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This, from the National Post blogs, shared under the Fair Dealing provisions (§29) of the Copyright Act:
Criminal Code S.46 on treason:
CCC S.59 on sedition:
From time to time, columnists and ordinary Canadians have wondered why the perpetrators of what look to be treasonous acts are not tried for treason. In recent memory, such acts would clearly include the members of the Front de Liberation du Quebec (FLQ) who precipitated the October Crisis. Some Canadians would include Quebec separatists. Many more would include contemporary Islamist terrorists intent on intimidating Parliament and executing the Prime Minister. Yet none of the individuals involved with any of these actions was indicted for treason.
Clearly, something has changed in Canada from the days when Louis Riel was properly hanged for making war against his sovereign. What has happened? And could treason be effectively restored to Canadian law?
Treason in Canada seems to be confined to the specific problem of uprisings or rebellions. This was the focus of the Treason Act of 1886 and there have been relatively few celebrated treason trials in the history of British North America.
In 1814, John Beverley Robinson presided at the Ancaster Assizes over the trial of 19 men accused of treason after they had been caught helping the Americans during the War of 1812. Only eight were hanged, despite that being the mandatory sentence. A quarter-century later, following the Rebellion of 1837, 90 of the 220 prisoners in Upper Canada jails were pardoned and 17 were executed.
Likewise during the 20th century, when the lesser but still serious charge of sedition was laid, it was typically during periods of political turmoil.
On Oct. 27, 1915, Oscar Felton sat in an Okotoks, Alta., bar and shared his views on the war with the barkeep. He allowed as he wished the Germans might cross the Channel and wipe England off the map. He was charged and convicted of sedition.
The best-known example of seditious conspiracy, however, came after the War: the Winnipeg General Strike.
In democratic regimes, sedition must involve an incitement to violence against established authority. When we consider how this condition applied to the streets of Winnipeg in 1919, accounts differ. According to the distinguished Canadian historian D.C. Masters, "the strike was what it purported to be, an effort to secure the principle of collective bargaining." But for political authorities in 1919, a general strike by its very nature was considered a revolutionary action. After all, bread and milk wagons bore signs that authorized delivery of their wares that were signed by the Strike Committee. Was this not a usurpation of legitimate government licensing authority? Was Winnipeg not, in effect, run by a Workers' Council, a Soviet?
The government acted decisively. The eight leaders were all charged with six counts of seditious conspiracy.
A decade later eight leaders of the Communist Party of Canada were arrested; seven were charged and convicted of being members of a seditious and thus unlawful association. On appeal to the Supreme Court of Ontario, the conviction was quashed because membership in the Communist Party needed to be supplemented by seditious actions. This seemed to legal commentators to restore a balance that had been missing in 1915 when Felton was jailed simply because of his subversive and unpatriotic opinions.
By the end of the Second World War, the climate of official opinion was changing. In September 1945, a cipher clerk, Igor Gouzenko, left the Soviet Embassy bearing a load of documents proving the existence of a Soviet spy ring in Canada. The Canadian government established a Royal Commission headed by two justices of the Supreme Court of Canada. In February 1946, a dozen people were arrested, and more were arrested later.
Gouzenko's detailed testimony indicated clearly that the accused had betrayed their country by violating their oaths. But the significance of the Gouzenko Affair lies in its not resulting in several trials for treason.
The pattern of a forceful government response followed by leniency was prolonged with the October Crisis. In 1970, 86 people were charged under the War Measures Act and 62 under sections of the Criminal Code. Only five charged under the Act who pled not guilty were convicted.
It seems that with contemporary violent threats, the old legal and political weapons
of sedition and treason look both obsolete and quaint.
Why?
The response of the government in Winnipeg in 1919 was a glimpse of things to come. Authorities relied on new procedures: surveillance, enforcement, intelligence gathering and evaluation. These methods have continued into the present. We now rely almost entirely on security intelligence to deal with the kind of threats that used to be punished after the fact by sedition and treason prosecutions.
