, File 601.3-6, Vol. 3, A. MacNamara to F. P. Varcoe, 14 December 1943.
613. Department of Justice Papers, A. MacNamara to F. P. Varcoe, 14 December 1943.
614. NAC, RG 27, Vol. 131, File 601.3-6, Vol. 3, Paul Martin to A. MacNamara, 17 December 1943.
615. Department of Justice Papers, F. P. Varcoe to Deputy Minister of Labour, 29 December 1943, and see Memorandum, F. P. V. to P. M. Anderson, 27 December 1943.
616. NAC, RG 27, Vol. 131, File 601.3-6, Vol. 3, A. MacNamara to Deputy Minister of Defence, 8 September 1943. A draft memorandum in the Defence Department Papers, however, indicates that as late as January 1944 conscientious objectors in the military were given sentences of military detention instead of being referred back to their mobilization boards for a rehearing and postponement. There was at least one case that held that a Jehovah’s Witness who was postponed as a conscientious objector on trial for failure to report for alternative service could not advance the defence that he was a minister. A privative clause in the National Selective Service Mobilization Regulations precluded court review. See R. ex rel. Sewell v. Morrell, (1944), 82 CCC 121 (Ont. HC). Although by PC 4600, 1943, as amended by PC 6713, 1944, there was an option given to the courts to give leave to review in exceptional cases. A handful of Jehovah’s Witnesses, apparently concentrated in Manitoba, were not, however, discharged and they spent the war behind bars. As soon as they finished one sentence for disobeying an order they would disobey another order and have to start a new sentence. NAC, RG 24, Vol. 6573, File HQ-161-3-4(2), Draft Memorandum, Conscientious Objection, 26 January 1944; (3) C. A. Davidson to J. Bracken, 2 October 1945. Even when the wars in Europe and Japan ended they still were not discharged because to discharge them meant, after May 1945, complete freedom from any service obligations since call-ups had come to an end. The military, simply stated, did not want to discharge the conscientious objectors remaining in its ranks until all those who had been postponed were released. The numbers of exceptions do not appear to have been great, and by the end of 1943 almost every Witness who was called up under the NRM Act began to be directly postponed to an alternative-service camp. For an example of the transfer arrangements made for a Jehovah’s Witness who was not postponed, see NAC, RG 27, Vol. 992, File 2-101-8-NSS, S. H. McLaren to A. MacNamara, 16 December 1943.
617. NAC, RG 27, Vol. 992, File 2-101-8, pt. 2, ‘Letter to Chairman of Mobilization Boards,’ n.d.
618. Cited in Fransen, ‘Breaking Down Barriers,’ 19–20.
619. NAC, RG 35, Vol. 21, ‘Historical Account of the Wartime Activities of the Alternative Service Branch, Department of Labour,’ 11 April 1946, 28. See also Debates, 4 May 1944, 2616–17.
620. NAC, RG 27, Vol. 131, File 601.3-6, Vol. 3, L. E. Westman to A. MacNamara, 28 January 1944, re conversation with W. Glen How.
621. Ibid, Vol. 132, File 601.3-6, Vol. 5, L. E. Westman to A. MacNamara, 29 July 1944.
622. Ibid, M. B. Morison to L. E. Westman, 25 July 1944.
623. Ibid, L. E. Westman to A. MacNamara, 29 July 1944.
624. Ibid, A. MacNamara to L. E. Westman. See also Vol. 27, File 60-1-20, Westman to J. Davidson, 30 June 1944.
625. Ibid, Vol. 992, File 2-101-8-NSS, L. E. Westman to S. H. MacLaren, 8 December 1943.
626. Ibid, Vol. 3058, File 2-25-5-1, L. E. Westman to H. Hereford, 3 July 1944. Later another two were also sent back to Chalk River.
627. Ibid, Vol. 133, File 601.3-6-2, M. J. Coldwell to A. MacNamara, 5 August 1944; A. MacNamara to J. W. Noseworthy, 9 August 1944; A. MacNamara to M. J. Coldwell, 17 August 1944. See also, Vol. 3058, File 21-25-5-1, L. E. Westman to H. Hereford, 28 August 1944.
628. Ibid, Vol. 3058, File 21-25-5-1, L. E. Westman to J. W. Wyatt, 25 September 1944; L. E. Westman to H. Hereford, 25 September 1944.
629. Ibid, L. E. Westman to H. Hereford, 2 October 1944.
630. But see NAC, RG 27, Vol. 3058, File 21-25-5-1, L. E. Westman to H. Hereford, 7 August 1944.
631. NAC, RG 27, Vol. 132, File 601.3-6, Vol. 5, L. E. Westman to Clayton Morrell, 9 November 1944.
632. Ibid, Vol. 992, File 2-101-8, pt. 2, L. E. Westman to M. B. Morison, 29 February 1944.
633. Ibid, Vol. 132, File 601.3-6, Vol. 5, L. E. Westman to A. MacNamara, 27 November 1944.
634. See NAC, RG 27, Vol. 1510, File 60-1-6, Rules and Regulations for the Guidance of Superintendents of Alternative Service Work Camps, 20 July 1944.
635. Department of Justice Papers, H. Mitchell to L. St Laurent, 26 October 1944.
636. Ibid.
637. Ibid, F. P. Varcoe to H. Mitchell, 8 November 1944.
638. Ibid.
639. According to Judge Rutherford all male Jehovah’s Witnesses were automatically ordained by virtue of being Jehovah’s Witnesses. See Charles Samuel Braden, They Also Believe (New York: Macmillan 1949), 368–9. For an extended discussion of Jehovah’s Witnesses and military service, see Consolation, 30 October 1940.
640. Department of Justice Papers, Supervisor of Mobilization to Deputy Minister of Justice, 18 November 1943.
641. Ibid, F. P. Varcoe to Supervisor of Mobilization, 23 March 1943.
642. The Globe and Mail, 1 March 1944.
643. NAC, RG 27, Vol. 132, File 601.3-6, Vol. 5, A. Cochrane to A. MacNamara, 23 June 1944, see also, Vol. 992, File 2-101-8, pt. 2, C. W. McCool to S. H. McLaren, 4 January 1944.
644. The procedure is detailed in NAC, RG 27, Vol. 992, File 2-101-9, pt. 2, W. J. Dickson to CIB (RCMP), 27 February 1945.
645. Ibid, File 2-101-8-NSS, George Deas to A. H. Brown, 29 December 1943; File 2-101-8, pt. 2, G. D. to Lorne McDonell, 4 January 1944.
646. Department of Justice Papers, Supervisor of Mobilization to Deputy Minister of Justice, 22 December 1943.
647. Ibid, S. J. Remnant to C. G. Pennock, 15 December 1943.
648. NAC, RG 27, Vol. 133, File 601.3-6-2, Rex v. Stewart, Reasons for Decision (unreported), 10 February 1944.
649. For background on Stewart, see ibid, Vol. 131, File 601.3-6, pt. 3, E. K. Stewart to H. Mitchell, 13 November 1943. See also Jehovah’s Witness Papers, Representations on behalf of Jehovah’s Witnesses, 8 November 1943, 13; Cohen Papers, Vol. 37, File 3070, Re: Percy Chapman; ibid, Vol. 32, File 2931, To the Companies from the Theocracy, n.d. [c. 1943].
650. Saltmarsh v. Adair, [1942] Sess. Cas. 58.
651. NAC, RG 27, Vol. 133, File 601.3-6-2, Rex v. Stewart, Reasons for Decision (unreported), 10 February 1944, 5, attached sentencing transcript.
652. Ibid, Vol. 131, File 601.3-6, vol. 3, Frank Wasitis v. The King (unreported), 17 February 1944; J. E. Lacourcière to H. Mitchell, 23 February 1944. See also Vol. 133, File 601.3-6-2, ‘In the Matter of Hansler,’ 10 July 1944.
653. See King Papers, Vol. 284, File 2967.
654. NAC, RG 27, Vol. 131, File 601.3-6, Vol. 3, A. H. Brown to A. MacNamara, 31 January 1944.
655. Ibid, Vol. 992, File 2-101-8, pt. 2, A. MacNamara to L. E. Westman, 10 January 1944.
656. Ibid, Vol. 131, File 601.3-6, Vol. 3, L. E. Westman to A. MacNamara, 28 January 1944.
657. Cohen Papers, Vol. 37, File 3084, Representations to the Minister of Labour, 8 November 1943. See also ibid, J. L. Cohen to Hayden Covington, 23 November 1944; NAC, RG 27, Vol. 131, File 601.3-6, vol. 3, A. H. Brown to A. MacNamara, 6 December 1944; A. MacNamara to H. F. Caloren, 7 December 1944; A. MacNamara to B. G. Sullivan, 14 December 1944.
658. NAC, RG 27, Vol. 131, File 601.3-6, Vol. 3, L. St Laurent to H. Mitchell, 28 February 1944.
659. Ibid, Vol. 133, File 601.3-6-2, E. Lorentsen to A. MacNamara, 20 March 1944.
660. Ibid, Vol. 131, File 601.3-6, Vol. 3, H. Mitchell to L. St Laurent, 4 March 1944.
661. R. v. Stewart (1944), 81 CCC 349, 358 (BCCA).
662. Ibid, 359.
663. Department of Justice Papers, F. P. Varcoe to M. W. Wright, 26 April 1945.
664. Cohen Papers, Vol. 37, File 3070, re Greenlees.
665. Greenlees v. A. G. Canada [1945] OR 411,422 (HC).
666. Ibid, 416.
667. Regi Skale and Frank Rasky, ‘Jehovah’s Witnesses: Are They Draftable?’ Saturday Night 20 January 1945, 14–16.
668. Cohen Papers, Vol. 37, File 30170, J. L. Cohen to Mr Justice Hogg, 17 February 1945.
669. W. Glen How Interview, 4 April 1983.
670. Jehovah’s Witness Yearbook, 1946, 100–1.
671. Greenlees v. A. G. Canada [1946] OR 90,93 (CA).
672. Ibid, 95.
673. Ibid, 101. For J. J. Robinette’s view of the case see Jack Batten, Robinette (Toronto: Macmillan 1987), 43–6.
674. RSC 1937, c. 35.
675. Greenlees v. A. G. Canada [1947] 1 DLR 798 (SEC); Christie v. The York Corp. [1939] SCR 50.
676. ‘Anomalies of Appeal to the Supreme Court,’ 16 (1946) Fortnightly Law Journal, 38.
677. W. Glen How, ‘The Too Limited Jurisdiction of the Supreme Court of Canada,’ 25 (1947) The Canadian Bar Review, 573–86.
678. Ibid, 575.
679. Leo Greenlees Interview, 18 May 1983.
680. See for example, R. v. Held (1947) 87 CCC 378; R. v. Jazewsky (1944) 85 CCC 175; White v. R. (1947) 87 CCC 180.
681. In re Bien and Cooke [1944] 1 WWR 237, at 238–9.
682. NAC, RG 27, Vol. 131, File 601.3-6, Vol. 3, L. E. Westman to R. A. Gibson, 25 August 1944.
683. Ibid, Vol. 992, File 2-101-8-1, pt. 1.
684. Ibid, Vol. 1510, File 60-1-14, Circular Letter, 22 August 1945.
685. Ibid, Vol. 131, File 601.3-6, Vol. 3, M. P. Blair to J. F. MacKinnon, 26 May 1945.
686. Ibid, Vol. 1510, File 60-1-14, W. G. Angus to J. F. MacKinnon, 13 December 1945.
687. Ibid, Vol. 131, File 601.3-6, Vol. 3, Petition from Jasper, Alberta, 25 May 1945.
688. Ibid, L. E. Westman to A. MacNamara, 28 May 1945.
689. Ibid, A. MacInnis to H. Mitchell, 16 July 1945.
690. Ibid, J. G. Gardiner to H. Mitchell, 6 August 1945.
691. Ibid, Vol. 1510, File 60-1-14, M. J. Coldwell to A. MacNamara, 27 September 1945.
692. Ibid, Vol. 3058, File 21-25-5-1, J. F. MacKinnon to H. Hereford, 12 February 1945.
693. Ibid, Vol. 131, File 601.3-6, Vol. 3, J. F. MacKinnon to A. MacNamara, 17 August 1945.
694. Ibid.
695. Ibid, Vol. 992, File 2-101-8, pt. 2, J. F. MacKinnon to H. C. Chapman, 17 August 1945.
696. Ibid, Vol. 1510, File 60-1-14, J. F. MacKinnon to A. MacNamara, 28 August 1945.
697. Ibid, Vol. 3058, File 21-25-2, A. MacNamara to J. F. MacKinnon, 24 November 1945.
698. Ibid, Vol. 993, File 2-101-8-1, pt. 2, J. F. MacKinnon to C. Morrell, 23 November 1945. And see Debates, 3 October 1945, 710.
699. NAC, RG 27, Vol. 993, File 2-101-8-1, J. F. MacKinnon to C. Morrell, 3 January 1946.
700. Ibid, Vol. 1510, File 60-1-14, J. C. G. Herwig to A. MacNamara, 24 October 1945.
701. Ibid, J. F. MacKinnon to F. G. French, 20 November 1945.
702. Ibid, Vol. 993, File 2-101-8-1, J. W. Noakes to G. R. Carroll, 25 March 1946.
703. Some of this correspondence can be found in NAC, RG 27, Vol. 3058, File 21-25-3.
704. NAC, RG 27, Vol. 992, File 2-101-8, pt. 2, J. W. Pelletier to J. F. MacKinnon, 15 January 1944; J. F. MacKinnon to L. E. Westman, 25 January 1944; Vol. 3058, File 21-25-5-1, L. E. Westman to J. M. Wyatt, 3 March 1944.
705. Ibid, Vol. 3058, File 21-25-5-1, L. E. Westman to A. MacNamara, 23 February 1944; see also PC 1977, 20 March 1944.
706. See, for example, NAC, RG 27, Vol. 993, File 2.101-8-1, J. G. Diefenbaker to H. Mitchell, 28 February 1946.
707. Debates, 25 March 1946, 213.
708. Ibid, 15 May 1946, 1544.
709. Ibid, 10 July 1946, 3308–9.
710. NAC, RG 27, Vol. 992, File 2-101-8, pt. 2, A. MacNamara to J. H. Blackmore, 6 June 1946. This letter is interesting because it says that there were, in June 1946, more than four hundred Jehovah’s Witnesses who were outside the camps, ‘abiding by the regulations applicable to men of their status.’ But those regulations still required Red Cross contributions, with limited exceptions (as of 1 April 1946 agricultural workers were relieved of making further contributions), and signed contractual agreements to accept directed alternative service, both conditions the Jehovah’s Witnesses uniformly rejected. How then were they abiding by the regulations? The conclusion is inescapable that abiding by the regulations meant in their case that they were free to go about their business not subject to any regulations at all. I have not been able to find any evidence indicating that some special arrangement was made for Jehovah’s Witnesses to perform out-of-camp alternative service. All the available evidence points in the opposite direction. The men were being gradually released, but it seems to have served a political need of the government to keep some of these conscientious objectors in the camps. Moreover, it is quite likely that many of these four hundred had never served any time in the camps at all, but had been called up towards the end of the war when direction to alternative service for conscientious objectors had all but ceased. See Debates, 25 March 1946, 213–14.
711. Jehovah’s Witness Papers, ‘Representations with Respect to Alternative Service,’ n.d., 4–5.
712. NAC, RG 27, Vol. 993, File 2-101-8-1, G. R. Carroll to WTBTS, 8 July 1946. Officially, alternative service was suspended on 15 August 1946 by PC 3030, 18 July 1946. Between 15 July and 15 August, the conscientious objectors were on unrestricted leave. A collateral decision made at this time was for the RCMP to return, unexecuted, warrants for more than two hundred conscientious objectors who had allegedly violated the alternative-service regulations. Why they were given, in effect, amnesty, is far from clear. See NAC, RG 27, Vol. 3058, File 21-25-2, A. H. Brown to G. R. Carroll, 17 August 1946.
713. ‘[I]n various homes he conducted meetings twice a week which were opened and closed with prayer. At these meetings study was made of the Bible and of the “Watchtower” and hymns were sung to the accompaniment of a piano when available. About 20–25 persons generally attended these meetings in different homes on every other night of the week and, during the day, [he] was engaged in canvassing from house to house … In these circumstances, although there was no church or fixed place for holding meetings, I am of the opinion that he looked after something equivalent to a parish, conducted religious meetings, had a bona fide congregation and ministered to his congregation spiritually … I am of the opinion that he falls within the meaning of “Minister of Religion” in the Defence Act 1903–1941. I therefore allow the appeal and quash the conviction.’ Re F. Grundy NSW Weekly Notes (61) 102 at 106. For a brief overview about the Second World War Australian alternative-service system, see Devi Prasad and Toni Smythe, eds, Conscription: A World Survey (London: War Resisters' International 1968).
714. The following is only an overview of the American system as it affected Jehovah’s Witnesses. Those interested in more information about that system would be well served by beginning with the reports of the Director of Selective Service, published by the Government Printing Office in Washington DC and, in particular, Selective Service in Peacetime: First Report of the Director of the Selective Service (Washington, DC: Government Printing Office 1942), which contains a large section on arrangements made for conscientious objectors. See also J. Garry Clifford and Samuel R. Spencer, Jr, The First Peacetime Draft (Lawrence, Kansas: University Press of Kansas 1986); Julien Cornell, Conscience and the State: The Conscientious Objector and the Law (New York: Garland Publishing Inc., reprint 1973); and Mulford Q. Sibley and Philip E. Jacob, Conscription of Conscience: The American State and the Conscientious Objector, 1940–1947 (Ithaca, NY: Cornell University Press 1952).
715. NAC, RG 27, Vol. 131, File 601.3-6, Vol. 2, ‘Conscientious Objectors in the United States,’ n.d.
716. See section 5(d) of the Selective Service Training and Service Act of 1940 and section 622.44 of the Selective Service Regulations, Second Edition.
717. Vol. III, Opinion No. 14 (Amended), National Headquarters, Selective Service System, 2 November 1942.
718. Ibid.
719. Ibid.
720. Selective Service System, State Director Advice (No. 213-B). As Amended 9/25/44.
721. ACLU, Jehovah’s Witnesses and the War (New York: ACLU 1943), 33.
722. Selective Service System, State Director Advice (No. 213-B). As Amended 9/25/44.
723. See also Selective Service in Wartime, Second Report of the Director of Selective Service, 1941–1942 (Washington, DC: Government Printing Office 1943), 240–1.
724. Sibley and Jacob, Conscription of Conscience, 153.
725. This section is derived from Sibley and Jacob, Conscription of Conscience, 335ff, and Selective Service in Wartime, Second Report, 321ff.
726. According to the Selective Service Commission the actions of the local boards were invariably challenged in one of three ways: 1 / injunctions to restrain the board from ordering the selectee to report for induction; 2 / certiorari to review the decision of the board for errors in law; 3 / habeas corpus for release on the grounds of improper proceedings. The courts uniformly held that both the equitable remedy of injunction and the extraordinary writ of certiorari were improper remedies, leaving the registrant with only habeas corpus. But, as noted in the text, habeas corpus was only available when all other remedies had been exhausted or where the board lacked jurisdiction. There were cases that said that a selectee might be released if the board acted arbitrarily, but with one exception, no court found any board to have acted in an arbitrary manner. See Selective Service in Peacetime: First Report of the Director of the Selective Service (Washington DC: Government Printing Office 1942), 306.
727. See U.S. v. Grieme, 128 F. 2d 811, 815 (3rd Cir. 1942).
728. U.S. v. Bowles, 131 F. 2d 818,819 (3rd Cir. 1942).
729. See Rase v. U.S., 129 F. 2d 204,210 (6th Cir. 1942), where the court said that the Constitution granted no immunity from military service because of religious convictions or activities. Immunity was a matter of congressional grace in pursuance of a traditional American policy of deference to conscientious objectors. It was not a matter of religious liberty but a question of national safety, ‘without the preservation of which, liberty of conscience and religion will everywhere disappear.’
730. 320 U.S. 549 (1944). See also Billings v. Truesdell 321 U.S. 542.
731. See also two important preliminary decisions, Bronemann v. United States, 138 F. 2d 333 (8th Cir. 1943), and Goff v. U.S., 135 F. 2d 610 (4th Cir. 1943).
732. Estep v. U.S., 327 U.S. 114 (1946).
733. Cited in A. H. Macmillan, Faith on the March (Englewood Cliffs, NJ: Prentice-Hall, Inc. 1957), 186–7. See also Nathan T. Elliff, ‘Jehovah’s Witnesses and Selective Service,’ 31 (1944–5) Virginia Law Review 811–34, and Claud H. Richards, Jr., ‘Religion and the Draft: Jehovah’s Witnesses Revisited,’ in Carl Beck, ed., Law and Justice (Durham, NC: Duke University Press 1970), 47–75. On their experience in prison see Mulford Sibley and Ada Wardlaw, Conscientious Objectors in Prison, 1940–1945 (Philadelphia: The Pacifist Research Bureau, 1945), and William Stockdale, Jehovah’s Witnesses in American Prisons (Putnum, Conn.: The Wilda Press 1946).
734. See Dickinson v. U.S., 346 U.S. 389 (1953).
735. This section drawn from Harold Zink and Taylor Cole, eds, Government in Wartime Europe and Japan, rev. ed. (Boston: Houghton Mifflin Company 1942), and Prasad and Smythe, eds, Conscription: A World Survey.
736. ‘The acceptance of any of these persons as regular ministers of a religious denomination leads logically to the conclusion that every member of this so-called religious denomination should be excepted from liability on the same ground.’ Report from British Ministry of Labour and National Service, cited in Elliff, ‘Jehovah’s Witnesses and Selective Service,’ 821.
737. Ibid. See also Walsh v. Lord Advocate, [1956] 3 All ER 129.
738. David Fransen, ‘Breaking Down Barriers: Mennonites in Canada during the Second World War,’ unpublished paper 1986, 23.
739. NAC, RG 35, Vol. 21, ‘Historical Account of the Wartime Activities of the Alternative Service Branch, Department of Labour,’ 11 April 1946, 25–6.
740. Donald Creighton, The Forked Road (Toronto: McClelland & Stewart 1976), 77.
741. J. L. Granatstein, Canada’s War (Toronto: Oxford University Press 1975), 276.
742. It is interesting to observe that a similar phenomenon took place in the United States after the First World War. See Paul L. Murphy, World War I and the Origin of Civil Liberties in the United States (New York: W. W. Norton & Co. 1979). See also Paul L. Murphy, The Constitution in Crisis Times (New York: Harper & Row 1972).
743. For a study of the radical right see Stanley Barrett, Is God a Racist? (Toronto: University of Toronto Press 1987).
744. Debates, 10 October 1945, 900.
745. See OA, DP(O), Vol. 15, File 152-6; Vol. 31, File 247-G; The Globe and Mail, 7 March 1944.
746. SO 1944, c. 51.
747. For some of the petitions and resolutions against the legislation see, for example, OA, DP(O), Vol. 7, File 74-G.
748. See, generally, Herbert Alvin Sohn, ‘Human Rights in Ontario: A Study of Social Action,’ PhD thesis, University of Toronto 1975.
749. For a synopsis of the report see To Secure These Rights: A Brief Summary of the Report of the President’s Committee on Civil Rights (Detroit: UAW-CIO Fair Practices and Anti-Discrimination Department n.d.).
750. In his memoirs, for example, he claimed to have spoken during the war on the plight of the Canadian Japanese. The Debates, however, show that this was not the case and that the earliest he spoke was in late 1945. Diefenbaker, however, said it so often that he undoubtedly came to believe it. ‘It is hard to understand why he goes on pretending that he did. He has a record of opposition to racial discrimination in the years since the war which is honoured even by his political opponents. Surely, that should be enough.’ J. W. Pickersgill, The Road Back (Toronto: University of Toronto Press 1986), 96.
751. See Debates, 3 May 1946, 1214.
752. Conrad Black, Duplessis (Toronto: McClelland & Stewart 1977), 386.
753. See H. F. Quinn, The Union Nationale 2nd ed. (Toronto: University of Toronto Press 1979), 110–11.
754. Reg Whitaker, ‘The Cold War the Myth of Liberal-Internationalism,’ unpublished paper, 8 June 1987.
755. Quinn, The Union Nationale, 127–8.
756. Jehovah’s Witnesses in the Divine Purpose, 1959, 239.
757. Ibid.
758. Leslie Roberts, The Chief (Toronto: Clake Irwin 1963), 94.
759. Quebec’s Burning Hate (Toronto: Watch Tower Bible and Tract Society), 3.
760. The Ottawa Journal, 21 February 1948.
761. Thomas R. Berger, Fragile Freedoms (Toronto: Clarke Irwin 1982), 174.
762. Jehovah’s Witnesses in the Divine Purpose, 1959, 241–2.
763. The Toronto Daily Star, 19 June 1946.
764. B. K. Sandwell, ‘Civil Liberties,’ in Martyn Estall, ed., Rights and Liberties in Our Time (Toronto: The Ryerson Press 1947), 96–108, at 98–9; see also ‘Of Dangerous Doctrines,’ Saturday Night, 18 January 1947, 1,5.
765. Sandwell, ‘Civil Liberties,’ 98–9.
766. F. R. Scott, ‘Duplessis Versus Jehovah,’ Canadian Forum, January 1947, 222–3.
767. Roberts, The Chief, 126.
768. See generally Ivan Rand, ‘The Role of an Independent Judiciary in Preserving Freedom,’ 9 (1951) U. of T. Law Journal, 1–14.
769. Boucher v. R. [1951] SCR 265, at 285.
770. Ibid.
771. Ibid, 288.
772. Ibid, 291–2.
773. F. A. Brewin, ‘Criminal Law, Boucher v. The King,’ 29 (1951) Canadian Bar Review, 193–203, at 202.
774. 1851, 14 & 15 Vict., c. 175 (Province of Canada).
775. Re. Alberta Statutes, [1938] SCR 100.
776. For a comparison of the Alberta reference and the Saumur case see Constitutional Freedom in Peril (Winnipeg: The Winnipeg Free Press, 1954). And for contemporaneous discussion of this case see Bora Laskin, ‘Our Civil Liberties: The Role of the Supreme Court,’ 61 (1954) Queen’s Quarterly, 455–71.
777. Saumur v. The City of Quebec (hereafter Saumur), [1953] SCR 299,326.
778. Ibid.
779. Ibid, 329.
780. Ibid, 330.
781. In Winner v. S. M. T. Eastern Ltd. and A.-G. New Brunswick, [1951] 4 DLR 529, he had held that the right to use the highways could not be abrogated by a province.
782. Saumur [1953] SCR 299, at 329.
783. See also Walter S. Tarnopolsky, The Canadian Bill of Rights (Toronto: Carswell 1966), 8.
784. ‘An Act For the Freedom of Religion and the Preservation of Order’ provided that any writing that is ‘insulting and abusive’ towards a religious group could be seized without a warrant. The new act did not protect freedom of religion, it destroyed it, and the Jehovah’s Witnesses moved to challenge the legislation in court. See Saumur v. Procureur Général de Québec [1964] SCR 252.
785. The Ottawa Citizen, 7 October 1953.
786. Black, Duplessis, 387.
787. The Montreal Gazette, 5 December 1946. See also, F. R. Scott, ‘Duplessis Versus Jehovah,’ Canadian Forum, January 1947, 222–3.
788. B. K. Sandwell, ‘Why French Canada “Hates” Witnesses of Jehovah,’ Saturday Night, 28 December 1946, 6.
789. Roberts, The Chief, 129–30. See also Scott, ‘Duplessis Versus Jehovah,’ 222–3.
790. Roman Catholics did not necessarily approve of Duplessis’s conduct. The English-language Roman Catholic newspaper, The Canadian Register, editorialized against the cancellation of the liquor licence. It was an inappropriate use of executive power, as far as this paper was concerned, although the paper generally subscribed to the premier’s views about the necessity of restricting the activities of the Jehovah’s Witnesses.
791. Roberts, The Chief, 130–1. Joining Power on the stand was Roger Ouimet, a prominent Montreal lawyer, son-in-law of the late Ernest Lapointe, and future Quebec judge.
792. Ibid, 132–3. On the outlawing of the Potlatch Ceremony, see Donald Purich, Our Land (Toronto: James Lorimer 1980), 27–8.
793. Ibid, 126–7.
794. See Paul Normandin, The Padlock Law Threatens You! (Montreal: Civil Liberties Union), n.d.
795. Switzman v. Elbling and A. G. Quebec [1957] SCR 285.
796. Frank Scott also acted as counsel in this case, at the request of two former students, Abraham Feiner and Albert Marcus.
797. William J. Whalen, Armageddon around the Corner (New York: The John Day Company 1962), 19.
798. On Scott, see Sandra Djwa, The Politics of the Imagination (Toronto: McClelland & Stewart 1987). See also Susan Mann Trofimenkoff, The Dream of Nation (Toronto: Gage 1983), 276–7.
799. Roncarelli v. Duplessis [1959] SCR 121,133.
800. Ibid, 140–1.
801. Ibid, 141.
802. Ibid.
803. Ibid, 141–2.
804. Ibid, 142. For an excellent political and intellectual analysis of Duplessis see Michael D. Behiels, Prelude to Quebec’s Quiet Revolution (Kingston and Montreal: McGill-Queen’s University Press 1985), 227–8. For a more favourable interpretation of Duplessis’s role in the Roncarelli affair see Black, Duplessis, 385–90.
805. One of them, as we briefly saw, was the Switzman v. Elbling decision, which struck the Padlock Act down as an invasion of the federal criminal power. In another case, Henry Birks & Sons (Montreal) Ltd. v. City of Montreal, [1955] SCR 799, the Supreme Court unanimously held that it was beyond provincial jurisdiction to give municipalities the right to pass by-laws requiring stores to close on religious holidays.
806. The petition was circulated in March, but not presented to Parliament until June. See Debates, 18 June 1947, 4278; M. James Penton, Jehovah’s Witnesses in Canada (Toronto: Macmillan 1976), 196.
807. King Papers, Vol. 245, File 2500, Cabinet Conclusion 21 January 1947.
808. Ibid.
809. David Croll Interview, 2 November 1987.
810. Debates, 15 May 1947, 3139–40.
811. See, for example, OA, MU 7592, File 1, A. R. M. Lower, ‘Some Reflections on a Bill of Rights,’ January 1947.
812. ‘The Joint Committee on Human Rights and Fundamental Freedoms,’ 26 (1948) Canadian Bar Review, 706–14.
813. Minutes of Proceedings and Evidence, 1947–8, Report of the Joint Committee, 212.
814. There was not universal demand for a bill of rights; in some quarters Parliament was seen as the guardian of the liberties of the people and entrenched rights seen as an outdated Americanism not applicable to the Canadian context. See, for example, H. McD. Clokie, ‘The Preservation of Civil Liberties,’ 13 (1947) Canadian Journal of Economics and Political Science, 208–32.
815. Robert Bothwell and J. L. Granatstein, eds, The Gouzenko Transcripts (Ottawa: Deneau Publishers 1982), 17. See also M. H. Fyfe, ‘Some Legal Aspects of the Report of the Royal Commission on Espionage,’ 24 (1946) Canadian Bar Review, 777–84; Clokie, ‘The Preservation of Civil Liberties,’ 208–32.
816. The Canadian Civil Liberties Union, founded in Montreal before the war, was moribund. Following a spurt of activity at the start of the war, it disappeared from the scene and never returned. Canadian Civil Liberties Union, Montreal Branch, ‘Civil Liberties Bulletin,’ April 1940, Montreal. See Joseph Starobin, ‘Civil Liberties in Canada,’ New Masses, 16 July 1940. The Toronto Civil Liberties Association, established in early 1940, had never really got off the ground. Its executive met with the prime minister, and inasmuch as their representations encouraged King to establish the Special Committee on the Defence of Canada Regulations, they were to the good. A major brief prepared by the organization was delivered in early May 1940 when the public mood was anything but favourable to the liberalization of the regulations. Activities of the association then became sporadic, but it too now revived. Indeed, the Gouzenko revelations led to the establishment of one new civil-liberties association, the Emergency Committee for Civil Rights, formed in April 1946, which was dedicated to protesting the infringements of civil liberties the Gouzenko defection had brought about. See OA, MU 7596, File 12, ‘Civil Rights,’ 15 August 1946, 15 September 1946, 31 October 1946.
817. On the civil-liberties activities of the Canadian Bar Association during and following the Second World War see CBA Papers, Minutes, 28 February 1942, 17–18; Minutes, 24 and 25 August 1942, and Transcript of Proceedings, 44ff; Minutes, 27 February 1943, 4–5; Minutes, 27 August 1943; ‘The Law of Our Today,’ 21 (1943) The Canadian Bar Review, 315–19; ‘Report of the Committee on Civil Liberties,’ 22 (1944) The Canadian Bar Review, 598–617; Phil Glanzer, ‘The Bar Association Protests,’ Canadian Business, October 1944, 84,178; CBA Papers, Proceedings and Report, 30 August 1946. See also, B. K. Sandwell, ‘Bar Association Utters Clarion Call for Renewal of Liberties,’ Saturday Night, 14 September 1946, 17.
818. For quite a different interpretation of what Gouzenko revealed see William A. Reuben, The Atom Spy Hoax (New York: Action Books 1955).
819. See Norman Penner, Canadian Communism: The Stalin Years and Beyond (Toronto: Methuen 1987).
820. See OA, MU 7596, File 13, Civil Rights Union, ‘Civil Rights,’ Vol. 1, No. 4, 20 December 1946.
821. See Democracy Betrayed: Submission to the Federal Government by the National Association of Japanese Canadians (February 1985); Rights and Freedoms, 54.
822. ‘As a result of the nation-wide publicity of this petition and the thousands of letters to members of Parliament calling for a Bill of Rights, the government finally set up a committee to consider such a measure.’ Jehovah’s Witnesses in the Divine Purpose, 1959, 243.
823. Ibid. Canadian Jehovah’s Witnesses appear to have enlisted the support of their American brethren in the campaign. See NAC, RG 25, Vol. 2911, File 102-FP-40. W. Glen How also urged a Canadian bill of rights, and wrote an influential article published in the Canadian Bar Review, W. Glen How, ‘The Case for a Canadian Bill of Rights,’ 26 (1948) Canadian Bar Review, 759–96. And to ensure that it got read the Jehovah’s Witnesses reprinted ten thousand copies of it and of a related article written by Hayden Covington. Both articles were distributed to lawyers, politicians, and other interested persons across the country. See Penton, Jehovah’s Witnesses in Canada, 198.
824. OA, MU 7592, File 3, ‘Civil Rights Union,’ Bulletin No. 4, n.d. ‘Last year,’ the Civil Liberties bulletin said, ‘over five hundred thousand Canadians signed a petition to the Canadian government asking it to enact a Bill of Rights. A joint committee of the Senate and House of Commons was appointed to consider Human Rights and Fundamental Freedoms. The final report of this committee states: “There is need for more public discussion before the task of defining the rights and freedoms to be safeguarded is undertaken.”’ The Civil Liberties Union disagreed. ‘Petitions are powerful weapons,’ it said, and it urged Canadians to sign.
825. Debates, 9 February 1948, 371.
826. Including one from the Civil Rights Union of Toronto, OA, MU 7592, File 5, Civil Rights Union, ‘To the Special Joint Committee.’
827. On the establishment of the committee see Debates, 12 February 1948, 1127; 13 February 1948, 1181; 9 April 1948, 2842–7; 12 April 1948, 2862–83; and 16 April 1948, 3041.
828. Debates, 22 September 1949, 150.
829. See The Senate of Canada, Proceedings of the Special Committee on Human Rights and Fundamental Freedoms (Ottawa: King’s Printer 1950), 3, Arthur W. Roebuck, Chairman.
830. See, for example, ‘A Brief on Human Rights and Fundamental Freedoms to a Special Committee of the Senate of Canada’ (Toronto: The Association for Civil Liberties unpublished paper 1950); see also ‘Canadian Labour Organizations Present Briefs on Human Rights and Fundamental Freedoms,’ Labour Gazette, 1950, 1004–10.
831. The Senate of Canada, Proceedings of the Special Committee on Human Rights and Fundamental Freedoms, 306.
832. Arnold Bruner, ‘The Genesis of Ontario’s Human Rights Legislation: A Study in Law Reform,’ 37 (1979) U. of T. Faculty of Law Review, 236, at 239, footnote 22. See also Walter Tarnopolsky, ‘The Iron Hand in the Velvet Glove: Administration and Enforcement of Human Rights Legislation in Canada,’ 46 (1968) Canadian Bar Review, 565–90, at 569.
833. [1945] 2 DLR 244 (Ont. HC).
834. [1945] OR 778.
835. It is of interest to note that two future chief justices of Canada were among the counsel who appeared amici curiae in this case: J. R. Cartwright and Bora Laskin.
836. [1948] 4 DLR 123. At the same time U.S. attorney general Tom Clark was citing the Mackay decision with approval in two restrictive-covenant cases before the U.S. Supreme Court, Shelly v. Kraemer, 334 US 1 (1948), and Hurd v. Hodge, 334 US 24 (1948). See also Clement E. Vose, Caucasians Only (Berkeley, CA: University of California Press 1959).
837. D. A. L. Smout, ‘An Inquiry into the Law on Racial and Religious Restraints on Alienation,’ 30 (1952) Canadian Bar Review, 863–80.
838. ‘The purpose of the Association, which was only recently established, is, briefly, to promote respect for and observance of fundamental human rights and civil liberties particularly in Canada and to foster the recognition, defence and extension of these rights and liberties.’ Irving Himel to Dana Porter, 27 May 1949, OA, RG 3, Frost Papers, File, Association of Civil Liberties; see also Brief, Association for Civil Liberties (Toronto) 7 June 1949. The Fellowship of Reconciliation, a United Church organization, also wrote to the premier in favour of that brief and asking for leadership from Ontario in enacting such legislation. See Rev. James M. Finlay to Leslie Frost, 9 June 1949, OA, RG 3, Frost Papers, File, Association of Civil Liberties.
839. See R. S. K. Seeley to Leslie Frost, 9 December 1949, OA, RG 3, Frost Papers, File, Association of Civil Liberties.
840. Canadian Association for Adult Education, ‘Should We Have Fair Employment Practices in Canada?’ 1948.
841. See OA, MU 7596, File 12, ‘A Brief to the Premier of Ontario,’ 24 January 1950. See also The Globe and Mail, 25 January 1950.
842. OA, RG 3, Frost Papers, File, Association of Civil Liberties, R. S. K. Seeley to Leslie Frost, 17 February 1950.
843. OA, MU 7596, File 12, ‘A Brief to the Premier of Ontario,’ 24 January 1950, 13. See also OA, MU 7592, ‘Press Comment on Anti-Discrimination Laws.’
844. SO 1950, c. 11, S. 1.
845. Some of this process is described in Bruner, ‘The Genesis of Ontario’s Human Rights Legislation,’ 246ff; much of the preceding section is derived from Herbert Alvin Sohn, ‘Human Rights in Ontario: A Study of Social Action,’ PhD thesis, University of Toronto 1975.
846. As cited in Sohn, ‘Human Rights in Ontario,’ 126. See also Bruner, ‘The Genesis of Ontario’s Human Rights Legislation,’ 239.
847. SO 1954, c. 28, S. 28.
848. See Sohn, ‘Human Rights in Ontario,’ 148–50. On the Dresden cases see A. Alan Borovoy, ‘The Fair Accommodation Practices Act: The “Dresden” Affair,’ 14 (1956) U. of T. Faculty of Law Review, 13–23.
849. Sid Blum, ‘Fair Practice Laws — the Canadian Experience,’ Canadian Labour, January 1962, 11–14, at 11.
850. Dorothy Giffen, ‘The Hutterites and Civil Liberties,’ Canadian Forum, June 1947, 55–7. For a history of Hutterites in Canada see A. M. Willms, ‘The Brethren Known as Hutterians,’ 24 (1958) Canadian Journal of Economics and Political Science, 391–405, and see also Douglas E. Sanders, ‘The Hutterites: A Case Study in Minority Rights,’ 42 (1964) Canadian Bar Review, 225–42.
851. See, for example, OA, MU 7592, ‘Declaration of the Rights of Canadians,’ October 1953; ‘A Draft Bill of Rights for Canada,’ n.d. Another civil-liberties organization, the League for Democratic Rights, was behind much of this activity and campaigning for a bill of rights was its main goal. OA, MU 7592, file 5, ‘Special Bulletin,’ 23 October 1953. The LDR was also extremely active in protesting a very immoderate piece of proposed legislation, Bill H-8 (later Bill 93 and then Bill 7). See OA, MU 7596, ‘Protect Our Democratic Rights,’ ‘It’s a Crime!’ ‘It’s Still a Crime!,’ ‘It’s a Free Country — Isn’t It?’ See also F. R. Scott, ‘Dominion Jurisdiction over Human Rights and Fundamental Freedoms,’ 27 (1949) Canadian Bar Review, 497–536, calling for a bill of rights, and see also A. R. M. Lower, ‘Some Reflections on a Bill of Rights,’ (15 February 1947) The Fortnightly Law Journal, 216–18, and Lower, ‘Some Reflections on a Bill of Rights,’ (1 March 1947) The Fortnightly Law Journal, 234–7.
852. For materials on internal security in this period see King Papers, Vol. 331, File 3522.
853. See, for example, Debates, 14 March 1950, 2090.
854. Debates, 9 May 1950, 2307.
855. For the situation in the United States see Michael R. Belknap, Cold War Political Justice (Westport, CO: Greenwood Press 1977).
856. See Reg Whitaker, Double Standard: The History of Canadian Immigration (Toronto: Lester & Orpen Dennys 1987), 192.
857. 347 U.S. 483 (1954).
858. On the foreign-policy implications of desegregation see Mary L. Dudziak’s excellent paper, ‘Desegregation as A Cold War Imperative,’ unpublished paper, 19 October 1987; see also Harry Arthurs, ‘Civil Liberties — Public Schools — Segregation of Negro Students,’ 41 (1963) Canadian Bar Review, 453–7.
859. See generally John Diefenbaker, One Canada, II (Toronto: Macmillan of Canada 1976); Walter S. Tarnopolsky, The Canadian Bill of Rights (Toronto: The Carswell Company 1966); D. A. Schmeiser, Civil Liberties in Canada (London: Oxford University Press 1964).
860. See F. R. Scott, ‘The Bill of Rights and Quebec Law,’ 37 (1959) Canadian Bar Review, 135–46.
861. Bora Laskin, ‘Canada’s Bill of Rights: A Dilemma for the Courts?’ II, (1962) International and Comparative Law Quarterly, 518–36, at 533. See also Bora Laskin, ‘An Inquiry Into the Diefenbaker Bill of Rights,’ (1959) Canadian Bar Review, 78–134; ‘Human Rights and Fundamental Freedoms,’ Canadian Labour, September 1960, 14–19, at 14.
862. See, for example, Pauline Jewett, ‘Mr. Diefenbaker’s Proposed Bill of Rights,’ Canadian Forum, December 1958, 199–201.
863. John G. Diefenbaker, One Canada, II, (Toronto: Macmillan 1975), 262.
864. W. F. Bowker, ‘Basic Rights and Freedoms: What Are They?’ 37 (1959) Canadian Bar Review, 43–65, at 65.
865. Herbert Marx, ‘Human Rights and Emergency Powers,’ in R. St J. MacDonald and John P. Humphrey, eds, The Practice of Freedom (Toronto: Butterworth 1979), 447–60,451; see also Herbert Marx, ‘The Emergency Power and Civil Liberties in Canada,’ 16 (1970) McGill Law Journal, 39–91,71. See generally Special Committee on Human Rights and Fundamental Freedoms, Minutes of Proceedings and Evidence (Ottawa: Queen’s Printer 1960).
866. Diefenbaker, One Canada, II, 262.
867. OA, MU 7592, ‘Emergency Powers Act and Related Legislation,’ n.d. See also Debates, 20 February 1953.
868. Tarnopolsky, The Canadian Bill of Rights, 226.
869. SC 1960, c. 44.
870. In October 1970 the federal government, in response to terrorist activities in Quebec, invoked the War Measures Act and promulgated the Public Order Regulations S.O.R./70-444, (16 October 1970), The Canada Gazette (Part II) which gave police authorities virtually unrestricted power to arrest and detain. Subsequently, on 3 December 1970, the War Measures Act was allowed to lapse and the Public Order Regulations were replaced by the Public Order (Temporary Measures) Act, SC 1970-71-72, c. 2. Altogether, of almost 500 people arrested, only 62 were charged of whom 18 were convicted, only 2 under the Public Order Regulations. For an interesting interpretation of the interaction of the War Measures Act with the Bill of Rights, see Charles F. Scott Jr., ‘The War Measures Act, S. 6(5) and the Canadian Bill of Rights,’ 13 (1970–1) Criminal Law Quarterly, 342–7.
871. See W. S. Tarnopolsky, ‘The Supreme Court and the Canadian Bill of Rights,’ 53 (1975) Canadian Bar Review, 649–674, at 672. See also S. J. Godfrey, ‘Freedom of Religion and the Canadian Bill of Rights,’ 22 (1964) U. of T. Faculty of Law Review, 60–75. There was an incident not unlike what happened to Witness children during the Second World War in which the government of British Columbia removed Doukhobor children from their parents' homes and placed them in a residential school because the parents refused to send their children to school, claiming that it was a violation of their religious rights. See Sydney Katz, ‘The Lost Children of British Columbia,’ Maclean’s, 11 May 1957, 100–8. What little non-Doukhobor criticism the government action elicited was to the effect that the government had not gone far enough. One suggested solution to the Doukhobor problem was permanent removal of children from their parents. See Simma Holt, Terror in the Name of God (Toronto: McClelland & Stewart 1964), 288,295. For a more benign view of the Doukhobors, see George Woodcock and Ivan Avakumovic, The Doukhobors (Toronto: Oxford University Press 1968).
Unidentified member of Jehovah’s Witnesses distributing Awake! in Montreal, December 1946. Public Archives of Canada (PAC/PA-115256).
In July 1940 the government of Canada banned the Jehovah’s Witnesses. Overnight it became illegal to be a member of the sect. The law, passed under the War Measures Act, was vigorously enforced. Beatings, mob action, police persecution, and state prosecution beset the Jehovah’s Witnesses as they ignored the ban and continued to go about their work spreading the word of God.
William Kaplan has made extensive use of documents obtained under the Access to Information Act in Canada, the Freedom of Information Act in the United States, and archival sources such as the records of the Jehovah’s Witnesses and their lawyers. He offers an insightful account of the sect’s struggle for legitimacy and its implications for Canadian society.
The struggle was bitter indeed. Jehovah’s Witness children who refused to sing the national anthem and salute the flag during patriotic exercises in public schools were often expelled from class and, in a few cases, removed from their parents' care and placed in foster homes and juvenile detention centres. Men of military service age who refused to fight spent the war trying to get out of alternative service camps established across Canada for conscientious objectors. Jehovah’s Witnesses spent a good deal of time in the courts during the war years: they challenged government policies with which they disagreed, and were arrested in the hundreds and charged with being members of an illegal group.
Through those years the sect’s one major goal was to convince the government to rescind the ban. Through nation-wide campaigns, hundreds of thousands of Canadians were convinced to sign Jehovah’s Witness petitions calling for a bill of rights. Post-war developments in the province of Quebec gave this objective new urgency as Premier Maurice Duplessis waged his ‘war without mercy’ on the sect. In the end, the Parliament of Canada passed a bill of rights and eventually a charter of rights. Kaplan concludes by placing these developments in their context and considering the important role which the Jehovah’s Witnesses played. Very simply, in their confrontation with the state the Jehovah’s Witnesses did not vindicate established standards for the protection of minority dissent. They helped to create those standards, and these are the standards which Canadians continue to enjoy today.
WILLIAM KAPLAN teaches in the Faculty of Law, University of Ottawa. He is the author of Everything That Floats: Pat Sullivan, Hal Banks, and the Seamen’s Union of Canada and co-editor of Moscow Despatches: Inside Cold War Russia.
‘The question then arose about what to do about Arthur and, by implication, every other Witness child in Hamilton. Judge Burbidge had an answer. “If he has been and is imbibing wrong ideas in his present environment and I include in this not only his home but the school which he attends, the only logical course is to change this environment and give him the opportunity to grow up in conformity with standard ideas and to develop his own convictions without undue pressure.” Burbidge ordered the boy removed from his father’s care and delivered to foster care. Soon enough the same order was made in the cases of six other Hamilton children. Eight of the “Hamilton 26” had now been sentenced to some kind of state care for respectfully refusing to sing the national anthem.’
ISBN 0-8020-5842-6
To the memory of my grandparents Harry and Kate Cherniak
Table of Contents
Acknowledgments
Preface
1. Setting the Stage
History and beliefs
The constitutional framework
2. This Hour of Trial
Declaration of war
Ernest Lapointe, Quebec, and minority dissent
National security
The 1940 general election
The empire in extremis
3. Difficult Days
The ban
Carrying on
Questions and answers
The death of Ernest Lapointe
4. An Illegal Organization
5. Purely a Matter of Discipline
Excursus: the great American flag-salute cases
The flag-salute and Canadian courts
6. Special Consideration
7. For Conscience' Sake
Obtaining release
How Canada compared
8. The Framework of Freedom
The war without mercy
Epilogue
Index
Notes
Acknowledgments
This book began as independent research during my final year at Osgoode Hall Law School, where Professor Harry Glasbeek, a model teacher and scholar in every respect, was my supervisor. Professor Harry Arthurs encouraged me to expand the study, which I did, under the supervision of Professor Robert Gordon at Stanford Law School. To Professors Glasbeek, Arthurs, and Gordon go my sincere thanks.
At the National Archives of Canada, I was assisted by Robert Hayward, Dan Moore, and David Smith. The late Phyllis Clarke gave me permission to consult the J. L. Cohen Papers. Glen How and John Burns made available without restriction the wartime records of the Jehovah’s Witnesses in Canada. William Monopoli, one-time Director of Legislation and Law Reform, gave me access to the records of the Canadian Bar Association. Judith Nefsky at the Canadian Jewish Congress Archives was helpful, as were the staff at the Queen’s University Archives. W. A. B. Douglas made available certain Department of Defence records that have not been transferred to the National Archives, while J. Paul Lordon removed obstacles barring the way to the papers of the Department of Justice. P. E. J. Banning gave me access to some of the records of the Royal Canadian Mounted Police, and Gene Montgomery assisted me in obtaining copies of records now subject to the control of the Canadian Security Intelligence Service. The Honourable Ian Scott, Attorney General of Ontario, and Richard Chaloner, Deputy Attorney General, gave me unrestricted access to the Ministry of the Attorney General’s Papers at the Ontario Archives, where I was also given much help by Ian Forsyth, A. J. MacDonald, Richard Ramsey, Cathy Sheppard, and Leon S. Warmski. Reg Whitaker provided me with copies of relevant RCMP Security Service bulletins. Mary Dickerson of the Legislative Library, Queen’s Park, was helpful, as was Helen Detwiler, Chair of the Hamilton Board of Education. Professor Sam Walker of the University of Nebraska drew my attention to Canadian documents in the American Civil Liberties Union Papers, and Nancy Bressler, Curator of Public Affairs Papers at Mudd Library, Princeton University, forwarded copies of those documents to me. In June 1984 Bill C-252, An Act to Grant Access to Records of the Special Committee on the Defence of Canada Regulations, was passed. Blaine Thacker, MP, provided some early assistance in this matter, but credit for passage of this private-member’s bill belongs to John Reid, one-time Member of Parliament for Kenora — Rainy River.
A number of friends, family members, and colleagues read all or part of this book, and they too deserve my thanks. Special mention must be given to Carl Baar, Robert Bothwell, Earl Cherniak, Cara Feldman, David Fransen, Jack Granatstein, Norman Hillmer, Paul Marsden, William Pentney, Georgina Pickett, Robert Sharpe, Thomas Socknat, and Heather Williams. My brother Michael Kaplan gave the manuscript his usual thorough review, and his excellent counsel and wise judgment improved the manuscript in many ways. My wife, Susan Krever, not only accompanied me to Stanford, but supported us both while we were there. Her support for this project continued after we left, and she has given great encouragement at every stage. Virgil Duff at the University of Toronto Press is an excellent editor and good friend; to him go my grateful thanks for seeing this book into print. Copy-editor Beverley Beetham Endersby made an important editorial contribution. Any mistakes are my own.
Financial assistance was provided by Stanford University, the Ontario Arts Council, and Deans H. A. Hubbard and D. M. McRae of the Faculty of Law of the University of Ottawa. Lenore Dewan provided excellent secretarial assistance. In due course, interview summaries, correspondence, research materials, notes, and drafts will be deposited at the archives of the University of Toronto.
This book has been published with the help of a grant from the Social Science Federation of Canada, using funds provided by the Social Sciences and Humanities Research Council of Canada.
WK, Ottawa, November 1988
Preface
The men and women who lived, fought, and survived the Second World War will soon be gone and with them will go their testimony of the most calamitous and destructive war in human history. They will, however, leave behind a documentary record of the conflict, awesome in its dimensions, compelling in its proof, and rich in its lessons for many generations to come.
In recent years, the nature and the extent of the mistreatment of Japanese residents in Canada and of Japanese Canadians during the Second World War has been well documented. While the received version of events is currently subject to review, what happened to these men, women, and children is a blot on the record of modern Canadian history. Canadians have also learned about their country’s pre-war immigration policy of deliberately refusing entry to Jewish refugees. While no event is comparable to the internment and dispossession of Canada’s Japanese, and while the practices of the Immigration Branch of the Department of Mines and Resources regrettably reflected prevailing attitudes, there is another story from that period that needs to be told. Acting under pressures created by wartime hysteria; considerations of practical federal politics, in particular the real need to keep the province of Quebec in a coalition of national wartime unity; the intolerance of the Roman Catholic hierarchy towards dissident groups; and the happenstance of political cowardice on the part of strategically placed individuals who knew or should have known better, the Canadian government, in July 1940, passed an order-in-council banning the Jehovah’s Witnesses. This ban ranks as the single most serious interference with religious liberties by the state in all of modern Canada’s history. During the life of the ban it became illegal for Jehovah’s Witnesses to worship God as they wished — and the law was vigorously enforced. Beatings, mob action, police persecution, as well as state prosecution, were the order of the day as Jehovah’s Witnesses ignored the ban and continued to go about their work, spreading the word of God. Witness children were exposed as members of an illegal organization because they conscientiously refused to sing the national anthem and salute the British flag. They were expelled from their public schools and, in some cases, removed from the care of their parents and placed in foster homes. Witness men were refused recognition as conscientious objectors and inducted into the military.
While the story of the Second World War ban of Jehovah’s Witnesses in Canada is a tale of Canadians at their worst, it is also one of Canadians at their best. The courage of the Jehovah’s Witnesses who endured repression and fought for what they believed is a testament to the human spirit. But there is more to the story than this. The ban stands, not as an example of official departure from ideal standards of legal protection for dissident groups, but as an important factor in the creation of those standards. The Jehovah’s Witnesses taught the state, and the Canadian people, what the practical content of legal protection for dissenting groups should be. Moreover, the events of the Second World War ban were but a dress rehearsal for post-war persecution of Jehovah’s Witnesses in the province of Quebec. That persecution led to a series of cases that, in the 1940s and 1950s, made their way to the Supreme Court of Canada. They too made an important contribution to Canadian attitudes about civil rights, and they constitute the bedrock of civil-liberties jurisprudence in Canada today. To understand these cases, and to understand the process of constitutional reform that led to the entrenchment of written rights, Canadians need to know more about this episode from their past.
1. Setting the Stage
History and beliefs
1 The religious sect known as the Jehovah’s Witnesses sprang from the Bible Students movement begun by Charles Taze Russell in the 1870s in Pittsburgh, Pennsylvania. Initially an Adventist, Russell came to reject the Adventist belief that Christ’s Second Coming would be in the flesh, and in about 1875 he published a pamphlet predicting Christ’s invisible return to earth. This doctrine, along with the printed word as the means of communicating it, became the foundation of Witness practice and belief. Russell claimed that Christ would come invisibly to earth in 1914, and the belief that Christ did so has become a fundamental article of faith for Jehovah’s Witnesses. Members of the group also believe that the world will be destroyed, as predicted in the Bible, at Armageddon. The Jehovah’s Witnesses first predicted that Armageddon would arrive in 1925 and later altered the year to 1975. The group now claims that it will come within the lifetime of persons who were alive in 1914.
2 Jehovah’s Witnesses believe that God’s plan for man is revealed in the Bible, through which they interpret all of human history and predict the future. The Bible teaches the faithful how to prepare for Armageddon and how to conduct their lives in order to be saved when that day arrives. In 1881, the Watch Tower Society was established to spread these views, and Russell’s successor, Judge Joseph F. Rutherford, gave the name ‘Jehovah’s Witnesses’ to those Bible Students who were loyal to the Watch Tower Society, later the Watch Tower Bible and Tract Society, God’s instrument of government here on earth. Judge Rutherford was the central figure in early-twentieth-century Witness history, for he was not only the director of the activities of the expanding Watch Tower empire, but also the Jehovah’s Witnesses' guiding theological mind.
3 Born in 1869 in Morgan County, Missouri, Rutherford was introduced to the law as a court stenographer and, like many lawyers of his day, never attended law school, but learned the law as a law-office clerk. In 1892 he was licensed as an attorney. It was customary in Missouri for local lawyers, when the properly appointed judge was away on circuit, to elect one of their number to act as a judge for minor matters. Rutherford was, on four occasions, so chosen, and as a result earned the title judge. The title was more ceremonial than anything else. Rutherford was a lawyer, and under his direction the Jehovah’s Witnesses would not be strangers to the courts.
4 To Jehovah’s Witnesses, the Kingdom of God is not some vague theological hope but a practical reality. God’s Kingdom has spiritually existed since 1914, when Christ returned invisibly to earth, and the Jehovah’s Witnesses are citizens of it. They believe that two worlds exist simultaneously: Satan’s old world, to which the vast majority of humanity belongs, and Jehovah’s new world, to which the Jehovah’s Witnesses, the chosen people of God, belong. Witnesses believe that 144,000 real Christians will eventually dwell with God in Heaven and that the rest of the group will live forever in paradise on earth. However, while awaiting the arrival of God’s Kingdom, which will physically arrive following Armageddon, Jehovah’s Witnesses must live in Satan’s world. They must, for example, pay taxes, but they refuse to vote. Nor will they salute a national flag or serve in any army, except God’s. Their objection is not to bearing arms per se, but to doing so in one of Satan’s armies. When the time comes to fight for God, no Jehovah’s Witness will conscientiously object. Jehovah’s Witnesses, in short, live in this world but are not part of it. They are, as one historian of the group once described them, ‘a nation without a country.’[1] In the result, Witnesses believe that they are not citizens of the country of their birth, or of any country, for their loyalty is directly to God. Their mission, until Armageddon, is to obey his law as set out in the Bible. That law requires them to spread the word of Jehovah, to make God’s word known, before the end comes. The imminence of the end makes the Witness message all the more urgent. As many people as possible must be shown the truth before the world, as we know it, is destroyed.
5 There are two main means of bringing the message to the people: first, by relentless door-to-door canvassing, in the manner of the early apostolic Christians, and second, through the printed word. Each year Jehovah’s Witnesses meet at huge international conventions. Their purpose is to publicize Kingdom tidings and to bring to the attention of truth-seekers the Lord’s message. Convention attendance is one of the highlights of the Witness religious year, equivalent, for example, to the Roman Catholic celebration of the Easter Mass.
6 Bible Students appeared in Canada in the early 1880s and their door-to-door proselytizing enlarged their numbers slowly but surely.[2] From their earliest days in Canada, Jehovah’s Witnesses have not been strangers to controversy, soon coming into conflict with both secular and ecclesiastical authorities. It was not Jehovah’s Witnesses' persistence in getting their message across that led to their problems with the law. It was their message itself that caused trouble. The Jehovah’s Witnesses are an intolerant group, believing that theirs is the only truth. While Witness literature of the 1920s, 1930s, and 1940s affirms that the group was ‘devoted to the principles of justice, truth, equity and kindness as exemplified in the acts and sayings of the Creator of the Universe and of His King, Christ Jesus,’[3] the record does not bear out this claim. Their intolerance for all other religions is expressed in bitter attacks on other faiths, in particular on Roman Catholicism.
7 Throughout human history, according to the Witness interpretation of events, Satan has been locked in battle with God, from the instigation of Adam’s eating of the forbidden fruit to the murder of Christ. The battle continues and the presence of Satan explains, to Jehovah’s Witnesses, not only the persecution that they must undergo as a result of their faith, but the contemporary condition of mankind. What other reason could there be for the tremendous increase in crime, death, disease, warfare, debauchery, juvenile delinquency, and immorality? Satan’s earthly instrument for this activity is, the Witnesses believe, the Church of Rome. Simply put, Roman Catholics are not Christians. The Witnesses are the only true followers of Christ. In bringing this message to Roman Catholics and other ‘non-Christians,’ Witnesses claim to demonstrate ‘true Christianity’ by helping their neighbours and brothers and sisters who are being deceived by false doctrine.[4]
8 Jehovah’s Witnesses hold that a period of pure religion followed the death of Christ and that Satan was powerless to confront it. In order to counteract the growing influence and power of those being brought to Christ, Satan devised a plan to defeat the early Christians.[5]
9 Satan saw that it would be profitable to his scheme to have the Christians become more popular; therefore the Christian religion became ostensibly the religion of the wicked world. The Devil thereafter planted amongst the Christians ambitious men, those who had a desire to shine amongst themselves and who in the course of time had themselves appointed or elected to the positions of bishops and chief elders; and in due time there was established a clergy class, as distinguished from the common people. The clergy thus organized introduced into the church false doctrines taught by heathen philosophers, which of course were the Devil’s own doctrines. These were used to corrupt the message of the Lord God. The clergy and the rulers in the church then established theological schools wherein men were trained for the clergy for the purpose of carrying on the work of their system already organized and in operation. In due course statements of belief, or creeds, were formulated and presented to the professed Christians and anyone who taught contrary to these creeds was considered a heretic and was dealt with accordingly.
10 False doctrines were freely introduced and substituted for the truth. Amongst these were and are the doctrines of the trinity, immortality of all souls, eternal torture of the wicked, the divine right of the clergy and the divine right of the kings to rule. In the course of time, Mary, the mother of the child Jesus, was deified; and the people were called upon to worship her as the mother of God. Satan’s purpose in all this, of course, was to turn the minds of the people away from Jehovah. Crucifixes were erected, and the worship of the people was turned to these rather than to let them intelligently worship the Lord Jehovah and the Lord Jesus Christ. Beads, so-called ‘holy water,’ and like things were used and are still used, to blind the people. Gradually, seductively, subtly and wickedly the Devil, through willing instruments, corrupted those who called themselves Christians.[6]
11 Satan had thus been able to turn Christians into Satanists through the Roman Catholic church. Catholics secularized Christ while the Pope served as Satan’s representative. Over time there were challenges to Satan’s rule by real God-fearing men, such as Wycliffe and Luther. But it was not long before Satan penetrated the new Protestant denominations and brought them into his earthly fold. The rise of the Jehovah’s Witnesses again challenged Satan’s hegemony over mankind, and with a predictable result. Satan turned his earthly organizations against these real Christians in an attempt to destroy them. Indeed, the Jehovah’s Witnesses believe that the greater the opposition to their work the closer they are to the Great Battle of Armageddon and the ‘vindication of His name.’[7] Governments and other human-made institutions were among Satan’s soldiers in his battle against the real servants of Christ, but the general in this war was the pope of the Roman Catholic church.
12 In all of this, ordinary Roman Catholics were not to blame, for they had been duped. Nevertheless many Roman Catholics did not appreciate being stopped on the way to Mass and informed they were on the ‘Devil’s team.’ It was, Witnesses said, the church leadership, the hierarchy, who bore responsibility for humankind’s ills, for they had created religion, and religion, to use the Jehovah’s Witnesses' memorable phrase, was ‘a racket.’ According to Judge Rutherford, whose writings crystallized Witness theology in respect of Catholicism, ‘the Roman Catholic hierarchy is a selfish and devilish organization, operating under the misleading title of “Christian religion,” and desperately attempting to gain control over all the peoples of the earth in order to satisfy its selfish and ambitious desires.’[8] The Roman Catholic hierarchy aligned itself with political and industrial leaders to serve Satan’s ends, the foremost of which was the destruction of the Jehovah’s Witnesses.[9] Witnesses had no intention of allowing this Satanic conspiracy to stand in their way, for they had a job to do: to proclaim the word of God before it was too late.
13 During the First World War, two Witness publications were outlawed under Canadian censorship regulations because of their attacks on organized religion in general, and Roman Catholicism in particular. However, Canadian Jehovah’s Witnesses were not the only ones to attract the attention of the authorities. Judge Rutherford found that the publication that so exercised officials in Canada, The Finished Mystery, had exactly the same effect in the United States. Equally disturbing to American authorities were some of the Witness teachings about war. ‘Nowhere in the New Testament is Patriotism (a narrow-minded hatred of other peoples) encouraged,’ The Finished Mystery said. ‘Everywhere and always murder in its every form is forbidden; and yet, under the guise of Patriotism the civil governments of earth demand of peace-loving men the sacrifice of themselves and their loved ones and the butchery of their fellows, and hail it as a duty demanded by the laws of heaven.’[10] While Canada merely censored the literature, the United States brought Judge Rutherford and some other Witness leaders to trial.
14 The United States Espionage Act[11] made it an offence to make false statements that would impede the success of American military forces; cause insubordination, disloyalty, or mutiny within the military; or obstruct the draft. It was this act that Rutherford and the others were charged with violating.[12] There were a number of difficulties with the case, the main one being that the book was published before the Espionage Act was passed. But the district attorney in charge of the prosecution argued that it was distribution, not publication, that counted, and that the defendants had continued to distribute the book long after its contents had become illegal. The jurors agreed, and Rutherford and the others were sent to jail. Before he sentenced them, however, the presiding judge made some intemperate remarks, with the result that, a year later, the conviction was reversed on appeal. By that time the war was over, and the Department of Justice had decided not to reprosecute. When Rutherford was released he doubled his proselytizing campaign. Cars and trucks wired to broadcast sound and radio programs were just two of the new means of communication the Jehovah’s Witnesses now employed.
15 While the means of preaching Witness gospel changed with the times, the basic message of the group remained the same. Soon Jehovah’s Witnesses in the United States were being arrested. The first arrest, in 1928, was for house-to-house preaching, their preferred method of spreading the good news. In 1936 more than a thousand of them were charged with sundry offences, including violating sabbath blue laws, selling literature without a licence, and disturbing the peace.[13] The Witness radio station, WBBR NY, was effectively closed down as affiliate stations dropped Witness programs. The Jehovah’s Witnesses responded with petitions to Congress, three between 1933 and 1936, signed by almost five million people in all. But this activity was to no avail.
16 The situation in Canada closely paralleled that in the United States. Witness leaders were not brought to trial during the First World War, but many experienced legal difficulties over outlawed publications and conscientious objection to military service. After the war, Jehovah’s Witnesses increased their efforts to spread the word, as wartime ‘persecution’ was seen as just one more sign of the approaching end of humankind. With Armageddon around the corner, they took to the airwaves to reach more people with their important information, using their own radio stations and time purchased from commercial stations. Undoubtedly, some Canadians enjoyed having the Witness message broadcast directly into their homes. Those who did not made their concerns known and, by March 1928, P. J. Arthur Cardin, the minister of marine and fisheries, who was responsible for the regulation of radio transmission in Canada, decided to close down the Witness stations. It was the same old complaint: ‘Evidence would appear to show,’ Cardin told the House of Commons, ‘that the tone of the preaching seems to be that all organized churches are corrupt and in alliance with unrighteous forces, that the entire system of society is wrong and that all governments are to be condemned.’[14]
17 As in the United States, Jehovah’s Witnesses in Canada began a petition campaign when they were taken off the air and, in a nationwide drive, convinced 450,000 Canadians to subscribe. In Parliament J. S. Woodsworth, the Methodist minister filled with the spirit of the Social Gospel and leader of the Co-operative Commonwealth Federation (CCF), raised the Witness complaint; when the government tabled the evidence in favour of its decision it was clear that the justification for the action was very weak. But the decision stood. For a while, the Jehovah’s Witnesses remained on the air, using time purchased from other stations. However, on 18 January 1933, Hector Charlesworth, the newly appointed chairman of the recently established Canadian Radio Broadcasting Commission, instructed radio stations across the country to censor Witness transmissions: ‘Speeches of one Judge Rutherford, foreign anti-social agitator must not be broadcast on Canadian stations until the continuity or records of same are submitted to the Canadian Radio Broadcasting Commission for approval.’[15]
18 Another petition drive was begun, but in the end, the censorship decision was not reversed, and the Jehovah’s Witnesses, refusing to comply, were taken off the air. In fighting the government decisions taking away their broadcast licences and imposing censorship on Judge Rutherford, the Jehovah’s Witnesses brought their cause, freedom of speech, to the attention of tens of thousands of Canadians who might never otherwise have been aware of their religious broadcasts.
19 The end of religious broadcasting for the Jehovah’s Witnesses in Canada did not end their preaching work. Sound cars, trucks, and, to reach remote communities along the St Lawrence River in Quebec, boats were used, but technological innovation in the mid-1930s pointed to a new means of spreading Judge Rutherford’s word — the portable phonograph. By 1935, 35,000 of these contraptions had been distributed to individual Jehovah’s Witnesses throughout Canada and the United States, and the Watch Tower Society was issuing approximately 300,000 records a year. If the message could not be beamed through the airwaves to American and Canadian homes it would be brought directly to the front door.[16]
20 The number of Jehovah’s Witnesses in Canada continued to grow in the 1930s. While some Canadians sought solace during the Depression in radical political philosophies of the right and left, others turned to God for salvation. In western Canada, the economic decline was accompanied by an agricultural one, and Jehovah’s Witnesses with answers to all the problems that beset humanity were listened to with new attention. Whereas there were almost no Jehovah’s Witnesses in Canada at the turn of the century, there were approximately two thousand in the mid-1930s. By the start of the Second World War this figure had doubled.[17] And as the number of Jehovah’s Witnesses grew, so too did their arrests, especially in Quebec.
21 Witness attacks on organized religion and Roman Catholicism were not ignored as criminal and other charges were often filed.[18] One of the first cases came to court in 1925 when a Jehovah’s Witness named Kinler was charged with blasphemous libel under section 198 of the Criminal Code. Kinler had been caught distributing a pamphlet that denounced the Roman Catholic church. The presiding magistrate dismissed the charge. As distasteful as the judge found the tract, he could see nothing in it that attacked God.[19] In the 1930s, when more and more Jehovah’s Witnesses made their way to Quebec, this decision presented a stumbling-block to crown prosecutors, forcing them to shift their line of attack. Instead of charging the Jehovah’s Witnesses with blasphemous libel, obviously a difficult charge to prove, the crown charged them with seditious libel under section 133 of the Criminal Code.[20]
22 Canada’s Criminal Code did not define sedition. Accordingly, the common law and the treatises had to be examined. Seditious language was viewed by the courts and described by the textbooks as consisting of almost any ‘acts, words or writings intended or calculated to disturb the tranquillity of the State, by creating ill-will, discontent, disaffection, hatred or contempt towards … the established institutions of the country or by exciting ill-will between different classes of the King’s subjects.’[21] Almost anything could fall within the wide wording of this definition; certainly attacks on the Roman Catholic church in the predominately Roman Catholic province of Quebec could not help but disturb local peace. The Criminal Code did provide a statutory defence, however, to a sedition charge. Section 133A declared that good-faith criticism was, in certain circumstances, a defence to those charged with the sedition offence.[22]
23 Jehovah’s Witnesses charged under section 133 were regularly convicted, but it was not until 1938 that the Quebec Court of Appeal, called the King’s Bench, had the opportunity to give its imprimatur to the wide definition of sedition that had made its way into the law. In that year, the appeal court upheld one of the convictions. In light of the common-law definition, the court found that a conviction of the accused was a proper finding of the jury. Leave to appeal to the Supreme Court of Canada was refused.[23] Since it did not take much to convince a French-speaking Roman Catholic jury that the intemperate Witness literature caused disaffection among subjects, convictions for sedition became increasingly commonplace.
24 A related case, also heard by the Quebec Court of Appeal in 1938, upheld the decision of a trial judge denying counsel for the defence permission to cross-examine a priest called as a witness for the crown about the contents of a book entitled Why I Am Not a Protestant, written by another priest. The defence counsel, R. L. Calder, was attempting to show that in attacking the Roman Catholic faith, Jehovah’s Witnesses were doing nothing more than some Roman Catholics who attacked the Protestant faith. The attempt failed and again a court of appeal unanimously agreed that it should.[24]
25 Quebec courts could not but have been aware that at least some of the Jehovah’s Witnesses' activities were deliberately calculated to provoke an angry response. There were, for example, no Jehovah’s Witnesses in Quebec City in 1933, and a decision was made to remedy this situation. A convoy of 40 cars was organized, transporting more than 150 Jehovah’s Witnesses from Toronto and Montreal ‘determined to swoop down on Quebec City like a plague of evangelistic locusts.’[25] The convoy arrived in Quebec at the same time that 47 bishops and archbishops gathered for a plenary session of the Canadian episcopacy. The conclusion is inescapable that the Jehovah’s Witnesses had carefully timed the ‘attack.’ Roman Catholics could not help but see the Jehovah’s Witnesses as enemies of the faith.
26 By their conduct the Jehovah’s Witnesses raised a difficult question: When is free speech no longer the expression of a conscientiously held view but an incitement to violence? In confronting the Roman Catholic church, the Jehovah’s Witnesses were attacking something most Quebeckers held dear. And as more and more Jehovah’s Witnesses were arrested in the 1930s, the literature of the group became increasingly intemperate. The Jehovah’s Witnesses blamed the Roman Catholic hierarchy for the ‘persecution’ they were forced to endure, and the church was portrayed in insulting terms in their literature. Consolation, a new Jehovah’s Witness magazine, contained cartoons depicting priests as fat pigs, and the pope as a whore. In publishing materials of this kind the Jehovah’s Witnesses claimed that they were exercising their right of free speech. However, in Canada, unlike the United States, there was no written bill of rights.
The constitutional framework
1 The British North America Act (BNA Act), Canada’s constitution, was passed by the Imperial Parliament at Westminster in 1867. It divided legislative authority between the federal state and each of the provinces. The chief architect of the BNA Act was Sir John A. Macdonald, a gifted lawyer who became Canada’s first prime minister. Macdonald was convinced that the powers given to the states under the American Constitution were excessive and, as such, were among the key sources of political instability that had led to the American Civil War. He was determined that Canada not make this same mistake; thus, when the BNA Act was passed, it was the federal state, not the provinces, that was given the balance of power. The Parliament of Canada was given the right to legislate in a number of specific areas, such as national defence and criminal law, as well as the right to pass acts for the peace, order, and good government of the nation. The provinces were given a list of subjects over which they alone could legislate, as well as the general power to legislate in areas of a purely local and private concern. Civil rights was one such area and what that term meant at Confederation was the private law governing relationships between individuals, for example, contracts, not the law governing the relationship between the individual and government.
2 In the same way that the American constitutional division of powers influenced John A. Macdonald and the other Fathers of Confederation, so too did the American Bill of Rights. The American Bill of Rights was, as it remains, a series of amendments to the U.S. Constitution. The first ten amendments were adopted by the House of Representatives in 1789 and approved by Congress in 1791. Subsequently they were ratified by all the American states. Of the first ten amendments, undoubtedly the most important is the first, which begins: ‘Congress shall make no law respecting an establishment of religion.’ Freedom of religion was important to the early Americans, since it was one of the reasons they had settled in the New World. While the early Americans did not always practise what they preached, the importance of freedom of religion in the new society is reflected in the fact that its protection came first. Other rights protected in the American Constitution included free speech and assembly, the right to be secure against unreasonable search and seizure, the right to a speedy and public trial by an impartial jury, and the right to counsel.
3 In the years immediately following the American Civil War three new rights were added to the list. The first abolished slavery and gave Congress the power to enforce that abolition with legislation. The second guaranteed all Americans equal protection under the law. The third enshrined the right of all Americans to vote, irrespective of race or colour. Entrenchment of all these rights in the American Constitution marked a departure from the British tradition, which gives to Parliament complete and unfettered legislative power. The BNA Act contained clauses protecting some pre-existing rights, such as the use of English and French in the Parliament of Canada and in the National Assembly in Quebec, as well as the right to use either language in the courts of Canada and the courts of Quebec. The act required annual sessions of Parliament, elections every five years, an independent judiciary, and separate schools for certain sectarian minorities. But it contained nothing at all like those things guaranteed in the American Bill of Rights. Canada’s heritage was unmistakably and deliberately British, which meant that Parliament, constitutional conventions, along with certain ancient British enactments, the common law, the rule of law, and the courts would be the guardians of freedoms. Canadians had rights — mostly unwritten ones — whose practical content would be determined only as minority and dissident groups challenged the status quo. In claiming a right to distribute their literature, the Jehovah’s Witnesses, especially in Quebec, were trying to push freedom of speech to new limits. The result of the attempt was not recognition of such a right, but the official suppression of the sect in the early days of the Second World War.
2. This Hour of Trial
Declaration of war
1 In September 1939, the Canadian cabinet met and declared that a state of war had existed between Canada and Germany since 25 August (the day on which Germany and the Soviet Union signed a treaty of non-aggression and friendship). On 3 September, England and France declared war on Germany. The Parliament of Canada was summoned to meet on 7 September. Canada would not go to war over Poland, which Germany and the Soviet Union divided between themselves; it would, however, stand at Britain’s side.[26]
2 ‘As you are only too well aware, all efforts to maintain the peace of Europe have failed,’ began the bleak speech from the throne on 7 September 1939. ‘You have been summoned at the earliest moment in order that the government may seek authority for the measures necessary for the defence of Canada, and for co-operation in the determined effort which is being made to resist further aggression.’ The militia, the naval service, and the air force were already on active service. Provision had been made for coastal defence and internal security under the War Measures Act[27] and other existing legislation. Proposals for further action would be brought before the House of Commons, which would also be asked to consider and approve estimates for expenditures related to the war. ‘My ministers are convinced,’ the governor general’s speech concluded, ‘that Canada is prepared to unite in a national effort to defend to the utmost liberties and institutions which are a common heritage.’[28]
3 The big issue for Prime Minister Mackenzie King and the Liberal party was national unity, which meant one thing: reconciling the apparently irreconcilable views of English and French Canada. There was no question about how English Canada viewed participation in the war. Canada was a part of the British Empire and its place was at Britain’s side. French Canada, although not opposed to the war, was dead set against conscription. For the country to stay united the government had no choice but to fully commit itself to the war effort while at the same time pledging not to introduce compulsory military service. Only this contradictory compromise could keep Canada at peace in the midst of war.
4 Prime Minister King, in his address in reply to the speech from the throne, promised that conscription would not be introduced, but in this hour of peril, French Canadians called upon Ernest Lapointe, their undisputed leader in Ottawa, for assurance. Lapointe figures prominently in the events that follow; as minister of justice he was the architect of Canada’s wartime security policy. It was Lapointe who made the decision to declare the Jehovah’s Witnesses, along with numerous other groups, an illegal organization. The ‘rights’ of the Jehovah’s Witnesses and the members of the other banned groups were irrelevant when weighed against national unity. Indeed, insofar as civil rights and liberties were concerned the minister of justice followed a long-established practice of subordinating the interests of minorities to those of the English and French majorities. The national interest, Lapointe had long believed, demanded no less. And the arrival of the Second World War did nothing to change that belief.
Ernest Lapointe, Quebec, and minority dissent
1 A lawyer from the small Quebec village of St Eloi, Lapointe was born on 6 October 1876, a farmer’s son. After attending seminary in Rimouski he went on to study law at Université Laval. At age twenty-two he was called to the bar, and six years later, in 1904, he entered the House of Commons as the member from Kamouraska. In 1919 he moved to Quebec City and in a by-election, won Quebec East, the seat previously held by Sir Wilfrid Laurier. In Parliament, Lapointe, a tall, heavy-set man with spectacles and a quick wit, established himself as an impressive debater and one of the House’s finest speakers in both English and French.[29]
2 Lapointe believed that Quebec-based nationalism was a threat to the continued influence of French Canadians on the federal scene. The controversy over the Naval Services Bill of 1910, and the conscription crisis of the First World War convinced Lapointe that French-Canadian interests were best served by having a strong French-Canadian contingent in the federal government. An early proponent of bilingualism in the federal civil service, Lapointe held the traditional view of what the Liberal party was and could be: a broadly based political movement drawing support from all classes of society, from Canadians from all walks of life.
3 As the leading French-Canadian member of that party, however, Lapointe was in a particularly difficult position. On the one hand he had to meet and counter the arguments and militancy of a growing band of French-Canadian nationalists, and on the other he had to advance French-Canadian interests, including the interests of the Roman Catholic church, in the face of English-Canadian resistance. Separate schools, for example, were an issue in Lapointe’s day, as they are today. Lapointe, a staunch, observant, and pious Roman Catholic, was naturally and frequently contacted by members of the Catholic hierarchy when they felt that government activities or policies threatened the interests of the church. In negotiating a middle course between his responsibility to his Catholic constituents and his concern for national unity, Lapointe sought balance through a kind of piecemeal approach, fostered by his belief that militant stridency in pursuit of minority rights was likely to be less effective and possibly harmful and divisive in the Canadian federal state. Consequently, he emphasized moral suasion in his defence of minority rights.[30] The Liberal party came closest to embracing this view and, thus, was the party of French Canadians. In it Ernest Lapointe found a home, and a leader with whom he created a political partnership unparalleled in Canadian history.
4 That leader was Mackenzie King. At the 1919 Liberal-party convention that made King leader, Lapointe, who may have considered running himself, threw his support to King. In return, he became King’s partner in government and uncontested leader of the Quebec branch of the Liberal party. Lapointe led the government in Parliament in 1925 after the general election left King temporarily without a seat (the prime minister had been personally defeated in the general election), and demonstrated both loyalty and ability. He was indisputably the senior French-Canadian politician of his day, so much so that for many years King counted little in the political life of Quebec.[31] Even during the short-lived administration of Conservative prime minister R. B. Bennett (1930–5), Lapointe maintained his position as the spokesman for French Canada in Ottawa. Not one of the Conservative members from Quebec came close to matching Lapointe in stature and prestige.[32]
5 Appointed minister of justice following the 1935 general election, Lapointe was required to execute one of the most contentious Liberal election promises: repeal of section 98 of the Criminal Code. Initially passed as an order-in-council during the First World War, and later adopted by Parliament as an amendment to the criminal law, section 98 declared that it was an offence to be a member of an unlawful organization, which was defined to include organizations that advocated governmental, industrial, or economic change by use of force, violence, or physical injury to persons or property. This definition, a clear reference to the platform of the International, the world-wide communist organization based in Moscow and charged with directing revolutionary movements overseas, left no question about which political movement the government intended to outlaw: the Communist Party of Canada.
6 Some communist leaders and functionaries were charged with breach of section 98, convicted, and sent to jail. But the section itself failed to achieve its desired result, as the 1920s and 1930s were the period of the Communist party’s greatest growth. And it is a fact that the widely worded provision, not to mention an apparent murder attempt on Tim Buck, the leader of the Communist party who had been incarcerated in a federal penitentiary, acted as a magnet, drawing criticism from Canadians concerned about the threat to freedom posed by section 98. For this reason the Liberals promised to repeal the section if they were elected to office. They were and they did.
7 As Lapointe explained to the House of Commons during the debate following second reading of his Criminal Code amendment bill on 19 June 1936, section 98 was wrong. Canadians had, he declared, the right to be free in their own homes, free from the intervention of the authorities unless that intervention was conducted under due process of law. For that freedom to be meaningful it had to apply to all Canadians, even communists. The minister of justice was not just a Liberal, but also, it appeared, a liberal. Repeal of section 98, Lapointe continued, should not be seen as an endorsement of the Communist party. Like most French, and English, Canadians of the day, Lapointe hated communists, viewing their atheism and anti-clericalism as a personal anathema and their subservience to the Soviet Union and its social and economic policies as a threat to the fragile balance of unity and prosperity the Liberal party was seeking to bring about. ‘But,’ as he told the House of Commons in a classical expression of Canadian liberalism, ‘I want to fight them in a successful way, and I believe the way to fight them successfully is by argument, by attempting to have social justice everywhere and sound policies of administration.’[33] Peace, prosperity, decent living conditions, and religious and moral ideals were far stronger weapons in the fight against communism than concentration camps, arbitrary imprisonment, and oppressive laws. Communism, Lapointe continued, could only implant itself in Canada if Canadians failed to give their institutions a spirit of social economy and political justice. Lapointe was opposed to totalitarian ideologies of both the left and the right, but he wanted to fight for social justice with words and deeds, not with bad laws.[34] His stirring arguments and clarion call for freedom carried the day; with the support of the members of the CCF, section 98 was repealed.[35]
8 Lapointe’s speech suggested a deep-seated commitment not just to liberalism, but to the even-handed principles of British justice and to the rule of law. It also suggested a new regime of tolerance for minority dissent. His commitment was tested in less than one year by the 1937 Oshawa strike. When Lapointe acceded to a request from Ontario premier Mitchell Hepburn for the Royal Canadian Mounted Police (RCMP) to suppress the strike, that commitment was found wanting. In fact, it was not a belief of liberalism that motivated Lapointe, rather it was his commitment to the Roman Catholic church. He saw the Oshawa strike, which was led by the American Congress of Industrial Organizations, as the cutting edge of an attempt by the American international-union movement to monopolize Canadian labour affairs, a situation that would lead to the destruction of Catholic unions in Quebec.
9 Very simply, Lapointe perceived a challenge to the established order, in particular, to the hegemony of the church in Quebec. His response was to align himself squarely with the ecclesiastical interest, and he called to its service the legal and coercive might of the state. That Lapointe’s liberalism extended no farther than words was made evident in his subsequent handling of requests for the disallowance of the Padlock Act, Quebec’s version of section 98.
10 In no part of Canada was communism more feared than in the predominantly French-speaking and Roman Catholic province of Quebec. Pope Pius XI condemned communism as the destroyer of the family and society. At the heart of Roman Catholic objections to communism is its atheism, and the terms ‘communist’ and ‘atheist’ were, in the 1930s and 1940s, used almost interchangeably by church leaders. It was a widely held belief among the people of Quebec that the atheistic communists were intent on destroying not only the traditional French-Canadian way of life, but Catholicism itself. The fact that most communist activists in Quebec were not of French-Canadian descent served to further emphasize the alien character of the movement.
11 The Padlock Act was introduced by the government of Premier Maurice Duplessis, which came to power on 17 August 1936. It authorized the attorney general of Quebec, a post that Duplessis retained for himself, to close down (the words ‘padlock’ and ‘lock’ were not used in the act) for twelve months any building used for the composition or dissemination of communist or bolshevist propaganda. The terms ‘communist’ and ‘bolshevist’ were left for the attorney general to define. There was no provision for judicial or other review of the attorney general’s decision, and the owner of the ‘padlocked’ property was left with only limited means of redress. He could go to the superior court of the province and try to show that he was ignorant of the use to which the property had been put. The court was empowered to order removal of the ‘padlock’ if satisfied that the owner had, in effect, proved his innocence. However, even where an owner successfully proved such ignorance to the court, he was required by the legislation to post a bond, which would be forfeited should the attorney general ever order the building closed again. There was no provision in the legislation for appeal to a higher court from this decision.
12 The Padlock Act also gave the attorney general wide power to seize, confiscate, and destroy any papers or documents that he deemed ‘communistic,’ a provision under which there was not even a limited right of appeal. Searches could be conducted and premises ‘padlocked’ without a warrant: all that was required was that the attorney general state his opinion that ‘communistic’ documents were to be found at a certain place or that such place was being used to advance communism. A collateral provision gave the attorney general the right to prosecute persons who printed ‘communistic’ literature. The penalty could be a fine, a prison term, or both.
13 The potential for executive abuse of the legislation, not to mention the threat to freedom of expression that the broadly worded measure posed, was self-evident, and the law led directly to the formation, in Montreal in 1938, of the first civil-liberties association in Canada, the Canadian Civil Liberties Union (CCLU). Quebec was, in fact, becoming an increasingly illiberal society with more and more power being concentrated in the hands of the executive, specifically meaning Premier Maurice Duplessis, a populist lawyer from Trois-Rivières who was first elected to office in 1927. Duplessis had come to power with the help of others dissatisfied with the administration of arch-conservative although officially Liberal premier Louis-Alexandre Taschereau, Duplessis used his party to get control of a movement that, in turn, became a party known as the Union Nationale. The 1936 election was a tremendous victory for Duplessis and his new party. As it would turn out, the lusty and alcoholic premier accomplished little in his first term in office, but he would return. And one of his few accomplishments, if one can call it that, was the passage of the Padlock Act, the very act that the CCLU had been organized to fight.
14 The main activity of the CCLU in its early years was making attempt after attempt to challenge in various courts the constitutionality of the Padlock Act. There were more than enough cases to choose from: between the beginning of November 1937 and the end of January 1938 the Padlock Act was applied fifty times in Quebec.[36] Communists, socialists, and radicals of indeterminate leftist hue were all among its early victims as the Quebec police, on orders of premier and attorney general Maurice Duplessis, launched an aggressive campaign to suppress real and, in some cases, imagined communist activists.
15 There was a serious problem in challenging the law. The Quebec rules of civil procedure, the rules that regulate the operation of the courts, provided that legal proceedings could not be instituted against any officer of the administration or of the police over action taken in enforcing the law. The issue, therefore, was whom to sue. The answer was that there was no one. The law could be challenged only on constitutional grounds. Although constitutional legal challenges of legislation were hardly in vogue, the Padlock Act was so challenged, but the Quebec Superior Court, and later Quebec’s court of appeal, the Court of King’s Bench, upheld the provision, leading the CCLU to call for a constitutional amendment to the BNA Act and entrenchment of a Canadian bill of rights.[37] In making this demand the CCLU was not breaking new ground; the government of Canada was already considering the matter.
16 A senior Canadian diplomat and later minister to Washington, Loring Christie, prepared a memorandum on this subject in late December 1937, stating that two preliminary questions needed to be addressed. The first was whether Canada wished to have a bill of rights passed beyond its shores by a non-Canadian body. The point Christie was making was that Canada was not yet constitutional master in its own house: Britain was. If Canada wished to incorporate civil rights, like those provided for in the American Bill of Rights, into the BNA Act, it would have to ask the Parliament at Westminster to do it. This issue led to the second question, whether Canada should defer the matter until it had full constitutional sovereignty, including elimination of appeal to the Judicial Committee of the Privy Council. Although Canada had a supreme court, there was, in the late 1930s, as there would be until 1949, a final right of appeal to the Judicial Committee of the Privy Council (JCPC), composed of English law lords assembled to hear colonial appeals.
17 Another concern Christie raised, and one that remains timely, was whether Canada wished to have appointed judges determine the content and meaning of a bill of rights, assuming that one was enacted. Were not the rights and liberties of the people a matter for Parliament to decide? Perhaps a middle ground was in order, with Parliament passing an ordinary, in contrast to a constitutional, act. Mackenzie King knew that constitutional reform promised more problems than solutions, and Christie’s memorandum was left to gather dust in a file. In the meantime, the CCLU continued with its work.[38]
18 As well as challenging the Padlock Act in the courts, the CCLU asked the federal government to disallow the law, directing such representations to the minister of justice. Under the BNA Act, provincial legislation must promptly be sent to the governor general who, in council, may within one year of receipt disallow it. By the mid-1930s more than one hundred provincial acts had already been disallowed by the federal cabinet, and although disallowance was quickly falling into disuse, the federal government was not unwilling to use the procedure if the circumstances and the legislation demanded it, that is, if the public outcry was loud enough or if disallowance suited federal purposes. For example, in 1935 the people of Alberta elected the Social Credit party to office. The new premier, ‘Bible’ Bill Aberhart, was a man of the cloth who had pioneered religious broadcasting in Canada. He was also a disciple of a British engineer, Major C. H. Douglas, whose political program, Social Credit, was adopted only in parts of Canada. In brief, party theory advocated distribution of money, called ‘social credit,’ to facilitate the purchase of capitalist production. Legislation was passed to enact Social Credit ideas and, in 1937 the federal government readily disallowed some ‘funny money’ statutes.
19 The Padlock Act arguably threatened civil rights as much as the Alberta legislation threatened property rights, and from the moment it was passed the federal government, and in particular Justice Minister Lapointe, came under heavy pressure to set the Quebec legislation aside. Lapointe was deluged with thousands of petitions and letters, both in favour of the legislation and in opposition to it. And it was not just the civil-liberties associations that were against the act. The Communist party was, for obvious reasons, also opposed. Communist-party opposition, however, did the cause of disallowance more harm than good, for it was seen by Lapointe as ‘proof’ of the fact that only communists and agitators from outside the province of Quebec were against the law. If the general nature of the correspondence in Lapointe’s files is any guide, the minister of justice had good reason to believe that by and large the people of Quebec were behind the law.[39] The fact that the act, in practice, saw families locked out of their homes and left with nowhere to go never entered Lapointe’s discussion in the debate.
20 Lapointe attempted, half-heartedly, to convene a conference with Premier Duplessis and some of the civil-liberties opponents of the legislation; however, Duplessis would have none of it. ‘Our law,’ he wrote to Lapointe on 25 March 1938, ‘has rendered eminent services and contributed powerfully to ridding us of odious and intolerable communists with whom compromise was out of the question.’[40] The meeting was held, nevertheless, and among the protesters was a young McGill law professor, F. R. Scott, who will figure prominently in the events that follow. The CCLU delegation reiterated the arguments put forward in numerous memoranda setting out the constitutional basis for disallowing the Quebec legislation. The law invaded the Parliament of Canada’s exclusive jurisdiction to pass criminal law and sought to regulate freedom of speech and freedom of the press. As the deadline for disallowance, 8 July 1938, rapidly advanced (transmission of the act to the governor general had been deliberately delayed), entreaties both for and against increased. The matter was discussed in cabinet and, by and large, the English ministers lined up in favour of disallowing the act, or at least sending it for review to the Supreme Court. A decision had to be made, and it was up to Lapointe to make a recommendation to cabinet. What would Lapointe decide?
