Conspiracy and Sedition as Canadian Political Crimes
To my mind that old dream of the
ancient prophet comes back; of the
image with the head of gold, with the
shoulders and arms and torso of silver,
with the thighs and legs of brass, and
the feet of clay. …
William A. Pritchard’s
Address to the Jury in
R. v. Armstrong et at.’
Like the image of the ancient prophet, the conspiracy offence
has an imposing stature which can easily obscure a foundation of
clay. Vague in definition and unpredictable in application, the offence
is uniquely adaptable to the turmoil of what is, or what is perceived
to be, a threat to existing order or stability. When such a threat, real
or imagined, is recognized, it is usually seen as arising from the
preconcert of several persons. The ingredients of conspiracy are
readily inferred and it remains only to find an appropriate label by
which it may be characterized as unlawful. Sedition and treason are
the principal political conspiracies, though the open-endedness of
common law conspiracy suggests endless possibilities in rendering a
Although the terms “political crime” and “political trial” can be
overworked in criticisms of our legal process there is a sense in
which they are justly descriptive of some proceedings. A trial tends
to be political when those in government feel directly threatened by
the actions of the defendants.’ It is true that all criminal offences are
considered crimes against the state and, therefore, against all the
people. In the vast majority of cases, however, the administration
of justice enjoys detachment from the alleged social harm. Normally,
we do not worry about a petty thief or a safe-cracker and as long as
stealing and safe-cracking do not become endemic, we regard them
* B.A., LL.B., LL.M., of the Ontario Bar, Assistant Professor of Law at the
University of Saskatchewan.
Heaps, Bray, Ivens, Johns, Pritchard, and Queen (1920), 4.
‘William A. Pritchard’s Address to the Jury in The Crown v. Armstrong,
2 “[P]erception of a direct threat to established political power is a major
difference between political trials and other trials.” Becker (ed.), Political
Trials (1971), xi.
CONSPIRACY AND SEDITION
more as nuisances than as threats. But in times of political turmoil
or crisis, the distinction between “legal” and “political” issues
becomes blurred. Both the pre-trial proceedings and the trials them-
selves become a battleground for social values in conflict. The cons-
piracy offence both accommodates and promotes this conflict.
When a threat to civil order is perceived, a conspiracy theory of
disobedience and protest is more palatable to government than the
belief that mass action is genuine. In times of internal disorder or
crisis it is a natural tendency of government to identify a small group
of persons as the source of discontent. Leaders or spokesmen are
readily identified as promoters and agitators who have provoked
their normally peaceful and contented followers to serve their own
ends. The suggestion that widespread protest could, in fact, be a
spontaneous movement would reflect adversely on the well-being
of people and thereby on the quality of their government. Conspiracy
can be, then, the interpretation suggested by the defensive reaction
of government before the matter comes before the courts.
An appropriate beginning to the analysis of this problem is to
examine the definition of seditious conspiracy. The Criminal Code
stipulates that “[e]very one who… is a party to a seditious cons-
is guilty of an indictable offence and is liable to im-
prisonment for fourteen years”3 A seditious conspiracy is defined
as “an agreement between two or more persons to carry out a se-
ditious intention” A seditious intention is not defined exhaustively
in the Code but section 60(4) establishes a presumption of seditious
intention when anyone “(a) teaches or advocates, or (b) publishes
or circulates any writing that advocates the use, without the authority
of law, of force as a means of accomplishing a governmental change
The statutory presumptions established by section 60(4) originat-
ed with the repeal, in 1936, of the former section 98 of the Criminal
Code0 which provided that
[alny association, organization, society or corporation, whose professed
purpose or one of whose purposes is to bring about any governmental,
industrial or economic change within Canada by use of force, violence or
3 R.S.C. 1970, c.C-34, s.62(c).
5 Ibid., s.60(4).
I Mackenzie, Section 98, Criminal Code and Freedom of Expression in Canada
(1971-72) 1 Queen’s LJ. 469, 483.
McGILL LAW JOURNAL
physical injury to person or property, or by threats of such injury, or
which teaches, advocates, advises or defends the use of force, violence,
terrorism, or physical injury to person or property, or threats of such
injury, in order to accomplish such change, or for any other purpose, or
which shall by any means prosecute or pursue such purpose or professed
purpose, or shall so teach, advocate, advise or defend, shall be an unlawful
This section further provided for up to twenty years imprisonment
for anyone even remotely connected with an unlawful association;
membership itself was not required.” Additional provisions allowed
special powers of search and seizure, punishmenl of property holders
who permitted unlawful associations to gather on their premises,
and the punishment of persons having anything to do with the
publication and circulation of seditious literature.
The history of section 98 in relation to freedom of expression
has been recorded elsewhere. 10 The few prosecutions brought under
the section suggest that its official use was by no means indiscri-
minate” but the volume of prosecutions is not the most important
test of its effects. The psychological impact of such a law on freedom
of speech and association inevitably is significant. The language of
the section was susceptible to extended definition to include a wide
range of conduct, and the possibility of police harassment, without
prosecution, was unlimited.
It was principally from labour organizations that pressure for
the repeal of section 98 originated. In 1936 if was repealed, partly
because the section was susceptible to abuse and partly because it
was felt that the existing law of sedition was adequate to meet the
kind of situations that would normally arise under the section.12
But repeal was accompanied by an amendment to the Code, now
section 60(4), which stipulated the presumption of seditious inten-
The history of section 98 reveals why there is not a statutory
definition of sedition in Canada. It was certainly not an oversight on
the part of Parliament. A definition was proposed in the Criminal
Code Bill of 189113a but it was ultimately decided to leave the defini-
7S.C. 1919, c.46, s.l: “97A.(1)”.
8 Ibid., “97A.(4)”.
9Ibid., “97A.(5) … (6)”, “97B.(1)”. Ss.97(a) and (b) were incorporated in
the 1927 Revision as s.98 (R.S.C. 1927, c.36).
‘ Mackenzie, supra, note 6.
12 Ibid., 483.
13a H.C. Deb., 2d sess., 7th Pan., 1891, vol.1, 106.
