S.C.R. Supreme Court Of Canada Lambert Reners Appellant;
and
His Majesty The King Respondent
1926: May 14; 1926: June 14.
Present:—Anglin C.J.C. and Idington, Duff, Mignault, Newcombe
and Rinfret JJ.
ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF
ALBERTA
Criminal law—Strike—Picketing—Besetting and watching
"wrongfully and without lawful authority"—Section 501 (f) Cr. C.
[Page 499]
By s. 501 (f) of the Criminal Code everyone is guilty
of an offence who "wrongfully and without lawful authority, with a view to
compel any other person to abstain from doing anything which he has a lawful
right to do, or to do anything from which he has a lawful right to abstain * *
* besets or watches the house or other place where such other person resides or
works or carries on business or happens to be."
The conviction of defendant thereunder for conduct in the
"picketing" of coal mining premises in the course of a strike by
certain mine workers, which conviction was affirmed by the Appellate Division
of the Supreme Court of Alberta (Clarke J.A. dissenting), was affirmed by the
Supreme Court of Canada, which held that there was evidence at the trial that
the besetting and watching in which defendant was engaged was "wrongful
and without lawful authority" within the meaning of the section.
Defendant's acts were wrongful and unlawful if the besetting
and watching in which he, in common with his comrades or associates, was
engaged, amounted to a nuisance or a trespass, or if the men who were besetting
and watching constituted an unlawful assembly, and the conduct in question
(discussed in the judgments) afforded evidence of each of these particulars.
While apparently the hill occupied by the party to which the
defendant belonged was somewhat outside the mining property, the hills
surrounding the mine in other directions belonged to the mine owners and the
groups stationed there were trespassers, and since the picketing was carried on
in pursuance of a common design or project to which all the strikers including
defendant were parties, he must be held responsible for the trespasses equally
with those who actually occupied the mine owners' property.
Per Idington J.: The section clearly forbids anyone from
besetting another's house or place of business with a view to compel him to
abstain from doing anything which he has a lawful right to do. Such an act,
which at common law might be the basis of a civil action, was always at common
law wrongful, and is in itself "wrongful and without lawful
authority" within the meaning of the section unless some lawful authority
(e.g., as often there might be with a sheriff, etc.) exists.
[Page 500]
APPEAL from the judgment of the Appellate Division of the
Supreme Court of Alberta, affirming (Clarke J. A. dissenting) the conviction of
defendant under s. 501 (f)
of the Criminal Code on a charge of wrongfully and without lawful authority
besetting and watching the mine of a certain coal mining company with a view to
compel the company to abstain from engaging or employing or continuing in its
employment miners and employees other than those belonging to a certain trade
union to which the defendant belonged. The charge is set out in full in the
judgment of Idington J.
C. C. Robinson, K.C. and H. A. F. Boyde for the
appellant.
W. S.
Gray and J. J. Frawley for the respondent.
The judgment of the majority of the court (Anglin C.J.C. and Duff, Mignault, Newcombe and
Rinfret JJ.) was delivered by
NEWCOMBE J.—The appellant, with five others, was charged
in two counts, under section 501 (f)
of the Criminal Code, with the offence of wrongfully and without lawful
authority besetting and watching the mine of the Alberta Block Coal Company,
Limited, where the company carried on its business, with a view to compel the
company to abstain from engaging or employing, or continuing in its employ,
miners or employees other than those belonging to a trade union, known as the
Red Deer Valley Miners' Union, to which the accused belonged. It will be
convenient to set out the material part of the section, which is as follows:—
S. 501 (f): Every one is guilty of an offence
punishable, at the option of the accused, on indictment or on summary
conviction before two justices, and liable on conviction to a fine not
exceeding one hundred dollars, or to three months' imprisonment with or without
hard labour, who, wrongfully and without lawful authority, with a view to
compel any other person to abstain from doing anything which he has a lawful
right to do, or to do anything from which he has a lawful right to abstain
****
(f) besets or watches the house or other place where
such other person resides or works, or carries on business or happens to be.
[Page 501]
The case has been tried twice. At the
first trial there was a jury, and all the accused were convicted, but upon
appeal the conviction was set aside upon purely legal grounds, as we are
informed, and, at the new trial, the accused, other than the appellant, pleaded
guilty, and the latter, electing to be tried without a jury, was tried before
McCarthy J., and again convicted. From this conviction he appealed to the
Appellate Division of the Supreme Court of Alberta, where the appeal was heard
and the conviction upheld by the judgment of the court, pronounced by the Chief
Justice. Clarke J. however dissented, the court considering it convenient that
his judgment should be pronounced separately, and it is the question of law
involved in his dissent that is now presented upon the appeal to this court.
