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Whence They Came

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Barbara Roberts

2. The Law and Deportation

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1The legal bases for the actions of the Department of Immigration were the Immigration Acts and amendments passed by Parliament, supplemented by various Orders-in-Council. Departmental policies, regulations, and practice were mandated to conform to the decisions of Parliament which, with Cabinet, was responsible for determining and overseeing the Department’s activities; such was the continuing judgement of law courts. Although Parliament passed the laws that governed the Department, most Members of Parliament were quite ignorant about the powers and practices of the Department, particularly insofar as deportation was concerned. Parliament’s control was tenuous and illusory. Most of the legislation related to deportation was passed at the instigation of the Department itself. Information given to the Minister and to Parliament was carefully selected by functionaries in the Department. Legislative change was as likely to legalize existing practices as to set in motion new procedures. From 1906 onwards, laws reflected the increasingly arbitrary practices of the Department. Fundamentals of British justice, such as the right to trial by jury, had no legal place in the deportation process. As long as the Department followed the laws in the Immigration Act, it was free to utilise the most arbitrary methods. The courts were specifically prohibited from interfering as long as no illegalities were discernible. Because deportation was defined as an administrative proceeding, it was not subject to public scrutiny. Parliament had no way of knowing, and seemed to take little interest in, the details of the normal day-to-day operations of deportation. Thus, there were few effective checks on the Department.

  • 1 Public Archives of Canada (PAC) Record Group (RG) 76, File 653, Chief Medical Officer Bryce to Med (...)

2Deportation of legal immigrants was not officially permitted before the 1906 Immigration Act was passed. Nevertheless, there had been laws since 1869 to restrict certain kinds of immigration, and since 1889 certain classes could be sent back whence they came. The Department of Immigration followed “a general line of action” whereby immigrants insane, disabled, or destitute in Canada were required to be shipped back at the transportation companies’ expense, much as if they had never gained admission. The 1906 Act allowed the Department to deport immigrants within two years of entry for many of the same causes specified as grounds for exclusion.1 The deportation powers lay in several clauses of the Act. Section 28 provided that

any person landed in Canada who, within two years thereafter, has become a charge upon the public funds, whether municipal, provincial, or federal, or an inmate of or a charge upon any charitable institution, may be deported and returned to the port or place whence such immigrant came or sailed for Canada.

3Section 32 stipulated that those bringing in immigrants would, under certain circumstances, be responsible for transporting them out of Canada:

All railway or transportation companies or other persons bringing immigrants from any country into Canada shall, on the demand of the Superintendent of Immigration, deport to the country whence he was brought, any immigrant prohibited by this Act or any order in council or regulation made thereunder, from being landed in Canada who was brought in by such railway, transportation company or other person into Canada within a period of two years prior to the date of such demand.

  • 2 After 1906 a series of Orders-in-Council increasingly did so, limiting entry on racial, financial (...)

4Prohibited immigrants under the 1906 Act included the diseased, infirm, disabled, handicapped and destitute. The Governor General in Council had the right to prohibit others:2

  • 3 File 653, Immigration Act of 1906.

Whenever in Canada an immigrant has within two years of his landing in Canada committed a crime involving moral turpitude, or become an inmate of a jail or hospital or other charitable institution, it shall be the duty of the clerk or secretary of the municipality to forthwith notify the Minister thereof, giving full particulars. On receipt of such information the Minister may, on investigating the facts, order the deportation of such immigrant at the cost and charges of such immigrant if he is able to pay, and if not then at the cost of the municipality wherein he has last been regularly resident, if so ordered by the Minister, and if he is a vagrant or tramp, or there is no such municipality, then at the cost of the Department of Interior.3

5The Act of 1910 added provisions for deportation on the grounds of moral and political unsuitability. The moral grounds were covered in Section 3, which listed the prohibited classes; subsections (e) and (f) were an expansion of the 1906 provisions against prostitution and related offences, to which now [sexual] immorality was added:

(e) prostitutes and women and girls coming to Canada for any immoral purpose and pimps or persons living on the avails of prostitution;
(f) persons who procure or attempt to bring into Canada prostitutes or women or girls for the purpose of prostitution or other immoral purpose;

6The political provisions were found in Section 41:

Whenever any person other than a Canadian citizen advocates in Canada the overthrow by force or violence of the government of Great Britain or Canada, or other British dominion, colony, possession or dependency, or the overthrow by force or violence of constituted law and authority, or the assassination of any official of the government of Great Britain or Canada or other British dominion, colony, possession or dependency, or of any foreign government, or shall by word or act create or attempt to create riot or public disorder in Canada, or shall by common repute belong to or be suspected of belonging to any secret society or organization which extorts money from, or in any way attempts to control, any resident of Canada by force or threat of bodily harm, or by blackmail; such persons for the purposes of this Act shall be considered and classed as an undesirable immigrant, and it shall be the duty of any officer becoming cognizant thereof, and the duty of the clerk, secretary or other official of any municipality in Canada wherein such a person may be, to forthwith send a written complaint thereof to the Minister or Superintendent of Immigration, giving full particulars.

  • 4 Ibid., 1910 Act (Bill 102), 22 March 1910.

7Any immigrant in Canada contrary to the provisions of the Act was subject to investigation by the Department, and if suspected of belonging to the prohibited or undesirable classes, could be detained for examination by a Board of Inquiry composed of officials of the Department. If, after investigation, the person were found to be a member of the prohibited or undesirable classes as specified by the Act, they would be deported, subject to right of appeal to the Minister4.

8The provision for deportation for certain conditions or types of offence under the 1910 Act established the legal framework for deportation that was to remain substantially unchanged until well after the Second World War (and in some respects until the present day). Subsequent legislation refined procedures; specified the steps in the processes by which deportations were to be carried out; increased the numbers and types of immigrants technically deportable; and expanded the already considerable powers of the Department to act arbitrarily, as long as it adhered to the complicated regulations. The main features of deportation, and the main legal causes given by the Department to account for its deportations, were established with the passage of the 1910 Act.

9American practice was perhaps the single most important influence in shaping the 1910 Canadian legislation. This influence was particularly evident in the clauses that excluded immigrants on account of their immorality or their political beliefs. The U.S. Act of 1903 to regulate the immigration of aliens into the United States was “prohibitive in character,” according to a study done by a Canadian immigration official, and unlike Canadian legislation, contained almost no provisions for the protection of immigrants on the voyage or at landing.

10Among the prohibited classes in the U.S. law of 1903 were:

anarchists, or persons who believe in or advocate the overthrow by force or violence of the Government of the United States, or of all government, or of all forms of law, or the assassination of public officials.

  • 5 Ibid., Report of J. A. Côté for Acting Deputy Minister, 11 February 1904; U.S. law cited by Willia (...)

11This was; the first time in either country that immigrants were prohibited on account of their political beliefs.5

  • 6 File 653, 1910 Immigration Act. The 1910 Canadian Act did not list anarchists among the classes pr (...)

12The U.S. prohibition of anarchists marked the crest of anti-anarchist hysteria following the 1901 assassination of President McKinley. It was almost completely unnecessary because there were virtually no immigrant anarchists to exclude or expel. Canada had even less reason to fear this group, but nonetheless Canada followed the American example and by 1910 included anarchists in its prohibited classes.6

13Although there were few alien anarchists in the U.S., there were other kinds of radicals considered dangerous, such as the Industrial Workers of the World (IWW) and other labour “agitators” (particularly the new industrial unionists). To U.S. immigration authorities, they were all dangerous “anarchists”. Tensions between the conservatives and vested interests, on the one hand, and the reformers, progressives, and radicals, on the other, were high in the U.S. Tightening up on immigration legislation, especially concerning the exclusion and expulsion of “undesirables”, was one of the responses to this tension. The situation in Canada and the official response to it were similar to those in the United States, so far as the Department of Immigration was concerned.

  • 7 File 653, no date but probably August 1900; Superintendent Scott to Staff, 20 January 1904; on U.S (...)

14Canadian preoccupation with U.S. immigration law is on record at least as early as 1900, when Canadian immigration authorities noted with interest the sections on exclusion and expulsion in the U.S. Treasury Department Digest of Immigration Laws and Decisions of 1899. In 1904 Canadian Minister of Immigration Clifford Sifton requested a comparison between Canadian and U.S. laws, to be used in amending the Canadian legislation. In subsequent years, the U.S. Act was again seen as a model by various Canadian immigration officials concerned with revising Canadian laws. These officials used as a point of reference the U.S. Act’s definitions of terms, of classes prohibited, classes deportable, deportation procedures, and length of time during which immigrants could be deported. Although it was not necessarily their intent to always have Canadian legislation copy U.S. law, Immigration officials regarded U.S. legislation as a model and wanted to incorporate certain of the U.S. provisions into the Canadian Act.7

  • 8 Ibid., Scott to Oliver, 28 March 1906, Scott to Deputy Minister of Justice, 18 May 1906 ; “Compari (...)