CONSPIRACY AND SEDITION
tion to common law. The Honourable Ernest Lapointe subsequently
described the rationale for this position.
This crime of sedition has been discussed in Great Britain on many,
many occasions. The commissioners who wrote the English draft code
inserted a definition of some kind as to what constitutes sedition and
what constitutes seditious words or seditious intentions. But after pro-
longed debate in the British parliament it was decided that it would be
better to keep the word ‘sedition’ not defined expressly but rather left
there to meet all occasions and to apply to all cases where order is
disturbed or where there may be danger in the land.14
Lapointe made it clear that the Government of Canada intended to
follow the example of the British Parliament. 5 His remarks, made
at the time of the repeal of section 98, suggested that the Government
felt the existing laws of sedition were adequate to meet situations
where “order is disturbed or where there may be danger in the land”.
The open-endedness of sedition was the principal reason for its
adequacy. The courts were, then, left to define sedition in light of
facts peculiar to different cases and historical circumstances.
Sedition: Stephen’s Definition
Okotoks, Alberta, is an innocuous site for a seditious offence to
occur. On August 27, 1915, one Oscar Felton sat in a hotel bar-room
at Okotoks and enlightened the bartender and one other person
present on his feelings about the war. He commented that he would
like to see the Germans cross the Channel and wipe England off
the map because England had put Russia into the war and was
letting her get licked. This indiscretion earned Felton a conviction
for speaking seditious words which were simply words spoken with
a seditious intention. In affirming the conviction,’ 6 the Supreme
Court of Alberta cited Stephen’s definitionloa of seditious intention:
[A]n intention to bring into hatred or contempt, or to excite disaffection
against the person of Her Majesty, her heirs and successors, or the Go-
vernment and Constitution of the United Kingdom, as by law established,
or either House of Parliament, or the administration of justice, or to excite
Her Majesty’s subjects to attempt otherwise than by lawful means the
alteration of any matter in Church or State by law established, or to raise
discontent or disaffection among Her Majesty’s subjects, or to promote
14 H.C. Deb., 1st sess., 18th Parl., 1936, vol.4, 3897, 3900.
15 Lapointe continued: “There were some who wanted to define the offence
of sedition more specifically but the parliament of Canada of that time, in its
judgment, thought it better to follow the English practice and to remain with
the common law operation in that regard” (ibid.).
16 R. v. Felton (1915) 25 C.C.C. 207 (Alta S.C.).
36a Stephen, History of the Criminal Law of England (1883), vol.2, 298.
McGILL LAW JOURNAL
feelings of ill-will and hostility between different classes of Her Majesty’s
There were other cases similar to that of Felton,’
1916 the Alberta Supreme Court made a distinction between uttering
“disloyal and unpatriotic sentiments” and uttering words which
express a seditious intention.”‘ It is questionable whether this dis-
tinction would have affected convictions for criticisms of the war or
war effort. Stephen’s definition admitted of highly subjective inter-
pretations about what might excite disaffection against the Govern-
ment or raise discontent among the population. Historical conditions
can render words seditious which would be regarded as disloyal
and unpatriotic utterances in normal times. In Felton, Harvey C.J.
referred to the nervous tension, excitement, and “intense feeling
against the enemy”.20 In R. v. Cohen,21 Stewart J. remarked that the
“circumstances … of the times” must be taken into account in de-
termining whether a remark is seditious.2 2 The simple difficulty
with taking into account the “circumstances of the times” in applying
Stephen’s definition of sedition is that the passions of the moment
may play a role in the determination of guilt, and a verdict of guilty
may be seen as an affirmation of loyalty.
The Winnipeg General Strike
When Stephen’s vague definition of sedition is combined with
the problems inherent in the conspiracy offence, the potential
difficulties are endless. The seditious conspiracy cases which followed
the Winnipeg General Strike illustrate these problems in the context
of a serious political, social and economic crisis. The history of the
strike has been well documented3 but a brief outline of the historical
context within which the cases occurred is necessary in this dis-
On May 6, 1919, the Winnipeg Trades and Labour Council decided
to take a vote in its affiliated unions on whether to strike in sympathy
with the metal trades workers who had been on strike since April
17 Supra, note 16, 209.
18 R. v. Cohen (1916) 25 C.C.C. 302 (Alta S.C.); R. v. Manshrick (1916) 27
C.C.C. 17 (Man. C.A.).
‘OR. v. Trainor (1917) 27 C.C.C. 232, 239.
20 Supra, note 16, 212.
21 Supra, note 18.
22 Ibid., 304.
23 See particularly Bercuson, Confrontation at Winnipeg (1974); Bercuson
and McNaught, The Winnipeg Strike, 1919 (1974); Masters, The Winnipeg
General Strike (1950).
CONSPIRACY AND SEDITION
30th. Labour had good reasons to be restless in the spring of 1919;
inflation was rampant and had its most adverse effects on wage
earners and others on fixed incomes. Since the beginning of the war,
price increases had outstripped wage increases by more than four
times and while war prosperity had brought large profits it was
clear that labour was not a beneficiary. In addition, returning mi-
litary personnel released into the labour market increased tension
and uncertainty about future employment prospects 2 4
The vote of unions affiliated with the Council was overwhel-
mingly in favour of strike action and walk-outs began on May 15th.
For the next several days, strike action proliferated in Winnipeg
and what has been described as “the largest and most nearly success-
ful general strike in North America ‘ 21 was underway. During the
first few days postal workers, railway employees, telephone workers,
printers and telegraphers walked off their jobs. The City refused
to negotiate until the strike was over and fired civic employees who
had left their jobs. The Post Office fired all of its striking employees
and all but sixteen city policemen were dismissed for refusing to
sign a statement promising not to strike. Returning soldiers held a
parade in support of the strike, thus beginning a series of parades
which resulted in several clashes with special police organized by a
The nationwide reaction of the press to these events was hys-
terical. The Manitoba Free Press was convinced that the strike had
been “engineered by the Reds” as the starting point of a bolshevik
revolution.6 The Winnipeg Citizen was equally sure that the strike
was an attempt to establish bolshevism, 7 and similar sentiments
were expressed by newspapers across the country. 8 At a time when
revolution and civil war in Russia were fresh in the consciousness
of people, this commentary could only incite a state of grave appre-
The reports of the federal Minister of Labour, Senator Robertson,
to the Prime Minister also indicated that the strike had at least in
part emanated from the “Red element” and that it was “the duty of
the Goverment to remove this menace”.29 Meanwhile the press con-
24 Masters, ibid. See also Katz, Some Legal Consequences of the Winnipeg
General Strike of 1919 (1970) 4 Man. L.J. 39.
