A broad definition of a political state trial is one that involves the political interests of the government. Legal Historian F. Murray Greenwood had the idea for a series of books, inspired by an English history of state trials, that would trace political state trials in Canada from before Confederation to the end of the Cold War. Together with the Osgoode Society for Canadian Legal History, five volumes were published covering a wide array of topics examining a cross-section of politics, policing, treason, sedition, external and internal security issues, and acts of terrorism. This series of books has provided readers with a comprehensive history of state trials in Canada, and culminates with the fifth and final volume that covers the period from the Second World War to the fall of the Soviet Union. Like the previous state trial books, the final work “provides insight into the tensions within the rule of law, between executive authority and civil liberties, and between state sovereignty and self-determination” (pg. vii).
Each individual chapter considers the legal and political culture in Canada in the last half of the twentieth century. With the perceived threat of enemy aliens, fear of Communism and spy networks, nuclear proliferation, and proxy wars engulfing geopolitics, each chapter examines how the state responded to these threats, and how Canada’s legal system was shaped by major outside forces in response to growing internal and external instability. As the editors write in the Introduction, “[t]he volume seeks to illuminate the legal aspects of experience with the War Measures Act, the transition from World War to Cold War, the development of political and public order policing, and resistance to authority and colonization” (pg. 7).
Structured chronologically from the Second World War through to the fall of Communism, each author analyzes the often heavy-handed approach used by the government and the courts in dealing with real or perceived threats from both individuals and groups. Like the previous volumes, it raises many important questions about how the government approached issues of public safety. Authorities have always claimed that their goal is to strike a balance between defending national security while protecting civil liberties. The chapters in this book, however, reveal that the government often used threats to national security, real and perceived, to justify violating those very civil liberties they are charged with protecting.
The first two chapters explore the Canadian legal system at work during a time of war. Authors Eric M. Adams and Jordon Stanger-Ross argue that the use of the War Measures Act (WMA) undoubtedly gave the government extraordinary powers during a time of national emergency. They maintain that the legislation pertaining to Canadians of Japanese decent was not solely used to protect Canadian national interests following the attack on Pearl Harbor in December 1941. A large body of research has shown that the treatment of Japanese-Canadians during World War II was based more on racism than on any legitimate concern for national security. Japanese citizens were not only relocated to camps away from the coast of British Columbia, but their property and other assets were also seized under the WMA, and many law-abiding citizens were exiled to Japan even after the cessation of hostilities. They were unable to find redress in the Court system, who, as the authors argue, “could not overcome judicial deference to executive authority in a time of real, perceived, and concocted security concerns” (pg.46).
Law Professor Craig Forcese examines Canada’s involvement in the lead up to the trial of German Commander, Kurt Meyer, whose unit was responsible for murdering a number of Canadian POWs. Canada was not initially interested in the British framework for prosecuting war criminals, but did set up its own War Crimes Unit in the wake of Meyer murders following the D-Day invasion. Forcese argues that this trial was much more than the prosecution of war criminals, it was Canada’s way of expressing its own growing sovereignty in military justice. For the nation, the author concludes, this trial represented “an independent path in prosecuting German war criminals who had contributed to the murder of Canadian soldiers” (pg. 87).
The next two chapters examine how allies can quickly become adversaries when the geopolitical situation changes. Igor Gouzenko was working in the Soviet Embassy in Ottawa in late 1945. After rumors that he was being recalled by Moscow, Gouzenko left the embassy with a cache of Soviet documents exposing Soviet spy cells in Canada, the United States, and the United Kingdom. Reg Whitaker suggests, the Gouzenko affair “was the first clear notice of the coming breakdown of the war time alliance and the beginning of what would become the Cold War” (pg. 125). Playing out like a John Le Carré novel, Canadian public servants were passing along classified intelligence to their one-time Soviet allies, and Gouzenko’s defection led to a series of measures taken to clamp down on Communist infiltration in Canadian political and social circles, including special trials held under the Official Secrets Act (OSA). The extensive secrecy and processes to avoid public scrutiny, the political influence on prosecutorial conduct, and role of judges in political trials all shed light on the Canadian governments nefarious activities at the outset of the Cold War.
The second chapter dealing with Canada’s early Cold War activities, written by Barbara J. Falk and Tyler Wentzell, compares the Canadian and American approaches to dealing the Communist threats. Canada and America were allies during World War II followed by the Cold War, along with being neighbours and partners in the defence of North America. Despite the similarities in responding to the Communist threat, there were many differences from both the political and public opinion perspectives. The authors write that “both states prosecuted alleged party members under espionage statues and relied on conspiracy charges in attacking their respective Communist parties” (pg.177). Where the US wanted to destroy Communism with their approach being widespread and far more in depth, the Canadians were more limited in their pursuit of Communist infiltration with the public more concerned with civil right violations.