15Sifton had supported this view when he was Minister from 1896 to 1905. So did his successor, Frank Oliver, although it is not clear whether he came into office with this view or was converted to it by his staff. The galley proofs of Oliver’s proposed 1906 Bill compared in detail the provisions of the new Canadian legislation with the existing law, explaining the defects of the latter and the merits of the former by comparison to U.S. legislation. Subsequent discussion in Parliament was based on this material. Oliver also ordered the Department to make a clause-by-clause comparison between the proposed 1906 Canadian legislation, and the existing U.S. Act. In the new Canadian Act of 1910, there were some departures from U.S. legislation. While the prohibited classes were essentially the same, the Canadian Act did not bar anarchists from entry; instead, it provided for their post-entry deportation. There was also a difference in the statute of limitation for deportation, i.e., the period after landing within which an immigrant could be deported. In Canada it had been two years; in the U.S., three. The Canadian period later became the same.8

16The debt owed to the U.S. legislation was acknowledged by Canadian officials. In the Commons, Oliver explained,

while we have taken advantage of a good deal of the work that has been done in the drafting of the United States Act we have not found it advantageous to follow it in all its particulars.

  • 9 House of Commons Debates, 1909-1910, pp. 5813-6; File 653, Watchorn to Bryce, 13 June 1906.

17The most compelling reason for not following it exactly seemed to be that certain sections of the U.S. Act were not clearly worded, or did not address Canadian conditions. Other sections were applicable in their entirety, and were reproduced verbatim. When U.S. officials were shown the Canadian Bill and asked to comment, the U.S. Commissioner of Immigration at Ellis Island wrote to the Canadian Chief Medical Officer that he was gratified indeed “to note how closely together the two Governments are working on immigration lines.”9

  • 10 File 653, Obed Smith to Scott, 25 February 1906.

18How U.S. laws found their way into the Canadian Immigration Acts can be seen in the insertion into the Canadian Act of 1910 of “immorality” as grounds for exclusion or expulsion. Before this, deportations for immorality had taken place, but they were not legal deportations and officials were concerned about repercussions. In a 1907 case the Winnipeg Commissioner of Immigration Obed Smith wrote to his superior, Superintendent of Immigration Scott, about a Swedish man “carrying on immoral practices to the detriment of public welfare,” who had been deported very rapidly when he threatened to fight the order. Safer methods were needed. If the immigrant could be convicted of a crime involving mora turpitude (never clearly or satisfactorily defined), they could be deported as a criminal; there could be no appeal and no “problem”. The Commissioner suggested an amendment to the Immigration Act: an immigrant who was “guilty of immoral practices” or who “seems to be unable to discriminate between right and wrong,” or who “is a moral pervert in the opinion of the Department, shall be declared an undesirable.” Without such an amendment, it was risky for the Department to illegally deport an immigrant “who plainly was an undesirable, yet [as the Commissioner himself admitted] scarcely came within the exact wording of the Act.”10

  • 11 Ibid., Memo for file, no date, January 1908; Fortier to Bryce, 1 January 1907 [sic]; Scott to all (...)

19By 1908 the Department realized that laws must be passed to legalize its current practices. The Department had been brought to court for its illegalities, and had been forced to release several “deports”, as they were called. Early that year, the Department wrote to a variety of officials, agents, medical officers and the like, soliciting suggestions for amendments. T.R.E. McInnes, a lawyer who had done intelligence-gathering and policy-advising immigration work for Laurier, was hired by the Department to draft a new Act. McInnes worked directly with Minister Oliver to respond to pressures from within and outside the Department for various amendments. In McInnes’ original draft of December 1909, there was no immorality clause. The later draft that became law included immorality as a ground for exclusion and deportation.11 McInnes had been strongly opposed to such a provision. Superintendent Scott was strongly in favour.

  • 12 Ibid., Scott to McInnes, 8 March 1909.

20Scott had become preoccupied with the problem of “eloping couples”. In March 1909 he had complained that under the provisions of the existing legislation he could not prevent eloping couples from immigrating to Canada, and he wanted the power to stop them. Canada debarred only prostitutes and those living off the revenue of prostitution. Unless “elopers” were connected with prostitution, they could not be legally excluded or expelled.12

  • 13 Ibid., McInnes to Scott, 8 March 1909; Scott to Oliver, 23 November 1909.

21Scott wanted the Canadian law to use the same language as that of the United States. McInnes strongly disagreed with this suggestion. He had deliberately left out the phrase referring to immorality from his draft of the Act, believing that as long as it fell short of prostitution, immorality was not “any business of an Immigration officer or of a Government.” Prostitution was a crime; immorality was not. Adultery, for instance, although a crime in some of the American states, was not criminal according to British or Canadian law. As well, McInnes decried the U.S. “tendencies to meddle in purely personal and private affairs.” Immigration officers were “not intended to be general custodians of the morals of passengers to Canada, nor are they qualified to regulate the exercise of natural functions,” he argued. Further, McInnes believed that it was a mistake to keep out “elopers”. On the contrary, he thought “the more of them the better” because they usually settled in agrarian districts and “if they have the spunk enough to elope, they must have the makings of citizens in them.” But he told Scott that he would “as in duty bound... lay your suggestion before the Minister.” The issue languished on the Minister’s desk for nine months. Scott revived it by sending the Minister a list of all of the suggested amendments to the Act. The new Canadian Act, which received assent 4 May 1910, followed U.S. practice and language in making immorality grounds for exclusion and expulsion.13

  • 14 Ibid., Secretary of Immigration Blair to Minister Calder, “Memo regarding discussion with labour l (...)

22Political exclusion and deportation provisions of the Canadian Act were also virtual copies of U.S. legislation. Until 1910, the Amendments to the Immigration Act were generally concerned with clarifying definitions; outlining duties of immigration officials; increasing and specifying the responsibilities of the transportation companies for delivering healthy acceptable immigrants; providing for more widespread and thorough civil and medical inspections; increasing the power of the Governor General or the Minister to prohibit or control certain aspects of immigration; and prohibiting or expelling particular types of immigrants. Before 1910, potential immigrants had been prohibited from entering Canada when they were deemed to have physical or mental defects; when they had already become, or would in fliture likely become a public charge; or when they were criminals. Prohibition was based on personal undesirability. As individuals, these immigrants might constitute a danger to the public health, the public safety, or the public purse. Immoral immigrants were also individually undesirable, in effect a danger to public morals. The politically undesirable were another category altogether. They were not necessarily undesirable on physical, mental, or moral grounds, as individuals. Their undesirability as a class sprang from the view of the government that they were “directly a menace to the state.”14

  • 15 Preston, Aliens and Dissenters, p. 32. The U.S. 1903 Act prohibited “anarchists, or persons who be (...)

23This “dangerous” class was covered under Section 41 of the 1910 Act. According to the explanatory notes on the Bill to Amend the Act, which was first introduced as Bill 17 in 1909, and passed as Bill 102 on 22 March 1910, Section 41 was based on Section 2 of the American Act. The note explained the danger of this group and justified the measures taken by the U.S. government to deal with the problem, In Washington, a special bureau dealt with anarchists, who were increasingly seen as a danger to society. This section of the Canadian Act, the note said, was intended to prevent similar types of people from becoming a menace in Canada. The wording of the Canadian Act was similar to that of the American Act.15

  • 16 File 653, 30 October 1918. The British Embassy in Washington sent the Department at Ottawa copies (...)

24Similar parallels exist between the U.S. legislation of 1917 and 1918, and the Canadian amendments of 1919. Departmental correspondence shows that these parallels were deliberate. Scott wanted to include two points in the new legislation: “certain prohibited classes”, and a limit of five years for deportations instead of three. The five-year limit for deportations applied generally in the U.S., except in the case of immigrants who were political offenders. For them, there was no limit; under the U.S. Act of 1917, they could be deported at any time after entry. This Act was originally passed by the U.S. Congress and vetoed by the President in 1913, and again in 1915. President Wilson was concerned about the difficulty of distinguishing between political exiles and anarchistic property-destroying radicals. In February 1917 Congress overrode Wilson’s second veto and the Act became law. Thus, aliens deemed to conform to its provisions could be deported “at any time” after legal entry. This provision was unchanged in the 1918 U.S. Act upon which certain clauses in the Canadian legislation of 1919 were to be based.16

  • 17 File 653, Memo to Deputy Minister, no date, March 1919; Senate Debates, 1920, p. 422.

