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That's History: State trials during turbulent times

An overhaul of the previous government’s Anti-terrorism Act will be an important item on Parliament’s agenda next year. The balance between safeguarding national security and protecting civil liberties is never an easy one, and any amendments to the act will no doubt generate passionate debate on both sides.

To prepare for this debate, a recent book published by the Osgoode Society, Security, Dissent, and the Limits of Toleration in War and Peace, 1914-1939, should be required reading for all members of Parliament as well as Justice Department staff. It is the fourth volume in a series devoted to Canadian “state trials,” those involving perceived threats to the state or the established order. Previous volumes dealt with everything from a 1608 plot to assassinate Samuel de Champlain down to the trial of Louis Riel in 1885 and beyond. With this volume we enter what is probably Canada’s most turbulent quarter-century since Confederation, when the “limits of toleration” were severely tested.

A persistent technique revealed by the authors is the secret manipulation of court process by government actors to defuse challenges to arguably unconstitutional state action or to punish those whom the state wished to condemn in spite of legal barriers to their prosecution. An example of the latter is the egregious manipulation of legal process to punish the leaders of the Winnipeg General Strike, dealt with by Reinhold Kramer and Tom Mitchell in a chapter based on their fine book on the subject. They show how the federal government funded “private” prosecutions of the strike leaders for seditious conspiracy when the proper authority (the Manitoba government) refused to do so, believing that the strikers were not motivated by revolutionary intent but by the desire for better living conditions. The authors’ story of jury manipulation — oiled by secret payments to elite lawyers — makes for disheartening but necessary reading.

Manipulation of the first kind is on display in Patricia McMahon’s excellent study of the wartime case Re Gray (1918), which arose out of the conscription legislation passed by the Borden government in the summer of 1917. George Edwin Gray was a 21-year-old Ontario farmer who acquired an exemption from military service in early 1918. However, as the war took a turn for the worse, Borden revoked all exemptions via order-in-council in April 1918. Gray reported for duty but refused to report for basic training. He was court martialled in June, and in August was sentenced to life imprisonment, later commuted to 10 years. Ultimately, he spent only a few weeks in prison, as he agreed to serve in the armed forces, but the war was over before he could be sent overseas.

In July, Gray challenged his detention by filing a habeas corpus petition directly with the Supreme Court of Canada. Gray’s case was heard a week after his petition was filed, and the court issued reasons less than 24 hours later, upholding the government’s action, albeit with two dissents. Why the extraordinary rush?

The case was propelled by a decision of the Alberta Appellate Division in a case called Lewis in late June of that year, declaring Borden’s revocation of the exemptions illegal. Rather than appeal Lewis, the government decided to start over, constructing its own test case using Gray. The argument in Lewis was simple: The War Measures Act gave the government no power to override the decisions of tribunals duly constituted under the Military Service Act. Parliament would have to amend the law if that power was to be provided.

Then deputy minister of justice E.L. Newcombe not only selected Gray for his test case but also found and instructed counsel for him, all while preparing the government’s response to the habeas corpus petition. Before the hearing, the cabinet passed a secret order in council containing regulations applicable only to the Gray case, expressly prohibiting challenges to the Supreme Court’s jurisdiction on the habeas corpus application. And for good measure, it passed an order-in-council overturning Lewis. Gray’s counsel did put up a good fight, but a majority of the court found that the extremely broad wording of the War Measures Act authorized the cabinet to revoke the exemptions as they had done.

Much about this case leaves a bad taste in one’s mouth. Some might think it could not happen again in the age of the Charter, but much depends on the wording of the legislation in question. Not only that, but McMahon was met with claims of privilege by the Department of Justice in trying to access the Gray and Lewis case files. Three years after an access to information and privacy request, she has still received only a heavily redacted version of the Lewis file. If we can’t find out what government actors were doing a century ago, how can we ever hope to hold current governments accountable? 

Philip Girard is a legal historian and professor at Osgoode Hall Law School. He’s also associate editor at the Osgoode Society for Canadian Legal History. His e-mail address is

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