The Alberta Block Coal Company of Drumheller, in the Province of
Alberta, belonged to an association of coal operators which negotiated an
agreement with the executive of the United Mine Workers of America regulating
working conditions, including the rate of wages to be paid to the miners. This
agreement went into operation, but was subsequently amended by the parties in a
manner to effect a reduction of 15% in the rates stipulated. The reduced rates
were not acceptable to the majority of the Company's employees, and became the
cause or occasion for a strike. The striking miners belonged to the Union of
the United Mine Workers of America; they were dissatisfied with the reduction
of the rates to which the executive of their union had agreed, and in
consequence they decided to withdraw from it, and to set up a new union, which
is known in the case as the Red Deer Valley Miners Union. Some of the company's
employees however did not join in the agitation, but continued to work for the
company as formerly, and the strikers established what they call pickets at the
mine with a view, as they say, peacefully to persuade the miners who adhered to
the company's service to cease work.
The locality of the mine is not as clearly described by the
transcript of the evidence produced as might be desired, but there is in proof
a plan of a limited area, and some of the witnesses give descriptions from
which it would appear that the mine is situated in a narrow valley or coulee
bordered by hills of considerable height, about 100 ft. to
[Page 502]
150 ft. above the level. The shaft is
sunk on the property of the company, and in the neighbourhood is a power house,
machine shop, wash house, offices, some dwelling houses and outbuildings, and,
a few hundred feet distant, a store house and powder house. These buildings are
all upon the property of the company, which is approached from the north by a
waggon road, and by a railway spur or siding from the line of the Canadian
National Railways. The disturbances began on 23rd June, 1925, and the offence is charged to have been committed between the 22nd and 27th days of June. The
evidence is however directed particularly to the occurrences on the night of
the 25th and the early morning of the 26th. On the 23rd a large delegation of
the strikers went to the mine and there was some discussion. McDonald, who was
one of them, says that they found men there wearing their working clothes and
carrying their lunch buckets and he talked with several of these men about
quitting work, but that they were not prepared to quit and went down to the
mine. The following information is elicited from him:
A. I spoke to about ten or eleven, they were in line.
Thomson and Fernet, I think I remember them all right, I don't remember the
others.
Q. These men apparently were not on the 23rd prepared to
quit work and join your union, is that right?
A. On the 23rd, they went down to the mine on the 23rd.
Q. They listened to your representations and then they
decided to work, is not that the situation, or rather continue work?
A. Oh yes, they did, because, naturally enough, their boss,
Jesse Gouge, who was standing there over them, and he tried to drive me away
and I insisted I wanted to speak to the men and talk to them.
Q. You had the opportunity to speak to them?
A. Yes, I spoke to them.
The pickets were divided into groups and took their positions at
places convenient for their purpose about the mine, from whence they continued
to watch and beset the premises for several days. At night they occupied the
hills surrounding the mine and overlooking the avenues of approach. Here they
lighted wood fires which were kept burning throughout the night, and about
which the men gathered, and where they were relieved at intervals. Inspector
Nicholson of the provincial police, who was stationed at Drumheller, says:
Q. You have told us that these men had
a smudge or fire there?
A. Yes.
[Page 503]
Q. And that there were other smudges or fires on
neighbouring hills around?
A. Yes.
Q. Were these hills around the A.B.C. Mine?
A. They practically surrounded it, yes.
He says, moreover, that:
A. These men were on the different hills in bunches of
individuals and each bunch or crowd on each hill had a fire, a little bonfire
or smudge. One of these hills was immediately behind the buildings at the A.B.C.
premises, that would be immediately north. On account of a complaint received
earlier on the 25th and on account of noises which I had heard in the vicinity
of a powder house belonging to the A.B.C. Mine on the night of the 25th, I
decided to remove the men on this particular hill that I speak of.
Asked whether there was any means of communication between the
various parties on the hills, the witness answers that
they continued to shout to one
another from one hill to another. One party would shout to one hill and it
would be answered, and the call would go practically round all of the crowd.
Inspector Nicholson sent three of his
constables at about, or shortly after, midnight of the 25th, to occupy separate
positions along the roadway at the foot of the hill immediately to the north.