21 When the repeal of section 98 was being discussed Lapointe told the House of Commons that there was only one way to fight communism, and that was with education: ‘If communism is bad, it should be fought with something that is better. If it is wrong, we must provide something that is right.’[41] Guns, prisons, and other arbitrary methods were not, according to Lapointe, effective tools in fighting the communist menace. Repression, similarly, did more harm than good. Who, Lapointe asked the House, had ever heard of the leader of the Communist party before he was put in jail? It was better, he declared, to destroy a communist’s arguments than to put him away. ‘I would rather know what is going on than suspect that meetings were being organized in cellars and other places. Experience in religious and political matters has shown that arbitrary methods of repression have always failed.’[42] The cure for the disease that Lapointe advanced was law and order.
22 ‘I believe,’ Lapointe told the House of Commons, ‘that our best way to fight these doctrines is, first, to try to eliminate the causes of discontent and friction; second, to organize for the dissemination of good ideas to fight bad ideas; third, to see that order and peace are maintained in Canada. But with all of that, I am a strong believer in the British way of administering justice. I believe in the majesty of the law. I do not think that it is a good thing to fight illegality by other illegalities. Arbitrary methods, which are not strictly according to the British practice, do not appeal to me, and I do not believe that their effect is what those who use them have in view.’[43]
23 The Padlock Act stood for everything that Lapointe claimed to oppose. Held up to the light of day, communism would surely disappear. Driven underground by the Padlock Act and other repressive legislation, it was certain to flourish. Perfectly in keeping with these political values, indeed demanded by this commitment to liberalism, was disallowance of the legislation. If Lapointe lacked the political courage to disallow the legislation himself, he could always refer the matter to the Supreme Court. The Liberal government, upon its return to power, had referred some of the Bennett ‘New Deal’ legislation to the Supreme Court, indicating that it had, in some cases at least, few qualms about the reference procedure.
24 On 6 July 1938 Lapointe announced his decision. Notwithstanding his professed allegiance to political liberalism, he had decided that the Padlock Act should stand. It did not affect the rights of citizens outside the province of Quebec, Lapointe said, and, he added, the legislation was popular within the province. Prime Minister King realized that the justice minister’s position meant accepting ‘what really should not, in the name of Liberalism, be tolerated for one moment.’[44] However, in the face of Lapointe’s strong non-interventionist position, King agreed to let matters be. Claiming that disallowance was an extraordinary remedy, Lapointe told the House of Commons that the disallowance power should be used only in clear cases, not ambiguous cases such as this one. The constitutionality of the Padlock Act, he said, was best left to the courts to decide. However, as Lapointe well knew, the Quebec rules of civil procedure effectively precluded such judicial review by creating all sorts of barriers to bringing constitutional challenges to court.[45]
25 Under careful examination it becomes clear that Lapointe laid some groundwork for his decision in the same debate in which he so eloquently articulated his liberal philosophy. That philosophy had a caveat: federal and provincial authorities must confine their activities to what the law and the constitution permit.[46] Lapointe would not interfere with the Quebec legislation, his allegiance to political liberalism notwithstanding, because he considered the legislation to be within provincial jurisdiction. The BNA Act gave each province legislative power over ‘civil rights,’ and Lapointe claimed that the Padlock Act could be constitutionally justified as an exercise of this provincial power. In fact, as Lapointe and everyone else knew, the term ‘civil rights’ had absolutely nothing to do with civil liberties, and restricting civil liberties was exactly what the Padlock Act was all about.
26 Lapointe believed more in law and order than in justice, and there is evidence to suggest that his conception of the former was dictated by his religious faith.[47] ‘In Lapointe’s mind, no freedom of expression which challenged the basis of the Roman Catholic conception of society could be tolerated … his Catholicism took precedence over his liberalism.’[48] While opinions differed on what that conception of society entailed, as the international situation deteriorated Lapointe’s conservatism became entrenched and he became determined to protect what he believed to be the interests of Roman Catholic Quebec. The handling of the Oshawa strike and his ready willingness to provide police reinforcements is a case in point.[49] More than anything else, however, it is Lapointe’s failure to take action against the Padlock Act that demonstrates that he acted to maintain what he considered to be Quebec’s and Canada’s best interests.[50] The rights and liberties of some communist agitators were secondary to the preservation of harmony and unity, a position that would soon be confirmed by his treatment of the Jehovah’s Witnesses.
27 To be fair, there were other reasons for supporting the Padlock Act. The legislation was very popular in Quebec. Lapointe knew that sometime in the next few years another general election would be called, and without its traditional block of Quebec seats the Liberal party would be lost. He may have believed that, without the Liberal party, Quebec would be lost. Disallowing the Padlock Act would be politically disadvantageous for a number of reasons. First, it would assist the Liberals' opponents who regularly charged not only that the Liberals were anti-clerical, but that they were soft on communists. Second, it would annoy Quebec nationalists who resented any intrusion, real or imagined, into the province’s autonomy. And third, it might give Maurice Duplessis the issue and the excuse he wanted to return to the polls for a renewed, and larger, mandate from Quebeckers — a mandate that Duplessis was sure to use to wage his own war against Mackenzie King and the government in Ottawa. With all of this the prime minister was prepared to go along. The cabinet, King later privately explained, accepted the opinion of the minister of justice that the Padlock Act did not fall within the disallowable class of legislation.[51] This explanation gave King a convenient way out, notwithstanding his own genuinely liberal beliefs. This was neither the first nor the last time that King harmonized his own highly tuned political instincts with those of Lapointe.[52]
28 In the result, minority political dissent in Quebec suffered, for it was not just the communists who were affected as a result of the Padlock Act. Left-wingers of more moderate stripe found their premises boarded up, or their literature seized. Paradoxically, however, the Padlock Act may have done more good than harm, for it, along with section 98, galvanized liberal opposition. And that liberal opposition brought credibility to those claiming the right of political minorities to dissent.
29 Moreover, in Quebec, the liberal opposition was given a voice in the newly-formed CCLU, whose call for a bill of rights and for other legal protections was like a cry in the wilderness. For the first time these demands were being made, not by radicals intent on the destruction of Canadian society, but by persons who believed, as Lapointe once claimed he did, that peace, prosperity, decent living conditions, and religious and moral ideas were far stronger weapons in the fight against communism than concentration camps, arbitrary imprisonment, and oppressive laws. The founders of the CCLU did not embrace Communist-party dogma, although certainly some of the members did, but they believed that Canadian society would not be advanced by Draconian and far-reaching laws that placed powers beyond the review of the courts in the hands of the executive and the police. That was not British justice and that is what the CCLU opposed. Gradually their ranks were swelled with men and women of like mind who believed not only that Canada could extend the limits of minority dissent, but that it was imperative that Canada do so. As important as the long-term contribution of the CCLU was, in practice CCLU agitation had little immediate effect. It was the opinion of Ernest Lapointe that mattered. At the outset of the Second World War, the civil rights of some marginal groups, such as the communists and, later, the Jehovah’s Witnesses, were of no political concern. There was only one issue that mattered — keeping the country united. Lapointe knew that Quebeckers would turn against any administration, Liberal or Conservative, that tried to conscript men for service overseas and that the consequences would be disastrous for Canada. On 9 September 1939 Lapointe gave the most important speech of his political career.
30 Lapointe rejected neutrality: when Britain was at war, Canada had to be there too. Lapointe appealed for unity, tolerance, and moderation. ‘Is it not imperative,’ he said, ‘that no section of Canada, no race, no creed, should inflict upon the other sections, races and creeds incurable wounds which might destroy our country forever?’[53] The answer was obvious, as was the only way to bring Canada into and out of the war united: there must be no conscription.
31 ‘The whole province of Quebec,’ Lapointe began, ‘… will never agree to accept compulsory service or conscription outside Canada.’ Neither would he. ‘I am authorized by my colleagues in the cabinet from the province of Quebec … to say that we will never agree to conscription and will never be members or supporters of a government that will try to enforce it.’[54] That, Lapointe said, should be clear enough. Those who believed that they were advancing Canada’s cause by urging immediate conscription of men for military service were gravely mistaken. Any such move would find few supporters from the province of Quebec and would tear the country apart.
32 Lapointe promised the House that if this solitary condition was understood, then the elected representatives from Quebec would offer their services without limitation and would devote their best efforts to the prosecution of the war. ‘Let me assure you,’ he said, ‘that if only I can keep my physical strength, fall I shall not; and my friends shall not fall either.’ His concluding words brought tears to many eyes: ‘Yes, God bless Canada. God save Canada. God save Canada’s honour, Canada’s soul, Canada’s dignity, Canada’s conscience. God give Canadians the light which will indicate to them where their duty lies in this hour of trial so that our children and our children’s children may inherit a land where freedom and peace shall prevail, where our social, political and religious institutions may be secure and from which the tyrannical doctrines of nazism and communism are forever banished. Yes, God bless Canada. God bless our Queen. God bless our King.’[55] It was Lapointe’s finest hour. Canada entered the war united.[56]
33 There is simply no underestimating the importance to national unity of meeting the particular needs and desires of the people of Quebec. Lapointe’s speech went some way towards reassuring Quebeckers that the federal government had their interests at heart. But as important as the speech was, domestic disruption was likely in the province. A predictable source was Quebec premier Maurice Duplessis. He was expected to attack the federal government at the earliest opportunity, real or created. A less predictable source of disruption, or support, was the Roman Catholic church. In the First World War, ecclesiastical opposition to the war, and especially to conscription, was politically disruptive. Accordingly, it was essential that the church, if at all possible, be brought on to the federal government’s side. In many respects, the Roman Catholic church at this time was a more powerful and significant force in Quebec society than the Quebec government itself.[57] On 1 September 1939 Charles ‘Chubby’ Power, a leading Quebec Liberal MP who had been brought into the cabinet on Lapointe’s advice, flew to Quebec City for an interview with Cardinal Villeneuve, the leader of the Roman Catholic church in the province. First, minister of pensions and health (1935–9), then postmaster general (1939–40), and finally minister of national defence for air (1940–4), Power was a lawyer from Quebec City who represented the people of Quebec South, and he knew Cardinal Villeneuve well.
34 Jean-Marie-Rodrigue Cardinal Villeneuve, Archbishop of Quebec and Primate of Canada, was born in Montreal on 2 November 1883. In 1930, he was named first bishop of Gravelbourg, Saskatchewan, and two years later was appointed the twentieth bishop of Quebec, then tenth archbishop, and, in 1933, fourth Canadian cardinal. Villeneuve had a taste for grandeur and he enjoyed the pomp of his position. At the 1938 Eucharistic Conference held in Quebec, for example, he was appointed papal legate and presided from a gilt throne. He made his way to and from the conference proceedings in a silk-covered sedan chair, escorted by papal envoys and local church officials in their most extravagant garb. In some circles he was known as ‘Kodak Villeneuve’ for his willingness to stop and pose for pictures whenever he spotted one of his flock with camera in hand. All such grandstanding aside, Villeneuve was not an ecclesiastical lightweight. He was a brilliant, complex, and dedicated prince of the church, who at a crucial moment in the life of Quebec and Canada occupied a position of power and influence perhaps second to none in the province.[58]
35 As a young priest, Villeneuve came under the influence of Quebec nationalist Abbé Lionel Groulx.[59] However, as cardinal of Quebec during the tumultuous Depression decade, he practised the politics of episcopal survival, helping to find solutions acceptable to both the Catholic hierarchy and the public authorities. Insofar as the latter were concerned, Villeneuve believed that it was not only the right but the responsibility of the clergy to speak out on matters of public importance.[60] In Roman Catholic Quebec, the church hierarchy was the front line against secular depredations.[61] Not surprisingly, Cardinal Villeneuve and Maurice Duplessis got along well. Their relationship was both natural and cordial, as they shared a common vision and aspiration for the province of Quebec, most notably an opposition to social change. Their first collaboration was in the fight against Quebec communists.[62]
36 When Duplessis announced in the Legislative Assembly introduction of the Padlock Act, he broadly hinted that the bill was being introduced at the express wish of Cardinal Villeneuve.[63] Communists, Villeneuve believed, who insulted French-Canadian social concepts, traditions, morals, and religion, had no right to freedom of speech.[64] Indeed, the way Villeneuve saw it, communism was not a social and political system, but rather ‘a gigantic conspiracy organized throughout the world to wage war against all human and Divine laws and destroy Christian civilization.’[65] This view was a popular one — as it had been in Quebec at least since the Spanish Civil War, when communism became associated in Quebec minds with the murder of priests and nuns, the burning of churches, and the destruction of the Christian way of life. Innumerable French-Canadian associations expressed approval of the act, with dissent limited to the communists themselves, supported by a handful of CCFers, Jewish lawyers, and foreign-born radicals of various views.[66]
37 Villeneuve was, like most clergy of his day, ultramontane. He was suspicious of attempts to compromise Roman Catholicism with modern thought, and he demanded the supremacy of religious over civil society. His aspiration for Quebec was that it remain a church-dominated self-contained society and in that way ensure that Quebeckers were not swallowed up into the North American English sea. It was not just the communists who threatened this vision of Quebec, but also the secular authority, as well as any competing religious ideology, especially one as obnoxious to Roman Catholics as that of the Jehovah’s Witnesses. In advancing this view of the world, Villeneuve made no secret of what he believed. ‘I do not wish to doubt your good faith,’ the cardinal said to a non-Roman Catholic audience in a late January 1938 speech subsequently published in Le Devoir. ‘I do not in the least wish to contest the part at least of truth and religion, however incomplete, which are [sic] yours. And that is how, in all practical logic and all charity, I tolerate you … I tolerate you so that you will tolerate me. I tolerate you … so that you may admire at once the splendour of my religion and the delicacy of my charity … I tolerate you in order to have your collaboration in the common good, and when such collaboration stops, when you preach corrosive doctrines and spread everywhere poisoned seeds, then I can no longer tolerate you. Such, gentlemen,’ the cardinal concluded, ‘is Catholic liberalism, the true liberalism.’[67] This view of society was embraced by the huge majority of the people in Quebec, those who were not more extreme, that is.
38 The Roman Catholic church in Quebec controlled almost all of the hospitals, most of the schools, and many charitable organizations in the province. The cardinal of Quebec had a throne on the floor of the Legislative Assembly immediately beside the one reserved for the lieutenant-governor. One way or another much of Quebec was under direct church control, and would remain so for the next twenty years. The church was virtually established and its influence was immense. The mission of the church was, in fact, to make Quebec’s political life conform to the Roman Catholic concept in which truth is Catholicism, error is anything non-Catholic, and liberty is the freedom to speak and live the Roman Catholic truth.[68] Villeneuve had staked his ground, and for the hearts and minds of the people of Quebec it was no contest.[69]
39 Accordingly, when war began there was no doubt that the cardinal’s support was indispensable to a successful domestic policy. The stated purpose of Chubby Power’s hastily arranged visit was to obtain the co-operation of Quebec authorities in air-raid precautions. The real purpose was to learn the cardinal’s views of the war. They were not exactly encouraging. Villeneuve was naturally opposed to Hitler, but he would not publicly support the war — at least not yet. In fact, the cardinal understood the politics of the situation as well as did Power. Villeneuve explained that his overall support for the government would be reduced if he, ‘at this juncture, took any action which might be misconstrued.’[70] The cardinal was keeping all options open, and the message to the federal government could not have been made more clear. If Ottawa wanted his assistance it would have to earn it. The episcopal support was to be neither presumed nor freely given away. Lapointe’s subsequent promise to Quebeckers that conscription would not be introduced laid the foundation for convincing Quebec’s clergy that the federal government had Quebeckers' interests in mind.[71] And the federal government took what steps it could to bring the cardinal over to Ottawa’s side. Later in the fall, for example, Villeneuve was invited to speak to the National Press Club in Washington. After his speech, a private forty-minute meeting was arranged with U.S. president Franklin Roosevelt.[72]
40 While winning Villeneuve over was important, the federal government also had to contend with Quebec premier Maurice Duplessis. The premier was in trouble. His first administration had been fiscally irresponsible and he had failed to provide the sound government he had promised in the election campaign that initially brought him to power. The province was strapped for cash, and following a bizarre series of announcements Duplessis dissolved Quebec’s Legislative Assembly and scheduled an election for 25 October. It was a ‘diabolical act,’ King confided to his diary. Making political hay out of the wide powers given to the governor-in-council under the War Measures Act, Duplessis claimed that Quebec’s autonomy was threatened, and this was the main political issue he took to the people.[73] The election could not be seen as anything other than an attack on the federal government, and Lapointe interpreted it exactly as such. In this assessment he was joined by the two other leading Quebec Liberal politicians: Chubby Power and P. J. Arthur Cardin. Cardin was then minister of public works and later minister of transport. Together, the three men took one of the biggest gambles in Canadian political history.
41 They announced their decision to treat the provincial election as a campaign against them and against the Liberal party. If Duplessis won, they would resign. It was a risky business. The provincial Liberal party was in a shambles and had still not recovered from its disastrous political defeat in 1936 when its numbers were reduced to a mere fourteen members. Duplessis claimed that a vote for the provincial Liberals was a vote for participation in the war, the conscription of French-Canadian youth, and the assimilation of the province of Quebec. The alternative, however, was much worse. ‘Electing Duplessis would not be a bulwark against conscription; it would destroy the existing bulwark, embodied in Lapointe’s pledge that there would be no conscription.’[74] It was obvious to the people of the province that only strong French-Canadian leadership in Ottawa could hold the government party to its promise not to introduce conscription. Lapointe certainly said as much. ‘I am here to protect you,’ the minister of justice told rallies throughout the province, and what he said had the ring of truth.[75]
42 Certainly no one in the Conservative party had Quebec’s interests at heart, and Quebeckers' memories were long. Conservative Prime Minister Robert Borden had introduced conscription in the First World War, resulting in young French-Canadian men being dragged from their homes by the military police and forced into British uniforms. A Conservative government or a coalition government could hardly be relied on now not to conscript and send Quebec’s young men overseas. Forced to choose between Ottawa and Quebec City, the province’s voters put their faith in Lapointe and the federal government. ‘A vote for Duplessis was a vote for conscription, disorder, national disunion and misunderstanding … A vote against Duplessis was a vote for French Canada’s security, all Canada’s unity, for peace in war and war in peace. A vote for Duplessis was a vote for Hitler and Stalin, a vote against Duplessis was a vote for civilization.’[76] On 25 October 1939 the Union Nationale was swept from office and the provincial Liberals returned. Thanks to Ernest Lapointe, the first serious political crisis of the war had been overcome. King’s gratitude to his Quebec lieutenant was enormous, but the campaign left the minister of justice exhausted and he considered resigning.[77]
43 Another provincial premier, Mitchell Hepburn, the Liberal premier of Ontario, immediately took up Duplessis’s role as a thorn in the federal government’s side. Hepburn’s criticism of the federal war effort eventually led to the 1940 general election. In the meantime Parliament recessed. Soon after, the Soviet Union forced the Baltic states of Lithuania, Latvia, and Estonia to accept Russian garrisons, a prelude to the ultimate absorption of the Baltic states into the Soviet empire, and, in November 1939, when Finland could not be persuaded to accept Russian troops, the Soviet Union invited itself in. There matters would stand until the following spring. It was a ‘phony war’ overseas, but in Canada the War Measures Act and the Defence of Canada Regulations left no doubt that the peaceful kingdom was no more.
National security
1 Canada was hoping for peace, but well before the German invasion of Poland it began to prepare for war. A committee on emergency legislation was struck and its preparations established the framework for preserving national security in Canada throughout the Second World War. The proclamation of the War Measures Act and the passage of the Defence of Canada Regulations affected all Canadians' liberty by imposing restrictions on where they could go, what they could read, and what they could say. And it was these regulations that gave to the police and to the state wide general powers to maintain national security during the war. Not only could men and women be arrested and interned without trial, but organizations, including such religious groups as the Jehovah’s Witnesses, that had previously been lawful could be declared unlawful by a stroke of the federal cabinet’s pen. Canada was not a police state, far from it. But the powers assumed by the executive were enormous, and they were exercised without any real opportunity for review. Significantly, the drafting and passage of these emergency powers took place behind closed doors.
2 Well before the war began, the RCMP began to prepare for it. The Mounties compiled long lists of enemy aliens, Nazis, communists, and suspected spies. ‘Orders to arrest these people,’ Stuart T. Wood, a career officer and the commissioner of the force, reported to the minister of justice, ‘could be put into effect at a moment’s notice.’[78] The RCMP did not want to take any chances, so it also proposed that, in the event of war, the government outlaw and seize the property of all the German and Italian organizations identified with Nazism, Fascism, or the Communist party. For good measure, the Mounties also recommended suppression of the communist and Fascist press and the closing down of the Italian consulates, even though Italy was still neutral. The undersecretary of state for external affairs, Oscar Douglas Skelton, was somewhat alarmed by these proposals.
3 Skelton, a liberal democrat and former dean of arts at Queen’s University, was, until his death in January 1941, the pre-eminent Canadian civil servant and the prime minister’s most senior adviser on both foreign and domestic policy. After considering the RCMP recommendations, he wrote the prime minister to advise that not only were such repressive measures unnecessary, but that King consider issuing a statement when war came, calling for vigilance but also reminding the public that there was no reason for it to be stampeded into hysterical or ‘unwarranted persecution of Canadian citizens who happen to be of the race or language of our opponents.’[79] This was an enlightened and thoughtful suggestion and it deserved consideration. But when war came Skelton’s advice was not followed.[80] Rather, the recommendations of the Committee on Emergency Legislation were implemented.
4 That committee, an interdepartmental one, drawing in senior civil servants from most government departments, was established in March 1938 to review existing emergency legislation.[81] At the time of the Munich crisis, the committee had not yet completed that review, but the appeasement policies of British prime minister Neville Chamberlain postponed the inevitable, thereby giving the committee more time to go about its work. The committee eventually concluded that the War Measures Act, an omnibus act, passed during the First World War, that gave the cabinet wide regulation-making authority, continued to provide the government with sufficient power to meet any emergency, and that special legislation would be required only for the vastly increased financial expenditures certain to be demanded by another world war.[82] By invoking the War Measures Act the government would have all the powers it needed, save possibly some financial ones, to fight the war overseas and to protect national security at home. The interdepartmental committee drafted a set of emergency security regulations, the Defence of Canada Regulations, which were submitted to cabinet in July 1939.[83]
5 There is no evidence that the federal cabinet ever considered the draft regulations,[84] and the fact that the recommended regulations were adopted without any amendment suggests that they were accepted without debate. On 3 September 1939 an order-in-council was passed, invoking the Defence of Canada Regulations.[85] The regulations were announced during the September 1939 special war session, but as Parliament was not required to review them, and as other business was judged more important, discussion of the regulations was postponed until Parliament returned, which satisfied almost everyone.[86] There were a few exceptions, of course. The attorney general of Ontario, Gordon D. Conant, wrote Justice Minister Lapointe, recommending that section 98 be re-enacted. An editorial in The Globe and Mail endorsed this recommendation but, for the moment, the regulations were not changed.[87] Sixty-four regulations, in six parts, set out how national security was to be preserved while the country was at war.
6 In general, the regulations were sensible and acceptable in scope and in object; they were intended to prevent espionage and sabotage by fifth-columnists at home and by enemy agents sent from abroad. To achieve these aims, designated ministers of the crown were given broad order-making powers, such as the power of the minister of transport to control radio transmissions. Similarly, the secretary of state was given censorship authority,[88] while the minister of national defence was empowered to order black-outs and curfews. Initially, only a few of these regulations provided for judicial or other review of ministerial orders, but it was to be the policy of the government that the regulations be interpreted so as to interfere as little as possible with ‘the ordinary avocations of life and the enjoyment of property.’[89] It was almost four years before another order-in-council was passed, providing for appeal to the courts for actions taken under these and other wartime regulations.[90] A few of the Defence of Canada Regulations were just silly, and two stood apart from the rest: Regulation no. 21, which authorized internment, and Regulation no. 39, which imposed severe restrictions on what Canadians could say. Neither regulation could be justified as a limited but essential restriction on the rights of citizens occasioned by the circumstances of war.
7 Regulation no. 21 was, in fact, the only one not unanimously approved by the Committee on Emergency Legislation. In brief, the regulation provided that the minister of justice, in order to prevent a person from engaging in activities prejudicial to the public safety or the safety of the state, could make an order directing the detention and internment of that person.[91] The regulation further provided that a person who was subject to detention and internment under Regulation no. 21 was deemed to be in legal custody. The power to arrest and detain was unlimited, but it was subject to modified review. Regulation no. 22 provided for the establishment of one or more advisory committees to hear appeals from any ministerial detention order. The advisory committee could not order anyone’s release; all it could do was make recommendations to the minister of justice, who was under no obligation to follow them. Indeed, the criteria to be considered by the minister of justice in making an internment order, the powers of the advisory committee, and the standards of review were all very vague. The only definite obligation was the duty of the minister of justice to ensure that every person detained under Regulation no. 21 was advised of the ‘right of appeal.’[92]
8 The Committee on Emergency Legislation divided over the recommendation of this regulation. Some members of the committee believed a mechanism was necessary, should war come, for the immediate internment of individuals of ‘internationalist affiliation’ likely to attempt to undermine the war effort. Other members were unwilling to recommend the regulation, believing it to be an unnecessary interference with individual liberty. The committee, in its report to the governor-in-council, attempted to draw the attention of cabinet to the division in its ranks over the propriety of this regulation by marking it with a black line in the margin. Cabinet could then ‘consider whether such a wide power should be assumed by the executive and also whether it is expedient to introduce this regulation at the outset of an emergency or whether its introduction should be postponed until it is known how the situation will develop.’[93] Cabinet, if it considered the matter at all, decided to let the recommendation stand as it was.
9 Regulation no. 39 made it an offence to spread reports ‘by word of mouth’ or make statements, false or otherwise, intended or likely to cause disaffection to His Majesty or to interfere with the war effort or to prejudice relations with foreign powers. It was also an offence under this regulation to spread reports or make statements, again false or otherwise, intended or likely to prejudice the recruiting, training, discipline, or administration of the armed forces. A rather blunt piece of regulatory drafting, this particular regulation made no provision for criticism of the government in good faith. Nor did it provide for the defence of truth. As with Regulation no. 21, enforcement of Regulation no. 39 presented ample opportunity for, and the possibility of, executive abuse. Not everyone, of course, saw it this way. In an editorial praising the first conviction under this regulation, The Globe and Mail declared: ‘Freedom of speech must be curtailed when the nation is at war.’ What use was there, the editorial asked, of fighting enemies overseas if enemies here at home were given a free hand?[94]
10 Three of the enforcement provisions of the Defence of Canada Regulations added to these particular concerns. The first, Regulation no. 58(2), granted to any ‘senior police officer,’ or any person authorized by the minister of justice the authority to conduct a search without a warrant obtained from a justice of the peace.[95] All a constable or designated person had to do was prepare a written search order in his own hand. This regulation provided for the possibility of virtually unfettered and unreviewed police access to every Canadian home. The second, Regulation no. 62(2), allowed for the prosecution to request a closed trial.[96] While the application for the closed trial had to be made on the ground that publication of any evidence would assist the enemy or jeopardize public safety or the efficient prosecution of the war, the scope of these three criteria was left undefined. The potential impact of this regulation was modified, however, by a requirement that sentencing take place, in every case, in public. This eliminated any possibility of secret trials, with the accused disappearing into the night, although with Regulation no. 21 on the books there was, needless to say, no need for any secret trials. The third of these questionable enforcement provisions, Regulation no. 63, made breach of the Defence of Canada Regulations a hybrid offence, meaning that the crown had the choice to proceed summarily, with a lesser maximum fine and prison sentence, or by indictment, with the possibility of more serious penalties.[97] However, unless the crown proceeded by indictment the accused would be denied the option of a jury trial. There was a reasonable likelihood that some accused charged with breaching Regulation no. 39, for example, would want their conduct judged by a jury of their peers, not by a provincial magistrate or police-court judge.[98]
11 The other sections of the Defence of Canada Regulations that deserve mention are nos. 24, 25, and 26, which provided for the registration of enemy aliens, for their internment in specified circumstances, and for their appeal from internment orders. While Regulation no. 24 proclaimed that enemy aliens in Canada, ‘so long as they peacefully pursue their ordinary avocations, shall be accorded the respect and consideration due to peaceful and law abiding citizens,’ there was, in fact, significant scope under what amounted to a miniature criminal code for interference with their ordinary activities.[99]
12 Who were the enemy aliens? They were the nationals of countries with which Canada was at war. In September 1939 this meant German and Austrian citizens. Nationals from other countries would, from time to time, be added to this list, and these men and women were required to register with the registrar of enemy aliens. Approximately 100,000 people had to register and report, usually to their local postmaster. Following registration, more than 20,000 enemy aliens of unquestionable loyalty were exempted from the regulations. The remainder were required to report monthly to one of 3,000 reporting offices for endorsement of their parole certificates. While the authorities had broad powers to intern enemy aliens, by and large this power was not widely used. There was an initial round-up at the start of the war and another dragnet nine months later. However, relative to the overall number of designated enemy aliens in the country, relatively few were actually interned, and their numbers decreased steadily throughout the war.[100]
13 Neither those Defence of Canada Regulations providing for the registration and possible internment of enemy aliens nor any of the other regulations were debated during the special war session of Parliament. Significantly, some of these regulations were amended soon after the start of the war and, one way or another, almost all of them underwent some modification during the six war years.[101]
14 One of the first amendments to the regulations was a positive one. It replaced the two civil servants on the Regulation no. 21 advisory committees with a judge or former judge. If the committees were to exercise a quasi-judicial function, however limited, it was appropriate that they be headed by members of the judiciary or, at the very least, not by civil servants appointed for that purpose by the minister of justice. The problem this amendment did not eliminate was that in practice these ‘committees’ were committees of one — a judge perhaps, but still someone appointed to the job by the minister of justice. A much less positive amendment was the change to Regulation no. 39 made on 27 September 1939, the first of several amendments the section would undergo. A new subsection was added to it, with the effect of broadening the provision by making it an offence to spread reports or to make statements ‘intended or likely’ to be prejudicial to the safety of the state or the prosecution of the war.[102] It was not at all clear what reports or statements were intended to be caught by this amendment: its wording was ambiguous enough to result in its application to a wide variety of criticisms of the war, and it made no provision for the defence of truth. An almost identical, and equally deficient, regulation was soon added, making it an offence to do any of the prohibited things in Regulation no. 39 (a), (b), and (c) by publication, in contrast to speech.[103] One immediate result of this amendment was closure of the Quebec French Communist newspaper, Clarté, in early October.
15 It is a general principle of the common law that for an accused to be found guilty of a criminal offence, he or she must not only commit the act in question, but must have the mental intent to commit that act. Persons found not guilty by reason of insanity, for example, are so found because, being insane, they do not have the mental intent to commit a crime. The Ontario Court of Appeal, however, ruled that it was not necessary in a prosecution under Regulation no. 39 to prove any guilty intent. The case that came before the court, Rex v. Stewart, concerned the business manager of the English Communist party newspaper, The Clarion, which was also closed. Douglas Stewart was charged with an offence under the regulations, namely with publishing materials likely to cause disaffection to His Majesty. At trial he argued that, as business manager, he knew nothing about the content of the newspaper, and so could not be guilty of an offence. In support of this argument, he pointed naturally enough to the language of the regulation, which described the offence as saying or publishing something ‘intended or likely’ to cause disaffection. The regulation itself, Stewart argued, required the accused to have intended to do what he was charged with having done. Both the trial judge and the court of appeal disagreed. Commission of the act itself was sufficient for a conviction to properly result.[104] What this ruling meant, in effect, was that not only could one be charged and convicted for breaching this regulation quite inadvertently, but one could be convicted even if what one had said or published was true. These amendments, along with all the other regulations were, however, positively liberal compared to the proposed changes Justice Minister Lapointe recommended to the cabinet in mid-November.
16 Lapointe had become concerned that the regulations did not give him any power to deal with subversive groups. An analysis of the provisions makes it clear that they applied to individuals, and while hundreds of Canadian Nazis and communists had been taken away to internment camps at the beginning of the war, their associations remained and activities continued. Initially, this lacuna in the regulations only caused limited concern. Domestic Fascists were keeping to themselves, and for the first two months of the war the Communist party was floundering, in part as the result of the breakdown in international communications and the consequent lack of instructions from the Soviet Union on what position to take on the world war. By early November this position had been clarified, and communist associations became increasingly active in denouncing the ‘imperialist war,’ calling on the government to make peace, and, as Lapointe apparently told Prime Minister King, distributing anti-government literature.[105]
17 What the justice minister proposed, in a draft order-in-council that he submitted to the cabinet, can only be described as the recommended re-enactment of the worst features of both section 98 of the Criminal Code and the Padlock Act in Quebec. As a memorandum prepared for O. D. Skelton put it, ‘if the purpose of the new Regulation is to facilitate a Nazi or Fascist revolution in this country, it is well designed.’[106] This assessment could not have been more correct. The additional regulations Lapointe recommended were, simply put, dangerous, unnecessary, and extreme.
18 First the minister of justice suggested a procedure for outlawing groups and associations. Any association, organization, society, or corporation that suggested, advocated, encouraged, advised, or defended 1 / any governmental or industrial or economic change in Canada by any means that would or might be prejudicial to the safety of the state or the efficient prosecution of the war; 2 / the establishment by unlawful means of a form or system of government not authorized by the BNA Act; or 3 / the principles of the German Communist Party, the Communist Party of Canada, the Communist International, or any other similar group, was, under this draft regulation, an unlawful association.
19 Clause 1 was far too broad. As drafted, it could apply to almost any activity the executive wished to suppress, such as a trade union threatening to strike and demanding profit-sharing, or it could apply to the policies of a legitimate political party, such as the Social Credit party. Clause 2 was equally problematic. Communism may not be Canadians' preferred political ideology, but there is nothing in the BNA Act that forbids the establishment by democratic means of a communist government. Clause 3 might have carried more force if it had also banned the various domestic Fascist groups. In the form submitted by Lapointe, it led to the inescapable conclusion that the government was pursuing a hard line on domestic communists, but going soft on Fascists.
20 The draft regulation directed that the property of these unlawful associations, or of persons belonging to them, was to be forfeited to the crown, without any warrant and with only the most limited provision for judicial review. It was an offence under Lapointe’s proposal to be either a member or an officer of an unlawful association. Indeed, even a donation made on the street to a proscribed association was an offence under this regulation. Just as under section 98, it was an offence to attend a meeting of an unlawful association, with the burden of proving that one had not attended falling upon the accused rather than the crown. And just like the Padlock Act, the draft regulation provided that it was also an offence to let premises to unlawful associations. The proposed regulation made only a minor change to the already broad search powers, with the effect of widening them even farther. Instead of requiring a warrant for all searches, albeit one prepared by the police themselves, the new regulation granted the right of a warrantless search in cases where the police officer in question believed an offence was about to be committed.
21 Enactment of these draft regulations was, of course, a matter for cabinet to decide. Prime Minister King approved generally of the suppression of subversive activities and believed the communists, in particular, to be ‘our real enemies,’ but he also thought that Lapointe, in describing the dimensions of the problem, had gone too far and had, in fact, been won over by the RCMP, which reported directly to him. On 16 November 1939 Lapointe, who expected the regulations to obtain immediate council approval, learned that a decision on his proposal was to be delayed until the following cabinet meeting.[107]
22 In that meeting, held on 21 November 1939, there was considerable discussion about the new draft regulations. Lapointe argued adamantly in favour of the cabinet passing the regulations. King did not like the proposed regulations at all, but he liked even less the dissension the matter was causing within the cabinet and the increased isolation from his colleagues of Ernest Lapointe. One report after another analysing the recommended regulations confirmed King’s own view that they were excessive. One government memorandum reported quite accurately that repression was not an effective means of dealing with the threat from either the left or the right.[108]
23 According to the memorandum the regulations were ‘not consistent with the principles of the Canadian government, the traditions of the Canadian people, or the aims for which we are fighting in this war.’[109] Moreover, the memorandum added, while dressed up as anti-communist in inspiration, the proposed regulations had plenty of scope for use against any group unfortunate enough to attract the wrath of the executive. ‘Already free discussion in Canada is blanketed and discouraged by fear of censorship, by colonialism, by the docility of our people.’[110] There was no demonstrated need for the changes, and the regulations went far beyond the comparable provisions in Great Britain, a country so much closer to the front line of the war. Instead of a bill of rights, the memorandum concluded, ‘we are to have a string of “verbotens.”’[111] The point the anonymous author of the memorandum was making could not have been more clear: the draft recommendations had no place in a free and democratic society in war or in peace.
24 Yet Lapointe persisted. ‘At Council, this afternoon,’ King again confided to his diary, following another meeting on the subject of the proposed regulations on 23 November 1939, ‘I saved an unpleasant situation by suggesting that we should wait until Parliament met before giving to the police more in the way of power to search on mere suspicion or without warrant.’[112] King did, however, agree to meet and discuss the matter further with Lapointe and the commissioner of the RCMP, S. T. Wood.
25 At this meeting Wood showed King some papers illustrating what had become, by this point in the war, the well-evidenced intention of the Communist party to create disaffection for the war effort among Canadians. The papers also alleged plans by Fascist organizations to sabotage strategic transportation facilities at Windsor and Welland, along the St Lawrence Seaway system, and at the Montreal airport. The evidence was apparently compelling to King, but he did not agree that a case for Lapointe’s draft regulations had been made, and he told the two men as much. The prime minister agreed in principle to an amendment to the regulations with the effect of providing that an organization could be found guilty for any of the offences that then applied to individuals, but this was as far as he would go. Wood conceded that such an amendment would be sufficient, and Lapointe promised to consider the matter. One matter, however, that the justice minister was not disposed to consider was having a committee of the House of Commons study the regulations when Parliament returned. Lapointe was against the idea, to King’s surprise. The minister of justice had, King later wrote, become quite ‘reactionary.’ This, King added, was the result of ‘nerve strain’ and the justice minister’s apparent inability to resist the demands of his officials.[113]
26 It is noteworthy that at exactly the same time that Lapointe was urging that Canada’s internal-security regulations be strengthened, a similar debate, but to the exact opposite effect, was taking place in Great Britain, a country more obviously in jeopardy. Unlike the Canadian Parliament, which quickly met and then recessed, the British Parliament remained in session. While the British equivalent of the Canadian War Measures Act, the Emergency Powers (Defence) Act, was approved by the Parliament in Britain without debate on 24 August 1939, it was in some important respects a far less restrictive piece of legislation than its Canadian counterpart. This British act, modelled on the First World War Defence of the Realm Act, addressed some of the legal difficulties raised by the predecessor legislation insofar as it took into account every relevant court decision, save one, against the crown during the First World War. Unlike the War Measures Act, it also provided for its automatic expiry at the end of one year unless an address was presented in each House of the British Parliament, requesting its continuance for another year. Not that it had to run for at least one year; its operation could at any time be brought to an end by passage of an order-in-council or by the end of the war. There were, to be sure, very restrictive regulations passed in the first few months of the war pursuant to the broad regulation-making power. The critical difference was that these regulations were subject to parliamentary scrutiny. On 31 October 1939 the British regulations faced their first sustained attack.[114]
27 Regulations providing for internment and for censorship of speech and press were vigorously debated, and in the end the home secretary promised to liberalize some restrictions. For example, the internment regulation, initially quite similar to Canadian Regulation no. 21, was changed to narrow ministerial discretion in making a detention order and to require the home secretary to regularly report to Parliament on the number of persons detained and the number of cases in which he declined to follow the recommendation of Britain’s advisory committee. The advisory committee was also obligated to give detained persons full particulars about the reasons for their detention. The regulation making it an offence to propagandize against the war was redrafted to provide that truth was a defence, as was evidence that a person had reasonable cause to believe what he or she said was true. Another regulation, which allowed the home secretary to delegate authority to close and prohibit meetings, was dropped entirely as it had never been used. These amendments, and they were not the only ones, were declared by both The New Statesman and Nation and The Economist, two journals with quite different views of the world, a ‘victory’ for civil liberties.[115] While the British Parliament met secretly on numerous occasions, the measures it adopted to protect internal security were, in almost every respect more sensible, more liberal, and more balanced than those adopted in Canada.[116]
28 In Canada, his first attempt to bolster the regulations having failed, Lapointe decided to try again, and he wrote the prime minister towards the end of December 1939 to say that he had taken heed of the criticisms of the earlier draft regulations and had made some important changes.[117] Cabinet met to consider a new proposal in early January 1940.[118]
29 Regulation no. 58 was amended to prohibit warrantless searches. Henceforth all searches were to be authorized by a justice of the peace. The Censorship Regulations were revoked. Censorship would now be under the authority of the Defence of Canada Regulations, with the secretary of state continuing in his general supervisory role.[119] As the naming of particular groups and associations in Lapointe’s first draft recommendations elicited some cabinet criticism, the minister of justice redrafted the regulations to allow him to achieve this same result less directly. The regulations now provided that when an officer of an association was convicted, on indictment, of breach of one of the regulations, it was within the discretion of the court to declare the association illegal. Why Lapointe thought that this change, which placed the responsibility for declaring groups and associations illegal in the hands of the court rather than those of the executive, was an improvement over the previous proposal is far from clear. While the War Measures Act gave the governor-in-council virtually unfettered power to protect national security while Canada was at war, the cabinet remained, at some level, accountable to Parliament and to the people. The same could not and cannot be said about appointed judges. But by this amendment Lapointe, and cabinet, had given them the power to declare associations of Canadian men and women illegal. Requiring judicial approval of searches is one thing; giving judges the power to declare formerly lawful organizations unlawful is quite another. The former seeks to restrict the exercise of state power in the name of individual freedom; the latter poses a direct threat to that freedom. The fact that the regulations provided for the appeal of any such declaration fell far short of removing this fatal flaw, for appeal, naturally, was to another appointed judge.
30 Lapointe was able to impose his unpopular views on the majority of his colleagues because King, out of personal regard for his justice minister, agreed. When Chubby Power, who had not been able to attend the meeting at which the new regulations were actually passed, heard about it, he was enraged and went to see King, threatening to resign and protesting strongly the failure of council to refer the whole question of the Defence of Canada Regulations to the cabinet Committee on Legislation, which he chaired. King’s view of Power was mixed. He admired his organizational and other political abilities, but deplored his drinking, which Power often allowed to interfere with his work. King did not, however, wish to lose the valuable Quebec City MP, and convinced him to stay on, taking responsibility for the matter’s having been dealt with while Power was away. He also told Power that while he privately agreed with Power’s civil-liberties views, he could not oppose Lapointe, ‘who had been his right hand man ever since he became prime minister.’[120] All of this seemed to satisfy the minister of defence for air, and King, as he happily wrote in his diary that night, was ultimately able to put Power in a good mood before sending him away.[121] A possible cabinet crisis had been averted, but at what cost? Only time would tell.
31 There were other amendments to the Defence of Canada Regulations during this period that passed without any controversy. In November 1939, Regulation no. 39B was enacted, providing that the consent of the attorney general of Canada, who is always the minister of justice, or the attorney general of one of the provinces was a prerequisite to a prosecution under the Defence of Canada Regulations.[122] Passage of this particular amendment undoubtedly reduced administrative demands on the Department of Justice in Ottawa, as henceforth the provincial attorneys general, who were normally responsible for law enforcement in the provinces, could authorize prosecutions. But this very advantage could easily become a disadvantage and source of unfairness if, as a result, the regulations were unevenly enforced. One provincial attorney general might, for example, exercise greater vigilance than another. More seriously, this new regulation offered much room for abuse. If an attorney general, instead of the police, had the discretionary authority to lay or not lay a charge, what was to stop him from prosecuting some offenders but not others?
32 One amendment to the regulations that received almost universal support was PC 146, passed on 17 January 1940. It provided that criticism in good faith of any government in Canada would constitute a legitimate defence in prosecutions under regulations 39 and 39A. The amendment came too late for prominent trade-unionist and First World War hero Charlie Millard, who was charged in early December 1939 with breach of Regulation no. 39. Millard had said that he expected a lot of men would join the army because that was the only way they could be sure of eating properly. Millard magnified this crime by adding that ‘we should have democracy here in Canada before we go to Europe to defend it.’[123] The amendment, however, failed to clarify whether guilty intent was necessary for a conviction under the regulation. And even as amended, this regulation still provided, by implication, that good-faith criticism of the war effort, if likely to cause disaffection, was a crime. Nevertheless, the amendment was a welcome one and it came just in time for the 1940 general election.
The 1940 general election
1 Although there was provision in the BNA Act to prolong the life of Parliament, Prime Minister King made clear, from the very beginning of the war, that he would go to the people before his term of office expired; that meant an election had to be called sometime in 1940. King did not want an election to conflict with an active phase of the war, but there was no way of predicting when the ‘phony war’ might end. The election would probably have been called for June, had not the premier of Ontario, Mitchell Hepburn, intervened.
2 On 18 January 1940 King learned that a resolution condemning the federal government’s war effort had passed in the Ontario legislature by a vote of forty-four to ten. After discussing the matter with Lapointe, King decided to call an election. Tired and sick, Lapointe had to be convinced by King to stay on.[124] Parliament met on 25 January 1940, only to immediately dissolve. It is fair to say that the War Measures Act was not one of the major issues of this campaign and, indeed, it was left to the Communist party to demand its repeal. As with much else, the Communist party was out of touch. Even Tim Buck, the leader of the party, was forced to observe that ‘it would be an exaggeration to say that the slogan of the Communist Party of Canada “Withdraw Canada from the Imperialist War” has become the slogan of the masses.’[125] Some CCF candidates tried to get the public interested in civil-liberties issues, and both Lapointe and the regulations came in for some serious criticism, but the subject never captured the public’s attention.
3 Prime Minister King did not speak publicly about either civil liberties or the Defence of Canada Regulations. He did, however, express privately his concern over the whole question of wartime civil rights. In early February he wrote the secretary-treasurer of the recently founded Toronto Civil Liberties Association, and told him that he appreciated the importance of safeguarding the traditional liberties of the people during the war. King promised, notwithstanding Lapointe’s previous objection, to refer all the Defence of Canada Regulations to a House of Commons committee for study and review. The prime minister added that so long as his administration held office, ‘every precaution will be taken to ensure that the greatest degree of freedom, consonant with our belligerent status, will be preserved.’[126] This was fine, as far as it went. And Canadians probably had little to fear from a Liberal government in Ottawa. But the fact was, and this is the point entirely missed by King, that democracy can only be fully guaranteed by governments of laws, not of men. While the pre-election amendment of Regulation 39 to allow good-faith criticism of the government could be viewed as a positive development, the prime minister’s declaration, considered carefully, rings hollow. The excessive and unnecessary amendments to the regulations of early January 1940 were proof enough of that. Civil-liberties issues did not, however, affect the election results.
4 The election took place on 26 March 1940, and the result was a huge victory for the Liberal party: 184 Liberals were returned to a House of 245 members. The Liberals captured all but one of the Quebec seats and won an overall majority of the popular vote. The Conservative party, campaigning for a national government, had failed badly; it returned only 40 members. Its leader, unpopular ex-Liberal Robert Manion, lost his seat, effectively ending his political career. He was soon replaced by someone equally unpopular and even more ineffective: R. B. Hanson, a Fredericton lawyer. The CCF held on to its share of the popular vote, but won only 8 seats. The opposition of the leader of the CCF, J. S. Wordsworth, to the war had not helped the party anywhere, not even in Quebec. The Communist party lost almost all public support. Only one Communist, Dorise Nielsen, an expatriate Englishwoman, former member of the CCF, and tireless advocate of civil liberties, who called herself a Unity candidate, was elected to the House of Commons by the people of North Battleford, a rural riding in Saskatchewan. The new Parliament would assemble just in time to deal with the second great military crisis of the war.
The empire in extremis
1 On 9 April 1940 Germany invaded Denmark and Norway. One month later, German troops moved into Belgium and the Netherlands and then carried their campaign to Flanders and France. It took almost no time for the German army to smash through the French front, forcing British and French troops to retreat to Dunkirk, from where more than 300,000 of them were safely evacuated. Western Europe was in Nazi hands. On 10 May 1940, the day the Blitzkrieg began, Neville Chamberlain resigned and Winston Churchill, the first lord of the admiralty, became prime minister. In Ottawa the mood changed.
2 ‘The quietest war capital in Christendom,’ Maclean’s magazine reported, ‘has become a cauldron of excitement.’ Complacency, the report from the nation’s capital continued, had been replaced with a wholesome fear as the shadow of the swastika lengthened across the English Channel.[127] The Globe and Mail editorialized in a similar vein. It was the duty of Canada’s national leaders to lift the people out of their rut and make them realize the stupendous nature of the present conflict.[128] This was not sensationalist journalism. The minutes of the cabinet war committee recorded that the empire was in extremis and there was a reasonable expectation that an attempted invasion of England would begin any day. Prime Minister King agreed on 23 May 1940 to send Canada’s four destroyers to Britain, a decision he made with serious misgivings since he worried that the ships would never return.
3 The situation was very grave, indeed, and the very worst — Nazi subjugation of Great Britain — was not unreasonably feared. Responsible civil libertarians appreciated the serious crisis Canada faced. At a previously scheduled meeting to discuss civil liberties in wartime held in Montreal in mid-May, approximately five hundred people heard a slate of speakers, including J. C. McRuer, a prominent Liberal lawyer and future Chief Justice of the High Court of Ontario, who would write a seminal report on civil liberties in Ontario, unanimously agree that Canadians must be prepared to temporarily surrender some civil liberties in order that all their liberty might ultimately be preserved.[129]
4 On 15 May, at the conclusion of a trial of some Communist-party rabble-rousers in Ottawa who had been distributing a pamphlet entitled Withdraw Canada from the War, including the parliamentary press-gallery reporter of the now-banned Clarion, Ontario Supreme Court Justice E. R. Chevrier declared that the Communist Party of Canada was an unlawful association. The legal basis for the ruling was provided by the recent amendments to the Defence of Canada Regulations. Justice Minister Lapointe had been able to achieve indirectly what he had failed to achieve directly.[130] The ruling was criticized in communist circles, but applauded almost everywhere else. The Communist party had continued, if not increased, its opposition to Canadian participation in the war, and communist propaganda proliferated. Ontario attorney general Gordon Conant, who had previously called for stiffer measures against agitators, now renewed his request; he told the press that there was no reason why communists and other subversive disrupters could not and should not be rounded up ‘in a matter of hours after necessary and proper police investigation.’[131] Moreover, said Conant, judicial and other safeguards should no longer be applied to persons accused of subversive activity. While the traditional principles of innocence until proven guilty and proof beyond a reasonable doubt were ‘sacred’ and ‘inviolate,’ they should, Conant declared, be ‘removed in the present war emergency.’[132] Conant had, in fact, taken a hard line on the regulations from the start of the war. When, in September 1939 a group of United Church ministers published a pamphlet entitled Witness against War, which made the case for conscientious objection, Conant referred it to Ottawa and recommended prosecution on the basis that it would undermine enlistment. Sensibly, the federal authorities declined to become involved.[133]
5 Gordon Daniel Conant was a moderately successful Oshawa lawyer, with the touch of the country squire. He first ran for election in 1937 and won despite, or possibly because of, Premier Hepburn’s role in the Oshawa strike. He was immediately appointed attorney general and soon enough captured newspaper headlines for waging war against illegal slot machines that had begun to crop up in the province.[134] More than anything else, Conant believed in law and order, and if there was a law on the books he meant to enforce it.[135] The nation, he believed, came first. ‘The time has arrived when we here in Canada must awake to the situation and take this matter seriously and aggressively in hand.’[136]
6 That some kind of action was necessary was an increasingly popular view, encouraged, no doubt in part, by developments in Great Britain. Following considerable debate, the British Parliament passed the Treachery Act, and British authorities thereupon rounded up some of that country’s prominent Fascists, including Sir Oswald Mosley. Soon enough Canada passed a Treachery Act of its own, providing for a mandatory death penalty for any person convicted of assisting the military operations of the enemy.[137] The whole question of espionage was on many Canadian minds. A Globe and Mail editorial, for example, asked on 17 May 1940, ‘Are we safe from spies?’ The answer the newspaper gave was not that we were not. The editorial went on to say that it was conceivable that there were hundreds of Nazi spies operating in Canada. ‘They are highly organized and dangerous,’ the editorial continued, ‘they are everywhere.’[138] Former prime minister Arthur Meighen agreed and berated the government for its laxity, declaring that there were numerous fifth-columnists at work. Conant again asked Justice Minister Lapointe to do something.[139]
7 Lapointe was, unfortunately, in no position to give a reply. He was in residence at the Ottawa General Hospital, where he was undergoing treatment for a nervous breakdown. An important but tiring pre-election tour of the western provinces had sapped what remained of his strength. He had been wanting to resign for years and the last few months had taken their toll. Only his continuing sense of duty kept him in office.[140] He kept in touch with King, who on at least one occasion came to visit him, where he was relieved to find his Quebec lieutenant ‘greatly improved.’[141] And Lapointe conferred from his hospital bed with other cabinet members as well. Lapointe was discharged, just in time to attend the opening of the first session of the 19th Parliament on 16 May, but it was evident that he was far from fully recovered.[142] Soon enough, however, Lapointe was once again attending cabinet meetings. There was much to be discussed, including the whole question of internal security.
8 That issue was first raised at the 22 May 1940 meeting of the cabinet war committee. Prime Minister King reported that the public was becoming quite exercised over suspected fifth-column activities.[143] Lapointe advised the committee that the entire matter was under consideration.[144] This would not be enough, for there was criticism of the regulations from both the right and the left, the leader of the opposition calling for the re-enactment of section 98, and the head of the CCF concerned about excessive use of Regulation no. 21.[145] On 23 May Lapointe told the House of Commons that his government had been vigilant in preserving national security, and he noted with apparent approval the decision of Justice Chevrier in effect to ban the Communist party. But he offered nothing in the way of additional measures to meet the present emergency.[146] The situation overseas remained grave. In fact, it was getting worse.
9 King told the cabinet on 24 May 1940 that intelligence he received indicated that France might fall without immediate American assistance.[147] Three days later the cabinet was advised that there was a real possibility of Britain’s being invaded within one week.[148] The British Parliament passed amendments to the Emergency Powers (Defence) Act, which gave the government broad powers to conscript persons and property. In Canada, domestic security concerns were moved to the front burner, and a number of strategic industries were declared essential services so as to subject them to the direct application of the Defence of Canada Regulations. The right of appeal formerly enjoyed by interned enemy aliens was suspended, and the minister of justice was given additional authority to arrest enemy aliens believed to be acting against the interests of the state. Regulation no. 21 was, however, amended requiring the minister of justice to report to Parliament all cases in which he had declined to follow the recommendation of an advisory committee regarding an internment appeal.[149] Meetings on internal security began to be held almost around the clock. If England was lost, it was believed Canada was sure to be attacked next. Internal security was again discussed at a meeting on 3 June 1940. Unfortunately the minutes of that meeting do not give a full account of what options were considered. The decision taken was, however, revealed the next day.[150]
10 On 4 June 1940 the governor-in-council banned the Communist Party of Canada and numerous other communist groups. ‘Whereas the Minister of Justice reports,’ began PC 2363 of 4 June 1940 published several days later in the Canada Gazette, ‘that he is advised that there are within Canada numerous organizations of a subversive character which are intended, or are likely, to be prejudicial to the safety of the State it was desirable that such organizations be prohibited and that a regulation should be made for this purpose and added to the Defence of Canada Regulations.’ The Defence of Canada Regulations were accordingly amended to add a new regulation, no. 39C, which made the Communist party and a number of its affiliated groups illegal organizations and continued membership in them a crime. The order-in-council also provided that henceforth the government could ban any group or association merely by publishing a notice to that effect in the Canada Gazette. For good measure the new regulation also made RCMP officers justices of the peace for the purpose of issuing search warrants. Justified in order to save time, the effect of the new regulation was that any time a RCMP officer wished to search any premises all he had to do was prepare in his own hand an order giving him the authority to enter and search for any reason, or no reason. The January 1940 restrictions on the right to search were proven to be a mere sop to satisfy Lapointe’s critics.[151]
11 But both this order giving the RCMP unrestricted power to enter and search and the ban on the various Canadian communist groups were extremely well received. There was a widespread belief that communist-party members were actively frustrating the war effort, and to be sure, their defeatist propaganda had an extremely negative effect on public morale. Criticism, other than the partisan carping of the affected organizations, was limited and, if anything, was directed at urging that even more stringent measures be enacted. This remained the position of Attorney General Conant, who said that the ban on the Communist party was good, but that further steps to secure national security should be taken without delay.[152] Other annoying groups began to attract inordinate public attention; it was as if they had become a magnet for society’s anxiety. Very simply, the change in war fortunes led to demands that something be done, and while very little could be done to halt the Nazi advance overseas, here at home unpopular groups, as the Communist-party ban illustrated, could be easily suppressed.
12 How effective the ban would be remained to be seen. The Clarion, which had been closed down the previous fall, continued to publish and, in fact, another Communist party publication, The Monthly Review, also appeared from time to time. Notwithstanding their best efforts, the RCMP was unable to find the sources.[153] Although the national police force had hired hundreds of new recruits since the beginning of the war (a series of orders-in-council passed in September and November 1939 increased the size of the force, and in June 1940 another order was passed providing for five hundred additional recruits), its numerical strength had actually diminished. The new recruits merely replaced some members of the force who volunteered to serve overseas.[154] The force was small, understaffed, and not equipped to carry on anything but the most rudimentary police work. As far as intelligence-gathering was concerned, RCMP practices left much to be desired. For example, loyal citizens were asked in early June to mail intelligence tips regarding fifth-columnists to the RCMP intelligence division in Toronto. For its part, the Ontario Police Association announced that it was forwarding to Ottawa a list naming 111 persons who should be immediately interned.[155]
13 The international situation, it seemed, would get worse before it got better. On 10 June 1940 the Commonwealth lost an ally and gained an enemy: France fell and Italy declared war against the United Kingdom. The collapse of the free world appeared imminent. Additions to the list of the banned was the immediate government response. The various domestic Fascist organizations were added first; the Jehovah’s Witnesses were next.
3. Difficult Days
The ban
1 On 12 June 1940 the recently elected member for Parkdale urged the government to ban the Jehovah’s Witnesses. Dr H. A. Bruce, a former lieutenant-governor of Ontario, in the midst of the first Commons debate on the Defence of Canada Regulations, told the House that the Jehovah’s Witnesses should be immediately added to the proscribed list.[156] Although Bruce’s was not the first such suggestion to be made, it created a stir in the House. Recommendations of this kind had first been made months before, by and large containing the same sorts of complaints: the Jehovah’s Witnesses were a disturbing, possibly dangerous, and definitely unpatriotic group. The cumulative effect of the calls for action was the consideration by Justice Minister Lapointe of various means by which Witness activities could be curtailed. In the end, Lapointe decided to outlaw the group.
2 One of the first requests for action against the Jehovah’s Witnesses came from the Liberal attorney general of Saskatchewan and future judge of the Supreme Court of Canada, J. W. Estey. On 17 June 1940, after observing with apparent approval the ban on communist and Fascist organizations, he wrote to Lapointe, urging him to impose a similar ban on the Jehovah’s Witnesses. Estey was concerned about the effect of the Jehovah’s Witnesses on military recruitment, although his letter does not provide any details about what influence, if any, they would be able to exert. The attorney general claimed to respect the ‘right of every individual to believe and worship according to his own conscience,’ but Estey could not ‘overlook the fact that when it comes to legal proceedings they [Jehovah’s Witnesses] must refer the matter to their officials in Toronto and apparently other matters to their office in New York.’ Further, Estey could not understand why the Jehovah’s Witnesses refused to recognize civil authority, and he concluded with the somewhat improbable observation that some German-born nationals were using the group as a kind of front organization through which they could agitate against the war in the guise of promoting a religiously inspired pacifism.[157] In addition, the Liberal attorney general of New Brunswick also urged action against the troublesome sect,[158] as did the RCMP, who had been watching them for years.
3 Indeed, the Mounties had already formed some definite views about the Jehovah’s Witnesses. By 1939 the RCMP had compiled a thick dossier indicating that the Jehovah’s Witnesses had been under police surveillance since at least 1933. ‘Whilst on patrol in the different districts in this detachment area,’ began a more recent report from Wakaw, Saskatchewan, in August 1939, ‘I made casual and discreet inquiries regarding the above organization. I found that there is a general feeling of dislike towards this organization. However, on no occasion did I receive information to the effect that this organization was advocating revolution, or were engaged in any subversive activities.’ The report concluded with the officer’s assessment that while the Jehovah’s Witnesses in question did not appear ‘to be the most desirable type of citizen as far as the progress of the country is concerned, they do not seem to have any designs on the country or government.’[159] Another report, by an officer who attended a meeting in mid-September 1939 in Kingston, Ontario, at which a recorded speech from the group’s leader, Judge Rutherford, was played, reached a similar conclusion.[160] By early 1940, however, these generally benign appraisals began to change. The sect was surely subversive, according to one RCMP officer, who included with his evaluation copies of Consolation, which he described as an ‘anarchistic’ periodical that attacked ‘established institutions.’ This report concluded with the recommendation that Ottawa take ‘appropriate action.’[161]
4 According to Witness records, 1939 and 1940 were not very different from 1937 or 1938, or any other year for that matter. The first year of the war brought no more arrests for disturbing the peace, unlawful assembly, peddling without a licence, or any other charge than the year before the war. Official opposition to the activities of the group throughout the 1930s was fairly constant: about one hundred of its members were taken into custody every year.[162] The increase in official attention is, therefore, not simple to explain. Certainly it was not because of their religious bigotry alone.
5 As religious bigots the Jehovah’s Witnesses had more than one rival. Thomas Todhunter Shields, for example, pastor of one of Toronto’s largest congregations, the Jarvis Street Baptist Church, equalled at least the fervour, if not the rhetoric, of Witness attacks on the Roman Catholic church. According to Reverend Shields, a Bristol-born, self-educated man eventually expelled from the Baptist Convention of Ontario and Quebec, the Roman Catholic church was a cancer gnawing at the vitals of the nation, which, if not stopped, would destroy society. One Sunday morning, several years after the war began, Shields revealed from the pulpit that the Roman Catholic church was ‘the fourth Axis power,’ and was, therefore, an ‘active fifth column.’ Indeed, Reverend Shields believed that Roman Catholicism was not even ‘Christian.’ Shields was filled with Christian charity for Catholicism’s victims. While he hated the religion, he wished only to deliver its followers, victims of an alien ideology, from their dark delusions.[163] For reasons about which one can only speculate, Shields, whose demagogic views reached perhaps a greater audience than all Canada’s Jehovah’s Witnesses combined, was never arrested or interned and his widely circulated Gospel Witness was neither censored nor suppressed.[164]
6 There was, however, one issue that more than any other thoroughly and completely aroused the public and set the Jehovah’s Witnesses apart from all other groups as the British Empire moved towards war. The Witnesses refused to sing the national anthem or salute the flag. Witness children bore the burden of orthodoxy to this view, for in many of Canada’s public schools the day routinely began with patriotic exercises. The Jehovah’s Witnesses had no intention of praying that God save the king or any other earthly creature. Flag saluting was equally obnoxious to them. Exodus, Chapter 20, verses 3–5, set out the biblical prescription against the flag.[165] Saluting was idolatry and therefore forbidden. Jehovah’s Witnesses would not salute the flag or any other symbol that stood for salvation through a means other than God.
7 In April 1940 reports began to make their way to RCMP headquarters and to appear in the press concerning youths who did not have the patriotism to stand up and salute the British flag. These people were regarded as dangerous. The people of Cobourg, Ontario, took matters into their own hands. In the first week of June an angry crowd of about one hundred men and women chased some Jehovah’s Witnesses who had been playing a Judge Rutherford record in a garage and kept them there until the police escorted them out of town.[166] Similar episodes occurred in other places: the Jehovah’s Witnesses had become, almost overnight, something more than an annoying sect. Their refusal to salute the flag was considered completely unjustified, and in early June 1940 the Supreme Court of the United States said the same thing. Paradoxically, it had released, just weeks before, a related decision involving Jehovah’s Witnesses, which extended all Americans' constitutional rights by finding that religious freedom was included in the Fourteenth Amendment to the Constitution, which forbids states from abridging any of the other protected constitutional rights.[167]
8 It was the flag-salute case, Minersville School District v. Gobitis, however, that attracted the attention of the Canadian press. In this case, the Court sustained the right of school-boards to require flag saluting as a condition of school attendance. The decision was released on 3 June 1940, just as the German army was concluding its successful invasion of Western Europe. Patriotic Americans reacted unfavourably to the unpatriotic Jehovah’s Witnesses. While the American government did not ban the sect, arguably the measures taken by private citizens to suppress it far surpassed government action taken against them anywhere else.
9 Jehovah’s Witnesses in the United States came in for even more criticism than they had in Canada. Some Americans claimed they were Nazis in disguise. Others pointed to their refusal to salute the flag, their militant evangelism, their attitude towards established churches, and their refusal to obey unrighteous laws as examples of seditious behaviour. The response, mostly in small towns, was as swift as it was brutal. In instance after instance (there were more than three hundred confirmed cases in forty-four states in 1940 alone), mobs of angry Americans attacked Jehovah’s Witnesses going about their usual work, playing phonograph recordings of Judge Rutherford’s sermons and preaching their message of Christ. Local police refused Jehovah’s Witnesses protection, and more than a handful of them joined in attacks on the group. Jehovah’s Witnesses' cars were regularly vandalized and their literature confiscated and destroyed. A handful were shot, and many were beaten. Hundreds of adult Jehovah’s Witnesses were arrested and brought to trial, charged with a variety of offences, the most common being sedition. Their crime was advocating another form of government, the Theocracy, the government of God. The American Civil Liberties Union (ACLU) described this activity as religious persecution unparalleled in America since the nineteenth- and early-twentieth-century attacks on the Mormons.[168]
10 The situation was so serious that U.S. Attorney General Francis Biddle went on national radio to appeal for restraint: ‘A religious sect known as Jehovah’s Witnesses have been repeatedly set upon and beaten. They had committed no crime; but the mob adjudged they had, and meted out mob punishment.’ Biddle announced that he had ordered an immediate investigation of ‘these outrages.’ Every American, Biddle declared, was entitled to the equal protection of the law. ‘The people,’ he added, ‘must be alert and watchful, and above all cool and sane. Since mob violence will make the government’s task infinitely more difficult, it will not be tolerated. We shall not defeat the Nazi evil by emulating its methods.’[169] The ACLU offered rewards for the arrest and conviction of persons persecuting the Jehovah’s Witnesses and maintained a keen interest in Jehovah’s Witnesses' fate, even if they, in turn, demonstrated little interest in the ACLU.[170] The catalogue of attacks steadily grew. In some quarters consideration was being given to the official suppression of the group.[171] If the United States banned the Jehovah’s Witnesses it would have been the second country in the world to do so. Ironically, Germany was the first.[172]
11 There is simply no doubt but that the Gobitis decision was the proximate cause of the mob attacks. In the two years following the decision Department of Justice files were filled with an ‘uninterrupted record of violence and persecution of the Witnesses. Almost without exception, the flag and the flag salute can be found as the percussion cap that sets off these acts.’[173] Biddle’s address, the posting of rewards, and the sending of a handful of cases to the grand jury for indictment had some effect in cooling the ardour of the American mob, although most grand juries refused to indict, and only one indictment resulted in a conviction. In that case, the chief of police and a deputy sheriff of Richwood, West Virginia, were found guilty of failing to protect the civil rights of seven Jehovah’s Witnesses who sought their protection from an angry mob. Instead of receiving police protection, the Jehovah’s Witnesses were forced by the police to drink large quantities of castor oil and were then tied up. Ultimately they were escorted by the police out of town on the end of a rope, although their escorts would stop from time to time in a vain attempt to force them to salute the flag. Apparently, this case was not an extreme one. The direct intervention of the attorney general, however, and the reference of some cases to local grand juries, greatly improved the situation. To much less effect, but also a factor, were the activities of the Civil Rights section of the Department of Justice. Established in early 1939, this section was charged with the responsibility for preventing and punishing disregard of Americans' constitutional rights.[174]
12 In the end most of the wrongdoers were not brought to justice. There were enormous investigatory problems as local authorities refused to co-operate (and often enough they were among the perpetrators of the crimes), and there was great difficulty in getting local grand juries to indict. The process itself was, however, to some extent a salutary one. Attacks on Jehovah’s Witnesses during the war would never entirely disappear, but the possibility of prosecution had a deterrent effect.[175]
13 While physical violence against members of the group declined, religious persecution remained; not only adult Jehovah’s Witnesses were under attack, so too were their children. Thousands of children were expelled from their public schools following the Gobitis decision, and in a few cases these children were seized on court orders and ordered removed to state institutions. All of these decisions were appealed and, in the end, none was upheld. Very few schools outside large urban centres, it appeared, merely excused Jehovah’s Witness children from morning exercises, even though there was nothing in the Gobitis decision to preclude arrangements of this kind.
14 Many Americans were appalled by the mistreatment of the group. The American Legion, for example, initiated and supported a bill passed by Congress that provided that full respect for the flag ‘may be shown when the pledge is given by merely standing at attention.’ According to the Civil Rights section of the Department of Justice, the effect of this act was to deprive state and local authorities from prescribing and enforcing a different measure of respect for the flag.[176] It would not be long before the U.S. Supreme Court in West Virginia State Board of Education v. Barnette reversed the Gobitis decision and held that school-boards could not expel children for refusing to salute the flag.
15 The suppression confirmed Witness beliefs that Christ and Satan were locked in mortal combat and that the end of the world was soon to come. However, that did not stop Witness lawyers from fighting back. Although Judge Rutherford was a lawyer, as president he could not devote as much time as was necessary to the Jehovah’s Witnesses' legal affairs, and so he invited a Wisconsin attorney, Olin Moyle, to come and live at the Brooklyn Bethel, the office and home of full-time Witness employees. Moyle’s job was to take charge of the legal department, and he set up a network of lawyers across the United States to serve Jehovah’s Witnesses' legal needs. A competent but not inspired man, Moyle did not hold tenure long as the top Witness lawyer. He was dismissed ‘by reason of his unfaithfulness to the Kingdom interests and to those who serve the Kingdom,’ and soon thereafter he was disfellowshipped, the Witness equivalent of excommunication.[177] Moyle was replaced by a brilliant, hard-drinking Texan named Hayden Covington. Born in 1911 in Hopkins County, Texas, Covington studied law at the San Antonio Bar Association School of Law and was admitted to the Texas bar in 1933. The following year he was baptized a Jehovah’s Witness and in 1939 he was invited to join the legal staff at the Brooklyn Bethel.[178] It was under his direction that many Jehovah’s Witnesses' cases would be fought all the way up to the U.S. Supreme Court.
16 Following the U.S. Supreme Court decision in Gobitis, the Department of Justice was flooded with complaints from Jehovah’s Witnesses and others about the violation of their constitutional rights. The public profile of the group did not improve until a different scapegoat came under attack, Japanese Americans. When the war with Japan began in December 1941 public attention shifted to this new ‘enemy’ within. The treatment of the Jehovah’s Witnesses was, it turned out, no more than a practice session in the repression of Americans' constitutional rights. The difference, of course, between the treatment of the Jehovah’s Witnesses and that of Japanese Americans was that the former was, for the most part, privately inspired while the latter was directed by the state. In Canada the wartime persecution of the Jehovah’s Witnesses, like that of Japanese Canadians, was almost entirely the work of the state (although there was undoubtedly private action taken against Jehovah’s Witnesses as well). But in both countries, the security concerns supposedly raised by west-coast Japanese would eventually result in a diminution of interest in the Jehovah’s Witnesses, as attention shifted to this much more visible group. In the meantime, the Jehovah’s Witnesses were the focus of attention.
17 By 24 June 1940 the RCMP was insisting that official action be taken against the Jehovah’s Witnesses. Religion was not the issue, RCMP commissioner Wood wrote to the deputy minister of justice, W. Stuart Edwards. Subversion was. Witness literature, many complained, was against the Red Cross as well as organized religion. Further, it was reported, persons of German origin formerly active in Nazi groups were now taking part in the work of Jehovah’s Witnesses.[179] Wood ‘strongly recommended’ that the minister of justice declare the Jehovah’s Witnesses ‘illegal’ under the provisions of the Defence of Canada Regulations.[180] Four days later, following the apparent failure of the appeal for immediate action, Commissioner Wood wrote to the minister of justice again. Their activities were getting worse, Wood said, and they should be banned right away.[181]
18 The Jehovah’s Witnesses had no way of knowing about the official letters and reports making their way to Lapointe’s office in Ottawa. But letters and official reports were hardly necessary to drive home the fact that, for Jehovah’s Witnesses in Canada, difficult days had arrived. ‘Thick darkness covers the earth. Distress and perplexity have increased in this country,’ the 1940 Yearbook of Jehovah’s Witnesses said about Canada. ‘The religionists are now rallying quickly to the standard raised by the Government, and hence they more openly identify themselves against the Theocracy. We well know that opposition must increase until all nations have shown themselves as against the Theocracy, and then Jehovah will fight. With full trust and confidence in Jehovah we will go forward, raising high the banner he has placed in our hands and shout aloud, “Victory, for our King, Christ Jesus, and salvation to the obedient!” We are not afraid of the enemy, because Jehovah is with us, and they shall not prevail against [us]. Hence, with calmness and with peace we go forward in the fight.’[182]
19 When Dr Bruce called on the government to suppress the sect, the Witness leadership in Toronto became concerned. Two men were then in charge of Canadian operations, Percy Chapman and Charles Wainwright. As soon as they learned of Bruce’s speech in the House, the two Witness leaders decided to obtain legal counsel.
20 While arrested Jehovah’s Witnesses sometimes retained counsel, such as R. L. Calder in Quebec, their general practice was to defend themselves in court. The cost of providing every arrested Jehovah’s Witness with a lawyer would have been prohibitive. And by representing themselves, Jehovah’s Witnesses could spread the good word. For this same reason, Jehovah’s Witnesses were encouraged not to pay fines even if they had the financial resources to do so. A prison term was just one more opportunity to do the Lord’s work. Jehovah’s Witnesses were not, however, left entirely to their own devices. The Brooklyn legal department prepared a booklet entitled Order of Trial which instructed Witnesses on what to do when they were brought before a judge. These practical suggestions were often complemented by mock trials held in Kingdom Halls.
21 The American booklet, retitled Advice for Kingdom Publishers, was adapted for use in Canada and distributed in large numbers to Canadian Jehovah’s Witnesses. Defending oneself when charged with peddling without a licence was serious enough. But what Dr Bruce proposed was far graver than anything the Jehovah’s Witnesses had yet to confront. The need for experienced counsel was self-evident, and they chose Jacob Laurence Cohen of Toronto.
22 Cohen was born in Manchester in 1898; his father, a hatter, brought his family to Canada in 1905 but died a few years later. Cohen left school at the age of thirteen and wound up working as a clerk in a Toronto law office. He finished high school at night and eventually enrolled at Osgoode Hall Law School, where he stood first in his class. He was called to the bar at age twenty-one and soon, as he liked to put it, began representing ‘all the wrong people in all the right things.’[183]
23 From his office on Bay Street in Toronto, Cohen, a small dapper man with a swift tongue, a large ego, and a harsh, unattractive personality, wrote masterful legal briefs. If there was a wrong, Cohen believed, then the law was there to make it right.[184] He represented demonstrators arrested outside the U.S. Consulate, protesting the execution of anarchists Nicola Sacco and Bartolomeo Vanzetti. He acted on behalf of numerous trade unions, and, while never a communist himself, he was one of a handful of lawyers in Canada willing to represent members of the Communist party who in the late 1920s and early 1930s increasingly found themselves the objects of petty police persecution. For the Jehovah’s Witnesses, Cohen was a good and a natural choice. He was no stranger to unpopular cases or causes; his work with communists and trade unions was ample evidence of that. He had a sympathy for the underdog and was, in his own way, a straight shooter. He refused to accept cases without any prospect of success and he went into court and argued law; any other instructions Cohen refused to accept. Moreover, he was an exceptionally talented lawyer.
24 The day after Dr Bruce called for the Jehovah’s Witnesses to be added to the suppressed list, Chapman and Wainwright met Cohen and hired him. ‘We engage your services to advise us,’ the formal retainer agreement provided, ‘and to act in our interests to prevent possible action being taken by the Federal Government against Jehovah’s Witnesses, in view of Dr Bruce’s statement that Jehovah’s Witnesses are a subversive group.’[185] That serious state action against the group was possible was evident by the government’s treatment of other organizations, such as the Communist party.
25 Concerns over the international situation and about internal security continued. Ontario, for example, initiated plans for a ‘home guard,’ and at the cabinet war committee meeting on 14 June 1940, Chubby Power, acting minister of national defence, reported that he had received numerous requests from provincial authorities for civil guards to maintain order and to secure vulnerable points. Indeed, the premier of Manitoba was asking for authority to raise ‘rifle clubs’ and have them supplied with arms. The committee rejected this request, but it was obvious to everyone that possible fifth-column activity was a matter of vital public and political concern. There had been very limited negative public reaction to the banning of the various communist and Fascist groups. The only related issue that did make it to the agenda was some discussion about the fate of Canada’s Japanese. The concern here, as both these minutes and subsequent events establish, was not with the rights of Japanese Canadians but with the threat to national security some claimed they posed.[186]
26 The mass internments of suspected political agitators that came in the wake of the banning of the communist and Fascist groups may have alleviated some of the fears about the threat from within, but the threat from overseas remained. France fell, but a brilliant and ambitious French general named Charles de Gaulle formed a government in exile. The Battle of Britain continued, and a Nazi invasion appeared imminent. Prime Minister King wrote in his diary on 16 June 1940 that the situation was so grave that it was time to look to the safety of Canadian shores. The possibility of an Axis attack on Canada was no longer remote.
27 More serious measures were required, and on 18 June 1940 the National Resources Mobilization Act[187] was introduced in the House of Commons. The NRM Act received Royal Assent three days later, and authorized the Cabinet to make orders and regulations requiring persons to place themselves, their services, and their property at the disposal of the government ‘as may be deemed necessary’ for securing the public safety and public order, the defence of Canada, and the efficient prosecution of the war. The NRM Act was clearly modelled on British legislation passed the previous May. (By amendment to the Emergency Powers [Defence] Act,[188] the British Parliament provided the government with the authority to introduce regulations requiring ‘persons to place themselves, their services, and their property at the disposal of His Majesty.’[189] The Canadian legislation did exactly the same thing.) There was only one exception to the broad and generalized powers authorized by the NRM Act: there would be no conscription for overseas military service. Nevertheless, the act was viewed by many Quebeckers with real suspicion. Every Canadian man and woman was required to register with the government, and who was to say that this registration was not just a prelude to conscription? Quebec fears would have to be quelled; if they were not the situation could turn ugly as it had in the First World War. The Roman Catholic hierarchy in Quebec came to the rescue.
28 ‘From his Cathedral in Quebec City, Cardinal Villeneuve instructed the clergy to call on their people to obey the law and fulfill the duties which the civil government required of them.’[190] The citizen, Cardinal Villeneuve believed, had no right to choose which laws to obey and which to break. Not everyone felt this way. Camillien Houde, the extremely popular mayor of Montreal, urged French Canadians to defy the law. Houde’s outburst required Lapointe to end his convalescence and return to work. The minister of justice immediately ordered the Montreal mayor interned. To avoid a potentially embarrassing situation, the cabinet passed a new order-in-council providing that no internee could stand as a candidate for public office.[191] L’Action Catholique, the church’s pious daily,[192] roundly denounced Houde and praised Villeneuve. ‘His Eminence,’ said the newspaper, ‘had acted in accord with our best traditions.’[193] A related development was passage, again by order-in-council, of another amendment to the Defence of Canada Regulations, putting the assets and property of proscribed organizations under the control of the custodian of enemy property.[194]
29 And now attention returned to the Jehovah’s Witnesses. The RCMP recommendations, along with the provincial appeals, went a long way towards encouraging Justice Minister Lapointe to add the group to the list of unlawful organizations. Also important were the demands for state action from the province of Quebec. In all of Canada, Catholic Quebec was the centre of indignation over the group’s religious activities. In the months leading up to the war the Jehovah’s Witnesses there, like members of the Communist party, attracted their share of petty official harassment as they went about their proselytizing work.[195] Quebec had a statute, the Freedom of Worship Act,[196] dating from 1851, that gave the people of the province something akin to a religious bill of rights, but in the social climate of the day, the religious freedoms guaranteed by that statute did not in practice extend to the Jehovah’s Witnesses. The French-Canadian concept of religious liberty, Cardinal Villeneuve taught, did not mean freedom of religion for all. What it meant was protection from the religious ideas of others.[197]
30 For protection from the religious ideas of the Jehovah’s Witnesses, Quebeckers looked to Ernest Lapointe. Throughout the 1930s, staff at the Department of Justice was kept busy answering correspondence from priests and their flocks appealing for action.[198] Lapointe, his correspondence reveals, was concerned. There were many things disturbing to him and to all Quebeckers about the Jehovah’s Witnesses: their persistent visits, often on Sunday mornings, interrupting preparations for church; their phonograph records, their sound cars, trucks, and boats bringing an unwanted message in a way not easily ignored. Perhaps most disturbing about the sect was their literature with its unflattering pictorial portrayals of the pope and the episcopate. Their literature was equally offensive, but dense and ponderous as it often was, it had much less effect.
31 It is, therefore, hardly surprising that one of the first things that Lapointe did in response to early Quebec calls for action against the group was to look at means of restricting distribution of their literature. Under the Censorship Regulations and, after they were revoked, the censorship provisions of the Defence of Canada Regulations, it was thought, Witness literature could be easily suppressed. When early on in the war the Jehovah’s Witnesses made application for use of long-distance telephone wires to carry the broadcast of a major speech by Judge Rutherford, censorship authorities in Ottawa had no hesitation in turning down the request. In April 1940, however, the matter of censoring and thereby suppressing Witness literature was referred to the Office of Press Censors, the institution established to co-ordinate press censorship during the war.[199] By mid-June, Justice Minister Lapointe had his reply. The press censors would not ban Witness literature.
32 After giving their literature a thorough review, press censors F. Charpentier and W. Eggleston determined that, while much of the material was undesirable, there was no basis to suppress the literature under the Defence of Canada Regulations.[200] In fact, the two press censors observed, to Lapointe’s undoubted consternation, the Jehovah’s Witness literature revealed a trend towards anti-Nazism, thereby weakening any case for the censorship of the group’s publications.
33 Indeed, there really was not much of a case in law against the organization, and Lapointe realized as much. On 31 May 1940 he wrote Commissioner Wood, returning some Witness materials that Wood had earlier forwarded to him. There was no doubt, Lapointe wrote, that some statements in the materials were anti-British and anti-American. However, Lapointe ordered the RCMP to instruct complainants to communicate with their provincial attorney general. The minister of justice wanted no more to do with the Jehovah’s Witnesses.[201] In a matter of weeks, this order was reversed as mounting pressure forced Lapointe to change his mind.[202]
34 As the international situation deteriorated, appeals for action against the Jehovah’s Witnesses accelerated. They were all from Roman Catholic groups and they came from across the country. The Synod of the Diocese of Kootenay, for example, passed a resolution requesting that the Jehovah’s Witnesses be ‘thoroughly investigated by the police.’[203] L’Action Catholique editorialized against the sect on 20 June 1940. The Jehovah’s Witnesses were, the paper said, public enemies. They were a fifth column and more dangerous than any other group.[204] In the unlikely event that the editorial did not make its own way to Lapointe’s attention, Cardinal Villeneuve arranged for the minister of justice to receive a copy. On 27 June 1940, Monsignor Paul Bernier, the chancellor to the cardinal, wrote to Lapointe, enclosing with his letter a copy of the editorial. The Jehovah’s Witnesses and their publications, Monsignor Bernier wrote, were demoralizing and destructive of the spiritual strength of the country.[205]
35 To Lapointe, who struggled manfully to reconcile the sometimes competing interests of French and English Canadians, and who was now desperately trying to maintain national unity during a world war, the message implicit in this correspondence could not be more clear. A troublesome and nasty sect with an influence and impact far out of proportion to their numbers was disturbing the fragile balance he had devoted his political life to preserving. Cardinal Villeneuve was clearly behind the correspondence, and Lapointe appreciated how important the cardinal’s efforts were in maintaining domestic peace. Also influential, but to an undetermined extent, were Lapointe’s own religious views.[206] The demands for action, at first tentative and isolated, then a persistent din and now an audible roar, could no longer be ignored.[207]
36 In all of this the Jehovah’s Witnesses were not sitting idly by.[208] On 3 July 1940 J. L. Cohen was asked by his new client to make a representation on its behalf to the committee earlier promised by the prime minister and now established by the House of Commons to consider the Defence of Canada Regulations. Cohen wired Ottawa and asked for an appointment.[209] That same day an official at the Department of Justice rejected Cohen’s request. As P. M. Anderson, a senior official in the department, explained in a return wire to Cohen, there was no point in coming to Ottawa since ‘the matter’ had already been considered.[210]
37 Cohen wired Anderson right back. It would be most unfortunate, the Witnesses' lawyer wrote, for any action to be taken against the group without at least giving its officials an opportunity, which they had been seeking since their group was first discussed in the House of Commons, of making representations and presenting their case and position to the federal government. In the strongest possible terms Cohen requested an immediate appointment.[211] The next day, Anderson gave his final reply and repeated that no purpose would be served by a meeting.[212]
38 Justice Minister Lapointe, with well more than a dozen groups already on the proscribed list, decided to add another to their number. In all probability, Mackenzie King merely acquiesced in the decision.[213] The precedential value of having already banned other associations undoubtedly contributed to the move.[214] Lapointe had not given the Communist party an opportunity to make representations before declaring it illegal, nor had any other group been given any hearing. The fact that all the other groups were political and that the Jehovah’s Witnesses were religious did not, according to the documentary record, enter into Lapointe’s decision to suppress the group. So it was, on 4 July 1940, that it became illegal to be a member of the Jehovah’s Witnesses. If Prime Minister King took notice of the ban he made no mention of it in his diary, while in Parliament the order-in-council amending the Defence of Canada Regulations and declaring illegal ‘the organization known as Jehovah’s Witnesses’ was simply announced.[215]
39 This news was immediately communicated to the cardinal of Quebec. Lapointe’s private secretary telephoned Monsignor Bernier at the cardinal’s palace in Quebec and thanked him for his letter and for the copy of the editorial from L’Action Catholique, and advised him that the Jehovah’s Witnesses had been declared illegal.[216] The next day another editorial appeared in L’Action Catholique. Now that the sect has been declared illegal, the paper said, repression will be easier, quicker, and more effective.[217] For his part, the cardinal was delighted.[218]
40 This development was initially reported in the press without comment.[219] The Jehovah’s Witnesses' leadership in Toronto was shocked, but it had already begun to prepare for the worst. That the ban was imminent was brought to their attention a day or two before it actually took place, and around 3 July Jehovah’s Witnesses at the downtown Toronto headquarters on Irwin Street began to work furiously, destroying membership lists and other documents. They worked through the night, continuing until the police arrived late the next day to close the building down.[220]
41 Would the group be able to carry on? Justice Minister Lapointe obviously hoped that it would not. But he himself would soon enough be unable to continue. Prime Minister King realized that all was not well, and on 24 June 1940, a week before the Jehovah’s Witness ban, had considered replacing Lapointe and appointing him to the presidency of the Privy Council. The duties of the post were far from onerous, but the prestige remained high. Lapointe needed a rest. King, however, decided that he needed Lapointe exactly where he was.[221] The prime minister, whose assessments of men were generally correct, had made a mistake. Lapointe was literally on the brink of collapse. The holiday King had earlier advised had not done any good.
42 On 11 July a visibly upset Lapointe came to see the prime minister and announced that he was afraid that he was suffering a complete nervous breakdown. ‘Thereupon, he began to cry like a child,’ King recorded in his diary. ‘I went over and sat beside him,’ King continued. The prime minister told his minister of justice that he was not surprised. Lapointe moaned. He told King that he could not sleep, and said, ‘“I hope I am not leaving too much to you and that you will be able to get along without me.”’ King then told him that he should get away for a nice long rest. ‘We then talked a little together,’ King wrote in his diary, ‘during which time he repeatedly broke down. I did my best to reassure him, saying that in another week, he would feel quite different and that at the end of two weeks, would not know himself, but not to bother with the rest of the session … He seemed very grateful and quieted himself and then went out by the side door into the hall, and said he would get straight away.’[222] In fact, the minister of justice never got his strength back. His physical and mental condition may have made him susceptible to pressures he might have withstood had he been well and had the country been at peace. But he was not and it was not, with the result that suggestions that should have been dismissed became government policy. For Lapointe, the war was effectively over in July 1940. For the Jehovah’s Witnesses it had just begun.
Carrying on
1 When the Communist Party of Canada was banned in June 1940 more than a hundred activists were immediately interned, and the top leadership went into hiding in the United States with the result that the scope and range of communist-inspired activity was significantly reduced. Similarly, after the leader of the National Unity Party, Adrien Arcand, was interned, the remnant of the membership went underground, never to significantly reappear. In contrast, when the Jehovah’s Witnesses were banned, their activity and numbers began to increase.
2 There was absolutely no question of state action terminating Jehovah’s Witness work. ‘How could a puny human power stop the work of Almighty God?’[223] The Witnesses were convinced that Satan was behind the ban, and that he had acted once again through his earthly instrument, the Roman Catholic church. ‘In 1940 political tools of the Roman Catholic Hierarchy guided the nation into outlawing freedom of worship, the freedom hated most by the intolerant Hierarchy, and the one most prized by Christian freedom lovers,’ Consolation later explained.[224] The charge of ecclesiastical interference in a secular matter was not without foundation, but the Roman Catholic intervention was only one of many factors that led to the banning of the group. Nevertheless, there was widespread suspicion that the sect was proscribed at the Quebec clergy’s behest.[225] Cardinal Villeneuve’s intervention may have been the straw that broke the camel’s back, but it is unlikely that it alone could have led to the ban. The Roman Catholic church was not, after all, the only organization calling for state suppression of the group. The RCMP, at least two provincial governments, and countless private organizations and individuals also made representations to Ottawa for action of this kind. Whatever the motivation, or proximate cause, the Jehovah’s Witnesses believed the act itself was an illegitimate use of state power in violation of biblical precepts concerning Jehovah’s Witness work. As such, it was to be ignored. The Jehovah’s Witnesses were also determined to convince the government to rescind the ban, and Witness activity from July 1940 forward was directed towards the achievement of this goal.
3 The immediate question the Jehovah’s Witnesses faced, once their Toronto headquarters was closed, all their literature seized, and their bank accounts frozen, was how to organize their missionary work. A secret letter, intercepted by the RCMP, set out the Witness strategy for continuing God’s work while under ban.[226] ‘The Devil has been permitted to break into the line of communication established throughout this country for contacting all lovers of righteousness,’ the letter to zone servants began, and while it was probably wrong about who was behind the communications disruption, it was right that communications were down. On orders of the RCMP, mail sent to what was once Witness headquarters in Toronto was rerouted to Ottawa, presumably for police inspection.[227] However, as the letter to zone servants went on to say, ‘The preaching of the gospel of God’s Kingdom will continue … All will do their utmost to fully cooperate.’
4 The zone servants were regional superintendents charged with ensuring the faith of the flock. In anticipation of the end of the world and the institution of God’s government every country in the world where Jehovah’s Witnesses work, including Canada, was and is divided into regions, the regions into zones, and the zones into companies, which are the congregations in which individual Jehovah’s Witnesses worship.
5 In normal times this network, directed from headquarters in Brooklyn, New York, operated smoothly enough. When the Canadian branch was banned, serious problems resulted since their monopoly on religious truth made maintenance of orthodoxy in study and in prayer absolutely essential. At no time was their doctrinal purity put to a greater test than when membership in the group itself was declared by the state to be a crime. What the Jehovah’s Witnesses had to do was to keep their message and their mission operating in the midst of state repression. The letter to zone servants explained the Jehovah’s Witness strategy for doing so.
6 First, the Theocracy must be obeyed completely. Zone servants were to contact company servants and individual members of the flock to minister to their needs and assist them in rendering service to the Lord. In some instances, where appropriate (presumably meaning where there was no danger of police interference), zone servants might meet with ‘some of the very interested’ and possibly with small groups of brothers and sisters. With the organization banned, normal lines of communication interrupted, delivery of literature from the United States prohibited, and Canadian printing presses shut down, it was not hard to see how congregations might go astray.[228]
7 Accordingly, in meetings with the flock, the zone servants' main instruction and objective was to ‘help all to keep in line.’ They were to carefully watch anyone who was attempting to step ahead of the organization and assist those who were lagging behind. Meeting places were to be changed from time to time and companies that grew too large were to be divided for the safety of the congregants and the future of the flock. That there was to be a future was never in doubt. Also not in doubt was the continuation of mission work while under ban.
8 The war and the ban were just two more signs of the world’s imminent end. Jehovah’s Witnesses believed that their message was more urgent than ever so that all persons desiring to live under the righteous and perfect conditions of the New World could declare themselves for Jehovah.[229] ‘The people of Canada have a right to hear,’ the Jehovah’s Witnesses believed, ‘and it is not the prerogative of any creature, or any government, to prevent the Lord’s message from going to the people in this land.’[230]
9 As the ban made it an offence to be a Jehovah’s Witness the group altered its methods in the hope of avoiding police prosecution. Literature, Jehovah’s Witnesses were advised, need not be taken on the first call; all they needed to carry was the Bible. For obvious reasons, Jehovah’s Witnesses were cautioned to avoid appearing to be doing systematic work. Instead of proceeding from door to door, they should cultivate a more haphazard approach in their canvassing work. When they got to a door, the letter suggested, the call should begin with a general inquiry about world conditions, business, health, or crops. This discussion could easily be turned, at the appropriate moment, to biblical prophecy. If the person was keen, ‘a person of good will,’ soon enough he or she would be invited to join a Bible study session. That session, or one following it, would ultimately lead to baptism and full membership in the group. In this way, it was hoped, the work of Jehovah would continue.