28 Ibid., part II.
29 Ibid., 35.
25 McNaught, Political Trials and the Canadian Political Tradition (1974)
26 This and other newspaper excerpts relating to the strike are taken from
24 U.of T.LJ. 149, 157.
the compilation of Balawyder, The Winnipeg General Strike (1967), 19.
McGILL LAW JOURNAL
tinued to fan the flames by encouraging the view that insidious
leadership had duped the workers for its own revolutionary ends.
In Regina, The Morning Leader suggested that the leaders of the
strike were opposed to all co-operation between capital and labour 0
The Victoria Daily Times revealed that “Bolshevik pedagogues were
at the back of the whole business” 3 The Winnipeg Citizen informed
its readers that the workers were “tricked and betrayed into striking”
by the bolsheviks in the Labour Temple. 2
It was against this background that government and the ad-
ministration of justice reacted. On June 6th, the twenty-sixth day of
the strike, the Federal Government introduced a bill which provided
for the deportation of persons convicted of seditious offences. It
passed all three readings in the House of Commons in twenty mi-
nutes and, on the same day, passed the Senate and received royal
assent.33 The Labour Minister’s report to the Prime Minister on
June 17th indicated the additional steps which had been taken:
The plan which had been carefully prepared for the taking into custody
of the revolutionary leaders was put into effect last night and ten of them
apprehended and transported by automobile to Stony Mountain Pe-
Eight of the ten were charged with seditious conspiracy. They were
William Ivens, R.B. Russell, R.J. Johns, William Pritchard, George
Armstrong, R.E. Bray, A.A. Heaps, and John Queen. Of the eight,
seven were ultimately convicted.
The trial of the strike leaders has been described as “a struggle
over the issue whether the strike was part of a seditious conspiracy
or a legitimate dispute over wages and collective bargaining”.”,
While it is not a purpose of this paper to review all the circumstances
and merits of either position, the dispassionate vantage of time
suggests the latter is more likely.38 The point here is that the
atmosphere of the period was highly prejudicial to, firstly, the deci-
sion of whether or not to prosecute and, secondly, the trial of the
issue. In its attempt to avoid responsibility for the conditions which
30 Ibid., 17.
31 Ibid., 18.
32 Ibid., 19.
33 Masters, supra, note 23, 103-104.
34 Balawyder, supra, note 26, 36.
35 Masters, supra, note 23, 120.
36 Masters concluded that “there was no seditious conspiracy and that the
strike was what it purported to be, an effort to secure the principle of
collective bargaining” (ibid., 134). McNaught also reached the conclusion that
there was not a seditious conspiracy, supra, note 25, 160.
CONSPIRACY AND SEDITION
led up to the events in Winnipeg, the Government found the conspira-
cy theory most attractive. The press provided a harmonious accompa-
niment to governmental
thinking by vigorously promoting the
spectre of a communist conspiracy. The danger was that the jury
would only affirm the verdict.
The preliminary hearings and the trials of the defendants featured
a deluge of political pamphlets, socialist and labour publications,
and other literature. Long hours of testimony repeated the details
of the strike events, particularly those of the parade of June 21
when two deaths resulted from a clash between strikers, special
police, and Royal North West Mounted Police.37 The most radical
socialist statements made by the defendants in the preceding months
were also introduced in evidence, together with their membership in
socialist organizations 38 Defence objections to some of this evidence
(the political literature) were overruled.
The technical basis of the rules of evidence peculiar to the cons-
piracy charge is, in itself, a complex subject. For present discussion,
it is sufficient to point out that acts done or words spoken in further-
ance of a conspiracy may be given in evidence against all conspira-
tors39 and defendants in a conspiracy trial, upon proof of common
purpose, are legally considered to have said or done everything that
every other conspirator, whether charged or not, has said or done.
As a matter of practice the prosecution can proceed with its evidence
on the basis of this rule, subject to subsequent proof of the cons-
piracy. The effect of this rule in a trial arising out of an event such
as the Winnipeg strike is staggering. There are few clear limits as to
who may be considered a co-conspirator. Since a conspirator need
not be charged, or even named, the prosecution can invite the jury
to consider whether anyone, however remotely involved, was a cons-
pirator and, if the jury so determines, evidence of that person’s
words and actions will be evidence against the accused.
An appeal to the Manitoba Court of Appeal,40 on behalf of Russell,
was based in part on the admissibility of documents, pamphlets and
other political literature (including the Communist Manifesto) dis-
tributed by organizations with which the defendants, or some of
3t Masters, supra, note 23, 115.
38 McNaught, supra, note 25, 160.
39 Despite some doubt about the authorities most frequently relied upon as
clearly establishing a conspiracy exception to the hearsay rule, the exception
has been widely recognized as part of the law of evidence. See Koufis v. The
Queen  S.C.R. 481; Cloutier v. The Queen (1939) 73 C.C.C. 1 (S.C.C.);
Paradis v. The Queen  S.C.R. 165.
40R. v. Russell (1920-21) 33 C.C.C. 1 (Man. C.A.).
McGILL LAW JOURNAL
them, were associated. This literature, was found in Russell’s pos-
session, in the hands of others alleged to have been parties to the
conspiracy and in the possession of other persons. Perdue C.J.M.
decided that all of these writings were admissible against Russell.