25The 1919 Canadian Bill to amend the Immigration Act explained its debt to U.S. legislation. A U.S. Public Health Service definition of “constitutional psychopathic inferiority” was used, for example. Yet more noteworthy were the similarities of the last-minute amendment rushed through both Houses on 5 June 1919 and assented to 6 June 1919, which made it possible for the government to deport a naturalized citizen, or almost anyone not Canadian-born, on account of their political beliefs or actions, no matter how long they had been in Canada. This measure passed through the Commons with no debate, in something like seven-and-a-half minutes, and through the Senate in perhaps ten minutes.17

26The 6 June 1919 amendment affected only Section 41 of the Act. As amended, the section read:

  • 18 An Act to Amend an Act of the Present Session Entitled an Act to Amend the Immigration Act. Statut (...)

(1) Every person who by word or act in Canada seeks to overthrow by force or violence the government of or constituted law and authority in the United Kingdom of Great Britain and Ireland, or Canada, or any of the provinces of Canada, or the government of any other of His Majesty’s dominions, colonies, possessions or dependencies, or advocates the assassination of any official of any of the said governments or of any foreign government, or who in Canada defends or suggests the unlawful destruction of property or by word or act creates or attempts to create any riot or public disorder in Canada, or who without lawful authority assumes any powers of government in Canada or in any part thereof, or who by common repute belongs to or is suspected of belonging to any secret society or organization which extorts money from or in any way attempts to blackmail, or who is a member of or affiliated with any organization entertaining or teaching disbelief in or opposition to organized government shall, for the purposes of this Act, be deemed to belong to the prohibited or undesirable classes, and shall be liable to deportation in the manner provided by this Act, and it shall be the duty of any officer becoming cognizant thereof and of the clerk, secretary, or other official of any municipality to send a written complaint to the Minister, giving full particulars: Provided, that this section shall not apply to any person who is a British subject, either by reason of birth in Canada, or by reason of naturalization in Canada.
(2) Proof that any person belonged to or was within the description of any of the prohibited or undesirable classes within the meaning of this section at any time since the fourth day of May, one thousand nine hundred and ten, shall for all the purposes of this Act, be deemed to establish prima facie that he still belongs to such prohibited or undesirable class or classes.18

  • 19 Senate Debates, 1919, p. 413.

27The 6 June amendment was aimed at the British-born leaders of the Winnipeg General Strike19 as well as at radicals who were not deportable under the previous law.

  • 20 F.D.Millar, “The Winnipeg General Strike, 1919: A Reinterpretation in the Light of Oral History an (...)

28Although the amendment was precipitated by the Winnipeg General Strike, its roots lay in events in Canadian society as a whole, and in what was becoming a habit by the officials of the Department of Immigration of following American precedent in their shaping of Canadian immigration law. By early 1919, Canada was in a state of political uproar. The powers-that-be feared class warfare. There was much discontent among ordinary working people because of high inflation. There had been a series of union recognition and cost-of-living strikes during 1918 and 1919, some of them quite serious, such as those among municipal and railway employees. Union membership exploded as unskilled and ethnic workers joined industrial unions in numbers not equalled again until 1943. Organizing drives were beginning to reach mining, logging, and harvesting workers and railroad navvies, as well as workers in the non-primary sectors. Arthur Meighen spoke for those who feared where this would lead when he said that radical industrial unionism simply could not be permitted because it would line up all of the employed against their employers, and they would be “fighting it out for supremacy.”20

  • 21 See David Bercuson, Fools and Wise Men: The Rise and Fall of the One Big Union, Toronto, McGraw Hi (...)

29Discontent had political sources as well. Since the “conscription election” of 1917, there had been angry complaints about profiteering (which was even more distasteful in view of the rate of inflation), and about conscription, which was seen as an “unequal sacrifice”; that is, the rich should be required to sacrifice money if ordinary people were to be required to sacrifice their lives. The government was understandably nervous about this situation and attempted to crack down on its critics through a series of Orders-in-Council in September 1918 designed to suppress radicals of all kinds. Order-in-Council PC2384 was aimed mostly at the IWW and the Russian Social Democratic Party, but also proscribed a number of organizations desiring to bring about economic, political, governmental, industrial, or social change in Canada by force, violence, or injury to any person or property. PC2786 added more names to the list of proscribed organizations. PC2381 banned publications and literature using Finnish, Russian, Ukrainian, Hungarian, and German, for example.21

30The effect of this crackdown was to label ethnic organizations as radical and to drive ethnics to the left. The unity among radicals that the government had feared was in fact increased. In the face of this unity, the Borden government appointed the Mathers Commission (Royal Commission on Industrial Unrest), and hoped to stifle the radicals by passing a series of reforms which were essentially meaningless. John Bruce, the chief organizer in Canada of the American Federation of Labour, and Tom Moore of the Trades and Labour Council (TLC), were representatives on the Commission. The Commission travelled the country for the first four months of 1919, and listened to stories of discontent even from those who described themselves as conservative.

  • 22 F. D. Millar, John Bruce Interview, PAC Sound Division.

31By the week of 6 June 1919, events had reached a crisis in the Winnipeg General Strike. At that time, the government told Bruce and Moore that they were to sit down and write their recommendations for the Royal Commission. They were assured that no panic action would be taken against the strikers; rather, some measure of reform would be effected, based on their recommendations. “They double crossed us,” said Bruce22

  • 23 File 653, Scott, “Memo on Senate changes in Immigration Bill 52, passed by the Commons,” 5 June 19 (...)

32The betrayal took the form of Bill 03, an additional amendment to the original 1919 amendments to the Immigration Act. The originally proposed 1919 amendments would have left Section 41 substantially unchanged, but the new amendment was draconian, at least by Canadian standards. Significance lay in two provisions. The original 1919 Bill had modified Section 2 (d) of the Immigration Act, to prevent the attainment of domicile and to assure that domicile already gained was lost “by any person belonging to the prohibited or undesirable classes within the meaning of Section 41 of this Act.” Thus, domicile was no protection against politically motivated deportation. The stated intent of this amendment was to allow the Department to deport anarchists and other Section 41 undesirables even after five years’ residence. This would have been impossible under the old provision which allowed deportation on political grounds only if an immigrant were an anarchist at entry, or became so before five years had elapsed.23

  • 24 Senate Debates, 1920, p. 500. See also File 653, Acting Deputy Minister to Minister, on plans to a (...)

33This was drastic enough, but the 6 June amendment provided also that anyone who was not a Canadian-born or naturalized citizen could be deported for political offences. Here was a provision obviously aimed at the British-born Winnipeg General Strike leaders. British subjects born outside Canada gained Canadian citizenship automatically after acquiring domicile, rather than by naturalization. A final provision made Section 41 retroactive; that is, if someone had fallen “within the description” of the prohibited and undesirable classes within the meaning of Section 41 “at anytime” since 4 May 1910, that person was still a member of that group and by definition deportable under these provisions. Citizens by naturalization were not safe either. Under the 1919 Amendment to the Naturalization Act, if someone were shown to be “disaffected” or “disloyal”, their naturalization could be revoked; they would then fall under Section 41 and could then be deported.24

34At the same time, the Criminal Code was amended by Order-in-Council. The new sections, 97A and 97B, were the most directly equivalent to Section 41 of the Immigration Act. Section 97A dealt with any organization that aimed to “bring about any government, industrial, or economic change” in Canada by acts or threats of force, violence, or injury to person or property, or to advocate these for the purpose of bringing about such changes “or for any other purpose.” Such a group was an “unlawful association”. The property of such an association or its officers could be seized under the authority of the Dominion Police or the RCMP, and forfeited to the Crown. Anyone displaying anything (such as insignia or literature) suggesting any connection with such an unlawful organization was by definition guilty and liable for up to twenty years’ imprisonment. In the absence of proof to the contrary, anyone going to meetings, speaking publicly, or in any way acting on behalf of an organization, was considered a member. Anyone permitting such a meeting to take place could be fined or jailed (up to $5,000 or five years, or both). Judges could issue warrants to search for and seize any documents or other evidence of membership in, or affiliation or sympathy with, such an unlawful association. Section 97B dealt with publications, literature and advertising connected with these organizations, providing for prison sentences of up to twenty years for anyone publishing, selling, circulating, or importing any such materials. It also made it the duty of any Canadian official to seize such materials found in any vehicle, or vessel, or on docks, in stations, post offices, or otherwise being shipped or distributed.

  • 25 File 653, Blair to Deputy Minister, 31 March 1926; Criminal Code Amendments 97A and 97B, Post Offi (...)
  • 26 Senate Debates, 1926, p. 275; see also Bill 153 to Amend the Criminal Code, 1926.