10 Overall, the strategy was successful. At the start of the war the Jehovah’s Witnesses numbered approximately 3,000. By the middle of the war (when the group was still under ban), there were 4,000 members, and at the end of the war there were between 10,000 and 15,000.[231] The RCMP looked at these numbers and wisely decided against internment as a cure for the Witness ‘disease.’ It was not RCMP policy to intern these ‘misguided people,’ stated Staff Sergeant Johnny Leopold, the intelligence officer who had some years earlier made a name for himself through his successful infiltration of the Communist Party of Canada, and who was now assigned, among other duties, to watching the activities of proscribed groups.[232] RCMP policy was to prosecute Jehovah’s Witnesses as necessary.[233] One criticism of this policy was that the RCMP was not in charge of all prosecutions under the Defence of Canada Regulations. Provincial attorneys general shared responsibility with federal authorities for approving prosecutions, and some prosecuted, while others did not.
11 No attorney general was more zealous than Ontario’s, G. D. Conant,[234] and scores of Jehovah’s Witnesses in the province were soon arrested, with Cohen travelling throughout the province, seeing to their legal needs.[235] The practice in Ontario was generally as follows. Local crown attorneys would write the attorney general in Toronto and request permission to lay charges.[236] Sometimes a summary of the case would be included with the request; whether it was or not, all requests, according to available records, were granted. Jehovah’s Witnesses were charged with a variety of offences.[237] Some Jehovah’s Witnesses, for example, were charged, under Regulation no. 39C, with the offence of being a member of an illegal organization.[238] However, when these cases got to court it was often difficult to prove that a person was still a member of an organization that had been declared illegal under the regulations. A person could not be convicted merely because some police officer concluded that the person he arrested was a Jehovah’s Witness. At the very least a confession or documentary proof, such as a membership card, was usually required by the court to meet the membership test.[239] As convictions under this offence were relatively difficult to obtain since Jehovah’s Witnesses generally refused to admit membership in the group, the practice gradually developed of charging Jehovah’s Witnesses under Regulation no. 39A, which made it an offence to circulate literature likely to cause disaffection to His Majesty. Despite the recommendation in the letter to zone servants that Jehovah’s Witnesses stop carrying literature with them when they went out to preach, many continued to do so, in order to illustrate their ideas to persons who expressed interest in their message.
12 Carrying Jehovah’s Witness literature was not a prerequisite to arrest. Some Jehovah’s Witnesses were arrested even though the only literature they happened to be carrying was the Bible. They would be charged with spreading disaffection by word of mouth and, for good measure, with being a member of an illegal organization. After their arrest they would be taken to jail and, usually the next day, appear in magistrate’s court. Cohen could not represent every Jehovah’s Witness charged with an offence, and it remained Witness policy for individuals to represent themselves in court and thereby give witness to the judge, jury, and anyone else who happened to be there. If sent to prison, they would give witness there too.
13 Arrested Jehovah’s Witnesses were not left to the mercy of the court; they had the pamphlet Advice for Kingdom Publishers to help them mount their own defence.[240] First, they were told to pray before starting out on missionary work: ‘Be bold but not rude, remembering that you are backed up by the Lord in your work and you are doing His will.’[241] More practically, Jehovah’s Witnesses were advised to say, when accosted by the police, that they were ordained ministers sent forth by the Lord to preach the gospel of His coming Kingdom. The pamphlet predicted that some police officers would not be impressed. If that was the case, the Jehovah’s Witness was to accompany the police officer to the police station if placed under arrest, and he or she was instructed to co-operate and not to resist. Once in custody, the Witness was to continue his or her missionary work, although it was much better if someone would post bail, and in that case the Witness was advised to carry on as if nothing had taken place.
14 The pamphlet stated that, if absolutely necessary, a lawyer could be hired for trial, although this was only recommended for cases going to appeal, and if possible, the lawyer retained should be one favourably disposed to ‘the truth.’ These lawyers were somewhat difficult to find; however, in most cases legal counsel was not necessary. Advice for Kingdom Publishers drew to the attention of accused persons appropriate scriptural passages for virtually every contingency. Other advice was provided as well, and facsimiles of legal forms, for example, requesting that the case be dismissed, formed part of the text. Jehovah’s Witnesses were instructed on how to request a jury trial, a crucial point. To be tried before a jury was preferable to standing before a judge. Not only did a jury provide an audience to which to witness, but jury trials were available only for indictable offences that had broader rights of appeal. But the choice to proceed summarily or by indictment was the crown’s alone, and the prosecution invariably chose to proceed summarily. While incomplete records preclude anything more than a tentative conclusion, it seems most magistrates had little time and less interest in a biblically based Jehovah’s Witness defence, and so would readily convict on finding literature or other evidence pointing to membership in the proscribed group.
15 Because most cases came before local magistrates, there are extremely few reported decisions about prosecutions during the war for breach of the Defence of Canada Regulations. Magistrates generally do not give written reasons for decision, and so while the disposition of cases that come before them is known to both the crown and the accused, to the historian the result is lost. The court history of prosecutions under the Defence of Canada Regulations cannot be written.[242] The Jehovah’s Witnesses, however, kept and continue to keep excellent records. This is necessary so that when judgment day comes the good will be saved and the wicked punished.[243] According to their files there were five hundred Jehovah’s Witness prosecutions during the war. How many individual Jehovah’s Witnesses were prosecuted is, however, difficult to say, for it is certain that many of these five hundred were repeat offenders.[244] As the war progressed the police became less and less interested in tracking the Jehovah’s Witnesses down. For their part, the Jehovah’s Witnesses became adept at avoiding capture by the police. As a result, the number of charges against them began to decline.
16 The number of other Canadians prosecuted under the Defence of Canada Regulations is almost impossible to say. Approximately one thousand people were charged and convicted under the Defence of Canada Regulations in each of the first four years of the war.[245] Overall, there were hundreds, but probably not thousands, of convictions. Most of the non-Jehovah’s Witnesses who were charged under the Defence of Canada Regulations were prosecuted, not because they breached internal security, but because they made insulting and disloyal remarks in saloons, or distributed defeatist propaganda of either a Fascist or a communist bent. Most convictions resulted in small fines, although the systematic distribution of enemy propaganda usually earned the propagandist a short jail term.
17 Some persons charged were treated differently than others. What happened to George Drew is a case in point. An eloquent lawyer from Guelph, Drew was elected leader of the Ontario branch of the Conservative party in 1938. In 1943 he led the party to power by a narrow margin. Drew was first charged on 25 December 1941 for criticizing the government’s conduct in the disastrous capture of Canadian and other Allied troops in the garrison at Hong Kong. The second charge, on 25 June 1942, was for alleging that the inquiry into the loss of these troops by Supreme Court Chief Justice Lyman Duff was a cover-up. Both charges were withdrawn on 10 July 1942.
18 Charging and convicting persons for distributing defeatist propaganda was one thing, but charging and convicting a public figure for criticizing the government’s handling of a military matter or charging someone for saying ‘Down with the king’ while intoxicated in a saloon was another. It is difficult to see what public interest was threatened by remarks of this kind. Throughout the war, nevertheless, and especially in its first two years, many Canadians were charged for offences no more serious than this, thereby bringing the Defence of Canada Regulations into disrepute.[246]
19 Almost all Jehovah’s Witnesses who were charged were convicted,[247] although such matters did not unduly concern the Jehovah’s Witnesses. Indeed, they welcomed them. ‘A great witness has been given in and through the courts by our brethren,’ the 1942 Yearbook of Jehovah’s Witnesses later reported. ‘For instance,’ it continued, ‘a witness leaves a booklet at a door, and is arrested, tried, and imprisoned. Fifty or more people listen to his defense in court. Fifty or more talk with him when in prison, and thousands read about it in the newspaper. In this way Jehovah’s name and the acts of His witnesses are carried to many.’[248]
20 It is hard not to admire, albeit somewhat grudgingly, the commitment to conscience of these Jehovah’s Witnesses. Cases reported in the press emphasized this point. One woman who found herself in court was offered release if she agreed to stop attending Witness meetings and to stop distributing literature. Her reply was simple enough. ‘I will not deny Jehovah,’ she told the court, ‘nor will I agree not to do His will.’[249]
21 In Ontario, the practice of approving prosecutions whenever asked proved quite unpleasant to some local authorities. Many of the smaller Ontario judicial districts had no need for a full-time crown attorney, and local lawyers were engaged as required. When it came time to prosecute local people in the local courts, these local and part-time crowns periodically displayed less-than-complete enthusiasm for their task. When, for example, one local part-time crown attorney recommended lenience and asked the attorney general for advice, the recommendation was accepted.[250] Even when there was the will to prosecute, there was not always the way. An RCMP officer reported from Cobourg: ‘It is known that they are having irregular meetings but the location of these meetings cannot be learned. They are at different places each time, according to our information, and they are very hard to find.’[251] In most cases, however, the police did not have to go looking for Jehovah’s Witnesses, for their regular work brought them readily enough to the authorities' attention.
22 T. P., for example, was distributing Jehovah’s Witness literature when she was picked up by the local constable in the town of Barry’s Bay, in the Ottawa Valley, in early July 1941 and taken to the office of the Ontario Provincial Police. ‘A few minutes conversation with the girl,’ the OPP officers' report said, revealed ‘that she isn’t mentally alert. Her excuse for being dressed as a man was indicated by Jehovah to her as the best way to get by the men without being carnally tackled. Her literature, she claims, was old stuff she had [been] given before the ban was clamped on and she just took the notion to get out and save humanity around Barry’s Bay.’ The report went on to say that the girl, who was from the area, admitted to being a Jehovah’s Witness. The report concluded with the opinion that the girl was ‘sub-normal,’ and it requested advice as to what to do. The local crown attorney forwarded the report, without comment, to the attorney general of Ontario. He instructed the police to lay a charge and suggested that if appropriate facilities were available she should also be subjected to a mental examination. If it was found that she was not responsible for her actions, the charge could be withdrawn.[252] The suggestion that an arrested Jehovah’s Witness was of below-average intelligence was present in many of the police reports of the period. Ironically, the police failed to demonstrate their own superior intellect when investigating Jehovah’s Witness activity. Their biggest failure was in the fall of 1940.
23 Although arrests of Jehovah’s Witnesses had not stopped their activities, they wanted to do something dramatic to draw the attention of Canadians to their plight. And after months of preparation their plan was ready to be put into effect. On a late November night, in cities and towns all over the country, more than a thousand Jehovah’s Witnesses went from door to door distributing a small booklet: The End of Nazism: Its Fall Is Certain. Read the Proof Herein. More than thirty pages long, the booklet contained, yet again, an extended attack on organized religion in general and on Roman Catholicism in particular. The Church of Rome, Hitler, Mussolini, and Soviet leader Josef Stalin were all identified as working together with one aim in mind: the victory of Satan over Christ at the final battle at Armageddon, as foretold in the Bible. In the United States, the booklet said, the church hierarchy and the American Legion had merged with a similar goal in mind, while in Canada Catholic-Fascist conspirators, led by Adrien Arcand ‘and directed from the Vatican, intended to seize the Canadian government during 1940.’[253] Mankind was being duped by organized religion, of which Catholicism was the worst offender, followed by Protestantism, then Judaism.[254] Typically, the booklet showed no restraint in its description of the Vatican. For more than sixteen centuries, The End of Nazism revealed, that religious institution carried on ‘the most wicked persecution of human creatures that has ever blackened the pages of history.’ The record of the Roman Catholic church was one ‘too terrible to find complete description in human words. That record is conclusive proof that the Papal system is not Christianity, but is carried on in defiance of God.’ In these circumstances it made sense, as the booklet then went on to suggest, that it was organized religion and the Roman Catholic church that were responsible for destroying freedom of worship, in Nazi Germany as well as in Canada and the United States. There was only one remedy for mankind, and that was the Theocratic Kingdom of God.[255]
24 ‘The worship of Jehovah God is the only true worship.’ Accordingly, being one of Jehovah’s Witnesses was ‘the only way to life, physically and spiritually. Understanding this truth you can see why conscientious Christians can not and will not bow down to creatures or things, but they must and shall give their undivided devotion and service to the Almighty God and his THEOCRATIC King, Christ Jesus.’ To survive the great battles that were sure to come, humankind had only one choice, to come out now for God, for all but the righteous would perish in Armageddon. ‘The rulers of the earth have now forgotten God and turned to religion and are certain to go down in a very short time. Only the “great multitude” will survive, and will live forever on the earth,’ the booklet reported. ‘Then shall the earth become a glorious and blessed place in which to live. Turn your faces and your heart’s devotion now to the Almighty God and to his King, Christ Jesus, and live’[256] The End of Nazism advised.
25 Whether or not the Witness vision of a perpetual paradise for the righteous attracted many, or indeed any, new converts is hard to say. Some of the ideas expressed in the booklet were clearly wrong, the purported alliance between the Roman Catholic church and Adrian Arcand being one. Its content aside, the booklet caused a sensation, and drew public attention to the Witness claim of interference with their religious rights. The police were swamped with calls from persons protesting the distribution, but in general, the authorities had little success in apprehending the distributors. The few Jehovah’s Witnesses actually caught in the act claimed, most improbably, that they had found packages of the tract on their doorsteps and became so interested in the contents that they felt an urge to go out and share the material. This explanation was not readily believed, but only a few of the distributors were convicted.[257] The Jehovah’s Witnesses, while under ban, and during the period of the greatest enforcement of the Defence of Canada Regulations, had been able to smuggle into Canada tens, if not hundreds, of thousands of booklets, distribute those booklets to Jehovah’s Witnesses across the country, and then successfully deliver them to the homes of countless Canadians.[258]
26 The End of Nazism was only one of many periodicals distributed by Jehovah’s Witnesses during the war years. What made it different was the scope of its distribution. The press gave the matter some attention and it is possible that the distribution caused at least one province, Saskatchewan, to stop charging Jehovah’s Witnesses under the Defence of Canada Regulations. It does not appear coincidental that immediately following distribution of The End of Nazism, the attorney general of Saskatchewan came to the conclusion that the overly strict enforcement of the Defence of Canada Regulations had little to commend it, especially where the Jehovah’s Witnesses were concerned. The same attorney general who had urged action against the group in the weeks before the ban now observed that rigorous enforcement created martyrs and did very little good. Local police were therefore advised to enforce the law only in flagrant cases and to be guided by a general policy of moderation, and that practice was followed.[259] For all intents and purposes the ban on Jehovah’s Witness activity in Saskatchewan was over.
27 However, the enforcement of the regulations continued elsewhere in Canada, as did convictions, although, as time went on, some local magistrates began to consider more thoroughly cases brought before them. These judges would not convict an accused unless the crown established beyond a reasonable doubt that the literature Jehovah’s Witnesses were caught distributing could be identified as a product of an illegal organization. The fact that a pamphlet referred to ‘Jehovah God’ and to the ‘Jehovah’s Witnesses’ was not enough, in the absence of other identifying information, to convince some judges that it was a Witness publication, a point that some crown attorneys recognized, on strictly technical grounds, as being legally correct.[260] Indeed, at this early point in the ban, the literature often identified the Watch Tower Bible and Tract Society, Inc., not the Jehovah’s Witnesses, as the publisher.
28 This was no small point. Notwithstanding the time spent before the war in drawing up the regulations and the experience during the First World War, clever lawyers had a way of turning what seemed to be clear provisions into ambiguous ones when it came time to actually enforce the regulations in court. The other problem was that the federal government had banned the wrong group.
29 The Jehovah’s Witnesses were nothing more than an unincorporated association of individuals with no status recognized by law. For legal purposes this association of individuals acted through three corporate bodies, the Watch Tower Bible and Tract Society, the Watch Tower Bible and Tract Society, Incorporated, and the International Bible Students Association. The Watch Tower Bible and Tract Society, formed in 1884, was the corporate entity that set the general policy and programs for world-wide Witness work. The Watch Tower Bible and Tract Society, Inc., was organized in New York in 1909, and it was the corporate vehicle used by the Jehovah’s Witnesses for their work in the United States. As well, it directed the publishing activities of the organization in the United States and internationally, and also directed Witness missionary and educational work. For the purpose of holding title to property in Canada, the International Bible Students Association of Canada was federally incorporated in 1926. However, the result in law of having banned only the unincorporated association of individuals, the group known as the Jehovah’s Witnesses, was to leave these other related groups technically free to go about their business. In fact, even though the International Bible Students Association had not been banned in July 1940, the property it held had been seized. The failure to ban the legal corporations made a difference when Jehovah’s Witnesses were actually brought to trial. Something was needed to prove their membership in the banned group, and some of the magistrates who were hearing the cases refused to convict unless a nexus could be legally drawn.
30 Within days of the ban the RCMP realized that they had erred. RCMP commissioner Stuart T. Wood wrote the minister of justice on 10 July 1940 and recommended that the International Bible Students Association also be proscribed.[261] It would take the government some time to recognize the significance of Wood’s point, and it was not until 17 January 1941, following numerous appeals for action from the attorney general of Ontario, that a new order-in-council was passed adding the Watch Tower Bible and Tract Society and the International Bible Students Association to the list of banned groups.[262] In the meantime, the custodian of enemy property attempted to circumvent the lacuna in the Defence of Canada Regulations by reaching an agreement with Hayden Covington, who was now fully in charge of all U.S. Jehovah’s Witnesses' legal affairs.
31 The agreement provided that the Jehovah’s Witnesses would transport their movable property to the United States and that their real property would be held in trust pending ultimate disposition. The custodian apparently believed that elimination of the group’s physical presence in Canada was the next-best thing to proscribing the associated corporate bodies, something that was out of its control. If this was the goal, it failed, and the authorities realized as much when they eventually outlawed the Watch Tower Bible and Tract Society and the International Bible Students Association.[263]
32 However, even after six months the authorities had yet to get it right. These two organizations were part of the Jehovah’s Witness corporate network, but another corporate body, the Watch Tower Bible and Tract Society, Inc., had been left off the list. It was added at the end of the month. At the very least, it took from the beginning of July 1940 to the end of January 1941 for Department of Justice and RCMP officials to come to grips with the basic corporate organization of one of the banned groups, even though all this information was available to the public in government registry offices. There is even some question about whether the RCMP ever really understood whom they were dealing with. The ‘connection’ between the Jehovah’s Witnesses and the Seventh-day Adventists was still being explored well into the war. Obviously there was none, but the fact that the question had to be asked suggests that the quality of RCMP intelligence about the Jehovah’s Witnesses left something to be desired.[264]
33 Indeed, in tracking down and suppressing the Jehovah’s Witnesses the RCMP was way out of its depth. The Jehovah’s Witnesses were, according to the 1941 annual RCMP report, ‘the cause of endless work, second only to the Communist Party of Canada.’ In ‘their misdirected religious fanaticism,’ the report continued, ‘the members still remain active.’ Their activities, the report concluded, while not directed towards sabotage, constituted a danger to the state if not controlled.[265] For his part, Commissioner Wood wrote, in a widely distributed article, that the Jehovah’s Witnesses were the ‘active enemies of Christianity and Democracy.’[266]
34 As long as the ban was in force the RCMP was determined to enforce it. Following distribution of The End of Nazism, members of the force across the country were ordered to investigate. Their search for the perpetrators of the crime was, in a word, absurd. In some communities anyone known or believed by the police to be a Jehovah’s Witness was interrogated about his or her whereabouts on the night in question. In some cases, search warrants were obtained, but when executed nothing was found.[267] The police did have some successes. In mid-December 1940 The Globe and Mail reported some efficient police work in nearby London, Ontario. There, Joseph Hughes, sixty-nine, was picked up by the police for distributing Jehovah’s Witness literature. Soon enough, he had his day in court. Crown prosecutor A. H. Norman described the accused as a ‘stupid follower’ of the Jehovah’s Witnesses, and the magistrate sentenced him to thirty days or a fine of $50.[268] Many of the charges that did result in a conviction fell somewhat short of conclusively establishing that anything but a nominal offence had taken place. One member of the sect whose membership could not be proved was charged and convicted under the Trading with the Enemy Regulations on the grounds that he was in possession of a record player originating from the Jehovah’s Witnesses in the United States, received by him long before the ban was imposed.[269]
35 Distribution of periodicals was one way of bringing the Witness message — and plight — to the attention of Canadians. Another means was by taking the message directly to the attention of the representatives of the people, to politicians at all levels of government. Numerous documentary collections at the federal and provincial archives establish that no effort was spared by individual Jehovah’s Witnesses to make their case in the halls of government. Thousands of letters were mailed, appealing for the restoration to the Jehovah’s Witnesses of freedom of worship. As almost all of these letters were unsigned they received little attention — except from the RCMP. ‘These letters are obviously the product of above-average intelligence,’ wrote one RCMP officer. The letters, like the distribution of The End of Nazism, the RCMP believed, revealed a highly organized campaign. Accordingly, RCMP officers were instructed that one of their primary objectives, when searching suspected Jehovah’s Witnesses, should be to keep an eye out for a copy of a Witness directive on this letter-writing campaign, which, ‘in view of the facts,’ the RCMP asserted, ‘must exist.’[270]
36 The RCMP allocated significant resources for investigation of the conspiracy. Constable J. Fossum in Saskatchewan found himself, in the early winter of 1941, assigned to exactly this chore. Apparently an anonymous letter had been sent to some prominent politician, protesting against the restrictions on Jehovah’s Witnesses' liberties. The letter was passed on to the RCMP, which determined that it had been sent from the Milleton District. Constable Fossum was thereupon ordered to find the letter-writer. On 24 March 1941 Fossum made his report. It was very unlikely, he said, that the letter was written in the district. Fossum could only find one typewriter, and it was not of the type on which the letter in question had been composed. ‘Because of this fact,’ Fossum concluded, ‘and the fact that the letter appears to have been composed by an educated person and experienced typist, I am reasonably satisfied that the letter originated elsewhere and was merely sent to this district for mailing.’[271]
37 Constable Fossum’s assignment was far-fetched enough, but some of his fellow officers, such as Constable H. F. Price, had it worse. Someone wrote the minister of agriculture with the usual Jehovah’s Witness complaints, and he turned the letter over to the RCMP, who assigned Price to the case. As the letter was postmarked in New Westminster, the RCMP reasoned that one way of tracking the culprit down was to identify where he or she purchased the writing paper. A check was, therefore, made of all the stationery stores in the city. Price reported that the stationery used was a common type, but that the envelope was unusual, and, indeed, none of the stores visited had that particular envelope in stock! ‘Enquiries will be continued in this connection and reports submitted when additional information obtained,’ the report concluded.[272] Another constable devoted his time to searching for the source of some Jehovah’s Witness rubber bands. The RCMP records that have been released do not indicate that a single one of these investigations resulted in an arrest, much less a conviction.
38 The available evidence suggests that the RCMP gave credence to rumour and reported it as ‘reliable.’ For example, contrary to everything that is known about Witness opposition to the war, RCMP headquarters was advised in December 1942 about a particularly nefarious plot to undermine the military effort. The Jehovah’s Witnesses were, the report said, ‘taking steps to conduct a campaign to discourage war salvage collections, particularly scrap metal. Insofar as the latter is concerned, they intend to collect it and conceal it in order to prevent the Government authorities from obtaining same for use in the production of war materials. This activity has not materialized as yet.’[273] Nor did it ever materialize, for this was not the way Jehovah’s Witnesses made known their opposition, not to the war itself, but to any call on them to participate in it.
39 Overall, the investigation and prosecution of the Jehovah’s Witnesses during the first part of the ban is a tale of incompetence and stupidity. The work of the RCMP was almost completely ineffectual, while the failure of the Department of Justice to come to grips with the corporate structure of the Jehovah’s Witnesses suggests, at the very least, that officials in the department were not involved when the initial decision to ban the group was made. Nor were they involved as Witnesses were prosecuted after the ban was imposed. There was a law on the books, but practically speaking some Canadians were not affected because its administration varied from place to place.[274]
40 But if the investigation and prosecution of the Jehovah’s Witnesses is not a story of police work at its best, it is a tale that testifies to the strength of the human spirit. Jehovah’s Witnesses put their freedom on the line and went out in the streets with their Bibles in hand in order to fulfil the duty they believed they owed to God. It was not popular to be a Jehovah’s Witness, but they persevered in what they believed. And as they did, their numbers grew. More important, their steadfastness served them well, not just when they went from door to door, but as they did everything they could to persuade the government of Canada to reconsider its decision and remove the ban.
Questions and answers
1 Within days of the ban, questions about it were being asked. Angus MacInnis, the CCF member for Vancouver South and son-in-law of party leader J. S. Woodsworth, waited for days for Justice Minister Lapointe to return to the House so that he could directly question him. On 16 July 1940 MacInnis was advised that Lapointe was not likely to return for some time. The gentlemanly spirit of Parliament in the 1940s forbade, of course, any reference to where Lapointe was and why, but MacInnis nevertheless insisted on an answer to the question: Why had the Jehovah’s Witnesses been banned? The prime minister gave the minister of justice’s reply in a prepared statement he read to the House: it is not government policy to disclose confidential information upon which a recommendation under the Defence of Canada Regulations is made by the minister.
2 The literature of the Jehovah’s Witnesses, the prime minister said, disclosed a belief that man-made authority or law should not be recognized when it conflicts with the Bible as interpreted by the Jehovah’s Witnesses. Furthermore, the Jehovah’s Witnesses were opposed to war and they refused to salute the flag. The general effect of their literature and practices was, ‘amongst other things, to undermine the ordinary responsibilities of citizens, particularly in time of war.’[275] This then was the explanation for the suppression of the organization, and it was the explanation, with one or two modifications, that the Department of Justice repeated whenever the question was asked why the Jehovah’s Witnesses had been banned.[276]
3 King would not discuss the Jehovah’s Witnesses in Parliament again. He had not initiated the ban of this group, or of any of the others on the proscribed list. Rather he had gone along with these developments at the behest of his minister of justice, whom he considered indispensable to maintaining domestic tranquillity while the country was at war.[277] King also had other more pressing concerns. Piloting the NRM Act through the House of Commons in June 1940 captured much of King’s attention because of Quebec fears that the legislation was a prelude to conscription. The prime minister was also intimately involved in such matters as the negotiation of the Ogdensburg Agreement and the creation of the Permanent Joint Board of Defence. Throughout the spring and summer of 1940, King was occupied with matters of far greater importance than the Defence of Canada Regulations. And this remained true in the years that followed. King was, nevertheless, remiss in not relieving Lapointe of his portfolio when it became clear that the minister of justice was no longer fit for the job. But political exigencies, King believed, required that Lapointe remain a part of the government. However, in appointing a House of Commons committee to investigate the Defence of Canada Regulations, King was attempting to contain the damage.[278] The new committee, the Special Committee on the Defence of Canada Regulations, met almost immediately.
4 One of the first submissions it received, on 8 July 1940, was from Jehovah’s Witness lawyer J. L. Cohen.[279] The unsolicited brief Cohen prepared was simple but profound. In it Cohen identified what would become the principal objection to internments under Regulation no. 21 — that the advisory committees were one-person committees, not impartial quasi-judicial tribunals. Cohen was willing to concede for the sake of argument the need during a national emergency to deny temporarily the right of public trial but he argued that ‘no committee of a single person … and particularly no committee of a person whose identity to the public is solely that of official authority, can give to a board of review, and through it to the public mind, that aspect of broadness and completeness reasonably necessary to compensate for denial of trial in a court of record.’[280] Accordingly, Cohen recommended that a proper appeal board be appointed to hear internment appeals.
5 Jehovah’s Witnesses were not being interned, but Cohen had no way of knowing that they would not be rounded up. His call for amendments to the appeal procedures was sensible and was eventually implemented. Equally sensible was his recommendation that decisions under the Defence of Canada Regulations declaring an association or society illegal be subjected to some sort of third-party review. Such review was already provided for in the case of individuals ordered interned under Regulation no. 21, notwithstanding the deficiencies Cohen and others identified in the procedure. There should, Cohen said, be a similar procedure in the case of an association or organization proscribed under the regulations, for by banning a group the government was, in effect, constructively holding individuals liable for the activity of others.
6 With respect to the national and international situation, Cohen acknowledged that the state may need, on occasion, to act precipitously. However, once the particular national or international emergency subsided, the circumstances that initially compelled the use of the extraordinary power should be subject to review. In the case of an order under the regulations proscribing an entire group, the need for review was magnified, for the broader the sphere or interest affected or injured by the decision, the greater the need for some compensating procedure of review or appeal that could, as far as possible, correct any mistake that might have been made.
7 Review or appeal of executive action was fully compatible with the principles of British justice and the common law. Indeed, the more effectively a legal procedure provided for means of correcting errors, the more certain it was that the orders made and maintained were in the interests of the community. Conversely, the greater the extent to which any legal procedure was without means of correcting mistakes, the greater the opportunity for excess or injustice. The fact that an arbitrary power was exercised judiciously was irrelevant. Regulation no. 39C did not provide any procedure for review, appeal, or reconsideration. The only remedy available to a proscribed organization was effectively out of reach. Orders-in-council were not, at the time, subject to judicial review; thus, a group could be deleted from the banned list the same way it had been added to it — by another executive order, which in the circumstances was highly unlikely to be issued.
8 Cohen also complained about the process leading up to the decision placing the Jehovah’s Witnesses under ban. That decision, Cohen said, was made on the basis of information received from only one side, despite the prior and persistent pleas of the Witnesses for a hearing. It was evident, Cohen declared, that a decision taken on the basis of incomplete information would, in all likelihood, be incomplete, if not incorrect. Regulation no. 39C made the situation worse because it made it illegal for members of the proscribed group even to consult amongst themselves without offending the law. And, as Cohen’s ignored pleas for a hearing in early July revealed, the government had no intention of communicating with the representatives of groups that were, or were about to become, enemies of society. Furthermore, without a review procedure the proscribed group had no way of knowing what it had done that had led to the state action in the first place. The entire situation was a classic ‘catch-22,’ and Cohen urged the immediate establishment of a committee to review the decision that placed the Jehovah’s Witnesses under ban.
9 The special committee met a number of times over the summer of 1940, and on the day before Parliament adjourned in August, the committee made its first report.[281] The contents of the report were not revealed in the House of Commons, and all the hearings of the committee had been held, for security reasons, in camera. What was made public was the promise of the minister of justice to bring in further amendments.[282] Lapointe kept his word.
10 The most important of these amendments was a change to Regulation no. 21. In May, that regulation had been amended so as to require the minister of justice to report to the House of Commons all the cases in which he declined to follow the recommendation of an advisory committee concerning an internment appeal. Additional safeguards were now introduced. Now the minister had to report every four weeks while the House was in session, and he was required to give details not just of those cases in which he had declined to follow an advisory committee recommendation, but also of the numbers of persons detained under the regulation. This was an important development, for it placed a positive duty on the minister of justice to keep Parliament, and the country, informed about the number of internments and the status of internment review.[283]
11 Another important amendment provided that the advisory committee, on receiving notice of an individual’s objection to internment, should give ‘such directions as may be convenient for the prompt and just disposition of the objection.’ The advisory committee was now also required to give the objector within a reasonable time prior to the hearing ‘the grounds on which the order has been made against him,’ as well as such particulars ‘as are, in the opinion of the Committee, sufficient to enable him to present his case.’[284] It was not, however, clear that these changes had much of an effect and in practice many internees received only the most cursory particulars about the reasons for their internment.[285]
12 Another important recommendation of the Special Committee on the Defence of Canada Regulations led to a decision to use a new consolidation of the regulations.[286] There had been so many changes that it was almost impossible for crown prosecutors to keep up. For the public, with no real access to the regulations, the task was doubly difficult. This amendment, like those requiring the minister of justice to make timely reports to the House on internment appeals and to provide persons appealing their internments with the grounds for their detention, was at least in theory, progressive.
13 The special committee had not, however, been forthcoming in providing details about why the various communist and Fascist organizations had been outlawed, although it did not take a lot of imagination to come up with reasons in favour of these orders. The organizations of the right were agents of an enemy power, and while the Soviet Union was not an enemy, the Communist Party of Canada, in its slavish adherence to international communist policy manifested in the dissemination of defeatist propaganda and other anti-war activity, could not be tolerated. Very few people, in the first two years of the war, questioned the legitimacy of placing communist and Fascist groups under ban. As a result, there was very little immediate criticism of the internment of communist and Fascist activists and the suppression of their activities.
14 The Jehovah’s Witnesses presented a slightly different case. They were not the agents of a foreign power, and while the RCMP had received and continued to receive scattered reports that Witnesses through their conscientious objection to war were impeding recruitment, there was really no solid evidence of that. The explanation for the ban that the prime minister read in the House was weak, and considered point by point it was not enough to justify, or even explain, the prohibition of the group. More details about the reasons for the banning of the communist and Fascist organizations were hardly necessary at this point in the war. A more complete explanation about why the Jehovah’s Witnesses had been outlawed was imperative. An organization of Christian men and women had been declared illegal because they believed that God’s law came first? Not only was a better explanation in order, so too was some mechanism by which the Jehovah’s Witnesses and the other outlawed groups could make representations and have the bans reviewed. This is what Cohen asked for and this, the Witnesses believed, would completely vindicate their group.
15 In making these demands to the special committee the Jehovah’s Witnesses stood alone. The public mood during the summer and fall of 1940 was such that there was little interest in Witness rights — or anyone else’s rights, for that matter. The empire was in danger, and that was what mattered, not the rights of Jehovah’s Witnesses, seen by many as an unpatriotic, shrill, and intolerant religious group. In August 1940, just as the Special Committee on the Defence of Canada Regulations was completing its work, a four-part series published in The Ottawa Citizen examined the banned organizations and concluded that without exception these groups had been trying to ‘destroy democracy in Canada from within.’[287] So persuasive was the series, which was short on fact but filled with speculation and conjecture, that the Office of Public Information, the official wartime news agency, requested and received permission to send the articles to newspapers across the country for simultaneous publication. The articles were, according to the director of public information, ‘based on documents’ and had been ‘read and pronounced correct in substance and detail by the authorities.’[288] One of the articles, published on 10 August 1940, addressed the question of why the Jehovah’s Witnesses had been banned.
16 It was not because of the religious beliefs of its members, the newspaper explained, but because the subversive activities of the organization were detrimental to Canada’s war effort. Members of the group were, according to the report, ‘financially powerful’ and against war, organized religion, and the Red Cross. They did not salute the flag and played gramophone recordings of speeches that, among other things, bitterly denounced organized religion, churches, and the government. Wherever there are followers of the Jehovah’s Witnesses, the paper asserted, ‘there is trouble.’[289] Whether or not any of these reasons justified the state action was not considered in the article. Implicit, however, was the suggestion that the sect was rightfully banned.
17 Whether the Defence of Canada Regulations special committee agreed or disagreed with this sentiment, however, was almost moot. The committee had not considered the whole matter of banned groups in its first report, and it was not yet known whether Parliament, when it returned in the fall, would direct the special committee to resume its inquiry into the operation of the regulations. In its August report the special committee recommended that another committee be appointed in the next parliamentary session to consider again the Defence of Canada Regulations as well as to review the law relating to naturalization and deportation.[290] But whether or not such a committee was appointed was a decision for the government to make.
18 A memorandum prepared for the prime minister in the early fall of 1940, presumably to provide some basis upon which to decide whether or not to ask Parliament to establish another special committee, pointed out that public protests against the regulations had, with one notable exception, dramatically declined. The Jehovah’s Witnesses were the exception, and they were making all sorts of representations against the government.[291] In making their complaints, and there probably was not a single member of Parliament who had not received at least one Witness protest letter, the Jehovah’s Witnesses stood almost alone. Although nothing in this memorandum suggests that the plight of this group was sufficient reason for the appointment of another special committee, at the very least such an appointment would provide a response to charges of state interference in freedom of worship. Moreover, serious problems in the overall administration of the regulations remained, and the internment procedures, as the interdepartmental committee that initially prepared the draft Defence of Canada Regulations had anticipated, were a source of constant complaints. Further, there were political benefits to be reaped by referring the regulations to an all-party committee for review. On 27 February 1941, the government announced that it had decided to re-establish the special committee.[292]
19 The Jehovah’s Witnesses deserve some of the credit for this decision. Distribution of The End of Nazism attracted considerable interest in their cause, and a steady stream of letters poured in to government officials, cataloguing the group’s complaints. Freedom of religion was involved, and the Jehovah’s Witnesses had not suffered in silence. With the war hysteria of the previous spring at an end, the public was slowly awakened to the broad civil-liberties issues the Witnesses claimed were at stake. But to suggest that the Jehovah’s Witnesses had been able to attract significant public support would be incorrect. Mainstream groups were simply not interested in the Jehovah’s Witnesses and in their treatment by the federal government. (It is worth mentioning that their lawyer, J. L. Cohen, was a Jew whose other clients, mostly labour unions, were like the Jehovah’s Witnesses, unpopular organizations.) The Witness ban undeniably raised concerns about freedom of religion, but the only religious groups to display even the most remote interest in the Jehovah’s Witnesses were some of the non-conformist Protestant sects. What little support the Jehovah’s Witnesses initially received came from individuals and organizations somewhat removed from the mainstream. Simply put, the Witnesses were hard pressed to actively interest the Canadian public in the violations of their civil rights. Indeed, Canadians became interested in civil liberties only when, to use the words of the Communist party, the character of the war changed.
20 On 22 June 1941 Germany attacked Russia, bringing the Soviet Union into the war. Hitler’s intention to crush the Soviet Union in one quick campaign was his worst blunder of the war. In Canada, Communist-party leaders came out of hiding and announced that the ‘imperialist war’ had become a ‘just anti-Fascist war.’ Accordingly, Canadian communists became dedicated and enthusiastic pro-war supporters. Tim Buck and a number of other Communist-party chieftains who gave themselves up to the RCMP in August 1941 were briefly interned and then required to register and regularly report to the RCMP. The Communist party remained an illegal organization, but Canadian communists established the Dominion Communist-Labour Total War Committee. This committee urged the government to step up its prosecution of the war and urged the immediate introduction of conscription for military service overseas. This sudden burst of patriotism reflected loyalty to the Soviet Union, not to Canada. As the National Council for Democratic Rights, formed in 1941, explained, with Russia in the war a reassessment of the international situation was required. The National Council was the latest incarnation of the Canadian Labour Defence League and was also a communist front. Its leader was a disgruntled Methodist preacher converted to communism named A. E. Smith, and under his direction it tried to interest Canadians in civil liberties[293] — that is the civil liberties of communists who remained interned. But civil liberties are not just for communists, they are for everyone, and in making this issue their issue, communist activists contributed to a growing public interest in civil rights. The Jehovah’s Witnesses ensured that their objectives were kept in mind.
The death of Ernest Lapointe
1 These events took place in the absence of the person who had set them all in motion. By the fall of 1940 Lapointe virtually withdrew from active involvement in government. Some members of the press could see Lapointe’s decline for themselves. Grant Dexter, the well-connected Ottawa correspondent for The Winnipeg Free Press, observed in October 1940 that ‘the lines in his face are deeper and he has lost much weight, not only about the waist but in his face. His shoulders sag much more than I have ever noticed them and there is a hurt look in his big brown eyes. Indeed, there is an aura of sadness about Lapointe which is quite out of character.’[294]
2 Lapointe had become a symbol of French Canada in the national government. Behind the symbol there was little left of substance and much not to his credit. Lapointe’s support for Vichy France, for example, left a great deal to be desired, and so too did his immigration policies — he was opposed, for example, to Canada accepting refugees from Nazism. Justice Minister Lapointe cared little about individual rights. They were properly abrogated, he clearly believed, in the common good as dictated by what he considered to be the exigencies of war and the need to keep Canada united.
3 Charitably understood, his policies and practices can be interpreted as a product of a well-intentioned desire not to polarize French and English Canadians. At no time in his political life was Lapointe put to a greater test than during the Second World War. Lapointe had devoted his entire adult life to the creation of a balance between Quebec and the rest of Canada. World war threatened that balance. If continuing compromises were not made the country might fall apart.
4 In all of this the Roman Catholic church figured prominently. From the first day of the war the federal government realized that the church would be a source either of support or of disruption. Its initial support was obtained as a result of the government pledge not to introduce conscription. This was the foundation to good relations between the Roman Catholic church in Quebec and the Canadian state. In this context, by banning a nasty and unpopular group, the federal government eliminated a source of public disruption in Quebec and at the same time earned for itself some political points, necessary in view of the passage of the NRM Act and other related developments. Lapointe believed that the rights of the few had to be subordinated to the interests of the many. Individual liberty was of no matter to him: the future of the state was what was important, and his mission was to protect and advance the interests of Quebec. Jehovah’s Witnesses were irrelevant. They had no rights. It was as simple as that.
5 The carefully cultivated relationship between church and state was not without its benefits to Lapointe, and indeed to all of Canada. By July 1940 any early doubt about episcopal support had been swept aside as Cardinal Villeneuve became one of the staunchest supporters of the war. Such was his zeal for the war effort that some Quebeckers began calling him ‘le brigadier Villeneuve.’ The cardinal made speeches across Quebec and Canada, calling not just for co-operation with the federal authorities in the prosecution of the war, but for the fullest commitment and participation.[295] In August 1940, when the first registration under the NRM Act began Villeneuve issued a communiqué and a letter was sent to all of Quebec’s parish priests. ‘His Eminence, the Cardinal invites parish priests to do all they can to facilitate to the maximum degree possible national registration, in giving their parishioners the information necessary to the accomplishment, with exactness and submission, of all which is required of them by the public authorities.’[296] This intervention on behalf of the federal government was nothing less than extraordinary. It, like all the cardinal’s efforts in support of the war, made him an essential partner with Ottawa in the national effort. The Montreal mass held in early 1941 is a case in point.
6 With the assistance of the lieutenant-governor of Quebec, Eugene Fiset, Lapointe arranged for a huge mass at Notre Dame Cathedral in Montreal on 9 February 1941. Cardinal Villeneuve spoke first. His sermon condemned Hitler, praised Great Britain, and invoked God’s assistance for an Allied triumph.[297] The minister of justice said a prayer for peace. A similar service was held in all of the province’s fifteen hundred parishes, attendance being accorded fifty days' indulgence. When the ecclesiastical exercise was completed, Villeneuve, Lapointe, and all the other dignitaries in attendance reviewed Canadian troops as they marched through Montreal’s historic Place d’Armes. The affair was a huge and spectacular public-relations success. ‘Remarkably, Lapointe had succeeded in identifying the church hierarchy, at least, with the government’s war policy.’[298]
7 The next month, Villeneuve ordered every Roman Catholic church in the province to have read every Sunday, for the duration of the war, a prayer for victory and peace. Then in April 1941 Villeneuve instructed the clergy to encourage their congregations and the public to subscribe for war bonds. His participation in the war effort was simply outstanding. If, from time to time, he was able to capitalize on his relationship with Lapointe and resolve matters without public controversy, such as suppressing a small and unpleasant group or preventing the internment of isolationist priests,[299] that was only to be understood.
8 The minister of justice carried on to the best of his diminished ability to represent in Ottawa the wishes of the church, which were in his mind identical to the wishes of the people of Quebec. He lobbied vigorously for the appointment of Catholics to the cabinet,[300] and when any discussion of conscription began Lapointe made it crystal clear that he would never accept it. But Lapointe’s mission began to flag as his health declined, and his mental problems soon became exacerbated by serious physical ones. By the fall of 1941 Lapointe knew he had terminal cancer, and though he appeared occasionally in cabinet, his days were almost at an end. He entered hospital in early November and by the middle of the month it was clear that he was near death. On 15 November and then again on the 19th, King went to Montreal to see Lapointe. The visits were extremely moving for both men. Lapointe died in the early morning of 26 November 1941 in his hospital bed. Before he died he received a special benediction and full indulgence, obtained for him by Cardinal Villeneuve from Pope Pius XII and transmitted by Father Pie-Marie Gaudrault, the Dominican provincial who was Lapointe’s counsellor and confessor.[301]
9 ‘But for him,’ Mackenzie King confided to his diary just a few days before Lapointe died, ‘I would have never been Prime Minister, nor would I have been able to hold the office, as I have held it through the years.’ Lapointe was taken to Quebec City, where, at the Legislative Assembly, he lay in state. His funeral, held a few days later, was one of the grandest in the city’s long history. The cardinal delivered a brief and moving eulogy that, along with the rest of the proceedings, was broadcast throughout Canada. Lapointe’s body was returned to Kamouraska, the constituency that had sent him to Ottawa almost forty years earlier. Prime Minister King selected a new justice minister at Lapointe’s funeral, a well-regarded corporate lawyer, former bâtonnier of the Quebec bar, past president of the Canadian Bar Association, and one-time counsel to the Rowell-Sirois Commission. Whether Louis St Laurent’s policies would differ from his predecessor’s remained to be seen.
4. An Illegal Organization
1 If the Jehovah’s Witnesses were not the first item on Louis St Laurent’s agenda after he was sworn in as minister of justice in December 1941, it should hardly be surprising: the ongoing restrictions on the activities of the group were far from most politicians' minds. Even though the Special Committee on the Defence of Canada Regulations had been reconstituted, the Jehovah’s Witnesses still had not been given an opportunity to defend themselves.
2 Indeed, the whole question of banned groups had not as yet been considered by the special committee. Agitation to remove the Communist Party of Canada, the best known of the proscribed groups, from the banned list increased after Germany attacked the Soviet Union, bringing that country into the war; when these demands became pressing, King consulted St Laurent about what action to take. St Laurent was not in favour of lifting the ban.[302] This anti-communist attitude earned St Laurent important political points, not to mention the support of the cardinal of Quebec.[303] Villeneuve remained an important player on the political scene, and he kept up his contacts with both the prime minister and the minister of justice. His influence, however, began to wane. The cardinal would never enjoy the same rapport with St Laurent that he had had with Lapointe, but he would be consulted about important events affecting Quebec.[304]
3 The Jehovah’s Witnesses continued their efforts towards interesting the public in their plight, and at the same time, their numbers began to grow.[305] In the twelve-month period ending in September 1939 almost one million hours had been devoted to field service and more than 130,000 follow-up calls had been made. In 1944 almost two million hours of service were recorded and more than half a million follow-up calls were made.[306] There were thousands of new members, and they joined the mass letter-writing campaign to politicians of every party, in Ottawa and the provinces, complaining about and documenting the treatment Jehovah’s Witnesses were receiving.
4 Some members of Parliament began to press for an explanation, and the RCMP commissioner drafted a reply that was subsequently cited whenever the Witness ban was questioned. As the most complete statement explaining the government decision to impose the ban, it bears quoting in full:
5 This action was taken owing to the activities of their followers in stirring up animosity between all religions and what they term ‘man-made governments.’ All religions are regarded as ‘rackets’ and ‘Jehovah’s Witnesses,’ to use the name by which they are more commonly known, are definitely opposed to the Red Cross, describing it as the ‘devil’s work’ and ‘belonging to the devil.’ In its teachings of fanatical pacifism, Jehovah’s Witnesses urge their followers, particularly children, to refuse to salute the flag or stand when ‘God Save the King’ is sung. Jehovah’s Witnesses maintain that their object is the dissemination of Bible truths and their activities are guided by a peculiar interpretation of the Bible, thus giving the organization a religious complexion.
6 If the teachings of Jehovah’s Witnesses were confined to religious matters alone there would not be any particular grounds for concern, but they claim to recognize only a heavenly sovereign, maintaining that how could one who is wholly devoted to Almighty God and to His Kingdom under Christ Jesus, take sides in a war between nations, both of which are against God and His Kingdom.
7 Their literature has been the cause of much concern and it is of interest to mention that in an appeal case dealt with by the Court of the King’s Bench in the Province of Quebec some time ago, the judgement mentioned in part that ‘if the pamphlets mean anything they constituted an appeal to all to condemn and have a supreme contempt for every form of organized authority, whether civil or ecclesiastical.’ It is of interest to also mention that certain enemy aliens commenced to take an active part in the work of Jehovah’s Witnesses, obviously for the purpose of using the cloak of religion to justify their activities. Following consideration of the situation, it was decided that their activities could not be regarded as other than subversive and their organizations were therefore declared illegal.[307]
8 Notwithstanding these purported reasons for implementing the ban, by the late fall of 1941, RCMP interest in the Jehovah’s Witnesses began to decline and then disappeared. Inspector Leopold, who had overall responsibility for conducting intelligence operations against subversive groups, had more dangerous associations with which to contend.[308] Individual Jehovah’s Witnesses continued to be arrested, but they were far more adept at avoiding capture than they had been in the first years of the war.
9 More than anything else, the Jehovah’s Witnesses wished to legally challenge the ban and make a positive case for their legal right to be Jehovah’s Witnesses. If J. L. Cohen had, in this period, one overriding instruction, it was to find ‘an all-out test case.’[309] What attempts were made failed, for the only recourse was to challenge the constitutionality of the regulations in court, and there was absolutely no reason to believe that such a challenge had even a remote chance of success. With the group outlawed it could not be a party to a court action and it was very unlikely that a court would agree to hear the case. The only positive development for the Jehovah’s Witnesses was the upsurge of parliamentary interest in them following Lapointe’s death.
10 Reverend Ernest Hansell, the English-born, American-educated Social Credit member for Macleod, Alberta, became one of the strongest advocates of Jehovah’s Witnesses' religious rights. When the ban was first imposed Hansell described the Jehovah’s Witnesses as ‘all haywire’ and ‘all wrong.’ He quickly changed his opinion, not about Witness beliefs, but about the action of the Canadian government in outlawing the group. Canadians, he told the House of Commons in late November 1941, were not free to worship as they pleased. When asked to explain what he meant, Hansell cited the ban on the Jehovah’s Witnesses as a case in point. He also pointed out that it was not the only group to be opposed to war. The Doukhobors were as well, but not only were they left free to worship in their own way, they had not been banned.[310] As a marginal member of a marginal party, Hansell’s about-face on the issue of Jehovah’s Witnesses' religious rights did not provoke any governmental response. Nevertheless, his change in position was significant, for it reflected a general shift away from the unthinking acceptance of official explanation. Indeed, interest in civil liberties was again on the rise.
11 In retrospect the civil-liberties issue of the war that should have galvanized Canadians was the mass evacuation from the British Columbia coast of Canada’s Japanese followed by the virtual confiscation of their property.[311] Some Japanese attempted to challenge the government’s policy of dispossession in court. It had not been made a crime to be Japanese, as it had been to be a Jehovah’s Witness, so there was no legal barrier to bringing the case to court. The jurisdiction problem, however, remained. The legal question at issue was whether or not the custodian of enemy property was a servant of the crown and therefore accountable in exchequer court, the precursor to the modern federal court. The case came before Mr Justice J. T. Thorson, who, as minister of national war services, had been part of the federal cabinet that had initially approved the expulsion. Thorson took the question under advisement and did not release his decision for three years. In 1947, he decided that the custodian was not a servant of the crown and was therefore not accountable in the exchequer court.[312] The court upheld the order giving the custodian power to dispose of seized property as a necessary war measure simply because it had been passed in time of war and deemed necessary by the cabinet. There is no reason to believe that a Witness court challenge would have met with a different judicial interpretation. By the time Thorson released his reasons for the decision, the war had been over for two years. More important, as Thorson was undoubtedly aware, all the Japanese property had been sold. Canadian courts, for the Japanese, as for the Jehovah’s Witnesses, were not places to vindicate the unwritten British bill of rights. The only ‘rights’ Canadians had were those recognized by the courts, and that meant different things to different people at different times. The mistreatment of Canada’s Japanese raised hardly a civil-libertarian eyebrow during the Second World War.[313] As time went on the Jehovah’s Witnesses were able to attract more attention to their cause, but the suppression of their religious freedom was equally not a matter of public concern. Both the Japanese and the Jehovah’s Witnesses were virtually non-issues. There was but one civil-liberties issue during the war: the internment of communist activists and the suppression of communist free speech. The Jehovah’s Witnesses, nevertheless, persevered, and the government decided to again reconstitute the special committee.[314] The special committee began to hold hearings within weeks of its appointment, and in due course the Jehovah’s Witnesses received an invitation to attend and make representations.[315]
12 The job of the special committee was to investigate the reasons and continued justification for the banning of various groups. It therefore needed to know why the government had initially acted in the way that it had. In the case of the Jehovah’s Witnesses, special-committee members were supplied with a ‘secret’ explanation for the ban, prepared either by the Department of Justice or by the RCMP.[316] The document described the Jehovah’s Witnesses as ‘zealots,’ and claimed that they stirred up animosity among religious groups. Jehovah’s Witnesses regarded other religions as ‘rackets.’ They were, moreover, ‘fanatical pacifists,’ and their refusal to salute the flag caused resentment among patriotic Canadians. The report noted that enemy aliens became Jehovah’s Witnesses after the war began in order to use the ‘cloak of religion to justify their activities,’[317] and that the literature of the group revealed a ‘supreme contempt’ for every form of organized authority. Their theology was ‘ecclesiastical Bolshevism,’ and much of their literature consisted of tirades against the Roman Catholic church. ‘The action taken in suppressing this organization was,’ the secret report concluded, ‘therefore, fully justified.’[318] It was not surprising that many of the questions raised by members of the special committee concerned exactly these points.
13 The Jehovah’s Witnesses did not, of course, receive a copy of the secret report and so had to base their defence solely on the reasons given in the July 1940 statement Prime Minister King had read to the House of Commons.[319] The thrust of that statement was that the ban was imposed because the literature of the group revealed that Jehovah’s Witnesses did not obey man-made law where it conflicted with God’s law, that they refused to salute the flag, and that they opposed war. All of this, Lapointe’s statement declared, had the effect of undermining the ordinary responsibilities of citizens, particularly in time of war.
14 Two Jehovah’s Witnesses came to testify on behalf of the group. The principal spokesman was Charles Morrell, the retired former secretary to the chief justice of Canada, Sir Lyman Duff. Although not a lawyer, Morrell was well versed in the law.[320] Preparations for the hearing were obviously thorough, and the session began with the distribution of a lengthy printed brief in which the Jehovah’s Witnesses attempted to rebut the case they presumed led to the ban.[321] Morrell, who spoke calmly and dispassionately, appeared almost to welcome the barrage of questions directed to him by committee members.[322] The Witness spokesman confirmed that Witness literature revealed that they believed that God’s law was superior to human-made law. And in their brief, with one biblical citation after another, the Jehovah’s Witnesses attempted to prove that this was true. The brief also quoted Blackstone, the eminent English judge and legal historian, with approval. The law of God, Blackstone had written in his commentaries, ‘is binding over all the globe in all countries at all times; no human laws are of any validity if contrary to this … human laws are only declaratory of, and act in subordination to, the former.’[323] The duty of a true Christian living in the secular world was, as Jesus had said, simple. Render unto Caesar the things that are Caesar’s and unto God the things that are God’s. It was all in the book of Matthew. Jehovah’s Witnesses willingly obeyed the law of the land except where that law was opposed to the law of the Lord. And there was nothing subversive about that.
15 There was also nothing subversive about the second reason for the ban, their refusal to salute the flag. That too was the law of the Lord. Exodus said as much. What this scriptural provision meant to Jehovah’s Witnesses, they explained, was that they could not salute any graven image, for to do so would be to break their covenant with God. There was also no difference, the brief pointed out, in making a man salute the flag or salute the leader. Both, whether in Canada where the flag stood for freedom or in Germany where ‘Heil Hitler’ stood for Fascism, were equally invidious if compelled by the force of the state.
16 The opposition of some groups, such as the Mennonites and Quakers, to the war resulted in public admiration, not condemnation. Yet, where the Jehovah’s Witnesses were concerned, the opposite was true. The brief also argued that the charge that their literature was subversive was without evidence. Equally baseless was the claim that the group’s activities undermined the prosecution of the war. Point after point, the brief systematically demolished the government’s purported case. In his oral evidence, Morrell rejected a number of charges against the group, including that it had been infiltrated by enemy aliens intent on using it as a front for their subversive work.
17 Both the brief and Morrell also went on to extensively catalogue some of the abuses of freedom of religion caused by the ban. Men and women were being sent to jail for meeting in private homes and studying the Bible. By this point in the war, hundreds of Jehovah’s Witnesses had, at one time or another, been sentenced to terms in jail. Property had been seized, and no provision was available to obtain its return. Not only was Witness property out of reach, but so too was a means of reviewing the order that had placed the group under ban. As a result, the rights of religious worship of thousands had been denied. Morrell told the committee why he thought the Jehovah’s Witnesses had been banned: because of Satanic opposition manifested in the activities of the Roman Catholic church.[324] There was, Morrell said, only one remedy: remove the ban. In all, Morrell testified for five hours, and he later reported that the hearing was fair. The Jehovah’s Witnesses waited with some confidence for the result.[325]
18 The ban on the Jehovah’s Witnesses was not the only issue to be considered by the special committee, nor was it the issue that attracted the most public attention. The plight of Canadian communists was of greatest public concern, much more so than that of the Jehovah’s Witnesses, as became clear when representatives of the Toronto Civil Liberties Association came to testify. There is nothing in the brief that this group filed to indicate that the Toronto Civil Liberties Association was concerned with either the Jehovah’s Witnesses or the Canadian Japanese. ‘Perhaps the most important topic at the present time is the illegality of the Communist Party,’ the brief declared, and it went on to strongly urge the federal government to restore full liberty to Canadian communists.[326] Delegates from the Communist party also attended and gave evidence, impressing some members of the special committee with their dedication to the war effort.
19 Altogether the special committee held twenty-six meetings and heard oral evidence and received numerous written submissions. In early June the committee issued an interim report[327] followed by two more later in the month.[328] A majority of committee members recommended that the Communist party be deleted from the proscribed list. Needless to say, the members of the special committee did not support communism: it was felt that with the Soviet Union now in the war the subversive activities of domestic communists had stopped, and a ban was no longer necessary to suppress this work. It had been justified, the special committee said in its final report, but it was no longer so.[329] The same reasoning to the same end also applied to the Jehovah’s Witnesses and their various affiliated groups. Changed conditions, the special committee reported, made it desirable to amend the regulations to remove the bans.[330]
20 It was now up to the government to act. Prime Minister King confided to his diary concern over the political effect of implementing the committee’s major recommendations in the province of Quebec.[331] The decision was, however, largely Louis St Laurent’s to make. The parliamentary committee had demonstrated in its work, and then in its recommendation, that there was no case for the suppression of the Jehovah’s Witnesses: this finding was unanimous. Despite what the committee said, there had been no case in 1940 and no case had been established since. If anything, the opposite had been shown to be true and it was now time to lift the ban. This was really the critical distinction between the Communist party and the Jehovah’s Witnesses. There had been reason to ban the former, but there had never been any reason to ban the latter. The decision to suppress the Jehovah’s Witnesses had been wrong since its inception. That wrong needed to be made right. This decision would not, however, be made for more than one year, for it was one recommendation (removing the ban on the Communist party being the other) that St Laurent refused to accept.
21 While he would not accept the recommendation, however, he effectively ended the suppression of the Jehovah’s Witnesses and the various communist groups. The Labour Progressive Party (LPP) would be allowed to operate even though it was well known as nothing more than a Communist-party front. The Jehovah’s Witnesses continued to go about their business, but prosecutions dramatically declined. Indeed, the apparent lack of interest on the part of federal authorities in the enforcement of the Defence of Canada Regulations, as well as the great differences in interpretation and administration of the regulations between provinces, so annoyed Ontario attorney general G. D. Conant that on 19 August 1942 he wrote St Laurent and advised him that the Province of Ontario would no longer consent to prosecutions under the regulations.[332] Conant was as good as his word; federal Department of Justice papers show that starting in September 1942 Ontario crown attorneys began to routinely refer Defence of Canada Regulations prosecutions to the attorney general of Canada when consent to prosecute was sought.[333] When asked for advice, Department of Justice lawyers would agree to charges being laid but only where the evidence was so strong that a conviction was assured.[334] As a matter of political expediency, Louis St Laurent did not remove the Witness ban, and knowing that it was wrong he decided to take the easy way out. He would keep the ban on but act as if it was not in force. St Laurent had bowed to political pressure.
22 The struggle to remove the Jehovah’s Witness and Communist-party bans did not abate. If anything, the opposite was true. As in the past, the communist cause received the most public support. The communists did what they could to get the government to change its mind, and new-found friends, such as Premier Mitchell Hepburn, joined Tim Buck and others in asking Ottawa to remove the regulatory restrictions. Hepburn was no communist himself, but his relationship with Mackenzie King had so deteriorated that he would do anything he could to embarrass the prime minister. Louis St Laurent, however, remained firm. The Communist-party ban would not go. The only lenience in this regard was that in September 1943 Buck and the others were told that they no longer had to report monthly to the RCMP.[335] The Jehovah’s Witnesses kept up the pressure as well and in mid-February 1943 an important amendment to the regulations was passed.[336]
23 A new subsection was added that provided that ‘No person shall be guilty of an offence against this regulation by reason only of his attending a meeting the sole purpose of which is religious worship or instruction.’[337] The Jehovah’s Witnesses were not very satisfied with the change. ‘It is not an offence for a person to sit in his own home and adhere to the doctrines, but woe betide that person if he publishes in any manner what he believes, because then he would be guilty of “advocating or defending the acts, principles, or policy of an illegal organization.”’[338]
24 Police action in Montreal in the spring of 1943 illustrates this point. Each year, on Nisan 14, according to the ancient Jewish calendar, Jehovah’s Witnesses celebrate the Lord’s Memorial Day Supper, known to other Christians as the Last Supper (and celebrated on Good Friday), and to Jews as Passover. On that day, an important one to Jehovah’s Witnesses, those who have a heavenly calling, meaning those Witnesses who believe that their destiny is to live with God in heaven, assisting him in the government of a restored paradisical earth, partake in what is in effect holy communion. In 1943 this service was held on 19 April, and on that day police in Montreal decided to check local Jehovah’s Witnesses for national registration certificates. In the midst of their service police barged into Preston Hall, where the local Jehovah’s Witnesses had assembled, just as the amended regulations allowed them to do. The public outcry was enormous. The Winnipeg Free Press, for example, editorialized against the raid: ‘If we believe in freedom of religion, it should be freedom for all religions, not just the religions which are powerful enough to enforce their own freedom.’[339] The newspaper called on the government to rescind the ban.
25 The minister of justice defended the police on the basis that they could not have known that a religious service was taking place. ‘I would think it would be quite improper for the police to go to any of our churches here in Ottawa that are recognized as churches, that are known to be churches, and attempt to check up during a religious service the possession or otherwise of certificates of registration.’[340] This meeting, however, St Laurent said, ‘was not taking place in a hall or church or any building that could be recognized from any exterior sign as being a place of religious worship.’[341]
26 Whether the police were blameless or not, and there were those who charged that the nature of the service was explained to them but that, nevertheless, they continued to disrupt the meeting,[342] the fact of the matter was that the incident moderated police practices. A memorandum was sent to RCMP divisions across Canada explaining what was meant by the religious-freedom amendment to the regulations. Even though the Jehovah’s Witnesses, International Bible Students Association, and the two Watch Tower Bible and Tract organizations were illegal, the memorandum advised the members of the force, it was not illegal for adherents of these organizations to have meetings and discuss and receive religious education. Therefore, it went on, before interfering in any way with meetings of this group, there must be conclusive evidence that the meeting did not have a religious purpose. RCMP officers were ordered, in all cases, to give the Jehovah’s Witnesses the benefit of the doubt, and not to disturb them.[343]
27 Individual Jehovah’s Witnesses nevertheless continued to issue a flood of appeals to politicians and the press to remove the ban. From the United States came representations through the Department of State and the American ambassador to Canada. Indeed, the American government became involved soon after the ban was first imposed and Jehovah’s Witness property seized. At that time J. L. Cohen and Hayden Covington, representing the group, entered into an arrangement with the custodian of enemy property regarding the disposition of Jehovah’s Witnesses' Canadian assets. When that arrangement was not carried out to the satisfaction of the Jehovah’s Witnesses, Covington appealed to the American secretary of state for assistance, who in turn asked the American minister to Canada, Pierrepont Moffat, to investigate.[344] There was not much that Moffat could do, and he soon reported as much.[345] What is most interesting about the correspondence is the seriousness with which the American government took Witness requests for help, and the effort placed on supplying Washington with complete reports.[346] The American government never went so far as to suggest that the bans be removed, but the very fact that it had interested itself in Jehovah’s Witnesses' Canadian affairs was significant and surely not lost on Mackenzie King.[347]
28 While the Americans had every reason not to make suggestions about Canadian domestic policy, members of Parliament were under no such restrictions, and soon after the release of the unanimous special-committee report recommending that the ban be removed, they began to criticize the government. The first occasion was on 22 February 1943, when the minister of justice announced the appointment of another special committee to consider and review the Defence of Canada Regulations. Why, St Laurent was asked, should another committee be appointed when the government had failed to implement the two most important recommendations of the last committee? Speaking of that, other members asked, why had the government not yet removed the Communist party and the various Witness organizations from the proscribed list? Maybe the reason the government decided to appoint another committee was to look into naturalization and deportation — none of the committees previously appointed had turned their attention to those issues although they were within their terms of reference.
29 But even if this was what the government now intended the special committee to do, questions remained about the failure of the government to act on recommendations that the same committee had made earlier.[348] It was especially interesting that many of the members of Parliament who were actually on the special committee contributed to the debate. They had heard the evidence. They had asked questions and received answers. They were the ones who made the two important recommendations, and where the Jehovah’s Witnesses were concerned, unlike the case with the Communist party, their recommendation had been unanimous. And now they wanted to know why the government had failed to enact the recommendations in their report. To be sure the Communist party, operating through its various front organizations, was loyal to the Soviet Union first, but democracy was hardly served by attracting the sympathy of the public to the party and its members and making martyrs out of them. According to Ralph Maybank, the slightly maverick member for Winnipeg South-Centre, the case against the Jehovah’s Witnesses was ‘laughable.’ Their attacks on the Roman Catholic church were not sufficient cause for the ban and it was wrong for the government of Canada to be in the business of seizing Bibles.[349]
30 Despite his parliamentary critics, the minister of justice advised the House that the Communist-party ban would stay. St Laurent announced that he had only released the communist internees because they promised to devote themselves to the prosecution of the war. There was, as a number of members of Parliament pointed out, an apparent contradiction. On the one hand he was releasing Communist-party leaders, but on the other he was retaining the proscription on the activities of their party even though, as St Laurent and everyone else knew, the party, with only the barest of disguises, was carrying out its usual work. The explanation for refusing to remove the ban was simple enough. The minister of justice had no intention of allowing the National Council for Democratic Rights to take credit for forcing the government’s hand, nor did he intend to allow the various groups to claim that by removing the ban the government was encouraging communist doctrine.[350]
31 Insofar as the Jehovah’s Witnesses were concerned, St Laurent was compelled to admit that he had nothing to say. Indeed, he claimed to know nothing at all about the group. All he could tell the House was that since becoming minister of justice he had not authorized a single prosecution against any of its members.[351] (This did not, of course, preclude any of the provincial attorneys general from authorizing prosecutions under the Defence of Canada Regulations.)
32 St Laurent’s action is easy to explain. There was little to be gained, and virtually nothing to be lost, by keeping the ban in force. The people of Quebec and the Roman Catholic hierarchy remained largely opposed to the activities of the Jehovah’s Witnesses, in the same way they opposed the Communist Party of Canada. By keeping the bans on the Communist party and the Jehovah’s Witnesses he could present himself in the province of Quebec as a defender of traditional values. But in each case the reality was not at all what it appeared to be. The Communist party may not have been operating under that name, but it was active. The Jehovah’s Witnesses remained an illegal organization but, practically speaking, the suppression had stopped. Both bans were style without substance. The existence of the two bans, however, played well in Quebec, and opposition pressure was not yet enough to tip the balance. Even when The Globe and Mail joined the fray of the civil-liberties side St Laurent could not be moved.[352] Until he was, both bans would remain.
33 The minister of justice made some inquiries about the Jehovah’s Witnesses following the February debate. St Laurent wrote Commissioner Wood in mid-March 1943 in an apparent attempt to find out about the Jehovah’s Witnesses.[353] Wood reported on 18 March 1943. Just three years earlier Wood encouraged the previous minister of justice, Ernest Lapointe, in the strongest possible terms, to take the strongest possible measures. In all provinces, Wood now reported, the RCMP would investigate provided that someone made a complaint. Where there was sufficient evidence that the Defence of Canada Regulations had been contravened, the matter was referred to the provincial attorney general, except in Ontario, where it was now directed to the federal Department of Justice. In practice, Wood admitted, there were few complaints, and, accordingly, the RCMP only rarely found it necessary to enforce the provisions of the regulations.[354] Within a matter of months regional commanding officers were ordered not to investigate or prosecute any member of the group without prior approval from RCMP headquarters in Ottawa.[355] In fact, if not in law, the Jehovah’s Witnesses were free to go about their work.
34 The Jehovah’s Witnesses, however, had no intention of accepting what was, after all, a political compromise made necessary because of the situation in the province of Quebec, even if that compromise gave them relative freedom in law. They did not just want the freedom to proselytize. They also wanted their legal status restored and their property returned. Members of Parliament had another opportunity to criticize government inaction in the summer of 1943. The occasion for the debate was the point-by-point parliamentary approval of the Department of Justice financial estimates. When the item before the House was the approval of expenses for the administration of the Defence of Canada Regulations, opportunity for discussion about the continued operation of the regulations themselves arose. John Diefenbaker spoke first.
35 The tide of war had changed and so had the ambitious Saskatchewan MP. At first he had equivocated where civil liberties were concerned. In the debate following the Nazi conquests of Western Europe, Diefenbaker declared that neither habeas corpus nor judicial review was affected by the internment provisions of the Defence of Canada Regulations. Both, he said, were merely being held ‘in abeyance.’ Diefenbaker was now opposed to the continuation of the Communist-party ban. Diefenbaker’s indignation, however, was saved for the continuing proscription on the Jehovah’s Witnesses. They were, he said, being persecuted. Diefenbaker knew of one young woman in Quebec who was arrested for distributing literature that contained biblical quotations. Her home was searched and she herself was taken away. It turned out that the woman in question was prosecuted under the censorship part of the Defence of Canada Regulations. The literature that she was distributing did not contain the printer’s name, which was an offence that did not require the attorney general to give pre-prosecution consent.[356] While Diefenbaker did not say as much, what this particular prosecution illustrated was that even if the ban on the Jehovah’s Witnesses was not enforced, and even if it was no longer an offence to meet and worship, the means remained to effectively undermine the activities of the group. Diefenbaker demanded to know why the ban remained.[357] These remarks were echoed by parliamentarians of all parties.[358]
36 Once more St Laurent advised the Commons that he had no intention of removing the Communist-party ban. Besides, he disingenuously explained, he did not have the authority to do so: only the cabinet, which had first passed the ban, could remove it. While what St Laurent said was technically correct, his recommendation to remove the ban was all that was required for it to go. Significantly, St Laurent pointed out that the House could always pass a resolution adopting the recommendations of the special committee, which recommended that the Communist-party ban be removed. If it did so, St Laurent would consider it his duty to recommend that the governor-in-council implement the recommendation. St Laurent was shirking his responsibility. Parliament had not been given the opportunity in July 1940 to vote on the Witness ban. The federal cabinet made that decision all by itself. It passed the ban, it had asked the special committee to examine it, that committee had unanimously recommended that the ban be removed, and it was up to the cabinet to implement that recommendation. Anything else was a sham.[359] St Laurent knew as much but he remained opposed. Parliament had not adopted the special committee’s report, he told the House of Commons, and, he now pointed out, there was ‘serious doubt’ whether such a resolution would receive majority support. Almost certainly the Quebec members would have voted against it.[360]
37 While St Laurent acknowledged being fully informed about the reasons for the Communist-party ban, he again indicated that he still knew very little about the Jehovah’s Witnesses. The minister of justice had, however, some ‘hearsay information,’ which he was willing to share with the House.
38 I have ascertained that this is a very large international organization and the amount of literature that is put out from the Watchtower on behalf of this organization is something fabulous; it runs into tens of millions of tracts and various other publications. It is also known that thousands of phonographs with recorded speeches of their great leader, the so-called Judge Rutherford, are being used to further enlighten the people. There are also, or there were, very large numbers of motor trucks fitted out with these phonographs and loud speakers to blare to the population at large the merits of that particular doctrine and the demerits of all religions. All religions, according to their theory, are satanic missions to establish and maintain the dominion of his satanic majesty over the whole earth. I do not imagine that was the reason why the regulation was originally enacted, but rather because their doctrine is, of course, against war. There is no war, according to their theory, that is anything but the machinations of the devil himself, and not only that, but their view is that human-made laws have no binding force upon the individual if they happen to contravene what these gentlemen regard as being proper human behavior. This doctrine is certainly subversive of organized society.[361]
39 That the minister of justice should say that Witness doctrine was subversive of organized society was really quite remarkable, since the special committee had examined that doctrine and had determined on the basis of first-hand, not ‘hearsay,’ evidence that this was not the case. It is even more remarkable that on the third anniversary of the ban St Laurent could not point to one case of a Jehovah’s Witness who had actually been convicted of subversive activities. When exposed to the light of day Witness literature was intemperate, but no one could reasonably say that it was subversive. St Laurent’s reply was without foundation in fact. None of the activities he described made the group subversive and it is impossible to believe that St Laurent did not know as much.
40 When debate on the Department of Justice item resumed so did the criticism. The House of Commons was now fully engaged by the government treatment of the Jehovah’s Witnesses. What had once been an issue that raised slight interest, if any, had now become a matter of pressing public concern. One reason was that the tide of war had turned in favour of the Allies. With considerable Canadian participation, Allied troops attacked Sicily in July 1943, and plans were well under way for a major landing in Western Europe. While the war was not yet won, that result was seemingly assured, particularly since the American war machine was fully cranked up. Although full civil liberties could not yet be restored, and no one suggested that they could, many members of Parliament felt that the time for the restoration of political and religious rights had arrived, and that the continued suppression of a group of Christians for worshipping Christ in their own way was intolerable. Men and women in Canada were being persecuted for their religious beliefs and, as one of the members of the special committee now revealed, the brief the Department of Justice had filed with the committee did not contain enough information ‘on which you could shut up a dog.’[362] That brief and St Laurent’s most recent statement to the House bore more than a few similarities. But one week later the minister of justice did not recant. Indeed, he endorsed his earlier remarks and added to them.
41 St Laurent reported that the Jehovah’s Witnesses were against war and would not salute the flag. In fact, the minister of justice pointed to a report from Saskatchewan in which it was alleged that certain Witnesses were persuading young men to claim conscientious-objector status when called before local mobilization boards. Removing the ban, St Laurent claimed, would be wrongly construed by both Jehovah’s Witnesses and the public. That, he added, would be ‘detrimental to the morale of this country.’[363] As The Globe and Mail pointed out, however, if individual Jehovah’s Witnesses broke the law, then they could and should be charged. It was quite wrong to outlaw an entire faith on the basis of individual acts. If the government feared the influence of Jehovah’s Witnesses on the war effort it should deal with members of the group on the basis of particular offences, not on the ‘supposition that some peculiarity of their faith might lead them to do some wrong.’[364] The Globe had now joined the civil-liberties side.
42 In and out of Parliament attitudes began to change, in large measure as a result of the unrelenting efforts of Jehovah’s Witnesses to draw attention to their case. The Calgary Herald suggested in an editorial that in banning the sect the government probably ‘made a mistake.’[365] This view was becoming the prevailing one, and while the minister of justice received some half-hearted support from fellow party members in the House for the continuation of the ban, St Laurent’s position was both untenable and unpopular.[366] Rumours about ecclesiastical interference in matters of state persisted. A Social Credit member, Victor Quelch, wondered whether ‘the action against Jehovah’s Witnesses is largely on account of their attitude toward the Roman Catholics, instead of their attitude of a subversive nature.’[367] The Department of Justice, however, rejected from the outset any assertion of improper intervention. When R. B. Hanson wrote and asked whether the Jehovah’s Witnesses were being ‘persecuted’ at the behest of the Roman Catholic church,[368] the Department of Justice was quick to deny it. ‘At the time that the Minister made the recommendation to cabinet, in July 1940,’ a senior Department of Justice official replied in August 1943, ‘the fundamental question under consideration was the effect of the activities of these people upon the war effort, in that they tended to undermine the responsibilities of citizenship in time of war of anyone who would care to listen, and the organization was not declared illegal … at the behest of the Roman Catholic Church.’[369] Still the Jehovah’s Witnesses were convinced not only that the Catholic church was behind the ban, but that the hierarchy was responsible for the continuing suppression of the group.[370]
43 Another factor influencing public perception was the decision of the U.S. Supreme Court in June 1943 in West Virginia State Board of Education v. Barnette,[371] which reversed the court’s earlier decision in Gobitis. The Supreme Court had, in just two years' time, changed its mind. Now the court held that schools could not expel or suspend pupils for refusing to salute the American flag as that was a violation of children’s constitutional rights. Other Supreme Court decisions involving the Jehovah’s Witnesses were released at the same time. They uniformly supported the religious activities of the group by extending to them the protection of the American Constitution.
44 Perhaps even more important than the U.S. Supreme Court decisions was the decision of the High Court of Australia in Adelaide Company of Jehovah’s Witnesses Incorporated v. The Commonwealth,[372] which struck down an order-in-council, much like the Canadian one, banning the Jehovah’s Witnesses in that country. Australia was the only other Commonwealth country to formally ban the Witnesses, but there the ban was fought in court.
45 The Jehovah’s Witnesses arrived in Melbourne at about the same time they made their appearance in Canada. As in Canada, their numbers slowly but steadily grew.[373] By the Second World War there were some 2,000 to 3,000 Jehovah’s Witnesses in the country, and just like their Canadian brothers and sisters, they were placed under ban. With one apparent exception, the similarities between the suppression of Jehovah’s Witnesses in Australia and in Canada are really quite remarkable.
46 In September 1939 the Australian government passed the National Security Act giving the government wide regulation-making power. A second revised National Security Act was passed in September 1940. These acts, based on the War Precautions acts of the First World War, delegated most of the federal defence power to the executive, and the defence power came to rapidly replace practically all other powers as the basis of government. Much of the law ordering the war effort, as well as the wartime economy, was found in the regulations passed under the two National Security acts.[374] The first of these acts inspired Labour Party opposition, and amendments were passed restricting trials in camera on war charges to the higher courts, limiting the period of preventive detention before charge to ten days, strengthening protection against industrial and military conscription, and extending the requirement for the tabling in Parliament of regulations and orders of a legislative character. One of those regulations outlawed the Communist Party of Australia, whose opposition to the war, like that of its Canadian counterpart, was made manifest in protests and demonstrations, and was quickly brought to an end. Similarly, broad censorship regulations were passed and individuals were interned. Not only did provision for secret trials exist, but from time to time Parliament met in secret and it was an offence to disclose what took place at these meetings. Following the fall of France, further amendments to the National Security Act removed the earlier guarantees against industrial and military conscription, although conscription for service beyond Australia and its territories remained prohibited.[375] The Jehovah’s Witnesses were also placed under ban.
47 The Jehovah’s Witnesses had been making a nuisance of themselves. In late July 1940 more than two thousand Jehovah’s Witnesses attempted to stage a demonstration but were frustrated by the police, who arrested almost one hundred of them. ‘Those arrested treated the police with long religious harangues,’ according to a report published in The Ottawa Citizen on 29 July 1940. The article concluded with the observation that demands for the suppression of the sect were growing throughout the Australian Commonwealth.[376] Department of External Affairs papers reveal that the Australian government took a keen interest in the decision of the Canadian government to place the Jehovah’s Witnesses under ban.[377] And like Canadian politicians, some Australian politicians had serious misgivings about the group.
48 This was certainly the view of Australian attorney general William Hughes. ‘Their talk,’ according to Hughes, was ‘the talk of madmen.’ Likewise, their doctrines were ‘a hotchpotch of the scriptures and of cunning interpolations made by the master mummer, “Judge Rutherford.”’[378] Hughes did not know what the ‘real purposes’ of the Jehovah’s Witnesses were, but he did know that ‘they have abused our hospitality and shown themselves unworthy of citizenship.’ The Jehovah’s Witnesses were ‘in’ but not ‘of’ the community.[379] Australian authorities were convinced that the Jehovah’s Witnesses were under the control of the enemy, variously identified as either communist or Nazi, and were acting against the national interest. Indeed, it was believed that the Witnesses were using their Adelaide radio station to pass intelligence to the enemy.
49 Witness radio stations in Canada and the United States had long been shut down. The Australian station was left alone and, ironically, it turned out to be the cause of the ban. One day early in 1941, it purported to describe a boating trip. ‘We are now sailing past the beautiful eastern shore of St Vincent Gulf,’ the broadcaster said, ‘and are approaching Kangaroo Island. Off in the distance I can see a convoy, steaming to the west. We shall now take you to New Zealand to listen to some Maori songs.’[380] It was noteworthy, particularly to the Australian navy, that a troop transport with New Zealand soldiers on board, including some Maori recruits, had sailed from Adelaide just hours before the broadcast was made. The radio station was closed and the Jehovah’s Witnesses were banned on 17 January 1941. Soon after, New Zealand imposed restrictions on the group, while the South African government placed Witness literature under strict censorship control.
50 The radio broadcast may have just been a coincidence, and other records suggest that it was not the Jehovah’s Witnesses who had broadcast the message, but an advertising agency that had booked time on the station.[381] Regardless, the station was owned and operated by the Jehovah’s Witnesses, the mention of a troop transport defies reasonable explanation, and the responsibility was theirs. Even if the broadcast had not been made, the Australians were reaching the limits of their patience. The Jehovah’s Witnesses' ‘defeatist propaganda’ was irritating, especially when given out near military camps. Their financial resources were suspect, and many Witness leaders were thought to be under enemy influence. It was ‘known’ that since the banning of the Communist party, many ‘communists have been inducted into and work with the Witnesses.’ Although, as the American consul reported to Washington, this was somewhat odd, considering that most communists were atheists, while the Jehovah’s Witnesses obviously believed in God. Apparently there were many enemy aliens among the membership in the group. Indeed, the American consul reported that in Tasmania the leader of the Witnesses was a naturalized Australian of German origin.
51 There were other reasons as well for the growing displeasure with the group, and these reasons paralleled the reasons for the Canadian ban. The Jehovah’s Witnesses would not salute the flag and they claimed neutrality. They did not recognize earthly government, only the Theocratic government. They taught that the churches were the instrument of Satan and that their way was the only way. With only 2,000 to 3,000 members in all (and dispersed across the country), the Jehovah’s Witnesses were proscribed. The Witnesses decided, however, to challenge the proscription in court.
52 Australia, like Canada, is a federation. There are six Australian states and a federal parliament. Legislative power is distributed under the Australian constitution, which, like the BNA Act, was passed by the Parliament at Westminster. There is no bill of rights in the constitution, but there is one provision that, like a bill of rights, restricts Parliament’s power. Section 116 of the Australian constitution provides: ‘The Commonwealth shall not make any laws for establishing any religion or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.’[382] Similar in wording to the First Amendment under the U.S. Constitution, this was the provision that the Australian Jehovah’s Witnesses claimed the government had violated by placing the group under ban. On 4 September 1941 the Witnesses went to court. Ultimately, the case came before the High Court of Australia, Australia’s final appellate court, which in June 1943 set aside the ban.
53 The court unanimously held that section 116 did not prevent the Commonwealth from passing laws prohibiting the advocacy of doctrines or principles that, while advocated with a religious objective in mind, were prejudicial to the prosecution of a war in which the Commonwealth was engaged. This did not, however, end the case, for a majority of the judges held that some provisions in the relevant regulations attempted to work so complete a destruction of the property rights of the church and its creditors, having consequences beyond the period of the war, as to make the regulations outlawing the group partially invalid. The opinion of Chief Justice John Greig Latham in this case was for many years, and may in fact still be, the most comprehensive Australian judicial survey of the concept of free exercise of a religion.[383]
54 Chief Justice Latham held that section 116 of the Constitution was a general provision, prevailing over and limiting all other provisions in the Constitution that give power to make law. Therefore, no law could escape the application of section 116 merely because it was made pursuant to another constitutional power, such as the defence power. Latham then reviewed what was a religion and what was not, and concluded that it was up to individuals, not the court, to make that determination. ‘Section 116 … is based upon the principle that religion should, for political purposes, be regarded as irrelevant. It assumes that citizens of all religions can be good citizens, and that accordingly there is no justification in the interests of the community for prohibiting the free exercise of any religion.’[384]
55 The court and the constitution would not protect religious beliefs or practices irrespective of the political or social effect of that belief or practice. Put another way, citizens could not exempt themselves from obedience to law under the cloak of religion. Section 116 did not protect, Latham said, the exercise of religion. ‘When a slogan is incorporated in a constitution,’ and the ‘free exercise of religion’ was just that, ‘and the interpretation of the slogan is entrusted to a court, difficulties will inevitably arise.’[385] What Latham meant was that he had to give meaning to the constitutional term. And the only way of doing that was to look at the context in which the terms in question were used.
56 It was obvious that the word ‘free’ in ‘free exercise of religion’ meant something different from ‘free lunch,’ ‘free love,’ or even ‘free trade.’ Some freedoms had limits, while others did not. Instructive in this context was the interpretation of the U.S. Supreme Court of the First Amendment, which bore more than a superficial resemblance to section 116. That court, Latham said, and in the process cited a handful of Witness cases, had held that freedom of religion did not result in the invalidity of a law that in any degree interfered with that right, any more than did laws limiting freedom of speech or freedom of assembly. There were interests to be balanced, and that was as true where freedom of religion was concerned as it was where any of the other constitutional freedoms came before the court.
57 What Chief Justice Latham had to decide was whether the Australian regulations banning the Jehovah’s Witnesses and seizing their property had gone too far. There was an American case involving a Mormon who committed polygamy in violation of the law. The U.S. Supreme Court had rejected the claim that this was his constitutional right and instead unanimously held that to uphold it would be to make every citizen a law unto himself. There was, obviously, considerable truth in this view, and if decided otherwise, examples of potential disorder come readily to mind. There was more to the issue than merely deciding as a matter of course that the law of the land prevailed over religious beliefs, for was not the very object of the constitutional protection of religious freedom ‘to prevent the law of the land from interfering with either the holding of religious beliefs, or bona fide conduct in pursuance of such beliefs’?[386] The answer given by the U.S. Supreme Court and adopted by the Australian chief justice was that it is the kind of interference that must be determined, and that undue interference could not stand. ‘This view,’ Latham held, ‘makes it possible to accord a real measure of practical protection to religion without involving the community in anarchy.’[387] It was up to the court to determine whether or not a particular law resulted in an undue infringement of religious freedom. Now all Latham had to do was to apply this principle to Australia. Incredibly, at the conclusion of this analysis, Latham decided it was not essential to the case. ‘It is possible, however, in my opinion, to decide the present case upon a narrower principle.’[388] That principle was the right of the state to protect itself. Australia had that right and thus, in Latham’s opinion, the regulations banning the Jehovah’s Witnesses could properly stand. The country was at war and it was within the power of the Commonwealth to terminate the existence of subversive organizations.[389]
58 While the other members of the court generally endorsed the chief justice’s views about the principle to be applied, they took the next step and, in varying respects, considered the regulations, their intention and effect, and struck the ban down. They all agreed that free exercise of religion had limits. They were united in their view that it was the duty of the court to say what those limits were. And they were one in believing that that process could lead to court affirmation of laws and regulations that controlled the activities of religious bodies when such activities were seditious, subversive, or prejudicial to the defence of the Commonwealth or the prosecution of the war. Where they departed from Latham, however, was in their assessment of the regulations.
59 One judge called the regulations ‘arbitrary, capricious and oppressive.’[390] Another disliked the wide and ambiguous way in which they had been framed.[391] And a third objected to the complete destruction of personal and property rights the regulations resulted in. The state had rights, but those rights, like the defence power, were limited by the reasonable necessities of defence during the period of war. If the government needed Witness property, it could follow expropriation provisions. Similarly, the blanket prohibition of all Witness doctrines could not stand judicial review, for that prohibition included perfectly innocent doctrines along with seditious ones. A law that had the effect of making advocacy of Christian beliefs a crime could not be justified by the exigencies of war. It was also prohibited by section 116. Overall, a majority of the judges was convinced that the regulations were an invalid exercise of the defence power. A balancing of interests led them to this view, which returned to Jehovah’s Witnesses in Australia their freedom to go about their work.
60 The Adelaide decision was given in the summer of 1943, and it remains one of the most important in the common-law world for its definition of the concept of religion. Not long afterwards an Australian judge explained why the ban had been introduced. It was instituted, he wrote, in a climate of hysteria where there was a threat of invasion. The hysteria became a panic and the Witnesses were banned. ‘When matters somewhat cooled down, the High Court of Australia, in its traditional British calmness, gave judgement against the banning of the organization and restored to Jehovah’s Witnesses their constitutional rights to religious freedom.’[392] The Adelaide case, in fact, fell squarely within the wartime jurisprudence of the Australian courts. Those courts willingly gave the Commonwealth defence power a wide and flexible construction. However, they equally willingly scrutinized regulations with some degree of closeness to see that the defence and other powers were not abused and to ensure that basic constitutional guarantees were observed.[393]
61 It is noteworthy that this scrutiny, just like the increasing concern for Jehovah’s Witnesses' religious rights in Canada, coincided with a turn in war fortunes. As in Canada, the Jehovah’s Witnesses were not the only proscribed group to benefit; the other major organization proscribed under the Australian equivalent of the Defence of Canada Regulations, the Communist Party of Australia, gained as well. When it was banned in June 1940, at the same time the Communist Party of Canada was banned, the Allies were on the run, and the ban received little mention in Parliament. As in Canada, there were no campaigns of protest.[394] Australian communists had never been popular, and with Western Europe under Nazi control and the Battle of Britain underway, the communists' anti-war attitudes and blind subservience to the Moscow line did no more to advance their political fortunes in Australia than they did in Canada. Communist newspapers went underground, appearing only periodically. The leadership of the party was able to keep in touch, thanks to a sympathetic lawyer who disguised party orders as legal documents. On the whole, however, the ban dealt the party a crippling blow. After the character of the war ‘changed,’ Australian communists dedicated themselves to the war effort, and this work paid off, for they were returned to legal grace well before their Canadian comrades.
62 A new era of Australian political tolerance did not, however, begin. If anything, the opposite was true, for an anti-communist campaign would begin with a vengeance right after the war and would last for the next fifteen years. The Communist party in Australia was, to all intents and purposes, finished. The Jehovah’s Witnesses were another matter. With their right to go about their business, if not their freedom of religion, recognized in law, there was nothing to stop them from spreading the good word. Freedom of religion had been restored in Australia, while in the United States the decision in Barnette was a complete vindication of Jehovah’s Witnesses' constitutional rights.
63 These developments, in Australia and in the United States, did not go unnoticed in Canada, where pressure to remove the ban continued. St Laurent remained unmoved and finally Prime Minister King decided that it had gone on too long. On 14 October 1943 King told the cabinet he wanted the ban rescinded, effective immediately. In his own way, the prime minister was religious, and he was possibly disturbed by the allegations of interference with Jehovah’s Witnesses' religious rights. The very day he made the request the cabinet passed an order removing the unincorporated association, the Jehovah’s Witnesses, from the banned list.[395] However, the International Bible Students Association, along with the two Watch Tower corporations, remained proscribed.
64 Unfortunately, neither the Cabinet minutes nor the King diary reveals what was discussed at the meeting where this decision was made. The government may have been merely playing politics in that it knew that the International Bible Students Association held legal title to Witness property in Canada, and that as long as that group remained under ban the Jehovah’s Witnesses would not have access to their property. The government almost certainly knew that it was one of the Watch Tower societies that published Witness literature, and that by keeping these societies illegal, the literature could continue to be kept out. As a result, the effect of the order was to only incompletely restore to Jehovah’s Witnesses their religious freedom. The motives of the government were, at the very least, suspect, if not cynical, for the special committee unanimously intended that all legal disabilities be removed.
65 In October 1943 Stuart Wood wrote the deputy minister of justice and pointed out the obvious. It was doubtful, according to the commissioner, whether the continued illegality of the three Jehovah’s Witnesses' corporate bodies was serving any purpose, since the Jehovah’s Witnesses were perfectly free to operate lawfully in Canada.[396] This same argument was made the following month by the Jehovah’s Witnesses, in a series of long detailed briefs forwarded to the prime minister, the minister of justice, and various other federal cabinet ministers.[397] Congregations of Jehovah’s Witnesses immediately engaged Kingdom Halls and began to advertise them as they had before the ban.[398] Moreover, a central office was set up on Main Street in Toronto and efforts began to be made, under the direction of Hayden Covington, to regain control of Witness property that had been earlier seized and was now leased to the Salvation Army, a Satanic organization, according to Witness belief.
66 Late in November 1943 Covington wrote the Canadian secretary of state, asking for the return of Jehovah’s Witness property that had been held by the custodian of enemy property since the banning of the group in July 1940. There was some money in the bank and a trust company was managing the Jehovah’s Witness Canadian headquarters on Irwin Street in Toronto.[399] When this letter failed to receive a satisfactory response, Covington wrote the American secretary of state and asked for assistance. As Covington correctly pointed out, the only reason why the other Witness groups had been declared illegal was to give legal effect to the ban on the unincorporated association.[400] In early February 1944 the American embassy in Ottawa was asked to look into the matter, and soon enough the first secretary wrote back with an interesting response.
67 The Jehovah’s Witnesses had been banned, First Secretary Lewis Clark replied, principally because it was believed that members of the organization were obstructing enlistment at a time when it was voluntary. ‘Since the ban was imposed conscription has superseded voluntary enlistments in Canada. Therefore, the teachings of the organization are not considered as detrimental to the war effort as they originally were. Furthermore, the other Statutes of Canada are quite sufficient to stop any activities by members of the organization which are considered to be subversive or contrary to the best interests of the state.’[401] In a confidential section to his report Clark addressed the question about why the remaining bans were kept in force.
