An Exceptional Law: Section 98 and the Emergency State, 1919–1936 by Dennis G. Molinaro

Abstract

Reviewed by: An Exceptional Law: Section 98 and the Emergency State, 1919–1936 by Dennis G. Molinaro Tom Mitchell Dennis G. Molinaro, An Exceptional Law: Section 98 and the Emergency State, 1919–1936 (Toronto: University of Toronto Press 2017) Writing of a history of Section 98 of Canada's Criminal Code – a statute that made it a criminal offence to be a member of any organization prepared to use force or violence to bring about governmental change – invites a number of narrative possibilities. Dennis Molinaro has rooted his account of Section 98 in the story of the liberal state's penchant to betray liberty – for Molinaro, its fundamental raison d'être. His book is also an intervention in the current debate about emergency legislation in Canada. Molinaro argues that, beginning with Section 98, emergency legislation up to and including the Anti-terrorism Act of 2015, has been deployed in peacetime to legitimize, sanction, and normalize deliberately targeted repression as an instrument of state formation. Such emergency legislation, he argues, is inconsistent with a liberal state based on "Locke's inalienable rights, which include the right to freedom." (11) Section 98 (Revised Code 1928), approved in July 1919, began life as Section 97a and b of Canada's criminal law. This addition to the Criminal Code [End Page 277] was modeled after PC 2384 approved in 1918 under the War Measures Act. Conceptually, Molinaro observes, Section 98 was designed to "normalize" emergency powers forged by the executive branch in a time of crisis. Notwithstanding repeated Liberal government attempts to repeal Section 98, Molinaro sees more evidence of the normalization of emergency powers when, in 1927, Mackenzie King amended the War Measures Act to expand its potential use and to rename it "An Act to Confer Certain Powers upon the Governor General in Council in the Event of War, Invasion, or Insurrection." By the early 1920s, the Communist Party of Canada (cpc) had replaced British-born labour militants of 1919 as the most likely focus of Section 98 prosecutions. A detailed account of the history and evolution of the Canadian Communist Party, justified in part as a contribution to the "revisionist literature of the cpc," (58) serves as a backdrop to Molinaro's account of Section 98 repression. No surprise then that the first use of the law came against a Communist party organizer in 1929: the charges were thrown out by a judge who ruled that pamphlets submitted as evidence by the Crown were not "revolutionary." (77) Aside from the successful prosecution of the leadership of the Communist Party in 1931, and labour organizer "Slim" Evans in British Columbia in 1933 (Evans got one year for advocating the use of force), most prosecutions under Section 98 went nowhere. Still, evidence suggests that the threat of such a prosecution proved a powerful weapon of reaction. The jurisdictional complexity associated with the use of Section 98 is implicated throughout Molinaro's narrative. Provincial premiers lobbied Ottawa to deport Communists, and Ottawa wanted the names of Communists convicted under Section 98 prosecutions for deportation proceedings. An Exceptional Law contains no account of the actual mechanics of criminal prosecutions under Section 98 to illustrate how federalism complicated the actual operation of this and other emergency laws. Molinaro's conflation of federal and provincial jurisdictions as simply "the state" implies quite incorrectly that the federal nature of the Canadian constitution was of little relevance to the operation of repression. The most important Section 98 prosecution had a complicated provenance. R.B. Bennett, in the 1930s the most interested party in the deployment of Section 98, wanted prosecutions, but had no constitutional authority to initiate them. He put pressure on provincial attorneys-general. The 1931 prosecution of the Communist Party leadership in Ontario came about at Ottawa's behest. Ontario Attorney-General William H. Price told a colleague that he was "under pressure from Ottawa to take action." (79) During the trial before a jury composed of "trade workers and farmers" the prosecution presented evidence that the accused were members of a revolutionary organization intent on the use of violence to bring about change. The prosecution's task was simplified by the fact that "the propaganda...