35These sections, later known as Section 98, were added to the Criminal Code to widen categories of political offences, acts, thoughts, or affiliations considered seditious.25 Earlier, such offences had been covered mainly by Sections 132 and 133 of the Criminal Code. Section 133 had said that certain activities were not seditious if undertaken with the proper intent (with the idea that his Majesty was mistaken or misled in something, or if the offender were merely pointing out defects in governments or institutions in order for these to be lawfully changed and improved), as opposed to intentions of illegal or violent overthrow or destruction.26 Section 133 was repealed and replaced with Sections 97A and 97B. Because these latter provided that association with unlawful or seditious organizations or persons was itself seditious, and did not provide for innocent intent, they were in every way more severe and less judicious than the Section 133 they replaced.

  • 27 Ibid., 1920, pp. 388, 419, 389.

36Much has been made of the 1919 emergency amendments. It is undeniable that they were rushed through Parliament by the Meighenite hard liners (left in charge while Borden was off in France signing the peace treaty), in order to use deportation to deal with the Winnipeg General Strike leaders who could not be dealt with by the Criminal Code as it then stood. Deportation-an essentially arbitrary, closed, administrative proceeding-was particularly attractive in the circumstances. Although they did not in fact succeed in deporting the British-born strike leaders, Minister of Labour Gideon Robertson later claimed that this legislation was used to deport “a substantial number of men in different parts of Canada” although “most... were not British subjects.”27

  • 28 Bercuson, Fools, p. 101; Senate Debates, 1926, p. 276. “In Canada, the campaign against radicalism (...)

37The Department’s subsequent claim that no British subjects were deported under this amendment, or, alternatively, that no deportations were made under the legislation has been accepted by historians of the left, as well as politicians. On the other hand Gideon Robertson claimed in 1920 that the retroactive subsection (2) had been so effective in cleaning out all of the undesirables that it was no longer needed a year after it had been passed.28 There is no indication in the files of the Department that anyone was upset by Robertson’s statement, or felt compelled to correct, challenge, or deny it. At the very least, Robertson’s claims made in the Senate debates (which extended over a period of two sessions) throw into question the validity of the Department’s assertion that deportations were not made under the 6 June 1919 amendment.

  • 29 File 653, An Act to Amend the Immigration Act, assented to 11 June 1928.

38Parliament took less than an hour to augment Section 41 of the Immigration Act with tremendously broadened and arbitrary powers to deport immigrants for political offences. But it was to take nine full years to remove these added powers and return this Section to the form in which it entered the Act in 1910.29 The delay was occasioned not by the attempts of the Department to retain these powers (for in fact whatever their private feelings, Immigration officials drew up several Bills for repeal) but rather by the intransigence of the Senate, which refused on five separate occasions to pass liberalizing or revoking measures.

  • 30 Ibid., Commissioner Little to Featherstone, 20 June 1923, Blair to Minister, 19 April 1920.

39The 6 June 1919 amendments to Section 41 displeased the left, and to a certain extent some of the right. What little protest there was from the latter, as from the mainstream, emphasized the discrimination against British-born subjects under the amendment: aliens who had become naturalized citizens were safe from deportation (unless of course they had their certificates revoked), while British-born immigrants here for the same length of time could be deported because their Canadian citizenship was not based on naturalization. In effect, the amendment legalized the deportation of a class of Canadian citizens. The Quebec branch of the Great War Veterans Association protested, but not against the deportation of undesirable immigrants regardless of how long they had been in Canada-that was all to the good, as far as they were concerned. Rather, they were upset that British-born subjects who had citizenship by domicile were subject to such deportation.30

  • 31 Ibid., Tom Moore to Minister Calder, 12 June 1919; Blair to Minister, 18 June 1919.

40Labour protested the 6 June amendment. Within a week, Tom Moore of the TLC, and other union representatives met with Premier Borden and Minister of Immigration James Calder, to demand that the amendment be removed. Moore wanted to return to Section 41 as it had been in 1910, arguing that it was unfair and illegal to have different standards for deportation for political offences than for other offences under the Immigration Act. Further, Moore argued that if a British subject got into political trouble, he or she should “be dealt with under the Criminal Code and be made to suffer the penalty of the law in Canada rather than be deported therefrom.” Moore was not convinced by the Department’s claim that the discrimination against political offenders was based on the fact that they were as a class “directly a menace to the state.”31

  • 32 Ibid., Acting Deputy Minister Cory to Secretary Blair, 19 April 1920; Bill X2 was first read in th (...)

41The strong showing of the Progressives in the 1921 election helped labour and other groups attempting to create pressure for changes in repressive laws. This was certainly an important factor in attempts to repeal the 6 June amendment, and probably explains much about the ultimate achievement of this goal. The first such attempt had been made in April 1920, however, before the Progressive federal sweep (Ontario and Manitoba provincial elections showed changing public opinion earlier). The government introduced a Bill to eliminate “right away” the provision in Section 41 for the
deportation of a British subject for sedition, conspiracy, etc.” The phrase near the end of the first clause in Section 41 that kept British-born Canadians liable would be eliminated, and instead the phrase “every person other than a Canadian citizen” would be substituted.32

  • 33 Ibid., Blair to Minister Calder, 19 April 1920.

42What constituted Canadian citizenship had been defined in section 2 (f) of the 1910 Immigration Act. A Canadian citizen was (1) a person born in Canada who had not become an alien (for example, by marrying an alien, in the case of Canadian-born women, or by taking another citizenship); (2) a British subject who had acquired Canadian domicile (three years’ residence in 1910; five years’ in 1919); or (3) a person naturalized as a citizen under Canadian law (after the same residence requirements for domicile) who had not become an alien (by marriage, for women) or lost Canadian domicile (by living out of the country for a certain period, for example). Anyone who was not a British subject was an alien. These definitions set forth in the 1910 Immigration Act were unchanged in 1919 or thereafter.33

  • 34 Ibid., Blair to Calder, 23 April 1920.

43According to the Department, the changes to Section 41 proposed in 1920 would place British subjects born outside Canada on an equal footing with all other immigrants, and would remove subsection 2, which had been very controversial. The Department’s memo to Minister Calder, to brief him for his presentation in Parliament, argues that this subsection was “unfair” legislation because it was retroactive to 1910. The Department reiterated its claim that it had not used the legislation, but wanted nonetheless to “save considerable hard feeling” by revoking it.34

44In the Senate, Minister of Labour Gideon Robertson argued on several grounds in favour of removing the broad powers given to Section 41 in the 1919 amendment. The first reason was that the emergency that gave rise to the need for such special powers was over. Secondly, Robertson said, labour had pointed out that it was “unfair and un-British... to say that a British subject should be deported without a trial.” This essentially unarguable point, he said, made the legislation a red flag in the face of which labour would be even harder to control. As for the claim that removing the special powers was an act of weakness, he thought this almost absurd. The government claimed that the amendment had been necessary in the first place because the Criminal Code was inadequate, but subsequent amendments to the Criminal Code, passed in June 1919, had rendered it quite adequate to deal with subversives. Thus, the 1919 Immigration Act amendments were legally superfluous, argued Robertson.

45Thus far, Robertson’s arguments echoed the Department’s brief used by Calder in the Commons. But flatly contradicting the Minister and the Department of Immigration, Robertson went on to boast that the 1919 amendments were not only legally but also practically superfluous-not because they had never been used to deport anyone, but rather because the government had already successfully and thoroughly used the legislation to rid themselves of all of the subversives and other undesirables. Robertson claimed that there was nobody left in Canada whom the government wanted to deport who could not be dealt with under Section 41, as it had stood before the 6 June 1919 amendment:

  • 35 Senate Debates, 1920, pp. 388-9, 417, 422. was defeated in the Senate.

Citizens of foreign countries who came to Canada and were guilty of seditious acts and utterances merited deportation, even though these utterances or acts were committed prior to the time the legislation was passed [6 June 1919]. We dealt with a substantial number. Now, that having been done, and more than a year having gone by during which that work has been carried out and concluded, there is no necessity for continuing on our statute books a law that will permit an officer of the Immigration Department to cause to be deported a British subject, who has been in this country more than five years.35

  • 36 Ibid., p. 587.

46The Senators were not convinced. Alarmed by the same stirrings that were to change the House of Commons, they believed that the unrest of the previous year still existed. To the Senators, to remove the amendment would be to announce to people like the Winnipeg strikers that they were free to carry out their “nefarious” activities. Removing the special powers from Section 41 was “well calculated to encourage agitators all over Canada... a confession of weakness on the part of the Government,” and would be seen as bowing to pressure from labour organizations.36 The Bill was soundly defeated.

  • 37 File 653, Blair to Cory, 30 March 1921; Senate Debates, 1921, pp. 724-5; see also File 653, Blair’ (...)