When these constables, or two of them, were perceived by the men on the top,
they were greeted with insult, curses and threats. They made no response, but
remained in their respective positions, and immediately afterwards five of
those on the top were taken into custody by Inspector Nicholson and other
constables who had approached under cover of the darkness from the rear. The
appellant however ran down the hill where he stoned one of the constables
stationed below, who pursued him calling upon him to stand, and was arrested
after he had been wounded by a shot from the constable. During the night
previous to the coming of the police, there had been ten or fifteen men upon
this particular hill, but apparently the six men charged were the only ones
there at the time of the arrest.
The trial judge, in convicting the appellant, delivered a
somewhat lengthy judgment. He referred to the cases of Reg. v. Hibbert,
and Reg. v. Bauld. He
said that in his view the conduct of the accused and the men with
[Page 504]
whom he was associated went far beyond
the conduct of the men concerned in these cases, and that
I cannot look on his conduct as
peaceful picketing, having regard to all the surrounding circumstances and
certainly the conduct was such as to operate in the mind of the men who were
going to work and to operate on the mind of the operators as to whether or not
to carry on the work in the mine.
The learned Chief Justice, pronouncing the judgment of the
Appellate Division, relied upon J. Lyons & Sons v. Wilkins,
and the same case, as reported upon appeal after the trial,
and he considered the case of Ward, Lock & Co. v. The Operative
Printers' Assistants' Society, which,
it had been argued, was not in complete accord with the Lyons Case. In
conclusion, however, he said that
a picketing effected in the way this
was—to constitute a menace and practical compulsion by moral force, even if no
physical force were contemplated, as to which one might have doubts, would not
be such a picketing as would be warranted and, therefore, would be wrongful.
He quoted the finding of the learned
trial judge and he said
with this finding, which in my
opinion, is quite justified, the case does not seem to fall within the
qualifications suggested in the Ward, Lock Case (3).
Clarke J., the dissenting judge, agreed
that the defendant should be held
responsible as one of the watching and besetting party, engaged in what is
commonly called picketing, and that he, with the others charged, did, with a
view to compel another person to abstain from doing something which he had a
lawful right to do, or to do something from which he had a lawful right to
abstain, beset or watch the place where such other person works or carries on
business within the meaning of s. 501 (f).
But he found difficulty in saying that
such picketing was wrongful or without lawful authority; or, as he puts it,
"in other words that peaceful picketing is wrongful". He reviewed the
evidence, as to which he appears to take a view more favourable to the
appellant than that which seems to be held by the majority of the court. He
said that the Ward, Lock Case (3) as applied in the later case of Fowler
v. Kibble, seems
to cast considerable doubt upon the correctness of the decision in the Lyons
Case (2) and therefore he concluded, adopting what he takes to be the
result of the Ward, Lock Case (3), that the element of wrongfulness is
lacking in the present case, and he would therefore allow the appeal.
[Page 505]
In view of the nature of the dissent and seeing that the
jurisdiction of this court in criminal appeals is limited to questions of law,
which are the subject of difference below, the point which this court has now
to determine is in reality whether there was evidence at the trial that the watching
and besetting in which the appellant was engaged was wrongful and without
lawful authority. Upon this point I entertain no doubt.
In the Lyons Case the
Court of Appeal upon both occasions considered the interpretation of s. 7,
subs. 4 of the Conspiracy and Protection of Property Act, c. 86 of 1875, which
corresponds, with unimportant variations, with s. 501 (f) of the
Criminal Code, upon which the present charge is laid. It is explained by the
concluding clause of s. 7 of the Conspiracy and Protection of Property Act that
attending at or near the house or
place where a person resides, or works, or carries on business, or happens to
be, or the approach to such house or place, in order merely to obtain or
communicate information, shall not be deemed a watching or besetting within the
meaning of this section.
But this clause is not embodied in the
Criminal Code, and for that reason, as well as because of the facts in proof,
it has no application to the case now under review.
The Master of the Rolls (Lord Justice Lindley) considered that to
watch and beset in order to compel caused a nuisance, and he found upon the
evidence that there was a nuisance. But in the Ward, Lock Case
Moulton L.J. was of the opinion that there might be a sort of compulsion which
would not be wrongful or illegal and therefore that the conclusion of the
Master of the Rolls was too broad; he did not however deny its application to
the particular case which the Master of the Rolls had in hand, and these great
judges were in perfect agreement that it was necessary to establish, in one way
or another, that the watching and besetting was done wrongfully and without
legal authority.
