“For The Security of the Country”

Apologies for my long silence. I know I have ground to make up, what with the Supreme Court’s last Friday’s decisions. But let me start with something entirely different: a passage in Justice Taschereau’s dissent from the Supreme Court’s famous decision in Switzman v. Elbling, [1957] S.C.R. 285, which struck down Québec’s infamous “Padlock Law,” formally An Act to Protect the Province from Communistic Propaganda. which allowed provincial authorities to “close” any building used “to propagate communism or bolshevism.” In explaining why, in his view, the law was a valid exercise of the provincial power to prevent crime, Justice Taschereau insisted that the danger posed by communism was real:

Experience, of which we are permitted to take judicial notice, teaches us that Canadians, less than ten years ago, despite the oaths of allegiance which they had sworn, had not hesitated to violate in the name of communism official secrets, and even endanger the security of the state. The suppression of these subversive doctrines by means of civil sanctions is surely as important as the suppression of disorderly houses [which had previously been judged to be within the provincial power to prevent crime]. I remain convinced that the realm of criminal law, an exclusive federal competence, has not been invaded by the legislation at issue, and that it only involves civil sanctions for the prevention of crimes and the security of the country. (299; emphasis in the original; translation mine.)

Somehow, until last week, I had never thought about what that “experience” to which Justice Taschereau was referring to was. Perhaps you hadn’t either. But it’s actually an interesting story.

The experience that spooked Justice Taschereau about the dangers of communist subversion was the Gouzenko affair. Igor Gouzenko had been a cypher clerk in the Soviet embassy in Ottawa ― but his real employer was the GRU, the Soviet military intelligence, the KGB’s less well-known, but no less successful, competitor. In September 1945, Gouzenko walked out of the Soviet embassy, with a pile of top-secret documents detailing the GRU’s espionage activities in Canada, the United States, and elsewhere, and made his way to the RCMP. Although apparently it was at first reluctant to wade into this mess, the Canadian government granted Gouzenko asylum, and started investigating his allegations.

As Dominique Clément explains in his excellent telling of the affair, the method chosen by the government to investigate and punish those suspected of passing on information to the Soviets was shocking. A Royal Commission of Inquiry was set up, and suspects imprisoned in brutal conditions until they gave it evidence, without access to a lawyer. This evidence was then used against the people who gave it, who were charged under the Official Secrets Act and, in many cases, found guilty ― on the basis of a reversed burden of proof. It is a rather shocking, and poorly-known, I think, story of abuse.

But it is also true that Soviet espionage was a real threat to Canada’s interests and security. And Justice Taschereau was well positioned to know this ― as were some of his colleagues on the Switzman bench. For Justice Taschereau had, in fact, been one of the co-chairs of the Royal Commission which extracted evidence of the pro-Soviet espionage from the suspects implicated by Gouzenko’s documents. And the other co-chair? Why, that was Justice Kellock ― who in Switzman expressed agreement with his “brother Rand,” who famously wrote that “[l]iberty in [thought and its communication by language] is little less vital to man’s mind and spirit than breathing is to his physical existence.” (306) And that’s not all either. One of the Commission’s legal advisors was the future Justice Fauteux, who was also in the Switzman majority. And the man who prosecuted most of the spy cases using the evidence gathered by the Commission was none other than the future Justice Cartwright, of the future Switzman majority as well. (Prof. Clément’s list of the “key figures” of the Commission is here.)

I think this provides fascinating context for Justice Taschereau’s statement. The “experience” he was referring to was his own, and that of his colleagues. In this light, his words seem to be not so much overwrought fear-mongering as a reproach to his colleagues. Had they forgotten? Surely not, though one wonders whether they might have wanted to forget, by the time Switzman was decided, the excesses of McCarthyism being known by then, and the sensitivity to rights violations being generally greater. Of course, there is nothing inconsistent in believing that communists should be free to spread their evil ideas and that those who, in the name of these ideas decide to breach the oaths they swore ought to be punished.

I don’t think there’s any obvious moral to be drawn from all this ― though one hopes that at least the sorry spectacle of two sitting Supreme Court judges being involved in gross violations of rights and the Rule of Law itself will never be repeated. History is an uncertain guide to the present. But a fascinating one.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

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