Historian Chris Madsen considers the growth of the surveillance state and the expansion of public order policing in response to the increased strength of organized labour. By analyzing a strike between workers and management over working conditions at Lenkurt Electric Company of Canada in May 1966, the author asserts that there is a “symbiotic relationship” between the state, the courts, and the police, and that labour unions and individuals were under constant surveillance for their involvement in “exaggerated real or implied threats” (pg. 230). As evident in the previous two chapters, society was rife with the fear of Communist influence and this extended to labour unions. Authorities were able to justify these actions in the name of protecting national security. Madsen concludes that the type of public order policing employed during the Lenkurt strike set a precedent “toward a more militarized model of law enforcement, with changes in organization, tactical employment, equipment, and training to handle large demonstrations and riots” (pg. 257). This type of policing would be seen again in subsequent chapters on the FLQ crisis in Quebec in the 1970s and Indigenous protests in the 1980s.
The next two chapters deal with what is perhaps the most famous state trial and threat to national security in Canadian history. Read together, both authors examine the rise of Quebec separatism and the legal response. Taking their cues from independence movements around the world, Quebec’s separatist organizations, most notably the FLQ, were becoming increasingly violent. This culminated with the kidnapping of British Trade Commissioner James Cross and the murder of Quebec labour minister Pierre Laporte, which led Prime Minister Pierre Trudeau to enact the War Measures Act. This was something that had not been done since the end of World War II, and had never been done in peacetime. In his chapter on the FLQ trials between 1963 and 1972, Jean-Philippe Warren describes how the courtroom essentially became a political “soapbox” for the defendants. In hindsight, a trial might not have been the best response to the FLQ, who were able to express the contempt for “colonization” by the Canadian government. They used every opportunity to question the legitimacy of the government and the jurisdiction of the courts. Without condoning the use of violence, the author concludes, the trials exposed the political nature of the courts during this period, in particular against Quebec separatism.
Legal scholar Darren Pacione considers the use of the WMA to charge the “Montreal Five” with seditious conspiracy for belonging to a prohibited organization – the FLQ. This is something, he reasons, would not have happened without the peacetime enactment of the WMA. The author argues that “the seditious conspiracy trial of the Montreal Five was a state trial for a political offence” (pg. 305). According to the author, this trial was politically motivated with a possibly pre-determined outcome as the defendants were associated with the FLQ. Though the case was dismissed, it led to judicial reforms that would prevent the biases that were inherent in the political trials of the FLQ, including an examination of the use of the WMA.
One immediate outcome of the trial of the Montreal Five was the establishment of the McDonald Commission in 1977 to review RCMP conduct with respect to their long-time political policing strategies. The Commission uncovered RCMP misconduct with its undercover Security Branch. Although criticism was leveled at the Commission because it failed to punish those RCMP officers known to have violated civil liberties, as author C. Ian Kyer writes, the work of the Commission had a lasting effect. It led to the establishment of CSIS and the Security Intelligence Review Committee. There were also key changes to significant government legislation, such as the replacement of the WMA with the Emergencies Act in 1988, as well as amendments to the Official Secrets Act.
Finally, the volume concludes with two chapters on how governments and the courts responded to the increasing tensions with Indigenous peoples. These final two chapters should be read in tandem and understood in the context of the post-Charter period. Section 35 of the Charter of Rights and Freedoms affirms the existing rights of Canada’s Indigenous peoples. Though each chapter deals with specific events at different times and in different parts of the country, the major issues behind the increasing tension between the government and the Indigenous peoples is analogous. Indigenous customary law and customs contravened settler law, in particular concerning disputes over private property.
Benjamin Isitt examines protest blockades along contested land on the west coast of British Columbia. For far too long, private interests have benefitted from the laws coercive approach – injunctions, public order policing – to Indigenous-settler disputes. In the post-Charter era in British Columbia, the author argues, there was a decline in the use of these intimidating methods in response to challenges to the government, and in the two cases considered “the BC judiciary had displayed a growing unwillingness to unilaterally intervene on behalf of conventional private property interests and against Indigenous interests” (pg. 381).
Arguably the most recognized Indigenous confrontation with the Canadian government in the twentieth century occurred in 1990 in Oka near Montreal. Mark D. Walters considers how the events at Oka meet the definition, if they do, of a state trial. He suggests there remains questions about whether Indigenous community at Oka “were not so much attacking the Canadian state as they were appealing to a vision of the state that might honour its own commitment to equal respect of all people” (pg. 429). By examining the role the law played throughout the Oka Crisis, Walters demonstrates how the disconnect between Indigenous and settler law broke down, including the use of coercive like court injunctions, public order policing, and contempt hearings, which ultimately led to military intervention to end the blockade.
Striking the ideal balance between the need for greater state security with upholding freedoms and civil liberties is at the core of liberal democracy. The Canadian State Trials Volume V examines the real and perceived threats to Canadian national security and the government’s sometimes ill-conceived responses to those risks. As several authors illustrate, when the authorities contort the laws or misuse threats to national security for political, social, economic expediency, the nation’s robust defence of civil liberties deteriorates. Like the previous edited volumes in the series, this final book in not nearly a comprehensive assessment of state trials during the period. Rather the editors and each author have selected subjects that would be of wide-ranging interest to legal scholars, historians, and the general public.