In the Ward Lock Case (2) the defendant had stationed
pickets to watch the plaintiffs' printing works for the purpose of inducing the
workmen employed by the plaintiffs to join the union, and then to determine
their employment by proper notices, the object being thereby to compel the
plaintiffs to become employers of union men, and to ab-
[Page 506]
stain from employing non-union men; the
report states that this was carried out without causing, by violence,
obstruction or otherwise, a common law nuisance. Moulton L.J. said, as
reported:—
In my view that which decides the
question is that there is no evidence of any improper or illegal acts, or,
indeed, of any acts whatever, by any of the pickets sent by the defendants * *
*. I wish to add that, in my opinion, there is throughout a complete absence of
evidence of anything in the nature of picketing or besetting which could
constitute a nuisance. It appears that the discharged workmen loitered about
for a day or two after leaving work, a thing which is not unlikely to happen,
and that they were at times joined by others, but there is no suggestion even
by the plaintiffs' witnesses that any annoyance or molestation took place, and
the evidence to the contrary is overwhelming.
He referred to the fact that, at the
request of the plaintiffs, the police had placed special patrols outside their
premises during the period of the dispute, but that none of the police had been
called as witnesses by the plaintiffs, and that the inspector and a sergeant,
called by the defendants, had shown that there was nothing which could give any
ground for complaint. This decision is referred to and followed as an important
one in Fowler v. Kibble, but, for the purposes of the present
case it decides no more than I think was decided by the Master of the Rolls in
the Lyons Case. The
judgments concur in the view that watching or besetting, if carried on in a
manner to create a nuisance, is at common law wrongful and without legal
authority. In the Lyons Case (2) the Court of Appeal found the
essential facts to constitute a common law nuisance. In the Ward Lock Case
they found that the sort of picketing there in proof afforded no evidence of a
nuisance, and these cases do not really assist in the determination of the
present question, which depends upon its own facts, except in so far as they
affirm, what is evident by the statute itself, that if picketing foe carried on
in a manner to create a nuisance, or otherwise unlawfully, it constitutes an
offence within the meaning of the statute.
Coming now again to the facts in the present case, the acts with
which the appellant is charged were wrongful and unlawful if the watching and
besetting in which he, in common with his comrades or associates, was engaged
amounted to a nuisance or to a trespass, or if the men who
[Page 507]
were watching and besetting constituted
an unlawful assembly, and there is evidence as to each of these particulars
which ought not to be overlooked.
There was a large number of men engaged; a crowd was assembled at
the Atlas crossing to the north of the company's works; pickets in considerable
numbers were stationed at every avenue of approach; they remained in position
with reliefs uninterruptedly by night as well as by day; they lighted fires on
hilltops surrounding the mine, shouting back and forth from one group to
another. On one occasion at the very entrance to the mine one of these men,
according to his own testimony, insisted upon his endeavour to persuade
workmen, who were there in their working clothes and with their lunch baskets,
from going into the mine, notwithstanding that their foreman was present and
tried to drive him away.
To the southeast of the shaft and the power house at a distance
of about 800 feet is the powder house, situated in a narrow spur or offshoot of
the coulee to the southward of the railway. This building is at the base of one
of the surrounding hills, and if, as Inspector Nicholson testifies, the hills
on which the fires were lighted practically surrounded the mine, some of them
must have been very near to the powder house. He tells us that crowds of men
continued on these hills throughout the whole of the 25th from seven o'clock in the morning, and that it was because of a complaint and noises which he
heard in the vicinity of the powder house that he decided to remove the men
from the hilltops. He says he intended to remove "all these different
crowds of men," but to begin at the particular hill where he found the
appellant. It will, of course, be realized that, as these hills were at
considerable distances, the shouting from one hill to another must have been
vociferous, and moreover the danger of open wood fires in the neighbourhood of
the powder house and other buildings of the company was in itself a cause for
apprehension.
Now while apparently the hill which was occupied by the party to
which the appellant belonged was somewhat to the northward of the northern
limit of the company's property, the hills surrounding the mine in other
directions belonged to the company and the groups stationed there were
trespassers, and, since the picketing was so carried
[Page 508]
on in pursuance of a common design or
project to which all the strikers including the appellant were parties, he must
be held responsible for the trespasses equally with those who actually occupied
the company's property.