68 He had met privately with officials at the Department of Justice and with the legal section of the custodian of enemy property. The reason for maintaining the corporate organizations on the banned list was far from salutary. Although not stated categorically, it could not have been more clear. ‘In addition to the subversive statements made in pamphlets and circulars issued by these organizations the printed matter was objectionable on other grounds. It is said that some of the printed matter seized by the RCMP contained bitter diatribes against the Roman Catholic Church, such matter being particularly offensive in Canada in view of the situation in Quebec. Some of the illustrated matter was considered disgusting and obscene.’[402]
69 Clark had excellent Ottawa connections, and there is every reason to believe that officials told him the truth. The Jehovah’s Witnesses, of course, knew nothing about his report, but continued to believe that the Roman Catholic hierarchy was behind it all. On balance there is something to this claim as is made clear by the Villeneuve-Lapointe correspondence. It is not difficult to understand what motivated Cardinal Villeneuve in making the request he did, or why Lapointe implemented the recommendation. Far better, both men believed, to sacrifice the interests of this unpleasant sect than let it create dissension and disunity when both were detrimental to the prosecution of the war. There were enough other people in the spring and summer of 1940 calling on the government for action against the Jehovah’s Witnesses for this policy to seem attractive. St Laurent may not have agreed, but he was saddled with his predecessor’s decisions and had no intention of reversing them until he had no other choice. The intelligence collected and transmitted by the U.S. first secretary is just one more piece of evidence, and while then unknown to the Jehovah’s Witnesses, it helped to prove their claim that the ban had been originally imposed at the behest of the Roman Catholic Church. Clark concluded his reply with the report that the Canadian government did not wish to be accused of persecuting religious groups. This was undoubtedly correct, but that same government continued to reject requests for the removal of the remaining corporate bans.
70 On the first day of December 1943 the new president of the Jehovah’s Witnesses became involved. Nathan Knorr became president upon the death of Judge Rutherford in January 1942. Like Rutherford, Knorr was a tall and strong-featured man, although he seemed much more retiring than Rutherford had, and his mild manner cloaked an iron will. He continued Rutherford’s programs, but with some subtle changes in the literature. Articles began to be published anonymously, and the virulent attacks on the Roman Catholic church were toned down. Rutherford had done a lot to inflame non-Jehovah’s Witnesses against the group, and intentionally or not, Knorr’s policies helped create a climate in which passions might cool. Knorr wrote Prime Minister King a personal and direct appeal for removal of the ban against the three corporate groups. It was absurd, as Knorr pointed out, to continue the ban against these groups when the ban against the Jehovah’s Witnesses had been dropped. The result was unfair, for while the Witnesses regained their freedom of worship, they were still denied access to their property, which was indispensable to their religious work. Knorr’s letter, filled with references to U.S. judicial decisions upholding the constitutional rights of Jehovah’s Witnesses, failed to sway the prime minister, assuming he even saw it, and what evidence there is suggests that he did not. Certainly, it had no effect on senior officers of the Department of Justice, who had not only initiated the ban, but defended it throughout. W. Stuart Edwards, who had been the deputy minister of justice when the ban was first imposed, was then retired. His successor, F. P. Varcoe, replied to Knorr on 9 December 1943 and indicated that the Government of Canada had no intention at present of removing the ban.[403]
71 What is interesting about this particular request is what happened to it after it arrived at the Department of Justice in Ottawa. P. M. Anderson, a senior official in the department, wrote the RCMP and asked for basic information about the group. Who were they? When did they arrive in Canada? Were they connected with the American-German Bund? Why had they been banned? And on what basis was the ban lifted?[404] Every one of these questions had been asked hundreds of times, thoroughly explored by the Special Committee on the Defence of Canada Regulations, and debated on numerous occasions in the House of Commons. When RCMP inspector Johnny Leopold replied, he reported that there was no information available to indicate a connection between the Jehovah’s Witnesses and the Bund, an overseas Nazi organization. In fact, as Leopold knew, there was no connection at all between the two organizations. Leopold stated that the Jehovah’s Witnesses were banned because they taught that man-made authority or law should not be recognized if it conflicted with Witness interpretations of the Bible. Other equally unpersuasive reasons for the ban that Leopold repeated were the Witness teachings that all religions were rackets and that Red Cross work was the devil’s work. Finally, Leopold wrote, the Jehovah’s Witnesses refused to salute the flag. The ban on the Jehovah’s Witnesses was lifted, Leopold wrote in what was the only new information in the memorandum, because it was felt that it prevented them from worshipping God.[405]
72 A new Special Committee on the Defence of Canada Regulations was struck in February 1944, but it did not even look into the regulations or the bans of various groups. It met a half dozen times and, finally, concerned itself with naturalization and deportation.
73 Meanwhile, the Jehovah’s Witnesses continued to campaign for the repeal of the remaining bans, but there is no evidence that their letter-writing program was having the desired effect. In April 1944 St Laurent told the Witnesses that the remaining bans would stay. A delegation, led by Hayden Covington, was given an audience with the minister of justice. ‘Lengthy discussion was had and the injustices of the situation were brought forcibly to his attention,’ the 1946 Yearbook of Jehovah’s Witnesses recorded.[406] St Laurent was adamant, and he declared that he did not intend to take any action.
74 St Laurent was thereupon informed ‘in cool, measured terms’ that a nation-wide petition campaign would begin on the first day of May if the ban was not removed. He was advised that the Jehovah’s Witnesses expected one million Canadians to subscribe. From coast to coast, 15,000 Witnesses, Covington claimed, would begin to call on their friends and neighbours.[407] St Laurent was as unmoved by this threat as he had been by one made the previous November, when Witnesses reminded him in a printed brief what happened to Pharaoh for trying to keep the people of Israel enslaved.[408] Three days later, W. Glen How, a Jehovah’s Witness who had just been called to the Ontario bar, made similar written representations in a brief he sent to the prime minister.[409]
75 As promised, a petition was prepared, asking the government to restore the International Bible Students Association to its pre-ban status. Why the two other corporate bodies were not included is not clear; perhaps because the ban on them, while real enough, did not interfere in any way with Witness work. The Jehovah’s Witnesses could always print literature that identified the ‘Jehovah’s Witnesses’ as the publisher, but with the ban on the International Bible Students Association in effect, their property remained out of reach. In June 1944, in a space of only ten days, the Jehovah’s Witnesses collected 200,000 signatures. St Laurent was kept informed about the state of the campaign, and he realized that the Jehovah’s Witnesses could be taken at their word. Significantly, that ban was removed literally within days of the receipt of the first petitions in Ottawa.[410] When the amendment to the Defence of Canada Regulations was announced the petition was withdrawn.[411] While it was obvious that only a handful of those who signed the petition were Jehovah’s Witnesses, and it is inconceivable that many more actively sympathized with the sect, the petition proved that there was no public support for the ban, except perhaps in Quebec. ‘Jehovah has blessed His servants with another triumph over totalitarian encroachments and influences,’ a Watch Tower publication declared. The Jehovah’s Witnesses rejoiced in this victory, but knew there was more to be done: the remaining bans had to be removed. ‘Then the Dominion of Canada will have fully restored to thousands of her law-abiding citizens their most precious heritage, the freedom to worship their Creator according to the dictates of their own conscience.’[412]
76 In the meantime, in late July 1944 a handful of Jehovah’s Witnesses were charged with passing out literature prejudicial to the war effort.[413] Just two weeks later, however, Witnesses would be meeting openly at two conventions in Canada and at sixteen in the United States. In Winnipeg, more that 2,500 members of the group packed the amphitheatre to hear speakers from the United States and from ‘theocratic headquarters’ in Toronto. The assembled were told that the world was coming to an end and that the Kingdom of God would soon appear.[414] Literature was freely distributed throughout the amphitheatre and across the city, which had been divided into territories, each of which was assigned to one or more Jehovah’s Witnesses attending the convention. For its part, the RCMP left the convention-goers alone.[415] The same was true when Nathan Knorr came to Toronto in November 1944. He delivered to 11,000 people a speech entitled ‘One World, One Government.’ It was not about the recently established United Nations, of course, but about the Theocracy, which Knorr confidently predicted would soon be running the world.[416]
77 If the Winnipeg and Toronto city fathers were unconcerned about the presence of large numbers of Jehovah’s Witnesses in their midst, the same could hardly be said about their counterparts in Edmonton. The Edmonton Bulletin could not abide the welcome the Jehovah’s Witnesses received when they congregated in that Alberta city for a convention. Particularly repugnant were the sect’s claims that the ban was unjust. The Jehovah’s Witnesses were, the paper said, a dangerous group because they sought to inculcate in the minds of the young a philosophy that refused to recognize the responsibilities of citizenship. Any organization that did so at any time was, the paper declared, at ‘war with society.’[417] Similarly, the Witnesses continued to receive a cool reception in other places as well. In September 1944, for example, RCMP officers entered a home in Kirkland Lake, in Northern Ontario, where services were apparently taking place, and took away Witness literature.[418] The treatment of some Jehovah’s Witnesses in Mitchell, Ontario, was much worse. Standing quietly, holding up copies of their publications in the hope of generating interest in passers-by, they caught the attention of a local constable, who incited a mob to beat them up. Try as he did, W. Glen How could not convince the authorities to take action.[419]
78 Nevertheless, Jehovah’s Witness operations were almost back to normal. There still was the matter of the remaining bans. Instead of launching another petition, How launched a class action in the Ontario courts. Class actions were very complicated in Ontario, and the rules of civil procedure that provided for them were, as they remain to this day, very strict. When How filed a statement of claim in the Supreme Court of Ontario, asking the court to strike down the remaining bans under Regulation 39C because they unlawfully abridged and denied ‘Jehovah’s Witnesses in Canada their rights and their freedom of worship of Almighty God contrary to the unwritten British Constitution,’ he was under no illusion that the court would take jurisdiction to hear the case.[420]
79 The Department of Justice took the case seriously and retained a leading Toronto counsel, John J. Robinette, who was instructed to try to strike out the claim.[421] Incredibly the case came before the new master of Ontario’s Supreme Court, G. D. Conant, the former attorney general who had approved so many prosecutions against Jehovah’s Witnesses when he was in office. After stepping down Conant was appointed to the master’s post, a position traditionally given to senior lawyers with extensive litigation experience, which he had had before entering politics. Now he was going to hear the claim of a group he himself had prosecuted. If ever there was a case crying out for a judge to excuse himself, this was surely it. On 26 May 1945, Robinette succeeded in sending How back to the legal drafting board when Conant released his decision, striking out large and significant parts of the Jehovah’s Witnesses' claim.
80 Master Conant ruled that the Jehovah’s Witnesses and their Canadian leader were not proper parties to a class action against the government. He also expressed doubt, although largely on technical grounds, about the judicial reviewability of the remaining bans. Master Conant may have been right in strict law, but if they were not the proper parties, who were? Surely not the members of the remaining banned organizations, for to act on their behalf was not only to admit membership in an illegal group, but also to act as an officer or member of that illegal organization, and this was exactly what the Defence of Canada Regulations continued to proscribe. It was a classic legal dilemma. All the court would do was give leave for the Jehovah’s Witnesses to amend their statement of claim, but before they did, assuming they could surmount the legal hurdles Conant’s decision created, the remaining bans were removed and the action was, on consent of both parties, dismissed.[422]
81 The end of the war in Europe in May 1945 gave the government an excuse to remove the remaining bans. A memorandum prepared for the prime minister in mid-April 1945 pointed out that removing the remaining bans might have some political repercussions and that perhaps the prime minister might like to have a word with St Laurent before doing anything about it. It was clear that these political repercussions would take place in the province of Quebec.[423] Arguably more important than the political implications in Quebec of removing the remaining bans were the immediate implications of keeping them in force elsewhere in Canada with a federal election on the horizon. King and the Liberals had no desire to be attacked for denying the Jehovah’s Witnesses their religious rights and, in truth, the remaining bans had only symbolic effect. The RCMP was completely in favour of removing them,[424] while other government departments were gradually eliminating what few restrictions on Witness activity remained. (Canadian customs, for example, removed remaining restrictions on the importation of Jehovah’s Witness literature.)[425] Finally, on 22 May 1945, the remaining bans were removed.[426] In all there had been more than five hundred arrests; hundreds of raids had been made on private homes; countless religious meetings had been disturbed, and preaching efforts interrupted. There were convictions, but not a single one was for subversive activities against the Canadian state. Through all of this the Jehovah’s Witnesses became more active than ever before. In April 1945, almost 15,000 Canadian Witnesses attended public lectures in different places across the country. Nathan Knorr was soon back in Canada, and he spoke to thousands of Witnesses. It was, as the Yearbook of Jehovah’s Witnesses for that year later said, ‘a peak of blessedness.’[427]
82 On 14 June 1945 an interdepartmental committee was established by order-in-council to examine the Defence of Canada Regulations.[428] The purpose of the committee, with representatives from the departments of Justice, External Affairs, Secretary of State, National War Services, National Defence, the Privy Council Office, and the RCMP, was to review the provisions of the regulations and make recommendations as to their variation, modification, and revocation. The regulations had been introduced on the recommendation of an interdepartmental committee, and they would be repealed on the recommendation of such a committee. Parliament was left out on both occasions. On 16 August 1945, following the surrender of Japan, twelve of the regulations that most affected civil liberties were revoked; the remaining regulations were removed the following month.[429] Only the liberties of Canada’s Japanese remained restricted, and would be for the next four years. There were two issues concerning the Jehovah’s Witnesses outstanding, however, even after all the bans were removed; patriotic exercises in the public schools and exemption from military service.
5. Purely a Matter of Discipline
1 In Canada not only are religion and education interrelated but both are linked with politics, and have been since Confederation, when the Constitution, as a condition of union, provided for state-supported denominational schools and gave the provinces legislative authority over education. These constitutionally protected educational and religious rights are not as clear as they seem in the plain wording of the BNA Act and the country has been bedevilled by controversy over what the religious-education rights of Protestants and Catholics actually are. As conventionally drawn, the controversy concerns rights to publicly funded denominational schools. Unlike the First Amendment of the U.S. Constitution, which prohibits establishment of any religion, the Canadian Constitution expressly provides for such establishment. Although no one need attend a denominational school, Protestants and Catholics in some Canadian provinces have certain constitutional rights to do so. What those rights were has been, and, until recently in Ontario, remains, a subject of sharp debate. Politicians who meddled with the status quo often did so at their peril.
2 Ontario premier Mitchell Hepburn, for example, came up with a plan prior to the war to improve funding and increase the number of Roman Catholic separate schools. When the bill came before the legislature it suffered sustained attack.[430] The Conservative leader, Earl Rowe, called Hepburn a tool of Rome and promised to repeal the law when the Conservatives came to power. With a majority, however, the Liberals were able to push it through, only to repeal it shortly afterwards as an unworkable scheme when a by-election illustrated the public dangers of proceeding with the plan. George Drew, then a rising star in the Conservative party, campaigned against the government in this election. ‘Is it not unfair,’ Drew asked the voters, ‘to remind the French that they are a defeated race, and that their rights are rights only by tolerance of the English element who, with all respect to the minority, must be regarded as the dominant race?’[431]
3 The Tories could be relied on to divide rather than unite over the issue, but no one attacked Hepburn’s plan more vigorously than Reverend T. T. Shields. Usually venomous and vituperative, in this case Shields made a more moderate point. He saw in the plan a conspiracy, directed from the Vatican, to threaten the continued existence of the Canadian state. His attack focused on one point: there should be absolute separation between church and state. To prove that point, Shields’s church, a large sprawling affair that still stands at the corner of Jarvis and Carlton streets in Toronto, voluntarily gave up its charitable status and began remitting to the city what it estimated to be the appropriate property tax for its land. The state should not be involved in the teaching of religion, he argued; that was a job for the churches. To invite in the state was to undermine, if not destroy, Canadian nationhood. ‘I believe,’ Shields told his 2,000-member flock one Sunday morning, ‘when people of different nationalities congregate in this country, and families grow up about them, that all these children should be fused into one common citizenship in a system of national schools.’[432]
4 That the state had no business teaching religion in public schools was generally accepted, but democratic theory and practice often diverge. The state was involved in religious education, and in the province of Ontario it would soon be involved in an unprecedented way. In 1939, religion and education were intertwined through provincial regulations requiring most Ontario schools to conduct opening and closing religious exercises, including the reciting of the Lord’s Prayer and selected Scripture readings. In 1939 a new regulation, no. 14, was passed, adding the singing of the national anthem, then ‘God Save the King,’ to the morning and afternoon ritual. Although the regulations made no mention of it, during the war years saluting the British Ensign was, in many schools, added to these opening and closing exercises. While saluting practices varied from place to place, it was common for the pupils in a class to salute by numbers. Teachers would give the command: ‘Salute the flag by numbers.’ On ‘one,’ the children would come to attention and salute the flag military-style. On ‘two,’ they would drop their hands to their sides. Typically, the singing of the national anthem would be first on the agenda, followed by the religious exercises and then the flag salute. The teacher or, if there was a loudspeaker system, the principal would then make whatever announcements were necessary.[433]
5 The regulations permitted conscientious objectors, both pupils and teachers, to withdraw during or to refrain from participating in the Scripture readings or in repeating the Lord’s Prayer.[434] There was, however, no provision for conscientious objection to the singing of the national anthem, the objection held by the Jehovah’s Witnesses. They had not always been opposed to singing national anthems and saluting national flags, although opposition to the flag salute on religious grounds in the United States was almost as old as the salute itself. Witness opposition to both came late in the group’s history, and is just another instance of the theological developments that accrued under the leadership of Judge Rutherford. The genesis of this particular issue can be traced to the case of Carlton B. Nichols, a grade-three pupil who, in the fall of 1935, told his home-room teacher that he would not salute the American flag. As young Carlton explained, the American government was the instrument of Satan and therefore pledging allegiance to or saluting the American flag would be paying homage to the Devil.
6 Carlton was expelled from school, and within days of the incident Judge Rutherford was on the radio, commending Carlton and telling the faithful that those who were wise would do exactly the same thing. ‘The flag,’ Rutherford said on 6 October 1935, ‘stands for the visible ruling powers. To attempt by law to compel a citizen or child of a citizen to salute any object or thing, or to sing so-called “patriotic songs,” is entirely unfair and wrong.’ As Judge Rutherford saw it, laws were not made to compel a person to violate his conscience but to prevent the commission of acts that cause injury to others. Accordingly, if a person sincerely believed that God’s commandment was against the saluting of flags, then it was wrong to try to compel that person to salute.[435] Even if one rejected entirely the religious basis for the Witness objection, there were other grounds in favour of a policy of laissez-faire. At the very least, the thought of forcing someone to salute a national flag or sing the national anthem was inimical to what both actions stood for.
7 Nevertheless, Carlton B. Nichols and thousands of Jehovah’s Witnesses were out of step with their times, for the requirement that Carlton salute was a new one, passed in his home state only the year before. In the wave of patriotic zeal that was sweeping the United States, many state legislatures and local school-boards enacted laws or passed regulations requiring students to salute the American flag. Carlton’s case was one of many that ended up in court, as state after state joined in on the legislative bandwagon and enacted similar provisions.[436]
8 In Canada, the Jehovah’s Witnesses did not start to refuse to sing the national anthem after their organization was declared illegal, but had been refusing to sing it for years. Prior to the outbreak of the war, the Ontario Education Regulations had not required the singing of the national anthem and the flag salute had never been mandatory. It was government policy in Ontario, as late as May 1940, more than a month before the ban was imposed, that Witness children be excused from the opening and closing exercises; only those children who actually attended the exercises were required to participate in them. As the senior solicitor in the Department of the Attorney General, C. R. Magone, wrote in a letter to a member of a local board of education, ‘We must not become unduly exercised over the refusal of children to salute the Flag at this time. The sect in question is more pacifistic than disloyal and to take drastic action would convert the pupil or the parents into martyrs.’ The minister of education, Duncan McArthur, fully endorsed this view.[437]
9 The deterioration of the international situation and the consequent change in the domestic political climate were such that calls for restraint fell on deaf ears. There were, many Canadians believed, saboteurs and fifth-columnists at large, and the Jehovah’s Witnesses who refused to salute the flag or sing the national anthem came under immediate suspicion of being both — a suspicion that was confirmed when the group was finally banned. Across Ontario, reports of the unpatriotic activities of this now unlawful group began to flood in to, among others, the RCMP and the Ontario Provincial Police.
10 In May 1940 The Ottawa Citizen reported that a number of Witness children had been suspended in nearby Pembroke. Their suspension was upheld by the local school-board, which told the parents that the children would be allowed to return to school only if they obeyed the regulations.[438] Similarly, an RCMP officer in the Rosenheath district was asked to make an investigation into activities of pupils in that rural area who refused to salute or sing.[439] C.R. Magone received many of these reports and continued to try to defuse the situation. Fully aware of international events and the domestic political climate, which demanded action of some kind, the senior solicitor nevertheless urged restraint. He was anxious to ensure that problems in flag-saluting not take on a life of their own. Magone believed that the incidents were being magnified and that publicity made the offence seem greater. Attorney General G. D. Conant did not authorize any charges under the Defence of Canada Regulations.[440] The appeals for action only stopped when the 1939–40 school year came to an end. The respite, for Jehovah’s Witness children and parents in Ontario, was, however, only temporary.
11 The start of a new school year was not, at least according to available evidence, preceded by any consideration of what to do about the unpatriotic children. It was left to local school-boards to devise policies of their own, with the predictable result that some boards left the Witness children alone while others showed less tolerance in their dealings with the sect. In Toronto, the board of education decided that public-school pupils would not be required on pain of expulsion to sing the national anthem or salute the flag.[441] The neighbouring Hamilton Board of Education, however, saw things differently.[442]
12 As early as 8 May 1940 an RCMP officer reported to headquarters that Witness children in Hamilton were causing problems in the public schools. Early in June, the internal management committee of the Hamilton Board of Education met to formally consider what action to take against public-school pupils who refused to sing the national anthem or salute the flag. Current practice, Frank E. Perney, the superintendent of schools, advised the committee, was to simply exclude Witness children from the patriotic part of the opening exercises, just as they were presumably excused from the religious part.[443] This approach failed to satisfy the majority of the members of the committee, who decided to write the attorney general to ask for direction.[444]
13 Loyalty, and questions about loyalty, were obviously in the air. At this meeting a communication from the Hamilton teacher’s council was also read, expressing the willingness of Hamilton teachers to reaffirm their loyalty by taking a formal oath of allegiance. Hamilton teachers were also eager to assist the board ‘in tracking down any and every report that might cast doubt on the loyalty of any teacher.’ After the letter was read a resolution was passed requiring every Hamilton teacher to declare formally that ‘he or she is pro-British in sympathies, and a Loyal British subject.’ Teachers who failed to do so were to be notified that their services were no longer required.
14 On 4 July 1940, the internal management committee met again, with G. D. Conant’s opinion in hand. Conant had written that it was ‘undesirable’ to give these cases any prominence. He suggested to the Hamilton board that they should follow the example of the Toronto board, and he concluded by repeating the words of Senior Solicitor Magone about the need to act with restraint in dealing with Witness children.[445] As Conant’s other actions make clear, restraint was not in order when dealing with parents. The regulations, as the Hamilton board knew, gave the children a legal right to leave while the religious exercises were taking place, and the policy Conant recommended was consistent with the overall regulatory intent in slightly extending that right to conscientious objection to the patriotic part as well.[446]
15 The internal management committee considered Conant’s suggestion and, in early July, passed a resolution calling for its implementation in Hamilton’s primary schools.[447] Ironically, the committee passed that resolution the very same day that the Jehovah’s Witnesses were banned, and when the full board of education met the following week the situation had quite obviously changed.
16 The chairman of the board, David A. Robinson, reported that he had met with the parents of a group of Witness children and that he observed ‘no willingness’ on the part of those parents to have their children co-operate in the religious and patriotic opening and closing exercises.[448] Other board members must have deplored this attitude, for instead of adopting the recommendation of the internal management committee, the board passed a resolution to the effect that failure to conform with the patriotic exercises would result in students losing their right to attend Hamilton’s primary schools.[449] Hamilton authorities had decided to take a hard line against the thirty or so Witness children attending local primary schools.
17 There was not much the parents could do, as the order-in-council banning the group in early July precluded them from openly identifying themselves or their cause, for to do either was virtually to invite arrest and conviction. Nevertheless, a group of parents wrote the chairman and asked the board to reconsider its decision, requesting only what the attorney general had earlier suggested. The letter outlined the religious reasons for Witness opposition to patriotic exercises and declared that both parents and children believed that their failure to obey these biblical beliefs would, in due time, result in their eternal destruction. The Jehovah’s Witnesses, the letter continued, did not disrespect the flag; however, their duty to God came first, and to salute a flag would be to violate their covenant with God. In conclusion the letter pointed out that in Great Britain no action had been taken against Witness children for their refusal to sing ‘God Save the King.’[450]
18 The plea for tolerance fell on deaf ears. When the new school year began, principals across Hamilton were ordered by the board to suspend every child who refused to sing the anthem or salute the flag.[451] Witness parents anticipated this decision, and on the first day of school, their children came armed with a form letter asking that their Christian faith be respected and requesting that they be excused from religious and patriotic exercises, which violated their religious convictions.[452] The letters did not have the desired effect, and Witness children were immediately identified and suspended from school. On 9 September 1940 young Arthur Ellison was sent home from school with a note saying that as a result of his refusal to salute and sing he was suspended until such time as he would agree to conform. One of the great battles in religious freedom in Canada was about to begin.[453]
19 Ellison was one of ten Hamilton children suspended at the start of the school year, and when Premier Hepburn learned of this from a report in The Globe and Mail, he ordered an investigation.[454] Inspector E. D. L. Hammond of the Ontario Provincial Police looked into the situation, and his findings were forwarded to Attorney General Conant. The police inspector reported that the question was not one of disloyalty or subversion but was, instead, a matter of purely religious views.[455] Conant considered the report and, consistent with his pre-ban views, declared that the refusal to salute or sing was a religious matter and not one associated with patriotism. The troubles in Hamilton, however, demonstrated the inadequacy of the scope of the conscientious-objection provisions of the regulations and called out for amendment. All Conant had to do was have passed a regulation extending the conscientious-objection provisions to the patriotic part of the opening exercises. Manitoba had such a regulation and Alberta would soon pass one. If he had followed suit the matter would have ended right there. Conant did nothing.[456]
20 His inaction did not go unremarked. A Globe and Mail editorial criticized the attorney general and recommended that the children be excused from the opening and closing exercises.[457] Instead the members of the Hamilton Board of Education suspended even more Jehovah’s Witnesses from the schools. By the end of the month, twenty-six boys and girls had been sent home and told not to return until they were ready to sing. If the local authorities thought they could eliminate the problem by sending the Witness children away, they soon found out that they were mistaken. The children returned to their schools daily and politely asked to be allowed in. They promised to stand respectfully at attention when the anthem was sung. They would not, however, sing or salute. Every day they were turned away. This charade continued for a month, and then, at the end of September, Witness parents hired a teacher and set up a private school of their own, which they called Kingdom School.[458]
21 The matter might have ended here, but a majority of the Hamilton school-board ensured otherwise. On 3 October 1940 the board met and heard a resolution from the local District Trades and Labor Congress deploring the suspensions and urging the board to reconsider. Instead it decided, with the opposition of only one member, to take action. Action, The Hamilton Spectator agreed, was what was called for. ‘When a few members of a small disloyal and fanatical religious sect can create a situation in Hamilton which stands out as one of the most brazen instances of subversive activity since the war began, it would seem to be about time for a showdown.’[459] Both the Hamilton chief of police and local crown attorney were consulted. The attorney general refused to authorize prosecution of suspended pupils' parents under the Defence of Canada Regulations. There was really only one thing Hamilton authorities could do: prosecute the children and their parents for truancy. The new chairman of the board, Dr W. L. Whitelock, promised action,[460] and attendance officer Walter Rollo was assigned to the case.[461] Two children were immediately charged and found guilty. They were sentenced to two weeks in the custody of the Hamilton Juvenile Observation Home, during which time they were to ‘be examined by the Clinic.’[462] After two weeks the two children were released on probation.[463]
22 Soon thereafter, the mayor of Hamilton, William Morrison, a lawyer and King’s Counsel, called a press conference and announced that legal action against the remainder of the ‘Hamilton 26’ would soon begin.[464] When Attorney General Conant was asked what he thought, he claimed that it had nothing to do with him. The problem, Conant told the press, was ‘entirely a matter for the Hamilton officials as to what action is taken.’[465] While Conant would not come out and say it, both his office and the Department of Education agreed that there was no legal basis for suspending the children for failure to salute the flag. The only uncertainty was what the regulations require in reference to the singing of the anthem.
23 According to a story in The Globe and Mail, the anthem issue was not as clear as the flag-salute issue, for singing the national anthem was recognized in the regulations as part of the opening exercises. ‘At the same time,’ the report continued, ‘it is recognized as a principle that students whose religious beliefs are not in harmony with the Protestant form of opening exercises may be excused from taking a part in those exercises.’[466] Both Department of Education officials and lawyers in the attorney general’s office therefore concluded that students should not be required to sing the national anthem. However, having made his reputation in the months before on his hard line against fifth-columnists, communists, and other enemies of the state, Conant had no intention of taking a soft line against the Jehovah’s Witnesses, children included.
24 For its part, the Department of Justice in Ottawa was equally uninterested in becoming involved. Flag-saluting and anthem-singing, W. Stuart Edwards, deputy minister of justice, wrote to Mayor Morrison, were ‘purely a matter of discipline.’[467] Morrison saw it somewhat differently. Failure to sing and salute was subversive, and this subversion had to be stamped out. ‘It is my duty,’ Morrison said, ‘as it is the duty of every other loyal citizen to take action.’[468]
25 Morrison believed that the Jehovah’s Witnesses needed ‘to be taught a lesson.’[469] Among other acts against individual members of the group, Morrison attempted to arrange for the discharge, without cause, of a school janitor thought to be a Jehovah’s Witness. Hardly a day now passed without one report or another, all of which were unfavourable, appearing in the Hamilton press.[470]
26 The parents of the ‘Hamilton 26’ continued to treat the matter seriously. They wrote Chairman Whitelock in mid-October, and advised him and the board that their children were receiving alternative education.[471] However, as interested as the parents were in avoiding prosecutions for truancy, what they really wanted to do was to get their children back into the public schools. They were working people, and they could not afford the expense of a private school, even though they had established one in response to the suspensions. But it was not just a question of whether they could afford to fund a private school or not, it was a question of principle and they believed the suspension to be wrong. Eric Ellison, the father of one of the first Witness children suspended from school, was particularly active in attempting to convince the Hamilton authorities to reconsider. He wrote numerous letters to the chairman of the Hamilton board explaining what he and his son believed and what they wanted.[472] Just excuse Arthur from the classroom during religious and patriotic exercises, Ellison wrote, or let him show his respect by allowing him to stand quietly alone. For his trouble, Arthur and his parents were selected to be among the first charged and brought to juvenile court.
27 On 26 October 1940 attendance officer Walter Rollo wrote the Ellisons to tell them that Arthur had been truant from school and to instruct them to send him to school, ready to sing.[473] Since Arthur was ready to return, but not ready to sing, he was charged under the Juvenile Delinquents Act,[474] which defined a juvenile delinquent as any child who violated any provision of any law. In particular, Arthur was charged with being unlawfully absent from school, and with violation of Regulation no. 14 of the Public Schools Act, which required Ontario public schools to include the singing of the national anthem in opening and closing exercises. Arthur’s father was charged with contributing to the juvenile delinquency of his son, although this charge was apparently stayed and no more was heard of it. On 30 October 1940 the Ellison family appeared before Hamilton juvenile and family court judge, His Honour Henry Arnold Burbidge. The Ellisons did not come alone: they had hired J. L. Cohen to represent them. Representing the Hamilton Board of Education was local lawyer Orville Walsh. As most, if not all, of the other children and parents had also been, or were about to be, charged with the same set of offences, Walsh and Cohen agreed that this case would be a test case.
28 It is the duty of the state to proceed whenever it charges a person with a violation of an act. The state had to show that Arthur had violated some law and that he was therefore a juvenile delinquent. What Walsh set out to prove was that Arthur was truant, meaning absent from school without lawful cause. Walsh began his case with an unusual request: would the court order Arthur Ellison’s father to leave the room? Cohen protested. To leave the son alone in court without the guidance of his father would be wrong. The court agreed, since the Juvenile Delinquents Act required the presence in court of the parent of the accused. The first witness for the state was Richard Wright, principal of the Adelaide Hoodless School, where Arthur had been enrolled.
29 Wright’s testimony was short and to the point. He told the court that he received notice from the Board of Education on 6 September 1940 to suspend all pupils who did not sing the national anthem, and that it was in compliance with this notice that he had suspended Arthur from school. What was Arthur like, Wright was asked? He was, the principal replied, an ordinary boy. The only thing out of the ordinary about him was that, after his suspension, he returned to school every day, asking to be let back in. Wright routinely refused the request.[475]
30 Walsh then presented Walter Rollo, the truant officer who had laid the charges against the Ellisons, as his second, and last, witness. An important point was raised during his testimony: if Arthur was receiving alternative instruction, in law he could not be found to be a truant from school. Rollo denied having any knowledge that Arthur was receiving such instruction, adding that even if he had been so informed, he had not approved it. Arthur was truant and that was the state’s case in chief. Cohen did not spend much time questioning this witness, but secured one key admission. Under cross-examination Rollo admitted that he had lied about his being unaware that Arthur was in a private school. The case for the state was now over, but the case for the defence was about to begin.
31 As his first witness Cohen called Arthur’s father. Eric Ellison, a First World War veteran who subsequently ‘found the truth,’ began by testifying about his loyalty as a Canadian citizen, then explained the theological basis for his and Arthur’s beliefs. Normally, after a witness gives evidence he is cross-examined by the other side; however, when Cohen finished his case in chief, both Judge Burbidge and Counsellor Walsh cross-examined the witness on his interpretation of the Bible. It was an interesting examination, but from the state’s point of view it was ultimately a failure. Ellison was intractable on the issue of his beliefs. The national anthem was a prayer, he said, and he and his son would not sing it. The words in the anthem did not matter; what was important was the compulsion to sing this prayer. ‘I understand,’ Walsh asked him, ‘that this whole thing boils down to this, that you don’t like to be legislated into being forced to sing a prayer?’ Yes, Ellison replied, ‘that is it.’[476]
32 When Ellison’s testimony was finished, Cohen called his second witness, Margaret Lowell, the teacher hired for the Kingdom School. Lowell, who had a Province of Ontario teaching certificate, testified about her qualifications and about her fifteen years of classroom experience. She swore under oath that she followed the curriculum established by the Department of Education, suggesting that her school was no different from any public school. When Cohen finished Walsh began his cross-examination.
33 ‘What is your religion?’ Walsh asked. Lowell answered that she had no religion at all. ‘Are you a Protestant?’ he asked. ‘Yes,’ the witness replied, ‘I am a Protestant.’ ‘Are you a Jehovah’s Witness?’ Walsh asked next. ‘Do you mean, am I a member of an illegal organization?’ Lowell answered. The back-and-forth continued, and it was clear that Walsh was intending to undermine Lowell’s credibility by proving her to be a member of an illegal organization. The fact that Lowell was a Jehovah’s Witness had nothing to do with the Ellison case. The legal issue to be determined was whether Arthur was a truant, and whether his defence to that charge, that he was receiving alternative education, had been proved. Instead, the judge allowed Walsh to pursue a largely irrelevant course of questioning. But even so, Walsh was able to obtain one striking admission from the private-school teacher.
34 In the Kingdom School, the boys and girls followed the regular curriculum, but not all of the regulations. They did not sing the national anthem, nor did they salute the flag. Thus, Miss Lowell and her Kingdom pupils were, Walsh said with a flourish, in violation of the law.[477] Lowell had no answer to that charge: all she could do was invite Officer Rollo to come and inspect her school. Except for legal argument, the case was over.
35 Judge Burbidge asked Cohen and Walsh to submit their arguments in writing. In most juvenile-court proceedings, counsel make limited argument in law at the conclusion of the hearing. This was obviously a special case, although from Judge Burbidge’s concluding comments there was reason to believe that, written argument or not, he had already made up his mind. Society, Burbidge declared before retiring to his chambers, could not give ‘fanatics’ free rein just because they sincerely believed certain things. That, the judge explained, would be a very dangerous state of affairs, in war and in peace. Burbidge indicated that he would read the Bible to see whether there was anything to the ideas that the Ellisons ‘professed to possess.’[478] That was, Judge Burbidge explained, a fairly straightforward task, for the Bible was just like any other document: ‘the Court reads the document and puts its interpretation to the document.’[479] The hearing was then adjourned.
36 For one of the more important religious-liberty trials in Canadian history, the Ellison case somewhat lacked the drama and sense of occasion one might expect of such an event. What makes the case interesting are the briefs that were submitted at Judge Burbidge’s request.
37 Cohen’s first brief, submitted in early December 1940, began with an attack on the charge under the regulation (no. 14) that stated that in every primary school the singing of the national anthem should form part of the daily opening or closing exercises. All the regulation said was that the national anthem had to be sung as part of the opening or closing exercises. It did not say that any student was actually obligated to sing.[480] Authority for this argument was supplied, Cohen argued, in statements made by the attorney general of Ontario. (Conant had been quoted in the press as saying that he knew of no law compelling anyone to salute the flag or sing the national anthem.)[481] Moreover, Cohen continued, as a general principle of law, a statute or regulation could not fix a liability or obligation on a specific person unless that was clearly directed in the legislation. Regulation no. 14 did no such thing, and it could be complied with completely in Hamilton schools without the participation of Arthur Ellison.
38 Cohen had more arguments in his legal arsenal, and one after another he brought them out. There was a case to be made that Regulation no. 14 was subject to section 7 of the Public Schools Act, the conscientious-objection provision, which was as old as Ontario public schools themselves. This section permitted students to conscientiously decline to participate in religious exercises where those exercises were objected to by a parent. The Jehovah’s Witnesses believed that flag-saluting and national-anthem singing were religious exercises. Accordingly, Cohen argued, they had a statutory right to conscientiously object. At trial there had been no objection to Eric Ellison’s claim that he and Arthur believed singing and saluting were religiously wrong. Now all that remained was for the court to acknowledge Arthur’s legal right. And that, Cohen said, did not depend, contrary to the statement Judge Burbidge had made at the end of trial, on the judge’s interpretation of the Bible, but on whether or not the religious objections that Arthur’s father claimed had been made in good faith. The rightness or wrongness of one’s religious beliefs had nothing to do with one’s legal entitlement to refuse participation in religious exercises.[482]
39 There was also nothing to the charge that Arthur had been unlawfully absent from school. What had really happened, as the uncontroverted testimony showed, was that Arthur had been kept out of school despite his persistent attempts to return. There was also evidence that Arthur had been receiving alternative education, as provided for in the Public Schools Act. Cohen asked that both charges against Arthur be dismissed. On the whole Cohen had made an impressive case, and his arguments in favour of the youth were persuasive indeed. Walsh, in turn, did not make legal arguments; he made emotional ones. He did not refer to sworn testimony; he made up facts. Walsh, in short, made the worst possible case.
40 Despite the fact that Arthur had not testified at trial, Walsh argued in his brief that it was clear that Arthur was under the domination of his father, and that his refusal to sing and salute was on his father’s instructions. No evidence to this end had been introduced. This statement was, seen in the very best possible light, prejudicial, unfounded, and unfair. While Cohen made sensible arguments based on reasonable interpretations of the legislation and regulations, Walsh suggested interpretations that the legislation and regulations could not reasonably bear. Walsh had no answer to Cohen’s argument that Regulation no. 14 did not require individual students to sing, as there was no answer to this argument. Cohen’s case should have been won on this point alone. Walsh provided an alternative interpretation as to which regulation should be read alongside no. 14. It was not, the Hamilton attorney claimed, the conscientious-objection regulation suggested by Cohen; rather, it was section 103 of the Public Schools Act, which set out teachers' general duties, including the duty to suspend pupils who were guilty of truancy, persistent opposition to authority, habitual neglect of duty, or conduct injurious to the moral tone of the school. Walsh argued that Arthur was guilty of the last named, that Arthur’s refusing to sing and salute was surely damaging to the moral tone of Adelaide Hoodless Public School.
41 Religion, Walsh asserted, had nothing to do with it. Eric Ellison had sabotaged, undoubtedly for reasons of his own, his son’s patriotism, and he was now seeking to avoid the consequences of his actions by claiming that this sabotage was religiously inspired. A serious principle was at stake, and Walsh implicitly referred to Judge Burbidge’s final remarks. If the Ellisons were allowed to get away with this, who was to stop others from claiming the cloak of religion as justification for their illegal acts? Besides, the Hamilton lawyer added, both father and son were Jehovah’s Witnesses, members of an organization declared illegal by the government of Canada.[483]
42 Walsh’s other argument had even less merit. If the legislature had intended the religious-exemption provision to apply to national-anthem singing, Walsh argued, then it would have put national-anthem singing in the same place in the act that it had put opening and closing religious exercises. Instead, it put national-anthem singing somewhere else, indicating that it did not intend the two to go together. There was a problem with this argument, however: conscientious objection and exemption from religious exercises were provided for in legislation and in the regulations passed by the executive. National-anthem singing had never been considered by the legislature. It was required solely in the regulations and, as a result, the legislature had never been given an opportunity to decide whether or not it, like religious exercises, as conventionally understood, should have an escape clause for pupils who conscientiously objected. There was no basis, therefore, to claim that the legislature could have provided for conscientious objection to anthem singing. It had never been given the opportunity.
43 Walsh had a few more arguments to make. If Arthur was guilty of failing to sing the national anthem, then he was guilty of being unlawfully absent. This argument, needless to say, ignored the fact that not only did Arthur regularly try to attend school, but that he was in the meantime receiving a private-school education. According to the brief, Officer Rollo’s laying of the charge was sufficient evidence to prove that Arthur was a truant. On behalf of the Hamilton school-board Walsh asked the judge to find Arthur guilty as charged.
44 Cohen, however, had an opportunity to submit a reply to Walsh’s brief, and in so doing he tried to bring the case back into focus. Cohen argued that there were two issues at stake, neither of which was patriotism. The first was whether or not Regulation no. 14 imposed an individual obligation on every child to actively participate in the patriotic component of the opening and closing exercises by singing the national anthem. The second was whether Regulation no. 14 was limited in any way by the conscientious-objection provisions of section 7. Cohen now cited some law in favour of his proposition that the latter limited and therefore assisted in the interpretation of the former.[484]
45 The juvenile-court judge considered the case over Christmas and assembled the parties together in the first week of the new year. He read them his reasons for decision. A proper reading of Regulation no. 14, Burbidge declared, indicated that the national anthem was to be sung by all pupils, without exception. The only way a student could be exempted from anthem-singing was if he or she had a lawful excuse. Judge Burbidge did not identify what constituted a lawful excuse; all he said was that no such excuse had been made in this case. Regulation No. 14 was there for the student’s good. It was there to teach the child ‘the words and music of the anthem and enable them to join in on suitable occasions and to form the habit of doing so and by practice develop a sense of loyalty and patriotism.’[485] On the charge of refusing to sing Arthur Ellison was found guilty.
46 The judge also canvassed some of the other issues in the case and began this review with the remark that, under the guise of giving evidence, Eric Ellison ‘upheld the tenets and doctrines of a sect that has been declared by the Defence of Canada Regulations to be an illegal organization because its theories and preachings are considered subversive.’[486] No evidence had been introduced about the ‘theories’ and ‘preachings’ of the Jehovah’s Witnesses. There were only two significant references made to the Jehovah’s Witnesses in the case, both of which were improper. The first was when Walsh asked Margaret Lowell, the Kingdom School teacher, if she was a Jehovah’s Witness. And the second was the charge Walsh made in his legal brief. Membership in this illegal organization was not the legal question Judge Burbidge was called upon to decide. While nothing prevented the judge from finding that Ellison and his son were Jehovah’s Witnesses, a correct conclusion, such a finding was not the point. Judge Burbidge’s duty was to hear evidence, listen to argument, and make decisions based on his finding of fact and rules of law. He had not been asked to decide whether a person was or was not a member of an illegal organization.
47 After finding the Ellisons to be members of an illegal group, Judge Burbidge went on to comment on Mr Ellison’s religious beliefs. Ellison had not convinced the judge that he had any ‘real honest bona fide scruples based on any reasonable interpretation of the Scriptures.’[487] Ellison’s ideas were ‘peculiar,’ and he relied on ‘isolated passages’ from Scripture, ‘detached from their context,’ to justify them. Even if Burbidge had found some religious basis to Ellison’s beliefs, he would have still convicted Arthur. When law and religion collide, Burbidge declared, it is religion that must step aside. As was the case for many of the other findings in his decision, no reasons were provided for this view. Not a single argument Cohen made had prevailed.
48 The question then arose about what to do about Arthur and, by implication, every other Witness child in Hamilton. Judge Burbidge had an answer. ‘If he has been and is imbibing wrong ideas in his present environment and I include in this not only his home but the school which he attends, the only logical course is to change this environment and give him the opportunity to grow up in conformity with standard ideas and to develop his own convictions without undue pressure.’[488] Burbidge ordered the boy removed from his father’s care and delivered to foster care. Soon enough the same order was made in the cases of six other Hamilton children.[489] Nine of the ‘Hamilton 26’ had now been sentenced to some kind of state care for respectfully refusing to sing the national anthem.
49 Cohen immediately applied for leave to appeal Burbidge’s decision in the Supreme Court of Ontario. There was no right of appeal; Cohen had to convince the court that he had a good case before it would exercise its discretion to hear an appeal. Numerous reasons in favour of granting leave were advanced, the most important of which were that the decision was contrary to the evidence and that the sentence was both excessive and improper. Appellate courts do not generally interfere with the finding of fact made by lower courts. It is a principle of the law that it is the job of lower courts to find the facts and that of appeal courts to hear appeals in law. An appeal court will occasionally set aside a finding of fact at the lower-court level, but even if Cohen could not convince an appellate court that Burbidge had gone off on some lark of his own, he had a good case to make that in ordering the Ellison child to be delivered to a foster home, Judge Burbidge had come up with a penalty far out of proportion to the crime. Leave was granted and the appeal came before Justice Hugh Edward Rose.
50 Justice Rose took no time at all to quash the Burbidge judgment. He was amazed that the case had gone forward in the first place. Children, he said, ‘should not have been brought into court on an issue of this kind.’[490] In almost as many words, Justice Rose told the parties to settle the matter out of court. In the meantime, at least two Witness children in Hamilton had spent two weeks separated from their parents, in custody at the Hamilton Juvenile Observation Home. Rose’s remarks, however, appeared to have the desired result. On 6 February 1941, Walsh appeared before the Hamilton board and explained what had taken place: ‘After considerable discussion it was agreed that the decisions of the court would be followed.’[491]
51 The Ellison case seemed to have some effect, and not just in Hamilton. At the end of January 1941, the Department of Education sent a directive to Ontario school-boards. ‘In some parts of the province children have refrained from singing the National Anthem or saluting the flag,’ the directive began. ‘It is deemed advisable that the children should not be penalized where they adopt a respectful attitude.’ The directive went on to say that if parents desired, children should be allowed to absent themselves from opening exercises. School-boards and trustees were advised to turn over any information they had about subversive activities to their local police. Boys and girls in school they were to leave alone.[492] This was the practice almost every Ontario school had put into effect.[493] As a result of this directive, the situation in Hamilton appeared to improve. Appearances, however, turned out to be deceiving. All that happened was that attention temporarily shifted to other places in the province where Witness children were under similar state attack. London, Ontario, was one such place. In that small southwestern Ontario city there was a case with a slightly different twist.
52 The L. children, a boy and a girl, refused to sing the national anthem and ‘There’ll Always Be an England,’ which was also required in their school. They then went on to compound their crime by declining to participate in additional patriotic exercises. After his children were suspended, their father appeared before the local school-board to protest. With his wife he was placed under arrest and, following a two-hour trial, both parents were sentenced by local magistrate C. W. Hawkshaw to four months in jail. ‘In my opinion,’ the judge wrote, ‘nothing could be more likely to cause disaffection to His Majesty than if children are to be taught to show no respect to the Crown or to the flag and the example of these children among the other children in the school, would, in my opinion, be bound to have a very bad effect.’[494] The couple’s four children, one of whom was a baby, were sent to a foster home. As a result of J. L. Cohen’s efforts, the family was eventually reunited, and ultimately, the charges were stayed. The two children remained out of school for two years, and neither one completed high school. One of the children, the boy, was later committed to a mental institution, the result, his father now says, of this earlier event.[495]
53 In Kitchener, a prosperous town surrounded by fertile farmland mid-way between Toronto and London, David Gakeff and his brothers were suspended from school for refusing to sing. Again, like many other Jehovah’s Witnesses, David and his brothers continued to come to school every day in the hope of being let back in. One day they were admitted, but not to class. The three boys were put in detention rooms and forced to write repeatedly ‘I must sing “God Save the King.”’ The three refused and so the school authorities separated them. David’s two older brothers remained steadfast, but David succumbed. As Canadian Forum observed in its report of these events, ‘the Nazis also have means of convincing people of the rightness of their cause.’[496] Lambro Gakeff, the father of the boys, was charged under the Defence of Canada Regulations. According to the authorities he had caused disaffection to His Majesty by telling his children: ‘Do not sing “God Save the King.”’ When asked about the affair Attorney General Conant gave what was becoming his stock reply to questions of this kind. It was a local matter, he said, ignoring the fact that it was up to him, as attorney-general, to authorize any prosecutions under the Defence of Canada Regulations.[497]
54 Any charge that Gestapo tactics were being used in Ontario by the police was, of course, ridiculous. But there were some extremely disturbing police practices, including forcing children to testify against parents charged under the Defence of Canada Regulations with being members of an illegal organization.[498] Considerable state resource went into keeping the non-conformist children out of public school. In one case, a plain-clothes member of the Kitchener city police testified that he had kept a woman under observation for a month following the refusal of her son to sing the national anthem or salute the flag. Eventually, he decided to arrest Mrs Mary Schmellovich. And when he searched her house, what did he find? A Bible. She was, nevertheless, arrested.[499]
55 These scenes were repeated across the province and, indeed, across the country as local authorities suffering from an excess of patriotic zeal made examples of the unpatriotic Jehovah’s Witnesses. Most schools and school-boards did not behave in this way, and in Ontario, after the 1941 Department of Education directive, action against Witness children all but ceased — except in Hamilton. The Hamilton school-board refused to implement the Department of Education directive to let the Witness children back into the schools. Consequently, the board soon found itself back in court. The Donald case would settle the matter once and for all.
56 Robert Donald, like Eric Ellison, was a Jehovah’s Witness. And like Eric Ellison, he wanted his children, Robert Jr, who in September 1940 was in grade eight, and Graham, who was in grade six, to attend public school. Just like Eric Ellison, he did what he could to get the Board of Education to change its mind and work out a solution acceptable to everyone. His efforts proved unsuccessful, and along with all the other Witness parents in Hamilton, he sent his children to the Kingdom School, at great personal expense. Miss Lowell remained on the job for about one year and then was replaced by another teacher, Grace Lounsbury, who was also a Jehovah’s Witness.[500] Each family’s contribution towards paying her salary was not much, but Donald, a postal clerk, had trouble enough trying to make ends meet without the added financial burden of supporting a private school.
57 The results in the Ellison case, and in particular the comments of Mr Justice Rose that that case should never have been brought to trial in the first place, proved heartening to Donald and the Witnesses in Hamilton. So, too, did the decision of the Hamilton authorities not to take further legal action. But, as it quickly turned out, Justice Rose’s remarks, like the Hamilton board’s decision, had little effect. Arthur Ellison was not permitted to return to school. All the appeal had done was keep him and others out of foster homes. In the end, Ellison never went past grade eight. He was lonely and ostracized as a child, and to this day he laments that he was denied his youth and an education.[501] While the juvenile-court prosecutions ended, nothing had really been resolved. In February 1941 the chief inspector of Ontario schools, V. K. Greer, ordered the Hamilton board to let the children attend classes.[502] This order, along with the Department of Education directive issued the previous month, failed to open Hamilton’s public-school doors. The parents of the Hamilton children made repeated attempts to come to some sort of settlement with the Hamilton board, but it refused to accede to their requests. As a result, the Hamilton children spent the rest of the year at the Kingdom School.[503]
58 The 1941–2 school year again saw Hamilton parents taking what steps they could to get their children back in the public schools. In the summer of 1941, Robert Donald appeared before the Hamilton Board of Education and asked for a hearing. There was substantial risk in making such a request: by this time several people had been charged with being members of an illegal organization after pleading for the readmission of their children to public school. It was no secret that the Jehovah’s Witnesses were the group opposed to singing the anthem and saluting the flag, and so to take a public stand on this issue was, in effect, to declare one’s membership in an illegal organization. Arrest could, and in some cases did, follow representations of this kind. The experience of the L. family is just one such case.
59 Donald was not, however, arrested as a result of these representations. The Hamilton board told him to submit a written statement.[504] Instead, early in September Mr Donald wrote the minister of education and appealed for the application of some common sense. The arguments Donald advanced were scripturally based. Donald wanted the minister to tell the Hamilton board to let his children into school. It was a question of their religious convictions, and the refusal of the Hamilton board to allow Christian boys and girls to refuse to sing a prayer without giving up their right to attend school had to be brought to an end.
60 The minister of education, just like the attorney general, had the power to resolve the issue by simply passing a regulation. As Donald pointed out in his letter, other provincial ministers of education had done so. In Saskatchewan, the minister of education ordered all the local school-boards to leave Jehovah’s Witness children alone, and he backed the order up by threatening public-school teachers and principals with disciplinary action if they failed to educate Witness youth.[505] Meanwhile, in Manitoba, a 1938 regulation gave pupils the right to decline participation in patriotic exercises whenever their parents requested. This did not prevent suspensions, and in one case a parent was charged under the Defence of Canada Regulations with being a Jehovah’s Witness after he wrote a letter to the chairman of the local board of education, protesting the suspension of his son. At trial the man was convicted when the magistrate held that a man must be responsible for whatever he said. The Manitoba court of appeal held otherwise and reversed the conviction, stating that the man’s son had a right to conscientiously object, and all the parent was doing was attempting to enforce that right.[506]
61 An Alberta case, Ruman v. Board of Trustees of Lethbridge School District,[507] upheld the power of a provincial legislature to require as part of school exercises anthem-singing and flag-saluting. This case concerned two girls, Frances and Mary Ruman, aged nine and eleven years, who attended the Galbraith Public School in Lethbridge. In November 1941, the local board of education passed a resolution requiring all pupils in Lethbridge schools to salute the flag, sing the national anthem, and participate in all patriotic exercises upon penalty of expulsion. Very detailed instructions for the flag salute were provided by the board, even though the regulation already described how the flag salute was to take place. The Lethbridge board had other ideas. Flag-saluting in its schools was to mirror the army salute: ‘The principal or teacher in charge and all pupils in attendance shall face the flag and come to attention; then upon command by the principal or teacher to salute the flag shall bring the right hand smartly with a circular motion to the head, palm to the front, fingers extended and close together, point of the forefinger one inch above the right eye, or touching edge of peak of cap just above right eyebrow, thumb close to the forefinger, elbow in line and nearly square with the shoulder, then after a pause equal to two paces in quick time cut away the arm quickly to the side.’ Frances and Mary refused to salute, so they were expelled. The Rumans went to court, and by way of stated case asked the court to answer a number of questions. First, whether the Lethbridge school-board had the power to enact its own code of flag-saluting, which differed from that found in the regulations; second, whether the Ruman children had been properly dismissed; and third, whether they were properly dismissed if they were willing to conform to the flag-saluting procedures set out in the regulations, which only required them to stand silently at attention.
62 The case came before the chief justice of the Alberta trial division in the fall of 1943. On 1 October 1943 Justice William Carlos Ives gave his reasons for decision. They were very short. The Alberta School Act said that flag-saluting ‘may’ be conducted in a certain manner, not that it had to be conducted in that manner. Accordingly, it was within the power of local school-boards to direct that flag-saluting be conducted in another manner. Flag-saluting was required by the act and the Lethbridge school-board could suspend pupils for violation of the act. The reasons for decision give no indication of what arguments were made in the case, but certainly one of them must have been that while the act was, through the use of the word ‘may,’ permissive, it set out limits. While a school-board could develop flag-saluting ceremonies to meet its own needs, it could not exceed, as the Lethbridge school board had done, the requirements of that ceremony set out in the act. If made, this argument had failed to persuade.
63 Immediately following this decision the Alberta legislature amended the act to give Alberta pupils the right to conscientiously object and abstain from participating in patriotic exercises.[508] All Alberta pupils were required to do was to come to attention and remain standing silently at attention during the ceremony. The Alberta legislature, it is fair to say, was prepared to give flag-saluting a religious connotation. In Ontario, the legislature did not need to be involved, for all that was necessary was to have a regulation passed. Donald, when he wrote the minister of education in September 1941, pleaded with him to take action, and warned him that if he failed to do so, he might be forced, very reluctantly, to go to court.[509] At the end of September, the deputy minister of education replied to Donald’s letter, effectively telling him to do what he thought best.[510]
64 The Jehovah’s Witnesses were divided about how to proceed. They did not like the idea of having to continue to send their children to the Kingdom School, but they were uncertain about how to fight the matter in court. There were a number of problems, the most serious of which was the fact that, as Jehovah’s Witnesses, they were members of an illegal organization. Whether their continued membership in this organization was stated or not, the fact that it was illegal would be a serious handicap for them in court. And that raised the second problem: how to get a judge to take jurisdiction to hear their case. They could not simply ask a court to order the Hamilton board to let their children back into school. What they needed to do was to frame their case in a more traditional way. The issue became urgent in February 1942, when a Witness student attending a Hamilton high school was suspended for refusing to sing the national anthem. Until this point high-school students had been left alone, with the result that graduates of the Kingdom School conceivably could attend secondary school. The following month, Robert Donald Jr was also suspended from his high school. He had spent a year at the Kingdom School and then written and passed the high-school entrance examinations. From September 1941 until March 1942 he was left alone. But in the winter of 1942, along with other Witness high-school students, he was suspended from school. A. W. Morris, the principal of Robert’s school, explained that Robert’s refusal to sing and salute was the reason. Morris went on to say that he took ‘this step with great reluctance as Robert otherwise has been most obedient and courteous, and a satisfactory student.’ If Robert would change his attitude, ‘his teachers and I would be very pleased to have him return to us.’[511]
65 With the doors to both primary and secondary schools now closed, Jehovah’s Witnesses in Hamilton realized that persuasion had failed, and Robert Donald, in April 1942, filed suit against the Hamilton Board of Education for damages covering the cost of tuition and other expenses he had incurred as a result of being forced to send his children to private school. Donald was a perfect test plaintiff; one of his children should have been in primary school, and the other in high school. By bringing his case to court, the Jehovah’s Witnesses could settle what rights to public-school education they had in the context of a single case. Actions for damages are recognized by every court, and Donald’s case appeared conventional. He asked for $2,600 in compensation for Kingdom School tuition and related expenses, but what he was really after was a declaration that the children were entitled to attend Hamilton’s public schools and an order, called mandamus, directing the board of education to readmit the Donald and all the other Witness children to those schools.[512]
66 J. L. Cohen was retained as counsel for this case, but this time he worked with W. Glen How.[513] The action began in April 1942, but it took until the end of March 1944 for the trial to take place. Justice John Andrew Hope presided. Hope was a very impressive man. In the First World War he had been wounded at Passchendaele and again at Drocourt-Quéant. He had fought in the Battle of Amiens, and his courage was such that he was mentioned in dispatches. The Donald case was a politically sensitive one. Moreover, it involved issues of law not seen before in Ontario courts.
67 Justice Hope heard evidence and argument for two days in Hamilton, on 30 and 31 March 1944. A great deal of testimony was given by father and son about the bases for the refusal to salute and sing, but most of the facts were not in dispute. It was admitted that the two boys had refused to salute and sing. It was also admitted that prior to their expulsions, they had stood respectfully during the opening and closing exercises and made no commotion of any kind. The judge also heard evidence, which was not admitted, that even though the two boys did not disrupt the exercises in any way, ‘the conduct of the pupils in so refusing to participate as directed, had a serious and injurious influence on the moral tone or welfare of their respective classes.’ This contested evidence turned out to be decisive, and on 12 September Justice Hope gave his reasons for decision.[514]
68 The judge accepted the defendants' evidence that the respectful non-participation in the opening exercises was detrimental to the moral tone of the school, even though the uncontroverted evidence was that neither Donald boy had drawn any attention to himself or created a disturbance of any kind. This finding of fact, however, was the foundation for the judge’s finding in law, a finding that largely adopted the reasons for decision of Judge Burbidge in the Ellison case. The judge declared that the evidence relating to the reasons for the Donalds' conscientious objection to the patriotic ceremonies was not relevant. ‘However sincere and conscientious the particular or peculiar beliefs of the plaintiffs may be,’ Justice Hope wrote, ‘I do not think they may or need be considered in connection with this action.’[515] Surely the reasons for the refusal to salute and sing were material to the case. Ultimately those reasons may prove to be unconvincing, but to dismiss them as irrelevant seems somewhat severe. What was Justice Hope’s authority for doing so? As it turned out, it was, he said, a recent decision of the U.S. Supreme Court.
Excursus: the great American flag-salute cases
1 It will be recalled that the U.S. Supreme Court gave reasons for decision in the first American flag-salute case in June 1940. That case was Minersville School District v. Walter Gobitis.[516] It will also be recalled that this decision set off what the ACLU later called a reign of terror against American Jehovah’s Witnesses.[517]2 The case began in November 1936 when two Witness children named Lillian and William Gobitis, who attended a Minersville, Pennsylvania, school were expelled for refusing to salute the American flag as directed by a resolution of the local school-board. The two children, then age twelve and ten, along with their parents, sued in federal district court. Other orthodox Christian groups had opposed the flag salute in the past, also because of their views of the proper relationship between church and state, but the Jehovah’s Witnesses were different insofar as they had both the resources and the inclination to fight in court mandatory flag-saluting. The Jehovah’s Witnesses were not strangers to American courts, but this was the first time they had voluntarily appealed to those courts for assistance. In every other case, they had been brought in as criminal defendants. When their children were expelled from public school, the Jehovah’s Witnesses saw the courts as their only recourse. Certainly the elected officials who first passed the regulations and laws requiring flag salutes could not be expected to be sympathetic to these non-voters' needs.
3 In the United States there are two parallel court systems: The state court system, from which appeal can ultimately be had to the U.S. Supreme Court, and the federal court system, which consists, in ascending order, of district courts of appeal (one in each of eleven geographical districts, or circuits), and at the top of the pyramid, the U.S. Supreme Court. A judge may take jurisdiction in federal, as opposed to state, court when a plaintiff establishes that the case arises out of the U.S. Constitution. The Jehovah’s Witnesses began by contesting the saluting requirements in state courts. The decisions were uniformly unfavourable,[518] and the Jehovah’s Witnesses could not convince the Supreme Court to give leave to appeal any of these cases. A change of tactics was called for and, pointing to the First and Fourteenth amendments, the Jehovah’s Witnesses brought the Gobitis case in a federal district court.
4 The Jehovah’s Witnesses asked the federal court to enjoin the school-board from making flag-saluting a condition of attendance at Minersville’s public schools. They argued that the First Amendment to the American Constitution gave them a right of freedom of religion, and that the Fourteenth Amendment incorporated that right and proscribed the states from interfering with it.[519] The Jehovah’s Witnesses argued that flag-salutes violated their religious rights and contravened the U.S. Constitution. At trial the Jehovah’s Witnesses won.
5 The trial court held that flag-salutes could be generally required but created an exemption from saluting for those with sincerely held religious beliefs that forbade such salutes. The only exception to this exemption was that the refusal must not threaten public safety, property rights, health, or morals. Compelling children to salute the flag, the court observed, was hardly a reasonable way to instil loyalty and teach civics.[520] The school district appealed the decision, unsuccessfully. The Third Circuit Court of Appeal affirmed the lower-court decision. In its reasons for decision, the appeal judges unanimously upheld an exemption from flag-saluting for individuals with sincerely held religious beliefs. Like the lower court, the reasons for decision in the appeal case questioned the value of enforced patriotic exercises.[521] The case then made its way to the Supreme Court, where the American Bar Association and the ACLU, as friends of the court, filed briefs supporting the Jehovah’s Witnesses. The Supreme Court reversed the earlier decision.
6 Charles Evans Hughes was the chief justice of the court, and he exercised strong leadership over it. The Witness brief was of little assistance to the court, and may even have hurt their case. Written by Judge Rutherford himself, the brief alternated between long discursive theological explanations and ad hominem attacks. Briefs filed by the American Bar Association and the ACLU helped put the case into legal focus, but to little avail. In the conference immediately following oral argument, Chief Justice Hughes told his brethren that this was one case where the court should not meddle. Individual states, he said, had power over education and there was no infringement of freedom of religion. There was no further discussion. Justice Felix Frankfurter was assigned by Chief Justice Hughes to write the opinion of the court.
7 A professor at Harvard Law School since 1914, Frankfurter was appointed to the Supreme Court by Franklin Roosevelt in 1938. A legal scholar, a man of courage and great intellectual strength, and an early labour supporter, Frankfurter fought the use of injunctions in labour disputes and co-authored an important book on this subject. He was active in the formation of the ACLU, and was also a defender of Sacco and Vanzetti. Frankfurter had a definite view of the role of the court. The Supreme Court’s historic obstruction of social legislation, its attack on the New Deal being the latest in a long list of examples, had convinced him that judicial review was anything but a positive instrument of liberalism. The legislature was directly accountable to the people and it could repeal illiberal laws, but only the Supreme Court could reverse itself. It was up to the people, through their elected representatives, to promote liberal and democratic ends. Judicial restraint was in order, and it was at no time more properly so than on the eve of war, when legislatures needed a free rein to advance the national interest. These beliefs were reflected in his reasons for decision in the Gobitis case.
8 As Frankfurter saw it, local school-boards were entitled in law to prescribe flag-saluting, although privately he apparently conceded that the actions of the Minersville authorities were ‘foolish and perhaps worse.’[522] Since they were legally entitled to pass the legislation, the only question properly brought before a court was whether or not there was a religious exception to this requirement. ‘Must a government of necessity,’ Frankfurter asked, quoting the famous question first posed by Abraham Lincoln, ‘be too strong for the liberties of its people or too weak to maintain its own existence?’ In answering this question Frankfurter observed the value of the salute in ‘the promotion of national cohesion.’ That, Frankfurter went on to say, although he did not give any reasons for saying so, was a good thing, for the ‘ultimate foundation of a free society is the binding tie of cohesive sentiment.’[523] Moreover, Frankfurter and the concurring majority of the court believed that invalidating the compulsory flag salute would be an inappropriate judicial excursion into matters of education policy. With this opinion ready for release, it was distributed to the other members of the court. Only after this was done was it realized that one of the associate justices, Harlan Stone, had not initialled the draft. There was going to be a dissent.
9 Justice Harlan Stone, a conservative and former Republican appointed to the court in 1925 by President Coolidge, had voted to uphold most of the New Deal legislation, and he regularly upheld the legality of statutes, even when he personally entertained doubts about their wisdom. As a member of the presidential board of review of claims for conscientious objection made during the First World War, Stone had been deeply disturbed by the treatment meted out to the truly religious objector. In that same way, he was now deeply disturbed by the treatment of juvenile Jehovah’s Witnesses. If Stone had had his way he would have set aside the requirement, and when the decision was announced, he read his opinion in court in full and with great emotion.
10 There were other options available to the government that did not impinge on individual liberties. It did not have to expel Jehovah’s Witnesses for refusing to salute the flag. The Jehovah’s Witnesses were, Stone wrote, a ‘small and helpless minority.’ Where the rights of such minorities were infringed, the job of the court was not, according to Stone, to balance respective interests, as Frankfurter had done. The constitutional guarantees of personal liberty were not absolutes. ‘But it is a long step, and one which I am unable to take,’ Stone wrote, ‘to the position that government may, as a supposed educational measure and as a means of disciplining the young, compel public affirmations which violate their religious conscience.’[524]
11 Where ‘prejudice against discrete and insular minorities may tend to curtail the operation of those political processes ordinarily to be relied on to protect minorities,’ the job of the court was to subject the legislative enactment to a ‘searching judicial inquiry.’[525] Such scrutiny, Stone declared, was necessary in cases such as Gobitis, where a small minority entertains a religious belief departing from the usual course of human conduct, and one that is regarded with little toleration or concern. ‘In such circumstances careful scrutiny of legislative efforts to secure conformity of belief and opinion … is especially needful if civil rights are to receive any protection.’[526] When that searching scrutiny was applied to the Minersville regulation, Stone could not say ‘that the inconveniences which may attend some sensible adjustment of school discipline in order that the religious convictions of these children may be spared, presents a problem so momentous or pressing as to outweigh the freedom from compulsory violation of religious faith which has been thought worthy of constitutional protection.’[527] There was, Stone declared, no danger to the state posed by the Jehovah’s Witnesses' refusal to salute. Both Justice Stone’s analysis and his preferred disposition of the Gobitis case were quite different from Frankfurter’s reasons and decision for the majority of the court. Where Frankfurter had presupposed constitutional validity of the legislative enactment, Stone had subjected it to review and found it lacking. These were two different views, both about rights and about the role of the court.
12 A dissent in a court of last resort, Chief Justice Hughes once wrote, is ‘an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.’ Not all dissents embody great wisdom or refute the errors of fellow judges. The test of a great dissent is its subsequent acceptance by other courts. Stone’s dissent would meet this test, for the picture of persecution of the Jehovah’s Witnesses in the two years following the Gobitis decision, a decision in which Hughes paradoxically took part, was an eloquent argument in support of his courageous position.[528] The flag salute had become an instrument of oppression.
13 Nevertheless, mandatory flag-saluting had just been justified by a large majority of the Supreme Court. Mob violence was the order of the day as Americans vented their patriotic spleen on this disloyal sect. Even more insidious, perhaps, were the legislative results of the court’s approval of the flag-salute requirement. Judicial approbation of mandatory flag-salutes precipitated passage of legislation similar to that challenged by Gobitis in many American states.[529] And just like in Canada, it was Witness children who suffered the brunt of the attack. Unless you compel your children to salute the flag, one judge told two parents, I will take them away from you ‘and place them in an institution where they would be taught to understand what Americanism really is.’[530] The Jehovah’s Witnesses were, in the United States as in Canada, Australia, and much of the rest of the world, a people under attack.
14 In time, the attorney general took to the airwaves to urge restraint, and the ACLU posted rewards to encourage citizens to bring wrongdoers to justice. But more than anything else, the entry of Japan into the war diverted American attention away from the Jehovah’s Witnesses. With a new scapegoat to attack, interest in them diminished. ‘In light of the almost hysterical fear of a possible invasion of the West Coast abetted by Asiatic traitors in our midst, the threat to national security or loyalty posed by a few elementary school children was manageable if not too insignificant to be noticed.’[531] As well, in June 1942 Congress passed Public Law No. 623, which, in defining the pledge of allegiance and describing the flag salute, stated that civilians ‘will show full respect to the flag when the pledge is given by merely standing at attention, men removing the headdress.’[532] Introduced into Congress with the sponsorship of the American Legion, the law codified the practice that the Jehovah’s Witnesses had long volunteered.
15 In passing this act, Congress was giving expression to widespread public concern over the misuse to which the flag salute was being put. The American flag is a symbol of liberty and justice, and it was repugnant to many Americans to see it used as an instrument of intolerance and repression. Small-minded bigots and patriotic zealots can wreak considerable havoc, but the generous and liberal nature of the American people is the source of the nation’s greatness and strength. The New Republic, a journal of liberal thought that Frankfurter had helped found and to which in the 1920s and 1930s he contributed, took up the cause and wrote article after article on the subject of the Gobitis case, none of which was favourable to the majority opinion of the court. In this view most American thinkers were in agreement, including prominent Roman Catholic academics who had no truck with the Jehovah’s Witnesses or their beliefs.
16 James Joseph Kearney of the University of Notre Dame College of Law, for example, writing in the Catholic Educational Review, was hardly restrained in his attack on the majority opinion of the Supreme Court. ‘Undoubtedly,’ he wrote, ‘the members of the Supreme Court were under great pressure psychologically in reaching their decision.’ Frankfurter, he observed, had been regularly labelled a radical in the press, and any ‘opinion denying the duty to salute the Nation’s Ensign in this hysterical war year’ would have been seized upon as additional evidence of ‘radical tendencies.’ But, Kearney continued, ‘be that as it may, the Supreme Court has always been the refuge of the oppressed minority, and in times of great stress it needs great judges.’ The current members of the court were, he suggested, mediocre and immature. Kearney appealed to the court to act with courage, for, he warned, failure to do so would be to place Americans at the mercy of their legislatures and laws based on the effectiveness of lobbies.[533] What Kearney was saying was that it was up to the courts to act against legislation that encroached on religious rights. If they did not act, who would?
17 The answer to this question in the two years following the decision in Gobitis was that no one would. The Supreme Court would have to set the wrong right. A hint that the court realized its mistake was given in the second major wartime Supreme Court decision involving Jehovah’s Witnesses. On 8 June 1942, two years after the court decided the Gobitis case it gave its reasons for decision in Jones v. City of Opelika.[534] This decision disposed of three cases involving Jehovah’s Witnesses in Alabama, Arizona, and Arkansas, all of which led to convictions for the distribution of literature without a licence. The Alabama case arose in Opelika, which, like many other American cities, had an ordinance requiring payment of a fee and possession of a licence to sell literature within the city. Jones, a Jehovah’s Witness, did not have a licence, nor had he paid any fee, and he was convicted of violating the ordinance. When the case finally got to the Supreme Court, the question before it was whether the distribution of Witness literature constituted a sale and was thus a business transaction properly subject to this kind of regulation, or whether it was a religious activity in the nature of worship and thus protected by the First Amendment.
18 Ultimately the court decided that a city may charge a reasonable and non-discriminatory licence fee from religious followers engaged in the sale of books. There were other reasons given too, but what makes the case important is not these reasons, nor is it the fact that the Supreme Court subsequently reversed itself in this case and held the licence fee to be unconstitutional as a violation of the right to religious freedom.[535] The importance of this case was what was found in the dissent of three of the judges, written by Mr Justice Hugo Black.
19 At the end of the day the majority of the court, Black wrote, approved in Opelika, as it did in Gobitis, the indirect suppression of a religious minority.
20 The opinion of the Court sanctions a device which in our opinion suppresses or tends to suppress the free exercise of a religion practiced by a minority group. This is but another step in the direction which Minersville v. Gobitis took against the same religious minority and is a logical extension of the principles upon which that decision rested. Since we joined in the opinion in the Gobitis case, we think this is an appropriate occasion to state that we now believe that it was also wrongly decided. Certainly our democratic form of government functioning under the historic Bill of Rights has a high responsibility to accommodate itself to the religious views of minorities however unpopular and unorthodox those views may be. The First Amendment does not put the right freely to exercise religion in a subordinate position. We fear, however, that the opinions in these and in the Gobitis case do exactly that.[536]
21 As the great British jurist Baron Bramwell once said, ‘the matter does not appear to me now as it appears to have appeared to me then.’ The first flag-salute case, argued and decided when war fears were at their height and when the Nazi subjugation of Europe was virtually complete, was exactly such a case. The passage of time, the turn of the war, and an opportunity to reflect had convinced at least three of the judges that they had been wrong and that Stone had been right. As it stood, however, this opinion was a minority one and was not directly relevant to the issue being decided in the Opelika case. As such it was of no legal force or effect. What the opinion did do was send out a clear signal that some members of the court wished to reconsider the decision in Gobitis. Another flag-salute case, the dissent seemed to suggest, had a good prospect of reversing Gobitis, for not only had three members of the court repudiated their earlier views (Hugo Black, William O. Douglas, and Frank Murphy), but a fourth, Stone, who was now chief justice, was already on the Jehovah’s Witnesses' side, and there were two new members of the court for the Jehovah’s Witnesses to convince.
22 Jehovah’s Witness lawyer Hayden Covington identified the West Virginia State Board of Education as a good target for a second case. A special U.S. district court agreed to take jurisdiction. Composed of two district court judges and one judge of the court of appeal, these special courts are convened for a particular case and have as their main advantage the possibility of direct appeal to the U.S. Supreme Court. The West Virginia Board of Education was a good choice, for the regulation requiring the flag salute in that state had been passed following the Gobitis decision. Children who refused to salute could be expelled and prosecuted as juvenile delinquents for being unlawfully absent from school. Their parents could be charged too and, if convicted, they were liable to stiff penalties, including thirty days in jail. Covington asked for an injunction enjoining the state school-board from enforcing the regulation against pupils who were Jehovah’s Witnesses. The case was Barnette v. West Virginia State Board of Education.[537]
23 Notwithstanding the Supreme Court’s virtual invitation to reconsider Gobitis, an injunction would require a lower court to disregard a decision of a higher and, in the case of the Supreme Court, binding court. But this is what the federal district court did, observing the apparent turnaround in opinion at the Supreme Court. The court considered the two different approaches taken by Frankfurter and Stone in the Gobitis decision and embraced the latter. In matters of freedom of religion and of speech the court was not there to perform a balancing act. Nor would it assume the validity of legislative regulation of either of these constitutionally guaranteed rights. There was, upon close examination, no justification for state restriction on the free exercise of religion, and it was inappropriate for the court to make an inquiry into the reasonableness of religious beliefs. The Witness children were to be let back into West Virginia schools.[538]
24 A direct appeal was then made to the U.S. Supreme Court. This time, instead of reversing the unanimous lower courts, the Supreme Court reversed itself and did so on Flag Day, 14 June 1943. A newly appointed member of the court, Justice Robert H. Jackson, a former U.S. attorney general who, while well acquainted with the persecution the Jehovah’s Witnesses had undergone, had little sympathy for the group, wrote the majority opinion for the court. It is fair to say that Jackson’s reasons for decision are among the most moving and memorable pleas for tolerance of diversity and human freedom in the whole of the legal literature of the U.S. Supreme Court.
25 What was a flag? Justice Jackson asked. It was, he answered, a symbol.
26 Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design. The State announces rank, function, and authority through crowns and maces, uniforms and black robes; the church speaks through the Cross, the Crucifix, the altar and shrine, and clerical raiment. Symbols of State often convey political ideas just as religious symbols come to convey theological ones. Associated with many of these symbols are appropriate gestures of acceptance or respect: a salute, a bowed or bared head, a bended knee. A person gets from a symbol the meaning he puts into it, and what is one man’s comfort and inspiration is another’s jest and scorn.[539]
27 The American flag was a symbol too, and the issue Justice Jackson went on to discuss was whether the state could require persons to salute. ‘To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.’[540] What about the problem Abraham Lincoln had earlier posed and Justice Frankfurter had raised in his majority reasons for decision in the Gobitis case? Justice Jackson had an answer to that. ‘It may be doubted whether Mr Lincoln would have thought that the strength of government to maintain itself would be impressively vindicated by our confirming power of the state to expel a handful of children from school. Such oversimplification, so handy in political debate, often lacks the precision necessary to postulates of judicial reasoning. If validly applied to this problem, the utterance cited would resolve every issue of power in favor of those in authority and would require us to override every liberty to weaken or delay execution of their policies.’ The purpose of a bill of rights, Jackson said, was to withdraw certain subjects from the vicissitudes of political controversy and to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. Justice Jackson then addressed the main issue of the case:
28 Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.
29 It seems trite to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.
30 The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.
31 If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.[541]
32 ‘We think,’ Justice Jackson concluded, ‘the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.’[542]
33 Justice Jackson’s opinion did not just overrule Gobitis, it overruled the rationale on which that case had been based. The question was not whether the legislation was rational, but whether a state had any right to compel affirmation of any belief. National unity was a legitimate concern. Jackson did not dispute that. But there was no evidence that a mandatory flag salute was necessary to achieve unity and, indeed, there was only speculation of harm if the salute was not required. Moreover, there was no evidence that remaining passive during the flag-salute ritual created any danger. According to Justice Jackson and the majority of the court, the First Amendment freedoms are susceptible to restriction only to prevent grave and immediate danger to interests that the state may lawfully protect. By making this finding, Jackson was introducing the ‘clear and present danger’ rationale earlier developed in a number of free-speech and free-press cases to the religious context. The action of the West Virginia authorities in compelling the flag salute and pledge was, accordingly, struck down. The decision was concurred in by Justices Black and Douglas, who had been with the majority in Gobitis and by Justice Murphy, who had written the dissent in the first Opelika case. But there was a dissent — a lengthy one written by Felix Frankfurter.
34 A judge’s duty, Frankfurter wrote, was to decide which of two claims before the court would prevail. In this case the competing claims were that of a state to enact and enforce laws within its general competence and that of an individual to refuse obedience because of the demands of his conscience. Frankfurter’s allegiance to a balancing approach remained, as did his conclusion, that the state of Virginia could legitimately enact legislation with the promotion of good citizenship as its goal.[543] The court, he said, could only invalidate legislation when it was manifestly contrary to the Constitution. ‘As a member of this Court, I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard.’ There is no doubt that Frankfurter would have preferred to associate himself with the libertarian views of the majority. Those views, after all, represented the thought and action of his lifetime, but for reasons of principle he could not, for to do so would be to read into the Constitution private notions of policy. That was not what he believed to be the appropriate role of the court. As an academic, Frankfurter had been disturbed by the Supreme Court’s rejection of Franklin Roosevelt’s New Deal legislation — for what appeared to be political reasons. And he had no intention of following suit, even if that led to an unfortunate result in a particular case. Frankfurter remained true to the limited role he gave to judicial review.
35 The majority of the court, however, had decided to embark on the more searching inquiry proposed by Jackson. Civil rights, the majority opinion decided, are more important than other rights, and when civil rights were challenged in court the court had to reflect this fundamental fact in making its decision. Perhaps more than anything else, this is the major contribution of the Jehovah’s Witnesses to American constitutional law. At the very least, this principle is what makes Barnette significant, even today. Where civil rights are concerned a rational basis for legislation is not enough. It is not sufficient for a court to find that legislation was passed with a proper end. If the allegation is raised that constitutionally protected rights are involved, it is incumbent upon the court to subject the legislation to a more searching review. At the very least it must be tested by consideration of alternative means that do not affect civil rights, but that achieve the same legislative end. ‘Whether the Jehovah’s Witnesses leave a mark on the religious history of the United States,’ The New York Times observed after the Barnette decision was released, ‘they are certainly leaving one on its constitutional history.’[544] The same was true about the influence of Jehovah’s Witnesses on Canadian law. The Donald case was evidence enough of that.
The flag-salute and Canadian courts
1 In Donald Mr Justice Hope cited the Barnette case as authority for his decision that the Donald children’s reasons for not singing the national anthem or saluting the flag were not material to the case. The Barnette case decided that it was unconstitutional to force children to salute the flag as a condition of attending public school. Underlying the majority decision was a concern for minority religious rights. How could Justice Hope say that the religious views of the Donald children had nothing to do with the case? Perhaps because there was no bill of rights in Canada available to the court to use as an instrument of judicial review. Did this mean that Canadians had no rights to be vindicated by the courts? What about Canada’s unwritten constitution? Its contours were uncertain, but surely freedom of religion was part of British law and as such part of Canadian law? Religious views and the right to exercise them had everything to do with the case and much to do with what Canadian society is all about. But Justice Hope dismissed these views with the result of enabling him to decide the case in the way that he did.
2 The overall effect of the Ontario legislation, Hope decided, was to impose an imperative obligation on schoolteachers to forcibly teach patriotism by order or command and illustration.[545] The religious-exemption provision, Hope said, citing Barnette for authority, did not apply because it was not a religious matter in issue. Unfortunately, no extended analysis was given for this finding, which is more a conclusion than a reason. With regard to Cohen’s argument that nothing in the regulations required individual students to sing, Justice Hope had this to say: ‘I must conclude that in passing the regulation which has the authority of a statute, it was intended that in referring to the singing of the National Anthem it should be sung as is customary in all public gatherings or assemblages, namely, in unison.’[546] Moreover, Hope declared, haphazard singing would create ‘uncertainty and even friction’ among the pupils in a public-school class.[547] Hope cited the Barnette decision, but it was clear that while he may have read it, he did not understand it.
3 Justice Hope also referred to Ruman v. Board of Trustees of Lethbridge School District. The court in that case had held that the Lethbridge Board of Education had the power to dismiss pupils who failed to perform the prescribed patriotic activities. There was case law on point, Hope declared, giving short shrift to the much more relevant point that the Alberta legislature, seeing what the Alberta court decided, amended the Alberta School Act to nullify the holding in the case. Justice Hope said this did not affect ‘the applicability of the decision,’ but it clearly did, for by amending the act the legislature was saying that the legislation, if not the decision interpreting it, was wrong.[548]
4 Although anthem-singing was prescribed in the regulations and flag-saluting was not, teachers had, Justice Hope said, by the general imperative duty to teach patriotism imposed in the regulations, the authority to require pupils to salute. The religious-exemption provisions, the judge added, were equally inapplicable here. The problem with this approach, however, was that while the primary-school regulations required, to use Hope’s words, ‘the forcible inculcation of patriotism,’ the high-school regulations had no such requirement. So while there was, perhaps, an argument to be made that there was a statutory basis to require flag-salutes in the primary schools, it did not appear to be justified in the high schools. However, one of the high-school regulations provided for the suspension of pupils ‘guilty’ of persistent opposition to authority or of conduct injurious to the moral tone of the school. Refusing to sing and salute fell, Hope declared, within this definition, and so the older Donald child had also been properly expelled. What made this part of the ruling especially strange was the judge’s first finding of fact that both Donald children had, at all times, demonstrated a respectful attitude. The Hamilton Board of Education, its teachers and principals, Hope concluded, have acted with nothing but the ‘greatest consideration and kindliness, and fully as a wise parent would have acted in like circumstances.’[549] The case was, accordingly, dismissed.
5 Although there is no basis for such speculation in his reasons for decision, what might, perhaps, have been behind his holding was the legal principle that an exemption under a statute may be more narrowly construed than a similar guarantee under a constitution. Put another way, there is a principle of law that a fundamental right in a constitution or a bill of rights should be interpreted broadly. A mere exemption provision in a piece of legislation or regulation should, in contrast, be narrowly interpreted. This view, however, even assuming it was the one underlying Hope’s decision, fails when applied to the Donald case, because in his decision Hope appears to allow the authorities to designate patriotic as opposed to religious exercises, thereby eliminating the conscientious-objection provision in the legislation.[550]
6 Whether or not there was any deep-seated principle behind the case, and the reasons that were given suggest that there was not, the Jehovah’s Witnesses immediately filed notice of their intention to appeal. They were no longer under ban and, as a result, had no hesitation in bringing cases to court. W. Glen How took the case to the Ontario Court of Appeal. How’s argument was short and to the point, although the legal brief that he submitted was more than one hundred pages long.[551] How, a short, squarely built man with a powerful presence, argued that both the High Schools Act and the Public Schools Act, as well as the various education regulations, recognized a right to refrain from taking part in religious exercises. What constituted a religious exercise, he said, was not defined in either act or in any of the regulations. There was, How said, no authority in law for a teacher or principal to force a child to participate in a religious act. Indeed, the law gave children a right to attend school and conscientiously object. The issue, therefore, was whether anthem-singing and flag-saluting were religious acts.
7 Symbolism, or a salute or any other form of respect, the Jehovah’s Witness lawyer explained, in words reminiscent of Jackson’s in Barnette, is in the mind of the person giving it. ‘In the case of a super-patriot, it might be a form of worship. It is important to know,’ he continued, ‘the intent in the mind of those setting up the regulations.’ As far as the Donalds were concerned, ‘their understanding of the prescribed acts is that they have a definite religious aspect.’ For them it was not a gesture of respect. The Donald children believed that by singing the national anthem or saluting the flag they would be attributing salvation to the state; and this, they were convinced, was contrary to the will of God. Religious freedom, How told the three judges hearing the appeal, was provided right in the statutes, while the power to force children to participate was not. The statutes and regulations were clear, and the common law, How argued, required the court to interpret both to maintain, and not restrict, freedom of worship.[552]
8 It was really very simple, How elaborated in his written brief. The Witness children were just like the children of various other religious groups, and their rights deserved equal respect under the law. Jewish children would not be forced to eat pork, or Roman Catholics meat on Fridays. Would it be destabilizing to a school with a meal program for children of either faith to conscientiously object? Similarly, in the Donald case, the Donald children ‘are not hurting anybody,’ How argued. ‘The school board is, by this guise, trying to dictate to Donald and his children the very thoughts which they may have in their minds.’ What the school-board was doing, How said, was telling the Donald children to either conform or be expelled.[553]
9 The danger was not that a conscientious objection would lead to moral decay, but the exact reverse. If Jehovah’s Witnesses were not allowed to conscientiously object, it was society itself that would decay. In this very province, How told the court, one woman’s family-assistance payments were terminated after the authorities learned her children refused to sing the national anthem and salute the flag. ‘This,’ How said, ‘is an attempt to starve people into submitting to regimentations of thought.’[554] Judge Burbidge tried to do the same thing when he ordered that Arthur Ellison be placed in a foster home. It was not the Jehovah’s Witnesses who were disrupting the social fabric, it was individuals backed by the power of the state. ‘It is difficult to imagine,’ the Jehovah’s Witnesses' lawyer observed, ‘to what ultimate lengths bigotry and intolerance will travel if given the opportunity.’[555]
10 O. M. Walsh, who continued to represent the Board of Education, said little in reply. He argued, of course, that Justice Hope’s decision was correct. He also said that the statutes and regulations requiring patriotic exercises were not religious, and, therefore, gave pupils no right to conscientiously object. There was a thrust to his argument that went beyond the law. Public policy was in issue. ‘If this appeal succeeds,’ Walsh said, ‘all kinds of ridiculous situations are likely to arise.’[556] The court, Walsh pleaded, should not ‘allow 245 sects to state what conflicts with their religious beliefs in matters of this kind, particularly where school discipline is involved.’[557]
11 The Ontario Court of Appeal had a choice. It could, as Frankfurter urged, find a basis in the regulations for the position the Hamilton board took, and limit its review to a narrow investigation of this kind. Or it could look at the regulations and consider their overall effect with a view to determining what liberties, if any, were being circumscribed. It chose the latter course. The statutes and regulations, Justice John Gordon Gillanders said in his reasons for decision, which was unanimously accepted by the two other members of the court, could not be read separately; they had to be read together. There was, as How had essentially argued, only one question to be decided, and that was whether the contested exercises had religious or devotional significance. In making this determination the Ontario court had the benefit of Justice Jackson’s opinion in Barnette, and Gillanders quoted extensively from that opinion. Unlike Justice Hope, he applied this case correctly. Mr Justice Gillanders agreed that symbols meant different things to different persons, and that one man’s comfort was another’s jest. It was plainly obvious that certain acts, exercises, and symbols to certain people at certain times have certain meanings, which to other people at other times they do not. This fact, Justice Gillanders said, was so obvious from history and observation as to need no more elaboration.[558]
12 The Jehovah’s Witnesses, the record made clear, entertained certain beliefs about the meaning of flag salutes and the national anthem. They believed that both were contrary to scriptural commands. These beliefs were conscientious, and since they were, their nature and significance were not, Gillanders said, at issue. What mattered was that the statutes and regulations absolved boys and girls from joining in exercises of devotion and religion to which they or their parents objected, and they did not specify the circumstances in which that objection could be raised. ‘For the Court to take to itself the right to say that the exercises here in question had no religious or devotional significance might well be for the Court to deny that very religious freedom which the statute is intended to provide.’[559] The regulations, Justice Gillanders said, specifically provided for a pupil who conscientiously objected to either remain but not participate while the exercises were taking place, as long as decorous conduct was maintained, or to retire from the room where they were taking place. Justice Gillanders, on behalf of the court, accepted Hope’s finding that this is all the Donald children had ever done, and he rejected Hope’s finding, which was really an opinion, formed without any basis in fact, that the respectful conscientious objection of the Donald boys had injured the moral tone of the school.[560]
13 The expulsions were, accordingly, unlawful, and Justice Gillanders made a declaration to that effect. The Donald children were entitled to return to school and the school-board was directed to excuse them from both saluting the flag and singing the national anthem. It was not, of course, just the two Donald boys who had benefited from this decision. Witness children across the province and country gained as well, and so too did the children of other Christian sects with similarly firm views about the appropriate degree of separation between church and state.
14 In the immediate aftermath of the decision, the Donald boys continued to find their entry to school barred. The Hamilton Board of Education decided to appeal the decision to the Supreme Court of Canada. A senior counsel and later chief justice of Canada, J. R. Cartwright, was retained to take the case. When the press asked Glen How about this move he replied briefly but aptly: ‘I am suggesting that the board has little to win and nothing to lose.’[561] Indeed, while the board may have had nothing to lose, the Donald children and other children in like positions had a great deal to lose. Their right to attend school and conscientiously object had been upheld by a senior appellate court. If the Hamilton Board of Education wished to challenge that decision, let it do so. But there was nothing to be gained by continuing to keep Witness children out of school, pending that appeal. Mr Justice Hope had found, and so had Mr Justice Gillanders, that the Hamilton school-board had at all times acted in good faith. There was, however, ample reason to believe that this had not been true in the past. There was no reason to believe that it was true now. The board had a legal right of appeal, but in not allowing Witness children to attend school pending the appeal it left no doubt but that it was persecuting them for their religious beliefs.
15 There was no right of appeal to the Supreme Court; it was up to the court to decide whether or not to give leave. A hearing took place on 23 October 1945. Cartwright abandoned the spurious statutory-construction arguments first developed by Walsh and endorsed by Justice Hope. He argued instead that the decision of the Ontario Court of Appeal was sure to have a disturbing effect on public-school pupils in Ontario and across Canada.[562] If the Jehovah’s Witnesses were allowed in this case to conscientiously object, then what was to stop schoolchildren across the country from placing society itself at their whim through the purported exercise of a religious right? It was the same sort of argument earlier made to the court of appeal by O. M. Walsh, when he warned of chaos if ‘245 sects’ were all to be given their way.
16 Cartwright was closely questioned by a recent appointee to the bench, Justice Ivan Rand. Rand had just drawn attention to himself for his dissenting opinion in a case in which a majority of the court upheld the right of the Canadian government to deport Japanese Canadians to Japan. He questioned Cartwright carefully, and when Cartwright had finished his submission the court dismissed his application. They did not even need to hear from How. The next day, just a little more than five years after they were first expelled, Witness schoolchildren in Hamilton were allowed to return to school.
17 For some of them the decision came too late. Their lives were ruined. For others the decision mattered little, for they were busy getting ready for Armageddon. But for all Canadians the decision was an important one. Canadians' right to say no had been tested and affirmed.[563] And for that they have the Jehovah’s Witnesses to thank.