There are several reasons. Once sedition and treason accusations slipped out of the control of the executive and were contested in court, lawyers sympathetic to the accused were capable of exploiting their procedural rights. Accordingly, pre-emptive measures in support of national security were considered more "executive-enabling" than were high-profile trials. Various special branches within the police and military bureaucracies took to their new-found tasks with an administrative enthusiasm divorced from any sense of effectiveness.
Bureaucracies practically by definition do not appear in public. This is especially true for security bureaucrats. The consequence is to remove security issues even farther from public scrutiny by consigning the resolution of them to the courts.
The chief legal reason for this change flows from the prominence the courts have given to the Charter, the terms of which would make treason and seditious conspiracy charges almost impossible to sustain.
A second reason is that security agencies are reluctant to produce evidence that might compromise their sources.
A final reason stems from changes in the way legal scholars have conceptualized political threats. For example, treason presupposes that citizens have a duty of loyalty. Today, however, legal scholars think differently. Moreover, they express their views in an indirect, baroque post-modern discourse remotely derived from the English language.
Carl Stychin, for example, argued that "Canadian" has become "an identity open to resignification and intersection through an ever-changing variety of perspectives engaged in a dialogue guaranteed by the Charter."
One final example: the Toronto 18. The crimes of which they were accused would unquestionably have been considered treasonous, but apparently the option of charging them with treason was not entertained. The uproar in the media concerning the threat to multiculturalism made any thought of prosecution on the grounds of treason politically impossible.
One thing seems clear: Treason and sedition have effectively disappeared from Canadian law, while remaining on the books, because the sentiments and expectations that there are political crimes and political criminals have disappeared. These kinds of offences and offenders have been replaced by threats to administrative or executive structures. In the post-modern language favoured by contemporary legal theorists, the options are either a "pessimistic" fear of a reduced possibility of resisting power or an "optimistic" one of expecting the withering away of the modern state, which apparently will be accompanied by sundry forms of liberation.
Perhaps more likely is the popular embrace of a bureaucratic order that anticipates and so reduces the possibility of resistance taking place. One way or another, political action has been reduced to a problem to be managed by competent and specialized officials. To the extent this is true, Canadians have become citizens of a new kind of regime, just as supporters of a duty-less, transnational and postmodern society hoped. And, if a historian of an earlier generation, A.R.M. Lower, was right in saying that a nation is "a collection of people who have done great things together," which means they are capable of pro-hibiting entirely other things such as treason and sedition, then perhaps Canadians have also become the first post-national nation as well.
C2C: Canada's Journal of Ideas
-Barry Cooper is a professor of political science at the University of Calgary.
Criminal Code S.46 on treason:
High treason
46. (1) Every one commits high treason who, in Canada,
(a) kills or attempts to kill Her Majesty, or does her any bodily harm tending to death or destruction, maims or wounds her, or imprisons or restrains her;
(b) levies war against Canada or does any act preparatory thereto; or
(c) assists an enemy at war with Canada, or any armed forces against whom Canadian Forces are engaged in hostilities, whether or not a state of war exists between Canada and the country whose forces they are.
Treason
(2) Every one commits treason who, in Canada,
(a) uses force or violence for the purpose of overthrowing the government of Canada or a province;
(b) without lawful authority, communicates or makes available to an agent of a state other than Canada, military or scientific information or any sketch, plan, model, article, note or document of a military or scientific character that he knows or ought to know may be used by that state for a purpose prejudicial to the safety or defence of Canada;
(c) conspires with any person to commit high treason or to do anything mentioned in paragraph (a);
(d) forms an intention to do anything that is high treason or that is mentioned in paragraph (a) and manifests that intention by an overt act; or
(e) conspires with any person to do anything mentioned in paragraph (b) or forms an intention to do anything mentioned in paragraph (b) and manifests that intention by an overt act.