47The second attempt to remove the 1919 amendment took place at the end of 1921 when the government introduced Bill 139 in the House of Commons. The provisions concerning Section 41 were much as the year before; that is, repealing subsection 2 and replacing the excepting phrase in the end of Section 1 with the clause “except for Canadian citizens.” Yet another clause in the Bill revealed more clearly the King government’s strategy of concessions to the mainstream of labour, while opposing more radical (industrial) unionism: representatives from international labour organizations were to be given easier temporary entry as was already given to commercial travellers or professionals. This was a concession for which the American Federation of Labor had long been pushing. That part of the amending Bill was no problem, but the provision to amend Section 41 remained controversial. The Bill passed in the Commons but was defeated in the Senate.37

  • 38 Montreal Gazette, 22 June 1922. See also Ottawa Evening Journal, 7 February 1922. This is a startl (...)

48Labour MP Woodsworth’s private member’s bill was the only attempt made to change the immigration Act during the 1922 session. The Woodsworth bill provided for trial by jury for political offences committed in Canada, before deportation for those offences. Woodsworth also proposed repealing subsection 2, the retroactive clause in Section 41, and objected as well to the provision that the mere suspicion of belonging to any secret organization of a proscribed type was grounds for deportation. Woodsworth characterized the 6 June amendment as “absolutely vicious in character.” Minister of Immigration Charles Stewart countered that the Woodsworth bill would “throw the gates very wide open.” Meighen, architect of the 1919 repressive measures, claimed that his amendments “had never been used arbitrarily.” Woodsworth’s bill was eventually defeated by a wide margin. In fact, it never had a chance: deportation without trial by jury was a fundamental part of Canadian immigration law, a point which Woodsworth and other progressives never completely understood. Until the Department worked out alternative strategies, jury trials were unacceptable. Nonetheless, a special committee appointed to study the bill proposed, and the Commons agreed, that the sections permitting the deportation of non-Canadian-born British subjects who had acquired domicile be removed from the Act in the next session.38

  • 39 File 653, Bill 136; no date, early 1924.

49Bill 136, the third attempt by the government to eliminate the 1919 amendments to Section 41, passed the Commons 11 May 1923. It provided that “any alien in Canada” (that is, any non-British non-citizen, domiciled or not) who came under the list of offences outlined in the sections should be deported. The 1923 bill clarified the language of Section 41, repealed the section concerned with assuming the powers of government (the phrase that had been aimed at the Strike Committee), the phrases that included offences against government or legally constituted authority (the narrow anarchist clause), and also repealed subsection 2 and eliminated the clause permitting the deportation of domiciled British subjects.39 The Bill did not pass in the Senate.

  • 40 Ibid., Blair to Minister Robb, 20 June 1924; Blair, memo for file, “Efforts to amend Section 41,” (...)

50Essentially the same process took place in 1924, with Bill 195 given first reading in the House 24 June. The Department claimed again that it had never deported anyone under the “extended authority” of the 6 June 1919 amendment. The bill got through the House, but the amendments to Section 41 were defeated for the fourth time in the Senate by a vote of about twenty-five to seven, leaving the Immigration Act unchanged.40 The fifth, almost annual, attempt to remove the 1919 amendments began early in 1926 in more or less the same fashion as its predecessors. The bill sent to the Commons in March was the 1924 version of the amendments to Section 41.

  • 41 Ibid., Blair to Mr. Throop, House of Commons, 10 March 1926, Blair to Deputy Minister, 31 March 19 (...)

51The labour members of the House, dissatisfied with the bill, wanted more thorough amendments and in 1926 were in a position to attain them, as the King minority government needed labour support to stay in power. Labour’s objections to Section 41 were two-fold: it allowed deportation for political offences after a hearing by a Board of Inquiry rather than a court conviction based on a trial by jury; it discriminated against the British-born because they could be deported while domiciled, while an alien naturalized as a Canadian citizen could not be deported. Bill 91 introduced in March 1926 restored Section 41 to what it had been before the 6 June amendment. This satisfied labour’s second objection but not the first. Woodsworth demanded amendments to provide for court trials in political deportation cases, as well as to end the discrimination against domiciled British-born immigrants. Woodsworth did not necessarily intend to put up a battle to prevent deportation after domicile, but was determined to end deportations for Section 41 offences “unless there has been a conviction” in a court of law.41

  • 42 Ibid., Memo to Deputy Minister, 23 April 1926, Blair to Deputy Minister, 30 March 1926.

52In response to Woodsworth’s criticism, the Department prepared two other versions of Bill 91. The first alternative would altogether repeal Section 41 and make political deportations possible only following criminal convictions. They thought this version would be easier to pass, and would avoid claims that the Department was trying to increase its power. At the same time it would satisfy the labour members. But the Department preferred the second version, which would repeal Section 41 and at the same time modify Section 40. Section 40, the main provision for deportation in the Immigration Act, set out various grounds for deportation, such as becoming a public charge, becoming an inmate of a hospital for the insane or other public or charitable institution, or becoming convicted of a criminal charge. These provisions, as a rule, did not apply to persons who had been in Canada for more than five years and who thus had domicile. (For certain causes persons here more than five years could be deported, mainly if they had not legally entered or had been at entry a member of the prohibited classes and thus were by definition incapable of acquiring domicile no matter how long they were here.) The Department proposed to change Section 40 so that any alien regardless of domicile, and any Briton who had not yet obtained domicile, could be deported under Section 40. Thus the Department could deport domiciled aliens who had become inmates of institutions after they had lived in Canada more than five years. “We might not get this through, but it would strengthen our hands if we could,” wrote Acting Deputy Minister Frederick Blair.42

  • 43 Ibid., 30 March 1926; see also Memo to Deputy Minister, 23 April 1926.

53The Department recognized that there might be some objection to strengthening its powers under Section 40 by removing the exemption against deportation for domiciled aliens, but it did not think these objections could be upheld. “I cannot see there is any reason why we should recognize the right of an alien to exemption from deportation after living in the country for five years if he is an undesirable within the meaning of Section 40,” said Blair. Becoming a public charge, inmate of a public or charitable institution, hospital for the insane and so on, or “conviction for any political or other criminal offence at any time while he resides in Canada would make him subject to deportation.” Under this bill, the only safety for aliens in Canada would be naturalization as a Canadian citizen. “If an alien wants to remain an alien and yet be protected against deportation, he can do so by behaving himself in Canada.”43

  • 44 Ibid., Blair to Deputy Minister, “Discussion with Deputy Minister of Justice concerning amendments (...)

54In order for this strategy to work, the Criminal Code would have to be amended to “save as much of Section 41 as possible” so that offences under Section 41 would become offences under the Criminal Code. Under the proposed scheme, a political offence would result in arrest, court trial, and if conviction resulted, a Board of Inquiry would merely determine that such a conviction had taken place and deportation would be automatic. In fact, said Blair, “it would simplify matters for the Department, if deportation for a political offence were dependent upon a conviction in Canada.”44

  • 45 Ibid., Blair to Deputy Minister, 1 June 1926.

55Blair believed that the existing provisions of Part II of the Criminal Code were relatively adequate to replace Section 41. In a memo to the Deputy Minister, Blair explained that Part II of the Criminal Code contained Sections 73-141 which covered offences against public order and external security. Blair thought that the offences listed in Part II were roughly equivalent to the offences covered in Section 41 of the Immigration Act.45

  • 46 Ibid., Blair to Deputy Minister, 7 June 1926, and 31 March 1926.

56At the same time that labour members had been successfully pressuring the Liberal minority government to try to amend Section 41 of the Immigration Act, they were similarly pushing for amendments to the Criminal Code. What Blair had not known while he was devising his scheme to extend the powers of the Department by amending Sections 40 and 41 was that a Bill to amend the Criminal Code, by repealing Section 97A and 97B and reinstating Section 133, was about to be introduced. The Department of Immigration was not happy about this event. If Section 41 were repealed and deportation made contingent upon criminal conviction under the Criminal Code minus Sections 97A and B, it would be harder to get rid of immigrants for political reasons. Blair concluded that “there appears to be little left in the way of political offences for which an immigrant may be convicted.”46 The Department had no objection to political deportations requiring a court conviction rather than a Departmental hearing, as long as tough provisions for seditious or subversive offences were left in the Criminal Code.

57Yet even without the help of the Criminal Code, all would not be lost. The Department had a variety of other legal categories within which to deport “undesirables”, which also could be used to deport political undesirables. As well, persons in trouble for political offences were likely to have legal, economic, or social problems: loss of job, arrest on technically correct but spurious charges (such as vagrancy, riot, unlawful assembly, incitement to riot, assault, resisting arrest). These problems were likely to bring such persons “within reach of the Department,” as officials often phrased it, and thus easily deportable for some violation of the Immigration Act such as having become a public charge or having been convicted of a crime. Further, the Department expected that the increase in its deportation powers under a strengthened Section 40 would make up for the loss of power if Section 41 were repealed.