6. Special Consideration
1 When Canada went to war in September 1939, few Canadians thought that conscription would be necessary. The prime minister personally believed that the days of sending great expeditionary forces of infantry overseas were over, and that Canada’s contribution to this war would be largely an economic one. Moreover, in the days following the Canadian declaration of war there was an abundance of volunteers. So successful was the first recruitment drive that such efforts were virtually suspended at a very early date.[564] But with the fall of France and the Nazi subjugation of Europe, it became clear that men were as badly needed as materials. The government passed the National Resources Mobilization Act on 21 June 1940. The act provided that there would be compulsory military service in Canada, but that no Canadian would involuntarily be sent abroad. Lapointe, Power, and Cardin, and Prime Minister King as well, had pledged in the fall of 1939 that conscription for overseas service would not be introduced, and in passing this act the government remained faithful to their pledge.
2 Beginning in September 1940, Canadian men and women over the age of sixteen were required to register for service; this they did virtually without incident. To administer the new act, the Department of National War Services was created, and James Garfield Gardiner, a former Saskatchewan premier who had come to Ottawa following the general election of 1935, was put in charge. In the beginning relatively few NRM Act recruits were called up, and those who were trained for only thirty days. It quickly became apparent that little military training could effectively take place in this short span. Starting in 1941 the training period for those called to duty was extended to four months and, after April of that year, training became duty for the duration of the war in Canada.[565] If the regular-service recruits were permanently assigned, then so too, the government decided, should be those called up under the NRM Act.
3 There were, therefore, two different categories of Canadian soldiers: the volunteers, who were available for duty anywhere; and the NRM Act conscripts or, as the volunteers called them, the ‘zombies,’ who could not be sent overseas.[566] To satisfy political needs in both English and French Canada a compromise had been achieved. However, compromise soon turned to crisis. In 1942, and then again in 1944, Canada faced conscription crises over the need to send reinforcements overseas. The story of those conscription crises has been told before, and well, and need not be repeated here. Suffice it to say that the government decided to conscript men for service overseas, a decision made possible, in part, through the co-operation of Cardinal Villeneuve in Quebec, illustrating once again the important role that he played in keeping Canada united during the war. What is of concern here, however, is how the government treated conscientious objectors to military service, and in particular, what happened to Jehovah’s Witnesses who made these claims.
4 Responsibility for staffing and training of the home-defence program was entrusted to the Department of National War Services. The country was divided and in each ‘division’ a three-member national war services board was appointed to administer, among other things, the call-up regulations for military training and service. Not everyone called up was inducted into the military. Clergymen, police officers, university students, and workers in essential industries were all eligible for exemption from service, and there was provision for persons who conscientiously objected to military service to be ‘postponed’ from military training and service. Thus, persons who fell within these designated classes would not be required to join the military. Responsibility for making this eligibility determination belonged to the national war service boards, which were charged with hearing individual applications for exemption and postponement.
5 Initially, the government decided to call to service under the NRM Act only childless twenty-one-year-old unmarried men or widowers. The class of eligible recruits was gradually expanded throughout the war and by 1945 included single men in their thirties. The intention of the program was to maintain the home army with these conscripts, leaving the volunteers free to serve overseas.[567]
6 An order-in-council of 26 September 1942[568] modified this arrangement by transferring responsibility for administering the registration program and for directing men to both civilian and military service to the Department of Labour as of 1 December. The director of national selective service was placed in charge and the National War Services Regulations were replaced by the National Selective Service Mobilization Regulations. The thirteen administrative divisions were retained, and thirteen judges were appointed to preside over the divisional registrars and mobilization boards. The job of these boards remained the same — to administer the regulations and hear applications for exemption and postponement.
7 In both world wars, Canada has recognized the rights of conscientious objectors. The Military Service Act of 1917 contained a conscience clause, which acted to exempt conscientious objectors from military service.[569] By contrast, while section 18 of the National War Service Regulations and the National Selective Service Mobilization Regulations respected conscience, they did not exempt objectors from military service, but merely ‘postponed’ them.[570]
8 ‘Postponement’ made the issue far more complex. Fact-finding had to be undertaken to determine who qualified and who did not. Recognition of conscientious-objector status did not mean, as it had in the First World War, that the objector was free to do what he wished. Under the regulations it seemed that even if a mobilization board was satisfied of the bona fides of a conscientious-objector claim, it could still direct the claimant to report for military service in a non-combatant role. While this may not have been the regulation’s intent, it was a possible interpretation, and caused great concern among the leaders and members of Canada’s historic peace churches, the Quakers, Mennonites, Hutterites, and Doukhobors.
9 There was another factor to take into account as well. By orders-in-council of 1873 and 1898, descendants of certain Mennonites and Doukhobors had the legal right to refuse military service, granted as a condition of their immigration to Canada. Did this mean that the descendants of these settlers were automatically entitled to postponement, while the descendants of members of these and other religious groups who arrived later had no such rights, requiring them to submit applications to be considered individually? The descendants of one group could hardly be treated any differently than those of another. Besides, how were the mobilization boards to determine to which group a particular Mennonite or Doukhobor belonged?[571]
10 The government really had no choice, following passage of the NRM Act, but to formulate a definitive policy on the eligibility of conscientious objectors for postponement. In 1941, the National War Service Regulations were amended to permit conscientious objectors to perform alternative service, but what that entailed was not spelled out. The historic peace churches, so called because of their well-known and long-standing opposition to war, were concerned that setting of government policy not be done in a vacuum. Most active in this matter were Canada’s Mennonites, whose behind-the-scenes lobbying, beginning soon after the NRM Act was passed, ensured that the conscientious-objector policies of the government met their particular needs.
11 Modern Mennonites are the present-day inheritors of the Anabaptist tradition, which emerged from the religious ferment of the early sixteenth century. There were some 100,000 Mennonites in Canada at the start of the war, primarily German-speaking and in rural areas, and they refused to fight.[572] As a result many Canadians viewed the group (and to most Canadians Mennonites were a monolithic group) with suspicion and concern. The Mennonites were not, some feared, a quaint relic from a bygone era, but were a source of potential disruption, if not a sizeable fifth column, ready to act on Germany’s behalf. This suspicion could hot have been farther from the truth.
12 The appearance of homogeneity within the Mennonite community was misleading as the sect comprised several groups. The first Mennonite migration to Canada occurred after the American Revolution, with Swiss Mennonites relocating in Ontario. In the 1870s, Russian Mennonites arrived, most of them settling in western Canada. A term of settlement of these people, known as the Kanadier, was embodied in an order-in-council and provided for their permanent exemption from military service. Another Mennonite migration, also from Russia, occurred in the 1920s, with settlement in both Ontario and western Canada. The Russlaender, another Russian group, followed. This group was viewed with some misgivings by the Swiss and Kanadier settlers, because they had compromised the Mennonite position by agreeing to participate in alternative, that is, non-combatant, service.
13 One thing all of Canada’s Mennonites were agreed on was the necessity of presenting a united front to the federal government when war came. In March 1940, the Mennonite central relief committee was formed to represent all Mennonites in the west. The effort failed, however, as the Kanadier Mennonites had no intention of associating themselves with the Russlaenders and possibly jeopardizing their special legal status, believing that since the Russlaenders had compromised on principle once, they were likely to do so again. Accordingly, the Kanadier formed their own organization, the Aeltestenkomitee (the Committee of Elders). By September 1940 Ontario Mennonites, in conjunction with other peace churches in the province, notably the Quakers and the Brethren in Christ, formed the Conference of Historic Peace Churches.
14 In no time at all it became apparent that the division between the Russlaender and Kanadier groups in western Canada was irreparable. The Russlaender saw no reason not to perform non-combatant military service, for example, in the medical corps, which would provide young Mennonite men with an opportunity to practise brotherly and Christian love, while the Kanadier were anxious to guard their postponement status. It was a matter of principle, and it could not be resolved. However, the Russlaender’s Mennonite Central Relief Committee and the Conference of Historic Peace Churches agreed to co-operate and beginning in November 1940, began to meet with authorities in Ottawa to work out the details of conscientious postponement from military service during the war.
15 Some time previously the Conference of Historic Peace Churches had submitted a lengthy proposal outlining the types of activities Mennonites and other conscientious objectors could and would agree to participate in should they be called up for service by the Department of National War Services, the government agency charged, at this time, with the administration of selective service, and the NRM Act. For their part, the Mennonite Central Relief Committee submitted recommendations later. In brief, the two proposals urged that government mobilization boards grant postponement from military training on the basis of lists of names supplied to them by church leaders. The advantage in this procedure, the Mennonites argued, was elimination of case-by-case review of requests for conscientious postponement. In exchange for the automatic postponement, the Mennonites and other conscientious objectors would willingly perform alternative service, provided it was not military and was subject to civilian control.
16 Neither Justice T. C. Davis nor Major-General L. R. LaFlèche, both associate deputy ministers of national war services, responded enthusiastically to these suggestions. First of all, they were not convinced that special provision should be made for conscientious objectors. Administrative and other concerns argued against establishment of special arrangements for them, and the expense of a parallel machinery would be enormous. The government proposed instead that Mennonites and others claiming to be conscientious objectors be processed by the mobilization boards in the usual way, and once their status was confirmed they would be assigned to military camps for non-combatant service. The associate deputy ministers were even prepared to concede that this service could be performed in civilian clothes.
17 The government proposal was rejected; the Mennonites would not serve under military control in military camps, in uniform or not. On 13 November 1940 a new joint proposal was submitted. The Mennonites and other conscientious objectors repeated their interest in, and agreement to, alternative service, this time, however, spelling out in detail what that service should be.
18 The Mennonites and representatives from the other historic peace churches wished their members to be directed to agricultural work or to work in the nation’s forests. They wanted the work to be done on crown land to ensure that the benefit from their labour accrued to the nation as a whole. It was also suggested that the men in the camps receive first-aid training to equip them to respond in the event of a medical epidemic or some other national emergency arising from the war. The camps were to be under the direction of civilians, and the joint statement urged that they be open not just to Mennonites and members of the other historic peace churches, but to all conscientious objectors, regardless of religious affiliation. This latter suggestion was of major importance. There were many conscientious objectors in Canada who did not belong to one of the historic peace churches. Moreover, as then drafted, the postponement regulation applied only to conscientious objectors who belonged to a religious denomination that had, as a tenet of its faith, opposition to bearing arms. The new proposal was that postponement and alternative service be available to all conscientious objectors, as a matter of principle.
19 The joint proposal was not warmly received by the authorities, but Justice Davis and Major-General LaFlèche agreed to give it their consideration. Then, B. B. Janz, a Russlaender representative from the Mennonite Central Relief Committee, acting entirely on his own, submitted a new proposal, on 14 November, to the Department of National War Services. It was almost a carbon copy of the settlement worked out with the Russian czar at the turn of the century. Civilian supervision of alternative service and work of a forestry or agricultural nature, two of the main points of the joint proposal, were dropped and were replaced by a scheme whereby alternative-service workers would be directed into medical corps supervised by the Red Cross. General LaFlèche wired the other Mennonite leaders and the Conference of Historic Peace Churches, inquiring whether this new, and different, proposal was acceptable to them.
20 Needless to say, it was not. The Conference of Historic Peace Churches was completely opposed to any service under military control; the Mennonite Central Relief Committee was largely amenable to alternative service of this kind, but having taken a joint position with the Ontario group it was determined to stick to the terms of the joint agreement. Representatives from the Mennonite Central Relief Committee and the Conference of Historic Peace Churches returned to Ottawa, but in a matter of days Janz had seriously damaged the Mennonite and conscientious-objector cause.
21 Major-General LaFlèche now pressed for non-combatant conscientious-objector service under military control in the medical corps. The Mennonite and other church leaders could not accept this proposal, and in a meeting with Major-General LaFlèche, also attended by B. B. Janz, they completely repudiated Janz’s statement of 14 November. The major-general took a hard line. What would you do, he asked the assembled pacifists, if the penalty for not accepting military service was to be shot? The answer was, we will be shot. In fact, Bishop Ernie Swalm of the Brethren in Christ, who had served time in jail during the First World War for refusing to accept military service, estimated that half of the members of his church would willingly die. Understandably unhappy with the progress of the negotiations, the church leaders requested a meeting with the minister, J. G. Gardiner.
22 Gardiner, a Saskatchewan native, former premier of the province, and then federal minister of agriculture, had more than a passing acquaintance with Mennonites, the large majority of whom made their living on the land. That did not mean that he was necessarily sympathetic to their cause. Many western farmers were concerned about large Mennonite land holdings and resented their agricultural success. Gardiner, as it turned out, was not among this group. Presented with their problem, he was able to appreciate its dimensions, and declared that there were many things Mennonites and other conscientious objectors could do without going to war. ‘We will see that you get to do them,’ he said, concluding the meeting.[573]
23 B. B. Janz continued to meddle, but to little avail. On 24 December 1940 PC 7215 was passed providing for postponement from military training, largely along the lines of the joint statement submitted to the government on 13 November 1940. Section 18 was amended to allow anyone to make a conscientious-objection claim, not just persons belonging to a religious denomination that prohibited the bearing of arms as a matter of faith. The effect of this important change was to make application for conscientious objection a matter of individual choice.[574] The Kanadier Mennonites, who had eschewed any negotiations with the government in the hope that they would continue to enjoy complete exemption from any kind of service, were dismayed over this amendment, but their chance to make their case to the government had come and gone. Kanadier youth would be subject to the same regulatory regime as everyone else.
24 Under the postponement scheme the options included alternative service in a civilian camp, non-combatant training in a military camp, or first-aid training outside a military camp. Of these three alternatives available to persons postponed by mobilization boards, the first named made the most sense. The second was poorly conceived, as it quickly became apparent that military commanders would not accept these men into their ranks. The effect, they said, would be destabilizing, particularly since the others in their charge were conscripts and not volunteers.[575] The third option was of relatively little use, unless the men trained were later assigned to military units, and there was little likelihood of them agreeing to that.
25 Passage of the order-in-council had no immediate effect. Very few men were being called up for service on the home front; Canada’s war effort was initially dedicated to supplying Britain with much-needed military supplies, just as Mackenzie King had hoped. This situation changed, however, in 1941, as Canadian volunteers began to make their way overseas. On 29 May 1941 Gardiner announced that the first call-up for alternative-service work would begin the following month.[576] Alternative-service camps were established in five national parks.[577] The men directed to these camps were given room and board and paid fifty cents a day. In persuading Ottawa to accept this plan, the Mennonite Central Relief Committee and the Conference of Historic Peace Churches succeeded in both surmounting military and public suspicion of those who had applied for postponement as well as creating a program of service acceptable to the vast majority of Canadian conscientious objectors and largely agreeable to the public as well.
26 However, the program did not garner universal acceptance. In fact, a number of mobilization-board chairmen expressed disapproval of the plan, and encouraged Ottawa to vastly broaden the scope of alternative-service options. As one board chairman observed, alternative service added nothing to the war effort, annoyed the old soldier, and was unsuited to many educated Mennonites and other conscientious objectors who appeared agreeable to participating in any dangerous war service, provided, of course, it did not involve the taking of human life. Some of the alternative-service work was, it is true, relatively useless insofar as the prosecution of the war was concerned. Yet over the long term some of this work proved useful for the country. Conscientious objectors fought forest fires and cleared a right-of-way for the future Trans-Canada Highway, providing that project, which did not formally begin until 1950, with a significant head start. Likewise, some of the reforestation projects in British Columbia continue to pay dividends today. But in 1940 these benefits of alternative-service camp work were not readily appreciated, and perhaps rightly so. The situation was made worse by farmers, logging operators, lumber-mill operators, and even the Canadian Pacific Railway asking that these alternative-service workers be directed to them, since, with labour in short supply, it was exasperating to see good workers planting seedlings in isolated camps. Indeed, the general labour shortage was so serious that it was discussed at the highest political levels. What would bring matters to a head was the change in the scope of the alternative-service program.
27 Responsibility for the program had been transferred to the Department of Labour at the end of 1942 but no changes had been made to the types of work postponed objectors were assigned to perform. That mistake was now corrected. L. E. Westman, a Toronto publisher who came to work in Ottawa at the start of the war, was appointed chief alternative-service officer. Westman, an intelligent and dedicated public servant, shared the prejudices of his generation and would never come to understand conscientious objection to war. What he did understand was his job, which he believed was to make the best possible use of available resources and thereby assist in the prosecution of the war.
28 After reviewing the situation, Westman determined that the best use of alternative-service workers was in the labour force. Indeed, this suggestion had already been made but until Westman intervened, the only way a conscientious objector could be released from camp was for compassionate reasons or for a farm leave of limited duration. Westman wanted conscientious objectors to contribute meaningfully, whenever possible, to the economy. Many conscientious objectors endorsed this view; they did not want to fight, but they wanted to make a contribution. As a result, new regulations were passed,[578] and conscientious objectors began to be redirected from the camps to positions on farms, in industry, and wherever there was demand for their skills. The pacifists considered this a great victory and believed that it gave their movement legitimacy. Whether it did or not was unimportant to anyone but them. The redirection of labour helped Canada contribute to the Allied war effort and that was what mattered. All conscientious objectors were eligible to participate in this program of alternative service. All they had to agree to do was to work where directed and to contribute a portion of their earnings, that is, the amount of their market wage minus twenty-five dollars a month, to the Red Cross. The intention of this requirement was to ensure that no alternative-service worker benefited financially from his conscientious objection to bearing arms.[579] Alternative-service officers were appointed in those mobilization districts where a large number of conscientious objectors were found, including Toronto, London, Winnipeg, Regina, Edmonton, and Vancouver.
29 Most conscientious objectors welcomed the new regime. Overall, about 12,000 men during the war received postponement as conscientious objectors. All but a handful of these men accepted the conditions for alternative service outside the camps, and most were directed to agricultural service, often the family farm. For those who refused to accept out-of-camp alternative service, the camps became places of detention.[580] There were few Mennonites among that group, as Mennonites were enthusiastic about the opportunity to make a more direct contribution to the national good and chafed to do more. B. B. Janz, who had sorely tested the fragile unity among the peace churches in 1940 over this issue, finally succeeded, in the fall of 1943, in convincing the authorities to allow conscientious objectors to serve in the Royal Canadian Army Medical Corps and in the Canadian Dental Corps.[581]
30 The Mennonites were able to shape the alternative-service system in such a way as to suit their own needs. Their integrity, their co-operative reputation (some said, docility), and their obvious willingness to work hard for the national good served them well,[582] as these characteristics enabled them to negotiate alternative service outside of military control, to leave the camps, and to return to their communities. Although there were never more than a few thousand of them, they succeeded in attracting the attention of the authorities, who understandably were occupied with problems far more pressing than Mennonites' and the historic peace churches' views about war. It is interesting to observe that, notwithstanding conscientious objection to war, many Mennonites actually enlisted. Estimates as high as 50 per cent of those eligible have been suggested by some historians, while others put the number closer to 25 per cent of those eligible for military service.[583]
31 More important than the numbers of Mennonites who actually served was the fact that they benefited from official comparison with other conscientious objectors, most notably the Doukhobors and the Jehovah’s Witnesses. To a lesser extent, the same is also true about official attitudes towards Quakers, who left the camps for alternative-service work closer to home. While opposed to combatant service, these men were willing and anxious to assume the risks of war, and many volunteered to serve in an overseas ambulance unit sponsored by the Canadian Friends Service Committee.[584] The government could not but help take positive notice.
32 In marked contrast to the Mennonites, the Doukhobors went into the war with a bad official reputation — the reputation of the Sons of Freedom for arson and nude demonstrations tainted the entire sect — and they left the war with that reputation intact. Untold problems were caused by Doukhobor refusal to register under the NRM Act. The authorities, confronted by non-compliance on a massive scale, decided that the best response was no response. Indeed, a secret cabinet directive made this policy official. It was felt ‘that to compel universal compliance in the communities in question would involve a very heavy undertaking and that no substantial effort could be anticipated from the Doukhobors so drafted for alternative service.’[585] Doukhobors were, in effect, exempted from service of any kind. Those few who did comply with the regulations were assigned to all-Doukhobor work crews for road-building.[586]
33 The Jehovah’s Witnesses, while far fewer in number, distinguished themselves early on from the other conscientious objectors. They did not co-operate. They did not negotiate. They were dogmatic, disliked, and, as far as the authorities were concerned, unreasonable and not very good workers. Indeed, the mobilization boards were far from convinced that Jehovah’s Witnesses were conscientious objectors.
34 Unlike the Mennonites and members of the historic peace churches whose bona fide conscientious-objection claims were generally accepted without reservation, the Jehovah’s Witnesses making such claims were not well received. The Jehovah’s Witnesses believed that the state had no right to postpone them from training or service. Witnesses had, they claimed, been set apart by God for the special task of proclaiming the end of the world. They conscientiously objected to the Second World War, but they were not pacifists, for they would willingly take up arms on God’s behalf. Military or alternative service for the Satan state was another matter, and both were equally unacceptable, since they involved a breach of their covenant with God to spread the good word of mankind’s imminent end. Jehovah’s Witnesses argued that they were not just entitled to postponement from military service, but to complete exemption by virtue of the fact that every male Jehovah’s Witness was a minister. Their faith was, they claimed, a priesthood of the believers; believers were ministers; and ministers were entitled to what amounted to exemption under the regulations. Another regulation, section 3(2)(c), said that ‘regular clergymen or a minister of a religious denomination’ were not required to perform either military or alternative service. To claim ministerial status was more than problematic when the group was banned, for it was tantamount to admitting to leadership of an illegal organization, an offence under the Defence of Canada Regulations. When the ban was removed the claim was more readily made. In the meantime, making a conscientious objection to war was the only practical option. National registration began in August 1940, and by November the issue of how to treat Jehovah’s Witnesses who claimed to conscientiously object arrived at the deputy minister of justice’s office in Ottawa. The associate deputy minister of national war services wanted a legal opinion about the mobilization status of male members of the recently outlawed organization.
35 The first case arose in Prince Edward Island, where the chairman of what was then the local national war services board determined that the Jehovah’s Witness in question sincerely held a conscientious objection to military service and so was entitled to postponement. But he was concerned about this determination, and so decided to check with Ottawa first.[587] The legal question that needed to be addressed was whether Jehovah’s Witnesses came under section 18 of the National War Services Regulations. The problem Witnesses faced was that they were not members of an ‘organized religious denomination.’ They were members of an illegal organization. On 19 November 1940, the deputy minister of justice, W. Stuart Edwards, gave his opinion.
36 The Jehovah’s Witness faith was not, Edwards wrote, a religion. No reasons were given for this opinion, which went on to add that, as a result, Jehovah’s Witnesses did not fall within the exceptions to military service provided for in section 18 of the regulations.[588] Edwards’s opinion was not a reasoned assessment of the state of the law; it was a conclusion, and as such did not, in theory, affect the duty of every mobilization board to hear or receive evidence and arrive at its own decision in every application for postponement. Legal theory and legal practice often diverge, and this was such a case, for the effect of the deputy minister’s opinion, which was distributed to all mobilization boards, was that Jehovah’s Witnesses were regularly denied recognition as conscientious objectors. Those called up were ordered to serve in the conscript ranks as was everyone else.[589]
37 A medical examination was a formal pre-condition to enrolment in military ranks. It was at this stage that many Jehovah’s Witnesses would be identified to military authorities, for they invariably refused to co-operate in the exam. They could not be formally enrolled as a result, but they were still subject to military discipline. Other Jehovah’s Witnesses, unaware of its legal significance, took the medical examination and then refused to put on a uniform. In both cases, the charge they were guilty of was the same: disobeying a lawful command.[590] Some commanding officers took a hard line when faced with these recalcitrant conscripts. ‘He will be ordered to put on the uniform — and he will put it on,’ said Lieutenant-Colonel R. B. Harkness, who was in charge of the military training camp in Newmarket, Ontario, where Willem Hansler, a Jehovah’s Witness, found himself, following the refusal of his local mobilization board to recognize his conscientious-objector claim. Hansler refused to put on the uniform, and soon enough he was in hospital, suffering the results of being put into his uniform against his will.[591]
38 There was no official policy that Witness conscripts be treated in this way. In fact, many military officers were disturbed by this case and other related ones. In August 1943, for example, the deputy minister of the army wrote the deputy minister of labour and asked him to look into whether or not the mobilization boards were doing their job. According to the deputy minister of the army’s letter, there were numerous incidents occurring in which Jehovah’s Witnesses were refusing to obey orders and, as a consequence, being sent to the stockade. The army wanted to know if the mobilization boards were ‘properly functioning with regard to investigation and disposal of the cases of bona fide conscientious objectors.’ Reading between the lines, what the deputy minister of labour, Arthur MacNamara, was really being advised was that the army did not want the diehard conscientious objectors, and that the mobilization boards should take note.[592]
39 In fact, numerous Jehovah’s Witnesses claimed that they were beaten for following their beliefs instead of their commanding officer’s orders. While many incidents of this kind occurred,[593] false claims of mistreatment were also made. The system was partly to blame. When a Jehovah’s Witness refused to co-operate in a medical exam, or to obey any order for that matter, the military had a choice. A court martial could sentence him to either a military or a civilian prison. Those Jehovah’s Witnesses who were sentenced to civilian prisons drained state resources but caused little difficulty. Those sentenced to military detention drained resources and caused untold trouble because they refused to accept military command.[594]
40 ‘Handling of Jehovah’s Witnesses,’ the commanding officer of one district wrote to headquarters, ‘presents a very difficult problem. We have at all times 150 to 200 men in custody or detention. From time to time these Jehovah Witnesses refuse to obey orders when on parade with the other men. If these cases of disobedience were ignored it would not be long before we were faced with a mass refusal to carry out orders.’[595] Detention was one thing, but being beaten for refusing to follow orders was quite another. The Stanley Street barracks in Toronto was a source of a few complaints, but it was an incident at the Fort Osborne barracks in Winnipeg, Manitoba, in the spring of 1944, that attracted national attention.[596]
41 The result, no doubt, of some very bad luck, four Jehovah’s Witnesses found themselves at the Fort Osborne detention barracks in the spring of 1944 instead of at some alternative service camp. It appears that they had just been called up and directed to military training. Naturally, they refused to obey any orders, but in particular, the usual first order to submit to a medical exam. Two of the men had unsuccessfully claimed conscientious-objector status before their mobilization board, a third had not made that claim, and the fourth had ignored numerous orders to report and was finally found in the United States and deported to Canada.[597]
42 Subject to military discipline under the regulations, the four were charged with disobeying an order and were sentenced to varying terms in the Fort Osborne detention barracks, a military jail. Like all other new arrivals at the detention barracks, they were to be given a full military kit, a haircut, and a shower. Soon a storm of telegrams assailed the minister of national defence. The men had, the telegrams claimed, been beaten with ‘fist and sticks’ and given the ‘cold-water treatment.’ It was also claimed that they had been forcibly stripped of their civilian clothes and put into uniform. The minister of national defence, J. L. Ralston, immediately ordered an investigation, and a hearing was held.[598]
43 The board of inquiry heard thirty witnesses, including the complainants, their relatives, and just about every soldier with whom they had had any contact. There was evidence that the four men’s civilian clothes had been removed, and arguably, as the office of the judge advocate general later concluded, with no legal authority.[599] There was also evidence that the water for their showers may have been cold. It was uncontroverted that one of the men had been forced against his will to attend church services and had been denied access to Witness literature. However, the only evidence that the men were beaten came from the men themselves and was not substantiated by medical examination. There were no physical signs of any beatings having taken place. It was noteworthy, in this regard, that none of the men took advantage of numerous opportunities to make complaints of mistreatment to the commanding officer. Instead they made their complaints to their relations on visiting day, who thereupon telegrammed the minister of defence and notified the press. In all these circumstances there was only one conclusion the board could realistically reach: the allegations were unfounded. This information was communicated to Ralston on 12 May 1944.[600]
44 Ralston had, in ordering the investigation, more than discharged his duty. But, probably to put to rest any lingering doubt, he asked the inspector general for western Canada to visit the Fort Osborne detention barracks and investigate the allegations. On 18 May 1944 Ralston had the final report. It fully corroborated the interim report that the minister had earlier read in the House.[601] Intentionally or not, however, for the Jehovah’s Witnesses it had a positive result. While the sentencing of NRM Act conscripts to military prison remained a discretionary matter to be decided on a case-by-case basis, the experience at the Fort Osborne detention barracks amply illustrated to the military authorities that there was nothing to be gained, and much to be lost, by such sentencing. There was provision in the regulations to send them to civilian jails, and following this incident most court-martials began to do so. The practice became entrenched following an amendment to the applicable regulations.[602] Discussion of the allegations in the House of Commons gave the opposition parties another opportunity to take the government to task for its failure to fully implement the recommendations of the Special Committee on the Defence of Canada Regulations on removing the remaining Witness bans.
45 It also gave some parliamentarians an opportunity to raise with the government the whole question of the ministerial exemption as applied to the Jehovah’s Witnesses. Reverend Hansell, who had established himself as their pre-eminent champion in the House of Commons, wanted to know why ordained Jehovah’s Witnesses were not exempted from military service.[603] St Laurent explained that the Jehovah’s Witnesses belief that a man could become an ordained minister as a result of his own compact with God was not a question of freedom of conscience but was subversion.[604] That one man’s subversion is another man’s salvation was missed entirely by St Laurent, and also missing from his thinking was any appreciation that out of ten thousand members (a figure, it must be said, supplied by the Jehovah’s Witnesses), there should be at least one minister. In St Laurent’s view, since all Jehovah’s Witnesses claimed to be ministers, none of them would be recognized as such. Surely, as Joe Noseworthy, a newly elected CCF member from Toronto, pointed out to the House, the group deserved an exemption for one of their leaders.[605] The government said no.
46 In the meantime, little changed. Some Jehovah’s Witnesses were postponed, while others were not. L. E. Westman wrote Major-General H. J. Riley, the head of Selective Service, to say he was having as much difficulty in getting postponed Jehovah’s Witnesses into the alternative-service camps as the army was having in getting them to follow orders. Westman suggested that the Jehovah’s Witnesses were a special case, and he endorsed the recommendation of one of his alternative-service officers that they be used by the army as a ‘labour unit.’[606] Westman did not believe that the Jehovah’s Witnesses were real conscientious objectors since they refused to perform alternative-service work. ‘They appear to expect force to be applied,’ Westman wrote. ‘They object to all suggestions made by the state.’[607]
47 Westman did not want the Jehovah’s Witnesses in his alternative-service camps, since they were less effective as workers than were Mennonites and other ‘real’ conscientious objectors. But the army,[608] after some three hundred courts martial, had had enough.[609] ‘My own opinion,’ Major-General Riley wrote, ‘is that they will never be any use in the Army … I think it might be advisable to point out … that it would be in the national interest to give applicants of this type postponement so that their labour could be employed, instead of having them a burden.’[610] Riley suggested that the Jehovah’s Witnesses already in military detention be discharged and sent to alternative-service camps, while those who were called up for military service should in future be sent directly to the camps.
48 Tremendous resources, from the Department of National Defence, the Department of Justice and the army, were being wasted in trying to make soldiers out of Jehovah’s Witnesses. It was obvious that they had a conscientious objection to the Second World War; it was part of their overall rejection of the secular state. Postponement and alternative service were the only solutions, a conclusion that began to be reached in most cases, following a number of critical events. First, responsibility for the regulations was transferred to the Department of Labour. Second, the conscientious-objection provision of the National Selective Service Mobilization Regulations was much broader in scope than that in the parallel National War Service Regulations. Third, there was a new deputy minister at the Department of Justice; Edwards resigned and was replaced by F. P. Varcoe. And fourth, in October 1943, the Jehovah’s Witnesses were removed from the banned list. How could these four apparently unrelated events affect the treatment of Jehovah’s Witnesses? Each of these developments will be examined in turn.
49 The transfer of authority for NRM Act mobilization to the Department of Labour put the matter into civilian hands; a number of the civilian mobilization boards decided that they were not bound by the November 1940 legal opinion of the deputy minister of justice, and that Jehovah’s Witnesses were entitled under the regulations to conscientiously object. Other boards held to the previous view and ordered that Witnesses be inducted for military service. Clarification of the matter was both required and requested.[611]
50 A significant and related development was the decision of the government, on 14 October 1943, to remove the Jehovah’s Witnesses from the banned list. The legal status of the group had not been completely restored, but the government decision was a clear signal that Jehovah’s Witnesses were a legitimate religious group, and it suggested that the July 1940 ban had been a mistake. On 14 December 1943 the deputy minister of labour asked the deputy minister of justice, in light of all the changed facts, to prepare a new legal opinion in the matter of the eligibility for postponement for conscientious objectors. The legal issue the new deputy minister was asked to address was whether mobilization boards could consistently postpone Jehovah’s Witnesses under section 13(2) of the National Selective Service Mobilization Regulations which incorporated the conscientious-objection provision of the National War Services Regulations but with the important change that membership in a religious denomination, or, as the Jehovah’s Witnesses would have it, a ‘racket,’ was not a pre-condition to postponement.[612]
51 A former trade unionist Humphrey Mitchell, whom Prime Minister King had urged to stand for office and who, upon his election, was immediately appointed minister of labour, urged the Department of Justice to give an opinion that the mobilization boards could consistently postpone Jehovah’s Witnesses. Not only did this interpretation of the regulations seem right, but as Arthur MacNamara, his deputy minister pointed out, it also made a lot of sense. Experience showed that where postponement was refused and Jehovah’s Witnesses were inducted into the service, ‘army authorities have been unable to do anything with them as they have refused to take military training.’ The Fort Osborne allegations provided evidence enough of that. Jehovah’s Witnesses would, MacNamara pointed out, ‘be of much more use to the State performing alternative service.’[613] The parliamentary assistant to the minister of labour, Paul Martin, an ambitious member from Windsor, also urged that the government not just consistently postpone Witness conscientious objectors, but give them the ministerial postponement that would relieve them from any alternative-service work. Martin, who had met with Witness leaders in Toronto, argued that Witness ministers were entitled to the same treatment as ministers of other religious denominations.[614]
52 Deputy Minister of Justice Varcoe was not prepared to accept the suggestion that Jehovah’s Witnesses were ministers. He was, however, willing to agree that they were entitled to the conscientious-objection provisions of the regulations: ‘I am of the opinion,’ he wrote, ‘that Jehovah’s Witnesses entertain a “religious belief” within the meaning of section 13(2) of the Regulations, and my information is that this belief involves a conscientious objection, in certain cases, to war and to participation in combatant service. The regulation therefore enables a Board to postpone the military training of a member of Jehovah’s Witnesses upon being satisfied that the applicant conscientiously objects, by reason of his religious belief, to war and to participation in combatant military service.’[615]
53 As a result of this legal opinion most Jehovah’s Witnesses who had previously been called up, refused to obey military orders, and been sentenced to military detention were discharged and referred back to the mobilization boards. The boards now postponed them from military service and directed them to alternative-service camps.[616] Mobilization boards were also encouraged to postpone new Jehovah’s Witness conscripts: ‘In view of the considerable number of instances which have occurred where the refusal of postponement to a member of this sect, as a Conscientious Objector, has resulted in continued detention by Military authorities, or a series of jail sentences without changing the attitude of the men, due weight should be given to the beliefs of persons who are evidently whole-heartedly members of the sect, when considering their applications for postponement,’ Arthur MacNamara wrote. Furthermore, as the deputy minister pointed out, ‘a man who maintains consistently his position as a Conscientious Objector is more use to the country performing alternative service than in jail or military detention.’[617] The only problem with the policy reversal was that it no longer met Witness needs. Jehovah’s Witnesses could now admit membership in the group, since it was no longer an illegal organization, and men called up for service under the NRM Act began to claim that they were ministers of Jehovah and entitled to exemption from any service under the ministerial exemption provisions of the regulations.
54 These ministerial-exemption claims were virtually ignored, but Jehovah’s Witnesses who were called up were given an opportunity to claim conscientious-objector status. Some Jehovah’s Witnesses personally appeared before their local mobilization board, while other boards asked claimants to make such representations as they wished in writing. The Jehovah’s Witness would then be asked whether he would accept direction to alternative service. An alternate-service officer described to Westman what happened next:
55 These fellows answer, ‘No.’ Then the Boards give them the status of COs. They are referred to me. Then I try to get them into essential work under a CO agreement. They refuse, in every case, to sign any agreement. Then I order them to an Alternative Service Work Camp, knowing quite well that they will not go. Then I go ahead and get an affidavit from the Superintendent of the camp to the effect that the CO has not arrived. Then, after some other preparation, a Warrant is sworn out for the CO's arrest. Then after it is delivered, he finally comes to trial. Then he is given a sentence which carries a rider to the effect that he will be escorted to an Alternative Service Work Camp by the police on the completion of his sentence. Then, finally, the police escort him to a Work Camp.[618]
56 There were approximately seven hundred prosecutions of persons for failure to report to their mobilization board, of which more than 90 per cent were Jehovah’s Witnesses.[619] Forceful government interference apparently cleared the Jehovah’s Witnesses' conscience in a way that voluntary compliance did not.[620]
57 This is not to say that the Jehovah’s Witnesses were model workers and inmates when they got to the camps. ‘They complain continually about illnesses, their inability to work and anything else which they think may annoy or make them difficult to handle,’ Westman reported to MacNamara.[621] M. B. Morison, the superintendent of the Chalk River Camp, suggested that a special camp be opened up for the Jehovah’s Witnesses, ‘low category men, men of doubtful category and generally obnoxious characters.’ The Department of Mines did not have the resources to deal with these types. They were, Morison wrote, a Department of Labour problem and should be treated as such.[622] Westman was not unsympathetic. ‘When Mines and Resources made arrangements for Camps they had in mind the very excellent Mennonite labour that willingly went to Camp and was the best labour they had ever received.’ Now, Westman wrote, they had to deal with ‘problem children.’[623] Maybe a special camp was not such a bad idea.
58 The deputy minister was not convinced that a special troublemakers' camp was needed. Such a camp, MacNamara feared, would feed the propaganda mills. All that the troublemakers needed, MacNamara thought, was a little discipline. Camp authorities, he suggested, ‘might try a little local discipline in these camps by simply refusing to feed men who won’t work, or at least cutting their rations to the minimum.’ If the situation deteriorated, then establishment of a special camp could be considered. In that case, MacNamara thought, it ‘should be in an isolated place, and in it the men should simply be provided with rations and left to feed themselves and chop their own wood, etc.’[624] Penal colonies in the north had been suggested for years but not for conscientious objectors exercising a statutory right. They may have been malingerers, but they were exercising a right given to them by law. MacNamara was undoubtedly frustrated, but his suggestions were ludicrous.
59 In the end, most Jehovah’s Witnesses obeyed orders and carried out assigned work, although from time to time some of them would wander off to spread their message. They never tackled their assigned chores with the enthusiasm of the Mennonites, but they performed some work, and that was better than no work, which is why Westman encouraged mobilization boards across the country to postpone Jehovah’s Witnesses as conscientious objectors. He did not like the Jehovah’s Witnesses, and well into the war he revealed a profound misunderstanding of their practices and beliefs, but he understood that it was far better to have the Witnesses doing something useful than sitting in jail. Westman could not direct the mobilization boards to follow this policy, but he made it clear that this is what they should ideally do.[625] With the deputy minister of justice and just about everyone else in government on side, the mobilization boards followed the suggestion.
60 In any case, the Jehovah’s Witnesses were only marginally happier in the camps than they were in the army. It was, they claimed, an infringement of their religious rights. Two CCF members of Parliament were convinced to take up this latest Jehovah’s Witness cause. Both M. J. Coldwell, now leader of the CCF, and J. W. Noseworthy wrote the minister of labour in August 1944 and asked why the religious liberties of Witness conscientious objectors were being infringed upon. They did not have all the details, but they had heard of some troubles in the Wallaceburg area, a farming community in southwestern Ontario. Westman, in his unrelenting campaign to get the most benefits from the conscientious objectors under his control, had sent a group of forty inmates from the Chalk River Camp in central Ontario to a new camp near Wallaceburg, where they were directed to perform agricultural work in connection with the harvest, at the urgent request of provincial authorities. Since by this point most, if not all, non-Jehovah’s Witness conscientious objectors had agreed to accept alternative-service work outside of the camps, the job fell to Jehovah’s Witnesses.
61 The men were to put to work in the fields under the direction of an alternative-service officer, J. Davidson. Six of the men proved to be ‘agitators and malingerers,’ and were sent back to Chalk River.[626] The remaining men performed their duties satisfactorily, and in a display of good will Westman agreed to let the men go to Wallaceburg two nights a week to attend religious meetings. Soon enough, the men were not just attending religious meetings, but they were canvassing from door to door and soliciting subscriptions for Witness literature. The townspeople were apparently less than appreciative, and one night the chief of police was forced to intervene, in order, it was later claimed, to protect the men from an ‘unfriendly crowd.’ In any case, they were given ‘a piece of advice’ from the police, and letters to members of Parliament soon followed. Labour minister Humphrey Mitchell ordered an investigation, and his deputy set the story straight.
62 We are not dealing with the religious rights of Jehovah’s Witnesses, MacNamara reported, we are dealing with conscientious objectors who have been postponed and directed to alternative-service camps in lieu of military training. As such they were subject to direction and had no right to leave of any kind, for religious reasons or for social ones.[627] When six of the men left work and did not return they were charged under the regulations for absenting themselves from directed work without permission. Five received sentences of one year in Guelph Reformatory, while the sixth was returned to the camp at Chalk River. As Westman subsequently observed, the experiment of directing postponed Jehovah’s Witnesses to work outside the camp had not been successful. They require ‘closer custody supervision than we can give them anywhere other than in an official Alternative Service Work Camp.’[628] The sentences themselves, Westman hoped, would have a positive effect. It was expected that their severity would ‘temper the disobedience to orders of this group.’[629]
63 The chief alternative-service officer became even more set in his negative attitudes about the group. ‘Their approach is parasitical and wholly selfish. Their private lives are without economy or mental balance.’ What vexed him the most, however, was that they were not very good workers. The Wallaceburg harvest had been run at a loss, while the previous year, with a different type of worker, there had been a balance of $800 to be turned over to the Red Cross.[630] Any hope that the one-year sentences would have a deterrent effect quickly proved unreal because, if anything, Witness demands to worship in their own way increased. And so too did the charge that the state was interfering with Jehovah’s Witnesses' religious rights. In the fall of 1944 another letter-writing campaign was begun when the superintendent of the Chalk River camp refused to give his Witness charges leave to attend a convention in Toronto. It was, they said, a violation of their freedom of religion. When the camp superintendent proved adamant, they directed their protests to Westman, who backed up the camp superintendent.
64 ‘I realize,’ he wrote to Clayton Morrell, the leader of the Chalk River group, son of Charles Morrell, and future leader of the Jehovah’s Witnesses in Canada, ‘that the claim will be made that this travel and these assemblies are of a religious nature and of short duration and therefore should be given special consideration. However … I think it will be far better if Jehovah’s Witnesses who have been sent to camp under circumstances familiar to you, and especially prosecution, should remain in camp and cease for the time being to hope to engage in such activities as involve mass assemblies.’ Westman went on to remind the men why they were in the camps in the first place. ‘You have been postponed from bearing arms … The state has asked you to undertake certain work and make certain economic sacrifices because of your postponement … I must suggest that you accept this discipline as reasonable and sensible and that you remember constantly that you are engaged in work in lieu of military service and that in the main your cooperation with the authorities has required considerable legal action and force.’[631]
65 When the Jehovah’s Witnesses received this reply they immediately complained to Westman’s senior, Deputy Minister MacNamara. They were, they claimed, being required to agree, as a condition of leave, to refrain from distributing literature. Westman explained that the alternative-service program only exercised control over the men while they were under direction. When on leave the men could do as they pleased. Yet, there are records suggesting that Westman had recommended to the camp superintendents that they advise Jehovah’s Witnesses given leave to try to keep out of the public eye.[632] The complaints led directly to the end of suggestions of this kind.[633] The issue of Jehovah’s Witnesses' religious rights would not, however, go away.
66 Regulations were passed, providing for religious services in the camps and allowing the inmates to attend religious services and receive visits from religious leaders. Why the Jehovah’s Witnesses needed religious visitors when so many of them claimed to be ministers is far from clear.[634] In any event, the regulations accommodated the respective interests of the state, and the men subject to state control. Most of the conscientious objectors, who understood that as a result of this status they could not hope to enjoy civilian standards of personal liberty. The balance did not, however, satisfy Witness desires, for the Jehovah’s Witnesses believed that free exercise of religion meant the freedom to call on strangers and warn them of mankind’s imminent end.
67 Labour minister Mitchell was sufficiently disturbed by Witness protests that he decided to ask the minister of justice if his department was proceeding correctly. On 26 October 1944 he wrote St Laurent and explained the situation. The Jehovah’s Witnesses, he said, defined freedom of religion as freedom to discuss religious matters with strangers from door to door and freedom to either sell or give away literature in a similar way. Jehovah’s Witnesses also took the view that they should be free to meet among themselves to discuss the Bible from their own point of view. ‘All of these actions,’ Mitchell wrote, ‘are stated to be essential elements in freedom of worship according to their claims.’[635]
68 As Mitchell made clear in his letter to St Laurent, he did not agree with the Witness view. Neither did the commanders of the various alternative-service camps. They believed that Jehovah’s Witnesses, like all other conscientious objectors postponed to an alternative-service camp, did not have any statutory right to leave. The general practice in the camps was for ‘satisfactory workers’ to receive one week’s leave of absence each year. Additionally, and subject to the discretion of a camp commander, a man could apply for and receive compassionate leave in appropriate circumstances. Mitchell knew that in some quarters the very idea of conscientious objection had never been accepted and, in late 1944, with conscription about to be introduced, the public would not likely react with enthusiasm to the idea of Jehovah’s Witnesses being released from the camps to solicit conversations with strangers about the end of the world. There was also the question of whether or not such men, given leave, would return.
69 ‘Our view,’ he concluded in his letter to St Laurent, ‘is that freedom to worship is a personal consideration not involving a second party relationship, and that freedom of worship is amply satisfied by arrangements at camp where the men may come together privately for such exercise of religious rights as they may see fit to pursue. We have taken the ground that freedom to worship does not require us to permit such men any leave of absence for the purpose of calling upon the public, the distribution of literature or the selling of literature of a special character deemed necessary by them for the religious welfare of others.’ In brief, Mitchell wanted to know whether he had gone astray in interpreting the regulations and formulating this policy. Was his a fair interpretation of freedom to worship and practise religion while within an alternative-service camp?[636]
70 On 8 November 1944 he had a reply. It was not, however, from the minister himself. His deputy, F. P. Varcoe, had been passed the letter, and while his views may have diverged from St Laurent’s, they are instructive, nevertheless, for the potentially wide interpretation Varcoe gave to determining what was and what was not a religious act. ‘I have no information,’ he began, ‘to the effect that calling upon members of the public for the purposes of proselytizing or religious discussion and the distribution of religious literature is not a form of worship in the case of this sect. The purpose of an act and the motive behind it rather than the nature of the act would determine whether it is an act of worship. It is possible, therefore, that your refusal to grant the required permission is a restriction on their freedom to practise certain forms of worship in the fullest possible sense.’[637] Thoughtful and intelligent, this opinion was valid. In demanding the right to preach, the Witness members of the camps were arguably seeking to perform a religious act — something that the regulations, broadly read, entitled them to do.
71 Varcoe did not, however, think that the Jehovah’s Witnesses should be allowed to exercise this right — far from it. Every person, his opinion letter continued, ‘under restraint in an alternative service camp, or, for that matter, under military discipline, is subject to a similar restriction on his freedom in relation to worship and religious practices. He cannot choose the time and place for exercising his religious rights.’ ‘I do not,’ he concluded, ‘consider that in refusing these persons permission to leave the camp as requested you have placed them under any greater restrictions as regards religious worship than any other persons under military discipline or engaged in alternative service.’[638]
72 The Jehovah’s Witnesses would not be given leave whenever they wished to attend a religious meeting. Nor would they be given liberty to proselytize while confined to alternative-service camps. Preaching may have been a religious act, but that act, like many others, could, in appropriate circumstances, be circumscribed by the state, such as when those who sought to fully exercise their rights were subject to state supervision. The country was at war, Jehovah’s Witnesses were conscientious objectors, and their freedom in war could not be the same as in peace. It was as simple as that.
7. For Conscience' Sake
1 As of February 1943, it was not an offence under the Defence of Canada Regulations for a Jehovah’s Witness to attend a religious gathering, and as of October 1943 it was no longer illegal to be a Jehovah’s Witness. By these two amendments to the Defence of Canada Regulations the government, whether tacitly or not, had recognized that the Jehovah’s Witnesses were a religious group, and as such, naturally would have religious leaders. Who those leaders were became an issue following the removal of the ban, for the Jehovah’s Witnesses believed that every male member of their faith was a minister; thus, they argued, as the National Selective Service Mobilization Regulations exempted ministers from selective service, all their male members were exempt.[639]
2 The belief that every male member was a minister was a long-standing tenet of their faith. When it was an offence to be a member or leader of an illegal organization, Jehovah’s Witnesses could hardly be blamed for not volunteering information about their real roles. With the legal status of the organization restored, Jehovah’s Witnesses could identify themselves for what they were, ministers of the gospel, without fear of prosecution.[640]
3 Occasional claims by Jehovah’s Witnesses for exemption had been made in the past.[641] For example, on 1 March 1943 The Globe and Mail reported the decision of Ontario Justice Ian Macdonnell, who ruled that a Witness minister could not be considered a minister in the accepted sense and as such was not exempt from what were then the National War Service Regulations. The case, an appeal from a magistrate’s ruling sentencing Teije Hoornveldt to thirty days in jail for refusing to comply with an order to report for military training, was one of the first of its kind.
4 The appeal-court judge based his decision on an analysis of the meaning of the word ‘minister,’ and he consulted a number of dictionaries to assist him in this task. The judge was led to define a minister as someone who served as a pastor of a church or a clergyman of a religious organization authorized to preach or administer its sacraments. According to Justice Macdonnell, Hoornveldt did not meet the requirements of this definition. The fact that Hoornveldt ministered to some seventy-five homes a month in door-to-door work was not sufficient to meet the definition, for the occupants of these homes had not invited Hoornveldt to minister to them and they never met for prayer in a group.[642] Justice Macdonnell obviously had a very conventional notion of what a minister was. The Hoornveldt case was, however, an exception, as most Jehovah’s Witnesses asked to be postponed as conscientious objectors during the ban.
5 Beginning in January 1944 claims for postponement were no longer made. Jehovah’s Witnesses now ignored any call to report for military training on the basis that they were ministers and, therefore, exempt. ‘Being members of the clergy or Ministers of a religious denomination, [we] are not subject to the Regulations,’ was the argument they made, ‘and therefore, cannot be compelled to appear before the board to prove [our] contentions.’[643] Jehovah’s Witnesses who now appeared before mobilization boards did so under police escort.[644] Charges were invariably filed, and when they were finally heard in court the Jehovah’s Witnesses put forth the ministerial-exemption defence. One of the first such cases following the removal of the Witness ban came before Supreme Court of Ontario Justice Hope, who had been the presiding judge in the Donald case. Hope heard evidence, and ruled that the Jehovah’s Witness was not a minister.[645] No reasons for decision appear to have been given.
6 A second case was fought in British Columbia, and Vancouver lawyer Walter C. Hodgson took the case of a Jehovah’s Witness who had been refused ministerial recognition. The man in question, Earl K. Stewart, was ordered to report for military training. Stewart refused the order and, as he intended to make his case a test one, he was arrested. In early 1944 the case went to trial.[646] The local crown attorney, S. J. Remnant, was worried about whether he would be able to win the case, and wrote Ottawa to ask for guidance. In this appeal for assistance he set out the essential conundrum the case raised.
7 ‘All this brings me to this point,’ Remnant wrote:
8 Assume that Mr Hodgson calls as witnesses some twenty or thirty people, each of whom swears that he is a member of Jehovah’s Witnesses, that Jehovah’s Witnesses is a religious denomination, that they follow closely the teachings of the Bible, that they consider it their one object and motive in life to spread the gospel by going from house to house and talking about Christ and his works and the teachings of the Bible, that they meet together as a body for religious worship, and that Stewart is their minister; who is to say them nay; who is to say that they are not a religious denomination, who is to say that the man they choose to look upon as their minister is not their minister. We know that they recognize the same God as is recognized by the established churches of this country, the Church of England, the Presbyterian Church, the United Church to mention only three, but even if their god were some other god who is still to say that they are not a religious denomination.[647]
9 There were problems with this reasoning, and Remnant recognized some of them. If this argument were turned into a principle of law, who was to stop any group of crackpots from forming a group and electing one of their own for the purpose of avoiding national service? However, just because such an attempt was made did not necessarily mean that it would succeed. A mobilization board could refuse to postpone, and when it did, the question could be referred to a court to decide when the unsuccessful claimant refused to report and was, as a result, charged with violation of the regulations. Alternatively, regulations or guidelines could be drafted that set out in more specific terms what criteria mobilization boards should consider when faced with a ministerial-exemption claim. An appeal tribunal could also be established to hear appeals from either side. It was most unlikely that widespread fraud could be maintained for very long, and even if the occasional individual was able to duplicitously avoid national service, the cost to society would not be very great.
10 There were some very important issues to be considered in the Stewart case.[648] In early February the case came to trial before Judge Charles J. Lennox. Because of the way the regulations were worded, Stewart had the legal onus of convincing the court that he had a defence to the charge of failing to report and it was, therefore, necessary for him to lead evidence on this point.
11 Born a Jehovah’s Witness in 1915, Stewart had been preaching since 1933. In 1938 he gave up his secular job and devoted himself to spreading the gospel. Some documents attesting to this status were entered into evidence but others were not, having been destroyed by Stewart when the Jehovah’s Witnesses were banned. He had not been ordained, as that term was conventionally understood, but he had, like many other Jehovah’s Witnesses, conducted services and engaged in house-to-house work, and had been, for a period of time, a zone servant, which meant that he had overall responsibility for numerous congregations. This evidence was compelling, and it suggested that Stewart was, as he said, performing ministerial work.[649]
12 Stewart was, however, the only person called to testify on his behalf. None of his congregants provided evidence substantiating his claim. Thus, one man was asking the court, on the basis of his uncorroborated evidence, to recognize his ministerial-exemption claim. Perhaps the missing evidence would not have materially affected the ultimate disposition of the case, but its absence hardly helped.
13 In the end Stewart was decided on the basis of an earlier decision, Saltmarsh.[650] Saltmarsh was one of Jehovah’s Scottish Witnesses who ignored a summons to report for a medical examination. (In Scotland, as in Canada, these medical exams were a prelude to induction.) Saltmarsh was convicted for violating the order, and he appealed the conviction to the High Court of Justiciary, Scotland’s highest criminal court. Saltmarsh claimed that as a minister of a religious denomination he was exempt from service. The Scottish judges heard evidence about his ministerial position, and it is fair to say that they were far from impressed by the method of his ordination: an appointment letter signed by another Jehovah’s Witness. The judges concluded that Saltmarsh was not a minister, and his appeal was therefore denied.
14 While it was appropriate for Judge Lennox to look at similar cases, particularly ones decided elsewhere in the Commonwealth, his job was to decide the case before him on its particular facts. Yet Judge Lennox did not review the facts and consider them in light of the law, including the Scottish case and any other case on point, and then come to a reasoned decision. Rather, he simply adopted the reasoning in the Saltmarsh case and found Stewart guilty.
15 This raised an interesting legal issue. Since Stewart was guilty, the judge had the power to order him taken to a military camp for military training. But that, Defence Attorney Hodgson pointed out, would mean that Stewart came under military control. And if he did, his rights of appeal would be prescribed by military law. Hodgson suggested that Stewart be sent to jail. ‘It is the first time that I have asked the court to send a man to gaol,’ Hodgson remarked.[651] The reason for the request was not lost on either the judge or the crown attorney. The case had begun as a test one, and the fight was not over yet. Stewart immediately launched an appeal. The crown attorney did not oppose this disposition, and the judge complied.
16 In the meantime, another case came up, in Sudbury. The presiding judge indicated that he thought the Jehovah’s Witnesses were a religious denomination, although he rejected the claim that the person before him was a minister.[652] The same result was reached in the case of Charles Bryce Davidson. This man had trained at Gilead Bible College, a Jehovah’s Witness Bible school in upstate New York. He worked full time as a minister until he was called up. Davidson claimed that, as a minister, he was exempt. His request was turned down by his mobilization board. Davidson appealed to a county-court judge and then to the Manitoba Court of Appeal. He lost in every instance and was ordered to report for military training. When he refused to put on a uniform, he was court-martialled and sentenced to eighteen months in the Fort Osborne detention barracks, where he claimed that he was abused.[653]
17 Fighting these cases in court did not force the government’s hand, if that is what the Jehovah’s Witnesses intended. If anything, it caused the government to retrench. The matter was before the courts so let them decide, seemed to be official policy, although not for long.[654] Westman, in a bid to resolve the matter, and as suggested by Deputy Minister MacNamara,[655] travelled to Toronto for consultations with W. Glen How. What he wanted to do was arrive at some procedure for designating ministers that was acceptable to both government and the Jehovah’s Witnesses.[656] The Jehovah’s Witnesses had earlier proposed that they supply the government with a list of their ministers and that the government change the regulations to exempt full-time preachers from any service requirement.[657] No agreement on this or any other proposal could be reached, apparently because the Jehovah’s Witnesses would accept no compromise position. Their claim that all of their male members were ministers was one the government steadfastly refused to accept.
18 The minister of justice, however, had a suggestion, and on 28 February 1944 St Laurent wrote to Labour Minister Mitchell, recommending that section 3 be amended to define a minister or clergyman as someone authorized by law to solemnize marriages. ‘Otherwise,’ St Laurent wrote, ‘all these religious cranks are apt to claim that they are clergymen ordained by the Deity itself, under the terms of Holy Scripture.’[658] Mitchell asked a capable Department of Labour researcher, Edith Lorentsen, to look into St Laurent’s proposal, and after he received her analysis he contacted St Laurent.[659] Mitchell agreed that St Laurent’s suggested amendment would ‘take care’ of the Jehovah’s Witnesses. Mitchell worried, however, about what effect the amendment would have on other denominations, such as Seventh-day Adventists. There seemed to be little cause for concern in that the courts had not yet sustained a Witness ministerial claim. Mitchell recommended that matters be left alone.[660]
19 While no court had yet recognized any Jehovah’s Witness’s ministerial claim, no court of appeal had yet heard the issue (the decision of the Manitoba Court of Appeal came later). In April 1944 that situation changed when the Stewart case was argued before the British Columbia Court of Appeal. After three days of argument, the three-man court retired to consider its decision. At the end of the month Justice Sidney Smith issued the court’s judgment. The appeal, in short, was denied. Even if the Jehovah’s Witnesses were a religion, the appeal court was convinced that Stewart was not a minister ‘in any sense in which that word can reasonably be used.’[661] Like Judge Lennox, Justice Smith came to this decision following his examination of the Saltmarsh case. The only documentary evidence Stewart had offered about his ministerial status was a November 1939 letter identifying him as such issued by the New York office of the International Bible Students Association. Stewart testified at trial that the International Bible Students and two Watchtower Bible and Tract societies were separate from the Jehovah’s Witnesses, as these groups were still banned. But this testimony boxed him in, for he had introduced evidence of ministerial status not formally issued by the Jehovah’s Witnesses but by one of these still-banned groups he now claimed was unrelated to the Jehovah’s Witnesses. He also testified that he had subsequently been appointed a minister by the Jehovah’s Witnesses after that group had its legal status restored. However, according to Justice Smith, his testimony regarding the latter appointment was ‘of such a flimsy nature and so entirely unconvincing that in my opinion the learned trial judge was fully justified in not attaching any evidentiary value thereto.’[662] The appeal was therefore denied.
20 Loss of the Stewart ‘test case’ did not unduly discourage the Jehovah’s Witnesses. They continued to issue ministerial certificates, and Jehovah’s Witnesses who were called up for military service continued to ignore the orders and wait for the authorities to make the first move. When brought to trial, as most were, since the policy of the government was to prosecute in every case,[663] the unwilling recruits would give the Stewart defence. With a judgment of the British Columbia Court of Appeal as authority against them, not to mention the ubiquitous Saltmarsh case, the Jehovah’s Witnesses were routinely convicted. As a test case, Stewart could have been better argued. Another test case was prepared, and the minister this time was long-standing Jehovah’s Witness, Leo Greenlees.
21 Greenlees, a Witness minister who had been engaged in full-time service since 1931, submitted in May 1943 to a medical examination, following which he was certified fit for military training. Greenlees then wrote the registrar of the Selective Service in Toronto and explained that as a minister of the gospel he was exempt from the operation of the regulations. Inexplicably, one year passed before anything happened. But on 7 June 1944 Greenlees was ordered to present himself before his local mobilization board for a hearing. Instead of appearing, Greenlees wrote a letter claiming that he was not subject to the jurisdiction of the board by reason of the section of the regulations that provided for ministerial exemption. On 17 June 1944 he was told that unless he immediately gave reasons for his failure to appear before the board, action would be taken against him, meaning a short prison term for his failure to comply, after which he would be taken under escort to an alternative-service camp.
22 Jehovah’s Witness lawyers Cohen and How thought they had good facts with which to convince a court that Greenlees was entitled to the ministerial exemption. They decided to take the offensive, and began an action in the Supreme Court of Ontario, in which they asked the court to give them a declaration that Greenlees was a minister of a religious denomination, who therefore fell within the exemption provided for in the regulations. While there were a number of technical legal matters that had to be considered, there were only two substantive questions in issue: first, whether Greenlees was a minister of the Jehovah’s Witnesses; and second, whether the Jehovah’s Witnesses were a religious denomination. The way the exemption regulations were worded, a person had to be both a minister and a minister of a religious denomination to be exempted.
23 Percy Chapman, who ran the Jehovah’s Witness headquarters in Toronto, testified, as did Hayden Covington. The two told the court how the Jehovah’s Witnesses operated, and enlightened the presiding judge about the beliefs of the organization. It must have been very confusing to Justice Frederick Drummond Hogg. These people were against religion but said they were for Christianity. However, they did not teach the gospel as other Christians did, by services conducted in churches, but by going from house to house. Their organization was a bit mysterious, and they claimed that every male was a minister, but they had no ordination ceremony to properly induct the clergy into their ranks.
24 The plaintiff himself fit this mould. He had come to Canada from Scotland and began, in 1932, to devote his activities to the interests of Jehovah’s Witnesses. He became a minister in the same way as everyone else and was never formally ordained. His ministerial work largely comprised preaching the gospel from door to door. He also, Mr Justice Hogg heard, officiated at meetings of members of the group, directed studies, and conducted funerals and services welcoming new members. Moreover, he assisted in administering the Toronto office. In January 1944, after the Jehovah’s Witnesses were removed from the banned list, he received a letter announcing his appointment as ‘company servant.’[664]
25 Like Judge Lennox in British Columbia, Justice Hogg was very interested in the Saltmarsh case. But unlike Judge Lennox, he also had a keen interest in the facts of the particular case before him. And he was disturbed about the claim that every Jehovah’s Witness was a minister. Justice Hogg observed that at the same time that a man became a member of the Jehovah’s Witnesses, he also became one of their ministers. ‘This circumstance, in my opinion,’ Justice Hogg wrote, ‘is entirely contrary to the conception of one who can be termed a minister of a religious denomination.’[665] A minister, at least a minister as contemplated by the regulations, was, Hogg believed, a person with special status, not just an ordinary member. It is interesting to note that although Hogg did not believe that Greenlees was a minister, he was inclined to think that the Jehovah’s Witnesses were a religious denomination. ‘Although they claim not to be a religious sect, nevertheless I think the evidence shows that they are a group, which inasmuch as they appear to have a particular system of faith or belief, might be said to come within the ordinary and general conception of the term “religious denomination.”’[666] The second tier of the requirements was, in Hogg’s mind, met, but not the first. As a result, the Greenlees case was dismissed.
26 It is hard to fault Justice Hogg for his decision, for he was undoubtedly correct in his understanding that the term ‘minister’ in the regulations was intended to provide conventional clergymen with an exemption from military service because of their special status as spiritual leaders. Not contemplated were non-conformist groups, such as the Jehovah’s Witnesses, who made no distinction, because of their interpretation of the Bible, between the laity and the clergy.
27 What Justice Hogg might have done was to go beyond the world as conventionally understood to look at the world as it actually was. He could have considered whether Greenlees performed ministerial functions different from the norm, whether the regulations could be interpreted to exempt persons who did not precisely fit into the conventional definition, and whether there were policy considerations that argued in favour of or against a wide interpretation of the word ‘minister.’ Answers to these questions were not self-evident, and missing from the judgment was any attempt at analysis of them.
28 Also absent from the judgment was any recognition, much less consideration, of the overriding validity of the Jehovah’s Witnesses' particular religious expression. ‘Though their beliefs may seem crude, fanatical and childish, the point is that they seem to be religious beliefs, and in a democratic country, one religious belief is held to have the same rights as others. If one is attacked all will be vulnerable,’ was the way Saturday Night saw it.[667] The judgment demonstrated the application of preconceived ideas in a conventional way and it sought to preserve the status quo. Instead of the law responding to new social needs, it was being used to suppress them. Undoubtedly, Justice Hogg feared the consequences of allowing the Greenlees defence. The absolutism of the Jehovah’s Witness position proved fatal to the Greenlees case.
29 The Jehovah’s Witnesses immediately announced their intention to appeal. Cohen would no longer be able to represent them. Appointed a member of the Royal Commission on Coal, his duty there precluded further participation in the Greenlees case.[668] In fact, his services to the Jehovah’s Witnesses were over, and he did not part with the group on good terms. They believed that their lawyer was abandoning them in the middle of an important case, and they were right. He had, W. Glen How later recalled, ‘grown too big for his britches.’[669] Cohen would soon have problems of his own. A conviction for assault led the Law Society of Upper Canada to disbar him in 1947. Reinstated in 1950, he died three months later. After Cohen withdrew, W. Glen How took charge of the Greenlees case.[670]
30 The Greenlees appeal was heard by three judges of the Ontario Court of Appeal in October 1945. More than two years had now passed since Greenlees had been ordered to report to his mobilization board. The wars in Europe and Japan had been won, and no more men were being called up for military or alternative service. However, the issue was still an important one. If his appeal failed Greenlees would probably go to jail and then to a camp. As well, the Jehovah’s Witnesses were intent on establishing the principle that their ministers were not liable to service of any kind, military or alternative.
31 There were a number of preliminary matters at issue, the jurisdiction of the court to entertain the action in the first place being one of them. The court, however, reserved on the preliminary objections, and asked How and John J. Robinette, the lawyer representing the attorney general of Canada, to get to the merits of the case. Robinette’s legal talents had already been put to use in defeating the Witness attempt to judicially review the order-in-council that initially placed the group under ban.
32 W. Glen How argued that Greenlees was a minister of a religious denomination and therefore entitled to exemption. Dictionary definitions of ‘minister’ were no help, How told the court. Definitions of this kind were simply not exhaustive of the types of ministers and clergy who must be recognized for the exemption regulation to be given its proper scope. Moreover, in determining whether or not the Jehovah’s Witnesses were a religion for the purposes of judicially construing the regulations, the job of the court was not to decide whether or not the Jehovah’s Witnesses repudiated the term ‘religion,’ but to look at the beliefs and practices of the group and determine whether or not the legal term ‘religion’ could be properly applied to them. How said that it could.
33 He was then asked by Chief Justice Robert Spelman Robertson what the term ‘denomination’ meant. It meant being separate and apart from other groups, he replied. The Jehovah’s Witnesses were separate. They had a separate organization and separate principles of organization. Indeed, as How now pointed out, Justice Hogg had found that the Jehovah’s Witnesses were a religious denomination. Furthermore, the regulation providing for the exemption of ministers of a religious denomination must be construed so as to encompass all sects, no matter how small. What about, How was then asked by a member of the court, the Witness claim that all members were ministers? The answer to that question, according to How, was a matter of degree — a response that, as How well knew, had no validity. All Jehovah’s Witness men were ministers, for to be a Jehovah’s Witness was to accept that role. To be a Jehovah’s Witness was to be a full-time witness for God. It was part and parcel of the covenant with Christ. How did not say as much, for to do so would have, for obvious reasons, seriously undermined his case. What he did say, however, had some merit.
34 ‘If there is a religious denomination,’ he told the court, ‘it must have some ministers, and if Jehovah’s Witnesses, as a denomination, have any ministers, then the plaintiff is one of them. Before the Court can hold that the plaintiff is not within the exemption, the Regulations must be read as saying “a minister of some religious denominations.” The Crown is in effect arguing that they mean “a minister of any religious denomination except Jehovah’s Witnesses, and the Court is being asked in effect to amend the Regulations.”’[671] The court did not need to find that every Jehovah’s Witness was a minister; all it had to do was to say that, on the facts as found by Justice Hogg, Greenlees was one and was therefore exempt from the regulations. An excellent factual basis had been laid for the court to conclude, if it wished, that Greenlees was a minister. J. J. Robinette did not agree.
35 There was no organization known as the Jehovah’s Witnesses, Robinette told the court. That was just a term used by some adherents of a Pennsylvania corporation. The Jehovah’s Witnesses had no constitution or creed. A religious denomination, Robinette said, was a recognized and organized body. And this was something the Jehovah’s Witnesses were not. Robinette drew the court’s attention to the lack of an ordination ceremony, and to the Witness claim that they were all ministers. That, he argued, was something for which the regulations did not provide. They were designed to exempt the leader of a flock, not a group in which everyone was a minister. Greenlees did not claim to be any more or any less of a minister than any other Jehovah’s Witness, and that went directly to How’s argument about degree. ‘The real point of this case,’ Robinette concluded, ‘is that these people are conscientious objectors, and the plaintiff should have presented himself before the tribunal specifically constituted to deal with such persons.’[672] At the end of December 1945, reasons for decision were released and the Jehovah’s Witnesses had lost another case.
36 Chief Justice Robertson rejected, on behalf of the court, Justice Hogg’s finding that the Jehovah’s Witnesses were a religious denomination. A convoluted review of the evidence given at trial, followed by an equally hard-to-follow exposition of the religious views of the group, was the basis for this finding. Justices Hogg and Robertson had looked at the same evidence and come to two completely different determinations. Could any two judges, one might wonder, or any two persons, ever agree on what was and what was not a religious denomination? In this case there was agreement about one essential point, however, and that was that Greenlees was not a minister. It did not matter, Robertson wrote on behalf of the court, that the Jehovah’s Witnesses believed that it was the duty of everyone to become a Jehovah’s Witness and then to be a preacher of the gospel. The reason that this basic theological belief was, in Robertson’s mind, irrelevant was that such beliefs were not contemplated by the regulations. The word ‘minister’ in those regulations was not ‘intended to include all such persons as are members of the denomination.’[673] Besides, the chief justice added, there was not enough evidence to support Greenlees’s contention that he was a minister. Where the evidence on this point was lacking, Robertson did not say.
37 The judgment in this case might have ended the matter, for there was little reason to appeal. Persons were no longer being called up for military service, and the question of ministerial exemption was, for all intents and purposes, moot. The Jehovah’s Witnesses believed that the decision was wrong. Moreover, in suggesting that the Jehovah’s Witnesses were not a denomination and that Greenlees was not a minister, the court was in effect saying that the Witnesses were not a religious group. Jehovah’s Witnesses might not use the term ‘religion’ to describe themselves, but they knew this was the term commonly used, and to exclude them from the application of the term was to open a Pandora’s box of future legal and social problems. All that was needed was one religious bigot to hold up the reasons for decision of the Ontario Court of Appeal and say that since the Jehovah’s Witnesses were not a denomination they had no religious rights. It could then be argued, for example, that they should not be exempt from property taxation on their Kingdom Halls. The potential consequences of the decision were far-reaching. There was also the matter of Greenlees’s fate; in particular, there was some likelihood that he would go to jail for his earlier failure to report. From the Jehovah’s Witnesses' point of view the decision could not stand. But there was a problem in getting the Supreme Court of Canada to agree to hear an appeal.
38 Such an appeal could be launched in one of two ways: with the leave of the Ontario Court of Appeal, or by the Supreme Court itself granting leave. How applied for leave from the Ontario court first and it was rejected. The decision of that court had been unanimous, but only two of the three judges hearing it had concurred in the result. The third judge had died before the reasons were issued. A dissenting opinion is not required before an appeal court will grant leave, but it helps since it demonstrates disagreement about the state of the law. With this door likely closed How decided to ask the Supreme Court of Canada itself to grant leave.
39 The Supreme Court Act[674] provided for an automatic right of appeal in any matter in which more than two thousand dollars was at issue. Otherwise one could only obtain leave from the Supreme Court itself where ‘the taking of any annual rent, customary or other fee, or, other matters by which rights in future of the parties may be affected’ was at stake. This was the only leave provision under which the Greenlees application could be filed. What How tried to do was to argue that the court should not look at this sentence as a whole, but look at it as two parts, the second of which should be applied by itself to his leave application in the Greenlees case. Future rights were in issue, he told the court, and he drew a parallel between the Greenlees case and a 1939 Supreme Court decision, Christie v. The York Corporation, concerning the rights of a black man to buy beer in a public tavern. The court rejected, however, an attempt at an analogy between Christie and Greenlees. Mr Justice Patrick Kerwin told How that the Christie case was different because it did not concern civil rights, but economic ones. Besides, he added, damages had been requested in that case, while in Greenlees the appeal was not about money. Some of the Supreme Court judges apparently agreed that the issues in the Greenlees case were important; nevertheless Justice Kerwin, on behalf of the court, denied leave to appeal. The court held that it had no jurisdiction to grant leave where the matter in controversy did not involve present or future economic rights.[675]
40 This, How believed, was mad, and at least one commentator agreed. ‘When the Supreme Court begins to reject admittedly important questions of law because they do not involve twenty-five dollars’ — a reference to the amount of money Christie had claimed — ‘absurdity reaches completion,’ an anonymous contributor said in the Fortnightly Law Journal.[676] The Jehovah’s Witnesses decided to try to appeal the decision to the Judicial Committee of the Privy Council (JCPC).
41 Until 1949 the JCPC was Canada’s final court of appeal in all but criminal matters. The Law Lords of the JCPC were not constrained by the Supreme Court Act in deciding what cases to hear, and How believed he had a better chance of getting a sympathetic hearing in the United Kingdom than he did in Canada. After all, the Jehovah’s Witnesses had never been banned in Great Britain. How, however, dropped the Privy Council appeal. The issue of Supreme Court jurisdiction would not go away, and became more than academic in 1949, after legislation was finally passed terminating imperial appeals. How argued, and so did others, that the Supreme Court had to expand its jurisdiction to hear matters of social importance as well as matters of money, and eventually these arguments bore fruit.[677] Needless to say, How, as counsel to the Jehovah’s Witnesses and a Witness himself, was interested in ensuring that civil-liberties issues involving Jehovah’s Witnesses could be appealed to the Supreme Court, but the point he was making was still a good one. ‘It is the issues arising,’ How wrote, ‘not the amount of money or form of procedure, that renders a case of sufficient moment to be determined by the highest tribunal.’[678] There was no point in having a Supreme Court that was limited, in effect, to resolving commercial disputes, but it would be a while before a new Supreme Court Act was passed, giving the court general jurisdiction to decide in which cases it would grant leave. Notwithstanding this deficiency in the statute, the Jehovah’s Witnesses were, in the late 1940s and 1950s, able to take a number of important cases to the Supreme Court for a hearing.
42 Even though the Greenlees case had never been heard by the Supreme Court of Canada or the JCPC, what judicial consideration had taken place was still important. Canadian courts had been asked to consider what was and what was not a religious denomination. In that task the judiciary had arrived at conflicting results. Canadian courts had also been asked to consider who was and who was not a minister. On that issue Canadian judges agreed, but they did so without giving the matter more than cursory thought. Canada’s was, especially in the war years, a vibrant and changing society. But instead of broadly construing an issue as fundamental as religious rights, Canadian judges interpreted it narrowly and, in effect, voted to perpetuate the past. The judiciary, all the decisions in the ministerial-exemption cases suggest, had no interest in considering the limits of dissenters' religious rights. This is not to say that the decisions they reached were necessarily wrong, but it is the process and thinking that led to those decisions that are open to criticism. None of the judges hearing the various ministerial-exemption cases ever seriously grappled with the idea that some religious faiths might be organized differently than others, but were religious denominations nevertheless.
43 It is interesting to observe that almost at the same time that the Ontario Court of Appeal was called upon to consider the Greenlees case, it was also deciding the Donald case. In that case, religious liberties had been advanced. The difference between the two, to borrow the language of W. Glen How, is one of timing, and one of degree. In the gloomy spring of 1940 children had no religious rights, and it would take the tide of war to turn for the court to rule that they did. With victory at hand children’s religious rights became easy to protect. Suddenly the plaintiffs' cause was attractive, for it was virtually without social cost. The cause had not changed; what had changed was the degree of freedom society felt it could afford.
44 Ministerial exemption for all Jehovah’s Witnesses was something that society might have been able to afford, but it was something that society would never countenance. The courts feared that by exempting an individual they would be exempting the group. Moreover, unlike what they had done in the problem of the patriotic exercises, the Jehovah’s Witnesses presented no compromise solution. In the national-anthem cases the Jehovah’s Witnesses had agreed that their children would stand silently at attention. In the ministerial-exemption cases, the issue was black and white. By claiming that every one of their number was a minister, they had forgone any right to the exemption. To allow every man, by virtue of his religious beliefs, to claim total exemption from the responsibilities of being a citizen in a country endangered by war was, the judiciary believed, to shirk responsibility for the preservation of the nation. Conscientious objection and alternative service were barely acceptable, while blanket exemption was unacceptable, particularly for the adherents of a formerly unlawful organization. No court would allow it, nor would any legislature. The state had the right to call upon its citizens in time of grave national emergency. What the Jehovah’s Witnesses wanted neither the courts nor Parliament would let them have.
45 Postponement and alternative service were, most Canadians believed, a satisfactory, fair, and generous resolution of Jehovah’s Witnesses' conscientious-objection claims. But in some cases it was wrong. Some Jehovah’s Witnesses were ministers in something approximating the conventional sense, and there is no question but that the Jehovah’s Witnesses were a religious denomination, even if they themselves eschewed that term. Where the courts had gone astray was in not taking a closer look at who the ministerial claimants were and what they wanted. Underlying the judicial decisions was a fear that recognition of one Jehovah’s Witness’s ministerial claim would open the floodgates to everyone making that claim. The fear was real, but what the courts should have done was consider the facts of each case and come to a resolution based on those particular facts. There are not enough facts reported in the Stewart case to question what the court did there. But in Greenlees it was demonstrated that the defendant had done nothing but work for the Jehovah’s Witnesses since 1932. Moreover, he lived in their Bethel, along with all other full-time employees of the group, and dedicated his entire life to advancing Jehovah’s Witnesses' religious interests. In the early 1960s he was invited to serve on the governing council of the Watch Tower Bible and Tract Society in New York, and continued to do so until his death in 1988.[679]
46 It was simply not enough for the court to compare Greenlees with the other ministers of conventional denominations that it knew. Greenlees was not ordained, nor did he have a congregation, but that did not mean that he was not a minister. It is far from clear that a comparative approach should be applied in matters of religious practice and belief. Nor does it seem appropriate for the courts to enter into matters of scriptural interpretation and organizational analysis when a religious group comes before them. It is a time-tested principle of the common law that internal practices of voluntary associations are private matters, not subject to regulation by the courts. That is not to say that the courts have no role in matters of the church, for it may be necessary to determine whether or not a group is, as it claims, an organized religion. In that case, the job of the court is a limited one: to determine whether or not there is a reasonable basis for the status being claimed. During the war more than one court went off track.[680] Interestingly enough, however, where the rights of groups other than the Jehovah’s Witnesses were at issue, some courts were inclined towards a liberal view.
47 Clarence Allen Bien, for example, was a minister of the Church of Christ. Like Greenlees, he was called up for military service. His claim for conscientious-objector status was denied and he was inducted into the army. He then filed a writ of habeas corpus and claimed that as a minister he was exempt from both military and alternative service. The application came before Justice Donald Maclean of the Saskatchewan Court of King’s Bench. Justice Maclean had to determine whether or not the Church of Christ was a religious denomination, and whether or not Bien was one of its ministers, the same two questions that had come before the court in the various Jehovah’s Witness ministerial-exemption cases.
48 Justice Maclean turned first to the question of whether or not the Church of Christ was a religious denomination. It had a general secretary and a number of congregations, but no bishops, moderators, or any other persons with duties corresponding to those of other religious organizations' temporal heads. Justice Maclean found that the various congregations met every week or so to sing hymns, read Scripture, and engage in prayer. Their ministers, including Bien, were unpaid and were authorized to perform marriages. ‘On this whole evidence I must conclude that the “Church of Christ” as it exists here in this province and in this application is a religious denomination.’[681] The next question was whether or not Bien was a minister. The judge found that Church of Christ ministers had no special education or training, were expected to earn their livings independent of their church, and were not ordained or confirmed in their ministerial positions in any special way. However, it was significant that Bien’s congregation recognized him as their minister. The judge decided that Bien was a minister and his application for habeas corpus was granted.
49 The Jehovah’s Witnesses obviously presented a slightly different case. They were not entitled to perform marriage ceremonies, but that was because their ministerial status was not recognized by the state. Further, they had no congregations that recognized them as their minister, as most Witness men claimed the world was their congregation. While congregations of Jehovah’s Witnesses met as a group in Kingdom Halls to sing, study, and pray, they were not under the spiritual leadership of any particular individual. But many of the other characteristics, such as the lack of ordination, education, and training, along with demonstrated preaching or ministerial activity and an articulated theology, that Justice Maclean considered significant were also shared by Jehovah’s Witnesses.
50 What set the Jehovah’s Witnesses apart was their claim that they were all ministers. While that did not mean that all of these claims should have been accepted, there is reason to suggest that, in rejecting every such claim, the courts were not giving the Jehovah’s Witnesses the same substantive consideration that they gave to other religious groups. Not every Witness should have been entitled to a ministerial exemption, but some, such as Greenlees, arguably fell within the eligible class, even if the Jehovah’s Witnesses themselves failed to differentiate among their male members in any way. A comparison of judicial consideration of Witness ministerial-exemption claims with similar Doukhobor claims would be instructive; however, because the federal government adopted a policy early in the war of allowing Doukhobors, who were even more radically rejectionist than the Jehovah’s Witnesses, to ignore alternative service, such a comparison cannot be made.
51 No right is absolute, and freedom of religion means different things at different times. In time of war, as in any time of emergency, the state must be entitled to call upon its citizens. And when it does it can limit the right of those citizens to say no. In making that determination a searching inquiry is required. The ministerial-exemption claims of the Jehovah’s Witnesses offered no easy answer. But the approach taken by the courts failed to give the members of the group their judicial due.
Obtaining release
1 While attention shifted to the courts as the Jehovah’s Witnesses fought and lost their ministerial-exemption claims, many Witness men remained in the alternative-service camps. Westman’s view of the group never improved. They were, he declared, of a low mental type.[682] They were poor workers, although for the most part they were sincere as they really believed that their cause would eventually sweep the world. As Westman recorded, most of them would be Jehovah’s Witnesses even if there was no war. Nevertheless, they constantly complained and wrote letters. The best thing Westman could say about them was that they would usually obey orders of persons in authority over them.
2 When the war in Europe ended in May 1945, those Jehovah’s Witnesses still in camps stepped up their efforts to secure release by writing innumerable letters to Ottawa.[683] All they had to do to secure their release was agree to accept alternative-service outside of the camps, but that was a solution the majority of Witnesses declined, even after the mandatory contribution to the Red Cross was dropped for married conscientious objectors over thirty years of age. Few Jehovah’s Witnesses would enter into a contract under which they agreed to perform alternative-service work, in camp or out. Besides, most of the inmates were unmarried and relatively young. To sign a contract with the government would be to violate the only covenant their consciences allowed them to make: the one with God. Accordingly, most of the postponed Witnesses remained in the camps.
3 The surrender of Japan in August 1945 did not change the situation. Alternative service, the government announced, would continue. ‘I am confident,’ Chief Alternative Service Officer J. F. MacKinnon wrote in a letter to be brought to the attention of Canada’s ten thousand postponed conscientious objectors, ‘that Alternative Service Workers who are performing Alternative Service in lieu of military service will, on reflection, appreciate the fairness of retaining Alternative Service controls while such a large percentage of serving soldiers, sailors and airmen are still waiting to be returned from Overseas and to be rehabilitated into suitable civilian employment.’[684]
4 Despite MacKinnon’s confidence, conscientious objectors gradually began to disobey authority. Postponed Jehovah’s Witnesses increasingly wandered away from their jobs to attend to their religious work.[685] And they were not the only postponed conscientious objectors who felt that since the war was over they should be released. The alternative-service officer in Kitchener reported the same sentiment among the Mennonite men under his charge. The difference between the Jehovah’s Witnesses and the Mennonites was not just a matter of their penchant for work, but of how the two groups wished to appear to the world. ‘The Mennonite Committee is very much concerned in maintaining the good record and reputation of their group, and are always willing to bring a little pressure to bear through their church connections, where it becomes necessary.’[686] Mennonite dissenters were informally dealt with by the Mennonite religious leadership. Witness protesters were encouraged by the Witness group to do whatever was necessary to expedite their release.
5 The steady stream of correspondence became a flood as Jehovah’s Witnesses still in camps spent every spare moment preparing petitions and letters, asking for their immediate release. ‘With conscription at an end,’ a typical petition argued, ‘there appears to be no good reason why we should be compelled to continue in the performance of Alternative Service.’[687] This petition, like numerous others, left Westman more than a little perturbed. ‘My own conclusion,’ he wrote the deputy minister of labour in late May 1945, ‘is that it was a most unfortunate day for Canada when this organization was given any kind of legal status.’[688] More to the point, however, was that while there were still men in uniform, conscientious objectors directed to alternative service should not have their full liberties restored. The Witness claim that they were ministers had not been accepted by a single Canadian court.
6 Even when these points were made forcefully in reply, the petition- and letter-writing campaign persisted. As it did, political, if not public, concern began to grow. ‘I realize that these people can be very difficult,’ Angus MacInnis, MP, wrote Mitchell in mid-July 1945, ‘but they have certain rights under our constitution no matter how much we may disagree with their ideas.’[689] The BNA Act, which MacInnis was likely referring to as ‘our constitution,’ does not say anything about religious rights. It was nevertheless interesting that MacInnis should make this statement, for parliamentary interest in constitutionally protecting rights was about to begin. MacInnis was not the only politician to urge the Jehovah’s Witnesses' release. James G. Gardiner, back in his post as minister of agriculture, made the same suggestion. The sooner the regulations were repealed, he wrote Mitchell in early August 1945, the better.[690]
7 A very interesting discussion of this subject began within the Department of Labour. J. F. MacKinnon, the alternative-service officer who had been appointed assistant chief and then chief upon Westman’s death in July 1945, wrote to MacNamara, saying that one reason for keeping the Jehovah’s Witnesses in camps was so that they did not take the jobs of returning veterans. It is hard to imagine how the relatively small number of Jehovah’s Witnesses in camps could glut the job market (and this argument was brought to the attention of the authorities by M. J. Coldwell, among others), while almost all the other postponed conscientious objectors, almost ten thousand in all, had been working outside the camps, in some cases for years.[691] Besides, the only thing that was keeping the Jehovah’s Witnesses in the camps was their refusal to accept directed alternative service outside the camps. And the only thing keeping them from such service was their refusal to donate any of their earnings to the Red Cross. It was interesting that MacKinnon himself urged alternative-service officers in the last months of the war to do whatever they could to avoid sending any more Jehovah’s Witnesses to the camps, even if that meant they were not required to perform alternative service.[692]
8 On closer examination it was not jobs that were the reason for keeping the Jehovah’s Witnesses in custody, and MacKinnon admitted as much. ‘This factor of employment is not present in the case of those particular Jehovah’s Witnesses who were full time ministers prior to being called up and who wish to return to this work on their release.’[693] While the government had steadfastly maintained that no Jehovah’s Witness was a minister as that term was properly understood, it privately admitted that some were. What MacKinnon proposed was that the former full-time ministers be released in stages to avoid unfavourable publicity. ‘I wish to effect these releases individually rather than as a group of “ministers” because I do not wish to create the impression that we are recognizing them in a capacity which was not recognized by their Mobilization Boards.’ There were, MacKinnon reported, some four hundred Jehovah’s Witnesses in the camps, of which about one hundred and fifty could be regarded as ministers.[694]
9 The decision was referred to Deputy Minister MacNamara. He told MacKinnon to raise it at the next advisory-board meeting, which was presumably a committee that decided policy questions. His own view was that Witness ministers should no longer be kept in the camps. MacKinnon wrote Witness headquarters in Toronto and asked to be supplied with a list of full-time ministers, to be checked against the alternative service’s own list.[695] Soon enough, Witness ministers, the formerly full-time ones now recognized by the authorities as such, began to be released. Some of these ministers were not given unconditional releases. They were instead released on ‘compassionate leave,’ which was one way the Department of Labour had of controlling their out-of-camp activities. These Witness ministers, MacKinnon advised MacNamara, ‘are not as outspoken because we still have them under our control with the power of returning them to Camps.’[696] They were at least out of the camps, where most of their co-religionists remained.
10 The government was in no apparent hurry to release the remaining Jehovah’s Witnesses. The cabinet considered the matter in November and ‘after discussion it was agreed that no action be taken in this matter for the present.’[697] MacKinnon then wrote the approximately two hundred conscientious objectors still in the camps with the bad news.[698] With only limited exceptions every other conscientious objector had accepted alternative service outside the camps. It remained true, though, that the conscientious objectors outside the camps were still subject to the Alternative Service Regulations, but for men back home and working on the family farm they were subject to the regulations in the most superficial way. All that MacKinnon could assure the Jehovah’s Witnesses still in the camps was that the matter of the continued operation of the Alternative Service Regulations was under review, and that a decision would be announced shortly.
11 The future of the regulations was, as promised, soon announced. ‘It is likely,’ the minister of labour said in early December 1945, ‘that Alternative Service control will carry on through the winter. The revocation of this control will in all probability be synchronized with the anticipated betterment of employment conditions in the early spring.’ Mitchell went on to point out that by that time almost all of Canada’s troops would have returned home, suggesting that they should have an opportunity to re-enter the job market before conscientious objectors could leave their assigned duties and look for more attractive work.[699] One reason for the apparent delay was to avoid political problems in the House of Commons. What Mitchell was doing had a kind of rough justice to it. There were some ten thousand postponed conscientious objectors working in alternative service, and while the vast majority were Hutterites, Mennonites, and others destined to return to the family farm, if they were not already there under assignment, it would not have been right for them to enjoy full liberty while soldiers remained on duty. This was the position taken by the Canadian Legion.[700]
12 The Jehovah’s Witnesses in the camps were, however, a different case. Many of them were, as MacNamara and MacKinnon had already admitted, destined to a life on the street, spreading the gospel. The others who were not full-time ministers would return to the private sector, taking jobs of relatively little interest to returning veterans, as the bulk of these Witnesses were not dedicated to their careers, but to making a living so that they could support themselves to carry out Jehovah’s work. A belief that the end of the world, as we know it, is at hand, undoubtedly affects one’s commitment to secular work. The Jehovah’s Witnesses were simply not in competition for the good jobs. Although the economic climate in late 1945 and early 1946 was not buoyant, there was no real justification for keeping them in the camps, and so, quietly and slowly, they began to be released. No public announcement of this was ever made.[701]
13 The government took a number of small steps to improve the conditions of the Jehovah’s Witnesses who were not released, such as increasing the length and number of leaves.[702] The Chalk River superintendent, for example, was inclined to grant many requests, especially for important Jehovah’s Witness religious holidays like Nisan 14, the memorial service that is the high point of the Jehovah’s Witness religious year. These concessions were not enough to eliminate protests about ‘unfairness.’[703] Some Jehovah’s Witnesses nursed grievances about the failure of local municipalities to support their dependants while they performed alternative service in remote camps. Refusing any responsibility to the state is one thing, but then going on to claim that the state had a responsibility to them was really too much. Letters concerning these dependants made their way to Ottawa.[704] There was never very much official sympathy for these complainers for, like all other conscientious objectors, they were invited to perform alternative-service work outside of camps, in most cases in their home communities. Nevertheless, the alternative-service authorities arranged for a federal contribution to municipalities for the relief of Witness dependants, and fewer than twenty Jehovah’s Witness families applied for this relief.[705]
14 It is interesting that in making their concerns known, the Jehovah’s Witnesses successfully identified members of Parliament most amenable to their cause. During the war it was the CCF members whom they relied on. After the war it was John Diefenbaker who assisted them the most.[706] Notwithstanding Diefenbaker’s increasing interventions, and the hundreds, if not thousands, of letters members of the government received, the cabinet had no intention of rescinding the Alternative Service Regulations.
15 On 25 March 1946 Mitchell again made this point: ‘I do not intend, nor do I believe that the citizens of this country would agree, to relieve conscientious objectors from alternative service work until all enlisted men in the armed forces, or at least the majority of them, have been discharged.’[707] Mitchell’s statement in the House of Commons undoubtedly had both political and symbolic value. The fact was, however, that there were very few conscientious objectors still left in the camps; only 126 Jehovah’s Witnesses remained by the end of March.[708] By the beginning of June there were fewer than 100 objectors, all Jehovah’s Witnesses, while at the end of the month there were only 73 left.[709] All the rest had been set free.[710] Patience was not one of the virtues of the handful of Jehovah’s Witnesses kept in custody, and their demands for information about the date of their release only increased.
16 Getting the Jehovah’s Witnesses still in the camps back out on the streets was among W. Glen How’s priorities. The Witness lawyer submitted a long brief to the minister of labour. Entitled ‘Representations with Respect to Alternative Service,’ the brief was not likely to endear How or his client to the authorities. The alternative-service system, How said, ‘resembles the position of English serfs of the middle ages, and American slaves in the Southern States, who were bound to the land and could not leave without a permit from their owner.’[711] Apart from this type of rhetoric, which predominated in the brief, How pointed out that the operation of the regulations was not indiscriminate; they acted to discriminate against only the Jehovah’s Witnesses. How had examples to illustrate this claim, and his arguments on this point were logical and clear. MacNamara and Mitchell could say what they wanted, but the only people still in the camps were Jehovah’s Witnesses, and they were there because they refused to compromise their religious beliefs. They would not sign contracts and they would not contribute money to the Red Cross. Some of them would, How admitted, seek secular employment upon their release, but most intended to enter full-time missionary work. No purpose was being served by keeping the Witnesses in the camps.