Moreover, while it is explained, with remarkable agreement on the
part of the striking miners, that the purpose of their assembly at and about
the mine was peacefully to endeavour to persuade the miners who continued to
work to quit the service of the company and to join the new union, in order, as
it is said, to maintain the standard of living, the character and purpose of
this assembly is, I think, better evidenced by its acts and course of conduct
than by the statements of its members as to what their intention was; and the
numbers of men who assembled, their distribution about the premises, including
the company's property, their attendance there by day and by night, the fires,
the shouting, their reception of the police, their threats and conduct when the
police approached, afford cogent evidence, not only of a nuisance, but also of
an unlawful assembly, Hawkins Pleas of the Crown, 8th ed., Bk. 1, c. 28, ss. 4,
5 and 9; Reg. v. Vincent; Reg.
v. Neale.
It is not for this court to judge the evidence, except to
determine whether there be any. The appellants case fails if evidence be found
which the trial judge was bound to consider tending to shew that the watching
and besetting, which is conclusively found to have taken place, was wrongful
and without lawful authority, and I think there is such evidence in each of the
aspects to which I have referred.
It was suggested also that the pickets were endeavouring to
induce the company's workmen to break their contracts of service, but the
evidence does not, in my opinion, go far enough to justify a finding that there
were such contracts.
I would dismiss the appeal.
IDINGTON J.—This is an appeal from the judgment of the
Appellate Division of the Supreme Court of Alberta maintaining the conviction
of the appellant who was tried before Mr. Justice McCarthy without a jury and found
guilty of the following charges laid against him and five others, that is to
say that they did at Newcastle in the Judicial District of Calgary
[Page 509]
between the 22nd and the 27th days
of June, 1925, wrongfully and without lawful authority with a view to
compelling another person, The Alberta Block Coal Company Limited, a body
corporate, to abstain in the carrying on of its business from engaging or
employing or continuing in its employment miners and employees other than those
belonging to the Red Deer Valley Miners Union, or to such union as the
defendants themselves belonged. The Alberta Block Coal Company Limited then
having a lawful right to engage or employ or continue in its employment miners
or employees without restriction as to their membership in the union or unions
aforesaid, or to compel the said company to engage and employ and continue in
its employment only such miners and employees as belonged to said union, which
members the said company had a lawful right to abstain from employing, did
beset and watch the place where the said company carries on business, to wit:
the mining premises of the said company.
And further stand charged that they at the same time and
place wrongfully and without lawful authority with a view to compel Tom Fernet,
William Hopkins, Joseph Thompson, Robert Brownell, and others, to abstain from
doing what they had a lawful right to do, to wit: to work for the Alberta Block
Coal Company Limited, did beset and watch the place where the said Tom Fernet,
William Hopkins, Joseph Thompson, Robert Brownell and others worked, to wit:
the premises of the Alberta Block Coal Company Limited's mine.
The accused parties had been tried before Mr. Justice Boyle with
a jury and found guilty but for some reason or other a new trial was directed.
The others then pleaded guilty but the present appellant elected
to be tried before Mr. Justice McCarthy without a jury.
The said charges were laid under section 501, subs. (f) of
the Criminal Code.
The said section 501 reads as follows:—
501. Every one is guilty of an offence punishable, at the
option of the accused, on indictment or on summary conviction before two
justices and liable on conviction to a fine not exceeding one hundred dollars,
or to three months imprisonment with or without hard labour, who, wrongfully
and without lawful authority, with a view to compel any other person to abstain
from doing anything which he has a lawful right to do, or to do anything from
which he has a lawful right to abstain,
(a) uses
violence to such other person, or his wife or children, or injures his
property; or
(b) intimidates such other person, or his wife or
children, by threats of using violence to him, her or any of them, or of
injuring his property; or,
(c) persistently follows such other person about from
place to place; or,
(d) hides
any tools, clothes or other property owned or used by such other person, or
deprives him of, or hinders him in, the use thereof; or,
(e) with one or more other persons, follows such
other person, in a disorderly manner, in or through any street or road; or,
[Page 510]
(f) besets or watches the house or other place where
such other person resides or works, or carries on business or happens to be.
55-56 V, c. 29. s. 523; 4-5 Ed VII, c. 9,s. 3.