Those found in Russell’s possession were prima facie evidence
against him: “It will be inferred that he knows their contents and
has acted upon them.”4’ Documents found in the possession of other
alleged conspirators were admissible against Russell “if they were
intended for the furtherance of the conspiracy”. 42 Citing R. v. Par-
nell43 and R. v. Murphy, 4Perdue C.J.M. continued:
The parties to the conspiracy may never have seen or communicated with
each other yet by the law they may be parties to the same common
criminal agreement, with the same consequences to each other from acts
done by one of them or documents found in possession of one of
Documents found in the hands of third parties were admissible as
evidence “if they relate to the actions and conduct of the persons
charged with the conspiracy or to the spread of seditious propaganda
as one of the purposes of the conspiracy” a.4
It can be seen at once that there are few limits to the admissibility
of evidence under such an interpretation. Russell would permit all
kinds of political literature to be introduced as evidence, thus
threatening the distinction between relevance and irrelevance, and
with the accompanying danger that the jury will find critical ap-
praisal of the evidence impossible. Books, pamphlets and speeches
can be read into the record thus allowing maximum appeal to emo-
tion and prejudice. From the mass of literature introduced at the
trial of the others accused of conspiring with Russell, the prosecution
centered on the word “revolution” and used it repeatedly in offering
evidence and in addressing the jury.47 The word “revolution” may
have many meanings, but to the popular mind it connotes violence,
bloodshed and chaos. In view of the disorder and disruption in
Winnipeg and the clashes between police and marchers, the effect
of the prosecution’s appeal could only be prejudicial. Certainly the
disorder undermined government, as all disorder does, but the critical
issue of whether the accused caused this result, or intended and
43 (1881) 14 Cox C.C. 508.
44 (1837) 8 Car.& P. 297, 173 E.R. 502.
4 5 Supra, note 40, 6.
47 Supra, note 1, 72.
CONSPIRACY AND SEDITION
agreed to cause this result, may have been easily lost in the passions
of the moment.
The Communist Leaders
Canada was as hard hit by the depression as any country in the
western world. The combination of a sharp decline in foreign trade
and severe drought created massive unemployment and with it the
tragedy of widespread poverty. These conditions gave rise to political
protest on a large scale as transient groups of unemployed moved
back and forth across the country. Once again, the Government
perceived communism as a serious threat 8
In August, 1931, eight leaders of the Communist Party of Canada
were arrested, and seven were charged and convicted of being mem-
bers of an unlawful association. A further count alleged a seditious
conspiracy in that the accused
did become and continue to be members of the Communist Party of
Canada, section of the Communist International, and did conspire to-
gether to further the objects and aims of the said Party and that the
objects and aims of the said Communist Party of Canada, Section of the
Communist International, are of a seditious nature intended to incite His
Majesty’s subjects to attempt otherwise than by lawful means
alteration of the Government of the Dominion of Canada and to incite
persons to commit crimes and disturbance[s] of the peace and raise dis-
content or disaffection among His Majesty’s subjects and to promote
feelings of ill will and hostility between different classes of such subjects. 49
On appeal, it was felt that the conviction of this conspiracy count
should be quashed. In delivering the judgment of the Ontario Court
of Appeal 5 0 Mullock C.J.O. stated that this charge failed for in-
sufficiency because the count only alleged that the accused became
parties to a seditious conspiracy. While the particulars furnished
showed that the seditious conspiracy which was charged was mem-
bership in the Communist Party, the conviction for conspiracy could
not stand because the function of particulars is to give further
information to the accused of that which it is intended to prove
against him, and not to supplement a defective indictment.P1
It is interesting to note that had the charge embodied the in-
formation in the particulars, it would have been properly framed.
4 8 McNaught, “The 1930’s” in Careless and Brown (eds.), The Canadians
1867-1967 (1967), 23841.
49 R. v. Buck (1932) 57 C.C.C. 290, 291-92 (Ont.CA.).
50 Ibid., 293.
McGILL LAW JOURNAL
Undoubtedly this view was influenced by the unlawfulness of the
Communist Party within the meaning of the now defunct section 98
of the Criminal Code.”, But a distinction should have been made –
even for the purpose of determining whether the conspiracy count
alleged an offence known to law –
between adherence to a set of
values, beliefs and principles, and a specific agreement to set in
motion a plan whereby the aims of the Communist Party could be
At the trial of Tim Buck and his co-accused, there was ample
evidence of the unlawfulness of the Communist Party within the
meaning of section 98 of the Code. This evidence included the theses
and statutes of the Communist International; the report of the pro-
ceedings of the Communist International in 1921; excerpts from the
party newspaper dating some seven years before the trial; and
excerpts from a book entitled The A.B.C. of Communism, published
in 1 9 1 9. 5 1
b The political principles of an association were very much
in issue on a charge under section 98, but the Court’s view of what
would have been a sufficient conspiracy count suggests that the
evidence would have been admissible on that charge as well. Again,
the danger lies in possible prejudice flowing from evidence of the
political beliefs in question, and the possibility that a jury will infer
a conspiracy from the fact of membership in a particular organiz-
ation. This danger is all the more real when the organization is
seen as an imminent threat because of existing social conditions and
Although the Buck case does not shed much light on the cons-
piracy offence in particular, it does serve to illustrate how the legal
issues in political trials must be crystallized and removed as much
as possible from the influence of popular emotion. This protection
is not easily assured when comments by both the prosecution and
the Court define the jury’s role as essentially letting Russia know
Canada’s position with respect to the communist menace. 2
51a R.S.C. 1927, c.36.
51b See, supra, note 49, 310.
52 Mackenzie, supra, note 6, 477, has described the summation of the pro-
secution and the judge’s charge. Of the prosecution’s summation, Mackenzie
writes: “He reminded the jurors that they were sitting ‘in the shadow of
Remembrance Day’ and urged them to give an ‘unequivocal answer
Moscow…’. He asked the jury to understand ‘the clear, cold, plain meaning
of this thing which rose out of the Red soil of Russia’. He concluded, ‘you
will see behind this thin veil of defence. You will strike at this thing, and
CONSPIRACY AND SEDITION
The accommodation of a minority whose religion extends beyond
matters of faith and worship to the totality of culture inevitably
leads to conflict. Such has been the history of the Doukhobors
dating back almost to their arrival in Canada in 1899. Pilgrimages,
nude demonstrations and arson characterized the resistance of the
particularly zealous Sons of Freedom sect to assimilation by, or
association with, the mainstream of Canadian society. These activities
made them continually subject to legal action.P The Freedomites’
penchant for taking off their clothes prompted the Government to
make nudity in a public place a serious criminal offence with a
three year prison term as maximum punishment. a Mass arrests
and trials in the 1930’s resulted in the establishment of a penal colony
for six hundred Sons of Freedom who were convicted and sentenced
to three years imprisonment on this charge.