  • 47 Ibid., Blair to Minister, “Memo prepared for the Minister to use in the House,” 29 April 1926.

58In the original Bill 91 of 1926, Section 41 used the phrase, “whenever any alien [advocates in Canada the overthrow by force etc.]”; that is, British subjects, domiciled or not, and naturalized Canadian citizens, could not be deported under Section 41. The 1919 Section 41 had provided that “every person” was liable for deportation on these grounds, except for Canadian citizens by birth or naturalization.47

  • 48 Ibid., An Act to Amend the Immigration Act, 1926; Blair to Dandurand, 14 June 1926.

59It was Blair’s version of the 1926 Bill that was passed by the House; non-citizens convicted of certain criminal (political) offences were deportable under the revised Section 40, regardless of domicile. This was the Bill that was introduced to the Senate. Liberal Senator Raoul Dandurand, who introduced it, explained its merits almost word-for-word from a memo prepared for the occasion by Blair. He repeated once again the arguments of the past five years: the “emergency” was longpast; the 1919amendment put too much power in the hands of a Board of Inquiry which might consist of just one Immigration officer with little or no legal training; and British justice and the public interest demanded that Courts of Justice deal with political offences. The proposed amendment would leave the country ample protection against undesirables under Section 40 because Part II of the Criminal Code covered political offences equivalent to those covered in Section 41 of the Immigration Act. Finally, and surprisingly, he argued that the 1919 amendment should be repealed because it had never been used, so there would be no loss in being rid of it.48

  • 49 Senate Debates, 1926, pp. 239, 242, 244; Senate Debates, 1920, pp. 422, 417, 389.

60No one challenged Dandurand’s assertion that the 1919 powers had never been used. Senators Tanner and Griesbach asked if there had been no deportations; Dandurand replied that there had been none. No one referred to Gideon Robertson’s emphatic and detailed claims in the 1920 debate. Even more extraordinarily, Dandurand claimed that Section 41 in the 1910 version had never been utilised.49

  • 50 Ibid., 1926, McMeans from Winnipeg, 244-5, Dandurand pp. 179-80, 267.

61The Senators were unpersuaded. Winnipeg Tory Senator Lindrum McMeans’ comments were typical. The “Red menace” had grown, he said: “today the country is honeycombed with people who are preaching these doctrines even in the Sunday Schools.” The government could now get rid of a political undesirable without “the expense of charging him with a crime or keeping him in the penitentiary.” Why should the government “charge [political agitators] with a crime and... try them, when you have not any evidence to convict them? Do you think anyone of good character would be accused of sedition and deported?” he asked. Several Senators felt that the anti-sedition sections of the Criminal Code were not adequate replacements for Section 41, particularly if Section 133 were reinstated and Sections 97A and B and were repealed, as proposed. It is interesting to note that Dandurand repeated the claims of the Department of Justice that there had been “no prosecutions before our courts anywhere in the country under these sections.”50

  • 51 Ibid., pp. 249, 281-2 for Aylesworth, p. 244 for Dandurand, and Belcourt pp. 249-50.

62One of the few Senators who demurred was Sir Allen Aylesworth, a Toronto Liberal and a constitutional lawyer. Aylesworth recalled his involvement as an MP in the 1910 Commons debates on the initial addition of Section 41 to the Immigration Act. He argued that political deportation should not be a matter for a tribunal, but rather for the courts: “I thought in 1910 that it was a most dangerous thing to deny any British subject the right to have his case investigated in court by judge or jury... I still think so.” The Section was too arbitrary, took away “British liberty” and the right of habeas corpus, and violated the Magna Carta. Dandurand’s view was similar: he characterized political deportation by tribunal as “an arbitrary autocratic act” Liberal Senator NapoléanAntoine Belcourt went further, suggesting Section 40 should be repealed, “on stronger grounds than 41,” because it permitted deportation without court trial. Other Senators were skeptical or indifferent.51

63James Calder, former Minister of Immigration, poured scorn on such sentiments. Pointing out that the right to a court trial for political offences had been negated by law “for a long period of years”, and that there was little essential difference between the 1919 and 1910 versions of Section 41, he argued that the Canadian government, like its South African, Australian, and American counterparts who simply rounded up and deported such “undesirable persons”, must have strong powers to deal with radicals. But such powers would never be abused, he claimed:

  • 52 Ibid., p. 247.

In practice that would never take place at all. When the law was changed in 1919 I was Minister of Immigration, and there were those who at the time desired to have one of our immigration officers try certain people and decide whether they should be deported or not. I as Minister and the Government as well, would not allow that at all. We said, “In those particular cases let the question go to the courts.” It did go to the courts... there has never been a case in which any hardship has occurred under this law, either under the 1910 provision or under the amendment of 1919. There is in the law a power that the government, through its officers, can exercise if it chooses, but I am quite certain that in the administration of this law no Minister of Immigration, or no government would ever allow one, two or three immigration officers to deport a man without the full knowledge and sanction of the government itself-not only the Minister, but of the entire government-for deportation is a serious matter.52

64Of course this was patent nonsense. And Calder was better informed than many of the Senators, most of whom did not realize that court trials had no place in deportation. Most understood little or nothing of the Immigration Act or the workings of the Department of Immigration. Apparently they had little interest in the issue, for they failed to challenge inconsistencies, and willingly accepted conflicting and illogical claims. Ultimately they defeated a motion to take the bill to second reading, with a margin of nearly two to one.

  • 53 Ibid., p. 281. Calder’s comment is consistent with some of his other statements about Section 41. (...)

65Senators not involved in the affairs of the Department had little routine access to information about its practices. But Calder’s astonishing misrepresentations are another matter. It is difficult to believe that he simply did not know or understand that his underlings routinely used arbitrary star chamber tactics in closed hearings, in violation of British traditions of justice (although consistent with immigration law), or even acted illegally on occasion.53

  • 54 File 653, Blair to Bruce Walker, 17 June 1926.

66Acting Deputy Minister Blair explained to Bruce Walker, senior Canadian Immigration official in London, “No doubt Mr. Calder had reference to what was done in Winnipeg in 1919 when a special Board of Inquiry was created and the Police Magistrate, if I remember correctly, was made a member” of the Board that tried and deported several non-British Winnipeg Strike activists. Blair seems to imply by this that such an appointment created a Board less arbitrary (albeit less legal) than one composed only of Department officials. Nevertheless, said Blair, Calder’s statement was “absolutely incorrect as a matter of law and the Section as it stands does just exactly what Mr. Calder said no Government would do, viz., put into the hands of any Board of Inquiry, even if one person, the power to order deportation.”54 And such had been the case since Section 41 was first introduced in 1910.

67It was in 1928, on the sixth try, that the special powers of political deportation given the Department by the 6 June 1919 amendment to Section 41 were finally removed. This time the government took a different approach, initiating the process through an Order-in-Council, then moving to the Commons. The Commons Bill 187, which removed Section 41 and strengthened Section 40, was introduced by Minister of Immigration Fowke, who explained that the approach through the Orderin-Council had been taken because the same measure had been passed the previous session by the House but turned down by the Senate. It is not clear if his intent was to avoid debate or merely to expedite. Because the same bill had been approved before, it moved through the House quickly, with little debate and few questions. The government reiterated its argument that Section 41 was unnecessary, as political deportations could be carried out through Section 40 of the Immigration Act and Part II of the Criminal Code.

  • 55 House of Commons Debates, 1928, pp. 1868, 2484; Senate Debates, 1928, pp. 421, 522, 612; File 653, (...)

68The bill passed easily, In the Senate, however, it hit another snag. The debate repeated the familiar arguments that removing the 1919 powers from Section 41 would be “bowing to the Reds.” Finally the bill was referred to a special committee. The committee amended the bill; they eliminated all reference to deportation by trial by jury for political offences listed in the Criminal Code, and instead returned Section 41 to more or less what it had been in 1910. The Section after the 1928 amendment was passed read, “whenever any person other than a Canadian citizen advocates in Canada...” Subsection 2 was gone, along with the clause that permitted the deportation of domiciled British subjects. All of the 1919 amendments were done away with. The 1928 Act met all of the labour objections to the provisions under which political deportation was carried out, except for the most important: trial by jury.55

69The position of the Immigration Department remained relatively unchanged. Deportation had always had as little to do with the courts as possible. The Department was not accountable to the courts or to Parliament as long as it stayed within the law. Despite the fact that they still could, and did, deport people quite routinely for political activities or reasons, overt political charges were usually unnecessary because there were so many other labels that could be used. Thus the Department was not unwilling to eliminate its unusual powers and normalize Section 41. The Department did not overstate the case when it said that it did not need emergency powers; normal ones were quite sufficient. As long as deportation remained a purely administrative proceeding, and as long as the Department acted within the law that gave it such a broad scope, arbitrary decisions could continue to be the norm.