Canadian citizen
(3) Notwithstanding subsection (1) or (2), a Canadian citizen or a person who owes allegiance to Her Majesty in right of Canada,
(a) commits high treason if, while in or out of Canada, he does anything mentioned in subsection (1); or
(b) commits treason if, while in or out of Canada, he does anything mentioned in subsection (2).
Overt act
(4) Where it is treason to conspire with any person, the act of conspiring is an overt act of treason.
R.S., c. C-34, s. 46; 1974-75-76, c. 105, s. 2.
Punishment for high treason
47. (1) Every one who commits high treason is guilty of an indictable offence and shall be sentenced to imprisonment for life.
Punishment for treason
(2) Every one who commits treason is guilty of an indictable offence and liable
(a) to be sentenced to imprisonment for life if he is guilty of an offence under paragraph 46(2)(a), (c) or (d);
(b) to be sentenced to imprisonment for life if he is guilty of an offence under paragraph 46(2)(b) or (e) committed while a state of war exists between Canada and another country; or
(c) to be sentenced to imprisonment for a term not exceeding fourteen years if he is guilty of an offence under paragraph 46(2)(b) or (e) committed while no state of war exists between Canada and another country.
Corroboration
(3) No person shall be convicted of high treason or treason on the evidence of only one witness, unless the evidence of that witness is corroborated in a material particular by evidence that implicates the accused.
Minimum punishment
(4) For the purposes of Part XXIII, the sentence of imprisonment for life prescribed by subsection (1) is a minimum punishment.
R.S., c. C-34, s. 47; 1974-75-76, c. 105, s. 2.
Limitation
48. (1) No proceedings for an offence of treason as defined by paragraph 46(2)(a) shall be commenced more than three years after the time when the offence is alleged to have been committed.
Information for treasonable words
(2) No proceedings shall be commenced under section 47 in respect of an overt act of treason expressed or declared by open and considered speech unless
(a) an information setting out the overt act and the words by which it was expressed or declared is laid under oath before a justice within six days after the time when the words are alleged to have been spoken; and
(b) a warrant for the arrest of the accused is issued within ten days after the time when the information is laid.
CCC S.59 on sedition:
Seditious words
59. (1) Seditious words are words that express a seditious intention.
Seditious libel
(2) A seditious libel is a libel that expresses a seditious intention.
Seditious conspiracy
(3) A seditious conspiracy is an agreement between two or more persons to carry out a seditious intention.
Seditious intention
(4) Without limiting the generality of the meaning of the expression “seditious intention”, every one shall be presumed to have a seditious intention who
(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 within Canada.
R.S., c. C-34, s. 60.
Exception
60. Notwithstanding subsection 59(4), no person shall be deemed to have a seditious intention by reason only that he intends, in good faith,
(a) to show that Her Majesty has been misled or mistaken in her measures;
(b) to point out errors or defects in
(i) the government or constitution of Canada or a province,
(ii) Parliament or the legislature of a province, or
(iii) the administration of justice in Canada;
(c) to procure, by lawful means, the alteration of any matter of government in Canada; or
(d) to point out, for the purpose of removal, matters that produce or tend to produce feelings of hostility and ill-will between different classes of persons in Canada.
R.S., c. C-34, s. 61.
Punishment of seditious offences
61. Every one who
(a) speaks seditious words,
(b) publishes a seditious libel, or
(c) is a party to a seditious conspiracy,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
R.S., c. C-34, s. 62.
Offences in relation to military forces
62. (1) Every one who wilfully
(a) interferes with, impairs or influences the loyalty or discipline of a member of a force,
(b) publishes, edits, issues, circulates or distributes a writing that advises, counsels or urges insubordination, disloyalty, mutiny or refusal of duty by a member of a force, or
(c) advises, counsels, urges or in any manner causes insubordination, disloyalty, mutiny or refusal of duty by a member of a force,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
Definition of “member of a force”
(2) In this section, “member of a force” means a member of
(a) the Canadian Forces; or
(b) the naval, army or air forces of a state other than Canada that are lawfully present in Canada.