In 1950, Freedomite prophet Michael Veregin and his associate
Joe Podovinokoff were charged and convicted of seditious conspiracy
because of their alleged promotion of arson and nudity, but their
convictions were overturned because of a misdirection by the trial
judge. Another aspirant to Freedomite leadership was also convicted
of seditious conspiracy in that he and four other Doukhobors had
signed a document in which they refused to obey certain laws of
Canada, one of which concerned the registration of births, deaths and
marriages as required by provincial law. Lebedoff’s appeal to the
British Columbia Court of Appeal was dismissed. 5
The theory that Freedomite activity was the outgrowth of an
organized conspiracy was given ultimate expression in 1962, shortly
after a special R.C.M.P. squad was formed to deal with escalating
violent protest. In March, twenty Doukhobor men were convicted
of conspiracy to commit arson. A few months later the complete
seventy-member Fraternal Council of the Sons of Freedom was
present in a New Westminster courtroom to face charges of cons-
piracy, together and with others over a seven year period from 1955
to 1962, to intimidate the Parliament of Canada and the British
3Two secondary sources which were relied upon for factual material about
the Doukhobors were Woodcock and Avakumovic, The Doukhobors (1968); and
Kettle and Walker, Verdict! (1968), 67 et seq.
53a S.C. 1931, c.28, s2.
54 Holt, Terror in the Name of God (1964), 139.
55 R. v. Lebedoff (No. 2) (1950) 98 C.C.C. 117 (B.C.C.A.).
McGILL LAW JOURNAL
Columbia Legislature. 0 The preliminary hearing lasted thirty-eight
days. The evidence consisted of some five hundred documents and
the oral testimony of ninety-eight witnesses which basically revealed
a history of Freedomite criticisms of the Canadian Government. The
Magistrate found that, amidst this morass of evidence, there was no
evidence of a conspiracy.
Had the prosecution against the Fraternal Council been success-
ful, the conviction would have had an ominous presence in the area
of civil liberty. In this country we cherish the existence of certain
freedoms subject to the limits of the criminal law. But where the
criminal law does not establish clear limits, the extent of these
freedoms is undefined, unknown and susceptible to arbitrary en-
It is the fundamental nature of the conspiracy offence that it
undermines the definition of criminal conduct. The charge brought
against the Doukhobors was conspiracy to do an act or acts of
violence in order to intimidate the Parliament of Canada and the
legislature of British Columbia. “Act of violence” is itself undefined
but the problems just begin there. The violent act is but the means;
it must be for the purpose of intimidation. The charge is, then,
“conspiracy to intimidate”; an agreement to overawe, influence
perversely, or inspire with fear. The substantive offence is vague
enough, but would at least require the completion of an act of
violence. There is no such requirement for proof of the conspiracy.
Any group of protesters and demonstrators could be charged with
such an offence. Nor is the effect of such an offence limited to
those occasions where a conviction is recorded and a precedent
established. Vague offences provide an excellent pretext for the
harassment of political dissenters, and those detained or arrested
would have no effective civil recourse if charges were subsequently
Most Canadians are familiar with the events which occurred in
Quebec during the autumn of 1970: the reaction of the F.L.Q. to the
results of the Quebec provincial election in that year, the escalating
activism and the kidnappings of James Cross and Pierre Laporte.
The significance of these events was established for the Canadian
5 s.51 of the Criminal Code, R.S.C. 1970, c.C-34 provides: “Every one who
does an act of violence in order to intimidate the Parliament of Canada or the
legislature of a province is guilty of an indictable offence and is liable to
imprisonment for fourteen years.”
CONSPIRACY AND SEDITION
people by the invocation of the War Measures Act.57 A spectre of
insurrection, raised by the Government and the media, overtook
events and people with incredible rapidity. Nearly five hundred
people were arrested by the authorities. As days passed and it
became apparent that no real insurrection was underway, there was
significant pressure on the Governments of Quebec and Canada to
justify the use of the extraordinary powers under the War Measures
Act. On November 4, 1970, the Quebec Justice Minister announced
that several of the sixty-five suspects still in custody might be
charged with treason and sedition.58 The following day, Pierre Val-
li~res, Charles Gagnon, Robert Lemieux, Jacques Larue-Langlois and
Michel Chartrand were charged with participating in a seditious
conspiracy aimed at changing the governments of Canada and Quebec
by advocating the use of force contrary to section 62(c) of the
Criminal Code.59 In plain language, the charge was “conspiracy to
advocate” violence. It was not necessary to prove actual promotion
or incitement, but simply an agreement to advocate violence –
steps away from the object. The charge alleged that the conspiracy
had taken place over a period of nearly three years.
The first week of the trial was taken up with the hearing of
various motions including one to quash the charge itself. On Friday,
February 12, 1971, OuimetJ. of the Court of Appeal granted the
motion and quashed the conspiracy charge against all accused. In
delivering his reasons, Ouimet J. stated that the charge was too
vague because it covered such a lengthy period of time. He question-
ed whether a complete defence could be prepared to such a charge,
and whether a “conspiracy by advocating” violence is possible.o
The insufficient details presumably could have been overcome by
ordering particulars, but the other reasons given by Ouimet J. go to
the heart of the conspiracy offence. The finding that the charge was
too vague and the problem of preparing a defence suggests the
possibility that some conspiracy charges may violate the right to a
5 R.S.C. 1970, c.W-2.
58By this time an additional requirement had been added to the definition
of sedition. In Boucher v. The King  S.C.R. 265, the court decided that
an intention to incite violence against constituted authority or to create a
public disturbance or disorder against such authority was necessary. This,
at least, prevents charges resulting from expressions of disloyalty or lack of
patriotism. However, an intent to incite violence or, in particular, public
disorder, remains a vague requirement and by no means cures the amorphous
nature of seditious offences.