The essential parts thereof to be considered herein are the
following lines:—
who, wrongfully and without lawful
authority, with a view to compel any other person to abstain from doing
anything which he has a lawful right to do, or to do anything from which he has
a lawful right to abstain, * * *
(f) besets or watches the house or other place where
such other person resides or works, or carries on business or happens to be.
This seems to me a clear and explicit expression in plain English
forbidding anyone from besetting another's house or place of business with a
view to compel him to abstain from doing anything which he has a lawful right
to do.
Each of the preceding subsections from (a) to (e)
inclusive, implies violence or improper conduct towards another of some kind
for which the party so doing might be punishable otherwise in law. But there is
no such necessary implication in simply watching a house.
These men were, clearly as noon-day, doing what the subsection (f)
forbids, unless in the case of one having lawful authority to beset or watch.
For example, the sheriff or his officers often have lawful authority to go very
far in discharging their duty—even to the extent of besetting or watching a
house. No pretence of authority is shewn here. None existed. Indeed the accused
were in fact trespassers, I imagine, on the property of the coal company. And
surely the company in question carrying on business in and on the premises in
question, had a perfect right to refuse to employ men belonging to the Red Deer
Valley Miners' Union.
And can there be a shadow of doubt that the men taking part in
the besetting and watching complained of were doing so with a view to compel
said company to abstain from pursuing their business without the aid of workmen
belonging to the said Red Deer Union.
Compel is a word of various shades of meaning, for
example, the Century Dictionary gives some five different shades, but let us
select no. 1, which read's as follows:—
1. To drive or urge with force or irresistibly; constrain;
oblige; coerce, by either physical or moral force: as, circumstances compel us
to practise economy.
[Page 511]
Or, let us turn to Murray's New English Dictionary, and we find a
different application of it and select no. 2 b, which reads as follows:—
b. To constrain (an action); to bring about by force,
constraint or moral necessity; to exact by rightful claim; to demand.
Surely either one or other of these expressions can be acted upon
herein, and was intended to be acted upon and applied in cases such as herein
presented if we leave aside all other features than the proof of besetting and
watching.
It does not in either necessarily imply physical violence as the
means of compulsion.
Ever since the effect of said section as it appeared in the
R.S.C. 1886, was changed by dropping subs. 2 of s. 12 of c. 173, in which the
words were as follows:—
2. Attending at or near or approaching to such house or
other place as aforesaid, in order merely to obtain or communicate information,
shall not be deemed a watching or besetting within the meaning of this section.
the law has been simplified and I
respectfully submit made clear.
On the other hand in the English Act from which in its original
state our Act was first taken there was a provision very similar to the said
section 2, almost identical, which continued part of the English Act and hence
renders English cases turning thereon (save and except Lyons v. Wilkins,
I am about to refer to) of very little service to any Canadian case since our
Criminal Code of 1892 was framed and, as already stated, the above quoted
section dropped out.
In 1906 the English Trades Disputes Act was passed and
distinctly enacted as follows, in the second section thereof:—
It shall be lawful for one or more persons, acting on their
own behalf or on behalf of a trade union or of an individual employer or firm
in contemplation or furtherance of a trade dispute, to attend at or near a
house or place where a person resides or works or carries on business or
happens to be, if they so attend merely for the purpose of peacefully obtaining
or communicating information, or of peacefully persuading any person to work or
abstain from working.
Other provisions of the same Act tended still more to render it
impossible to make any English case such as herein in question of any helpful
service.
[Page 512]
I must also say that a criminal intent and object might well be
suspected in much presented to us in the evidence but as I understand the
ground of Mr. Justice Clarke's dissent, which is the ambit of our jurisdiction
herein, it is quite unnecessary to enter into that feature of this case to
which I have just referred.
In the judgment of Mr. Justice Clarke, so far as dissenting, he
makes clear what he means as follows:—
I think the real difficulty in this case consists in the
interpretation of the words in s. 501 "wrongfully and without lawful
authority."
I agree that the defendant should be held responsible as one
of the watching and besetting party engaged in what is commonly called
picketing and that he with the others charged did with a view to compel another
person to abstain from doing something which he had a lawful right to do or to
do something from which he had a lawful right to abstain, beset or watch the
place where such other person works or carries on business within the meaning
of s. 501 (f) but my difficulty is in saying that such picketing is wrongful
and without lawful authority, or in other words that peaceful picketing is
wrongful.