17 This view had been privately shared by MacKinnon and MacNamara for some time; the former had in fact urged release at the end of 1945. The camps were really serving no purpose. The Jehovah’s Witnesses had never been the greatest workers, and since the end of the war their efforts had further flagged. Administrative costs had risen and it was expensive to operate the camps for a small number of people. It was time to close down the camps and send the Witnesses home.
18 Jehovah’s Witnesses at the Chalk River camp in Northern Ontario received this news in a most interesting way. Early in July 1946 the Witnesses, through the Watch Tower Bible and Tract Society, which had by then been restored to legal status, wrote the new chief alternative-service officer, G. R. Carroll, to advise him that another one of their travelling ministers would be passing through and wished to visit the brethren at Chalk River. On 8 July 1946, almost six years to the very day that the Jehovah’s Witnesses had been banned, Carroll wrote back: ‘As from July 15th, there will be no more alternative service workers in Camps, and it is therefore presumed that it will not be necessary for your representative to visit this Camp.’[712] With the repeal of alternative service, the last act in the Second World War drama of the Witness ban in Canada had come to an end.
19 Overall, the Canadian government’s treatment of Witness conscientious objectors left something to be desired. The according of the status of conscientious objectors to Jehovah’s Witnesses came late. Even after that wrong was made right, government policy, which was aided and abetted by compliant courts, failed to give the group its due. There was nothing wrong with directing Witness men called up for national duty to alternative-service camps, and if they refused to accept the conditions established for alternative-service work outside the camps, that was their decision. The government’s failure to recognize the legitimate claims of ministerial exemption made by some members of the group is more problematic. The floodgates need not have been opened; that decision could have been made, with the assistance of guidelines from the alternative-service branch, by mobilization boards, on a case-by-case basis. Instead government policy was to the exact opposite effect. By their failure to compromise, the Jehovah’s Witnesses bear some of the blame, but it was not this failure alone which determined their treatment. Their widespread unpopularity, as compared to the Mennonites in particular, also dictated the response their claims for ministerial exemption received. They were a dissident and unpopular group, and they were treated as such.
How Canada compared
1 In Australia, the other Allied country in which the Jehovah’s Witnesses were banned, Witness ministerial status was not recognized by the authorities at the beginning of the war, although the status of ministers of the mainstream groups received an exemption under the equivalent Australian regulations. Witness ministers, however, were jailed for refusing to serve. Even after the Australian court set aside the ban, the military continued to try to induct Witness men. And just like in Canada, the Jehovah’s Witnesses brought a test case to court. The conscription of one Frank Grundy was brought before Mr Justice Holt, who decided that Grundy was a bona fide minister, and accorded him exemption from the regulations.[713] This decision did not mean that every Jehovah’s Witness was recognized in law as a minister, but it established the necessity of making an inquiry into the facts of each and every case.
2 In contrast, in the United States, where the Jehovah’s Witnesses were not banned, Witness conscientious objectors did not do as well as they did in the two countries where they were outlawed.[714] More than one year before the Japanese surprise attack on Pearl Harbor brought the United States into the Second World War, Congress passed the Selective Training and Service Act. Provision for conscientious objectors was made in the act with the basis of recognition placed on a person’s religious training and beliefs not, as in the First World War, on membership in one of the historic peace churches.
3 There were two types of conscientious objectors recognized in the United States during the Second World War. The first group consisted of men who were not opposed to non-combatant service. These men were classified 1-A-O, and were assigned to the army medical corps. The second group comprised men opposed to both combatant and non-combatant service. These men were classified IV-E, and were assigned to work of ‘national importance’ under civilian direction. Most of these conscientious objectors ended up in civilian public-service camps and were put to work on projects not directly related to the war effort. The operation of the camps is one of the things that made the American camps different from their Canadian counterparts. While the assigned work was carried out under the supervision of the camp superintendent, who was a government employee, camp life, in marked contrast, was under the direction of an employee of a private organization, meaning a member of one of the American historic peace churches.
4 This system was developed as a result of an agreement between the director of selective service and the United Religious Groups, an organization composed mostly of Mennonites, Quakers, and Brethren. Under the agreement certain churches agreed to provide clothing, medical attention, and heat and light for all men classified IV-E and directed to one of the civilian public-service camps. During work hours, the inmates, who were not paid, were under the control of the camp superintendent. The rest of the time they were under the control of the camp director, the title of the representative from the United Religious Groups. While the camp director had some government duties (for example, the administration of leave regulations) his primary responsibility was seeing to the physical and spiritual welfare of the men in the camps. American conscientious objectors were assigned to the camps for the duration of the war plus six months.[715]
5 From the start of the war, Jehovah’s Witnesses claimed exemption from training and service. They wished to be classified as ministers, status IV-D.[716] At first, American authorities were inclined to accept Witness ministerial claims. ‘By their adherence to the organization of this religious corporation, the unincorporated body of Jehovah’s Witnesses are considered to constitute a recognized religious sect,’ was the way one Selective Service opinion put it.[717] It was clear that certain members of the Jehovah’s Witnesses ‘by reason of the time which they devote, the dedication of their lives which they have made, the attitude of other Jehovah’s Witnesses toward them, and the record kept of them and their work, are in a position where they may be recognized as having a standing in relation to the organization and the other members of Jehovah’s Witnesses similar to that occupied by regular or duly ordained ministers of other religions.’[718] The Jehovah’s Witnesses assisted in this process by providing to the American Selective Service a list of full-time ministers and persons subject to Selective Service living in the various American Bethels.
6 The status of all the other Jehovah’s Witnesses was a question left to the determination of the local selective-service board ‘based on whether or not they devote their lives to the furtherance of the beliefs of Jehovah’s Witnesses, whether or not they perform functions which are normally performed by regular or duly ordained ministers of other religions, and, finally, whether or not they are regarded by other Jehovah’s Witnesses in the same manner in which regular or duly ordained ministers of other religions are ordinarily regarded.’[719] American selective-service authorities appreciated that no two religious organizations were the same, and that the criteria applied to ministerial determination for one sect did not necessarily apply to another. For example, selective-service boards were advised to consider the historic nature of the ministerial function in the church of each applicant for ministerial recognition. ‘In some religious organizations both practice and necessity require the minister to support himself, either partially or wholly, by secular work.’[720] Moreover, selective-service boards were instructed not to place any weight on documents, or lack of documents, indicating ministerial status. This was so because the ministerial exemption was a statutory right, and the only job of the boards was to determine whether or not a certain person was a minister, not whether he had a letter designating him a minister. The Americans succeeded in developing a test for ministerial exemption that did not depend upon the application of conventional norms and definitions of minister to the unconventional Jehovah’s Witnesses. This did not mean that the end result was much better than that reached in Canada. In fact, it was much worse.
7 There were so many Jehovah’s Witnesses who claimed ministerial status but who were employed during the day at some secular pursuit that the selective-service boards soon became clogged with their exemption applications.[721] These boards were advised to take special care in applying the ministerial exemption tests to the Jehovah’s Witnesses because of the large number claiming to be ministers.[722] Members of the Bethel family were virtually guaranteed exemption, and so were Jehovah’s Witness Pioneers, who were persons who had no secular employment and who spent all of their time spreading the word of God. The exemption applications of all others were to be determined on a case-by-case basis. This led to very different results.[723]
8 Some Jehovah’s Witnesses whose claims were rejected found themselves severely beaten in military stockades and sentenced to long terms in solitary confinement.[724] All other Witnesses who were refused the ministerial exemption were either classified as conscientious objectors and ordered to report for work of national importance at one of the civilian camps or ordered to report to a military institution for induction and training. In contrast to their Canadian brethren, American Jehovah’s Witnesses refused to accept alternative-service work. They had no intention of voluntarily agreeing to place themselves in camps effectively run by representatives of the United Religious Groups.
9 At first there was no alternative because there were no government camps; all the camps were operated by one or another religious group. That situation subsequently changed, but the change did not affect the Jehovah’s Witnesses, since the American brothers were opposed to all forms of service, alternative or not. They were prosecuted because they refused to report to whatever civilian public-service camp they had been assigned to (or to some branch of the military if their claim to conscientious objection had been refused). Apparently most Jehovah’s Witnesses in the United States submitted to physical examination and classification. It was when their request for ministerial exemption was refused that they refused to report for work of national importance or, in the rare cases where the conscientious-objector status had not been accepted, to a military camp for induction into the ranks. All together, more than five thousand American conscientious objectors were prosecuted during the war, 75 per cent of whom were Jehovah’s Witnesses.[725]
10 The technical charge was failure to report, but when the Jehovah’s Witness got to court he was faced with a serious dilemma. He could not object to his selective-service classification because there was an existing process for this kind of objection, and it required that the objector first complete the administrative process by reporting to either the camp or the military, as the selective-service board had directed. To demonstrate any acceptance of the conscientious-objector program would be to violate the covenant with God. Jehovah’s Witnesses in the United States had no more intention of completing the administrative process by reporting than did their Canadian confrères by agreeing to accept a medical examination. In any case, unless they completed that process they could not ask the court to review the classification. Only when the process was complete would the courts consider a habeas corpus application.[726]
11 The basis of the legal decisions, which effectively denied Jehovah’s Witnesses any judicial review, was the court’s typical finding that the ‘correctness of the classification made by the local draft board and the question whether the board acted in an arbitrary or capricious manner are not defenses to a prosecution under the Act for a failure to comply with the board’s order.’[727] It was ironic, for the person could not follow the ordinary process, because he had scruples that forbade him from doing so, and this was exactly what the legislation was there to protect. In one case the court took note of this fact and observed that it might be that Congress had ‘unintentionally deprived persons in the position of the defendant of the benefit of the writ of habeas corpus unless they abandon the very conscientious scruples which they are seeking to have recognized … If so, their very appeal must be to executive clemency or legislative action failing which they must be prepared to endure the suffering for conscience sake from which the courts are not empowered to relieve them and which has been the common lot throughout the ages of those whose scruples have brought them into conflict with governmental authority.’[728] Attempts at arguing that the draft violated Jehovah’s Witnesses' freedom of religion as protected by the First Amendment were equally unsuccessful.[729]
12 The Jehovah’s Witnesses who were charged with failing to report were found guilty, since the sole legal question at issue was whether or not the objector had disobeyed the order to report. This was obviously more a matter of fact than a question of law. Jehovah’s Witnesses did not deny their ‘guilt’; many of them proclaimed it. All that was left to the court was to impose sentence. At the discretion of the trial judge, it could be anywhere up to five years in prison and a fine of no more than ten thousand dollars. Sentences varied greatly. The average sentence for convicted Jehovah’s Witnesses in 1944 was forty-two months. Non-Jehovah’s Witnesses convicted of exactly the same offence received in this same period sentences averaging thirty-four months. As a general matter, sentences were highest during active periods of the war and lowest during quiet periods. Jehovah’s Witnesses in prison were allowed to meet, and their literature, by and large, was allowed in. Very few Jehovah’s Witnesses were released on probation, especially during the first years of the war, in part because of representations against their probation from the American Legion. After Japan surrendered, applications for parole received a more sympathetic hearing, although some parole boards precluded any applications from succeeding by making it a condition of parole that the parolee give up his Witness work. The alternative-service camps in Canada may not have given Canadian Jehovah’s Witnesses the freedom they yearned for, but they were certainly a step above American prisons.
13 At the end of the war there were three thousand conscientious objectors serving time in American prisons, most of whom were Jehovah’s Witnesses. One year later, two thousand were still incarcerated, and by the end of 1946 there were five hundred left, all but fifty of whom were Jehovah’s Witnesses. Numerous applications for amnesty were made to President Harry Truman by countless conscientious objectors and groups representing them, and the Jehovah’s Witnesses made representations too. On 23 December 1946 the White House announced that there would be no general amnesty for conscientious objectors, but that individuals could apply to an amnesty board, which had been formed to hear their applications. In general, Jehovah’s Witnesses were rarely pardoned; the few exceptions were where the amnesty board concluded that an individual’s local board had inconsistently applied the ministerial exemption.
14 In the United States, as in Canada, the Jehovah’s Witnesses did not leave the administrative actions unchallenged in court. There was no real legal issue about the right of the state to conscript, for that law had been settled for years. Quickly settled in law were the limits of judicial review of selective-service-board decisions. A great number of cases were heard, but only two are important. The first of these was Nick Falbo v. United States.[730] Falbo was a Jehovah’s Witness convicted for failing to report for work of national importance, as ordered by his local selective-service board. His case made it to the U.S. Supreme Court in November 1943, and that court decided the following January that Falbo, and by implication all other Jehovah’s Witnesses, had no right to ask the court to judicially review his selective-service-board classification in a criminal prosecution for violation of an order to report to one of the work camps. An obvious and explicit consideration of the court was that there be no litigious interruption of the important induction process.[731]
15 This restrictive interpretation was broadened in the second important case involving William Murray Estep, who, like most Jehovah’s Witnesses, refused to report for military induction. He was charged, went to court, and tried to bring into issue the failure of his local selective-service board to classify him as a minister. In November 1945 the case was heard by the U.S. Supreme Court, which approved the existing practice and statute limiting the jurisdiction of the lower courts to review the bases upon which the selective-service boards came to their decisions. Simply put, the courts were not to weigh the evidence to determine whether or not a classification made by a local board was justified. However, because of the finality of the classification provision of the Selective Training and Service Act, the courts could consider, when a registrant was charged with failure to obey an induction order, whether the board acted within its jurisdiction in its initial classification. This did not mean that under this interpretation of the law all Jehovah’s Witnesses would be classified as ministers, but it did mean that Witnesses could challenge the initial classification order without taking the next administrative step. The only problem was that by the time this decision was released the war was over.[732] As Hayden Covington, who argued both the Falbo and Estep cases, said, it ‘was too late to help the 4,500 men who had gone to prison without a right to be heard.’[733] The issue of what Jehovah’s Witness entitlement to the ministerial exemption was would not be settled for years.[734]
16 In some respects the American ministerial-exemption regulations were much broader than their Canadian counterpart. The guidelines issued by the director of selective service on what constituted ordination, and the suggestion that the question of who was a minister was not one of general acceptance but one requiring individual investigation, are examples of that. However, American Jehovah’s Witnesses did not have their ministerial-exemption claims recognized any more often than did Canadian Jehovah’s Witnesses. The very way in which the American system was structured led to most Witnesses performing no alternative service at all, but rather spending long periods of time, at great social cost, in federal prisons. The system may have served the needs of America’s historic peace churches and the odd objector who developed conscientious scruples on his own, but it completely failed to meet the needs of Jehovah’s Witnesses or of those who believed that any compulsion, even an order to report, was a violation of conscience. Sincere religious beliefs, even the unusual and unorthodox, deserve searching consideration, not, unless they cause harm to others, imprisonment. On balance, the Canadian system had its deficiencies, but the American one was much worse.
17 Paradoxically, the Allied nation most affected by the war, Great Britain, had the most humane conscientious-objector program. That is not to say, however, that Witness claims for ministerial exemption received anything but short shrift. On 25 May 1939, the Military Service Act 1939 became law. It provided for three years of enforced enlistment of British subjects, ages twenty to twenty-one, resident in Great Britain. On 3 September 1939 this act was repealed and replaced by the National Service (Armed Forces) Act, which for the duration of the war gave the government power to call up men between the ages of eighteen and forty-one. In April 1941 the National Service Act instituted conscription for civil defence and provided for national registration of men above the military age and women for employment in essential services.[735]
18 The following December another National Service Act was passed extending the scope of the first act and providing, for the first time in British history, for the conscription of women. Unmarried women, between the ages of twenty and thirty-one, who were not caring for a child under the age of fourteen were required to serve in an auxiliary military service, a civil-defence force, or a war industry. Supplemental defence orders required the registration of young people over the age of sixteen, and also provided for the direction into civil-defence and war industries of many persons not subject to military conscription.
19 By the 1939 legislation a separate register for conscientious objectors was established, and independent local tribunals were formed to pass upon the claims of those seeking conscientious-objector status. A person could conscientiously object for any reason, and if his claim was accepted he would be exempted in one of three ways. The first was unconditionally, which meant that that person was not subject to any service obligations during the war. The second was conditionally, which meant that the person could be directed to civilian work, and the third exemption provided for the person’s registration as someone liable to be called up for service but for non-combatant duties. In Great Britain, alternative-service work included coal mining, food distribution, hospital work, and social-welfare and relief work. Non-combatant corps were established for conscientious objectors subject to military service, including special medical corps and the royal army pay corps.
20 Applicants aggrieved by the disposition of their applications could appeal to the appellate tribunal, and the minister of labour, who was responsible for the conscientious-objector tribunals, could also appeal a decision. As in the United States, the decisions of the local tribunals, as well as those of the appellate tribunals, were protected by a strong privative clause limiting the grounds for judicial review.
21 There was more to the British scheme than this, but in sum it can be fairly said that Great Britain had the most liberal and generous approach to persons with conscientious objection to war. The British have a historical respect for conscientious objectors, in part because of a deep-rooted pacifist tradition, and in part because of a greater respect for individual eccentricity. But as was the case everywhere else, there were limits, and one of those limits was the recognition of Jehovah’s Witness claims to ministerial exemption. The British, like the Americans and the Canadians, drew the line at this demand and said no.
22 The ministerial-exemption provision in the British legislation was similar to the Canadian provision. There were two prongs to the test: first, that the organization in question be a religious denomination; and second, that the applicant requesting exemption be a regular minister of that denomination. As the British Ministry of Labour saw it, even if the first condition was met by Jehovah’s Witnesses, the second was not. ‘Even if the Society could be regarded as a religious denomination,’ an official document declared, ‘the view is taken that a person, in order to be regarded as a “regular” minister of a religious denomination, must be empowered to perform and must regularly carry out all the rites and ceremonies of the denomination which fall to be performed by a minister.’[736]
23 This left the Jehovah’s Witnesses out. ‘The ministers or “servants” of this Society could not be regarded as regular ministers,’ the document continued, because ‘they cannot perform certain rites without being specially appointed for each occasion … [and] … in any case no clear distinction in principle can be made between the general body of Witnesses and those Witnesses who are selected by the association for special authority inasmuch as it is said that all Witnesses are ordained by God, being appointed by the Association to act as “ministers of the Gospel” are equally qualified to perform any rites if they are specially authorized to do so.’ Since there was no distinction between clergy and laity, as all members were both, none could be regular ministers, as regular ministers were persons who occupied positions of leadership, and in the Witness organization such persons did not exist. Moreover, to exempt one of these applicants would be, it was feared, to exempt them all. This went far beyond the purpose of the ministerial-exemption provision, which was aimed at providing for continuity in religious leadership, not the exemption of entire religious groups, a result that British authorities were ‘for obvious reasons … reluctant to accept.’[737] Jehovah’s Witnesses in Great Britain either accepted their status as conscientious objectors or went to jail.
24 In Canada, the United States, or Great Britain, the Jehovah’s Witnesses experienced the war the way they did primarily because they wanted something no state believed it could give when it is fighting for its very existence: blanket exemption from the responsibilities of living under the protection of the state. Thus, if the ministerial exemption had to be construed by government officials and the courts to exclude Jehovah’s Witness ministers, some of whom, such as Leo Greenlees, were entitled to the exemption in the regulations, then so be it. The alternative, it was believed, would surely have been much worse.
25 In Canada, the Jehovah’s Witnesses suffered from official comparison with the more agreeable Mennonites. Their refusal to compromise, or, as one historian of conscientious objection has described it, ‘to play the game,’[738] determined government policy towards them. The government, in its treatment of conscientious objectors, was probably not guilty of excessive zeal and insufficient consideration. On the whole the conscientious-objector administration that was established was sensible and fair. And it provides an interesting contrast to the government’s treatment of ethnic groups, notably the German, Italian, and Japanese. In conscientious objection the state showed that in a democracy at war some fundamental differences could be tolerated without sacrificing the overriding interests of the state. This suggests that other fundamental differences, such as those presented by the Jehovah’s Witnesses, could have been tolerated as well.
26 The episode is also instructive for another reason. If, on balance, government policy towards conscientious objectors as a group was benign, that was the result of the largely favourable relationship that developed between Mennonite leaders and government officials. There is no doubt that the result of this relationship was the establishment of a conscientious-objector program perfectly suited to the needs of the Mennonites and most other conscientious objectors. The Jehovah’s Witnesses, by contrast, had no such favourable relationship with the authorities. They did not vote, they were disinclined to work, and they were shrill and unpleasant. They also claimed that all their members were ministers, and this was a claim the authorities refused to accept. Personality, as well as principle, determined the treatment the group received, and some injustice was the result. Unfortunately, it was also personality, and not principle, that would determine the future treatment the group would receive.
27 ‘In the event of another war it is difficult to suggest what action should be taken with this group if they continue in their present attitude that man’s laws are to be obeyed only when, in their opinion, they do not conflict with what Jehovah wishes them to do,’ the alternative-service-branch final report declared. ‘The Branch,’ it continued ‘is quite definitely sure that this group are not conscientious objectors and is of the opinion that they should not be so classed in the event of another war.’[739] What, if anything, had been learned?
8. The Framework of Freedom
1 The end of the war in Europe, in May 1945, had no immediate effect on the Jehovah’s Witnesses. Two of their corporate bodies remained banned, and in Hamilton their children were still being kept out of school. By the time Japan surrendered in August, no Witness organization remained proscribed, but even the Ontario Court of Appeal decision in their favour in the Donald case was not enough to get Witness children into Hamilton’s public schools. It took a decision of the Supreme Court of Canada refusing the Hamilton Board of Education leave to appeal before the Donald boys, and the other Witness children in Hamilton, were allowed to return to the classroom. And it was not until the summer of 1946 that Witness men who were postponed as conscientious objectors were released from their alternative-service camps. The Canada they returned to was a nation transformed by the events of the war.
2 Government intervention in the Canadian economy during the war had reached a high-water mark, and passage during the war years of a constitutional amendment giving Ottawa legislative power over unemployment insurance set the framework for a new and expanded post-war role for the federal government. This shift from a laissez-faire state suited the CCF perfectly, for from its earliest days the party was imbued with the spirit of the social gospel. The war revived many CCFers' millenary beliefs and hopes for a more just, equitable, and prosperous post-war world. ‘It brought convictions to many that governments, which had shown such increasing expertise and efficiency in fighting the war, would be equally capable of saving the peace and building the just society of the future’[740] — and, needless to say, avoiding another post-war depression.
3 These were views many Canadians found attractive, and discussion of these ideas was part of a fertile and important debate about the kind of post-war society in which Canadians wished to live. The rising public clamour for social and economic reform could not be ignored. Prime Minister King realized that the socialists were on to something, and he had no intention of letting them cut into Liberal-party support.
4 Indeed, even before the war was over the federal cabinet moved on the social front. More than one million men and women, out of a population of just over twelve million, had served in uniform. It was intended from the start of the war to demobilize these troops at the earliest possible moment, and to assist their re-entry into Canadian society the Department of Veterans Affairs was established. It would keep the returning soldiers happy with pensions and benefits along with a number of rehabilitation and re-establishment programs. Another new department, National Health and Welfare, had as its mandate the promotion and preservation of health, welfare, and social security of Canadians, while the Department of Reconstruction directed readjustment of the economy through the reconversion of industrial plants to peacetime needs. The Canadian economy had expanded at an unprecedented rate during the war, and there was a fear that the end of the war would lead to an economic down-turn. The fear turned out to be groundless, for by and large the economic prosperity continued. This too affected the social and political climate.
5 The federal government was committed, whether out of politics or principle, or perhaps both, to a new social order, and it repeatedly said as much. In the January 1944 Speech from the Throne, for example, the governor general declared that both social security and human welfare ‘should be advanced as rapidly as possible.’[741] In particular, the government promised to seek agreement with the provinces for health-insurance programs and for a more generous national old-age pension.
6 National health insurance, like more generous old-age pensions, was a formerly unpopular program whose time had come. The time of the CCF also seemed to have come. Although it failed to come to power in a close election in Ontario, it achieved the seemingly impossible in the June 1944 Saskatchewan election. Under the leadership of veteran social democrat T. C. Douglas, who had left Ottawa for Regina, the CCF won forty-seven of fifty-two seats. In response, the federal Liberals' leftward drift accelerated. A federal election was called in 1945. ‘Build a New Social Order’ was the Liberal campaign slogan, and it just succeeded. The prime minister lost his own seat and had to seek another, while his party came back to power with only a slim majority.
7 Canadians emerged from the war with a stronger sense of themselves, and Canada was poised on the brink of major change. The fact that Canada had, on its own, declared war in September 1939 suggested that it was no longer a colony but a nation. The huge contribution of labour, money, and materials it made to the successful prosecution of the war proved this was true. Indeed, the country’s change in status could be seen in myriad ways, from the upgrading of the legation in Washington to a full-fledged embassy with a Canadian ambassador, to Canada’s participation, which was second to none, in the creation of the United Nations. There was great optimism that the UN would succeed where the League of Nations had so obviously failed.
8 There were other changes as well. The war brought women into the work-place, and when it ended, many of them stayed on the job. There were new demands, not just for social welfare, but for social services. Urbanization increased, and post-war immigration began to turn Canadian cities into active and vibrant places. While many of the old problems persisted, such as the two solitudes of English and French, Mackenzie King had brought the country into and out of the war in one piece. And that was the singular accomplishment of his long and fruitful career. The attainment of national unity remained the central goal of Canadian political life, but in the immediate post-war period there was more that united Canadians than kept them apart. The emergence of the United States as the pre-eminent world power also had something to do with this. At one time, the United Kingdom stood as a counterweight to the influence in Canada of the United States. However, the war left Britain exhausted, and what balance Britain had once provided was gone. Defining their relations with the Americans became a Canadian preoccupation, if not the major one.
9 That Canadians considered themselves distinct was reflected in calls for a Canadian flag, to replace the British Ensign, for a Canadian national anthem to replace ‘God Save the King,’ and for Canadian, not British, citizenship. These three post-war demands would have been considered radical before the war, but afterwards they were indicative of the awakening of a new national identity. A Canadian citizenship act came first; in time, the anthem and flag followed.
10 Canadians also became interested in human rights, and that term, as well as the term ‘civil rights,’ entered the popular vocabulary.[742] The world recoiled in horror as the full magnitude of Nazi war crimes became known. Before the war, Canadian Fascists had been permitted to spread their message of hate reasonably unhindered. The Holocaust demonstrated the evils of discrimination. Adrien Arcand, leader of the National Unity Party, emerged from internment in July 1945. He attempted a come-back and even ran for Parliament. But the public was largely uninterested in him and in his views. Fascist organizations would never disappear, but they were no longer a threat or viewed as such.[743]
11 Public defamation of a race was unacceptable after the Holocaust. Racial discrimination, indeed discrimination of any kind, could have no place in the post-war world. The UN began to draft the Universal Declaration on Human Rights. It was to be a bill of rights applicable to everyone in the world and binding on every government. The UN was not the only body asked to consider a bill of rights in the aftermath of the war: so too was the Parliament of Canada.
12 On 10 October 1945, CCF member Alistair Stewart gave the House of Commons notice that he intended to introduce a motion calling for the incorporation into the BNA Act of a bill of rights ‘protecting the minority rights, civil and religious liberties, freedom of speech and freedom of assembly, establishing equal treatment before the law of all citizens, irrespective of race, nationality or religious or political beliefs and providing necessary democratic powers to eliminate racial discrimination in all forms.’[744] The motion, like the notice, did not lead to any immediate results, but as numerous religious, ethnic, and labour organizations made discrimination their issue, legislation to combat overt racism became the order of the day.
13 Ontario led the way with passage in 1944 of an anti-discrimination act by the new Conservative government. John Glass, the MPP for the Toronto riding of St Andrew, inspired the initiative with a private-member’s bill, but his Discrimination Prevention Bill died on the order paper. However, the support it did receive from, among others, J. B. Salsberg and A. A. MacLeod, two recently elected communists running under the banner of the Labour Progressive Party, was enough to convince Premier George Drew that some action was in order, parliamentary arithmetic being what it then was.[745]
14 In the result, the Racial Discrimination Act was introduced and passed in 1944.[746] The act prohibited publication of advertisements, publications, and notices that indicated an intention to discriminate, in employment or otherwise, by reason of race or creed. The legislative initiative was sharply criticized in debate, and in petitions and resolutions that made their way to Drew’s office, as an abridgment of the right to free speech. This criticism was not without foundation. Free speech, however, had limits. A balancing of interests was taking place, and discriminatory signs were a limit to freedom of speech.[747]
15 The Racial Discrimination Act was, however, subject to some serious limitations. First of all, the consent of the attorney general was a necessary pre-condition to prosecuting an alleged offender under the legislation. Second, the fines provided for in the act were so small as to be little more than a licence to discriminate, assuming that consent was given for a prosecution to take place. It quickly became clear that the act was not the beginning of an enlightened era of law-making in the province. It proved instead to be the apex of the Drew government’s political liberalism. Significantly, when his party was returned to power with a majority government in 1945, no more civil-rights measures were passed.[748]
16 Passage of the Racial Discrimination Act did not bring discrimination in Ontario to an end. Discrimination in employment, housing, and access to public accommodation and facilities continued. In Dresden, Ontario, for instance, blacks were not served in the town’s restaurants and were just as likely to be run out of town as refused a meal. Their plight received considerable public attention and sympathy, particularly in the Toronto press, but they were still not being served and would not be for years. What was different was that many Canadians now said that this situation was wrong, and had to change. Canadians were also more than a little interested in continuing parallel developments in the United States.
17 A presidential order of June 1941 prohibited employment discrimination and established the Fair Employment Practices Committee. Two years later, in May 1943, another executive order beefed up the earlier provision. And then on 6 December 1946, President Harry Truman appointed fifteen men and women to a special committee on civil rights. That committee gathered evidence and held hearings before submitting a report to the president on 29 October 1947. Only twice before in American history had the nation reviewed the status of its civil rights. The first scrutiny was in 1791 when the U.S. Constitution was ratified, at which time the first ten amendments, the Bill of Rights, were passed. The second time was after the Civil War, which led to further amendments to the Constitution. The hard-hitting report of the Fair Practices Committee noted the lacuna in the American legislation and made many positive recommendations for the strengthening of federal and state civil-rights enforcement mechanisms.[749] Discussion of civil rights was in the air. In 1947 in Saskatchewan it became more than academic. The social democrats in Saskatchewan introduced and then passed the Saskatchewan Bill of Rights. A Canadian province now had meaningful human-rights legislation on the books. Attention turned to Ottawa and to demands that the Parliament of Canada follow suit.
18 One of the main proponents of a bill of rights for Canada was John Diefenbaker, the ambitious Conservative MP. As a youth, Diefenbaker felt persecuted about his German-sounding name, and he had a sincere concern for the underdog.[750] In May 1946 he made his first proposal in the House of Commons for a bill of rights. Clauses guaranteeing freedom of speech and religion, a right against self-incrimination, and no abrogation of the writ of habeas corpus except by Parliament were all among the features of the first Diefenbaker bill. (This was the same man, of course, who had told the House of Commons during the early days of the war that habeas corpus had not been suspended, but had merely been placed in ‘abeyance.’) Diefenbaker’s proposal, like the one Stewart earlier made, died on the order paper, but the idea was here to stay.[751]
19 The fundamental freedoms set out in the 1941 Atlantic Charter — freedom of speech, freedom of worship, freedom from want, and freedom from fear — were incorporated into the articles of the United Nations. Following three years of discussion by the General Assembly of the UN, the Universal Declaration of Human Rights was adopted at a meeting in Paris in 1948. John Humphrey, a McGill University law professor, was one of the principal architects of the declaration, which stated in its preamble that ‘recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world,’ and that ‘disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind.’ The declaration went on to list a number of rights, including the right of all to life, liberty, and the security of the person; to equal treatment before the law; to a fair trial; to freedom of movement; to a nationality; to freedom of thought, conscience, and religion; to own property; to freedom of opinion and expression; to peaceful assembly and association; and to periodic and genuine elections by universal and equal suffrage. Behind all this activity was a belief that for there to be peace, every person must be guaranteed these rights.
20 The UN declaration spawned other conventions such as the Convention on Racial Discrimination and the European Convention on Human Rights. Such institutions as the UN and such declarations as the one on human rights could, many believed, make the world a better place in which to live. These international developments continued to be paralleled on the domestic scene. Demands for a Canadian bill of rights had grown, and one reason for the increase in demands was the treatment of Jehovah’s Witnesses in Quebec.
The war without mercy
1 With the defeat of Maurice Duplessis and the Union Nationale as a result of the intervention of Ernest Lapointe, P. J. A. Cardin, and Chubby Power in the October 1939 provincial election, the Liberal party’s leader, Adelard Godbout, became premier.
2 While in opposition, a number of Liberals had attacked the Padlock Act, expressing serious reservations about the wide powers given to the attorney general. This perspective changed, however, once the Liberals moved to the government side of the Legislative Assembly. The explanation, as Duplessis, Lapointe, and Adelard Godbout knew, was that the act was extremely popular in the province. The ‘opposition of the local CCF leader, the president of Le Devoir, and a couple of Jewish lawyers and their friends was a great political asset’ to Duplessis and to electoral success at the polls.[752] The Padlock Act might not have been used, but Godbout had no intention of attempting to repeal the law, for to do so would have put him at some political peril.
3 There was no doubt that Godbout had come to power on the tail of the federal Liberals, and there was equally no doubt that, as a result, the premier was politically indebted to Ottawa. As the war progressed both he and his government suffered as a result of their association with the federal government. There was the matter of heavy taxes, rationing, and price and wage controls, all of which Quebeckers, not enthusiastic about the war in the first place, accepted only grudgingly. More important, however, was Godbout’s support on the ‘Yes’ side during the national plebiscite called to release King from his pledge not to introduce conscription. In contrast, Duplessis announced that he was voting ‘No,’ a far more popular and politically expedient decision. Indeed, the federal association that had initially propelled the provincial Liberals to power, by the time a provincial election was required, had become a liability. Godbout could not, despite his valiant efforts, remove the blot from his political escutcheon.
4 Cardinal Villeneuve again supported Duplessis, who promised to utilize the Padlock Act, and so did most of the Roman Catholic hierarchy in Quebec. Between Godbout and his anti-clerical Liberal entourage, and Duplessis and the more trustworthy Union Nationale, it was far from a close race for episcopal support. Officially the church remained neutral, but unofficially its choice was clear, and on 8 August 1944 when the people went to the polls Duplessis returned to power with a large majority of seats. Duplessis began a political epoch in Quebec while next door, in Ontario, a Conservative-party dynasty had just begun. The Conservatives would keep their party fresh by periodic leadership changes, while in Quebec Duplessis would remain premier of the province until his death on 7 September 1959.[753]
5 Duplessis ran the province in an authoritarian manner, but it was in his dual role as premier and attorney general that he stamped his pattern on the government. Duplessis had two overriding and complementary political objectives: first, to resist any attempt by the federal government to intervene in Quebec affairs; and second, to promote provincial autonomy in the face of federal intervention, real or imagined. Paradoxically, however, in the pursuit of these goals Quebeckers lost out. Every other province, for example, received generous federal financial contributions to education. Duplessis, claiming that federal funding was an intrusion into provincial affairs, rejected federal assistance. In cause after cause Duplessis was there to ‘protect’ French-Canadian ‘rights.’ The Padlock Act was just one of many instruments in Duplessis’s arsenal for doing so.
6 French-Canadian attitudes towards communism did not soften between 1939 and 1945 as English-Canadian ones had. The events during the Spanish Civil War as well as the news of mass arrests of bishops, priests, and prominent lay church leaders following the Soviet occupation of Hungary and Poland provided compelling evidence of what communists were really like. A post-war poll reported that four out of five Quebeckers believed communism was a ‘serious threat’ to Canada.[754] And upon his return to power, Duplessis began an attempt to eradicate communist influence in Quebec life. With the Padlock Act as the principal tool, the premier and attorney general launched a campaign against the Labour Progressive Party, as the Communist party was now known. LPP premises were seized and padlocked, as were the premises of LPP printers and activists. Anti-communist trade-union legislation was enacted, and the government refused to certify unions in which LPP members played an active role. Politically, Duplessis made every effort to associate, in the public mind, his political opponents with the communists; Adelard Godbout was reviled for having been soft on communism as he had made no attempt to enforce the Padlock Act. The federal government was criticized because the National Film Board had sponsored wartime documentary films favourable to the Soviet regime. Equally troubling, in French-Canadian eyes, was Ottawa’s refusal to accord diplomatic recognition to the Vatican while it maintained diplomatic relations with a number of countries that had come under communist rule. LPP support for Liberal candidates in certain constituencies in which the communists were not themselves running for office also raised suspicions about the existence of a secret communist-Liberal pact.[755] The end result was that many Quebeckers came to see the Union Nationale as a bulwark against the forces of subversion. Fighting the communists, as well as associating the Liberals with them, was an indispensable ingredient to Duplessis’s overall political success. A parallel campaign against the Jehovah’s Witnesses was equally important. Duplessis referred to it as his ‘war without mercy.’
7 At the end of the Second World War there were about ten thousand Jehovah’s Witnesses in Canada, but fewer than five hundred in Quebec. The people of Quebec, the Jehovah’s Witnesses believed, were ‘sitting in darkness’ and were in urgent need of their attention.[756] The Jehovah’s Witnesses believed that Roman Catholics in Quebec were responsible for the wartime ban, and they were intent in the post-war period on revealing the hierarchy as an iniquitous institution. They also knew that Quebec, more than any other place in Canada, was hostile to their work, although whether or not this increased their enthusiasm for seeking converts in Quebec is difficult to say.[757]
8 The sedition provisions of the Criminal Code were put to as good use suppressing Witness activities after the Second World War as they had been before it. But section 133 was not the only tool available to prevent the Jehovah’s Witnesses from going about their work. Many towns and municipalities also passed by-laws making it an offence to distribute literature without a licence. Invariably, these by-laws were intended to keep Jehovah’s Witnesses off city streets, but they were also employed from time to time to keep Baptist missionaries, Seventh-day Adventists, and assorted others from spreading their equally unwanted messages. In the years before the Second World War, approximately one hundred Jehovah’s Witnesses were arrested every year. During the war these figures, as might be expected, increased. But it was after the war that the number of arrests showed exponential growth. More than eight hundred charges against Jehovah’s Witnesses were filed in 1946. The explanation for the increase was simple enough. Duplessis believed that Witness activity in the province was a deliberate assault on values and virtues Quebeckers held dear. And like just about everything else, Witness conduct could be reduced to a question of provincial rights. If the federal government and the RCMP refused to discipline a seditious group that sought to destroy the Roman Catholic church then Duplessis, as attorney general, had no option but to intervene and defend the faith.[758] As a result, he encouraged local authorities and provincial police to stamp out the sect.
9 The Jehovah’s Witnesses did not respond to what they believed was another Satanic attack on God’s work by turning the other cheek. Instead, they entered the lion’s den. One of their ways of doing so was in print. Quebec’s Burning Hate was issued first. The full title of the short leaflet, issued in the fall of 1946 in a first printing of 1.5 million copies, 500,000 of which were in French, was Quebec’s Burning Hate for God and Christ and Freedom Is the Shame of All Canada. The tract painted a sordid and disturbing tableau.
10 Since the end of the war, Quebec’s Burning Hate reported, the Jehovah’s Witnesses had been the subject of province-wide persecution. From one parish to another, Witnesses had been beaten, arrested, and sentenced to jail. Civil authorities were involved, either by refusing Jehovah’s Witnesses police protection or by passing by-laws directed against the sect, making distribution of their literature without a permit an offence, or usually by both. The church was behind it, the leaflet charged, goading the mobs and the local councils on, and sometimes parish priests led their flock in driving Witnesses out of town.
11 The Jehovah’s Witnesses had not been sitting idly by. Montreal and Verdun were centres of activity against the sect, and the by-laws prohibiting Witness activity were challenged in court not long after the end of the war. Justice C. Gordon MacKinnon ordered writs of prohibition against the recorder’s courts (which were equivalent to magistrates' courts elsewhere in Canada), in the two jurisdictions. Notwithstanding MacKinnon’s finding that the by-laws in question were unconstitutional for their interference with free worship, charges continued to be laid. And the courts convicted more often than not.
12 The Quebec judiciary was, according to Quebec’s Burning Hate, dominated by the church. Therefore, it was no accident to see the crucifix installed in all the province’s courts, in the Legislative Assembly, and in government buildings throughout the province. The cardinal’s personal chair, alongside that of the lieutenant-governor in the Legislative Assembly, was just further evidence of the diabolical church-state link. The province was priest-ridden and the priests, working in concert with the police and local authorities, were waging war against God, Christ, and Freedom, meaning, of course, the Jehovah’s Witnesses. Quebec Catholics were not serving God by mobbing Jehovah’s Witnesses; they were merely serving corrupt priests and dooming themselves to damnation. ‘Quebec,’ the leaflet concluded, ‘you have yielded yourself as an obedient servant of religious priests, and you have brought forth bumper crops of evil fruits.’[759] Soon after the appearance of Quebec’s Burning Hate a new wave of arrests began. Typical were the cases against Charles Elvey, a twenty-two-year-old English-speaking Jehovah’s Witness from Montreal, who was tried by an English-speaking jury, and Mrs René Ouellette, a French-Canadian Witness convert, who was tried by a French-speaking jury.
13 Charged with seditious libel for distribution of the leaflet, Elvey requested a jury trial. He was represented by A. L. Stein, who told the jurors that there were only two points for them to consider. First, whether the accused had published a seditious libel. According to Stein, he had not. And second, that even if he had, the accused was saved by the good-faith defence provision of the Criminal Code.
14 The presiding judge was Justice Wilfrid Lazure who, before sending the English jury off to consider its verdict, cited two paragraphs from the leaflet: ‘Before hot denials and protests and false countercharges boom out from the priestly keepers of Quebec Province and whip up unreasonable frenzy, calmly and soberly and with clear mental faculties reason on the evidence in support of the above-headlined indictment. Words in lip service to God and Christ and freedom can be as cheap as the free wind it takes to utter, but actions speak louder to reasoning minds,’ and ‘Quebec, Jehovah’s Witnesses are telling all Canada of the shame you have brought on the nation by your evil deeds. In English, French and Ukrainian languages this leaflet is broadcasting your delinquency to the nation. You claim to serve God: you claim to be for freedom. Yet if freedom is exercised by those who disgrace you, you can crush freedom by mob rule and Gestapo tactics.’
15 Justice Lazure then reminded the jury that the leaflet had been published in an edition of more than 1.5 million copies and asked the jury if such ‘tactics’ were not deliberately used to arouse ill-will and hatred among different classes of the people. The accused were, as Stein earlier said, entitled by law to criticize in good faith, but the judge then went on to note that Catholics, Protestants, Anglicans, and Jews had been living peacefully together in Quebec for years without engaging in ‘any such activities.’ The message to the jury could not have been made more clear. The jury, however, acquitted the accused after only thirty-five minutes of deliberation.
16 In contrast, when Mrs Ouellette was tried she was convicted on exactly the same charge, arising out of exactly the same incident as the one in which Elvey had been acquitted. Elvey and Ouellette had distributed the same leaflet, Elvey’s in English and Ouellette’s in French. Mrs Ouellette was sentenced to three months in jail. Typically, English juries acquitted while French-speaking, Roman Catholic juries convicted persons accused of similar if not identical crimes, often in adjacent courtrooms.[760] Equality under the law depended on whether you were English or French.
17 If the Jehovah’s Witnesses expected that Quebec’s Burning Hate would bring what can only be described as religious persecution to an end, they soon found out otherwise. Premier Duplessis described the leaflet as ‘intolerable and seditious.’[761] The Jehovah’s Witnesses saw things differently. ‘The Hierarchy,’ the Witnesses declared, ‘set up a howl of rage and counter-attacked; not with denial of the disgraceful account of her actions, but with her favourite weapons of slander, lies, violence and the pressure of Quebec’s corrupt political machine upon the law enforcement bodies.’[762] In sixteen days, 260 arrests were made in the Montreal area alone, although not one arrest was made in any part of Canada outside of Quebec. ‘You bunch of crazy nuts,’ one judge boomed at some arrested Jehovah’s Witnesses from the bench, ‘could at least have waited until the appeal of your judgment had been heard before resuming your activities.’[763] The Jehovah’s Witnesses had no intention of doing so, and another leaflet, Quebec: You Have Failed Your People, this time in an edition of almost two million, was issued and distributed throughout the country. Readers could not help but be impressed with the case the Jehovah’s Witnesses had made in detailing their persecution. All were invited to write the prime minister of Canada and tell him as much. Shouldn’t Canadians, the leaflet asked, have freedom of religion?
18 The answer to that question was that freedom of religion was a matter of degree. B. K. Sandwell, the editor of Saturday Night magazine, who had one of the best civil-liberties records of the war, summed up his views at the annual conference of the Canadian Institute of Public Affairs, held each year at Lake Couchiching. Sandwell wondered whether the Jehovah’s Witnesses had any right to ring doorbells and try to purvey their ideas. He told the other delegates to the conference that any opinion should be lawful provided that it neither caused a nuisance to others nor was likely to lead to the commission of an unlawful act. ‘It should be lawful to believe,’ Sandwell said, ‘that the King, the Governor-General or the Prime Minister ought to be assassinated, or that their assassination would be a meritorious act, and it should be lawful to say so in circumstances which are not likely to lead to the act being committed.’ Why Sandwell thought such activity should be lawful while proclaiming the word of God by going from door to door should not be is really quite difficult to see.[764] Sandwell believed, however, that the rights of the majority did not extend to mob action in matters of disagreement with the views of the minority.[765] The problem with the Jehovah’s Witnesses, declared F. R. Scott, was they insulted their fellow citizens ‘by calling them evil names in widely distributed pamphlets.’[766] That, succinctly put, was the issue the Jehovah’s Witnesses raised. How far could free speech and freedom of religion go?
19 Whatever the limits on these freedoms, Duplessis believed that they did not extend to sanctioning attacks on the Roman Catholic church. These attacks, not to mention the first real attempt by a religious organization to seek converts in the province, account for Duplessis’s ‘war without mercy’ on members of the sect. Between 1946 and 1953 he instigated 1,665 separate prosecutions against individual Jehovah’s Witnesses. The charges ranged from trivial disturbances of the peace, such as handing out tracts on street corners without permits, to arrests and trials for sedition, a term which Duplessis twisted to mean almost any publicly spoken criticism of the established order.[767] The result of the battle in the courts was a victory for both the Jehovah’s Witnesses and for human rights. There are a number of cases that could be considered, but three of them stand out: Boucher, Saumur, and Roncarelli.
20 Aimé Boucher, a Jehovah’s Witness, was arrested in December 1946. A farmer in the rural St Germain Parish, Boucher was charged with sedition for distributing copies of Quebec’s Burning Hate. There was a defence to the offence and Boucher relied on it. At trial he testified that he distributed the literature in good faith and in the hope that it would convince Quebeckers to stop persecuting Jehovah’s Witnesses. Boucher was, however, convicted, an almost foregone result when the trial judge neglected to instruct the jury that it was up to it to decide whether or not Boucher had acted in good faith and was entitled to rely on the statutory defence. The Court of King’s Bench denied Boucher’s appeal. A dissent in the court of the appeal gave Boucher an entrée to the Supreme Court.
21 Boucher had been arrested in 1946 and convicted in 1947. By the time his case came to the Supreme Court of Canada, that court was supreme not just in name. As of 1949, it was no longer possible to appeal Canadian decisions to the Judicial Committee of the Privy Council in Great Britain (although criminal appeals to the JCPC had not been available for many years). In the context of a sedition charge, the Boucher case raised important questions about the scope of freedom of religion and freedom of speech. And it, along with the other Witness cases that followed, illustrated that the Supreme Court of Canada, in its first decade of independence, was of first rank. Credit for that rank belonged, in large measure, to recent appointee Ivan Rand.
22 Rand was the judge who had questioned J. R. Cartwright carefully when that prominent Toronto attorney sought leave on behalf of the Hamilton Board of Education to appeal the decision in the Donald case. At that time, Rand had just been appointed to the Bench, but he brought with him the experience of a full life. The son of a railway mechanic, Rand studied law at Harvard where he became friends with Felix Frankfurter and came under the tutelage of Professor Louis Brandeis. Between 1913 and 1920 he practised law in Medicine Hat, a southern Alberta town, and then returned to his home town, Moncton, New Brunswick. A spell as attorney general of the province was enough to convince Rand that New Brunswick politics were not for him, and in 1926 he became corporate counsel to the Canadian National Railways. Mackenzie King appointed him a justice of the Supreme Court of Canada in 1943.
23 Rand immediately established a reputation for himself. He refused to give judicial approval to a government plan to deport Canada’s Japanese and his extra-judicial duties included the settling of an important labour dispute in Windsor and a leading role in the UN Special Committee on Palestine. Unlike Frankfurter, Rand was committed to judicial activism in the search for social justice, and he had no qualms about using the court in the pursuit of this goal. The Boucher case is demonstrative of this point.[768]
24 The Boucher case was actually heard twice by the Supreme Court. The first time five judges assembled to hear the case, three of whom, as indicated in their reasons for decision, would have directed a new trial, while the other two would have directed an acquittal. Moreover, the judgments gave conflicting views of the state of the law so as to make it almost impossible for a trial judge to give a good direction to the jury on retrial. Accordingly, an application was filed, requesting re-argument before the full court. It was an extraordinary application, and even more unusual was the fact that it was granted. A second decision was rendered the following year, and five of the nine judges directed Boucher’s acquittal. The decision was significant in respect of the division in the judicial ranks on the proper definition of sedition. Moreover, the case says a lot about the ability of courts to respond to social change.
25 The generally accepted definition of sedition had proved a potent weapon against the Jehovah’s Witnesses in Quebec, as it was no great task to convince a French-speaking jury that Witness literature caused disaffection or ill-will and hostility between groups of people. When heard by the five-man court, two of the judges were prepared to accept the continued accuracy of this definition, while the three other members of the court, including Rand, rejected this view. When the case was re-argued before the full Supreme Court, all but one, the Chief Justice, agreed that the definition was narrower in scope than had been previously accepted.
26 While eight of the nine judges wrote reasons for decision — multiple opinions were one of the characteristics of the Supreme Court in this period — it is fair to say that, on second hearing, the Court found that an intent to create hostility and ill-will between different classes of subjects was not enough to constitute the crime of sedition. It was an ingredient, but also necessary was an intention to incite to violence or resistance to, or defiance of, constituted authority. In and of itself, the narrowing of the definition constituted an important victory, for the earlier broad definition of sedition had proved to be an effective tool — not in preventing sedition, but in preventing Witness speech.
27 That is not to say, and no one on the Supreme Court did so, that there were not limits to free speech, for clearly there were. But the broadly worded ‘sedition’ definition could no longer be one of them. In considering the offence and its applicability to Canada, Justice Rand made one of his many great contributions to the law. Rand began by considering the facts in issue:
28 The incidents, as described, are of peaceable Canadians who seem not to be lacking in meekness, but who, for distributing, apparently without permits, bibles and tracts on Christian doctrine; for conducting religious services in private homes or on private lands in Christian fellowship; for holding public lecture meetings to teach religious truth as they believe it of the Christian religion; who, for this exercise of what has been taken for granted to be the unchallengeable rights of Canadians, have been assaulted and beaten and their bibles and publications torn up and destroyed, by individuals and by mobs; who have had their homes invaded and their property taken; and in hundreds have been charged with public offences and held to exorbitant bail. The police are declared to have exhibited an attitude of animosity toward them and to have treated them as the criminals in provoking by their action of Christian profession and teaching, the violence to which they have been subjected; and public officials and members of the Roman Catholic Clergy are said not only to have witnessed these outrages but to have been privy to some of the prosecutions. The document charged that the Roman Catholic Church in Quebec was in some objectionable relation to the administration of justice and that the force behind the prosecutions was that of the priests of that Church.[769]
29 Rand next considered the conduct of Aimé Boucher.
30 He had, Rand wrote, done nothing wrong. Boucher was ‘an exemplary citizen.’ Moreover, he was ‘at least sympathetic to doctrines of the Christian religion which are, evidently, different from either the Protestant or the Roman Catholic versions: but the foundation in all is the same, Christ and his relation to God and humanity.’[770] It did not matter to Rand that Boucher, as a Jehovah’s Witness, had different beliefs. What mattered was Boucher’s right to his expression of his Christian faith. All that was now left to determine was whether or not the leaflet Boucher distributed met the definition of sedition. In turning to that task, Rand began by placing the definition of sedition in the context of its time. It was, Rand said, an expression of eighteenth-century social assumptions, one of which was that governors of society were beyond public criticism. The nineteenth century brought with it new social assumptions, including the idea that administrators of government were servants of and owed a duty to the public. As a result, English sedition cases, after the eighteenth century, began to emphasize that incitement to violence must be part of the offence, not just criticism, whether intended or not to cause disaffection among the people. In England, the common law had evolved to the point where criticism was no longer enough to constitute the sedition offence. And in his reasons for decision Rand explained why:
31 Freedom in thought and speech and disagreement in ideas and beliefs, on every conceivable subject, are of the essence of our life. The clash of critical discussion on political, social and religious subjects has too deeply become the stuff of daily experience to suggest that mere ill-will as a product of controversy can strike down the latter with illegality. A superficial examination of the word shows its insufficiency: what is the degree necessary to criminality? Can it ever, as mere subjective condition, be so? Controversial fury is aroused constantly by differences in abstract conceptions; heresy in some fields is again a mortal sin; … but our compact of free society accepts and absorbs these differences and they are exercised at large within the framework of freedom and order on broader and deeper uniformities as bases of social stability. Similarly in discontent, disaffection and hostility: as subjective incidents of controversy, they and the ideas which arouse them are part of our living which ultimately serve us in stimulation, in the clarification of thought and, as we believe, in the search for the constitution and truth of things generally.[771]
32 Quebec’s Burning Hate was, Rand wrote, part and parcel of this democratic give and take.
33 The writing was undoubtedly made under an aroused sense of wrong to the Witnesses; but it is beyond dispute that its end and object was the removal of what they considered iniquitous treatment. Here are conscientious professing followers of Christ who claim to have been denied the right to worship in their own homes and their own manner and to have been jailed for obeying the injunction to ‘teach all nations.’ They are said to have been called ‘a bunch of crazy nuts’ by one of the magistrates. Whatever that means, it may from his standpoint be a correct description; I do not know; but it is not challenged that, as they allege, whatever they did was done peaceably, and, as they saw it, in the way of bringing the light and peace of the Christian religion to the souls of men and women. To say that is to say that their acts were lawful. Whether, in like circumstances, other groups of the Christian Church would show greater forbearance and earnestness in the appeal to Christian charity to have done with such abuses, may be doubtful. The courts below have not, as, with the greatest respect, I think they should have, viewed the document as primarily a burning protest and as a result have lost sight of the fact that, expressive as it is of a deep indignation, its conclusion is an earnest petition to the public opinion of the province to extend to the Witnesses of Jehovah, as a minority, the protection of impartial laws. No one would suggest that the document is intended to arouse French-speaking Roman Catholics to disordering conduct against their own government, and to treat it as directed, with the same purpose, towards the Witnesses themselves in the province, would be quite absurd … That some of the expressions, divorced from their context, may be extravagant and may arouse resentment, is not, in the circumstances, sufficient to take the intention of the writing as a whole beyond what is recognized by section 133A as lawful.[772]
34 Justice Rand was not opposed to placing limits on freedom of expression. What he was against was the interpretation of the sedition provision, which had enabled the state to suppress freedom of speech because it did not like what was being said. There were, in Rand’s view, limits to dissent, but they were not at the point where dissenters merely caused some ill-will, but at the point where the words themselves incited violence against the state. The fact that Roman Catholics in Quebec were insulted by what the Jehovah’s Witnesses had to say, or by the literature that they produced, was not enough for Rand, or for the majority of the court. Freedom of speech and freedom of religion in the context of the Boucher case took a step forward. And so did the Supreme Court. The judgments, one commentator wrote in the pages of The Canadian Bar Review, ‘inspire pride and confidence in the court that is now in all matters Canada’s final court of appeal.’ They represent, the commentator concluded, ‘the judicial process at its best.’[773]
35 The Boucher case took years to decide and in the meantime state action against the Jehovah’s Witnesses continued. Hundreds of sedition charges had been laid following the distribution of Quebec’s Burning Hate, and many of them resulted in convictions long before the Supreme Court finally disposed of the Boucher case. Pending the ultimate disposition of that case, Jehovah’s Witnesses continued to be arrested, and even when the sedition law was placed out of reach, authorities in Quebec used other means to curtail Witness work. One of these means was local by-laws and ordinances requiring permits as a pre-condition to peddling literature in the streets. Persons charged with violations of these laws found themselves in front of lower-level courts, and when convicted, they had extremely limited rights of appeal. The prerogative writs, ancient legal orders by which official action can be reviewed, were largely unavailable to the people of Quebec. The absence of appeal and judicial review placed a potent weapon in the hands of those eager to suppress Jehovah’s Witness speech. However, Laurier Saumur, a Jehovah’s Witness, found a way to challenge one of these ordinances.
36 In October 1933 the city of Quebec passed a by-law forbidding the distribution of any book, pamphlet, circular, or tract without a permit from the chief of police. There was no appeal from the police chief’s decision and it was an incontrovertible fact that the measure was initiated and directed solely against Jehovah’s Witnesses. They rarely, if ever, obtained permits, while for other groups approval was virtually routine. Saumur claimed that the province of Quebec had no right to confer upon a municipality the power to pass laws restricting the distribution of literature without a licence.
37 The Jehovah’s Witnesses argued that they had a legal right to preach on the streets, and they cited in support of their claim a pre-Confederation statute, the Freedom of Worship Act. This long-forgotten statute, passed by the Parliament of Canada one hundred years earlier, provided: ‘Whereas the recognition of legal equality among all Religious Denominations is an admitted principle of Colonial Legislation … be it therefore declared … That the free exercise and enjoyment of Religious Profession and Worship, without discrimination or preference, so as the same be not made an excuse of acts of licentiousness, or a justification of practises inconsistent with the peace and safety of the Province, is by the constitution and laws of this Province allowed to all Her Majesty’s subjects within the same.’[774]
38 Lawyers for the attorney general of Quebec argued that the by-law in question was a proper and constitutional exercise of provincial powers, and should be allowed to stand. The Freedom of Worship Act, they added, did not apply because the Jehovah’s Witnesses were not a religious denomination. This was the same argument made in the ministerial-exemption and conscientious-objection cases. More to the point, lawyers for Quebec argued that if that act did apply, the publications of the Jehovah’s Witnesses constituted acts of licentiousness and so were not protected under the act. Moreover, the Quebec government claimed that the Jehovah’s Witnesses' refusal to abide by the law was inconsistent with the peace and safety of the province, and that the by-law was not infringing their religious rights as its purpose was traffic control.
39 At the Supreme Court of Canada five of the judges held that Saumur’s rights had been infringed, and seven of the nine members of the court gave reasons for their decision. Four judges, with Rand at the lead, held that the by-law was legislation in relation to freedom of religion and freedom of the press. These two freedoms were not, this liberal quartet held, provincial matters. They did not fall within the property and civil-rights grant of power given to the provinces by the BNA Act and so were beyond the legislative purview of the province. A fifth member of the court, Justice Kerwin, held that religious rights did fall within the provincial powers, but that the Freedom of Worship Act proscribed Quebec’s passing legislation interfering with the Jehovah’s Witnesses' religious rights.
40 It was on this basis that Saumur won his case. The court had come very close to saying that it was beyond the reach of a provincial legislature to interfere with fundamental freedoms, such as those of speech and religion. To have said this would have been to logically extend the decision of the court in a pre-war reference to the Supreme Court on the constitutionality of certain Alberta legislation. In that case,[775] the federal government asked the Supreme Court to decide whether Alberta legislation compelling newspapers in the province to publish a government reply to any criticism of provincial-government policies exceeded provincial legislative jurisdiction. The Supreme Court held that it did, and it struck the legislation down. Chief Justice Duff and Justice Lawrence Arthur Cannon held that free political discussion was a matter of national importance and could not, therefore, be subordinated to other legislative objects or be regarded as a local or private matter within a province or, indeed, as a civil right as set out in the BNA Act. The court, in effect, said that freedom of speech was a fundamental right that could not be interfered with by a province. The Saumur case was an opportunity to entrench this view. Instead, when Justice Kerwin’s opinion was added to the four dissents, a majority of the court had held that freedom of religion, along with the right to limit it, was a matter of provincial concern. The decision was not a victory, if victory meant judicial recognition that Canadians enjoyed certain rights that legislatures could not proscribe.[776]
41 Nevertheless, the reasons of the four judges who found that freedom of religion and freedom of the press were beyond provincial powers would prove, in the end, to be more influential than the opinion of the five who placed these ‘rights’ in the provincial camp. For these opinions, none more so than that of Justice Rand, established the philosophical and jurisprudential basis for the ultimate recognition in Canadian law that certain fundamental freedoms lie beyond the reach of any legislature, provincial or federal.
42 Justice Rand began by looking at the Quebec City by-law. When a licence was sought, the practice was for the chief of police, or some other senior police officer, to peruse the literature intended to be distributed and, if ‘nothing objectionable’ was found, to issue a permit.[777] This practice, Justice Rand believed, was wrong:
43 What the practice under the by-law demonstrates is that the language comprehends the power of censorship. From its inception, printing has been recognized as an agency of tremendous possibilities, and virtually upon its introduction into Western Europe it was brought under the control and licence of government. At that time, as now in despotisms, authority viewed with fear and wrath the uncensored printed word: it is and has been the bête noire of dogmatists in every field of thought; and the seat of its legislative control in this country becomes a matter of the highest moment.[778]
44 Justice Rand then considered which level of government in Canada was entitled to exercise legislative power over freedom of speech.
45 Quebec argued that the term ‘property and civil rights’ in the BNA Act encompassed civil liberties such as freedom of religion and freedom of speech. Justice Rand, however, disagreed, concluding that there was no basis for giving ‘civil rights’ an interpretation of that kind. Justice Rand declared that this term meant matters of private law, the negotiation of a contract, or the right to sue in tort. Provincial legislation in relation to religion was not a local matter, of concern only to a province. Rather, it was a matter of national dimension: ‘it appertains to a boundless field of ideas, beliefs and faiths with the deepest roots and loyalties; a religious incident reverberates from one end of the country to the other, and there is nothing to which the “body politic of the Dominion” is more sensitive.’[779] The same was equally true about freedom of speech: ‘Under [our] constitution, government is by parliamentary institutions, including popular assemblies elected by the people at large in both provinces and Dominion: government resting ultimately on public opinion reached by discussion and the interplay of ideas. If that discussion is placed under licence, its basic condition is destroyed: the government, as licensor, becomes disjoined from the citizenry. The only security is steadily advancing enlightenment, for which the widest range of controversy is the sine qua non.’[780] The way Rand saw it, no province could legislate in regard to a fundamental freedom. In an earlier case he had declared that Canadian citizenship carried with it certain rights with which no level of government could interfere.[781] He now further developed this doctrine. Freedom of speech, religion, and the inviolability of the person were, Rand said, ‘original freedoms which are at once the necessary attributes and modes of self-expression of human beings and the primary conditions of their community life within a legal order.’[782] It would be some time before this principle achieved constitutional protection, but in the Saumur case the jurisprudential bedrock had been formed.[783]
46 The decision in the Saumur case, like that in the Boucher case, did little to improve the lot of Jehovah’s Witnesses in Quebec. The Legislative Assembly immediately amended the Freedom of Worship Act so as to make it inapplicable to the Jehovah’s Witnesses by giving the government the power to outlaw any religious group that published abusive and insulting attacks on established religions.[784] The effect of the amendment was to make the majority decision in the Saumur case a minority one, for the deciding vote on Saumur’s behalf had been based upon the freedoms set out in the Freedom of Worship Act. In commenting on the case, The Ottawa Citizen said ‘it means that no community anywhere in Canada can require advocates of religious views to be licensed. The ruling is one of several court decisions in recent years by which civil liberty has been clarified within the provinces or throughout the country … In a free country, the few must be allowed to try to change the opinions of the many, whatever the issue. Canadians can be proud that their courts are showing themselves vigilant against the intolerance that would whittle freedom away.’[785] In fact, with a legislature at his beck and call this was not the case. Duplessis had passed, with no real opposition, a religious Padlock Act. Eventually the act lapsed but where the Jehovah’s Witnesses were concerned, Duplessis did not relent until the disposition of a suit filed against him by a Jehovah’s Witness named Frank Roncarelli.
47 Roncarelli was the owner of the Quaff Café in Montreal’s west end. Disturbed by the treatment other Jehovah’s Witnesses were receiving, Roncarelli arranged bail for some four hundred Witnesses arrested during the first part of Duplessis’s ‘war without mercy’ against the sect. When Duplessis learned about Roncarelli he was enraged. In late November 1946, Duplessis publicly warned him to stop posting bail.[786] Roncarelli failed to heed the warning, and on 4 December 1946 Duplessis telephoned the chairman of the Quebec Liquor Commission, Judge Edouard Archambault, and instructed him to cancel Roncarelli’s licence. Archambault did as he was told, and the police came and seized Roncarelli’s stock. The next day Duplessis was quoted in The Montreal Gazette, explaining why: ‘A certain Mr Roncarelli has supplied bail for hundreds of Witnesses of Jehovah. The sympathy which this man has shown for the Witnesses in such an evident, repeated and audacious manner, is a provocation to public order, to the administration of justice and is definitely contrary to the aims of justice. He does not act, in this case, as a person posting bail for another person, but as a mass supplier of bails, whose great number by itself is most reprehensible.’[787] In fact, Roncarelli was put out of business because he had exercised a right given to him in law to post bail for persons accused of an offence. Especially interesting about the case was the public attention it drew.
48 News of these events was publicized in the press, and the public reacted.[788] The closing of a business was an issue many people could sympathize with. More than twelve hundred McGill University students, for example, signed a petition demanding that the attorney general reverse his decision on the basis that Roncarelli had not violated any of the Quebec Liquor Act regulations. Other protesting groups included the McGill University Progressive Conservative Association, the Montreal Presbytery of the Presbyterian Church, and the Montreal Civil Liberties Committee, a group of both French- and English-speaking Montrealers. On 7 December 1946 this group announced that it intended to hold a meeting to protest Duplessis’s decision. In response, Duplessis offered an explanation of his actions:
49 To have permitted Frank Roncarelli, self-styled leader of the Witnesses, to continue the use of funds derived from a privilege granted him by the Province of Quebec to conduct a campaign inciting to sedition, public disorder and disregard of municipal bylaws would have been to put the Attorney-General of the Province in the position of an accomplice. The fact that a man goes bail for a friend or two is quite in order, but when a man creates an organization of freeing masses of people who are jointly engaged in law-breaking, it becomes a different matter. In the case of the cancellation of the Roncarelli permit, action has not been taken hastily. The matter has been studied in its various angles and the conclusion reached that because of his action in helping to spread sedition and break municipal bylaws, he was not a man who should enjoy the privileges given to him.[789]
50 Duplessis, as demonstrated in the Roncarelli affair, did not tolerate the activities of a group that was engaged in a vicious campaign aimed at members of the province’s principal faith. In preventing Roncarelli from supplying bail to arrested Jehovah’s Witnesses by putting him out of business, the premier had a potent weapon. While many Quebeckers were aghast at Duplessis’s arbitrary use of power, he had many supporters, both English and French.[790] But this was one issue, and an issue is what it had become, that captured the public imagination.
51 On 12 December 1946 the Civil Liberties Committee held a demonstration against Duplessis in a downtown hall. Among the speakers was Chubby Power, who had forever earned the respect of French Canadians for his principled resignation when Prime Minister King broke his promise and introduced conscription. ‘We have seen within the past ten days a citizen deprived of his means of livelihood merely because in an exercise of his undoubted legal right he has run counter to the views of a political Attorney-General,’ Power said.[791] When news of this demonstration was brought to his attention, Duplessis fought back.
52 He summoned the members of the Legislative Assembly press gallery to his office and began by criticizing the role of Chubby Power. Was this the same Chubby Power, Duplessis asked, smiling, who had in July 1940 participated in the decision to ban the sect? Indeed, Duplessis continued, if the group had been subversive in 1940, surely it was still subversive today. Had they changed in any way? Although it was not the content of their ideas that was in issue, but their right to express them, Duplessis was able to plant in the public mind a rationale justifying state action against members of the group by labelling them as a subversive group. There matters stood for the next four weeks.
53 The Roncarelli issue returned to the public eye on 1 February 1947 when Roncarelli launched a suit against Judge Archambault in his capacity as head of the Quebec Liquor Commission. This suit, along with a subsequent one, failed as Quebec rules of civil procedure precluded legal actions of this kind. In a change of tactics, Roncarelli’s lawyer, A. L. Stein of Montreal, made a bold move and sued Duplessis personally. There was no technical barrier to this claim. In the action Roncarelli asked for more than one hundred thousand dollars in damages. The suit precipitated a new wave of prosecutions against members of the sect, and Jehovah’s Witnesses by the hundreds were taken into custody, including Laurier Saumur.
54 Throughout the province what can only be described as a reign of terror against the Jehovah’s Witnesses began. Prayer meetings in private homes were broken up by the police, and Jehovah’s Witnesses were taken into custody in the middle of the night and later released. Arrests were made and charges filed and then withdrawn. Men and women were sent to jail, or were chased out of towns and villages by screaming mobs as the police stood idly by. Witness literature was burned and Witness members beaten. It was the most extensive campaign of state-sponsored religious persecution ever undertaken in Canada.[792]
55 In the meantime, A. L. Stein proceeded with Roncarelli’s case. Stein held no brief for the Jehovah’s Witnesses or their beliefs, but was personally offended by the action Duplessis had taken against Roncarelli. However, Stein needed some help, and he reasoned that the best co-counsel he could get would be a prominent French-Canadian, Roman Catholic lawyer. Of the half dozen or so whom he approached none would agree to help. F. R. Scott, who was not a French Canadian, however, agreed to assist. Together they fought a case that would take them to the Supreme Court of Canada and that, even today, tells us much about what is meant by the rule of law.
56 Duplessis attempted to delay the proceedings, but by May 1950 the premier of Quebec and the former restaurateur faced each other in a Montreal court. Duplessis, the defendant, bustled into the room and made his way to the bench. There he found Justice C. Gordon MacKinnon. The two conferred, then Justice MacKinnon announced that Duplessis would give his evidence first, for urgent business required his immediate return to Quebec City.
57 Duplessis told the court that it was Judge Archambault who had telephoned him in November 1946 recommending that action be taken against Roncarelli, not the reverse. Duplessis concluded his evidence, which overall was as brief as it was unrevealing, with the statement that he had conscientiously administered the law. The other evidence led at the six-day trial did not, however, support this contention, and Duplessis’s lawyers urged that the case be dismissed because Duplessis had acted in his ministerial status and so, under the same Quebec rules that had earlier precluded a successful lawsuit against Judge Archambault, he could not be sued. Justice MacKinnon took the whole matter under advisement and did not release his reasons for decision for almost a year.
58 The campaign against Quebec Jehovah’s Witnesses continued, although with diminished vigour. On 2 May 1951 Justice MacKinnon released his decision. It was a stunning, and unexpected, indictment against Duplessis. He was censured by the court for remaining attorney general and appearing in that capacity in a case in which he was involved. In addition, Justice MacKinnon found, in effect, that Duplessis had lied on the stand when he gave evidence as to who was behind the decision to cancel Roncarelli’s liquor licence, and that Duplessis had acted without authority of law in ordering the licence to be taken away. Roncarelli was awarded a little more than eight thousand dollars in damages.
59 The money meant nothing to the Quebec premier; the Union Nationale had all the discretionary funds it needed. What was important was the challenge to his authority. It was not the only one. At the same time that MacKinnon was raking Duplessis over the judicial coals, other judges were doing the same thing to him, with the same effect. The decisions in the Boucher and Saumur cases are just two of the more prominent examples. There was nothing Duplessis could do about either of these decisions, but he could and did appeal the Roncarelli decision.
60 Roncarelli’s lawyers were amazed by their victory. Not that justice had triumphed, but that a Jehovah’s Witness had received justice in Quebec. Stein advised Roncarelli to take the money and to try to rebuild his shattered life. Roncarelli agreed; he had no intention of appealing the damage award, until Duplessis filed his notice of appeal. When he did, Roncarelli had no choice but to cross-appeal. The case took some time to go to appeal. Duplessis was a good enough lawyer to know that he would lose this legal battle in the end. But, as one of his biographers observed, ‘Politics is a matter of immediate concern; the final judgements of the law lie somewhere in the distant future.’[793]
61 In the meantime, Duplessis was occupied with a strike in the Quebec asbestos industry that challenged the existing order as much as it did the employer. Quebeckers rallied around the five thousand striking workers, and among those making appearances on the picket line was a young Université de Montréal law professor named Pierre Trudeau. The premier was enraged by the strike and he claimed that communists were behind it. Indeed, ‘communists’ were, it seemed, behind almost everything that went wrong. When the bridge at Trois-Rivières collapsed, for example, Duplessis claimed that ‘the communists’ were at fault. Communist activity was on the increase, Duplessis alleged, and the ‘Reds’ were linked, he said, with the Jehovah’s Witnesses and the RCMP. There was no evidence at all for this claim, but the premier knew his audience, and the small-town and rural voters gave him majority after majority in the Legislative Assembly. His political campaign against the communists, much like the campaign against the Jehovah’s Witnesses, ended up on more than one occasion in court. His main tool against communism was the Padlock Act. However, that legislation was finally successfully challenged in court.[794]
62 One case, Switzman v. Elbling, proved to be especially important. The Supreme Court decided that the Padlock Act, as had been long claimed by its opponents, infringed on the federal power to legislate in matters of criminal law.[795] ‘It is declared,’ the court said in an eight-to-one decision, ‘that “An Act to Protect the Province against Communist Propaganda” is ultra vires of the Legislature of the Province of Quebec in toto.’[796] Ironically, the only dissenter in this case was Justice Robert Taschereau, son of the former premier of Quebec whom Duplessis had defeated in the 1936 Quebec provincial election. The law that Duplessis had promised more than two decades before would destroy communism had been set aside on the lawsuit of a communist. Not that it mattered any more to Maurice Duplessis. The law served him well in the 1930s and it continued to serve him well upon his return to power. The same was equally true about Duplessis’s war without mercy against the Jehovah’s Witnesses. It was useful on the hustings and it contributed to Duplessis’s continued electoral success. But as Quebec society changed, state action against the Jehovah’s Witnesses lost much of its appeal.
63 With the beginning of the ‘Quiet Revolution’ and the industrialization and urbanization of Quebec, the Union Nationale’s hold on power, like the great influence of the Roman Catholic church, was coming to an end. Another reason why the campaign against the Jehovah’s Witnesses might have lost some of its momentum was the death, in January 1947, of Cardinal Villeneuve. The torch was passed, but to a new generation of Catholic leaders who quickly became more threatened by a rising tide of anti-clericalism than they ever were by the activities of the Jehovah’s Witnesses. Indeed, public attacks against the Jehovah’s Witnesses no longer gained the political mileage that they once did. Moreover, none of Villeneuve’s successors had the supremacy to either unite the bishops or influence the political agenda in an issue of this kind. For their part, the Jehovah’s Witnesses had also changed, not in substance but in style, and their literature lost some of its immoderate edge.[797] Perhaps they realized that this was the compromise they needed to make for state protection of their freedom of speech. They remained active in Quebec, but they considerably softened their attacks on the Roman Catholic hierarchy. The midnight raids and the disruption of prayer meetings and Bible study came to a virtual end. The courts were no longer, as some once were, agents of the state. A charge against a Jehovah’s Witness was no longer enough to ensure a conviction. The only really unfinished business from Duplessis’s holy war was the case of Frank Roncarelli.
64 While some public funds had been raised for the legal fight, it was Roncarelli who had to bear most of the expense, and financially it ruined him. Duplessis made numerous legal moves to frustrate the process of justice, and it took until 1956 for the appeal to be heard. The decision on the appeal and cross-appeal was released in April 1956 but, after all this time, neither side could declare victory. Duplessis’s appeal was effectively dismissed, but, at the same time, Roncarelli’s cross-appeal for an increase in damages did not succeed. Once again Duplessis decided to take the case further, to the Supreme Court of Canada. A. L. Stein and F. R. Scott again argued the case.
65 Francis Reginald Scott, the son of an Anglican clergyman, was born in Quebec City on 1 August 1899. A Rhodes scholar, Scott studied history at Oxford University and returned to Montreal and took up law at McGill, graduating in 1927. Along with Frank Underhill, Scott founded the League for Social Reconstruction in 1931–2. A socialist study group, it became the brain trust for the emerging CCF, the precursor of the New Democratic party. In 1933 Scott helped draft the Regina Manifesto, the CCF blueprint for a socialist society. Although an active man of letters and a celebrated Canadian poet, Scott earned the most renown, and criticism, for his public life. His campaign for Canadian neutrality prior to the outbreak of the Second World War was not well received in English Montreal, and his increasingly active efforts on behalf of the socialist CCF even less so. But popular or not, his public life was a courageous one, and one of its high points was Roncarelli v. Duplessis.[798]
66 By the time the Supreme Court handed down its decision in this case, the Quaff Café had long been closed down, and Roncarelli was working for the St Lawrence Seaway Authority. The decision of the court did not restore his restaurant, nor did it return to him what he had lost for exercising a legal right. But the case stands as the pre-eminent expression in Canadian law of the rule of law, the notion that all men are subject to, and equal under, the law of the land. And here too, Justice Rand led the way in setting a framework by which the rule of law could be understood.
67 Roncarelli was, Rand wrote, nothing more than a private citizen who furnished funds to enable arrested persons to be released on bail pending the determination of the charges against them. No other relevant consideration needed to be taken into account.[799] In issue was the exercise of administrative discretion.
68 It is a matter of vital importance that a public administration that can refuse to allow a person to enter or continue a calling which, in the absence of regulation, would be free and legitimate, should be conducted with complete impartiality and integrity; and that the grounds for refusing or cancelling a permit should unquestionably be such and such only as are incompatible with the purposes envisaged by the statute: the duty of a Commission is to serve those purposes and those only. A decision to deny or cancel such a privilege lies within the ‘discretion’ of the Commission; but that means that decision is to be based upon a weighing of considerations pertinent to the object of the administration.
69 In public regulation of this sort there is no such thing as absolute and untrammelled ‘discretion,’ that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute. Fraud and corruption in the Commission may not be mentioned in such statutes but they are always implied as exceptions. ‘Discretion’ necessarily implies good faith in discharging public duty; there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption. Could an applicant be refused a permit because he had been born in another province, or because of the colour of his hair? The ordinary language of the legislature cannot be so distorted.
70 To deny or revoke a permit because a citizen exercises an unchallengeable right totally irrelevant to the sale of liquor in a restaurant is equally beyond the scope of the discretion conferred.[800]
71 And this is exactly what Duplessis had done. Justice Rand wrote that it was ‘intentional punishment by what was virtually vocational outlawry.’[801] Moreover, it was a gross abuse of legal power, for it had one goal: the destruction of Roncarelli’s ‘economic life as a restaurant keeper within the province.’[802]
72 In all of this, Duplessis could not claim immunity from prosecution, for his persecution of Roncarelli was not an official act. ‘Whatever may be the immunity of the Commission or its members from an action for damages, there is none to the respondent.’[803] Regulation of economic activity was expanding, and there could be no immunity for injury caused by unwarranted intrusion into the activities of a regulatory agency. ‘That, in the presence of expanding administrative regulation of economic activities, such a step and its consequences are to be suffered by the victim without recourse or remedy, that an administration according to the law is to be superseded by action dictated by and according to the arbitrary likes, dislikes and irrelevant purposes of public officers acting beyond their duty, would signalize the beginning of disintegration of the rule of law as a fundamental postulate of our constitutional structure.’[804] Duplessis had finally been brought to justice.
73 The Boucher, Saumur, and Roncarelli cases were not the only Quebec civil liberties cases to come before the Supreme Court in the 1950s. There were other important cases as well,[805] but none of them pushed the Supreme Court any closer to saying that freedom of religion was beyond provincial reach. Indeed, it was in the Saumur case that the Supreme Court came closest to holding that freedom of religion was a fundamental right entirely out of legislative reach. While other cases advanced civil rights, the case striking down the Padlock Act, for example, they did so without making any new law. All of this illustrated the absolute need for a written bill of rights. The Jehovah’s Witnesses, in the epilogue to this story, would help set the stage for that.
Epilogue
1 The Jehovah’s Witnesses' battles in the courts focused public attention on the group and drew sympathizers to their cause, not to mention members to their faith. The Supreme Court decisions in Boucher, Saumur, and Roncarelli reaffirmed the principle that all Canadians are subject to the rule of law. However, there was nothing inevitable about the decision in any of these cases, and each of them could have been decided differently. In the Boucher case a majority of the Supreme Court came close to saying that all Canadians enjoyed certain fundamental rights that no legislature could infringe, but the Saumur case demonstrated that this principle was not yet part of Canadian law. Saumur’s ‘victory’ was immediately turned into a defeat as the Legislative Assembly in Quebec passed amending legislation under which Jehovah’s Witnesses in the province were arrested, convicted, and sent to jail. Although they were an indispensable step in bringing the ‘war without mercy’ to an end, the Supreme Court decisions in and of themselves did not stop the mistreatment. There was, the Jehovah’s Witnesses believed, only one thing that would ensure the regular vindication of their rights: a bill of rights.
2 In March 1947 every Witness congregation in Canada put on a public lecture entitled ‘The Fight for Freedom of Worship in Quebec! Awake Canadians to the Facts!’ This lecture inaugurated a nation-wide campaign inviting the people of Canada to petition the government for a bill of rights. The petition called for a bill guaranteeing freedom of speech and freedom of worship. In just one month, the Jehovah’s Witnesses persuaded more than five hundred thousand Canadians to sign.[806] In a nation of just over twelve million, five hundred thousand signatures was an enormous number. The government promised to consider the request, as well as a proposal that a special committee be established to review the matter and make recommendations. Indeed, the government had considered a bill of rights earlier in the year. On 21 January 1947, the cabinet had met, and a bill of rights was one of the subjects the ministers discussed.[807]
3 Louis St Laurent was now secretary of state for external affairs, and he advised the cabinet that the United Nations had the question under review, referring to the declaration that would soon become international law. He also pointed out that ‘civil rights’ was a provincial power. This was true enough, but the meaning of the term was far from settled. ‘The Cabinet, after discussion, noted the observations of the Prime Minister and the Secretary of State for External Affairs and deferred decision with respect to a bill of rights.’[808] King and St Laurent probably feared the political consequences in Quebec of enacting a bill of rights, as there was no doubt that the activities of Maurice Duplessis would be reviewed under any such legislation or constitutional amendment.[809] And that would only give the premier of Quebec more ammunition in his fight for provincial rights.
4 The Witness petition did not force the government to enact a bill of rights, but undoubtedly contributed to the government decision, later in the year, to establish a special joint committee of the Senate and the House of Commons to consider the question of whether Canada should enact a bill of rights. Ironically, the motion establishing the Committee on Human Rights and Fundamental Freedoms was made in the House by Ian Mackenzie, who incidentally bore considerable responsibility for the evacuation of Canada’s Japanese. Mackenzie, the minister of veterans' affairs, made no secret of his personal views. Canada did not need a bill of rights, he said; it needed a bill of duties.[810]
5 Parliament ignored Mackenzie’s remarks and approved the motion. The committee was established, and it heard some evidence and received a few briefs.[811] Eventually it recommended that no attempt be made to enact a Canadian bill of rights because of the problems concerning constitutional jurisdiction.[812] Canada’s constitution continued to be an act of the Parliament at Westminster, and it could only be amended by another act of that Parliament. A constitutional bill of rights would, of necessity, limit provincial powers, and the only way of doing that was by amending the BNA Act. Provincial agreement was required for any amendment that affected their powers, and before the provinces would agree to a bill of rights they needed to know what that bill would contain. And consensus about that, as the joint committee correctly pointed out, had not emerged.
6 Respect for and observance of these rights and freedoms depends in the last analysis upon the convictions, character and spirit of the people. There is much to be said for the view that it would be undesirable to undertake to define them before a firm public opinion has been formed as to their nature. It is not evident to your Committee that such an opinion has reached an advanced stage in Canada. There is need for more public discussion before the task of defining the rights and freedoms to be safeguarded is undertaken. But whatever steps be advocated by way of statutory enactment or otherwise to preserve human rights and fundamental freedoms, Canadians must never fail to recognize that the ultimate and effective safeguard of those rights and freedoms lies in the people themselves, and in a resolute and effective public opinion.[813]
7 In concluding that more discussion was required before attempting to enshrine rights, the committee was completely correct. There was no point in Canada adopting a bill of rights: what was required was a Canadian bill of rights. Agreement about what rights should be included could not be hastily reached; consensus could only develop with time.[814] A national debate was in order and there was, in the post-war period, no shortage of issues to be discussed.
8 The treatment of the Jehovah’s Witnesses in Quebec was one major subject of discussion, and so, once again, was the Communist Party of Canada. It was at the centre of the debate because of the revelations of a Soviet cipher clerk, Igor Gouzenko, who defected in Ottawa in September 1945. Gouzenko brought with him a mass of documents proving the existence of a Soviet spy ring operating in Canada. The sole Communist member of Parliament, Fred Rose, turned out to be a Soviet spy, and he, along with a number of others, was eventually sent to jail. The Communist party, still called the Labour Progressive Party, disavowed any knowledge of Russian espionage, but it loudly complained about the way the investigation of the Gouzenko allegations had been carried out.
9 Under the authority of the War Measures Act, which remained in force until the end of 1945 when the National Emergency Transitional Powers Act came into force, the government passed a secret order-in-council that provided for the secret arrest of persons identified by Gouzenko as espionage agents. The writ of habeas corpus was again put in abeyance, and those arrested were denied counsel and later brought before a secret royal commission, headed by two Supreme Court judges charged with investigating the case. The interim and the final royal commission reports revealed the names of those arrested, some of whom were acquitted at trial. Many reputations were ruined and ‘it is difficult to avoid the conclusion that the Canadian government, confronted with an extraordinary situation, reacted with arbitrary and harsh measures that threatened to ape the standards of the society that the Soviet spies were serving.’[815]
10 These events, when they were finally revealed, galvanized civil libertarians and revitalized Canada’s civil-liberties associations, which had all but faded away.[816] In addition to these associations the Canadian Bar Association, which had only become marginally involved in civil-liberties issues during the war, became interested in, and divided over, the infringements of the suspected espionage agents' civil rights.[817]
11 The spy trials had the possibility of becoming the cause célèbre of the 1940s, but in the end they did not, in part because a number of those charged were actually found guilty of espionage.[818] Besides, the Cold War had begun, and when it did association with a communist cause was only for the very brave. The LPP continued to praise the virtues of life in the Soviet Union, and in the 1945 federal election it fielded a large number of candidates and garnered more than one hundred thousand votes. As a percentage of the total votes cast, however, the number was minuscule. The party platform maintained its progressive bent, but the party itself had begun its decline. The final blow to Canadian communists came when Nikita Khrushchev revealed that Stalin was a murderer of Hitlerian proportions. The Soviet Union was many things, but a workers' paradise was not one of them.
12 In the years before the Second World War the Communist party had been in the vanguard of the struggle for many important rights, including free speech and free association. To be sure, much of this activity was in the Communist party’s own interest: the fight against section 98 is a case in point. But in bringing to the attention of the public repressive and unfair laws, the Communist party helped to create a climate in which discussion of civil liberties could eventually take place. During the war, many Canadians became interested in civil rights because of the attention Communists were able to draw to their cause, and in this limited respect the Communist party advanced the interests of all Canadians. It is ironic that it was forced, by the Gouzenko revelations and the Cold War, into involuntary retirement just as the fight for human rights and civil liberties was about to break new ground.[819]
13 While civil-liberties organizations and civil libertarians initially focused their attention on the issues the Gouzenko revelations raised, they became aware that there were other important ones too.[820] In December 1946, representatives of civil-liberties associations from Toronto, Montreal, and Ottawa gathered for a meeting in Ottawa. The purpose of the meeting was to canvass the state of civil liberties in Canada, discuss solutions to civil-rights abuses, and consider their merger and the creation of one national civil-rights organization. The spy trials were one issue that the assembled civil libertarians discussed; the Padlock Act and the treatment of Jehovah’s Witnesses in Quebec were two more. The fourth major issue was the government treatment of Japanese Canadians. All of a sudden it was apparent that not only had Japanese Canadians been mistreated, but they were still being abused.[821]
14 When the representatives from the three civil-liberties associations met in Ottawa, it was clear to them that a bill of rights was needed to restrain executive power. F. R. Scott argued that a bill of rights did not involve a reversal of the theory of the Canadian constitution. Already existing in the BNA Act was the concept of a bill of rights limiting the sovereignty of Parliament. The language and separate-school provisions were two examples of this. Scott strongly urged entrenchment of a bill in the constitution as an amendment to the BNA Act.
15 John Diefenbaker raised the issue whenever he could, but the decision to introduce a bill was the government’s to make. The Jehovah’s Witnesses ensured that their quest for a bill of rights was not forgotten. They believed that their first petition had led directly to the establishment of the joint committee.[822] And even though the first petition failed, the Jehovah’s Witnesses had no intention of giving up the campaign: ‘Under the Lord’s direction we shall be victorious for no power can successfully withstand the Almighty. Our fight for freedom to worship Jehovah in this country is by no means over.’[823]
16 In fact, after the final report of the joint committee was published the Jehovah’s Witnesses launched another petition in an effort to convince the government to change its mind. Jehovah’s Witnesses began in September 1948 to knock on doors. The Toronto Civil Liberties Union urged its members and the general public to support the drive.[824] The petition specifically called attention to the persecution of Jehovah’s Witnesses in Quebec, and almost one and one-half million leaflets illustrating the need for constitutional rights were handed out. More than six hundred thousand Canadians signed the petition, and in early February 1948 Allistair Stewart, the CCF member for Winnipeg North, filed the petition with the Speaker of the House. He gave the clerk an eleven-foot-high stack of names.[825]
17 The second petition was no more effective than the first in persuading the federal government to pass a bill of rights. Indeed, while the government re-established the joint committee in 1948, there would be no bill of rights. Although briefs were received,[826] the committee concerned itself with the international protection of human rights, not their protection in Canada.[827] In 1949 there was even some doubt about whether the committee would be re-established. John Diefenbaker urged that it should: ‘This parliament,’ he said on 22 September 1949, ‘has an appointment with destiny … We in this parliament have a responsibility which transcends all others, that of preserving, maintaining and extending the boundaries of freedom. To that end, sir, I have suggested a committee on a national declaration or a bill of rights.’[828] The suggestion was not followed until the spring of 1950, when the Senate established the Special Committee on Human Rights and Fundamental Freedoms under the chairmanship of Senator Arthur Roebuck. As attorney-general of Ontario, Roebuck, along with the minister of labour, David Croll, had resigned from the Ontario government over Mitchell Hepburn’s handling of the Oshawa recognition strike. The principal reason this committee was set up was the coming into force of the Universal Declaration on Human Rights. Once it was on the books, and Canada had signed, consideration of state implementation measures was necessary.
18 The committee, however, gave itself a wide mandate. It decided to consider the whole issue of human rights and fundamental freedoms, ‘what they are and how they may be protected and preserved, and what action, if any, can or should be taken to assure such rights.’[829] More briefs were received and testimony taken.[830] In the end the committee recommended that because of the constitutional difficulties raised by the absence of a constitutional amending formula, Parliament should proceed first by adopting a declaration of human rights, limited to the federal jurisdiction, that would be a non-binding but guiding instrument. Eventually, the committee suggested, there should be either a statutory or constitutional bill of rights.[831]
19 This recommendation accorded with the wishes of St Laurent, who in November 1948 had succeeded King as prime minister. St Laurent took the position that a Canadian bill of rights was unnecessary to implement Canada’s international obligations, and in this respect he was correct. St Laurent knew that a bill of rights would be used to attempt to restrain the activities of Maurice Duplessis. By this point it was becoming apparent that all the civil-rights cases making their way to the Supreme Court came from Quebec and, by and large, when they got to the Supreme Court the English judges lined up against their French-speaking brethren. St Laurent wished to avoid disunity, and the adoption of a bill of rights was potentially very disrupting to the body politic.
20 The failure of the committee to recommend a bill of rights did not, however, signify that no progress in the protection and advancement of human rights was taking place. As compared to the decade before the Second World War, the ten years that followed were ones of tremendous activity on the legislative front. Although Saskatchewan was the first province to pass a bill of rights (and would be the only province to have one for a great many years), Ontario led the way in passing anti-discrimination legislation.[832]
21 The Toronto City Council began, in 1944, with a by-law prohibiting discrimination in all recreation and amusement facilities licensed by the Toronto Police Commission. The law was passed following protests by Toronto blacks and Jews over discriminatory practices banning them from certain skating rinks. Publicity and protest obviously made a difference, and similar by-laws were passed in Windsor, Hamilton, and Oshawa. With elections every other year, municipal politicians could not afford to ignore the public clamour to end blatantly discriminatory practices. This is not to say that these by-laws ended racist practices: municipal by-laws prohibiting discrimination were easily circumvented, if not totally ignored, for they depended on the good will of the public for compliance. Members of the community inclined towards discrimination could hardly be relied on to voluntarily respect the law, but the very fact that there was a law added an entirely new dimension, for it put the state on the victim’s side and made clear that discrimination was wrong.
22 For the victims of discrimination, these by-laws, and related acts, were too little if not too late. Incredibly, some of the more odious examples continued to receive sanction from the courts — in particular, restrictive covenants in the sale of land. The Canadian Jewish Congress (CJC) had been pressing provincial legislatures to pass laws nullifying these covenants for more than a decade. The covenants were provisions forming part of the deed to parcels of land that restricted to whom the land in question could be sold. In particular, blacks, Jews, and Asians were the three groups generally prohibited by the covenants from taking title. When the CJC requests continued to fall on deaf ears, the decision was made to challenge the covenants in the courts. When the Racial Discrimination Act was passed in 1944 counsel for the Canadian Jewish Congress thought they could challenge the covenants on the basis that they violated this act.