69 The case is not reported. But see Globe and Mail, Toronto, Nov. 6, 1970, 1.
60 Globe and Mail, Toronto, Feb. 13, 1971, 1-2.
McGILL LAW JOURNAL
fair hearing as guaranteed by section 2(e) of the Canadian Bill of
Rights.”1 It is arguable that the offence ‘is inherently vague and
thereby violates the right to a fair hearing. But certainly when the
time period is long or when the charge alleges, as in this case, a
“conspiracy to advocate”, the argument is very plausible indeed.
By the time Ouimet J. had granted the motion to quash, the
accused had been in custody for nearly five months, with the ex-
ception of Larue-Langlois who had been granted bail the previous
December. Most of the others held and charged under the War
Measures Act or with other offences under the Criminal Code were
out on bail. Although there were similar charges pending against
Vallires, Gagnon, Lemieux and Chartrand, it might be inferred
that it was partially due to the seditious conspiracy charge that they
were refused bail and kept in custody.
Less than one month after the motion to quash was granted, Val-
li~res, Larue-Langlois and Gagnon were charged with seditious cons-
piracy over the same time period as in the previous indictment.
Valli~res’ trial was postponed until the fall because of his ill health,
and the trial of Gagnon and Larue-Langlois was scheduled to com-
mence on April 26th. A motion to quash was brought again, but this
time was dismissed. B61anger J. held that the charges were explicit
enough in accusing the two of conspiring to overthrow the govern-
ment by force, violence, or threats of violence. Following a six-
week trial, the two were acquitted. Valli~res disappeared before his
scheduled appearance and emerged the following January to re-
nounce the F.L.Q. and express support for the Parti Qudbecois. In
October, 1972, he was given a suspended sentence on counselling
charges and the prosecution did not proceed with the seditious
conspiracy count0 2
Common Law Conspiracy and Political Dissent
The definition of conspiracy which Willes J. offered in Mulcahy
is in substance incorporated in the Criminal Code
v. The Queen
101 S.C. 1960, c.44 (see R.S.C. 1970, Appendix III).
02″403 of the 465 persons arrested were released within two months without
charges being laid. All charges laid under the War Measures Act were stayed
by nolle prosequi in July 1971 at the request of the Quebec attorney-general.
Eighty-six people had been charged under the act and 62 under sections of the
Criminal Code. Only five of those charged under the act, and who pleaded not
guilty, were convicted”, McNaught, supra, note 25, 163.
63″A conspiracy consists not merely in the intention of two or more, but
in the agreement of two or more to do an unlawful act, or to do a lawful
act by unlawful means.” (1868) L.R. 3 H.L. 306, 317.
CONSPIRACY AND SEDITION
under the heading “common law conspiracy”. Section 423 (2) provides
Every one who conspires with any one
to effect an unlawful purpuse, or
to effect a lawful purpuse by unlawful means,
is guilty of an indictable offence and is liable to imprisonment for
The section was first included in the 1953-54 revisions of the Code as
a codification of common law conspiracy.4 It must be read in con-
junction with section 8(a):
8. Notwithstanding anything in this Act or any other Act no person
shall be convicted
(a) of an offence at common law… .5
Speaking in the House of Commons on January 19, 1954, Justice
Minister Garson indicated that the purpose of section 8(a) was to
establish that a Canadian could no longer be charged with a common
in effect, federal criminal legislation would be ex-
haustive as to offences. To that end, all common law crimes which
had been successfully prosecuted between 1892 and the 1953-54
revisions were incorporated in the Criminal Code. 6
The important concepts in the new codification of common law
conspiracy were “unlawful purpose” and “unlawful means”. In itself
the latter should not cause much difficulty in that the cases do not
draw a distinction between means and ends. It is an agreement to
do an unlawful act which constitutes a conspiracy; it does not matter
whether the act in question is the ultimate object or one of the
steps along the way.67 As to the “unlawful purpose”, the principle
of legality would suggest an interpretation which would not under-
mine codification by providing recourse to a potentially unlimited
common law area of criminal conduct. Yet today we are left with
little more than sporadic clues to the limits of section 423(2). The
problem has its origin in the historical development of the conspiracy
The historical roots of the modern law of criminal conspiracy
can be traced with certainty to the decision in The Poulterers’ Case
in 1610.08 Before this decision, the offence was confined to combina-
tions to bring false indictments or appeals, or to maintain vexatious
suits; the illegal objects of combination were defined specifically
64 S.C. 1953-54, c.51, s.408(2).
6 5R.S.C. 1970, c.C-34, s.8(a).
06 H.C. Deb., 1st sess., 22d Parl., 1953-54, vol2, 1253.
67Howard, Australian Criminal Law 2d ed. (1970), 272.
68 (1610) 9 Co.Rep. 55b, 77 E.R. 813.
McGILL LAW JOURNAL
and narrowly. In The Poulterers’ Case, several London poultry dealers
agreed to falsely accuse the plaintiff of robbery. The defendants
procured warrants, caused the plaintiff to be apprehended and bound
over to the Assizes, and preferred a bill of indictment against him.