  • 56 File 653, no date, March 1930; Bill 44, first reading 11 May 1931; Commissioner of Immigration to (...)

70In the ensuing years, all attempts to curb the Department’s powers were stymied, including one proposal by Woodsworth and his labour colleagues to abolish the Department of Immigration and Colonization, as it was by then named. In 1931, Woodsworth’s Bill 44 attempted to ensure that someone resident in Canada for ten continuous years could not be deported. The Department argued that this would make it impossible to deport undesirables such as mental defectives, epileptics, and criminals. In 1933 and 1934 Woodsworth attempted to amend the Act to redefine “public charge” to exclude people receiving unemployment relief. Again, the Department pointed out the inconvenience and expense that would result if the Act were passed. The amendment, it claimed, was clumsily worded and its purpose was unclear. In 1934, CCF-Labour MP Abraham Heaps tried to amend Section 40 so that municipalities would not have to notify the Department about immigrants who had become public charges. The Department argued that municipalities had never considered this anything but optional.56 The issue in the 1930s was not the law governing deportation, but rather the way in which the Department acted under the provisions of the law.

71The Department could deport people under three broad headings: for something they had done, or for some condition, prior to entry; for something in their manner of entry; or for something done, or some condition, after entry. The provisions concerned with the first category could be found mostly in Section 3 of the Act which listed prohibited immigrants. Prohibitions were concerned with medical conditions, with political beliefs or activities, economic situation, criminal record, or morals, as well as a catch-all category of those entering or remaining in Canada contrary to the provisions of the Immigration Act. All that was necessary was to show that an immigrant belonged to a prohibited class, and therefore could not, by definition, legally enter Canada and obtain domicile. Deportation of someone in the prohibited classes was very much like refusing to admit them at the port of entry, and in effect, claimed the Department, was just such a retroactive refusal to admit. Deportation for membership in the prohibited classes was not limited by period of residence. Theoretically an immigrant could be deported after decades of Canadian residence. Some were.

72Deportation for something connected with the manner of entry was also fairly simple to carry out. Section 33 of the Act set out the requirement to submit to inspection upon entry, and to submit to questions put by an Immigration official as part of the examination for entry. If it could be shown that someone had entered without being inspected and legally admitted, or someone had obtained entry by misrepresentation or fraud (by lying about or concealing some information that might have placed them in the prohibited classes), then such a person was not in Canada legally and could be deported automatically once that fact were established. This too was represented as retroactive refusal at the port of entry.

73Deportation for causes arising subsequent to legal entry into Canada was less simple. The Act set out in Sections 40 and 41 most of the major causes for deportation under this third heading. Section 40 provided for the deportation of persons who had become public charges, or who had been convicted of crimes. Many of the reasons for deportation set out in Section 40 were similar to those in Section 3 detailing the prohibited classes; the main difference was the element of time. Under Section 40, municipal officials were responsible for sending to the Department a written complaint that an immigrant had become a public charge or inmate. After ascertaining that this was indeed the case, the Department could effect deportation of an insane or feebleminded inmate of a hospital, either under Section 3 or Section 40. Deportations under Section 40 were usually limited to within five years after legal entry (after 1919; before that date, the limit was three years). The Department found it easier to deport a domiciled immigrant under Section 3, or even under Section 33. Time spent as an inmate as described by Section 40, however, did not count towards getting domicile.

74Deportation was an administrative, not a judicial matter; therefore prospective deports did not have the rights that they would have had in a judicial process. The administrative proceeding was based on a hearing in front of a panel of officers of the Department who were appointed by the Minister. In some cases one officer of the Department could constitute the hearing body. There was provision under the Act for warning the deport of his or her rights, however limited they were. Theoretically they included the right to be represented by legal counsel, although very few immigrants could afford it, and the Department was not enthusiastic about interference by lawyers. The single operative right, as far as most cases were concerned, was the right to appeal the decision of the Board of Inquiry to the Minister of Immigration. If the hearing had been carried out according to the regulations, following the procedures outlined in the Act, the proper forms filled out, the proper phrasing used, and the evidence adduced in standardized ways according to directives issued by the Department, then there would seldom be a basis for overturning the decision. In some instances cases went beyond the Department of Immigration. The Deputy Minister might ask the Department of Justice for an opinion on a legal technicality-usually some question about the meaning of a phrase in the Act, or whether some evidence would be construed as supporting a particular conclusion or line of action.

  • 57 References are to the Act as published in 1929 in pamphlet form by the Department, found in ibid.

75The deportation process was overturned by the courts only when the Department got caught being sloppy in its procedures, exceeded its legal authority under the Act (which was not easy to do, since its authority was so broad) or, occasionally, when some flaw in the Act was discovered. The Department tried to carry out its procedures so that they would stand up to court examination if necessary. When a court decision went against it, the Department would try to amend the Act, or issue orders to follow procedures that would be less vulnerable to interference. The Immigration Act gave officials of the Department the power to determine and administer deportation, with virtually no interference from the courts or Parliament.57

Notes

1 Public Archives of Canada (PAC) Record Group (RG) 76, File 653, Chief Medical Officer Bryce to Medical Superintendent Hattie of Nova Scotia Hospital in Halifax, 22 August 1905. The proper name of the immigration service at this time was Immigration Branch of the Department of the Interior; it will be referred to as “the Department” or the Department of Immigration throughout for the sake of consistency; see Superintendent Scott to Minister Oliver, 28 March 1906; Scott to Harkin, 2 February 1907; See also File 837 on deportations from 1893-1906. For legal provisions see the Immigration Act of 1906.

2 After 1906 a series of Orders-in-Council increasingly did so, limiting entry on racial, financial and occupational grounds. Because Orders-in-Council generally restricted entry rather than dealt with deportation, they are not germane to this discussion. See for example File 653, Privy Council report of 25 February 1908 on continuous voyage restrictions. Machinery necessary to carry out deportation of criminals was added by an amendment in 1907, Bill 143.

3 File 653, Immigration Act of 1906.

4 Ibid., 1910 Act (Bill 102), 22 March 1910.

5 Ibid., Report of J. A. Côté for Acting Deputy Minister, 11 February 1904; U.S. law cited by William Van Vleck, The Administrative Control of Aliens. A Study in AdministrativeLaw and Procedure, New York, The Commonwealth Fund, 1932, p. 9; see William Preston, Aliens and Dissenters. Federal Suppression of Radicals 1903-1933, New York, Harper, 1963, p. 32, and File 653.

6 File 653, 1910 Immigration Act. The 1910 Canadian Act did not list anarchists among the classes prohibited to enter, relying instead on deportation after entry, because they believed that forbidden entry would be too hard to enforce, as shown by the American example. See House of Commons Debates, 1910, p. 5814 for Minister Oliver’s explanation.

7 File 653, no date but probably August 1900; Superintendent Scott to Staff, 20 January 1904; on U.S. Acts as models, see for example Bryce to Acting Deputy Minister of Justice, 23 July 1905 ; Scott to Minister Oliver, 28 March 1906.

8 Ibid., Scott to Oliver, 28 March 1906, Scott to Deputy Minister of Justice, 18 May 1906 ; “Comparison between the American immigration law, old and new, and the proposed new Canadian Act,” 11 June 1906 ; see also Van Vleck, Administrative Control, p. 9.

9 House of Commons Debates, 1909-1910, pp. 5813-6; File 653, Watchorn to Bryce, 13 June 1906.

10 File 653, Obed Smith to Scott, 25 February 1906.

11 Ibid., Memo for file, no date, January 1908; Fortier to Bryce, 1 January 1907 [sic]; Scott to all agents and Medical Officers, 7 January 1908 ; Memo for file, 12 December 1908 ; for the later draft see File 653, 22 March 1910.

12 Ibid., Scott to McInnes, 8 March 1909.

13 Ibid., McInnes to Scott, 8 March 1909; Scott to Oliver, 23 November 1909.

14 Ibid., Secretary of Immigration Blair to Minister Calder, “Memo regarding discussion with labour leaders concerning Section 41,” 18 June 1919.

15 Preston, Aliens and Dissenters, p. 32. The U.S. 1903 Act prohibited “anarchists, or persons who believe in or advocate the overthrow by force and violence of the Government of the United States, or of all government, or of all forms of law, or the assassination of public officials” or anyone who “disbelieves in or who is opposed to all organized government, or who is a member of or affiliated with any organization entertaining and teaching such disbelief.” The Canadian law of 1910 referred to those not Canadian citizens who advocated the overthrow by force or violence of the British, Canadian or other Imperial colonial governments, or of constituted law and authority, to the assassination of any public officials of government, or created riot or disorder in Canada by word or act. See File 653, Immigration Act as amended by Bill 102, 22 March 1910.