23 The first case came before Mr Justice Chevrier, who had in 1940 made headlines with his finding that the Communist party was an unlawful organization. The case was Re McDougall and Waddell,[833] and it came before the courts when the purchaser of land objected to a provision in the deed that the land could not be sold or occupied by persons other than Gentiles. This restrictive covenant, the purchaser claimed, violated the 1944 Racial Discrimination Act. Justice Chevrier disagreed. He decided that restrictive covenants were not caught by the legislation and could therefore stand. Another judge, Keiller Mackay, two months later decided an identical case somewhat differently. In Re Drummond Wren,[834] Justice Mackay struck the covenant down. It violated public policy, he declared.[835]
24 Obviously public policy had not changed in two months. What had changed was the judge hearing the case. Mackay searched the authorities and declared that there was no guidance to be found on point. He then turned to a general principle of law, namely that any agreement that tends to be injurious to the public or against the public good is void as being contrary to public policy. The existence of legislation prohibiting discrimination illustrated to Justice Mackay a public policy against discrimination. So did, as far as Justice Mackay was concerned, Canada’s signature on the Universal Declaration on Human Rights. Justice Mackay held that restrictive covenants had no place in Canadian society because their continuation was divisive and created animosity among different classes of British subjects. The restrictive covenant in the case before him was therefore held to be void.
25 It is a settled principle of the common law that judges decide only the case before them. Accordingly, while Justice Mackay’s reasoning might prove persuasive in other similar cases, it was no more binding than Justice Chevrier’s reasoning had been on Justice Mackay. Only legislation prohibiting all restrictive covenants could bring the practice to an end. Without it, individuals' rights would depend on the roll of the judicial dice. In 1948 another restrictive-covenant case was argued before the Supreme Court of Ontario, and Justice Walter Frank Schroeder was asked to decide whether a covenant in a conveyance of a summer cottage, which stated that the property was reserved for whites and ‘shall never be sold, assigned, transferred, leased to and … occupied or used by any person of the Jewish, Hebrew, Semitic, Negro or coloured race or blood,’ was contrary to the public good. Justice Schroeder rejected Mackay’s reasoning and explicitly criticized him for ‘inventing’ new law. Schroeder’s decision was upheld by the Ontario Court of Appeal. In Re Noble and Wolf[836] eventually went to the Supreme Court. Significantly, the Supreme Court did not adopt Mackay’s public policy grounds; rather it held that the covenants were void for uncertainty. The end result was, however effectively, the same: restrictive covenants could not stand. And by this time the Ontario legislature had finally taken notice of this basic fact.[837]
26 On 7 June 1949 the Association for Civil Liberties (Toronto), another recently established civil-liberties association, submitted a brief to the new premier of the province, Leslie Frost. The brief called upon the government to introduce and pass legislation prohibiting discrimination in employment and to pass legislation eliminating racist restrictive covenants in the conveyance of land.[838] On 9 December 1949 the association again wrote the premier, saying there was a need for urgent action as the Racial Discrimination Act did not go far enough, in that it only really dealt with objectionable advertising. There was a need, the association said, for strong measures against discrimination in employment, discrimination in the use of public places, and discrimination in housing and in the ownership of property.[839] Civil libertarians were not the only ones discussing issues of this kind. For example, the Canadian Association for Adult Education prepared, and widely distributed, a pamphlet entitled Should We Have Fair Employment Practices in Canada? The answer was an emphatic ‘yes.’[840]
27 A meeting to discuss these issues with the premier was held in late January 1950. Three hundred people, representing more than seventy organizations, assembled at Queen’s Park and strongly urged the premier to begin a program of legislative reform. The brief they filed on the occasion of this visit asked that a board be established to investigate complaints of discrimination, and to conduct a continuous program of education to promote understanding and harmony among all members of the community. Conciliation followed by adjudication was the recommended model.[841] The whole point of a board or commission was to place the burden of administration and enforcement of antidiscrimination legislation in the hands of someone other than the victim. Discrimination was not a private matter; it affected everyone, and so enforcement of anti-discrimination legislation was an appropriate activity for an agency of the state.
28 Premier Frost was concerned about civil liberties — far more, certainly, than his predecessor at Queen’s Park. A country lawyer from Lindsay, Ontario, Frost entered elected politics in 1937, and joined the cabinet as provincial treasurer and minister of mines in 1943. Six years later, he became premier. He was interested in the representations that were being made and he promised to consider them seriously. Legislation banning restrictive covenants came first.[842] It was hardly an unpopular move; a 1949 Gallup poll revealed that 68 per cent of Canadians would refuse, when purchasing a home, to sign an agreement promising never to sell or rent it to people of certain races or colours.[843]
29 In 1950 the Conveyancing and Law of Property Act[844] prohibited restrictive covenants by declaring void covenants in deeds to property with limitations based on race, religion, creed, nationality, ancestry, or place of origin. The only serious flaw in the legislation was that the act was not retroactive. But for all practical purposes restrictive covenants in Ontario were finished. It was significant that this legislation was introduced in the Legislature within days of the late-January meeting between Premier Frost and the representatives of the seventy-odd interest groups who converged at Queen’s Park to press for government action in a field increasingly known as human rights. This new act signalled to the various groups a willingness on the part of the government to consider human-rights legislation. And inspired by this receptiveness they increased their lobbying activities.[845]
30 Indeed, 1950 turned out to be a very productive year. The legislation on restrictive covenants proved to be the beginning, not the high-water mark, of legislation in this area, notwithstanding the fact that the government was secure in power with a majority of the seats. Leslie Frost was a different kind of man from George Drew, and his legislative program reflected this. A political pragmatist, Frost realized that Canada and Ontario were becoming increasingly urban and cosmopolitan, and that if his government wished to be re-elected he had to take cognizance of this fundamental fact. Not everyone was pleased with these developments.
31 J. M. McAree, an influential Globe and Mail columnist, asked what reason there was for anti-discrimination legislation. In his view there was none, and he dismissed the projected reforms as just another instance of minority-group pressure nibbling at the rights and privileges long enjoyed by the majority. There were other critics of the proposed reforms as well; they argued, much more effectively, that one cannot impose morality by law. Nor can one legislate goodness and fair play. McAree, however, was an anachronism, a throw-back to an earlier age, and whatever constituency he represented — and it remained sizeable to be sure — had long ceased to hold any significant political power. His opposition to the projected reforms was fruitless.[846]
32 The reforms continued in the fields of labour, housing, and employment. One legislative enactment after another materially improved the lot of people in Ontario, and to a lesser extent elsewhere in Canada, particularly members of minority groups. None of the legislation was perfect, but progress was slowly being made. For example, the Fair Accommodation Practices Act[847] was passed in 1954, making it an offence to deny a person on the basis of race, religion, or ancestry accommodation, facilities, or services normally made available to the public. Incidents, however, still occurred. The world-renowned jazz pianist Oscar Peterson was refused a haircut in Hamilton, and while such incidents invariably caused a flurry of excitement in the press, they reflected the fact that systemic institutional discrimination could only be curbed, not eliminated, by legislative intervention. This remained true even when the full force of the act was brought down on discriminatory practices.
33 The Fair Accommodation Practices Act clearly outlawed discrimination in access to restaurants and hotels, but blacks in Dresden were still not allowed to go into cafés and order a meal. Judge W. F. Schwenger was appointed a one-man board of inquiry to investigate the situation. Judge Schwenger reported that the local restaurateurs brazenly admitted their discriminatory practices. The judge then submitted a report to the minister of labour, Charles Daley, in which he recommended that the restaurateurs in question not be prosecuted, as they could have been under the legislation, claiming that education, not prosecution, was the way to eliminate discrimination. The situation in Dresden had attracted national attention, which was renewed when Daley refused to release Judge Schwenger’s report; Daley argued that the communists were behind the problems in Dresden. Finally Daley agreed to prosecute the perpetrators, and it was widely rumoured at the time that he only did so following the direct intervention of the premier, who could not abide this sort of conduct. Charges were filed, and two restaurateurs were convicted of violating the act. Both appealed and Judge Grosch of the County Court quashed their convictions. The evidence was clear that the two charged had refused to serve blacks. Yet Judge Grosch found that ignoring customers was not equivalent to denying them service. More than anything else, the episode illustrated the limits of antidiscrimination legislation. Eventually, blacks were served in Dresden, and a handful of prosecutions were authorized elsewhere in the province. But anyone intent on discrimination could not be effectively stopped. Much more effective was public attention and opinion, and that continued to change, undoubtedly in part because of the attention incidents like these attracted.[848]
34 More and more legislation was passed, and each act was a small step forward. It was a ‘revolution,’ the Canadian Labour Congress’s associate secretary, Sid Blum, wrote in a January 1962 article.[849] Not all the legislation passed in this period was of a liberal bent. Some was deliberately discriminatory. In Alberta there was both wartime and post-war legislation restricting Hutterites from buying or leasing land,[850] and this legislation was unsuccessfully challenged in court. While the legislation was clearly aimed at stopping the spread of Hutterite communities, the Supreme Court eventually found that it was not legislation in regard to religion but property, which, along with ‘civil rights,’ was, under the BNA Act, a provincial power. Eventually the Alberta Legislature repealed the act. There were some steps backwards, but the thrust of post-war legislation across Canada was directed at eliminating discrimination in Canadian life.
35 On the parliamentary front, following the report of the Senate Special Committee on Human Rights and Fundamental Freedoms, discussion on a bill of rights was virtually suspended, although draft bills of rights continued to be circulated by interested groups.[851] There was relatively little parliamentary consideration of the issue in part because of developments on the international scene. In 1949 Mao Tse-tung and the Chinese Communist Party drove the Nationalists off the mainland, and China was thus ‘lost.’ There were very serious troubles in Indo-China, which would eventually lead to the French withdrawal and the American arrival. The world was divided on East-West lines, and the gulf continued to grow. The climate worsened when senator Joseph McCarthy made a speech on 9 February 1950 in Wheeling, West Virginia, claiming to have the names of 205 ‘Communists’ employed by the State Department.
36 The June 1950 invasion of South Korea by North Korea warmed up the Cold War. And in the United States, and to a lesser extent, Canada, the governments responded in a variety of ways. In both countries government employees had their loyalty questioned, while those in the private sector, for instance, Canadian and American seamen, were ‘security screened’ because of the threat that some said they posed.[852] The Internal Security Act, popularly known as the McCarran Act, authorized this activity in the United States, while in Canada it was done by vaguely worded regulations passed by the governor in council. These events set back the fight for a bill of rights. It was not ‘rights’ that concerned some politicians, including the new leader of the federal Conservative party, George Drew, but the threat to national security posed by Canadian communists. Drew urged that repressive measures be taken to suppress the domestic threat,[853] and in doing so he was not alone. John Diefenbaker was also concerned about communist activities.[854] In a world beset with fear about another war, discussion about a bill of rights lost some of its urgency. Racial discrimination was now intolerable, but political discrimination persisted, and once again it was the communists who bore the brunt of the attack.[855] International events had caused Canadians to detour from the road to a liberal destination, to borrow the words of a historian of Canadian immigration policy.[856]
37 If international affairs were one reason why the campaign for a Canadian bill of rights was delayed, they were also one reason why the campaign resumed. In 1956, Soviet tanks entered Budapest, crushing the Hungarian revolt against the Russian rulers, but by that year the international climate had greatly improved. The death of Soviet dictator Josef Stalin, the election of American president Dwight Eisenhower, and the signing of an armistice in Korea, all did much to bring the Cold War to an end. So too did the eventual discrediting of Senator McCarthy. A high point in the United States was the unanimous decision of the Supreme Court in Brown v. Board of Education.[857] This decision effectively declared that ‘separate but equal’ public schools were in violation of American constitutional law. The ruling of the increasingly active Warren court demonstrated that racial segregation and constitutional rights were inconsistent with each other.[858] Canadians were well aware of this case, and approved. In the United States the Bill of Rights was, it seemed, an instrument of social justice, and more and more Canadians wanted a bill of rights of their own. A Canadian bill of rights returned to the political agenda following the June 1957 federal election, which put John Diefenbaker in power.
38 Louis St Laurent resigned as leader of the Liberal party and as a member of Parliament after his government’s defeat, and former minister of external affairs and Nobel Peace Prize winner Lester Pearson was elected leader. The son of a Methodist minister, Pearson had grown up in small-town Ontario, but he had wide experience of the world, if little of the House of Commons, as was reflected in his first act as leader of the official opposition. Pearson challenged Diefenbaker to resign even though the Conservative party held more seats in the House than did the Liberals. An experienced parliamentarian, Diefenbaker ridiculed Pearson, and in the general election that followed the Conservatives received a huge majority of seats. Diefenbaker now had the power to implement his dreams, including a Canadian bill of rights.
39 In 1958 Diefenbaker introduced Bill C-60, An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms. As pre-arranged, the bill was given first reading and then withdrawn. The intention was to provide an opportunity for study, discussion, and debate. It was a simple statute, no more, no less, for Diefenbaker knew that without agreement on a constitutional amending formula, the provinces would never accept a constitutionally entrenched bill of rights that put limits on the exercise of their powers.[859]
40 F. R. Scott considered the applicability of the Diefenbaker draft bill to the situation in Quebec, and his prognosis, from a civil-liberties point of view, was not encouraging.[860] Bora Laskin, a law professor at the University of Toronto and a future Chief Justice of Canada, predicted that the bill would have a role as a political charter, and none other. The bill of rights, Laskin wrote, ‘unsupported by any enforcement provisions to give it an independent vitality, cannot be relied upon to open a new chapter in judicial law-making. It will remain largely a hair shirt for Parliament itself, with such reinforcement as may come from its public character and from public vigilance.’[861] Indeed, there was little dispute from the time Diefenbaker first introduced his bill that it was symbolic but not much else.[862] One reason why the Liberal party had never introduced a bill of rights was its view that a statute alone would only raise false hopes. There were also political considerations at work, but the Liberals rightly pointed out that constitutional reform was required before a bill was passed. Diefenbaker, in contrast, argued that a bill, even if it was just a statute, was an indispensable step in a longer-term process of constitutional reform. Without a constitutional amending formula there was not a great deal that he could do other than make the War Measures Act subject to the bill of rights. In that way, at least, the bill of rights would ensure that in the event of another war, or some national emergency, the federal government could not infringe civil rights with unrestricted abandon.
41 No federal politician could make the provinces agree to limit their powers, nor was the time yet right for major constitutional reform. But with his huge majority in the House, Diefenbaker had it in his power to ensure that all future invocations of the War Measures Act were explicitly subject to the bill of rights. Instead, Diefenbaker did the reverse and in so doing he proved that where civil liberties were concerned his record, like his bill of rights, was just a collection of words.
42 Diefenbaker claimed that his record was second to none. His memoirs are filled with accounts of his various civil-liberties activities, and it is a fact that Diefenbaker opposed the government treatment of the Jehovah’s Witnesses, but not when it mattered. Diefenbaker had an immense capacity for self-deception combined with an attraction for the bandwagon, and this is one of the reasons why he was so much in favour of a bill of rights. That there was little to his professed civil-liberties beliefs is amply illustrated by the bill of rights he introduced in Parliament, which was eventually passed, that provided that the War Measures Act overrode the bill of rights. All the liberties that Diefenbaker claimed to cherish, not to mention the wartime and post-war infringements of civil liberties that he claimed to abhor, continued to be subject to the wide and virtually unfettered power of the executive in time of national emergency. Why had Diefenbaker not repealed the War Measures Act? ‘The reason was simple: Canada was living in dangerous times internationally, and hanging over the world was the fear of an atomic holocaust.’[863] Instead of making the civil-liberties violations of the past just that, a lesson for history, Diefenbaker did the reverse. It is on this basis that Diefenbaker’s bill of rights must be judged a fraud.
43 While not apparent from the bills of rights later printed in large numbers and distributed across Canada, there was a section in it that revealed its true character. Section 6 amended the War Measures Act to the effect that anything done under the provisions of that act ‘shall be deemed not to be an abrogation, abridgement or infringement of any right or freedom recognized by the Canadian Bill of Rights.’ As the dean of the University of Alberta Faculty of Law, W. F. Bowker, observed: ‘Of all the actions the Dominion government has ever taken, some of the measures under that Act are the most open to question. The handling of the Japanese during World War II perhaps comes first and one can include aspects of the general internment programme under the Defence of Canada Regulations, and some aspects of the Espionage investigation. Yet the Bill affirmatively ensures that they might happen again.’[864] As another commentator put it, ‘when interference with civil liberties is most likely, protection of these liberties is least available.’[865]
44 Diefenbaker had an answer for his critics. ‘We decided that Parliament should have the right to review the circumstances under which the War Measures Act is invoked.’[866] It is correct that there was provision in the bill that required any government invoking the War Measures Act to immediately lay the proclamation of the act before the House of Commons (and if the House was not sitting to lay the proclamation before it within fifteen days of its next sitting). The War Measures Act itself provided that issuance of a proclamation was conclusive evidence that an emergency existed, but by this amendment to the act, once the proclamation was brought before Parliament, any ten members of Parliament could, by notice of motion, require a debate of the proclamation. Moreover, both Houses of Parliament could, by resolution, rescind the proclamation. However, if the debates from the Second World War are any guide, in national emergencies the government is more likely to be criticized for insufficient, not excessive, vigour in the protection of what is then perceived to be in the best interests of the state.
45 Instead of amending the War Measures Act to provide that the bill of rights would not apply when the act was invoked, the act could have been amended to ensure that it did apply, and that certain fundamental rights continued in war and in peace. It is well worth mentioning that when the Korean War broke out, Louis St Laurent did not, as he could easily have done, invoke the War Measures Act. Instead, Parliament, on 21 March 1951, passed the Emergency Powers Act. There were wide executive powers in the legislation, but it was a far cry from the discretionary authority given to council by the War Measures Act. The preamble to the act referred to the ‘fundamental liberties of the individual,’ and the legislation specifically restricted the government from arresting, interning, or deporting anyone outside of what was ordinarily provided for in the law. It was extremely noteworthy that an expiration date was written right into the legislation, subject to Parliament’s extending its operation. There was criticism of the act, of course, and in pointing out that Canada had from 1939 forward been subject to some form or another of emergency legislation, the critics made a telling point.[867] The act was, however, significant for its explicit recognition that certain rights could not be infringed. That was surely more important than a bill of rights that expressly provided for its own complete suspension when the War Measures Act was invoked.
46 Diefenbaker was taken to task, inside and outside the House of Commons, for failing to guarantee the right of Canadians to remain in Canada and for failing to ensure the availability of judicial review for anyone taken into custody at any time. These issues, and they were not the only ones raised in the special committee formed to hear evidence and receive briefs on the bill, were difficult ones, for their resolution required something more than a resort to platitudes about rights. Diefenbaker promised that he would establish a House of Commons committee to consider the War Measures Act, but that committee was never struck.[868]
47 On 4 August 1960 the bill of rights was given a unanimous third reading in the House of Commons. The following day it was passed by the Senate, and on 10 August 1960 it received Royal Assent.[869] As far as the Jehovah’s Witnesses were concerned, the Diefenbaker bill of rights did not do them much good. The bill applied to federal law only, and by and large, it was in the provinces, like Quebec, where their rights were most frequently attacked. Moreover, another national emergency, in October 1970, revealed that Canadians had no more rights in a crisis than they had enjoyed during the Second World War.[870] Parliament’s appointment with destiny had, it seemed, passed.[871]
48 As it turned out, the appointment with destiny was merely delayed. Pierre Trudeau became prime minister and brought with him an agenda that ultimately led to an agreement on a constitutional amending formula, patriation of the BNA Act, and entrenchment of the Charter of Rights and Freedoms. No mere statute, the Charter is part of the fundamental law of Canada. The Charter lists rights, and guarantees them to everyone in Canada. The campaign for a Canadian bill of rights was finally at an end.
49 The Charter of Rights is the culmination of a long process that began before the Second World War, accelerated during the war, and bore fruit after the war. In this process, the Jehovah’s Witnesses played an important part, although they did not volunteer for the role. They pushed Canadians' rights to their existing limits, and those rights were found lacking. They then made their cause every Canadian’s cause, and one of the results was the long process of discussion and debate that led to the Charter of Rights. The Witness struggle continues, and their battle in the courts for recognition of their religious beliefs remains as they fight for recognition of a ‘right’ to refuse, on behalf of their children, unwanted transfusions of blood. How that battle will end no one can say. What can be said is that in their earlier struggles for freedom, and in their ongoing confrontations with the state, the Jehovah’s Witnesses helped create a climate of opinion, an attitude, that continues to influence the way in which we think about civil rights.
50 The Charter is no panacea; in every generation there will always be dissenters, such as the Jehovah’s Witnesses, as well as ‘strangers in our midst,’ such as the Canadian Japanese. The difference, of course, is that Canadians now have an instrument of constitutional law to fight infringements of civil rights. However, the Charter is, at best, an imperfect instrument for the protection of basic human rights. By its very terms the Charter permits Parliament and the provincial legislatures to pass laws that contravene basic Charter rights. Moreover, the lessons of history are hardly promising. During the Second World War proved all too willing to set aside Canadians' rights for what was then believed to be the national good. Acting in fear and in haste, people and institutions acted badly. And there is no reason for confidence that this will never happen again, even though formal legal protection now exists. The Charter may become a bulwark of freedom, but only the people can prevent arbitrary action by the state.
Index
Aberhart, Bill
21
ACLU
See American Civil Liberties Union
Adelaide
109
Adelaide Company of Jehovah’s Witnesses Incorporated v. The Commonwealth
108–13
Adelaide Hoodless School
132, 136
Adventism
3
Advice for Kingdom Publishers
59, 70, 71
Alabama
152
Alberta
21, 94, 120, 129, 143, 159, 237, 243, 265
Alberta Legislature
144, 159, 265
Alberta School Act
143, 159
alternative service
See conscientious objection; conscription; Jehovah’s Witnesses and conscription
Alternative Service Regulations
See conscientious objection; conscription; Jehovah’s Witnesses and conscription
American Bar Association
148
American Civil Liberties Union
55, 56, 146, 148, 151
American Constitution
See Constitution, United States; see also Bill of Rights (United States)
American-German Bund
See Bund
American Legion
57, 74, 151
American Revolution
168
Anderson, P. M.
64, 65, 117
Anglicans
235
Arcand, Adrien
66, 74, 75, 227
Archambault, Edouard
245, 247, 248
Arizona
152
Armageddon
3, 4, 6, 8, 74, 75, 164, 211
Arkansas
152
Association for Civil Liberties (Toronto)
262
atheism
17, 18
Atlantic Charter
229
Australia
108; see also conscientious objection, Australia
Baptist Convention of Ontario and Quebec
54
Barnette
See West Virginia State Board of Education v. Barnette
Barnette v. West Virginia State Board of Education
See West Virginia State Board of Education v. Barnette
Barry’s Bay
73
Bennett, R. B.
16, 23
Bernier, Paul
64, 65
Bethel
57, 58, 215, 216
Bible
3, 4, 54, 69, 70, 74, 80, 81, 93, 97, 102, 118, 124, 133, 134, 138, 141, 187, 192, 194, 197, 250
Bible Students
3
Biddle, Francis
55, 56
Bien, Clarence Allen
205–6
Bill of Rights (Canada)
xii, 11, 13, 20–1, 25, 40, 62, 95, 158, 227, 229, 230; passage of 254–70
Bill of Rights (United States)
12, 13, 20, 108, 112, 123, 147, 152–3, 155, 156–7, 217, 228, 266
Black, Hugo
152–3, 157
Blackstone
96
Blitzkrieg
46
BNA Act
See British North America Act
Borden, Robert
30
Boucher
236–41, 244, 248, 252, 254
Boucher, Aimé
236–41
Bowker, W. F.
268
Bramwell, Baron
153
Brandeis, Louis
237
Brethren in Christ
169, 171, 214
Britain
14, 15, 20, 26, 40, 41, 46, 47, 48, 49, 51, 61, 90, 128, 172, 202, 226, 237; see also conscientious objection, Britain
British Columbia
173, 191, 197
British Columbia Court of Appeal
195–6
British Constitution
See Constitution, Britain
British North America Act
12, 13, 20, 21, 24, 39, 44, 110, 123, 208, 227, 243, 244, 255, 258, 270–1
British Parliament
See Parliament (Britain)
Brooklyn
57, 58, 68
Brown v. Board of Education
266
Bruce, H. A.
52, 59, 60
Buck, Tim
17, 44, 87, 99
Budapest
266
Bund
117–18
Burbidge, Henry Arnold
132–9 passim, 146, 161
cabinet
14, 21, 22, 25, 30, 32, 33, 34, 40, 42, 61, 90, 104, 105, 175, 210, 225, 255, 266
Calder, R. L.
11, 59
Calgary Herald
107
Canada Gazette
49
Canadian Association for Adult Education
262
Canadian Bar Association
91, 257
Canadian Bar Review
241
Canadian Civil Liberties Union
19, 20, 21, 22, 25
Canadian Dental Corps
174
Canadian Forum
140
Canadian Friends Service Committee
175
Canadian Institute of Public Affairs
235–6
Canadian Jewish Congress
260–1
Canadian Labour Congress
265
Canadian Labour Defence League
88
Canadian Legion
210
Canadian National Railway
237
Canadian Pacific Railway
173
Canadian Radio Broadcasting Commission
9
Cannon, Lawrence Arthur
243
Cardin, P. J. Arthur
8, 30, 165, 230
Carroll, G. R.
213
Cartwright, J. R.
163, 164, 237
Catholic Educational Review
151
CCF
See Co-operative Commonwealth Federation
CCLU
See Canadian Civil Liberties Union
censorship
7, 9, 40, 42, 63, 108, 109
Chalk River
184, 185, 186, 211, 212
Chamberlain, Neville
32, 46
Chapman, Percy
59, 60, 196
Charlesworth, Hector
9
Charpentier, F.
63
Charter of Rights and Freedom
270–1
Chevrier, E. R.
47, 48, 261
China
265
Chinese Communist Party
265
Christ, Jesus
3, 4, 5, 6, 55, 57, 59, 74, 75, 93, 106, 192, 210, 234
Christians
4, 5, 6, 106, 113, 197, 238–9, 240
Christie, Loring
20, 21
Christie v. The York Corporation
202
Church of Christ
205–6
Church of England
192
Churchill, Winston
46
civil liberties
xii, 24, 42, 43, 45, 46, 87, 88, 94, 122, 202; post-war passage of legislation to protect 226–70 passim
Civil Liberties Committee
See Montreal Civil Liberties Committee
civil rights
xii, 24, 56, 87, 158; postwar passage of legislation to protect 226–70 passim
Civil War
12, 228
Clarion
37, 47, 50
Clark, Lewis
116–17
Clarté
37
clergy
See Roman Catholicism
Cobourg
54, 73
Cohen, Jacob Laurence
59–60, 64, 69, 82–3, 85, 87, 94, 101, 132–40 passim, 145, 159, 196, 197
Cold War
257, 265, 266
Coldwell, M. J.
185, 209
Coolidge, Calvin
149
Committee on Emergency Legislation
32–3, 34
Committee on Human Rights and Fundamental Freedoms
255–6, 258, 259
Common Law
13, 83
Commonwealth
51, 108
Communism
See Communist Party of Canada
Communist International
17
Communist Party of Australia
108, 110, 114
Communist Party of Canada
17, 18, 20, 22, 23, 24, 32, 37, 38, 39, 40, 44, 45, 46, 47, 48, 49, 50, 60, 61, 62, 69, 78, 85, 87, 88, 92, 95, 98, 99, 102, 103, 104, 105, 108, 114, 227, 231, 256, 257; ban of 49, 50, 65, 66, 84
Communists
See Communist Party of Canada
Conant, Gordon Daniel
33, 47, 50, 69, 99, 120–1, 127, 128, 129, 130, 131, 140
Confederation
12, 123
Conference of Historic Peace Churches
169, 171, 172
Congress
See United States Congress
Congress of Industrial Organization
18
conscientious objection
4, 106, 165–89, 190–223; Australia 213–14; Britain 220–2; United States 214–20, 221
conscription
15, 27, 30, 49, 61, 81, 88, 90, 108, 116, 165–89, 190–223
Conservative party
16, 26, 30, 31, 45, 72, 123, 227, 229, 231, 266, 267
Conservatives
See Conservative party
Consolation
11, 53, 67
Constitution:
Australia 110–11; Britain 13, 120; Canada, see British North America Act; United States 12, 13, 55, 123, 147, 156, 228
Convention on Racial Discrimination
229
Co-operative Commonwealth Federation
9, 28, 45, 81, 180, 185, 211, 224, 225, 227, 230, 251
Court of King’s Bench (Quebec)
See Quebec courts
Court of King’s Bench (Saskatchewan)
205
Covington, Hayden
58, 77, 101, 115, 118, 153–4, 196, 219
Criminal Code
10, 17, 22, 38, 232, 234
Criminal Law
See Criminal Code
Croll, David
259
Daley, Charles
264
Davidson, Charles Bryce
194
Davidson, J.
185
Davis, T. C.
169, 170
Defence of Canada Regulations
31, 47, 49, 58, 62, 63, 64, 69, 71, 72, 75, 77, 82, 83, 85, 86, 87, 92, 95–8, 99, 114, 115, 117, 118, 121, 122, 127, 130, 137, 140, 143, 176, 179, 190, 268; amendments to 38–41, 42–4, 45, 65, 84, 99–100; debates on 52, 81, 101–3, 104–7; description of 33–7
Defence of the Realm Act
41
de Gaulle
61
Denmark
46
Department of the Attorney General
126
Department of Education
130, 131, 133, 139, 141, 142
Department of External Affairs
109, 122
Department of Justice:
Canada 43, 62, 64, 77, 80, 81, 95, 99, 103, 104, 106, 107, 116, 117, 120, 122, 131, 180, 181–2; United States 8, 56, 57, 58
Department of Labour
167, 173, 181, 194, 208, 209
Department of Mines and Resources
xi, 184
Department of National Defence
122, 180
Department of National Health and Welfare
225
Department of National War Services
122, 165, 166, 170
Department of Reconstruction
255
Department of State
101, 265
Department of Veterans Affairs
225
Depression
9, 27
Dexter, Grant
88
Diefenbaker, John
104, 211, 229, 258, 259, 266, 267–70
disallowance power
21–3
Discrimination Prevention Bill
227
Dominion Communist-Labour Total War Committee
88
Donald
141–6 passim, 158–64 passim, 191, 203, 224
Donald, Graham
141–6 passim, 158–64 passim
Donald, Robert
141–6 passim, 158–64 passim
Donald, Robert Jr.
141–6 passim, 158–64 passim
Douglas, C. H.
21
Douglas, T. C.
225
Douglas, William O.
153, 157
Doukhobors
94, 167, 175, 206
Dresden
228, 264–5
Drew, George
72, 123–4, 227–8, 263, 266
Drocourt-Quéant
145
Duff, Lyman
72, 96, 243
Dunkirk
46
Duplessis, Maurice
19, 20, 22, 24, 25, 27, 28, 30, 31, 230–53 passim, 255, 260
Economist
42
Edmonton
120, 174
Edmonton Bulletin
120
Edwards, W. Stuart
58, 117, 131, 176, 181
Eggleston, W.
63
Eisenhower, Dwight
266
Ellison
134, 139, 141, 146
Ellison, Arthur
129, 131–9 passim, 141, 161
Ellison, Eric
131–9 passim, 141
Elvey, Charles
234–5
Emergency Powers Act
269
Emergency Powers (Defence) Act
41–2, 49, 61
enemy aliens
36, 49
England
See Britain
English Channel
46
Estep
219
Estep, William Murray
219
Estey, J. W.
52–3
Estonia
31
European Convention on Human Rights
229–30
Fair Accommodation Practices Act
264
Fair Employment Practices Committee
264
Falbo
218–19
Falbo, Nick
218–19
Fascism
32, 38, 39, 40, 48, 50, 61, 74, 84, 85, 97, 227
Fascists
See Fascism
federal elections
44–6
federal government
60, 76, 117, 206, 259, 269
Finland
31
First Amendment
See Bill of Rights (United States)
First World War
7, 8, 16, 17, 27, 30, 33, 41, 44, 61, 76, 108, 145, 149, 167, 171, 214
Fiset, Eugene
89–90
flag salute
See Jehovah’s Witnesses, flag salute and
Flanders
46
Fortnightly Law Journal
202
Fort Osborne
178–9, 182, 194
Fossum, J.
79
Fourteenth Amendment
See Bill of Rights (United States)
France
13, 46, 51, 61, 108, 165, 265
Frankfurter, Felix
148–9, 150, 151, 154, 155, 157–8, 237
Fredericton
45
freedom of the press
22
freedom of religion
12, 74, 86, 87, 94, 97, 99–100, 101, 111–13, 114, 118, 119, 120, 187, 233–53 passim
freedom of speech
9, 11, 12, 22, 28, 95, 112, 233–53 passim
freedom of worship
See freedom of religion
Freedom of Worship Act
62, 242, 244
French Canadians
See Quebec
Frost, Leslie
262, 263
Gakeff, David
140
Gakeff, Lambro
140
Galbraith Public School
143
Gardiner, James Garfield
165, 171, 172, 208
Gaudrault, Father Pie-Marie
90
German Canadians
222; see also enemy aliens; internment
Germany
14, 46, 56, 74, 92, 97, 168
Gilead Bible College
194
Gillanders, John Gordon
162–3
Glass, John
227
Globe and Mail
33, 35, 46, 48, 78, 103, 106, 107, 129, 130, 190, 263
Gobitis
See Minersville School District v. Gobitis
God
3, 4, 54, 67, 74, 75, 80, 85, 90, 93, 96, 100, 110, 118, 120, 125, 128, 161, 175, 176, 180, 192, 194, 207, 216, 217, 233, 234, 258
Godbout, Adelard
230–2
Gospel Witness
54
Gouzenko, Igor
256–8
governor general
21, 22
governor in council
See cabinet
Great Britain
See Britain
Greer, V. K.
142
Greenlees
196–205 passim, 206
Greenlees, Leo
196–205 passim, 206, 222
Grosch, Judge
264
Groulx, Lionel
27
Grundy, Frank
214
Guelph
72
Guelph Reformatory
185
Hamilton
127–46 passim, 158–64 passim, 224, 260, 264
Hamilton Board of Education
127–46 passim, 158–64 passim, 224, 237
Hamilton Juvenile Observation Home
130, 139
Hamilton Spectator
130
Hammond, E. D. L.
129
Hansell, Ernest
94, 179
Hansler, Willem
177
Hanson, R. B.
45, 107
Harkness, R. B.
177
Harvard University
237
Hawkshaw, C. W.
140
Hepburn, Mitchell
18, 31, 44, 47, 99, 123, 124, 129, 259
High Court of Australia
108, 110
High Court of Justiciary
193
High Court of Ontario
See Supreme Court of Ontario
High Schools Act
160
Hitler, Adolf
29, 30, 74, 87, 90, 97, 257
Hodgson, Walter C.
191, 193
Hogg, Frederick Drummond
196–8, 200
Holocaust
227
Holt, Mr Justice
214
Hong Kong
72
Hoornveldt, Teije
190–1
Hope, John Andrew
145–6, 158–61 passim, 162, 191
Hopkins County
58
Houde, Camillien
62
House of Commons
See Parliament
How, W. Glen
118, 120–1, 145, 160, 162, 163, 194, 196, 198–203 passim, 212
Hughes, Charles Evans
148, 150
Hughes, Joseph
78
Hughes, William
109
human rights
See civil liberties
Humphrey, John
229
Hungary
231, 266
Hutterites
167, 210, 265
Indo-China
265
Internal Security Act
266
International
See Communist International
International Bible Students Association
76, 77, 101, 114–15, 118–19, 195
interment
34, 49, 66, 69, 82, 84, 87, 88, 90, 95, 102, 108, 227
Italian Canadians
222; see also enemy aliens; internment
Italy
32, 51
Ives, William Carlos
143
Jackson, Robert H.
154–7, 158, 162
Janz, B. B.
170, 171, 174
Japan
122, 150, 198, 207, 214, 218, 224
Japanese Americans
58, 150
Japanese Canadians, internment and treatment of
xi, 58, 61, 94–5, 98, 122, 164, 222, 237, 255, 258, 268–9, 271
Jarvis Street Baptist Church
54, 124
Jehovah’s Witnesses
xi, xii, 15, 25; activities while under ban and effort to remove ban 65–122; ban of and removal of ban 52–3, 58–9, 65, 114–15, 118–19, 121, 181; ban of and removal of ban in Australia 108–13, 213; conscription and 165–89, 206–23; flag salute and 54–6, 81, 86, 93, 96, 97, 106, 110, 118, 123–64; history and beliefs 3–13; pre-Second World War treatment of 54–7, 62–5; post-Second World War activities and 224–53, 255, 258; pre-ban legal problems and 59–60; ministerial exemption and 176, 182, 190–223; national anthem and 123–64; public schools and 123–64; Roman Catholic Church and 28, 62–3, 64–5, 74, 102, 107, 116, 117, 230–53 passim
Jews
xi, 235
Jones v. City of Opelika
152–3
Judaism
74
Judicial Committee of the Privy Council
21, 202, 237
Juvenile Delinquents Act
132
Kamouraska
15, 91
Kearney, James Joseph
151–2
Kerwin, Patrick
202, 242, 243
Khrushchev, Nikita
257
King, William Lyon Mackenzie
14, 16, 21, 23, 25, 30, 31, 32, 38, 39, 40, 41, 43, 44, 45, 46, 47, 48, 61, 65, 66, 81, 82, 90–1, 92, 96, 98, 99, 101, 114, 117, 121, 165, 172, 181, 224, 226, 230, 237, 246, 255, 259
Kingdom Halls
59, 115, 206
Kingdom of God
4, 119
Kingdom School
133, 134, 141, 142, 144, 145
Kingston
53
Kinler
10
Kirkland Lake
120
Kitchener
140, 141, 207
Knorr, Nathan
117, 119, 122
Kootenay
64
Korean War
269
L. family
139, 142
Labour Party
108
Labour Progressive Party
See Communist Party of Canada
L’Action Catholique
62, 64, 65
LaFlèche, L. R.
169, 170–1
Lake Couchiching
236
Lapointe, Ernest
29, 30, 31, 33, 38, 39, 40, 41, 42, 43, 44, 45, 47, 48, 50, 52, 59, 62, 63, 64, 65, 66, 94, 103, 116, 165, 230; background and beliefs 15–26; death of 88–91; mental breakdown of 48, 66, 81, 82
Laskin, Bora
268
Latham, John Greig
111–12
Latvia
31
Laurier, Wilfrid
15
Law Society of Upper Canada
198
lawyers
4, 12, 19, 27, 28, 45, 46, 57, 58, 60, 114, 118, 191, 242
Lazure, Wilfrid
234
League for Social Reconstruction
251
League of Nations
226
Le Devoir
28, 230
Legislative Assembly (Quebec)
28, 29, 30, 91, 230, 233–4, 247, 249, 254
Lennox, Charles J.
192–3, 195, 197
Leopold, Johnny
69, 92, 117–18
Lethbridge
143, 144, 159
libel:
blasphemous 10; seditious 10
Liberal party
14, 16, 17, 24, 26, 30, 31, 45, 46, 52, 53, 121, 123, 224, 230, 232, 266, 267
Liberals
See Liberal party
Lincoln, Abraham
149, 155
Lindsay
263
Lithuania
31
London
78, 139, 174
Lord’s Memorial Day Supper
100, 211
Lorentsen, Edith
194
Lounsbury, Grace
141
Lowell, Margaret
133–4, 138, 141
LPP
See Communist Party of Canada
Luther, Martin
6
McAree, J. M.
263–4
McArthur, Duncan
126
McCarran Act
266
McCarthy, Joseph
265, 266
Macdonald, John A.
12
Macdonnell, Ian
190–1
McGill University
229, 246
McGill University Progressive Conservative Association
246
MacInnis, Angus
81, 208
Mackay, Keiller
261
Mackenzie, Ian
255
MacKinnon, C. Gordon
233, 248
MacKinnon, J. F.
207, 208, 209, 210
Maclean, Donald
205
Maclean’s
46
Macleod
94
MacLeod, A. A.
227
MacNamara, Arthur
177, 182, 183, 184, 185, 187, 194, 208, 209, 210, 212
McRuer, J. C.
46
Manchester
60
Magone, C. R.
126, 128
Manion, Robert
45
Manitoba
60, 129, 142, 178
Manitoba Court of Appeal
143, 194, 195
Martin, Paul
182
Maybank, Ralph
102
Medicine Hat
237
Meighen, Arthur
48
Melbourne
108
Mennonite Central Relief Committee
169, 171, 172
Mennonites
97; conscientious objection and 167–75, 184, 207–8, 210, 214, 222, 223
Military Service Act:
Canada 1917 167; Britain 1939 220
Millard, Charles
44
Minersville
See Minersville School District v. Gobitis
Minersville School District v. Gobitis
55, 56, 57, 58, 107, 146–53
Ministry of Labour
221
Missouri
3, 4
Mitchell
120
Mitchell, Humphrey
181, 185, 187–8, 194–5, 208, 210, 211–12
mobilization boards
See conscientious objection; conscription; Jehovah’s Witnesses and conscription
Moffat, Pierrepont
101
Moncton
237
Monthly Review
50
Montreal
27, 40, 46, 62, 90, 100, 235, 245, 248, 258
Montreal Civil Liberties Committee
246, 247
Montreal Gazette
245
Montreal Presbytery
246
Morison, M. B.
184
Mormons
55, 112
Morrell, Charles
96, 186
Morrell, Clayton
186
Morris, A. W.
145
Morrison, William
130, 131
Moscow
17, 114
Mosley, Sir Oswald
48
Moyle, Olin
57
Munich crisis
32
Murphy, Frank
153, 158
Mussolini, Benito
74
National Council for Democratic Rights
88, 102
National Emergency Transitional Powers Act
256–7
National Film Board
232
National Resources Mobilization Act
61, 81, 89, 165, 166, 167–8, 169, 175, 179, 181, 183
national security
See Defence of Canada Regulations
National Security Act
108
National Selective Service Mobilization Regulations
167, 181, 190
National Service Act
220
National Service (Armed Forces) Act
220
National Unity Party
66, 227
National War Services Regulations
167, 168, 176, 181, 190
Naval Services Bill
15
Nazis
See Nazism
Nazism
32, 38, 46, 48, 55, 58, 61, 63, 74, 88, 109, 114, 118, 153, 165, 226–7
New Brunswick
53, 237
New Deal
148, 149, 158
Newmarket
177
New Republic
151
New Statesman and Nation
42
New Testament
7
New Westminster
79
New York
53, 68, 76, 194, 195, 204
New York Times
158
New Zealand
109
Nichols, Carlton
125
Nielsen, Dorise
45
Norman, A. H.
78
North Battleford
46
North Korea
265
Norway
46
Noseworthy, Joe
180, 185
Notre Dame Cathedral
90
Notre Dame College of Law
151
NRM Act
See National Resources Mobilization Act
October Crisis
270
Office of Press Censors
63
Office of Public Information
85–6
Ogdensburg Agreement
81
Ontario
46, 47, 53, 54, 69, 73, 77, 99, 103, 120, 123, 124, 127, 139, 141, 168, 171, 177, 185, 225, 228, 231, 259, 260, 263, 264, 267
Ontario Court of Appeal
37, 160, 161, 164, 198, 201, 203, 224
Ontario Legislature
44, 144, 262, 263
Ontario Police Association
50
Ontario Provincial Police
129
Opelika
See Jones v. City of Opelika
Order of Trial
59
Osgoode Hall Law School
60
Oshawa
260
Oshawa strike
18, 24, 47, 259
Ottawa
46, 47, 50, 64, 67, 88, 91, 92, 99, 100, 103, 115, 116, 117, 118, 165, 172, 173, 176, 191, 207, 211, 224, 229, 230, 232, 256, 258
Ottawa Citizen
85, 109, 126, 245
Ottawa General Hospital
48
Ouellette, Mrs René
234–5
Oxford University
251
Padlock Act
18, 19, 20, 21, 23, 24, 25, 28, 38, 39, 230–2, 245, 249–50, 252, 258
Parkdale
52
Parliament:
Britain 12, 20, 41, 47, 110, 255; Canada 8, 9, 12, 13, 14, 15, 17, 22, 23, 26, 30, 33, 36, 40, 41, 45, 46, 48, 52, 64, 65, 81, 82, 83, 84, 86, 92, 94, 96, 101, 102, 103, 104, 105, 106, 114, 122, 179, 185, 204, 208, 210, 212, 227, 229, 242, 255, 256, 259, 266, 267, 268, 269, 270, 271
Passchendaele
145
patriotism
7
Pearl Harbor
214
Pearson, Lester
266–7
Pembroke
126
Pennsylvania
146
Permanent Joint Board of Defence
81
Perney, Frank E.
127
Peterson, Oscar
264
petitions
8, 9, 118–19, 120, 246, 254–5, 258–9
Pittsburgh
3
Poland
14, 231
Pope
See conscientious objection; conscription; Jehovah’s Witnesses and conscription
Power, Charles
27, 29, 30, 42, 60, 165, 230, 246–7
Presbyterian Church
192
Price, H. F.
79–80
Prince Edward Island
176
Priests
See Roman Catholicism
Privy Council
66, 122
Protestantism
See Protestants
Protestants
6, 74, 87, 123, 130, 133, 235
Public Schools Act
132, 135, 136, 160
Quakers
97, 167, 175, 214
Quebec
xi, xii, 9, 10, 13, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 37, 38, 45, 59, 61, 62, 63, 65, 81, 88, 89, 92, 93, 98, 103, 104, 105, 116, 119, 120, 166, 230–53 passim, 254, 255, 256, 258, 260
Quebec City
11, 15, 43, 62, 91, 241, 243, 248, 251
Quebec courts
10, 11, 13, 20, 23, 233–53 passim
Quebec Liquor Act
246
Quebec Liquor Commission
245, 247
Quebec nationalism
15, 24
Quebec’s Burning Hate
233–4, 236, 240, 241
Queen’s Park
See Ontario Legislature
Quelch, Victor
107
Racial Discrimination Act
227–8, 261, 262
Ralston, J. L.
178–9
Rand, Ivan
164, 237–53 passim
RCMP
See Royal Canadian Mounted Police
Re Drummond Wren
261
Re McDougall and Waddell
261
Re Noble and Wolfe
261–2
Red Cross
58, 86, 92, 118, 170, 174, 186, 207, 209, 212
Regina
174, 225
Regina Manifesto
251
Remnant, S. J.
191–2
restrictive covenants
261–2
Rex v. Stewart
37
Richwood
56
Riley, H. J.
180
Robertson, Robert Spelman
199–201
Robinette, John J.
120–1, 199–200
Robinson, David A.
128
Roebuck, Arthur
259
Rollo, Walter
130–9 passim
Roman Catholic Church
See Roman Catholicism
Roman Catholic hierarchy
See Roman Catholicism
Roman Catholicism
xi, 5, 6, 7, 10, 11, 16, 18, 24, 27, 28, 29, 54, 61, 62, 63, 64, 67, 74, 75, 88, 89, 90, 96, 97, 102, 103, 107, 116, 117, 123, 151, 230–53 passim
Roncarelli
236, 245–53, 254
Roncarelli, Frank
236, 245–53
Roosevelt, Franklin
30, 158
Rose, Fred
256
Rose, Hugh Edward
139, 141
Rosenheath
126
Rowe, Earl
123
Rowell-Sirois Commission
91
Royal Canadian Army Medical Corps
174
Royal Canadian Mounted Police
18, 32, 39, 40, 49, 50, 53, 54, 58, 62, 63, 67, 69, 73, 77, 78, 79, 80, 85, 87, 93, 95, 99, 100, 101, 103, 117, 119, 120, 121, 122, 126, 127, 233, 249
Royal Commission on Coal
198
Ruman, Frances
143
Ruman, Mary
143
Ruman v. Board of Trustees of Lethbridge School District
143, 159
Russell, Charles Taze
3
Rutherford, Judge Joseph F.
3, 4, 6, 7, 8, 9, 53, 54, 55, 57, 63, 105, 109, 117, 125, 148
Sacco, Nicola
60
St Laurent, Louis
91, 92, 98, 99, 100, 102, 103, 104, 105, 106, 107, 114, 116, 118, 119, 121, 180, 187, 188, 194–5, 255, 259–60, 277, 269
St Lawrence Seaway
40, 251
Salsberg, J. B.
227
Saltmarsh
193, 195, 196, 197
Salvation Army
115
San Antonio Bar Association School of Law
58
Sandwell, B. K.
235–6
Saskatchewan
46, 52, 53, 75, 76, 79, 104, 106, 142, 165, 171, 205, 225, 260
Saskatchewan Bill of Rights
229
Satan
4, 5, 6, 57, 67, 97, 105, 110, 115, 118, 125, 229, 233
Saturday Night
198, 235
Saumur
236, 241–5, 247, 248, 252, 254
Saumur, Laurier
241–5
Schmellovich, Mary
141
school prayer
See Jehovah’s Witnesses, public schools and
Schroeder, Walter Frank
261–2
Schwenger, W. F.
264
Scotland
193, 197
Scott, F. R.
22, 236, 247, 250–1, 267
Second World War
xi, 10, 13, 31, 61, 63, 72, 92, 106, 108, 114, 121, 153, 165, 172, 175, 181, 207, 213, 214, 218, 224, 232, 251, 257, 260, 270, 271; national security and 30–44, 46–50; national unity and 14–15, 26–7, 30, 64, 88–9, 116, 166, 226
Secretary of State
122
Section 98
17, 18, 22, 25, 33, 38, 39, 257
security screening
266
sedition
10, 55, 232, 241; see also Boucher
selective service
See conscientious objection; conscription; Jehovah’s Witnesses and conscription; Jehovah’s Witnesses and ministerial exemption; National Selective Service Mobilization Regulations; National War Services Regulations
Selective Training and Service Act
214, 219
Senate
See Parliament (Canada)
Senate Special Committee on Human Rights and Fundamental Freedoms
259, 265
separate schools
16
Seventh-Day Adventists
78, 195, 232
Shields, Thomas Todhunter
54, 124
Sicily
106
Skelton, Oscar Douglas
32, 38
Smith, A. E.
88
Smith, Sidney
195
Social Credit party
21, 39, 94, 107
South Africa
109
South Korea
265
Soviet Union
13, 17, 31, 38, 85, 87, 88, 92, 98, 102, 231, 232, 256–7, 266
Spanish Civil War
28, 231
Special Committee on the Defence of Canada Regulations.
See Defence of Canada Regulations
Stalin, Josef
31, 74, 257, 266
Stein, A. L.
234–5, 247, 249, 250
Stewart
191–6 passim, 204
Stewart, Alistair
227, 229, 259
Stewart, Douglas
37
Stewart, Earl K.
191–6 passim
Stone, Harlan
149–50, 153, 154
Sudbury
194
Supreme Court Act
202–3
Supreme Court of Canada
xi, 11, 22, 23, 52, 72, 163, 201–3, 224, 237–53 passim, 254, 257, 260, 262, 265, 267
Supreme Court of Ontario
46, 120, 138, 196, 261; see also Ontario Court of Appeal
Supreme Court of the United States
55, 107, 108, 112, 146–58 passim, 219, 266
Swalm, Ernie
171
Switzman v. Elbling
249–50
Taschereau, Louis-Alexandre
20
Taschereau, Robert
249
Texas
58
The End of Nazism
74, 75, 78, 79, 87
The Finished Mystery
7
theocracy
55, 59, 68, 74, 110, 119
Theocratic Kingdom of God
See theocracy
Thorson, J. T.
95
Toronto
59, 60, 65, 67, 69, 115, 119, 127, 140, 174, 178, 180, 182, 186, 194, 196, 197, 209, 258
Toronto City Council
260
Toronto Civil Liberties Association
45, 98
Toronto Civil Liberties Union
258
Toronto Police Commission
260
Trades and Labor Congress
130
Trading with the Enemy Regulations
78
Trans-Canada Highway
173
Treachery Act
48
Trois-Rivières
19, 249
Trudeau, Pierre
249, 270
Truman, Harry
218, 228
Tse-tung, Mao
265
Union Nationale
20, 30, 231, 232, 248, 250
United Church
47, 192
United Kingdom
See Britain
United Nations
119, 226, 227, 229, 255
United Nations Special Committee on Palestine
237
United Religious Groups
214, 215
United States
7, 8, 9, 11, 12, 55, 57, 60, 66, 68, 74, 76, 77, 78, 101, 109, 114, 116, 117, 119, 125, 146–58 passim, 178, 226, 228–9, 265, 266; see also conscientious objection, United States
United States Congress
151, 214, 217
United States Constitution
See Constitution, United States
United States Espionage Act
7, 8
Universal Declaration on Human Rights
227, 229, 259, 261
Université de Montréal
249
Université Laval
15
University of Alberta
268
University of Toronto
267
Vancouver
174
Vanzetti, Bartolomeo
60
Varcoe, F. P.
117, 181, 182, 188–9
Vatican
74, 124, 232
Vichy France
88
Villeneuve, Jean-Marie-Rodrigue
27–30, 62, 64, 65, 67, 89, 90, 92, 116, 166, 230, 250
Wainwright, Charles
59, 60
Wakaw
53
Wallaceburg
185, 186
Walsh, Orville
132–9 passim, 161, 163, 164
War Measures Act
14, 30, 31, 32–3, 41, 42, 44, 256, 267–70
War Precautions Act (Australia)
108
Warren, Earl
266
Washington
20, 110
Watch Tower
3, 9, 114, 115, 119
Watch Tower Bible and Tract Society
3, 76, 77, 101, 195, 204, 212
Watch Tower Bible and Tract Society Incorporated
76, 77, 195
Welland
40
Westman, L. E.
173, 180, 183, 184, 185–6, 187, 194, 207, 208
West Virginia
56, 265
West Virginia State Board of Education
See West Virginia State Board of Education v. Barnette
West Virginia State Board of Education v. Barnette
57, 107, 114, 153–8, 159, 162
Wheeling
265
Whitelock, W. L.
130, 131
Why I Am Not a Protestant
11
Windsor
40, 182, 237, 260
Winnipeg
102, 119, 174, 178
Winnipeg Free Press
88, 100
Wisconsin
57
Witness against War
47
Wood, Stuart T.
32, 40, 58, 63, 77, 78, 103, 115
Woodsworth, J. S.
9, 45, 81
Wright, Richard
132
Wycliffe
6
Yearbook of Jehovah’s Witnesses
59, 72, 118, 122
Notes
1 The Ernest Lapointe Papers, the Mackenzie King Papers, and the J. L. Cohen Papers were consulted extensively in the preparation of this book. These papers are available at the National Archives in Ottawa. The citation for the Lapointe Papers is NAC, MG 27, III, B10; for the King Papers, NAC, MG 26, J4; and for the Cohen Papers, NAC, MG 30, A94. Only the name of the collection and the volume and file number will be cited here for these three collections. All other manuscript collections are cited in full.
1. Marley Cole quoted in M. James Penton, Jehovah’s Witnesses in Canada (Toronto: Macmillan 1976), 27. There is a huge literature, scholarly, popular, and partisan, about the Jehovah’s Witnesses. For their history in Canada see M. James Penton, Jehovah’s Witnesses in Canada. For a nearly complete bibliography of Jehovah’s Witness literature, see Jerry Bergman, Jehovah’s Witnesses and Kindred Groups: A Historical Compendium and Bibliography (New York: Garland Publishing Inc. 1984). As to the date of Jesus Christ’s return to earth see M. J. Penton, ‘Jehovah’s Witnesses,’ New Canadian Encyclopedia, 2nd ed. (Edmonton: Hurtig 1988), 1107, and an apparently contradictory date given in M. J. Penton, ‘Jehovah’s Witnesses and the Secular State: A Historical Analysis of Doctrine,’ 21 (1979) Journal of Church and State, 55–76,56.
2. For the history of the group in Alberta, see W. E. Mann, Sect, Cult and Church in Alberta (Toronto: University of Toronto Press 1955, 1962).
3. Kingdom News, July 1940.
4. A. H. Macmillan, Faith on the March (Englewood Cliffs, NJ: Prentice-Hall 1957), 162.
5. This section is substantially derived from Herbert H. Stroup, ‘The Attitude of the Jehovah’s Witnesses toward the Roman Catholic Church,’ 2 (January 1942) Religion in the Making, 148–63, at 151–2.
6. Deliverance cited by Stroup, ‘The Attitude of the Jehovah’s Witnesses toward the Roman Catholic Church,’ 152–3.
7. Watch Tower, June 1935.
8. Cited in Stroup, ‘The Attitude of the Jehovah’s Witnesses toward the Roman Catholic Church,’ 158.
9. In 1940 Judge Rutherford wrote in his last book, Religion: ‘The Devil practices all manner of fraud and deception. He organized the chief religious systems on earth, now under the Roman Catholic Hierarchy, and falsely designates that as “the Christian religion.” Even the so-called “Protestant” systems of religion claimed to be opposed to Romanism, but, in fact, they all work together. The Devil then organizes and brings into action Communism, which openly fights the so-called “Christian religion” and also true Christianity. He uses atheists likewise to fight against those who serve God, and thus the Devil uses all these means and organizations to fight against God and against God’s faithful servants on the earth and to deceive men.’ Cited in Stroup, ibid.
10. Cited in William Shepard McAnnich, ‘A Catalyst for the Evolution of Constitutional Law: Jehovah’s Witnesses in the Supreme Court,’ 55 (1987) University of Cincinnati Law Review, 997–1077,1008.
11. Pub. L. No. 24, ch. 30, 40 Stat. 217 as amended Pub. L. No. 150, ch. 75, 40 Stat. 553.
12. See McAnnich, ‘A Catalyst for the Evolution of Constitutional Law,’ 1008ff.
13. Ibid, 1013.
14. Cited in Penton, Jehovah’s Witnesses in Canada, 97.
15. Ibid, 102.
16. Herbert Hewitt Stroup, The Jehovah’s Witnesses (New York: Russell & Russell 1967), 25–6, 57; David Leslie McLean, ‘History of the Jehovah’s Witnesses: A Study in Biography,’ BDiv thesis, McMaster University 1963, 62–3.
17. Penton, Jehovah’s Witnesses in Canada, 118.
18. Much of this section is derived from ‘In Re Jehovah’s Witnesses,’ 16 (15 February 1947) The Fortnightly Law Journal, 221–2.
19. R. v. Kinler (1925), 63 R. J. Q. 483 (SC), but see R. v. St. Martin (1933), 40 R. J. Q. 411 (Ct. Sess. P.).
20. The history of the provision is described in Boucher v. R. (1950), [1951] SCR 265,274.
21. As cited in ‘In Re Jehovah’s Witnesses,’ 221. This common-law definition appears to have been lifted from Sir James Stephen’s Digest of the Criminal Law, which was in turn adopted by the commissioners put to work codifying the criminal law.
22. It is interesting, however, to observe that the draftsman of the proposed but never enacted English statute upon which the Canadian one was based, Sir James Stephen, believed that seditious libel required nothing short of direct incitement to disorder or violence. See J. T. Eyton, ‘The Jehovah’s Witnesses and the Law in Canada,’ 17 (1959) University of Toronto Law Journal, 96–114, 100, footnote 30.
23. Duval v. R. (1938), 64 R. J. Q. 270 (KB); [1938] SCR 390.
24. Incidentally, the court of appeal also decided that French-speaking accused would have their cases decided by French-speaking jurors. Calder had attempted to have the case heard in English, undoubtedly believing that an English-speaking and therefore more likely Protestant jury would be less inclined to convict. The court of appeal held, however, that the special rights conferred by the Quebec Civil Code, dealing with the administration of justice in the province and providing for English juries, could only be exercised by an English-speaking accused.
25. Penton, Jehovah’s Witnesses in Canada, 113.
26. For the history of the Second World War, see C. P. Stacey, Six Years of War (Ottawa: Queen’s Printer 1957); C. P. Stacey, Canada and the Age of Conflict, II: 1921–1948 (Toronto: University of Toronto Press 1981); and J. L. Granatstein, Canada’s War: The Politics of the Mackenzie King Government (Toronto: Oxford University Press 1975).
27. RSC 1927, c. 206.
28. Debates, 7 September 1939, 1.
29. I am indebted to Paul Bychok for much of this section. See Paul Bychok, ‘“La muraille qui vous protège”: Ernest Lapointe and French Canada, 1935–1941,’ MA Thesis, Queen’s University 1984.
30. Ibid, 85–6.
31. Norman Ward, ed., A Party Politician: The Memoirs of Chubby Power (Toronto: Macmillan 1966), 377; The Globe and Mail 27 November 1941.
32. Bychok, ‘“La muraille qui vous protège,”’ 37.
33. Debates, 19 June 1936, 3899ff.
34. Ibid.
35. At the same time, the sedition section of the Code (133) was amended by adding the following: ‘Without limiting the generality of the meaning of the expression “seditious intention” everyone shall be presumed to have a seditious intention who publishes, or circulates any writing, printing or document in which it is advocated, or who teaches or advocates, the use, without the authority of the law, of force, as a means of accomplishing any governmental change within Canada.’
36. ‘Testing Padlock Law,’ Saturday Night, 10 September 1938; see also Debates, 1 February 1938, 75.
37. Bulletin, No. 9, CCLU June 1939, ACLU Papers, Mudd Library, Princeton University, Vol. 2085.
38. NAC, RG 25 DI, Department of External Affairs Papers, Vol. 722, File 60, ‘Notes on the Question of a Canadian Bill of Rights,’ 31 December 1937, Loring C. Christie.
39. See, for example, Lapointe Papers, Vol. 40.
40. Conrad Black, Duplessis (Toronto: McClelland & Stewart 1977), 180. See also Lapointe Papers, Vol. 35, File 18-23, Memorandum of Law, 4 April 1938, Warwick F. Chipman; Debates, 30 May 1937, 3377.
41. Debates, 30 March 1937, 2294.
42. Ibid, 2295.
43. Ibid, 2296.
44. King Diary, 6 July 1938, cited in H. Blair Neatby, ‘Mackenzie King and French Canada,’ 11 (1976) Journal of Canadian Studies 3–13, at 9.
45. King Papers, Vol. 199, File 1864, Padlock Law. See also Eugene Forsey, ‘Mr Lapointe and the Padlock,’ Canadian Forum, August 1938, 148. For Forsey’s involvement in these early civil-liberties activities see Eugene Forsey Interview, 11 September 1987.
46. Debates, 30 March 1937, 2296.
47. Ibid. See also J. W. Pickersgill Interview, 25 June 1987.
48. Bychok, ‘“La muraille qui vous protège,”’ 132. When, for example, the minister of national revenue, J. L. Isley, lifted the customs ban on the importation of an American atheist periodical, Lapointe made representations to Mackenzie King to have this decision reversed.
49. On the Oshawa Strike see Irving Abella, ‘Oshawa 1937,’ in Irving Abella, ed., On Strike (Toronto: James Lewis & Samuel 1974), 93–125. See also NAC, RG 25 DI, Department of External Affairs Papers, Vol. 812, File 627, Vatican. Another contemporary example of Lapointe attempting to strengthen the position of the Roman Catholic church was his recommendation to raise the status of the papal delegate in Canada to that of nuncio, a diplomatic status equivalent to ambassador. Lapointe may have persevered, had not Cardinal Villeneuve travelled to Ottawa to express his opposition to the proposal. See Lapointe Papers, Vol. 44, File 162, Vatican and Vol. 16, File 42. See also NAC, RG 25 DI, Vol. 812, File 627, Vatican. For information on attempts by the cardinal in the 1930s to get restrictions on the importation of anti-clerical and communist materials see King Papers, Vol. 155, File 1345, Censorship.
50. Lapointe continued to turn down requests for a Supreme Court reference even when it became clear that the Padlock Act was being used for petty political harassment, not to mention to lock people out of their own homes merely because they expressed left-wing political views. Debates, 25 January 1939, 306.
51. Lapointe Papers, Vol. 43, W. L. M. King to L. V. Smith, 23 July 1938.
52. For one view of their relationship see H. Blair Neatby, ‘Mackenzie King and French Canada,’ 1 (1976) Journal of Canadian Studies, 3–13.
53. Debates, 9 September 1939, 68.
54. Ibid.
55. Ibid, 69.
56. See Debates 12 September 1939, 185–6.
57. One of the more forceful proponents of this view is novelist Hugh Mac-Lennan. See Maclean’s, August 1971, 23, 49.
58. Eugene Forsey Interview, 11 September 1987.
59. See J. M. R. Villeneuve, ‘And Our Dispersed Brethren …?’ in Ramsay Cook, ed., French Canadian Nationalism (Toronto: Macmillan of Canada 1969), 202–14.
60. Black, Duplessis, 107.
61. Villeneuve was also opposed to the CCF. See Debates, 1 May 1939, 3422. See also Duarté Nuno Lopes, ‘The Co-operative Commonwealth Federation in Quebec, 1932–50: A Study,’ MA thesis, McGill University 1986, 112.
62. Black, Duplessis 147,161.
63. Ibid, 162.
64. Ibid, 175.
65. The Montreal Gazette, 30 November 1939, cited in H. F. Quinn, The Union Nationale (Toronto: University of Toronto Press 1966), 124, note 60.
66. One history of the left in Quebec in the decade before the war is Andrée Lévesque Olseen, ‘The Canadian Left in Quebec during the Great Depression: The Communist Party of Canada and the Co-operative Commonwealth Federation in Quebec, 1929–1937,’ PhD. thesis, Duke University 1972.
67. Translation of passages from a speech by Cardinal Villeneuve to the Cercle Universitaire, Montreal, ‘Liberty and Liberties,’ 28 January 1938, reported verbatim in Le Devoir, 31 January 1938. Supplied to author by Eugene Forsey.
68. For an excellent contemporaneous account of the role of the Catholic church and for the then current Quebec political situation see ‘Embryo Fascism in Quebec,’ 16 (1938) Foreign Affairs, 454–66. Although published anonymously, the author was McGill law professor F. R. Scott. A contrary, and much less persuasive, account is provided by H. F. Quinn, ‘The Bogey of Fascism in Quebec,’ 18 (1938–9) Dalhousie Review, 301–8.
69. See Michael D. Behiels, Prelude to Quebec’s Quiet Revolution (Kingston and Montreal: McGill-Queen’s University Press 1985).
70. ‘Memorandum’ 2 September 1939, in Lapointe Papers, Vol. 23, File 78; see also Ward, ed., A Party Politician 126.
71. Black, Duplessis, 196.
72. Ibid, 220.
73. J. W. Pickersgill, The Mackenzie King Record, I: 1939–1944 (Toronto: University of Toronto Press 1960), 35.
74. Robert Bothwell, Ian Drummond, and John English, Canada, 1900–1945 (Toronto: University of Toronto Press 1987), 320.
75. For a very critical assessment of Duplessis’s role in these and other events see Leslie Roberts, The Chief (Toronto: Clarke, Irwin 1963).
76. Black, Duplessis, 208.
77. See generally Elspeth Chisholm, ‘“Never”: Ernest Lapointe and Conscription,’ 3 (1975–6) Canada, 2–21.
78. Lapointe Papers, Vol. 41, File 41, S. T. Wood to E. Lapointe, 25 August 1939.
79. See King Papers, Vol. 230, File 2218, O. D. Skelton to W. L. M. King, 28 August 1939. See also RCMP Report to Skelton of same date.
80. For a review, and scathing critique, of the government’s policy of internment as applied to German Canadians, see Robert H. Keyserlingk, ‘“Agents within the Gates”: The Search for Nazi Subversives in Canada during World War II,’ 66 (June 1985) Canadian Historical Review, 211–39.
81. The single best collection of records relating to the work of the committee is to be found in NAC, Department of Finance Records, RG 19 Vol. 3535, File, Committee on Emergency Legislation.
82. The War Measures Act, RSC, 1927 c. 206. For a history of this act see F. Murray Greenwood, ‘The Drafting and Passage of the War Measures Act in 1914 and 1927: Object Lessons in the Need for Vigilance,’ unpublished paper, June 1987.
83. First Report, Committee on Emergency Legislation, July 1939 (Ottawa: King’s Printer 1939).
84. Cabinet minutes were not taken until February 1944. The Cabinet War Committee took minutes (although it did not begin to meet regularly until May 1940) but there is no evidence, from this period, indicating any discussion of the Defence of Canada Regulations. See King Papers, Vol. 424, Minutes of the Cabinet War Committee, August and September 1939.
85. PC 2483.
86. For one of the few early protests against the Canadian regulations see Canadian Civil Liberties Union, Montreal Branch, ‘The War and Civil Liberty,’ Montreal n.d. [c. October 1939]. Similarly, in Britain, although there was opportunity for debate, the comparable regulations passed without dissent. Even the arrival of a lawyer from the National Council for Civil Liberties with amendments in hand failed to arouse many members of Parliament or attract their support. See Ronald Kidd, British Liberty in Danger (London: Lawrence & Wishart Ltd. 1940), 194. For information about wartime emergency legislation in the United Kingdom see also Annual Survey of English Law, 1939 (London: Sweet & Maxwell Ltd. 1940).
87. The Globe and Mail, 9 September 1939 and 21 September 1939.
88. Specific censorship regulations were passed on 1 September 1939, also pursuant to the War Measures Act. These regulations were revoked on 22 January 1940 by PC 254 and from that point forward the regulatory basis for censorship was Defence of Canada Regulations, no. 15. The secretary of state, however, continued to exercise control over censorship. See King Papers, Vol. 42, File, World War Two, Chronology Internal Security, 1039–44.
89. Defence of Canada Regulations, 1938, Regulation no. 1 (Ottawa: King’s Printer 1939).
90. PC 4600, 7 June 1943.
91. Separate provision was made for enemy aliens in Regulation no. 24.
92. Regulation no. 22, Defence of Canada Regulations, Consolidation 1939.
93. First Report, Committee on Emergency Legislation, July 1939 (Ottawa: King’s Printer 1939), 7.
94. The Globe and Mail, 23 September 1939.
95. Regulation no. 58(2), Defence of Canada Regulations, Consolidation 1939.
96. Regulation no. 62(2), Defence of Canada Regulations, Consolidation 1939.
97. Regulation no. 63(2), Defence of Canada Regulations, Consolidation 1939.
98. See King Papers, Vol. 290, File 1940, Lab to Lawrson, J. W. P. to W. L. M. King, 27 January 1940, re W. P. M. Kennedy.
99. Regulation no. 24(2), Defence of Canada Regulations, Consolidation 1939.
100. It is noteworthy that following the start of the war applications for naturalization tripled from seven hundred or eight hundred a month to more than two thousand. See ‘Topical Chronology of War Effort — Internal Security and Public Welfare’ in King Papers, Vol. 42, File PCO, Emergency Council and War Committee Minutes, 1939–40. It is also noteworthy that the number of enemy aliens who were actually required to register and report amounted to only a small percentage of the people who technically fit within the class of enemy aliens. By various orders-in-council, for example, PC 3623 of 14 November 1940, provision was made to reduce the number of enemy aliens registering and reporting. Furthermore, the reporting requirements were in almost all cases merely procedural. See Debates, 11 June 1940, 676. While the regulations did not provide that the person appointed to hear enemy-alien appeals had to be a judge, in practice this was the case, and the advisory committees that came into being appear to have had their release recommendations accepted and executed. In most respects Canadian internal-security measures during the war were far more severe than those in Great Britain. The treatment of enemy aliens is the single exception. At the outbreak of war, for instance, the United Kingdom immediately interned some six hundred enemy aliens, including some Jewish refugees. Canada interned fewer than three hundred enemy aliens, although that number apparently later increased. The critical difference, of course, was that the United Kingdom was literally swamped with German and other European refugees. Some of the enemy aliens interned in Britain were later sent to Canada. For one account of this see Eric Koch, Deemed Suspect (Toronto: Methuen 1980). For an account of the Ukrainian experience see Thomas M. Prymak, Maple Leaf and Trident: Ukrainian Canadians during the Second World War (Toronto: Multicultural History Society of Ontario 1988). See also Lester H. Phillips, ‘Canada’s Internal Security,’ 12 (1946) Canadian Journal of Economics and Political Science, 18–29, at 22,27.
101. Reconstructing the amendments is much easier said than done. While consolidations of the regulations were published in 1939, 1940, 1941, and 1942, these consolidations were not published on a specific and consistent annual date; nor can one determine from direct examination of them when exactly a particular amendment was passed. To determine that, it is necessary to examine all the orders-in-council during this period. A multi-volume listing of all orders-in-council creating, amending, and deleting orders-in-council does exist but it is not complete. I welcome criticism and correction.
102. Regulation no. 22 was also amended. See Debates, 11 June 1940, 667.
103. Regulation no. 39A was passed by PC 2891 on 27 September 1939.
104. Rex v. Stewart, [1940] OWN 95. His sentence was, however, reduced on appeal. See R. v. Stewart [1940] 1 DLR 689 (CA); Canadian Forum, April 1940, 20. See also Debates, 2 July 1942, 3890. In England the equivalent regulation not only required intent but also falsity in the statement made by the accused. In Canada the prosecutions under this regulation made it look more than a little ridiculous. Countless persons were sentenced to jail for drunken statements prejudicial to the war effort, a handful were remanded for mental examinations, and most were acquitted with a tongue-lashing from the magistrate hearing the case. For a partial list, see NAC, Special Committee on the Defence of Canada Regulations, RG 14, Acc. 84-5/384, Box 2, File 53. See also R. v. Bronny [1940] 3 WWR 423 (BCCA).
105. King Diary, 16 November 1939.
106. ‘Memorandum for the Secretary of State,’ 20 November 1939, King Papers, Vol. 156, File 1381, Communism.
107. King Diary, 16 November 1939.
108. ‘Proposed New Defence of Canada Regulations,’ 23 November 1939, King Papers, Vol. 155.
109. Ibid.
110. Ibid.
111. Ibid.
112. King Diary, 23 November 1939.
113. Ibid, 24 November 1939.
114. Annual Survey of British Law (London: Sweet & Maxwell 1940), 34ff. See also Cecil T. Carr, ‘Crisis Legislation in Britain,’ 15 (1940) Columbia Law Review, 1309–25; Harold Laski, ‘Civil Liberties in Great Britain and Canada during War,’ 55 (1942) Harvard Law Review, 1006–18.
115. Also in Britain every regulation passed under the authority of the enabling legislation had to be laid before Parliament as soon as possible after its passage by order-in-council. Either the House of Lords or the House of Commons could, within twenty-eight days, amend, ratify, or annul the particular regulation. Regulations that were ratified, and almost all were, had a statutorily limited life-span of one year, after which they were again subject to parliamentary review. In theory, certainly, this procedure vested in the British Parliament control over the wide range of regulatory activity. See King Papers, Vol. 229, File 2194, ‘A Comparison of Canadian and British Regulations Dealing with Free Speech, Control of the Press, and Imprisonment without Trial,’ 29 December 1939; ‘Memorandum, Internment Operations, 13 October 1939’; United Kingdom Debates, 31 October 1939; The Times, 29 November 1939; The New Statesman and Nation, 2 December 1939; and The Economist, 2 December 1939. Needless to say, there were those who claimed that these improvements to the regulations did not go far enough. See, for example, Ronald Kidd, British Liberty in Danger (London: Lawrence & Wishart Ltd. 1940), 193–241.
116. For discussion about the British Parliament during the war see W. Ivor Jennings, ‘Parliament in Wartime,’ 11 (1940) Political Quarterly, 351–67; Harold Zink and Taylor Cole, eds, Government in Wartime Europe, rev. ed. (Boston: Houghton Mifflin Company 1943), and for the development of emergency-power legislation during the war see Jennings, ‘Emergency Legislation,’ Annual Survey of English Law (London: Sweet & Maxwell 1943), 10–41.
117. See Lapointe Papers, Vol. 16, E. Lapointe to W. L. M. King, 20 December 1939.
118. Following the meeting, amendments to the regulations were passed by PC 37, 4 January 1940.
119. King Papers, Vol. 42, File World War Two, Chronology Internal Security, 1939–44.
120. Ward, ed., A Party Politician, 375.
121. King Diary, 4 January 1940.
122. PC 3139, 11 November 1939.
123. Ramsay Cook, ‘Canadian Liberalism in Wartime: A Study of the Defence of Canada Regulations and Some Canadian Attitudes to Civil Liberties in Wartime, 1939–1945,’ MA thesis, Queen’s University 1955, 179. The amendment to the regulation regarding good-faith criticism did not necessarily mean that free speech was restored. See R. v. Coffin [1940] 2 WWR 592 (Alta. Police Ct.). On amendments to the Censorship Regulations see King Papers, Vol. 352, File 3794, World War Two Censorship; PC 254 on 22 January 1940; Lester H. Phillips, ‘Canada’s Internal Security,’ 12 (1946) Canadian Journal of Economics and Political Science, 18–29, at 23.
124. Granatstein, Canada’s War, 82–3.
125. Ivan Avakumovic, The Communist Party in Canada (Toronto: McClelland & Stewart 1975), 144. For the Communist party’s political platform see Debates, 15 July 1943, 4863.
126. Cited in Debates, 11 June 1940, 660–1. See also Debates, 29 May 1940, 322. See Minutes of the Meeting of the Council of the Toronto Civil Liberties Association, 11 March 1940, J. A. Dewar to Members of Council, 19 March 1940, Queen’s University Archives, G. M. Grube Papers; Toronto Civil Liberties Association, ‘Memorandum for the Members of the House of Commons on Democracy in Wartime and Particularly on the Defence of Canada and Censorship Regulations’ (Toronto: May 1940), Queen’s University Archives, G. M. Grube Papers.
127. C. P. Stacey, Canada and the Age of Conflict II: 1921–1948 (Toronto: University of Toronto Press 1981), 298–9.
128. The Globe and Mail, 1 May 1940. For more primary information on Canadian perceptions of the international situation see King Papers, Vol. 166, File 1512 and File 1513, European Situation.
129. The Globe and Mail, 14 May 1940. See, however, A. R. M. Lower, ‘Wartime Democracy in Canada,’ The New Republic, 15 April 1940, 503; Canadian Tribune, 25 May 1940.
130. The decision was appealed and two of the men charged were released because of lack of evidence, but then they were immediately interned. See also Mudd Library, ACLU Papers, Vol. 2195, Press Release, 27 May 1940; New York, Daily Worker, 16 May 1940, 19 May 1940; Canadian Forum, June 1940, 75; August 1940, 143.
131. The Globe and Mail, 16 May 1940.
132. King Papers, Vol. 355, File 3814, document dated 23 May 1940.
133. See Thomas P. Socknat, Witness against War (Toronto: University of Toronto Press 1987), 202–3.
134. ‘What Kind of a Man Is Ontario’s New Premier?’ Saturday Night 31 October 1942; see also David Croll Interview, 2 November 1987.
135. And he was also quick to make the deficiencies in the Defence of Canada Regulations known to the proper authorities; see NAC, Special Committee on the Defence of Canada Regulations, RG 14, Acc. 84-5/384, Box 2, File 53, G. D. Conant to A. G. Slaght, 2 July 1940.
136. OA, Gordon Conant Papers, MU 722, Box 2, Address to the Toronto Kiwanis Club, 15 May 1940.
137. See F. A. Brewin, ‘Civil Liberties in Canada during Wartime,’ 1 (1940–1) Bill of Rights Review, 112–21, at 114.
138. The Globe and Mail, 17 May 1940.
139. Ibid, 21 May 1940.
140. Bychok, ‘“La muraille qui vous protège,”’ 238.
141. King Diary, 7 May 1940; see also King Papers, Vol. 300, File 3087.
142. King Diary, 16 May 1940, ‘I confess,’ King wrote that night in his diary, ‘I feel very anxious about him.’
143. Ibid, 22 May 1940.
144. Minutes of the Cabinet War Committee, 22 May 1940, King Papers, Vol. 424.
145. See Debates, 20 May 1940, 26,50.
146. Ibid, 23 May 1940, 144–6.
147. King Diary, 24 May 1940.
148. Ibid, 27 May 1940.
149. PC 2322, 31 May 1940.
150. Some government supporters were given advance warning of the decision. See Sir William Mulock to E. Lapointe, 22 May 1940, and E. Lapointe to Mulock, 3 June 1940, Lapointe Papers, Vol. 16.
151. The significance of the new regulation was hardly lost on Prime Minister King: ‘Today has been excessively hot. Dictated diary, then signed important orders making illegal large numbers of organizations liable to be troublesome in the light of developments that may follow. It is a strong thing for me to be signing orders of this kind. They are absolutely necessary for the preservation of freedom today.’ See King Diary, 4 June 1940. The decision to ban the Communist Party of Canada and various affiliated and sympathetic organizations was, according to one first-person account, only taken following prolonged debates in the inner sanctums of government and only after the Communist party had proved, by its conduct, that it was dedicated to disrupting the ‘imperialist’ war effort. Whether or not this is so, the War Committee minutes do not authoritatively reveal. There is, notwithstanding this account, no reason to believe that this regulation was not passed in exactly the same way as all the rest: at the request of Justice Minister Lapointe. See J. W. Pickersgill to W. Kaplan, 17 November 1982: ‘I did what I could, without success, to try to persuade Mackenzie King not to permit this decision to be made’; and J. W. Pickersgill Interview, 25 June 1987. See also Debates, 5 June 1940, 533.
152. The Globe and Mail, 6 June 1940.
153. An order, pursuant to the Defence of Canada Regulations, prohibiting further publication of the paper was passed on 21 November 1939. See E. Lapointe to S. Morgan-Powell, 18 June 1940, Lapointe Papers, Vol. 13. In January 1940 The Canadian Tribune began publication under the editorship of well-known Communist-party member, and future MPP in the Ontario legislature, A. A. MacLeod. It was closed down in February 1941. ‘The government,’ Secretary of State P. F. Casgrain explained, ‘has ample reason to believe that if it is not actually a communist publication it is pursuing the policy which a communist publication in this country would be instructed by its headquarters to follow.’ Debates, 27 February 1941, 1079.
154. Debates, 11 June 1940, 676.
155. The Globe and Mail, 4 June 1940, 6 June 1940.
156. Debates, 12 June 1940, 725–8. T. C. Douglas later took on Dr Bruce. To come into the House and give a list of organizations and label them publicly as subversive without submitting any supporting evidence was, according to Douglas, a ‘rank injustice to thousands of good Canadian citizens who are not in any position to defend themselves in this house.’ Debates, 13 June 1940, 752. See also H. A. Bruce, ‘Propagation of the Unfit,’ (March 1943) The Canadian School Journal 77–8.
157. Department of Justice Papers, J. W. Estey to E. Lapointe, 17 June 1940. See also Department of Justice Papers Brief re International Bible Students et al, Saskatchewan, unsigned, undated; RCMP Papers, C. D. LaNause to the Deputy Attorney General, 13 June 1940.
158. Department of Justice Papers, J. B. McNair to E. Lapointe, 28 June 1940.
159. RCMP Papers, Report, 26 August 1939, Wakaw, Saskatchewan.
160. Ibid, Report, 19 September 1939, Kingston, Ontario.
161. Ibid, Report, 19 March 1940.
162. Jehovah’s Witness Yearbook, 1940, 129.
163. The Gospel Witness, 7 May 1942, Vol. 21, No. 1, 7–10. See also Debates, 4 March 1941, 1208.
164. See Debates, 4 March 1941, 1208–10.
165. It provides: ‘3 / Thou shalt not have other gods before me; 4 / Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; 5 / Thou shalt not bow down thyself to them, nor serve them.’ For an extended Jehovah’s Witness interpretation of this commandment see The End of Nazism (1940), 19–21.
166. The Globe and Mail, 3 June 1940.
167. Cantwell v. Connecticut, 310 U.S. 296 (1940). See Charles G. Hasson, ‘Constitutional Law — Jehovah’s Witnesses,’ 22 (1946–7) Notre Dame Lawyer, 82.
168. American Civil Liberties Union, The Persecution of Jehovah’s Witnesses (New York: ACLU 1941).
169. Ibid, 22.
170. For Jehovah’s Witness views of the ACLU see Herbert H. Stroup, The Jehovah’s Witnesses (New York: Russell and Russell 1967), 126.
171. H. Rutledge Southworth, ‘Jehovah’s 50,000 Witnesses,’ The Nation, 10 August 1940, 110–12, at 112.
172. J. S. Conway, The Nazi Persecution of the Churches, 1933–45 (New York: Basic Books, Inc. 1968), 196–8. See also Christine Elizabeth King, The Nazi State and the New Religions: Five Case Studies in Non-Conformity (New York and Toronto: The Edwin Mellen Press 1982).
173. Victor W. Rotnem and F. G. Folsom, Jr, ‘Recent Restrictions upon Religious Liberty,’ 36 (1942) American Political Science Review, 1053–68, at 1062.
174. See Henry A. Schweinhaut, ‘The Civil Liberties Section of the Department of Justice,’ 1 (1941) The Bill of Rights Review, 206–17. See also Frank Coleman, ‘Freedom from Fear on the Home Front,’ 29 (1943–4) Iowa Law Review, 415–29; Robert K. Carr, Federal Protection of Civil Rights: Quest for a Sword (Ithaca, NY: Cornell University Press 1947); Victor W. Rotnem, ‘Civil Rights during War: The Role of the Federal Government,’ 29 (1943–4) Iowa Law Review, 409–14; and Rotnem and Folsom, ‘Recent Restrictions upon Religious Liberty,’ 1053–68.
175. American Civil Liberties Union, The Bill of Rights in War (New York: ACLU 1942), 8,34–7; Jehovah’s Witnesses and the War (New York: ACLU 1943), 17.
176. American Civil Liberties Union, Jehovah’s Witnesses and the War, 30.
177. Stroup, The Jehovah’s Witnesses, 25–6.
178. M. J. Penton, Apocalypse Delayed (Toronto: University of Toronto Press 1985), 79.
179. RCMP Papers, 15 July 1940, Monthly Intelligence Bulletin.
180. Ibid, S. T. Wood to W. Stuart Edwards, 24 June 1940.
181. Department of Justice Papers, S. T. Wood to W. Stuart Edwards, 28 June 1940.
182. Jehovah’s Witness Yearbook, 1940, 131.
183. Carolyn Cox, ‘J. L. Cohen Has a Philosophy,’ Saturday Night, 26 June 1943, 2.
184. David Croll Interview, 2 November 1987.
185. Cohen Papers, Vol. 19, File 2799, Watch Tower Bible and Tract Society (Canadian Branch) to J. L. Cohen, 15 June 1940.
186. See Debates, 3 June 1940, 441, and King Papers, Vol. 424, Minutes, Cabinet War Committee, 14 June 1940.
187. SC 1940, c. 13.
188. 1940, 3 & 4 Geo. 6, c. 20 (U.K.).
189. W. Ivor Jennings, ‘Emergency Legislation,’ Annual Survey of English Law (London: Sweet & Maxwell 1943), 10–41, at 12.
190. Leslie Roberts, The Chief (Toronto: Clarke Irwin 1963), 68.
191. PC 6124, 29 October 1940. See also Lapointe Papers, Vol. 24, File 84.
192. Conrad Black, Duplessis (Toronto: McClelland and Stewart 1977), 185.
193. Roberts, The Chief, 69.
194. PC 2667, 20 June 1940. See Judith Roberts-Moore, ‘The Office of the Custodian of Enemy Property: An Overview of the Office and Its Records, 1920–1952,’ 22 (1986) Archivaria, 95–106.
195. See, for example, the reports in The Ottawa Citizen, 15 June 1939, and The Montreal Gazette, 1 July 1939.
196. 1851, 14 & 15 Vict., c. 175 (Province of Canada).
197. See B. K. Sandwell, ‘Why French Canada Hates Witnesses of Jehovah,’ Saturday Night, 28 December 1946, 6.
198. Lapointe Papers, Vol. 34, File 1939–41, Témoins de Jéhovah.
199. Ibid, Trudeau to E. Lapointe, 29 April 1940. On the operations of the Office of the Press Censor see Wilfrid Eggleston, ‘Press Censorship,’ 7 (1941) The Canadian Journal of Economics and Political Science, 313–23.
200. Lapointe Papers, Vol. 34, File 1939–41, Témoins de Jéhovah, F. Charpentier and W. Eggleston to J. Maurice Bernier, 17 June 1940, and Charpentier and Eggleston to Bernier, 28 June 1940. Bernier was Lapointe’s private secretary. See also W. Eggleston to W. Kaplan, 1 March 1983.
201. Department of Justice Papers, E. Lapointe to S. T. Wood, 31 May 1940.
202. Quebec was not the only source of this pressure. See Globe and Mail, 1 July 1940.
203. Department of Justice Papers, T. J. O’Neill to E. Lapointe, 24 June 1940.
204. L’Action Catholique, 20 June 1940, by Louis-Phillipe Roy.
205. Lapointe Papers, Vol. 34, File 1939–41 Témoins de Jéhovah. Paul Bernier to J. M. Bernier, 27 June 1940. See generally Damien Jasmin, Les Témoins de Jéhovah (Montreal: Les Editions Lumen 1946).
206. J. W. Pickersgill Interview, 25 June 1987.
207. There were some voices, however, that urged restraint. See Lapointe Papers, Vol. 34, File 1939–41, Témoins de Jéhovah, E. J. McMuarry to T. C. Crerar, 19 June 1940. What Mackenzie King thought is hard to say. According to wartime aide J. A. Gibson, King was aware of the Jehovah’s Witnesses and amusedly tolerant of them. He may have been convinced that they had become a civil nuisance and that trouble could be avoided by proscribing them. See J. A. Gibson Interview, 16 February 1989.
208. Cohen Papers, Vol. 19, File 2799, Watch Tower Bible and Tract Society (Canadian Branch) to J. L. Cohen, 3 July 1940.
209. Ibid, J. L. Cohen to Department of Justice, 3 July 1940.
210. Ibid, P. M. Anderson to Cohen, 3 July 1940.
211. Ibid, Cohen to Anderson, 3 July 1940.
212. Ibid, Anderson to Cohen, 4 July 1940.
213. J. W. Pickersgill to W. Kaplan, 17 November 1982.
214. See, for example, Lapointe Papers, Vol. 34, File 1939–41, Témoins de Jéhovah. James H. Gallagher to E. Lapointe, 6 June 1940. Other examples can be found in the Department of Justice Papers.
215. Debates, 4 July 1940, 1319.
216. By PC 2943, 4 July 1940.
217. L’Action Catholique, 5 July 1940, 4; and see Lapointe Papers, Vol. 34, File 1939–41, Témoins de Jéhovah, J. M. Bernier to P. Bernier, 4 July 1940.
218. Lapointe Papers, Vol. 34, File 1939–41, Témoins de Jéhovah, P. Bernier to J. M. Bernier, 8 July 1940, ‘Je n’ai pas besoin d’ajouter, — puisque déjà son Éminence aura Elle-même écrit à Monsieur Lapointe pour lui dire sa satisfaction de l’arrêté ministériel en question, — combien une aussi prompte et aussi heureuse solution mérite nos félicitations et nos remerciements.’
219. See, for example, The Ottawa Citizen, 5 July 1940, The Globe and Mail, 5 July 1940.
220. Ted Noseworthy Interview, 29 October 1982; see The Windsor Star, 9 July 1940.
221. See King Diary, 24 June 1940, 25 June 1940. There is a suggestion in the Debates that the members of the House were aware of Lapointe’s mental state. See Debates, 12 June 1940, 716.
222. J. W. Pickersgill, The Mackenzie King Record, 1939–1944 (Toronto: University of Toronto Press 1960), 103.
223. Jehovah’s Witness Yearbook, 1941, 157.
224. Consolation, 11 October 1944, 3.
225. See J. L. Granatstein, Canada’s War (Toronto: Oxford University Press 1975), 102.
226. See RCMP Papers, ‘Jehovah’s Witnesses’ 6 December 1940 and ‘To All Zone Servants.’
227. Ibid, V. A. M. Kemp to Price Waterhouse, 27 August 1940.
228. Ibid, Memorandum, Department of National Revenue, 10 July 1940, prohibiting all Jehovah’s Witness related material from entering Canada.
229. Ezekiel 3:17–20 was one of the scriptural foundations for this belief.
230. Jehovah’s Witness Papers, Representations to the Minister of Justice, n.d., 11.
231. See Jehovah’s Witness Yearbook, 1943, 145, and Department of Justice Papers, Hayden Covington to L. St Laurent, 11 April 1945.
232. Apparently only one Jehovah’s Witness was interned and he was subsequently released. See Cohen Papers, File 2796, re A. d’A.
233. RCMP Papers, E. V. Bavin to J. Leopold, 31 July 1940.
234. For criticism of Conant see Debates, 25 July 1940, 1925.
235. Cohen Papers, File 2803.
236. OA, RG 4, Series 4-32, no. 843B, 1941, W. M. Martin to H. E. Stone, 18 March 1941. For an account of legal actions against Jehovah’s Witnesses in New Brunswick see Cohen Papers, Vol. 19, File 2799, Résumé of New Brunswick Interference. For an account of an arrest in Saskatchewan see ibid, Re: D. I have made an effort, except where information about individuals is already publicly available, such as in contemporary newspaper accounts, to avoid identifying any accused persons.
237. The first charge against a Jehovah’s Witness in British Columbia was laid on 13 July 1940. The accused was a ‘cripple’ named Fred Sallis of Courtenay, BC. In Ontario the first charges laid against Jehovah’s Witnesses were laid the day after the ban came into effect. See R. v. Bottomley, R. v. Moore, (unreported), OA, RG 4, Series 4-32, no. 843-1941. See also Transcript of Evidence, 23 September 1940, OA, RG 4, Series 4-32, no. 843-1941; Allin F. Annis to W. M. Martin, 1 October 1940; Allin F. Annis to Attorney General’s Department, 11 February 1941.
238. For details about how the various offences were set out in the originating documents, see W. M. Martin to H. R. Deyman, 22 November 1940, OA, RG 4, Series 4-32, no. 508B, 1940.