The case actually decided that a conspiracy is punishable although the
malicious prosecution was not complete and had not ended in
acquittal.0 It was indicated that although a writ of malicious pro-
secution will not lie unless the aggrieved party is indicted and
acquitted, a conspiracy will be punished “although nothing be put
in execution”. 70
The Poulterers’ Case marked the beginning of a shift in emphasis
from the false accusation which was the basis of the earlier civil
action, to the nature of the agreement itself. Half a century later,
R. v. Starling7′ established that a conspiracy was indictable though
nothing is done to carry out its purpose. In R. v. Best 2 we see the
oft-quoted phrase, the “gist is conspiracy” or conspiracy is the gist
of the indictment. This shift in focus made possible the extension
of the agreements which could henceforth be punishable. The
extension included conspiracy to maintain falsehood generally;
to perform acts harmful
ministration of justice, to defame, to extort money, and even to ac-
complish an immoral purpose. 3 This process, once begun, had its
logical culmination in the definition of Willes J. in Mulcahy which
is in substance the wording of our Criminal Code section 423(2):
It is essentially the same problem that was raised by this course
of development which is still with us today: defining the limits
of “unlawful purpose”. Early Canadian authorities indicated that
in addition to crimes, “unlawful purpose” included some (and
perhaps a great many) civil wrongs. In R. v. Defries, R. v. Tamblyn,74
the dicta of McMahon J. suggested that a conspiracy to defraud is
indictable even though it would have constituted only a civil wrong
if the agreement had been carried out. In defining conspiracy under
three heads, the language of Richards J.A. in R. v. Gage (No. 2)7
somewhat wider. Citing Fitzgerald J. in R. v. ParnellT0 it was pointed
out that conspiracy is indictable:
69 Ibid., 814. See also Bryan, The Development of The English Law of Cons-
piracy Reprint Ed. (1970).
7o Supra, note 68, 814.
71 (1664) 1 Sid. 174, 82 E.R. 1039.
72 (1704-05) 6 Mod. 137, 87 E.R. 895, 897; Bryan, supra, note 69, 63.4.
73 Bryan, ibid., 66-74.
74 (1894) 1 C.C.C. 207, 213 (Ont.H.C.).
75 (1908) 13 C.C.C. 415; aff’d 13 C.C.C. 428 (Man.CA.).
76 (1909) 14 Cox C.C. 513.
CONSPIRACY AND SEDITION
[W]here the end to be attained is in itself a crime; where the object is
lawful but the means to be resorted to are unlawful; and where the
object is to do an injury to a third party or to a class, though if the
wrong were effected by a single individual it would be a wrong but not a
Just how far the definition under the third head extended is not
clear. By virtue of the previously accepted principle that English
criminal law was in force in Canada to the extent that it had not
been expressly or implicitly repealed, 8 “unlawful purpose” was
defined largely, though never exhaustively, by English authorities.
Until recently it has not been clear that there are any limitations
on the kinds of tortious conduct which might meet the “unlawful
purpose” requirement. 79
The kinds of offences which may fall within the ambit of “un-
lawful purpose” also remain undetermined. it has long been re-
cognized that conspiracy to perform an act other than an indictable
offence is criminal.’ Indeed, subject to some limitations, “unlawful
purpose” is not limited to crimes but extends to any conduct pro-
hibited under penalty, whether by federal, provincial or municipal
authority.8 ‘ Arguably, “unlawful purpose” may extend beyond the
duly enacted positive law to include a potentially unlimited area of
behaviour which was criminal at common law.8 2
The problem, simply stated, lies in the proposition that the “wide
embracing import” of the term “unlawful purpose” was not changed
by the 1953-54 amendments to the Criminal Code which codified
common law conspiracy8 The implication of the proposition is that
common law offences may yet furnish the unlawful purpose in section
77 Supra, note 75, 438.
78 R.S.C. 1927, c.36, ss.8-10; Kowbel v. The Queen  S.C.R. 498, 503-504
per Estey 1. quoting Sedgewick J. in Union Colliery v. The Queen (1902) 31
S.C.R. 81, 87; Brousseau v. The King (1917) 56 S.C.R. 22; R. v. Cameron (1935)
64 C.C.C. 224 (B.C. Cty Ct).
79 See the discussion of the Court of Appeal and House of Lords decisions
in R. v. Kamara  3 All E.R. 999 (CA.);  2 All E.R. 1242 (H.L.),
infra, p.640 of this article.
80 See R. v. Starling, supra, note 71.
81 Wright, McDermott and Feeley v. The Queen  S.C.R. 192; R. v.
Thodas, Merrin and Chong (1970) 73 W.W.R. 710 (B.C.C.A.); R. v. Chapman
and Grange  2 O.R. 290 (Ont.CA.); R. v. Jean Talon Fashion Center Inc.
(1975) 22 C.C.C. (2d) 223 (Que.CA.).
82The proposition is certainly arguable. The issue is fully discussed in
MacKinnon, Criminal Conspiracy in Canada: A Critical Study (1975) unpublish-
ed thesis, U.of Sask.
83 Wright, McDermott and Feeley v. The Queen, supra, note 81, 194 per
McGILL LAW JOURNAL
423(2). Recent developments in England point to a renewed interest
in vague, general categories of conduct which were unlawful at com-
mon law. Conspiracies to commit public mischief, to corrupt public
morals and to outrage public decency have all been confirmed in
recent cases as common law crimes still in existence.84 The sugges-
tion that “unlawful purpose” may extend to tortious wrongs further
extends the possible objects of criminal conspiracy. Perhaps the
most important authorities bearing on the issue of political dissent
are the decisions of the English Court of Appeal and the House of
Lords in R. v. Kamara.8 5
In Kamara, nine students, who were nationals of Sierre Leone,
appealed their convictions for conspiracy to trespass, and unlawful
assembly. These persons, together with others who did not appeal,
conspired to occupy the London premises of the High Commissioner
for Sierre Leone in order to publicize grievances against the govern-
ment of that country. Upon their arrival at the Commission, they
threatened the caretaker with an imitation firearm and locked him
in a reception room with ten other members of the staff. The students
then held a press conference on the telephone, but the caretaker was
able to contact the police, who arrived, released the prisoners, and
arrested the accused. Lauton J. delivered the judgment of the Court
of Appeal dismissing the appeal from conviction. He recited the
definition in Mulcahy” to the effect that a conspiracy is an agree-
ment to do an unlawful act or a lawful act by unlawful means,81 and
Whatever private views we may have about the desirability at the present
time of having a definition of a crime in such wide terms, we feel bound
to declare that the law is as stated by Willes J. in Mulcahy’s case, and if we
apply the commonly held opinion that a tort is an unlawful act, it must
follow that an agreement to trespass is an indictable conspiracy, no matter
what absurd results can be envisaged if prosecutors and judges do not
use common sense.8 8
The Court of Appeal rejected two proposed limits to the offence.