16 File 653, 30 October 1918. The British Embassy in Washington sent the Department at Ottawa copies of the U.S. 1918 Act, and a memo to the Deputy Minister noted: “place in file relating to proposed legislation.”Another memo from Acting Deputy Minister Cory to Superintendent of Immigration Scott cross-referenced this file to dossiers on the IWW and other radicals, 12 November 1918. Subsequent internal correspondence identified specific provisions of the U.S. Act that Canada should adopt, Cory to Scott, 20 November 1918; and see also Scott to Cory, 21 November 1918, 19November 1918, 20 July 1917. The U.S. 1918 Act was entitled “An Act to Exclude and Expel from the United States Aliens Belonging to the Anarchist Classes,” 16 October 1918.

17 File 653, Memo to Deputy Minister, no date, March 1919; Senate Debates, 1920, p. 422.

18 An Act to Amend an Act of the Present Session Entitled an Act to Amend the Immigration Act. Statutes of Canada, 1919.

19 Senate Debates, 1919, p. 413.

20 F.D.Millar, “The Winnipeg General Strike, 1919: A Reinterpretation in the Light of Oral History and Pictorial Evidence,” Unpublished M.A. thesis, Carleton University, 1970, Chapter 4. See also House of Commons Debates, 1919, p. 3041.

21 See David Bercuson, Fools and Wise Men: The Rise and Fall of the One Big Union, Toronto, McGraw Hill Ryerson, 1978, p. 58; see also Edward Laine,’ “Finnish Canadian Radicalism and Canadian Politics: The First Forty Years,” in Jorgen Dahlie and Tissa Fernando, eds., Ethnicity, Power and Politics in Canada, Toronto, Methuen, 1981.

22 F. D. Millar, John Bruce Interview, PAC Sound Division.

23 File 653, Scott, “Memo on Senate changes in Immigration Bill 52, passed by the Commons,” 5 June 1919.

24 Senate Debates, 1920, p. 500. See also File 653, Acting Deputy Minister to Minister, on plans to amend the Naturalization Act, 9 June 1919.

25 File 653, Blair to Deputy Minister, 31 March 1926; Criminal Code Amendments 97A and 97B, Post Office Department Circular to Post-Masters, No. H-85, no date.

26 Senate Debates, 1926, p. 275; see also Bill 153 to Amend the Criminal Code, 1926.

27 Ibid., 1920, pp. 388, 419, 389.

28 Bercuson, Fools, p. 101; Senate Debates, 1926, p. 276. “In Canada, the campaign against radicalism and Bolshevism was initiated, orchestrated, and executed by the federal government according to the laws on the books, or created especially for that purpose. The federal government never exceeded its legal authority, because it did not have to,” Bercuson, Fools, p. 99. This is incorrect; the arrests and detention at Stoney Mountain Penitentiary of the strike leaders was admitted by Meighen himself to have been illegal. Even Bercuson’s statement that there were no deportations under Section 41 is qualified; he says no British subjects were deported, although some of the aliens were secretly deported under Judge MacDonald’s orders (p. 101). The Department claimed variously that (1) no British subjects were so deported, (2) no persons were so deported, (3) no one was ever deported under Section 41 either the 1910, 1919, or the amended 1919 version; Senate Debates, 1920, p. 389.

29 File 653, An Act to Amend the Immigration Act, assented to 11 June 1928.

30 Ibid., Commissioner Little to Featherstone, 20 June 1923, Blair to Minister, 19 April 1920.

31 Ibid., Tom Moore to Minister Calder, 12 June 1919; Blair to Minister, 18 June 1919.

32 Ibid., Acting Deputy Minister Cory to Secretary Blair, 19 April 1920; Bill X2 was first read in the Senate 27 April 1920.

33 Ibid., Blair to Minister Calder, 19 April 1920.

34 Ibid., Blair to Calder, 23 April 1920.

35 Senate Debates, 1920, pp. 388-9, 417, 422. was defeated in the Senate.

36 Ibid., p. 587.

37 File 653, Blair to Cory, 30 March 1921; Senate Debates, 1921, pp. 724-5; see also File 653, Blair’s memo, for the file on “Efforts to amend Section 41,” 1 June 1926.

38 Montreal Gazette, 22 June 1922. See also Ottawa Evening Journal, 7 February 1922. This is a startling claim coming from Meighen, not only because it is unbelievable, but because he was the one who used it arbitrarily. Early on the morning of 17 June, eight strike leaders and four non-Anglo “New Canadians” were arrested and charged with seditious conspiracy and sent to Stoney Mountain Penitentiary, under the 6 June amendments. The wire sent to the RCMP by Minister of Immigration Calder to authorize the arrests did not arrive until after the fact. This was blatantly il The Bill did not pass in the Senatelegal and contravened the Immigration Act. Meighen’s response was to wire, “Notwithstanding any doubt as to the technical legality of the arrest and detention at Stoney Mountain, I feel that rapid deportation is the best course now that the arrests are made, and later we can consider ratification.” Roger Graham believes that the government’s “willingness” to “overlook a technical illegality” shows that all were “abnormally excited.” Roger Graham, Arthur Meighen, Volume I. The Door of Opportunity, Toronto, Clarke Irwin, 1960, p. 241. The Department calmly overlooked technical and other types of illegality quite consistently in its dealings with radicals and other deports. Graham might well have drawn a different conclusion had he been familiar with the inner workings of the Department.

39 File 653, Bill 136; no date, early 1924.

40 Ibid., Blair to Minister Robb, 20 June 1924; Blair, memo for file, “Efforts to amend Section 41,” 1 June 1926, [Illegible] to Blair, 30 June 1924.

41 Ibid., Blair to Mr. Throop, House of Commons, 10 March 1926, Blair to Deputy Minister, 31 March 1926, Blair to Deputy Minister, 29 April 1926, and Blair’s memo for file regarding his discussion with Woodsworth, 29 March 1926.

42 Ibid., Memo to Deputy Minister, 23 April 1926, Blair to Deputy Minister, 30 March 1926.

43 Ibid., 30 March 1926; see also Memo to Deputy Minister, 23 April 1926.

44 Ibid., Blair to Deputy Minister, “Discussion with Deputy Minister of Justice concerning amendments to the Criminal Code,” 23 March 1926.

45 Ibid., Blair to Deputy Minister, 1 June 1926.

46 Ibid., Blair to Deputy Minister, 7 June 1926, and 31 March 1926.

47 Ibid., Blair to Minister, “Memo prepared for the Minister to use in the House,” 29 April 1926.

48 Ibid., An Act to Amend the Immigration Act, 1926; Blair to Dandurand, 14 June 1926.

49 Senate Debates, 1926, pp. 239, 242, 244; Senate Debates, 1920, pp. 422, 417, 389.

50 Ibid., 1926, McMeans from Winnipeg, 244-5, Dandurand pp. 179-80, 267.

51 Ibid., pp. 249, 281-2 for Aylesworth, p. 244 for Dandurand, and Belcourt pp. 249-50.

52 Ibid., p. 247.

53 Ibid., p. 281. Calder’s comment is consistent with some of his other statements about Section 41. In 1909 and 1910 when the Section was being debated, Calder had said that it was not right to declare people members of the anarchist classes and so on, until there was proof that they really were in those groups. For that reason, he opposed exclusion of anarchists. “When we undertake to interfere with the right of expression of opinion, the right of personal liberty, to question the right of men to say what they please, we should only take action where we have it within our power to establish the facts.” See House of Commons Debates, 1909-1910, p. 5870. Calder’s role in the antiradical activities of the Department needs further examination. Was he misinformed by his staff about what his department was doing? Did he not know of the procedures used in deportation cases? What did Meighen tell him about Winnipeg? How did Calder assess the events of June 1919, in retrospect? In 1926 Liberal Minister of Labour Peter Heenan had opened the 1919 correspondence files for the House of Commons. Perhaps Calder felt it necessary to put a good face on the illegal deportation proceedings.

54 File 653, Blair to Bruce Walker, 17 June 1926.

55 House of Commons Debates, 1928, pp. 1868, 2484; Senate Debates, 1928, pp. 421, 522, 612; File 653, Act to Amend the Immigration Act, 1928; Blair to Tom Moore of the TLC, 31 August 1928.

56 File 653, no date, March 1930; Bill 44, first reading 11 May 1931; Commissioner of Immigration to Minister, 13 May 1931 and 9 March 1933; Commissioner to Minister Gordon, 19 February 1934.

57 References are to the Act as published in 1929 in pamphlet form by the Department, found in ibid.

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