239. Not everyone saw it this way. See W. M. Martin to J. Pike, 1 October 1940, OA, RG 4, Series 4-32, no. 508B, 1940. For his part, Attorney General Conant submitted many suggestions for strengthening the regulations to authorities in Ottawa. See OA, RG 4, Series 4-32, no. 843B, 1941, W. M. Martin to V. A. M. Kemp, 12 May 1941.
240. A copy may be found in Cohen Papers, Vol. 21, File 2812.
241. Advice for Kingdom Publishers, 4.
242. F. A. Brewin, ‘Civil Liberties in Canada during Wartime,’ 1 (1940–1) Bill of Rights Review, 112–21,117.
243. Jehovah’s Witness Yearbook, 1942, 158–9; see also Cohen Papers, Vol. 32, File 2931, undated bulletin to ‘The Companies from the Theocracy.’ ‘We require a complete record of the persecutions of the Lord’s people.’
244. Jehovah’s Witness Yearbook, 1979, 138.
245. How many of them were Jehovah’s Witnesses is impossible to determine. See OA, RG 4, Series 4-32, no. 940, 1944, V. A. M. Kemp to L. H. Phillips, 1 June 1944.
246. See for example, RCMP Papers, Report, 15 June 1940, Division File 40-A-269-E431, which refers to a man being prosecuted for saying that he thought Germany would soon win the war, and G. D. Conant to H. B. Johnson, 16 October 1940, giving permission to prosecute, in OA, RG 4, Series 4-32, no. 508B, 1940. For examples of some cases see OA, RG 4, Series 4-32, file 843A and File 508(1).
247. Department of Justice Papers, S. T. Wood to W. H. Stringer, 9 October 1940.
248. Jehovah’s Witness Yearbook, 1942, 158.
249. Ibid.
250. OA, RG 4, Series 4-32, no. 508B, 1940, W. S. Maguire to G. D. Conant, 14 November 1940, and C. L. Snyder to W. S. Maguire, 15 November 1940.
251. RCMP Papers, Report from Cobourg, 3 July 1941.
252. See OA, RG 4, Series 4-32, no. 843A, 1941, OPP Report, re T. P., 17 July 1941, H. B. Johnson to H. H. Bull, 15 August 1941, and H. H. Bull to H. B. Johnson, 18 August 1941. See also Frank Hammond to Attorney General, 19 June 1941.
253. The End of Nazism (n.p.: n.d. [c. September 1940]), 17.
254. Ibid, 30.
255. Ibid, 14.
256. Ibid, 32.
257. See generally OA, RG 4, Series 4-32, no. 843-1941 and no. 843A, 1941, and see OA, RG 4, Series 4-43, no. 508B, 1940, for details on some of these cases. And see Jehovah’s Witness Yearbook, 1941, 156–7; The Globe and Mail, 18 November 1940, Vancouver Daily Province, 19 November 1940, and RCMP Papers, ‘newspaper articles.’ See also RCMP Papers, R. R. Tait to OC, J Division, 28 November 1940, R. R. Tait to OC, All Divisions, 29 November 1940; OA, RG 4, Series 4-32, no. 508B, 1940, W. M. Martin to W. E. Kelly, 22 November 1940.
258. Jehovah’s Witnesses in the Divine Purpose, 1959, 158.
259. RCMP Papers, C. D. LaNauze to All Detachments, 9 December 1940.
260. OA, RG 4, Series 4-32, no. 843B, 1941, E. D. Wilkins to W. M. Martin, 7 January 1941.
261. RCMP Papers, S. T. Wood to Deputy Minister of Justice, 10 July 1940.
262. Department of Justice Papers, F. M. Martin to W. Stuart Edwards, 8 January 1941; Edwards to Martin, 9 January 1941; Martin to Edwards, 11 January 1941; and Edwards to Martin, 13 January 1941. See also OA, RG 4, Series 4-32, no. 843B, 1941, and Department of Justice Paper, E. H. Coleman to Department of Justice, 10 January 1941.
263. Department of Justice Papers contain details of the agreement reached between Hayden Covington and the custodian of enemy property, including W. C. MacDonald to L. Desilets, 14 August 1940, and Covington to Secretary of State, 23 November 1943. PC 289, 17 January 1941, and PC 582, 29 January 1941, were the orders that banned the corporate groups.
264. See RCMP Papers, Vol. 6. For more information about subsequent prosecutions of the Jehovah’s Witnesses and some of the ongoing legal problems raised, see OA, RG 2, 1941, 4-32, no. 850, ‘Proposed amendment to the Defence of Canada Regulations,’ 1 March 1941.
265. 1941 Annual RCMP Report, 15.
266. S. T. Wood, ‘Tools for Treachery,’ 2 (1941) The Canadian Spokesman, 1–6.
267. RCMP Papers, E. Swailes to H. Division, 19 December 1940. Other mass deliveries of Witness material, although not on the same scale, took place on 15 and 16 December 1940 and then again in early January. See Daily Province, 3 January 1941.
268. The Globe and Mail, 12 December 1940. See also ibid, 14 December 1940.
269. Department of Justice Papers, W. Stuart Edwards to G. Hansell, 4 August 1941.
270. RCMP Papers, E. H. Perlson to OC All Divisions, 17 February 1941.
271. Ibid, J. Fossum to OC, Regina, 24 March 1941.
272. Ibid, H. F. Price to Vancouver, CIB, 8 April 1941.
273. See CSIS Papers, 15 December 1942, RCMP Monthly Intelligence Review.
274. This situation was simply unfair, and in late November 1940 one of the prime minister’s advisers, J. W. Pickersgill, told King as much. See King Papers, Vol. 355, File 3815, Memorandum for the Prime Minister, Re: Defence of Canada Regulations, 23 November 1940.
275. Debates, 16 July 1940, 1645–6. See also Debates, 25 July 1940, 1937–8; Department of Justice Papers, Hatfield to Minister of Justice, 23 July 1940; A. W. Neill to P. M. Anderson, 5 May 1941; P. M. Anderson to A. W. Neill, 6 May 1941.
276. See, for example, Department of Justice Papers, W. Stuart Edwards to N. A. Robertson, 22 July 1941.
277. J. W. Pickersgill Interview, 25 June 1987.
278. Prior to announcing the appointment of the special committee King had a memorandum prepared discussing the Defence of Canada Regulations and the various concerns that had been expressed in regard to them. See King Papers, Vol. 355, Defence of Canada Regulations.
279. Cohen Papers, Vol. 19, File 2799, Submission to the Committee on the Defence of Canada Regulations, 8 July 1940. There was some earlier correspondence, which can be found in NAC, Special Committee on the Defence of Canada Regulations, RG 14, Acc. 84-5/384, Box 2, File 53.
280. Cohen Papers, Vol. 19, File 2799, Submission to the Committee on the Defence of Canada Regulations, 8 July 1940. The following section is drawn from these representations. See also NAC, Special Committee on the Defence of Canada Regulations, RG 14, Acc. 84-5/384, Box 2, File 53, E. J. McMurray to Special Committee, 15 June 1940, 19 June 1940; B. S. Keirstead to A. L. Burgess 6 July 1940; and R. B. Hanson to A. J. Brooks, 4 July 1940.
281. It later turned out that they were not given full access to Department of Justice files. See Debates, 27 February 1941, 1069.
282. For what appears to have been a proposed, but not implemented, change, see NAC, RG 14, Special Committee on the Defence of Canada Regulations, Acc. 84-5/384. Box 3, File 79, Internment and Parole Order.
283. See B. K. Sandwell, ‘Democracy Defends Itself,’ Saturday Night, 13 July 1940, 3.
284. See J. L. Cohen, ‘Is Canada Setting up a Gestapo?’ Saturday Night, 23 November 1940, 12–13.
285. Ibid and see Re Sullivan, [1941] OR 417, aff’d [1942] 2 DLR 799 (CA); Canadian Forum, June 1941, 73.
286. See PC 4750, 12 September 1940, which brought the Defence of Canada Regulations 1940 Consolidation into effect as of 16 September 1940. Consolidations were also brought out in 1941 and 1942.
287. NAC, RG 36/31, Vol. 24, Office of Public Information, Release, 10 August 1940.
288. Ibid.
289. The Ottawa Citizen, 10 August 1940.
290. See Debates, 27 February 1941.
291. See, however, B. K. Sandwell, ‘The Growing Sense of Insecurity,’ Saturday Night, 9 November 1940, 6.
292. Debates, 27 February 1941, 1067.
293. A. E. Smith, All My Life (Toronto: Progress Books 1977).
294. Cited in Granatstein, Canada’s War, 106.
295. The importance of this support was not lost on Lapointe or the country. Whenever the cardinal said anything in support of the war, Lapointe made sure that it received wide press. The speech or sermon would be translated and, through the censorship authorities, sent to newspapers across the country. See Lapointe Papers, Vol. 22, File 71A, for a representative example. See also Maurice A. Pope, Soldiers and Politicians (Toronto: University of Toronto Press 1962), 172.
296. Black, Duplessis, 233.
297. Ibid, 239.
298. Paul Bychok, ‘“La muraille qui vous protège”: Ernest Lapointe and French Canada, 1935–1941,’ MA Thesis, Queen’s University 1984, 258.
299. Black, Duplessis, 240.
300. See Lapointe Papers, Vol. 35, File 163, Villeneuve.
301. Black, Duplessis, 245; note 27, at 718.
302. King Papers, Vol. 246, File 2529, L. St Laurent to W. L. M. King 6 January 1943; Debates, 22 February 1943, 630–1.
303. King Papers, Vol. 245, File 2528, Cardinal Villeneuve to L. St Laurent, 7 November 1942.
304. J. W. Pickersgill and D. F. Foster, The Mackenzie King Record, II (Toronto: University of Toronto Press 1968), 68. See also King Papers, Vol. 246, File 2527, Cardinal Villeneuve to L. St Laurent, 7 November 1942.
305. Jehovah’s Witness Yearbook, 1945, 116.
306. Ibid.
307. Lapointe Papers, Vol. 34, File 1939–41, Témoins de Jéhovah, S. T. Wood to J. M. Bernier, 10 October 1941; see also E. Lapointe to H. R. Fleming, 10 October 1941.
308. See RCMP Papers, report undated, [c. 1941].
309. Cohen Papers, Vol. 32, File 2931, Memorandum for Mr Cohen, 14 April 1942.
310. Debates, 29 November, 1941, 532.
311. On this issue see Ann Gomer Sunahara, The Politics of Racism (Toronto: James Lorimer & Co. 1981) and Ken Adachi, The Enemy That Never Was (Toronto: McClelland & Stewart 1976); ‘Democracy Betrayed: Submission to the Federal Government by the National Association of Japanese Canadians,’ 54 (February 1985) Rights and Freedoms, 1–11. The received version has been criticized. See J. L. Granatstein and Gregory A. Johnson, ‘The Evacuation of the Japanese Canadians, 1942: A Realist Critique of the Received Version,’ unpublished Paper, 1987.
312. ‘Democracy Betrayed,’ 8.
313. Forrest E. LaViolette, The Canadian Japanese and World War Two (Toronto: University of Toronto Press 1948), note 16, 153–4. And see also Forrest E. LaViolette, The Japanese Canadians (Toronto: Canadian Institute of International Affairs 1945).
314. On the work of the committee during this period see King Papers, Vol. 352, File 3798, World War Two Civil Liberties, Memorandum of Representations by the Civil Liberties Association of Toronto to the Prime Minister of Canada and Summary Meeting of Members of the Government with a Delegation from the Civil Liberties Association of Toronto, February 20, 1942 in the Prime Minister’s Office in the East Block, at 11 a.m.; Debates, 4 May 1942, 2080ff; J. W. Pickersgill, The Mackenzie King Record 1939–1944 (Toronto: University of Toronto Press 1960), 354–5.
315. NAC, Special Committee on the Defence of Canada Regulations, RG 14, Acc. 84-5/384, Box 1, File 31, Charles Morrell to J. E. Michaud, 6 June 1942; NAC, RG 14, Acc. 84-5/384, Box 2, File 55, J. E. Michaud to C. Morrell, 18 June 1942.
316. Ibid, File 29, ‘Jehovah’s Witnesses,’ n.d.
317. Ibid, 2.
318. Ibid, 1–2.
319. See Debates, 16 July 1940, 1756.
320. NAC, Special Committee on the Defence of Canada Regulations, RG 14, Acc. 84-5/384, Box 4, File 101, Minutes of Evidence, No. 6; Jehovah’s Witnesses Yearbook, 1979, 138.
321. Representations to the Select Committee of the House of Commons on the Defence of Canada Regulations respecting Jehovah’s Witnesses, Watch Tower Bible & Tract Society, International Bible Students Association, Watch Tower Bible Tract Society, Inc., June 1942. A copy may be found in NAC, Special Committee on the Defence of Canada Regulations, RG 14, Acc. 84-5/384, Box 1, File 33.
322. See, for example, NAC, Special Committee on the Defence of Canada Regulations, RG 14, Acc. 84-5/384, Box 4, File 101, Minutes of Evidence, No. 6, AA-3; and ibid.
323. Representations to the Select Committee of the House of Commons on the Defence of Canada Regulations respecting Jehovah’s Witnesses et al, 10.
324. NAC, RG 14, Acc. 84-5/384, Box 4, File 101, Minutes of Evidence, No. 6, EE-2ff; see also Representations to the Select Committee of the House of Commons on the Defence of Canada Regulations respecting Jehovah’s Witnesses et al, 18.
325. Jehovah’s Witness Yearbook, 1943, 150.
326. NAC, MG 30, A94, Vol. 20, File 2807, Representations to the Select Committee of the House of Commons on the Defence of Canada Regulations, June 1942.
327. Debates, 3 June 1942, 3015.
328. Ibid, 23 July 1942, 4578.
329. Votes and Proceedings of the House of Commons, 23 July 1942, 595–6.
330. The special committee also recommended that another committee be established to continue the review of the Defence of Canada Regulations in the next session of Parliament. Votes and Proceedings of the House of Commons, 23 July 1942, 595–6.
331. King Diary, 25 July 1942.
332. Ramsay Cook, ‘Canadian Liberalism in Wartime: A Study of the Defence of Canada Regulations and Some Canadian Attitudes to Civil Liberties in Wartime 1939–1945,’ MA thesis, Queen’s University, 1955, 232–3; Lester H. Phillips, ‘Canada’s Internal Security,’ 12 (1946) Canadian Journal of Economics and Political Science, 18–29,26.
333. See, for example, Department of Justice Papers, R. L. Cadiz to Deputy Minister of Justice, 21 September 1942.
334. Ibid, F. P. Varcoe to S. T. Wood, 8 December 1942.
335. King Papers, Vol. 42, File, Topical Chronology of War Effort, Internal Security and Public Welfare.
336. PC 1266, 15 February 1943.
337. The Defence of Canada Regulations were also amended at this time to provide that it was no longer an offence to be an officer or member of an illegal organization. Now it was an offence to act as an officer or member. The amendment responded to criticisms that the regulations were retroactive and therefore unfair. See Debates, 15 July 1943, 4861; 21 July 1943, 5202.
338. Jehovah’s Witness Yearbook, 1944, 150.
339. The Winnipeg Free Press, 23 July 1943.
340. Debates, 21 July 1943, 5204.
341. Ibid.
342. Ibid.
343. RCMP Papers, F. J. Mead to OC All Divisions, 8 May 1943; see also Report, 20 August 1943.
344. National Archives (U.S.), Department of State Papers, NND, File 342.1163, Covington to Department of State, 14 February 1941.
345. Ibid, P. Moffat to Secretary of State, 18 March 1941.
346. One report noted that a Canadian official volunteered that J. L. Cohen represented ‘all Communists in Canada.’ National Archives (U.S.), Department of State Papers, NND, File 342.1163, P. Moffat to Secretary of State, 20 June 1941.
347. In fact the American position about assisting American Jehovah’s Witnesses and their property interests in foreign countries was straightforward: ‘Recognizing their organization as an American corporation holding property in foreign lands, the Department of State directed that efforts be expended only to protect the property rights of the Jehovah’s Witnesses in other countries. The United States has refused to give them any help in getting repeals of prohibitions in the entry and distribution of their literature which are applied under existing laws. Our representatives have also refused to intervene to prevent the deportation of a Witness who was an American citizen working abroad. Our legations, consulates and embassies have given much time and care to protecting the physical property of the Witnesses and of handling its disposition when the organization was banned.’ National Archives, RG 59, Department of State Papers, File 800.20211, Memorandum, 10 June 1943.
348. Debates, 22 February 1943, 611ff.
349. Ibid, 616.
350. Ibid, 631. See also ibid, 23 May 1943, 2937; 21 June 1943, 3827.
351. Debates, 22 February 1943, 630.
352. The Globe and Mail, 24 February 1943.
353. The records are not complete, but from those available it appears that St Laurent’s practice was to refer complaints by MPS and the public about the Defence of Canada Regulations directly to the RCMP. See, for example, RCMP Papers, S. T. Wood to L. St Laurent, 3 March 1943.
354. RCMP Papers, S. T. Wood to L. St Laurent, 18 March 1943.
355. Ibid, S. T. Wood to DCI, 16 July 1943; RCMP Papers, F. J. Mead to OC All Divisions, 15 July 1943.
356. Debates, 13 June 1940, 748. The regulation provided: ‘Every printed newspaper, pamphlet, circular, handbill, dodger, or other like document having reference to or containing any comment on a political, social or religious question, shall bear upon it printed in a conspicuous place and in legible characters the name of an existing natural person.’
357. Debates, 15 July 1943, 4853.
358. A collection of newspaper clippings about the debate can be found in the RCMP Papers.
359. For press reaction see The Globe and Mail, editorial, 24 February 1943.
360. Debates, 15 July 1943, 4861.
361. Ibid, 4861–2.
362. Ibid, 21 July 1943, 5199.
363. Ibid, 5202.
364. The Globe and Mail, 23 July 1943. See also Consolation, 15 March 1944, 14; Debates, 21 July 1943, 5205.
365. The Calgary Herald, 14 August 1943.
366. Debates, 21 July 1943, 5210–14.
367. Ibid, 5215.
368. Department of Justice Papers, R. B. Hanson to P. M. Anderson, 27 July 1943.
369. The letter continued: ‘In fact, I recollect that when discussing the matter at that time with the late Right Hon. Mr. Lapointe, when the religious angle was referred to and it was suggested that he would be blamed for recommending the banning of the organization as he was a Roman Catholic, he stated, in effect, that this was unfortunate but, from the information available he felt that he was bound to perform his duty in the interest of the safety of the state, notwithstanding that his action might be so misinterpreted.’ Department of Justice Papers, P. M. Anderson to R. B. Hanson, 3 August 1943.
370. See Consolation, 15 March 1944, for a detailed review, from the Jehovah’s Witnesses' perspective, of the events leading to and following the ban.
371. 319 U.S. 624 (1943).
372. (1943), 67 CLR 116 (hereafter Adelaide).
373. For general information about the Jehovah’s Witnesses in Australia see Tess Van Summers, Religions in Australia (Adelaide: Rigby Limited 1966), 87–93.
374. Geoffrey Sawer, Australian Federal Politics and Law, 1929–1949 (Carlton, Victoria: Melbourne University Press 1974), 105.
375. Ibid, 112–49.
376. The Ottawa Citizen, 29 July 1940.
377. NAC, RG 25, Vol. 2911, File 102, FP-40, High Commissioner for Canada in Australia to Secretary of State for External Affairs, 13 July 1940.
378. Cited in National Archives (U.S.), Department of State Papers, File 847.404/3, Erle R. Dickover to Secretary of State, 5 February 1941. On Hughes, see L. F. Fitzhardinge, The Little Digger, 1914–1952 (Sydney, Australia: Angus & Robertson Publishers 1979).
379. Cited in National Archives (U.S.), Department of State Papers, File 847.404/3, Erle R. Dickover to Secretary of State, 5 February 1941.
380. Ibid.
381. National Archives (U.S.), RG 59, Department of State Papers, File 800.20211, H. Freeman Matthews to Secretary of State, 20 May 1942.
382. Commonwealth of Australia Constitution Act, 1900, 63 & 64 Vict., c. 12, S. 116. See generally Enid Campbell, ‘Civil Rights and the Australian Constitutional Tradition,’ in Carl Beck, ed., Law and Justice (Durham, NC: Duke University Press 1970), 295–322.
383. Sawer, Australian Federal Politics and Law, 1929–1949, 153.
384. Adelaide, 126.
385. Ibid.
386. Ibid, 129.
387. Ibid, 131.
388. Ibid.
389. Ibid, 155.
390. Ibid, 154.
391. Ibid, 150.
392. 1945 Jehovah’s Witness Yearbook, 1945, citing the judgment of Justice Brennan. The case does not appear to have been reported.
393. Sawer, Australian Federal Politics and Law, 1929–1949, 154.
394. Alastair Davidson, The Communist Party of Australia (Stanford: Hoover Institution Press 1969), 81.
395. Also removed from the proscribed list was Technocracy Inc., and a number of Finnish and Ukrainian communist groups.
396. RCMP Papers, S. T. Wood to Deputy Minister of Justice, 26 October 1943.
397. Department of Justice Papers, ‘Memorandum for The Hon. The Prime Minister of Canada,’ undated; Cohen Papers, Vol. 37, File 3084, Representation to the Minister of Justice on Behalf of the Watch Tower Bible and Tract Society, the Watch Tower Bible & Tract Society Inc. and the International Bible Students Association (Canada).
398. Jehovah’s Witness Yearbook, 1944, 117.
399. For the details of the disposition of the property following the ban and the case made in November 1943 for its return, see Department of Justice Papers, Hayden Covington to Secretary of State, 23 November 1943.
400. National Archives (U.S.), Department of State Papers, NND, File 342.1163, Covington to Secretary of State, 3 January 1944.
401. Ibid, Lewis Clark to Secretary of State, 19 January 1944, Letter No. 584.
402. Ibid.
403. See Department of Justice Papers, Nathan Knorr to W. L. M. King, 1 December 1943, and F. P. Varcoe to Knorr, 9 December 1943. A reply to the same effect was given to a similar request from J. L. Cohen. RCMP Papers, J. L. Cohen to P. M. Anderson, 20 May 1944.
404. RCMP Papers, P. M. Anderson to Inspector J. Leopold, 18 May 1944.
405. RCMP Papers, J. Leopold to P. M. Anderson, undated. For his part, the assistant deputy custodian of enemy property, with responsibility for Witness affairs, had no desire to exercise what discretion he had in favour of the group. His door-bell rang one day in early 1944 and, a confidential memorandum prepared for the secretary of state at the American Embassy in Ottawa reported, he was given ‘a long spiel with phonographic accompaniment, of a very repugnant and subversive nature.’ National Archives (U.S.), Department of State Papers, NND, File 342.1163, O. B. North to Secretary of State, 8 February 1944.
406. Jehovah’s Witness Yearbook, 1946, 102.
407. Ibid. See also Department of Justice Papers, Hayden Covington to L. St Laurent, 11 April 1945.
408. Cohen Papers, Vol. 37, File 3084, Representations to the Minister of Justice on Behalf of the Watch Tower Bible and Tract Society, The Watch Tower Bible & Tract Society Inc. and the International Bible Students Association (Canada).
409. Department of Justice Papers, ‘Memorandum for The Hon. The Prime Minister of Canada,’ undated.
410. For the Jehovah’s Witnesses' account of these events, see Consolation, 11 October 1944. The petition drive was seen, by the Jehovah’s Witnesses, as yet another example of God’s divine plan. ‘Though the signatures were not used for their original purpose, yet it was a pleasure for the publishers to call back on these persons and acquaint them with the good news of the ban’s removal, and stimulate their interest in the Theocratic message. Jehovah thus granted another victory to His chosen people.’ Jehovah’s Witness Yearbook, 1945, 119.
411. PC 4476, 13 June 1944; Jehovah’s Witness Yearbook, 1944, 119.
412. Consolation, 11 October 1944, 7.
413. The Montreal Gazette, 1 August 1944.
414. The Winnipeg Tribune, 10 August 1944, 12 August 1944; The Winnipeg Free Press, 10 August 1944, 11 August 1944, 12 August 1944.
415. See RCMP Papers, V. A. H. Kemp to OC D Division, 8 July 1944.
416. Jehovah’s Witness Yearbook, 1946, 102.
417. The Edmonton Bulletin, 11 August 1944.
418. Department of Justice Papers, S. T. Wood, 5 September 1944.
419. See OA, Attorney General Papers, RG 4, File 4-02, 16.1.
420. Jehovah’s Witness Papers, Writ of Summons, 12 April 1945, Statement of Claim, 11 April 1945.
421. Ibid, Notice of Motion, 23 April 1945. For information on Conant’s appointment as master, see OA, RG 3, Box 420. See also J. M. Ferron, ‘The Masters,’ Vol. 22, No. 9 (1988) Law Society of Upper Canada Gazette 323–65,349.
422. Watch Tower Bible and Tract Society Et Al v. A. G. Canada, [1945] OWN 537.
423. King Papers, Vol. 284, File 2967, Memo for the PM, 13 April 1945.
424. RCMP Papers, S. T. Wood to Deputy Minister of Justice, 21 May 1945.
425. Ibid, Memorandum from the Deputy Minister of National Revenue, Customs & Excise, 15 May 1945.
426. PC 3635.
427. Jehovah’s Witness Yearbook, 1946, 102.
428. PC 4136.
429. PC 5637, 16 August 1945; PC 5972, 14 September 1945; see also Law and Order in Canadian Democracy (Ottawa: King’s Printer 1949), 123.
430. See Neil McKenty, Mitch Hepburn (Toronto: McClelland & Stewart 1967), 167, 76ff.
431. Cited in Robert Bothwell, A Short History of Ontario (Edmonton: Hurtig Publishers 1986), 141.
432. T. T. Shields, ‘The Hepburn Government’s Betrayal of Its Public Trust by Diverting Public School Revenue to the Support of Roman Catholic Separate Schools,’ Jarvis Street Baptist Church, 14 April 1936.
433. J. Campbell, ‘The Regulations of the Department of Education Concerning Religious Instruction in the Public Schools of Ontario,’ (September 1939) Canadian School Journal, 316–17.
434. See the Department of Education Act, RSO 1937, c. 356, S. 4; the Public Schools Act, RSO 1937, c. 357, SS. 1,2,7,89,103; General Regulations, Public and Separate Schools, 1939, SS. 6(2),7(2),8,13,14; High Schools Act, RSO 1937, c. 360, SS. 1,8,24; The Regulations of the High Schools and Collegiate Institutes, 1939, SS. 9,10,11,12. On 20 June 1940 The Regulations of the High Schools and Collegiate Institutes, 1939, were amended to add to section 11 the following subsection: ‘(3) In every High and Vocational School, the singing of the National Anthem as authorized by the Department shall form part of the daily opening or closing exercises.’
435. Joseph F. Rutherford, Loyalty (New York: Watch Tower Bible and Tract Society 1935), 16–17; see also The Baltimore Evening Sun, 28 September 1935.
436. See William G. Fennell, Compulsory Flag Salute in Schools (New York: Committee on Academic Freedom, American Civil Liberties Union 1938); Leonard A. Stevens, Salute! (New York: Coward, McCann & Geoghegan Inc. 1973); ‘The Flag Salute,’ 32 (1943) Journal of the National Educational Association, 264–6. There is some question about how much understanding public-school students had of both the pledge and the salute. See Herbert T. Olander, ‘Children’s Knowledge of the Flag Salute,’ 35 (1941) Journal of Educational Research, 300–5.
437. OA, RG 4, 4-32, 1940, no. 508(2), C. R. Magone to N. E. Bye, 10 June 1940. See also D. McArthur to Lillico & Macpherson, 30 May 1940.
438. The Ottawa Citizen, 14 May 1940.
439. RCMP Papers, Report by K. M. Lockwood, 3 June 1940.
440. OA, RG 4, 4-32, 1940, no. 508(2), C. R. Magone to H. B. Johnson. See also Magone to P. C. Ibbetson, 29 May 1940: ‘my judgment would be to allow the incident to close so that the public would not become hysterical over something that is really not serious. I suppose these people are more pacifistic than disloyal, and dragging them into the Police Court is certainly not going to improve their loyalty’; and Canadian Forum, July 1940, 103.
441. The Toronto Daily Star, 26 November 1940.
442. Jehovah’s Witness Papers, ‘Facts on Hamilton Case.’
443. Minutes of the Internal Management Committee of the Hamilton Board of Education, 6 June 1940.
444. OA, RG 4, 4-32, 1940, no. 508(2), R. W. Treleaven to G. D. Conant, 12 June 1940.
445. Minutes of the Internal Management Committee, 4 July 1940.
446. There is a hint in the Conant Papers that he was not pleased with the strict line being taken in Hamilton and that an effort was made to try to talk the local authorities out of their super-vigilant attitude. OA, RG 4, 4-32, 1940, no. 508(2), W. M. Martin to Attorney General, 23 October 1940.
447. Minutes of the Internal Management Committee, 4 July 1940. The minutes also indicate that secondary schools were initially to be covered as well, but were, at some point, struck out.
448. Ibid, 11 July 1940.
449. Ibid.
450. Cohen Papers, Vol. 22, File 2823, ‘To the Chairman of the Board of Education’ (undated).
451. Ibid, Vol. 19, File 2799, Principal D. Morrow to Anthony Hafner, 9 September 1940.
452. Ibid, Vol. 22, File 2823. See, for example, letter to the Principal of Adelaide Hoodless School, 27 July 1940.
453. Ibid, R. J. Wright to Harvey Ellison, 9 September 1940.
454. And for taking this step Hepburn was severely criticized in the Hamilton press. See, for example, The Hamilton Review, 20 September 1940.
455. Jehovah’s Witness Papers, ‘Facts on Hamilton Case.’
456. The Globe and Mail, 1 October 1940.
457. Ibid, 21 September 1940.
458. Jehovah’s Witness Papers, W. O. Morrow to Peter Gabla, 10 September 1940.
459. The Hamilton Spectator, 4 October 1940. ‘Heavy fines, jail terms or internment’ was the solution this newspaper recommended for Witness parents. For the children, reform schools were the answer because it was important that they be educated.
460. Ibid, 8 October 1940.
461. Minutes of the Internal Management Committee, 3 October 1940; Minutes of the Hamilton Board of Education, 3 October 1940.
462. Minutes of the Internal Management Committee, 7 November 1940.
463. Cohen Papers, Vol. 22, File 2823, R. v. Ellison, Reasons for Decision, (unreported), 6 January 1941, 1, hereinafter R. v. Ellison (Decision).
464. The Globe and Mail, 5 October 1940.
465. The Hamilton Spectator, 15 October 1940.
466. The Globe and Mail, 19 September 1940; see also editorial 21 September 1940.
467. The Hamilton Spectator, 11 October 1940.
468. Ibid.
469. Ibid, 9 October 1940.
470. Jehovah’s Witness Papers, Newspaper Scrapbook, October 1940.
471. R. v. Ellison (Decision), 13.
472. See, for example, Cohen Papers, Vol. 22, File 2803, E. J. Ellison to Dr Whitelock, 14 October 1940.
473. Ibid, Vol. 22, File 2823, W. R. Rollo to Mr and Mrs Ellison, 26 October 1940.
474. SC 1929, c. 46.
475. Cohen Papers, Vol. 22, File 2823, In the Juvenile Court of the City of Hamilton, 31 October 1940, 9 November 1940, Transcript of R. v. Ellison 6,17, hereinafter R. v. Ellison (Transcript).
476. R. v. Ellison (Transcript), 37.
477. Ibid, 53.
478. Ibid, 74.
479. Ibid.
480. Cohen Papers, Vol. 22, File 2823, Memorandum of Argument on Behalf of the Accused, 2 December 1940.
481. Canadian Forum, November 1940, 241.
482. Cohen Papers, Vol. 22, File 2803, Memorandum of Argument on Behalf of the Accused, 2 December 1940.
483. Ibid, Memorandum of Argument on Behalf of the Complainant.
484. Basically Cohen’s argument was this. Statutes should be given their plain, natural, and grammatical meaning and to do more was legislating not interpreting. In this case, the statute did not require individual participation by every child. Moreover, where a statute was ambiguous, there was, Cohen explained, a general principle of law that the interpretation that avoids penalty to the subject is the one to be preferred. There was, as well, another principle of the law, a presumption against abrogation or interference with the rights of the subject. While not deserving of reply, Cohen put the matter of the Ellisons being Jehovah’s Witnesses back to Walsh. If the government wished to charge them with being members of an illegal organization it had the right to do it. Since it had not, it was wrong for Walsh to ‘charge’ them with such in his legal brief. There the matter stood for Judge Burbidge to decide. Cohen Papers, Vol. 22, File 2803, Reply to Memorandum of Argument on Behalf of the Complainant, 18 December 1940.
485. R. v. Ellison (Decision), 3.
486. Ibid, 4.
487. Ibid, 7.
488. Ibid.
489. M. James Penton, Jehovah’s Witnesses in Canada (Toronto: Macmillan 1976), 142.
490. Ibid.
491. Minutes, Hamilton Board of Education, 6 February 1941.
492. Cohen Papers, Vol. 22, File 2823, J. Cowles to J. L. Cohen, 30 January 1941.
493. See, for example, ibid, Vol. 22, File 2823, T. E. McMurray to F. W. Brown, 4 December 1940.
494. Rex v. C. L., unreported decision, copy in Cohen Papers, Vol. 25, File 2823. See also OA, RG 4, Series 4-32, no. 843, 1941, Re: C. L. and A. L.; The London Daily Press, 12 October 1940, 6 November 1940, 29 November 1940, 5 December 1940; The Globe and Mail, 12 December 1940; C. L. Papers (including judgment and trial transcript); C. L. Interview, 31 May 1987; C. L. to W. Kaplan, undated, 1988.
495. See OA, RG 4, Series 4-32, no. 843, 1941, Re: C. L. and A. L.; and see C. L. Interview, 31 May 1987. The L. parents were not the only ones charged after their children were identified as Jehovah’s Witnesses in schools. See, for example, OA, RG 4, Series 4-32, no. 508B, 1940, W. B. Common to W. P. Clement, 3 October 1940.
496. Canadian Forum, December 1940, 283.
497. Jehovah’s Witness Papers, Newspaper Scrapbook, October 1940. See also R. v. Clark, [1941] 3 WWR 228, rev’d [1941] 4 DLR 299 (Man. CA).
498. F. A. Brewin, ‘Civil Liberties in Canada during Wartime’ (1940–1) Bill of Rights Review 112–18,118; see also RCMP Papers, Memorandum to S/Sgt. Pepper from Inspector A. Drysdale, 4 April 1941.
499. Jehovah’s Witness Papers, Newspaper Scrapbook, October 1940.
500. Grace Lounsbury Interview, 27 August 1983.
501. Arthur Ellison Interview, 10 February 1983.
502. The Globe and Mail, 10 February 1941.
503. Witness parents in Hamilton were ‘oppressed with the heavy expense of running the school’ and were ‘pressing for action.’ Jehovah’s Witness Papers, Memo re J. L., 20 March 1943.
504. Ibid, ‘Facts on Hamilton Case.’
505. Penton, Jehovah’s Witnesses in Canada, 143.
506. R. v. Clark [1941] 3 WWR 228, rev’d [1941] 4 DLR 299 (Man. CA). The applicable regulation of the Department of Education was passed on 23 September 1938.
507. (1943) [1944] 1 DLR 360. The relevant provisions may be found in the Alberta School Act, RSA 1942, c. 175.
508. The School Act was amended to exempt from participation ‘any pupil whose parent or guardian presents to the principal of the school a written statement setting forth he or she is a member of a religious organization whose tenets forbid or are opposed to its members individually saluting the flag.’ SA 1944, c. 46, S. 9.
509. Jehovah’s Witness Papers, Robert Donald to Minister of Education, 5 September 1941; see also OA, RG 3, Hepburn, Public Education, Box 214, Donald to M. Hepburn and D. McArthur, 5 September 1941, and related documents in this file.
510. Jehovah’s Witness Papers, Deputy Minister of Education to R. Donald, 30 September 1941.
511. A. W. Morris to R. Donald, 2 March 1942, cited in Donald v. Hamilton Board of Education (hereafter Donald), [1944] 4 DLR 227, at 229.
512. ‘Patriotic Exercises,’ (September 1944) Canadian School Journal, 363. For an account of the Donald case from the Jehovah’s Witness perspective see Consolation, 7 November 1945, 13–16.
513. A memorandum prepared by Charles Morrell at this time reported that there was some difficulty in getting Cohen to do ‘what we want in the way we want.’ Jehovah’s Witness Papers, Memo re J. L., 20 March 1943.
514. Donald, 227.
515. Ibid, 231.
516. 310 U.S. 586 (1940).
517. The definitive book on the flag-salute cases in the United States is David R. Manwaring’s Render unto Caesar: The Flag-Salute Controversy (Chicago: University of Chicago Press 1962). A good account of the Gobitis case is Alan Barth’s Prophets with Honor (New York: Alfred A. Knopf 1974), 108–30.
518. See for example Nicholls v. Mayor and School Committee of Lynn, 297 Mass. 65, where the court held that the flag-salute had nothing to do with religion. It was, Chief Justice Rugg said, quoting from Matthew 22:21–22, one of those things ‘that are Caesar’s.’
519. The relevant provision of the Fourteenth Amendment said: ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny any person within its jurisdiction the equal protection of the laws.’
520. 24 F. Supp. 271 (Dist. Ct. 1938).
521. 108 F.2d 683 (3rd Cir. 1939).
522. Manwaring, Render unto Caesar, 136.
523. 310 U.S. 586 (1940), 596.
524. Ibid, 602.
525. Ibid, 606.
526. Ibid.
527. Ibid, 607.
528. Victor W. Rotnem and F. G. Folsom, ‘Recent Restrictions upon Religious Liberty,’ 36 (1942) American Political Science Review 1053–68,1063.
529. William Shepard McAnnich, A Catalyst for the Evolution of Constitutional Law: Jehovah’s Witnesses in the Supreme Court, 55 (1987) University of Cincinnati Law Review 997–1077,1019.
530. Leo Pfeffer, The Liberties of an American (Boston: The Beacon Press 1953), 51.
531. Leo Pfeffer, ‘The Legitimation of Marginal Religions in the United States,’ in Irving I. Zaretsky and Mark P. Leone, eds, Religious Movements in Contemporary America (Princeton: Princeton University Press 1974), 9–26, at 19.
532. Ibid, 20.
533. James Joseph Kearney, ‘Supreme Court Abdicates as Nation’s School Board,’ 38 (1940) Catholic Educational Review, 357–60, at 360.
534. 316 U.S. 584 (1942).
535. 319 U.S. 103 (1943).
536. 316 U.S. 584,623–4 (1943).
537. 47 F. Supp. 251 (Dist. Ct. 1942).
538. Ibid, 253–4.
539. 319 U.S. 624, 632 (1943).
540. Ibid, 634.
541. Ibid, 640.
542. Ibid.
543. Ibid, 647.
544. The New York Times, 19 June 1943; John E. Mulder and Marvin Comisky, ‘Jehovah’s Witnesses Mold Constitutional Law,’ 2 (1942) Bill of Rights Review, 262–8. American school-prayer cases parallel, to some extent, the flag-salute cases, and for a discussion of the impact of the former, see Donald R. Reich, ‘The Impact of Judicial Decision Making: The School Prayer Cases,’ in David H. Everson, ed., The Supreme Court as Policy Maker: Three Studies on the Impact of Judicial Decisions (Carbondale, IL: Public Affairs Research Bureau 1972), 44–116. An afterword to this volume canvasses some of the literature on the general subject of compliance with Supreme Court decisions.
545. Donald, 235.
546. Ibid, 235–6.
547. Ibid, 236.
548. Ibid, 235.
549. Ibid, 238.
550. For a comment on the Donald decision, see ‘Schools and Civil Liberties,’ 22 (1944) Canadian Bar Review, 840–2.
551. Jehovah’s Witness Papers, ‘Memorandum of Law.’
552. Donald, [1945] OR 518, at 520–1 (CA), hereafter Donald (CA).
553. Jehovah’s Witness Papers, ‘Memorandum of Law,’ 48.
554. Ibid, 83.
555. Ibid.
556. Donald (CA), 524.
557. Ibid, 523.
558. Ibid, 530.
559. Ibid.
560. Ibid.
561. Jehovah’s Witness Papers, Newspaper Clippings, undated. See also W. Glen How Interview, 4 April 1983.
562. Jehovah’s Witness Papers, Newspaper File, undated clipping entitled ‘Seeking to Appeal the Flag Case.’
563. From time to time the flag-salute controversy would return. See D. Wayne Elhard, ‘The Brooks, Alberta, National Anthem Controversy,’ MA thesis, Baylor University 1976.
564. C. P. Stacey, Arms, Men and Government (Ottawa: Queen’s Printer 1970), 398.
565. Ibid, 399.
566. On the conscription crisis, see J. L. Granatstein, Canada’s War (Toronto: Oxford University Press 1975); Stacey, Arms, Men and Government; J. W. Pickersgill and D. F. Foster, The Mackenzie King Record, II (Toronto: University of Toronto Press 1968); R. Macgregor Dawson, The Conscription Crisis of 1944 (Toronto: University of Toronto Press 1961); J. L. Granatstein and J. M. Hitsman, Broken Promises: A History of Conscription in Canada (Toronto: Copp Clark Pitman 1985). Conscientious objectors were called ‘conchies.’
567. Debates, 11 May 1942, 2334.
568. PC 8800.
569. SC 1917, c. 19, S. 11.
570. ‘Any man,’ section 18 said, ‘who, from the doctrines of his religion is averse to bearing arms or undertaking combatant service, may apply for an order deferring or postponing his military training indefinitely, provided that it is established that such man conscientiously objects to the bearing of arms or the undertaking of combatant service and is prohibited from the bearing of arms or undertaking combatant service by the tenets and articles of faith in effect on the first day of September 1939, or any organized religious denomination to which said man aforesaid, in good faith belongs.’ For interwar concern over the fate of conscientious objectors see NAC, RG 24, Vol. 5953, File HQ 1064-30-67.
571. Stacey, Arms, Men and Government, 416; NAC, RG 25, Vol. 2911, File 102-FP-40, G. R. Benoit to N. A. M. Robertson, 30 July 1942.
572. Much of the following section is drawn from David Fransen, ‘Breaking Down Barriers: Mennonites in Canada during the Second World War,’ Unpublished Paper, 1986, and Thomas P. Socknat, Witness against War (Toronto: University of Toronto Press 1987), 227–58. On the Mennonite experience in the alternative-service camps, see Lawrence Klippenstein, That There Be Peace (Winnipeg: The Manitoba co Reunion Committee 1979).
573. Fransen, ‘Breaking down Barriers,’ 11.
574. NAC, RG 24, Vol. 6573, File HQ-1161-3-4, Press Release, 7 January 1941.
575. See for example NAC, RG 24, Vol. 6573, File HQ-1161-3-4, Memorandum to the Minister, 3 June 1941.
576. Debates, 29 May 1941, 3261.
577. Riding Mountain in Manitoba; Prince Albert in Saskatchewan; Banff and Jasper in Alberta; and Kootenay in British Columbia. In Ontario the conscientious objectors were assigned to a camp north of Sault Ste. Marie. Subsequently, three more camps were established. The first, in July 1942, was temporary. Located in Glacier National Park, it operated for only four months. The other two, established in 1942 at Petawawa, Ontario, and at Seebe, Alberta, were more permanent.
578. PC 2821, 7 April 1943.
579. Debates, 5 June 1944, 3514–15. Conscientious objectors directed to urban employment received a larger amount to compensate for the room and board agricultural workers automatically received. By 30 June 1946 the Red Cross received some $2,347,767.36 from contributions from postponed persons directed to non-camp alternative service. RG 27, Vol. 3058, File 21-25-4-1, Memorandum, G. R. Carroll to A. MacNamara.
580. See NAC, RG 35, Vol. 21, ‘Historical Account of the Wartime Activities of the Alternative Service Branch, Department of Labour,’ 11 April 1946, 19.
581. PC 7251, 16 September 1943.
582. Debates, 14 March 1941, 1551–4.
583. Fransen, ‘Breaking Down Barriers,’ 14; see also Debates, 28 May 1942, 2872.
584. See Arthur Garratt Dorland, The Quakers in Canada: A History (Toronto: The Ryerson Press 1968), 335.
585. Cited in Socknat, Witness against War, 238–40. British Columbia, however, passed legislation which provided that anyone who failed to register under the NRM Act forfeited provincial licences including their driver’s licence and this was clearly a move directed at enforcing Doukhobor compliance with the regulations. Joseph Francis Krauter, ‘Civil Liberties and the Canadian Minorities,’ PhD thesis, University of Illinois 1968, 30–1.
586. See Debates, 3 March 1942, 1007, and also Debates, 28 April 1942, 1961; 2 May 1944, 2561; and 26 May 1944, 3300–1. See also Socknat, Witness against War, 237–8.
587. Department of Justice Papers, L. R. LaFlèche to Deputy Minister of Justice, 18 November 1940. Similarly, the supervisor for recruiting and military training asked W. Stuart Edwards, deputy minister of justice, in early February 1941 how we could say that an organization is a religious denomination or sect under the regulations if such organization was illegal. Supervisor for Recruiting and Military Training to W. Stuart Edwards, 1 February 1941.
588. See ibid, W. Stuart Edwards to L. R. LaFlèche, 19 November 1940; Supervisor of Mobilization to Deputy Minister of Justice, 13 December 1943; Assistant Director of Mobilization to Deputy Minister of Justice, 5 February 1945.
589. See NAC, RG 27, Vol. 992, File 2-101-8-NSS, for some representative transcripts of evidence heard by national war services mobilization Boards, containing sworn testimony of conscientious beliefs of Jehovah’s Witnesses that were, for no apparent reason, summarily dismissed by those boards.
590. NAC, RG 24, Vol. 6573, File HQ-161-3-4(2), Deputy Minister Army to Deputy Minister Department of Labour, 27 August 1943.
591. The Toronto Daily Star, 27 November 1940.
592. NAC, RG 24, Vol. 6573, File HQ-161-3-4(2), Deputy Minister of Army to Deputy Minister of Labour, 27 August 1943. Although for a view that rigid discipline was the best solution, see ibid, ‘Annual Army Estimates, — 1944–45,’ Draft Memorandum, Conscientious Objectors, 26 January 1944.
593. See Department of Defence Papers, e.g., File T.36-10-214A4(b), regarding an incident in 1945 involving several Witness soldiers who were allegedly beaten following their refusal to obey orders. And see Cohen Papers, Vol. 36, File 3158, Re Keith Louis Cook, for an incident alleged to have taken place in London, Ontario, which also resulted in a long inquiry.
594. An attempt was made to count them; see NAC, RG 24, Vol. 6573, File HQ-161-3-4(3), Appendix One. It is not clear whether this table is a cumulative or annual count.
595. Department of Defence Papers, Q. A. Dunlop to HQ, Military District No. 2, 27 July 1945.
596. Debates, 8 May 1944, 2704–5; The Ottawa Journal, 16 May 1944.
597. See NAC, RG 24, Vol. 2199, File 54-27-67-9, pt. 1, ‘Memorandum,’ 15 May 1944.
598. See NAC, RG 24, Vol. 2199, File 54-27-67-9, pt. 1, ‘Proceedings of a Board of Officers,’ 9 May 1944.
599. NAC, RG 24, Vol. 2199, File 54-27-67-9, pt. 1, ‘Memorandum,’ 12 May 1944, but see ‘Memorandum,’ 16 May 1944.
600. Debates, 15 May 1944, 2908.
601. Ibid, 18 May 1944, 3001.
602. PC 4769, 23 June 1944.
603. Debates, 15 May 1944, 2911.
604. Ibid, 2917.
605. Ibid, 2936.
606. NAC, RG 27, Vol. 131, File 601.3-6, Vol. 3, L. E. Westman to H. J. Riley, 13 October 1943.
607. Ibid.
608. See NAC, RG 24, Vol. 2199, File 54-27-67-9, pt. 1, ‘Memorandum,’ 12 May 1944.
609. The figure 300 is given in Mulford Q. Sibley and Philip E. Jacob, Conscription of Conscience: The American State and the Conscientious Objector (Ithaca, NY: Cornell University Press 1952), 9.
610. NAC, RG 27, Vol. 131, File 601.3-6, Vol. 3, H. J. Riley to A. MacNamara, 3 September 1943.
611. Department of Justice Papers, Supervisor of Mobilization to Deputy Minister of Justice, 13 December 1943.
612. Section 13(2) provided: ‘If, upon an application under these regulations for a postponement order the Board is satisfied that the applicant conscientiously objects, by reason of religious training and belief, to war in any form and to participation in combatant military service in which he might be required to take human life, the Board shall grant him an order postponing his military training until further notice.’ See NAC, RG 27, Vol. 131, File 601.3-6, Vol. 3, A. MacNamara to F. P. Varcoe, 14 December 1943.
613. Department of Justice Papers, A. MacNamara to F. P. Varcoe, 14 December 1943.
614. NAC, RG 27, Vol. 131, File 601.3-6, Vol. 3, Paul Martin to A. MacNamara, 17 December 1943.
615. Department of Justice Papers, F. P. Varcoe to Deputy Minister of Labour, 29 December 1943, and see Memorandum, F. P. V. to P. M. Anderson, 27 December 1943.
616. NAC, RG 27, Vol. 131, File 601.3-6, Vol. 3, A. MacNamara to Deputy Minister of Defence, 8 September 1943. A draft memorandum in the Defence Department Papers, however, indicates that as late as January 1944 conscientious objectors in the military were given sentences of military detention instead of being referred back to their mobilization boards for a rehearing and postponement. There was at least one case that held that a Jehovah’s Witness who was postponed as a conscientious objector on trial for failure to report for alternative service could not advance the defence that he was a minister. A privative clause in the National Selective Service Mobilization Regulations precluded court review. See R. ex rel. Sewell v. Morrell, (1944), 82 CCC 121 (Ont. HC). Although by PC 4600, 1943, as amended by PC 6713, 1944, there was an option given to the courts to give leave to review in exceptional cases. A handful of Jehovah’s Witnesses, apparently concentrated in Manitoba, were not, however, discharged and they spent the war behind bars. As soon as they finished one sentence for disobeying an order they would disobey another order and have to start a new sentence. NAC, RG 24, Vol. 6573, File HQ-161-3-4(2), Draft Memorandum, Conscientious Objection, 26 January 1944; (3) C. A. Davidson to J. Bracken, 2 October 1945. Even when the wars in Europe and Japan ended they still were not discharged because to discharge them meant, after May 1945, complete freedom from any service obligations since call-ups had come to an end. The military, simply stated, did not want to discharge the conscientious objectors remaining in its ranks until all those who had been postponed were released. The numbers of exceptions do not appear to have been great, and by the end of 1943 almost every Witness who was called up under the NRM Act began to be directly postponed to an alternative-service camp. For an example of the transfer arrangements made for a Jehovah’s Witness who was not postponed, see NAC, RG 27, Vol. 992, File 2-101-8-NSS, S. H. McLaren to A. MacNamara, 16 December 1943.
617. NAC, RG 27, Vol. 992, File 2-101-8, pt. 2, ‘Letter to Chairman of Mobilization Boards,’ n.d.
618. Cited in Fransen, ‘Breaking Down Barriers,’ 19–20.
619. NAC, RG 35, Vol. 21, ‘Historical Account of the Wartime Activities of the Alternative Service Branch, Department of Labour,’ 11 April 1946, 28. See also Debates, 4 May 1944, 2616–17.
620. NAC, RG 27, Vol. 131, File 601.3-6, Vol. 3, L. E. Westman to A. MacNamara, 28 January 1944, re conversation with W. Glen How.
621. Ibid, Vol. 132, File 601.3-6, Vol. 5, L. E. Westman to A. MacNamara, 29 July 1944.
622. Ibid, M. B. Morison to L. E. Westman, 25 July 1944.
623. Ibid, L. E. Westman to A. MacNamara, 29 July 1944.
624. Ibid, A. MacNamara to L. E. Westman. See also Vol. 27, File 60-1-20, Westman to J. Davidson, 30 June 1944.
625. Ibid, Vol. 992, File 2-101-8-NSS, L. E. Westman to S. H. MacLaren, 8 December 1943.
626. Ibid, Vol. 3058, File 2-25-5-1, L. E. Westman to H. Hereford, 3 July 1944. Later another two were also sent back to Chalk River.
627. Ibid, Vol. 133, File 601.3-6-2, M. J. Coldwell to A. MacNamara, 5 August 1944; A. MacNamara to J. W. Noseworthy, 9 August 1944; A. MacNamara to M. J. Coldwell, 17 August 1944. See also, Vol. 3058, File 21-25-5-1, L. E. Westman to H. Hereford, 28 August 1944.
628. Ibid, Vol. 3058, File 21-25-5-1, L. E. Westman to J. W. Wyatt, 25 September 1944; L. E. Westman to H. Hereford, 25 September 1944.
629. Ibid, L. E. Westman to H. Hereford, 2 October 1944.
630. But see NAC, RG 27, Vol. 3058, File 21-25-5-1, L. E. Westman to H. Hereford, 7 August 1944.
631. NAC, RG 27, Vol. 132, File 601.3-6, Vol. 5, L. E. Westman to Clayton Morrell, 9 November 1944.
632. Ibid, Vol. 992, File 2-101-8, pt. 2, L. E. Westman to M. B. Morison, 29 February 1944.
633. Ibid, Vol. 132, File 601.3-6, Vol. 5, L. E. Westman to A. MacNamara, 27 November 1944.
634. See NAC, RG 27, Vol. 1510, File 60-1-6, Rules and Regulations for the Guidance of Superintendents of Alternative Service Work Camps, 20 July 1944.
635. Department of Justice Papers, H. Mitchell to L. St Laurent, 26 October 1944.
636. Ibid.
637. Ibid, F. P. Varcoe to H. Mitchell, 8 November 1944.
638. Ibid.
639. According to Judge Rutherford all male Jehovah’s Witnesses were automatically ordained by virtue of being Jehovah’s Witnesses. See Charles Samuel Braden, They Also Believe (New York: Macmillan 1949), 368–9. For an extended discussion of Jehovah’s Witnesses and military service, see Consolation, 30 October 1940.
640. Department of Justice Papers, Supervisor of Mobilization to Deputy Minister of Justice, 18 November 1943.
641. Ibid, F. P. Varcoe to Supervisor of Mobilization, 23 March 1943.
642. The Globe and Mail, 1 March 1944.
643. NAC, RG 27, Vol. 132, File 601.3-6, Vol. 5, A. Cochrane to A. MacNamara, 23 June 1944, see also, Vol. 992, File 2-101-8, pt. 2, C. W. McCool to S. H. McLaren, 4 January 1944.
644. The procedure is detailed in NAC, RG 27, Vol. 992, File 2-101-9, pt. 2, W. J. Dickson to CIB (RCMP), 27 February 1945.
645. Ibid, File 2-101-8-NSS, George Deas to A. H. Brown, 29 December 1943; File 2-101-8, pt. 2, G. D. to Lorne McDonell, 4 January 1944.
646. Department of Justice Papers, Supervisor of Mobilization to Deputy Minister of Justice, 22 December 1943.
647. Ibid, S. J. Remnant to C. G. Pennock, 15 December 1943.
648. NAC, RG 27, Vol. 133, File 601.3-6-2, Rex v. Stewart, Reasons for Decision (unreported), 10 February 1944.
649. For background on Stewart, see ibid, Vol. 131, File 601.3-6, pt. 3, E. K. Stewart to H. Mitchell, 13 November 1943. See also Jehovah’s Witness Papers, Representations on behalf of Jehovah’s Witnesses, 8 November 1943, 13; Cohen Papers, Vol. 37, File 3070, Re: Percy Chapman; ibid, Vol. 32, File 2931, To the Companies from the Theocracy, n.d. [c. 1943].
650. Saltmarsh v. Adair, [1942] Sess. Cas. 58.
651. NAC, RG 27, Vol. 133, File 601.3-6-2, Rex v. Stewart, Reasons for Decision (unreported), 10 February 1944, 5, attached sentencing transcript.
652. Ibid, Vol. 131, File 601.3-6, vol. 3, Frank Wasitis v. The King (unreported), 17 February 1944; J. E. Lacourcière to H. Mitchell, 23 February 1944. See also Vol. 133, File 601.3-6-2, ‘In the Matter of Hansler,’ 10 July 1944.
653. See King Papers, Vol. 284, File 2967.
654. NAC, RG 27, Vol. 131, File 601.3-6, Vol. 3, A. H. Brown to A. MacNamara, 31 January 1944.
655. Ibid, Vol. 992, File 2-101-8, pt. 2, A. MacNamara to L. E. Westman, 10 January 1944.
656. Ibid, Vol. 131, File 601.3-6, Vol. 3, L. E. Westman to A. MacNamara, 28 January 1944.
657. Cohen Papers, Vol. 37, File 3084, Representations to the Minister of Labour, 8 November 1943. See also ibid, J. L. Cohen to Hayden Covington, 23 November 1944; NAC, RG 27, Vol. 131, File 601.3-6, vol. 3, A. H. Brown to A. MacNamara, 6 December 1944; A. MacNamara to H. F. Caloren, 7 December 1944; A. MacNamara to B. G. Sullivan, 14 December 1944.
658. NAC, RG 27, Vol. 131, File 601.3-6, Vol. 3, L. St Laurent to H. Mitchell, 28 February 1944.
659. Ibid, Vol. 133, File 601.3-6-2, E. Lorentsen to A. MacNamara, 20 March 1944.
660. Ibid, Vol. 131, File 601.3-6, Vol. 3, H. Mitchell to L. St Laurent, 4 March 1944.
661. R. v. Stewart (1944), 81 CCC 349, 358 (BCCA).
662. Ibid, 359.
663. Department of Justice Papers, F. P. Varcoe to M. W. Wright, 26 April 1945.
664. Cohen Papers, Vol. 37, File 3070, re Greenlees.
665. Greenlees v. A. G. Canada [1945] OR 411,422 (HC).
666. Ibid, 416.
667. Regi Skale and Frank Rasky, ‘Jehovah’s Witnesses: Are They Draftable?’ Saturday Night 20 January 1945, 14–16.
668. Cohen Papers, Vol. 37, File 30170, J. L. Cohen to Mr Justice Hogg, 17 February 1945.
669. W. Glen How Interview, 4 April 1983.
670. Jehovah’s Witness Yearbook, 1946, 100–1.
671. Greenlees v. A. G. Canada [1946] OR 90,93 (CA).
672. Ibid, 95.
673. Ibid, 101. For J. J. Robinette’s view of the case see Jack Batten, Robinette (Toronto: Macmillan 1987), 43–6.
674. RSC 1937, c. 35.
675. Greenlees v. A. G. Canada [1947] 1 DLR 798 (SEC); Christie v. The York Corp. [1939] SCR 50.
676. ‘Anomalies of Appeal to the Supreme Court,’ 16 (1946) Fortnightly Law Journal, 38.
677. W. Glen How, ‘The Too Limited Jurisdiction of the Supreme Court of Canada,’ 25 (1947) The Canadian Bar Review, 573–86.
678. Ibid, 575.
679. Leo Greenlees Interview, 18 May 1983.
680. See for example, R. v. Held (1947) 87 CCC 378; R. v. Jazewsky (1944) 85 CCC 175; White v. R. (1947) 87 CCC 180.
681. In re Bien and Cooke [1944] 1 WWR 237, at 238–9.
682. NAC, RG 27, Vol. 131, File 601.3-6, Vol. 3, L. E. Westman to R. A. Gibson, 25 August 1944.
683. Ibid, Vol. 992, File 2-101-8-1, pt. 1.
684. Ibid, Vol. 1510, File 60-1-14, Circular Letter, 22 August 1945.
685. Ibid, Vol. 131, File 601.3-6, Vol. 3, M. P. Blair to J. F. MacKinnon, 26 May 1945.
686. Ibid, Vol. 1510, File 60-1-14, W. G. Angus to J. F. MacKinnon, 13 December 1945.
687. Ibid, Vol. 131, File 601.3-6, Vol. 3, Petition from Jasper, Alberta, 25 May 1945.
688. Ibid, L. E. Westman to A. MacNamara, 28 May 1945.
689. Ibid, A. MacInnis to H. Mitchell, 16 July 1945.
690. Ibid, J. G. Gardiner to H. Mitchell, 6 August 1945.
691. Ibid, Vol. 1510, File 60-1-14, M. J. Coldwell to A. MacNamara, 27 September 1945.
692. Ibid, Vol. 3058, File 21-25-5-1, J. F. MacKinnon to H. Hereford, 12 February 1945.
693. Ibid, Vol. 131, File 601.3-6, Vol. 3, J. F. MacKinnon to A. MacNamara, 17 August 1945.
694. Ibid.
695. Ibid, Vol. 992, File 2-101-8, pt. 2, J. F. MacKinnon to H. C. Chapman, 17 August 1945.
696. Ibid, Vol. 1510, File 60-1-14, J. F. MacKinnon to A. MacNamara, 28 August 1945.
697. Ibid, Vol. 3058, File 21-25-2, A. MacNamara to J. F. MacKinnon, 24 November 1945.
698. Ibid, Vol. 993, File 2-101-8-1, pt. 2, J. F. MacKinnon to C. Morrell, 23 November 1945. And see Debates, 3 October 1945, 710.
699. NAC, RG 27, Vol. 993, File 2-101-8-1, J. F. MacKinnon to C. Morrell, 3 January 1946.
700. Ibid, Vol. 1510, File 60-1-14, J. C. G. Herwig to A. MacNamara, 24 October 1945.
701. Ibid, J. F. MacKinnon to F. G. French, 20 November 1945.
702. Ibid, Vol. 993, File 2-101-8-1, J. W. Noakes to G. R. Carroll, 25 March 1946.
703. Some of this correspondence can be found in NAC, RG 27, Vol. 3058, File 21-25-3.
704. NAC, RG 27, Vol. 992, File 2-101-8, pt. 2, J. W. Pelletier to J. F. MacKinnon, 15 January 1944; J. F. MacKinnon to L. E. Westman, 25 January 1944; Vol. 3058, File 21-25-5-1, L. E. Westman to J. M. Wyatt, 3 March 1944.
705. Ibid, Vol. 3058, File 21-25-5-1, L. E. Westman to A. MacNamara, 23 February 1944; see also PC 1977, 20 March 1944.
706. See, for example, NAC, RG 27, Vol. 993, File 2.101-8-1, J. G. Diefenbaker to H. Mitchell, 28 February 1946.
707. Debates, 25 March 1946, 213.
708. Ibid, 15 May 1946, 1544.
709. Ibid, 10 July 1946, 3308–9.
710. NAC, RG 27, Vol. 992, File 2-101-8, pt. 2, A. MacNamara to J. H. Blackmore, 6 June 1946. This letter is interesting because it says that there were, in June 1946, more than four hundred Jehovah’s Witnesses who were outside the camps, ‘abiding by the regulations applicable to men of their status.’ But those regulations still required Red Cross contributions, with limited exceptions (as of 1 April 1946 agricultural workers were relieved of making further contributions), and signed contractual agreements to accept directed alternative service, both conditions the Jehovah’s Witnesses uniformly rejected. How then were they abiding by the regulations? The conclusion is inescapable that abiding by the regulations meant in their case that they were free to go about their business not subject to any regulations at all. I have not been able to find any evidence indicating that some special arrangement was made for Jehovah’s Witnesses to perform out-of-camp alternative service. All the available evidence points in the opposite direction. The men were being gradually released, but it seems to have served a political need of the government to keep some of these conscientious objectors in the camps. Moreover, it is quite likely that many of these four hundred had never served any time in the camps at all, but had been called up towards the end of the war when direction to alternative service for conscientious objectors had all but ceased. See Debates, 25 March 1946, 213–14.
711. Jehovah’s Witness Papers, ‘Representations with Respect to Alternative Service,’ n.d., 4–5.
712. NAC, RG 27, Vol. 993, File 2-101-8-1, G. R. Carroll to WTBTS, 8 July 1946. Officially, alternative service was suspended on 15 August 1946 by PC 3030, 18 July 1946. Between 15 July and 15 August, the conscientious objectors were on unrestricted leave. A collateral decision made at this time was for the RCMP to return, unexecuted, warrants for more than two hundred conscientious objectors who had allegedly violated the alternative-service regulations. Why they were given, in effect, amnesty, is far from clear. See NAC, RG 27, Vol. 3058, File 21-25-2, A. H. Brown to G. R. Carroll, 17 August 1946.
713. ‘[I]n various homes he conducted meetings twice a week which were opened and closed with prayer. At these meetings study was made of the Bible and of the “Watchtower” and hymns were sung to the accompaniment of a piano when available. About 20–25 persons generally attended these meetings in different homes on every other night of the week and, during the day, [he] was engaged in canvassing from house to house … In these circumstances, although there was no church or fixed place for holding meetings, I am of the opinion that he looked after something equivalent to a parish, conducted religious meetings, had a bona fide congregation and ministered to his congregation spiritually … I am of the opinion that he falls within the meaning of “Minister of Religion” in the Defence Act 1903–1941. I therefore allow the appeal and quash the conviction.’ Re F. Grundy NSW Weekly Notes (61) 102 at 106. For a brief overview about the Second World War Australian alternative-service system, see Devi Prasad and Toni Smythe, eds, Conscription: A World Survey (London: War Resisters' International 1968).
714. The following is only an overview of the American system as it affected Jehovah’s Witnesses. Those interested in more information about that system would be well served by beginning with the reports of the Director of Selective Service, published by the Government Printing Office in Washington DC and, in particular, Selective Service in Peacetime: First Report of the Director of the Selective Service (Washington, DC: Government Printing Office 1942), which contains a large section on arrangements made for conscientious objectors. See also J. Garry Clifford and Samuel R. Spencer, Jr, The First Peacetime Draft (Lawrence, Kansas: University Press of Kansas 1986); Julien Cornell, Conscience and the State: The Conscientious Objector and the Law (New York: Garland Publishing Inc., reprint 1973); and Mulford Q. Sibley and Philip E. Jacob, Conscription of Conscience: The American State and the Conscientious Objector, 1940–1947 (Ithaca, NY: Cornell University Press 1952).
715. NAC, RG 27, Vol. 131, File 601.3-6, Vol. 2, ‘Conscientious Objectors in the United States,’ n.d.
716. See section 5(d) of the Selective Service Training and Service Act of 1940 and section 622.44 of the Selective Service Regulations, Second Edition.
717. Vol. III, Opinion No. 14 (Amended), National Headquarters, Selective Service System, 2 November 1942.
718. Ibid.
719. Ibid.
720. Selective Service System, State Director Advice (No. 213-B). As Amended 9/25/44.
721. ACLU, Jehovah’s Witnesses and the War (New York: ACLU 1943), 33.
722. Selective Service System, State Director Advice (No. 213-B). As Amended 9/25/44.
723. See also Selective Service in Wartime, Second Report of the Director of Selective Service, 1941–1942 (Washington, DC: Government Printing Office 1943), 240–1.
724. Sibley and Jacob, Conscription of Conscience, 153.
725. This section is derived from Sibley and Jacob, Conscription of Conscience, 335ff, and Selective Service in Wartime, Second Report, 321ff.
726. According to the Selective Service Commission the actions of the local boards were invariably challenged in one of three ways: 1 / injunctions to restrain the board from ordering the selectee to report for induction; 2 / certiorari to review the decision of the board for errors in law; 3 / habeas corpus for release on the grounds of improper proceedings. The courts uniformly held that both the equitable remedy of injunction and the extraordinary writ of certiorari were improper remedies, leaving the registrant with only habeas corpus. But, as noted in the text, habeas corpus was only available when all other remedies had been exhausted or where the board lacked jurisdiction. There were cases that said that a selectee might be released if the board acted arbitrarily, but with one exception, no court found any board to have acted in an arbitrary manner. See Selective Service in Peacetime: First Report of the Director of the Selective Service (Washington DC: Government Printing Office 1942), 306.
727. See U.S. v. Grieme, 128 F. 2d 811, 815 (3rd Cir. 1942).
728. U.S. v. Bowles, 131 F. 2d 818,819 (3rd Cir. 1942).
729. See Rase v. U.S., 129 F. 2d 204,210 (6th Cir. 1942), where the court said that the Constitution granted no immunity from military service because of religious convictions or activities. Immunity was a matter of congressional grace in pursuance of a traditional American policy of deference to conscientious objectors. It was not a matter of religious liberty but a question of national safety, ‘without the preservation of which, liberty of conscience and religion will everywhere disappear.’
730. 320 U.S. 549 (1944). See also Billings v. Truesdell 321 U.S. 542.
731. See also two important preliminary decisions, Bronemann v. United States, 138 F. 2d 333 (8th Cir. 1943), and Goff v. U.S., 135 F. 2d 610 (4th Cir. 1943).
732. Estep v. U.S., 327 U.S. 114 (1946).
733. Cited in A. H. Macmillan, Faith on the March (Englewood Cliffs, NJ: Prentice-Hall, Inc. 1957), 186–7. See also Nathan T. Elliff, ‘Jehovah’s Witnesses and Selective Service,’ 31 (1944–5) Virginia Law Review 811–34, and Claud H. Richards, Jr., ‘Religion and the Draft: Jehovah’s Witnesses Revisited,’ in Carl Beck, ed., Law and Justice (Durham, NC: Duke University Press 1970), 47–75. On their experience in prison see Mulford Sibley and Ada Wardlaw, Conscientious Objectors in Prison, 1940–1945 (Philadelphia: The Pacifist Research Bureau, 1945), and William Stockdale, Jehovah’s Witnesses in American Prisons (Putnum, Conn.: The Wilda Press 1946).
734. See Dickinson v. U.S., 346 U.S. 389 (1953).
735. This section drawn from Harold Zink and Taylor Cole, eds, Government in Wartime Europe and Japan, rev. ed. (Boston: Houghton Mifflin Company 1942), and Prasad and Smythe, eds, Conscription: A World Survey.
736. ‘The acceptance of any of these persons as regular ministers of a religious denomination leads logically to the conclusion that every member of this so-called religious denomination should be excepted from liability on the same ground.’ Report from British Ministry of Labour and National Service, cited in Elliff, ‘Jehovah’s Witnesses and Selective Service,’ 821.
737. Ibid. See also Walsh v. Lord Advocate, [1956] 3 All ER 129.
738. David Fransen, ‘Breaking Down Barriers: Mennonites in Canada during the Second World War,’ unpublished paper 1986, 23.
739. NAC, RG 35, Vol. 21, ‘Historical Account of the Wartime Activities of the Alternative Service Branch, Department of Labour,’ 11 April 1946, 25–6.
740. Donald Creighton, The Forked Road (Toronto: McClelland & Stewart 1976), 77.
741. J. L. Granatstein, Canada’s War (Toronto: Oxford University Press 1975), 276.
742. It is interesting to observe that a similar phenomenon took place in the United States after the First World War. See Paul L. Murphy, World War I and the Origin of Civil Liberties in the United States (New York: W. W. Norton & Co. 1979). See also Paul L. Murphy, The Constitution in Crisis Times (New York: Harper & Row 1972).
743. For a study of the radical right see Stanley Barrett, Is God a Racist? (Toronto: University of Toronto Press 1987).
744. Debates, 10 October 1945, 900.
745. See OA, DP(O), Vol. 15, File 152-6; Vol. 31, File 247-G; The Globe and Mail, 7 March 1944.
746. SO 1944, c. 51.
747. For some of the petitions and resolutions against the legislation see, for example, OA, DP(O), Vol. 7, File 74-G.
748. See, generally, Herbert Alvin Sohn, ‘Human Rights in Ontario: A Study of Social Action,’ PhD thesis, University of Toronto 1975.
749. For a synopsis of the report see To Secure These Rights: A Brief Summary of the Report of the President’s Committee on Civil Rights (Detroit: UAW-CIO Fair Practices and Anti-Discrimination Department n.d.).
750. In his memoirs, for example, he claimed to have spoken during the war on the plight of the Canadian Japanese. The Debates, however, show that this was not the case and that the earliest he spoke was in late 1945. Diefenbaker, however, said it so often that he undoubtedly came to believe it. ‘It is hard to understand why he goes on pretending that he did. He has a record of opposition to racial discrimination in the years since the war which is honoured even by his political opponents. Surely, that should be enough.’ J. W. Pickersgill, The Road Back (Toronto: University of Toronto Press 1986), 96.
751. See Debates, 3 May 1946, 1214.
752. Conrad Black, Duplessis (Toronto: McClelland & Stewart 1977), 386.
753. See H. F. Quinn, The Union Nationale 2nd ed. (Toronto: University of Toronto Press 1979), 110–11.
754. Reg Whitaker, ‘The Cold War the Myth of Liberal-Internationalism,’ unpublished paper, 8 June 1987.
755. Quinn, The Union Nationale, 127–8.
756. Jehovah’s Witnesses in the Divine Purpose, 1959, 239.
757. Ibid.
758. Leslie Roberts, The Chief (Toronto: Clake Irwin 1963), 94.
759. Quebec’s Burning Hate (Toronto: Watch Tower Bible and Tract Society), 3.
760. The Ottawa Journal, 21 February 1948.
761. Thomas R. Berger, Fragile Freedoms (Toronto: Clarke Irwin 1982), 174.
762. Jehovah’s Witnesses in the Divine Purpose, 1959, 241–2.
763. The Toronto Daily Star, 19 June 1946.
764. B. K. Sandwell, ‘Civil Liberties,’ in Martyn Estall, ed., Rights and Liberties in Our Time (Toronto: The Ryerson Press 1947), 96–108, at 98–9; see also ‘Of Dangerous Doctrines,’ Saturday Night, 18 January 1947, 1,5.
765. Sandwell, ‘Civil Liberties,’ 98–9.
766. F. R. Scott, ‘Duplessis Versus Jehovah,’ Canadian Forum, January 1947, 222–3.
767. Roberts, The Chief, 126.
768. See generally Ivan Rand, ‘The Role of an Independent Judiciary in Preserving Freedom,’ 9 (1951) U. of T. Law Journal, 1–14.
769. Boucher v. R. [1951] SCR 265, at 285.
770. Ibid.
771. Ibid, 288.
772. Ibid, 291–2.
773. F. A. Brewin, ‘Criminal Law, Boucher v. The King,’ 29 (1951) Canadian Bar Review, 193–203, at 202.
774. 1851, 14 & 15 Vict., c. 175 (Province of Canada).
775. Re. Alberta Statutes, [1938] SCR 100.
776. For a comparison of the Alberta reference and the Saumur case see Constitutional Freedom in Peril (Winnipeg: The Winnipeg Free Press, 1954). And for contemporaneous discussion of this case see Bora Laskin, ‘Our Civil Liberties: The Role of the Supreme Court,’ 61 (1954) Queen’s Quarterly, 455–71.
777. Saumur v. The City of Quebec (hereafter Saumur), [1953] SCR 299,326.
778. Ibid.
779. Ibid, 329.
780. Ibid, 330.
781. In Winner v. S. M. T. Eastern Ltd. and A.-G. New Brunswick, [1951] 4 DLR 529, he had held that the right to use the highways could not be abrogated by a province.
782. Saumur [1953] SCR 299, at 329.
783. See also Walter S. Tarnopolsky, The Canadian Bill of Rights (Toronto: Carswell 1966), 8.
784. ‘An Act For the Freedom of Religion and the Preservation of Order’ provided that any writing that is ‘insulting and abusive’ towards a religious group could be seized without a warrant. The new act did not protect freedom of religion, it destroyed it, and the Jehovah’s Witnesses moved to challenge the legislation in court. See Saumur v. Procureur Général de Québec [1964] SCR 252.
785. The Ottawa Citizen, 7 October 1953.
786. Black, Duplessis, 387.
787. The Montreal Gazette, 5 December 1946. See also, F. R. Scott, ‘Duplessis Versus Jehovah,’ Canadian Forum, January 1947, 222–3.
788. B. K. Sandwell, ‘Why French Canada “Hates” Witnesses of Jehovah,’ Saturday Night, 28 December 1946, 6.
789. Roberts, The Chief, 129–30. See also Scott, ‘Duplessis Versus Jehovah,’ 222–3.
790. Roman Catholics did not necessarily approve of Duplessis’s conduct. The English-language Roman Catholic newspaper, The Canadian Register, editorialized against the cancellation of the liquor licence. It was an inappropriate use of executive power, as far as this paper was concerned, although the paper generally subscribed to the premier’s views about the necessity of restricting the activities of the Jehovah’s Witnesses.
791. Roberts, The Chief, 130–1. Joining Power on the stand was Roger Ouimet, a prominent Montreal lawyer, son-in-law of the late Ernest Lapointe, and future Quebec judge.
792. Ibid, 132–3. On the outlawing of the Potlatch Ceremony, see Donald Purich, Our Land (Toronto: James Lorimer 1980), 27–8.
793. Ibid, 126–7.
794. See Paul Normandin, The Padlock Law Threatens You! (Montreal: Civil Liberties Union), n.d.
795. Switzman v. Elbling and A. G. Quebec [1957] SCR 285.
796. Frank Scott also acted as counsel in this case, at the request of two former students, Abraham Feiner and Albert Marcus.
797. William J. Whalen, Armageddon around the Corner (New York: The John Day Company 1962), 19.
798. On Scott, see Sandra Djwa, The Politics of the Imagination (Toronto: McClelland & Stewart 1987). See also Susan Mann Trofimenkoff, The Dream of Nation (Toronto: Gage 1983), 276–7.
799. Roncarelli v. Duplessis [1959] SCR 121,133.
800. Ibid, 140–1.
801. Ibid, 141.
802. Ibid.
803. Ibid, 141–2.
804. Ibid, 142. For an excellent political and intellectual analysis of Duplessis see Michael D. Behiels, Prelude to Quebec’s Quiet Revolution (Kingston and Montreal: McGill-Queen’s University Press 1985), 227–8. For a more favourable interpretation of Duplessis’s role in the Roncarelli affair see Black, Duplessis, 385–90.
805. One of them, as we briefly saw, was the Switzman v. Elbling decision, which struck the Padlock Act down as an invasion of the federal criminal power. In another case, Henry Birks & Sons (Montreal) Ltd. v. City of Montreal, [1955] SCR 799, the Supreme Court unanimously held that it was beyond provincial jurisdiction to give municipalities the right to pass by-laws requiring stores to close on religious holidays.
806. The petition was circulated in March, but not presented to Parliament until June. See Debates, 18 June 1947, 4278; M. James Penton, Jehovah’s Witnesses in Canada (Toronto: Macmillan 1976), 196.
807. King Papers, Vol. 245, File 2500, Cabinet Conclusion 21 January 1947.
808. Ibid.
809. David Croll Interview, 2 November 1987.
810. Debates, 15 May 1947, 3139–40.
811. See, for example, OA, MU 7592, File 1, A. R. M. Lower, ‘Some Reflections on a Bill of Rights,’ January 1947.
812. ‘The Joint Committee on Human Rights and Fundamental Freedoms,’ 26 (1948) Canadian Bar Review, 706–14.
813. Minutes of Proceedings and Evidence, 1947–8, Report of the Joint Committee, 212.
814. There was not universal demand for a bill of rights; in some quarters Parliament was seen as the guardian of the liberties of the people and entrenched rights seen as an outdated Americanism not applicable to the Canadian context. See, for example, H. McD. Clokie, ‘The Preservation of Civil Liberties,’ 13 (1947) Canadian Journal of Economics and Political Science, 208–32.
815. Robert Bothwell and J. L. Granatstein, eds, The Gouzenko Transcripts (Ottawa: Deneau Publishers 1982), 17. See also M. H. Fyfe, ‘Some Legal Aspects of the Report of the Royal Commission on Espionage,’ 24 (1946) Canadian Bar Review, 777–84; Clokie, ‘The Preservation of Civil Liberties,’ 208–32.
816. The Canadian Civil Liberties Union, founded in Montreal before the war, was moribund. Following a spurt of activity at the start of the war, it disappeared from the scene and never returned. Canadian Civil Liberties Union, Montreal Branch, ‘Civil Liberties Bulletin,’ April 1940, Montreal. See Joseph Starobin, ‘Civil Liberties in Canada,’ New Masses, 16 July 1940. The Toronto Civil Liberties Association, established in early 1940, had never really got off the ground. Its executive met with the prime minister, and inasmuch as their representations encouraged King to establish the Special Committee on the Defence of Canada Regulations, they were to the good. A major brief prepared by the organization was delivered in early May 1940 when the public mood was anything but favourable to the liberalization of the regulations. Activities of the association then became sporadic, but it too now revived. Indeed, the Gouzenko revelations led to the establishment of one new civil-liberties association, the Emergency Committee for Civil Rights, formed in April 1946, which was dedicated to protesting the infringements of civil liberties the Gouzenko defection had brought about. See OA, MU 7596, File 12, ‘Civil Rights,’ 15 August 1946, 15 September 1946, 31 October 1946.
817. On the civil-liberties activities of the Canadian Bar Association during and following the Second World War see CBA Papers, Minutes, 28 February 1942, 17–18; Minutes, 24 and 25 August 1942, and Transcript of Proceedings, 44ff; Minutes, 27 February 1943, 4–5; Minutes, 27 August 1943; ‘The Law of Our Today,’ 21 (1943) The Canadian Bar Review, 315–19; ‘Report of the Committee on Civil Liberties,’ 22 (1944) The Canadian Bar Review, 598–617; Phil Glanzer, ‘The Bar Association Protests,’ Canadian Business, October 1944, 84,178; CBA Papers, Proceedings and Report, 30 August 1946. See also, B. K. Sandwell, ‘Bar Association Utters Clarion Call for Renewal of Liberties,’ Saturday Night, 14 September 1946, 17.
818. For quite a different interpretation of what Gouzenko revealed see William A. Reuben, The Atom Spy Hoax (New York: Action Books 1955).
819. See Norman Penner, Canadian Communism: The Stalin Years and Beyond (Toronto: Methuen 1987).
820. See OA, MU 7596, File 13, Civil Rights Union, ‘Civil Rights,’ Vol. 1, No. 4, 20 December 1946.
821. See Democracy Betrayed: Submission to the Federal Government by the National Association of Japanese Canadians (February 1985); Rights and Freedoms, 54.
822. ‘As a result of the nation-wide publicity of this petition and the thousands of letters to members of Parliament calling for a Bill of Rights, the government finally set up a committee to consider such a measure.’ Jehovah’s Witnesses in the Divine Purpose, 1959, 243.
823. Ibid. Canadian Jehovah’s Witnesses appear to have enlisted the support of their American brethren in the campaign. See NAC, RG 25, Vol. 2911, File 102-FP-40. W. Glen How also urged a Canadian bill of rights, and wrote an influential article published in the Canadian Bar Review, W. Glen How, ‘The Case for a Canadian Bill of Rights,’ 26 (1948) Canadian Bar Review, 759–96. And to ensure that it got read the Jehovah’s Witnesses reprinted ten thousand copies of it and of a related article written by Hayden Covington. Both articles were distributed to lawyers, politicians, and other interested persons across the country. See Penton, Jehovah’s Witnesses in Canada, 198.
824. OA, MU 7592, File 3, ‘Civil Rights Union,’ Bulletin No. 4, n.d. ‘Last year,’ the Civil Liberties bulletin said, ‘over five hundred thousand Canadians signed a petition to the Canadian government asking it to enact a Bill of Rights. A joint committee of the Senate and House of Commons was appointed to consider Human Rights and Fundamental Freedoms. The final report of this committee states: “There is need for more public discussion before the task of defining the rights and freedoms to be safeguarded is undertaken.”’ The Civil Liberties Union disagreed. ‘Petitions are powerful weapons,’ it said, and it urged Canadians to sign.
825. Debates, 9 February 1948, 371.
826. Including one from the Civil Rights Union of Toronto, OA, MU 7592, File 5, Civil Rights Union, ‘To the Special Joint Committee.’
827. On the establishment of the committee see Debates, 12 February 1948, 1127; 13 February 1948, 1181; 9 April 1948, 2842–7; 12 April 1948, 2862–83; and 16 April 1948, 3041.
828. Debates, 22 September 1949, 150.
829. See The Senate of Canada, Proceedings of the Special Committee on Human Rights and Fundamental Freedoms (Ottawa: King’s Printer 1950), 3, Arthur W. Roebuck, Chairman.
830. See, for example, ‘A Brief on Human Rights and Fundamental Freedoms to a Special Committee of the Senate of Canada’ (Toronto: The Association for Civil Liberties unpublished paper 1950); see also ‘Canadian Labour Organizations Present Briefs on Human Rights and Fundamental Freedoms,’ Labour Gazette, 1950, 1004–10.
831. The Senate of Canada, Proceedings of the Special Committee on Human Rights and Fundamental Freedoms, 306.
832. Arnold Bruner, ‘The Genesis of Ontario’s Human Rights Legislation: A Study in Law Reform,’ 37 (1979) U. of T. Faculty of Law Review, 236, at 239, footnote 22. See also Walter Tarnopolsky, ‘The Iron Hand in the Velvet Glove: Administration and Enforcement of Human Rights Legislation in Canada,’ 46 (1968) Canadian Bar Review, 565–90, at 569.
833. [1945] 2 DLR 244 (Ont. HC).
834. [1945] OR 778.
835. It is of interest to note that two future chief justices of Canada were among the counsel who appeared amici curiae in this case: J. R. Cartwright and Bora Laskin.
836. [1948] 4 DLR 123. At the same time U.S. attorney general Tom Clark was citing the Mackay decision with approval in two restrictive-covenant cases before the U.S. Supreme Court, Shelly v. Kraemer, 334 US 1 (1948), and Hurd v. Hodge, 334 US 24 (1948). See also Clement E. Vose, Caucasians Only (Berkeley, CA: University of California Press 1959).
837. D. A. L. Smout, ‘An Inquiry into the Law on Racial and Religious Restraints on Alienation,’ 30 (1952) Canadian Bar Review, 863–80.
838. ‘The purpose of the Association, which was only recently established, is, briefly, to promote respect for and observance of fundamental human rights and civil liberties particularly in Canada and to foster the recognition, defence and extension of these rights and liberties.’ Irving Himel to Dana Porter, 27 May 1949, OA, RG 3, Frost Papers, File, Association of Civil Liberties; see also Brief, Association for Civil Liberties (Toronto) 7 June 1949. The Fellowship of Reconciliation, a United Church organization, also wrote to the premier in favour of that brief and asking for leadership from Ontario in enacting such legislation. See Rev. James M. Finlay to Leslie Frost, 9 June 1949, OA, RG 3, Frost Papers, File, Association of Civil Liberties.
839. See R. S. K. Seeley to Leslie Frost, 9 December 1949, OA, RG 3, Frost Papers, File, Association of Civil Liberties.
840. Canadian Association for Adult Education, ‘Should We Have Fair Employment Practices in Canada?’ 1948.
841. See OA, MU 7596, File 12, ‘A Brief to the Premier of Ontario,’ 24 January 1950. See also The Globe and Mail, 25 January 1950.
842. OA, RG 3, Frost Papers, File, Association of Civil Liberties, R. S. K. Seeley to Leslie Frost, 17 February 1950.
843. OA, MU 7596, File 12, ‘A Brief to the Premier of Ontario,’ 24 January 1950, 13. See also OA, MU 7592, ‘Press Comment on Anti-Discrimination Laws.’
844. SO 1950, c. 11, S. 1.
845. Some of this process is described in Bruner, ‘The Genesis of Ontario’s Human Rights Legislation,’ 246ff; much of the preceding section is derived from Herbert Alvin Sohn, ‘Human Rights in Ontario: A Study of Social Action,’ PhD thesis, University of Toronto 1975.
846. As cited in Sohn, ‘Human Rights in Ontario,’ 126. See also Bruner, ‘The Genesis of Ontario’s Human Rights Legislation,’ 239.
847. SO 1954, c. 28, S. 28.
848. See Sohn, ‘Human Rights in Ontario,’ 148–50. On the Dresden cases see A. Alan Borovoy, ‘The Fair Accommodation Practices Act: The “Dresden” Affair,’ 14 (1956) U. of T. Faculty of Law Review, 13–23.
849. Sid Blum, ‘Fair Practice Laws — the Canadian Experience,’ Canadian Labour, January 1962, 11–14, at 11.
850. Dorothy Giffen, ‘The Hutterites and Civil Liberties,’ Canadian Forum, June 1947, 55–7. For a history of Hutterites in Canada see A. M. Willms, ‘The Brethren Known as Hutterians,’ 24 (1958) Canadian Journal of Economics and Political Science, 391–405, and see also Douglas E. Sanders, ‘The Hutterites: A Case Study in Minority Rights,’ 42 (1964) Canadian Bar Review, 225–42.
851. See, for example, OA, MU 7592, ‘Declaration of the Rights of Canadians,’ October 1953; ‘A Draft Bill of Rights for Canada,’ n.d. Another civil-liberties organization, the League for Democratic Rights, was behind much of this activity and campaigning for a bill of rights was its main goal. OA, MU 7592, file 5, ‘Special Bulletin,’ 23 October 1953. The LDR was also extremely active in protesting a very immoderate piece of proposed legislation, Bill H-8 (later Bill 93 and then Bill 7). See OA, MU 7596, ‘Protect Our Democratic Rights,’ ‘It’s a Crime!’ ‘It’s Still a Crime!,’ ‘It’s a Free Country — Isn’t It?’ See also F. R. Scott, ‘Dominion Jurisdiction over Human Rights and Fundamental Freedoms,’ 27 (1949) Canadian Bar Review, 497–536, calling for a bill of rights, and see also A. R. M. Lower, ‘Some Reflections on a Bill of Rights,’ (15 February 1947) The Fortnightly Law Journal, 216–18, and Lower, ‘Some Reflections on a Bill of Rights,’ (1 March 1947) The Fortnightly Law Journal, 234–7.
852. For materials on internal security in this period see King Papers, Vol. 331, File 3522.
853. See, for example, Debates, 14 March 1950, 2090.
854. Debates, 9 May 1950, 2307.
855. For the situation in the United States see Michael R. Belknap, Cold War Political Justice (Westport, CO: Greenwood Press 1977).
856. See Reg Whitaker, Double Standard: The History of Canadian Immigration (Toronto: Lester & Orpen Dennys 1987), 192.
857. 347 U.S. 483 (1954).
858. On the foreign-policy implications of desegregation see Mary L. Dudziak’s excellent paper, ‘Desegregation as A Cold War Imperative,’ unpublished paper, 19 October 1987; see also Harry Arthurs, ‘Civil Liberties — Public Schools — Segregation of Negro Students,’ 41 (1963) Canadian Bar Review, 453–7.
859. See generally John Diefenbaker, One Canada, II (Toronto: Macmillan of Canada 1976); Walter S. Tarnopolsky, The Canadian Bill of Rights (Toronto: The Carswell Company 1966); D. A. Schmeiser, Civil Liberties in Canada (London: Oxford University Press 1964).
860. See F. R. Scott, ‘The Bill of Rights and Quebec Law,’ 37 (1959) Canadian Bar Review, 135–46.
861. Bora Laskin, ‘Canada’s Bill of Rights: A Dilemma for the Courts?’ II, (1962) International and Comparative Law Quarterly, 518–36, at 533. See also Bora Laskin, ‘An Inquiry Into the Diefenbaker Bill of Rights,’ (1959) Canadian Bar Review, 78–134; ‘Human Rights and Fundamental Freedoms,’ Canadian Labour, September 1960, 14–19, at 14.
862. See, for example, Pauline Jewett, ‘Mr. Diefenbaker’s Proposed Bill of Rights,’ Canadian Forum, December 1958, 199–201.
863. John G. Diefenbaker, One Canada, II, (Toronto: Macmillan 1975), 262.
864. W. F. Bowker, ‘Basic Rights and Freedoms: What Are They?’ 37 (1959) Canadian Bar Review, 43–65, at 65.
865. Herbert Marx, ‘Human Rights and Emergency Powers,’ in R. St J. MacDonald and John P. Humphrey, eds, The Practice of Freedom (Toronto: Butterworth 1979), 447–60,451; see also Herbert Marx, ‘The Emergency Power and Civil Liberties in Canada,’ 16 (1970) McGill Law Journal, 39–91,71. See generally Special Committee on Human Rights and Fundamental Freedoms, Minutes of Proceedings and Evidence (Ottawa: Queen’s Printer 1960).
866. Diefenbaker, One Canada, II, 262.
867. OA, MU 7592, ‘Emergency Powers Act and Related Legislation,’ n.d. See also Debates, 20 February 1953.
868. Tarnopolsky, The Canadian Bill of Rights, 226.
869. SC 1960, c. 44.
870. In October 1970 the federal government, in response to terrorist activities in Quebec, invoked the War Measures Act and promulgated the Public Order Regulations S.O.R./70-444, (16 October 1970), The Canada Gazette (Part II) which gave police authorities virtually unrestricted power to arrest and detain. Subsequently, on 3 December 1970, the War Measures Act was allowed to lapse and the Public Order Regulations were replaced by the Public Order (Temporary Measures) Act, SC 1970-71-72, c. 2. Altogether, of almost 500 people arrested, only 62 were charged of whom 18 were convicted, only 2 under the Public Order Regulations. For an interesting interpretation of the interaction of the War Measures Act with the Bill of Rights, see Charles F. Scott Jr., ‘The War Measures Act, S. 6(5) and the Canadian Bill of Rights,’ 13 (1970–1) Criminal Law Quarterly, 342–7.
871. See W. S. Tarnopolsky, ‘The Supreme Court and the Canadian Bill of Rights,’ 53 (1975) Canadian Bar Review, 649–674, at 672. See also S. J. Godfrey, ‘Freedom of Religion and the Canadian Bill of Rights,’ 22 (1964) U. of T. Faculty of Law Review, 60–75. There was an incident not unlike what happened to Witness children during the Second World War in which the government of British Columbia removed Doukhobor children from their parents' homes and placed them in a residential school because the parents refused to send their children to school, claiming that it was a violation of their religious rights. See Sydney Katz, ‘The Lost Children of British Columbia,’ Maclean’s, 11 May 1957, 100–8. What little non-Doukhobor criticism the government action elicited was to the effect that the government had not gone far enough. One suggested solution to the Doukhobor problem was permanent removal of children from their parents. See Simma Holt, Terror in the Name of God (Toronto: McClelland & Stewart 1964), 288,295. For a more benign view of the Doukhobors, see George Woodcock and Ivan Avakumovic, The Doukhobors (Toronto: Oxford University Press 1968).
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