It was first suggested that an agreement to trespass should not be
an indictable conspiracy unless there is an intent to injure or annoy
and secondly, such an agreement should be held criminal only if it
was likely to injure the public interest. It was felt that there was no
84 R. v. Kamara, supra, note 79; Knuller (Publishing, Printing and Promotions)
Ltd v. D.P.P.  2 All E.R. 898 (H.L.); Shaw v. D.P.P.  A.C. 220 (H.L.).
85 Supra, note 79.
86Supra, note 63.
8 7 Supra, note 79, 1003.
88 Ibid., 1004.
CONSPIRACY AND SEDITION
authority to support these limitations and the Court commented upon
the difficulty of defining public interest. However, it was pointed
Perhaps as a matter of practice prosecutions should not be brought
unless a combination of persons to trespass is likely to cause a breach
of the peace or to affect the public interest in some other way or to be
an outrageous interference with the rights of others.89
In this case the Court felt that the public interest was clearly involved
because of the statutory duty of the British Government to protect
diplomatic premises 0
The Court of Appeal certified two points of law raised in Kamara
as being of general public importance and gave leave to appeal to the
House of Lords. One point was whether an agreement to commit a
trespass can be an indictable conspiracy and, if so, in what circums-
tances. Lord Hailsham dealt with the problem under three separate
[I]s conspiracy limited to agreements to perpetrate conduct which if
done by a single person would be punishable by criminal sanctions? And,
if not, are agreements which involve the commission of a tort against
individuals so limited? (ii) If conspiracies are not limited to conduct
punishable by criminal sanctions, are all combinations the execution
of which involves a tort or torts committed against individuals indictable
as conspiracies? (iii) If all combinations involving tortious conduct are
not indictable, is there any rational principle on which those which are
indictable can be separated from those which are not?91
Briefly, Lord Hailsham’s answers to the three questions were (i) no,
in each case; (ii) undecided but doubtful; and (iii) yes. The basis
upon which combinations involving tortious conduct which are in-
dictable can be separated from those which should not be indictable
requires a determination of whether the execution of the agreement
has as its object, not merely a tort or other actionable wrong, but
either (1) the invasion of the public domain, or (2) the intention to
inflict on its victim injury which is greater than purely nominal
The House of Lords decision93 places welcome limitations on the
Court of Appeal ruling which would, in theory, “open the door to
indictments for trivial breaches of the civil law”. 94 The public element
89 Ibid., 1005.
91 Ibid., 1251.
92 Ibid., 1261.
93Lord Morris and Lord Simon agreed with the reasons of Lord Hailsham,
McGILL LAW JOURNAL
of the first criterion would require that the civil wrong be more than
a private matter and thereby provides at least some justification for
the intervention of the criminal law. The second criterion may involve
greater difficulty in determining what is “nominal” damage. Never-
theless, the House of Lords decision represents an important attempt
to establish some boundaries to the ambit of “unlawful act” in the
law of criminal conspiracy.
R. v. Kamara must, however, be viewed as suggesting endless
possibilities in rendering a combination unlawful under section
423(2) of the Criminal Code. Conspiracy to trespass could be used
as a weapon against many demonstrations, protest marches and sit-
ins. Indeed, if the Court of Appeal decision in that case were followed,
there would not be any limits on the breaches of civil law which
could fulfill the unlawful purpose of a criminal conspiracy. Any
interference with property rights, such as trespass or perhaps
nuisance, could be elevated to an indictable conspiracy under such
In times of social unrest, the manifestations of discontent may
be unplanned. The organization and direction of protest frequently
proceeds on an ad hoc basis among different, limited groups of those
involved. The danger of a conspiracy interpretation of protest and
dissent is that it automatically imputes organization and planning to
what may in fact be a spontaneous phenomenon.
Social conditions, and a defensive reaction to them by govern-
ment, frequently influence a conspiracy interpretation of protest,
dissent and disobedience. When a person is not socially or personally
involved in the conditons which give rise to social unrest, he tends to
have difficulty understanding the discontent of others, though their
circumstances may be very different. Discontent and protest readily
suggest a conspiracy to him and he often concludes that agitators
or promoters are behind the whole thing. Thus public opinion fre-
quently brings under the umbrella of conspiracy those who are per-
sonally identified in some way with the protest. The conspiracy
theory lends itself to guilt by association.
The conspiracy offence has a most ominous and potentially
dangerous presence in the area of political dissent. In part, the
reasons lie in the unusual apprehension of danger resulting from the
defendants’ activities. Over-reaction by government and the press
can create an atmosphere which tends to prejudice dispassionate
decision-making in the administration of criminal justice. In part,
CONSPIRACY AND SEDITION
also, the reasons lie in the technical aspects of the offence itself.
Vague definitions and rules of evidence peculiar to conspiracy
facilitate the degeneration of a conspiracy trial into a trial of ideas
rather than one of specific individuals and actual occurrences. A
conspiracy is an agreement; not a hope, belief, idea or intention.
Conceptually there is a clear distinction but because it is rarely
possible to prove an agreement by direct evidence, the courts are
frequently asked to infer it, in part, from beliefs and ideas. This
has two potential effects: the jury can be impassioned by ideas
which are repugnant to them, and a critical, discriminate appraisal
of the evidence is prejudiced by the amount of evidence frequently
tendered in political trials.
The flexibility of the conspiracy offence as a weapon against
political dissent is further enhanced by the vague definition of
sedition and the open-endedness of common law conspiracy. In this
country we have had experience with seditious conspiracy charges,
notably in historical circumstances in which a particular group has
been perceived as a direct threat to government: labour leaders
during the Winnipeg General Strike; communists during the de-
pression; Doukhobors in the nineteen-sixties; and Quebec separatists
The possible conspiracy charges arising from the open-endedness
of common law conspiracy is a matter for speculation. The Supreme
Court of Canada has expressed preference for well-defined limits to
criminal conduct0 5 It is to be hoped that this sentiment will lead
our courts to reject common law developments in this area and to
remove the dubious heritage left to us by the historical evolution
of the conspiracy offence.
95 Frey v. Fedoruk  S.C.R. 517.