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Padlock Act

The Quebec government introduced An Act to Protect the Province Against Communist Propaganda (Padlock Act) in 1937. The Padlock Act was inspired by an amendment to the Criminal Code that was introduced following the Winnipeg General Strike of 1919. Section 98 of the Criminal Code had empowered the federal government to deport non-citizens and charge individuals with criminal conspiracy for threatening social order or promoting revolution. Maurice Duplessis, the Premier of Quebec, introduced the Padlock Act after the federal government revoked Section 97 in 1936. The Padlock Act empowered local sheriffs (under the authority of the provincial Attorney-General) to close down meeting places suspected of promoting communism or Bolshevism (the terms were not defined in the statute). The "Padlock Act" is a reference to the practice of placing a padlock on a door to prevent use a building. Although it was possible to challenge an order in court, it was extremely difficult and, in practice, the courts were not an effective check on the powers of the Attorney General under the Padlock Act. The legislation gave the Attorney General such widespread powers that it was used to persecute Jehovah’s Witnesses, Jews, communists, trade unionists and other suspected ‘subversives.’ The law became a rallying point for civil libertarians who considered the legislation one of the most repressive laws in Canadian history.

As Ross Lambertson notes, the Padlock Act contained numerous opportunities for abuse:

"Should the attorney general (who was also the premier) be satisfied that a house had been used illegally in this fashion, the legislation gave him the power to ‘order the closing of the house for any purpose whatsoever for a period of not more than one year.’ In other words, the police could padlock the house, apartment, or place of business without the necessity of formally laying charges or bringing anyone to trial. The legislation did permit the owner of a padlocked property to petition the courts for a cancellation or suspension of the order, but the burden of proof was upon the owner to

Maurice Duplessis
Hon. Maurice L. Duplessis , 1930 (C-031052).

demonstrate that the property had not been used, or was used without the owner’s knowledge, as a place from which Communist propaganda was being spread. (As Eugene Forsey wrote at the time, this was ‘contrary to every principle of British justice,’ because the property owner was ‘assumed to be guilty until he can prove himself innocent!’) The law also made it unlawful, with a punishment of imprisonment lasting from three to twelve months, ‘to print, to publish ... or to distribute in the province any newspaper, periodical, pamphlet, circular, document or writing whatsoever propagating or tending to propagate Communism or Bolshevism.’ Moreover, Duplessis could also empower the police to seize, confiscate, and destroy any such materials. In later years Eugene Forsey, who became one of the most outspoken opponents of the Padlock Law, recalled that from the beginning it had been popular with Quebec’s political establishment, and not just those in the Union Nationale. ... it imposed censorship on a political party which, however controversial, was perfectly legal in Canada now that section 98 of the Criminal Code had been repealed. Second, this censorship could be executed at the whim of the premier, thereby raising the spectre of ‘executive despotism.’ And third, it attacked the property rights not only of Communists but also of non-Communists who had (perhaps even inadvertently) rented or leased their property to a person distributing propaganda or even holding a radical meeting. One of the forgotten victims of the Padlock Law was an instalment furniture company which was able to repossess its furniture from a padlocked home only two years after the police had applied their padlock. Yet there was more. The statute contained no definition of the term ‘communism.’ As R.L. Calder put it, ‘the definition of Communism reposed in the cranium of the Attorney-General,’ and Duplessis was capable of considering almost any critic a Communist. Indeed, one of his cabinet ministers argued that the law was explicitly ‘aimed at the many people who are Communists without knowing it.’ This gave the authorities carte blanche to decide what forms of unpopular political dissent could be suppressed, and in practice it meant the seizure of any writings that the police suspected might be left wing. In addition, it was almost impossible to launch a court challenge to the padlocking of a property or the seizure of materials." [Lambertson, Repression and Resistance; this source provides an excellent analysis of the use of the Padlock Act, and organized opposition to the law in Canada, including the court challenge]

The legislation was challenged in the Supreme Court of Canada in 1957. The only issue for the court was whether or not the legislation fell within the proper jurisdiction of the provinces. The majority found that the Padlock Act to be criminal law and, thus, ultra vires [beyond the jurisdiction] the legislature of Quebec. Ivan Rand and several other justices followed the same path previously trod by Cannon and Duff in 1937 by choosing to comment on the validity of the provincial claim to powers under ‘Property and Civil Rights’ for limiting a fundamental freedom. According to Rand, for “the past century and a half in both the United Kingdom and Canada, there has been a steady removal of restraints on this freedom [expression] stopping only at perimeters where the foundation of the freedom itself is threatened,” and freedom of expression had “a unity of interest and significance extending equally to every part of the Dominion.” Justices Fauteux and Abbot insisted on constraining the provinces’ ability to legislate against freedom of expression. Abbot claimed that no province could violate a freedom necessary for the continued viability of Canadian democracy. The decision may not have established a precedent for protecting freedom of speech, but it was successful in eliminating one of the most draconian laws ever introduced in Canada.

 

Further Reading

Berger, Thomas. Fragile Freedoms: Human Rights and Dissent in Canada. Toronto: Clarke-Irwin, 1981.

Ross Lambertson, Repression and Resistance: Canadian Human Rights Activists, 1930-1960 (Toronto: University of Toronto Press, 2004).

Scott, Frank R. Civil Liberties and Canadian Federalism. Toronto: University of Toronto Press, 1959.

Tarnopolsky, Walter. The Canadian Bill of Rights. Toronto: The Carswell Company Ltd., 1966.

 

 

 
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©Dominique Clément