If it is not wrongful then, in my opinion, the conviction
cannot be supported upon the evidence. There is no evidence that during the
night when the conduct of the defendant is complained of there was any
interference with either the mining company or its workmen, or any violence,
intimidation or threats; Lewis McDonald was called as a Crown witness and the
trial judge states the situation upon which he apparently bases his judgment as
follows: "Lewis McDonald in his evidence tells us that the so-called
Canadian Union proposed to picket the A.B.C. Mine to tell the miners it was
their duty to try to persuade the mine workers not to go to work so as to not
reduce the standard of living. He testifies that during the time the accused
and others were picketing the A.B.C. Mine he was on the picket during the 23rd
and on the morning of the 24th of June, 1925. The purpose of the picket was to
interview the men employed in the A.B.C. Mine and persuade them not to go to
work. He admitted interviewing some of them himself. Cecil Terris, in his
evidence, says they were supposed to go down to the mine and if they met
anybody going down to work to ask them to join the new union. * * * So that
apparently the accused were there to persuade the miners not to go to work or
to prevent the A.B.C. Company from employing men who did not belong to the new
union and to prevent them from hiring men who belonged to the United Mine
Workers of America."
If the picketing itself, that is, the watching or besetting
was not unlawful I cannot see that the fact of the picketers being distributed
in different places and having bonfires on a dark night can make the watching
wrongful.
[Page 513]
In Rex ex rel Barron v. Blachsawl; Rex ex rel
Barron v. Hangsjaa, where
the conviction of the appellant on a similar charge was affirmed by this court,
Lyons & Sons v. Wilkins, was
strongly relied upon. I understand the court there held that watching and
besetting, however peaceable, was a common law nuisance and, therefore,
wrongful and that the qualifying words in s. 7 as to obtaining and
communicating information alone rendered it rightful. If that decision stood
unchallenged I would not hesitate to say it was conclusive of the present
appeal in favour of the Crown not only by reason of the absence of the
qualifying words in our section 501 but because if they were still in the Act
they do not extend to persuading which was part of the plan here.
The later case of Ward, Lock & Co. v. The Operative
Printers' Assistants' Society, February, 1906,
applied in Fowler v. Kibble, seems
to me to cast considerable doubt on the correctness of the decision in Lyons
v. Wilkins (2). It was not referred to in the Blachsawl Case (1),
and it is said that it was not brought to the attention of the court which I
think is correct. I gather from that case that peaceable picketing was not
considered to be wrongful at common law and was not made illegal by section 7
of the Imperial Act and if that be correct it can scarcely be wrongful under
our s. 501. But for the fact that owing to the general importance of the
question the defendant is desirous of obtaining the opinion of the Supreme
Court of Canada, I would say that the question is determined by our former
decision but considering it a proper case for an appeal I have decided to
dissent from the judgment of the majority and adopting what I take to be the
result of the Ward, Lock Case (3) would hold that the element of
wrongfulness is lacking in this case and would, therefore, allow the appeal and
quash the conviction.
The foregoing quotation from his judgment shows that all involved
in this appeal, by reason of the dissent of Mr. Justice Clarke, is the doubt he
has as to the meaning of the words "wrongfully and without lawful
authority" in the part of section 501 which I have quoted above.
He suggests, as had been suggested long ago by others, that
"besetting and watching" a house or premises is not in law wrongful,
and hence the basis of the said subsection (f) renders it absolutely
inoperative.
The answer to such an objection is that we must, if possible,
give it some efficacy, and to do that we must ask ourselves if it is correct
that the act of so besetting and watching never was, in law, wrongful.
I answer that such a course of conduct always was at common law
wrongful, and might be the basis of a civil action, and hence clearly wrongful.
[Page 514]
Such was the holding of the court in the case of J. Lyons
& Sons v. Wilkins, and
the judgment of Lord Justice Lindley, M.R., at pages 266 and 267, deals with
exactly what has troubled Mr. Justice Clarke herein and, I submit, the passage
therefrom on page 267, which reads as follows:—
But it is not necessary to shew the illegality of the overt
acts complained of by other evidence than that which proves the acts
themselves, if no justification or excuse for them is reasonably consistent
with the facts proved. This is the principle always applied in criminal
prosecutions in which the words "feloniously,"
"wrongfully," or "maliciously" are introduced into the
charge, and have to be proved before the person accused can be properly
convicted: see Archbold's Criminal Pleadings and Evidence, 19th ed. pp. 64-7.
That this is the correct method of construing and dealing with the words
"wrongfully and without lawful authority" in s. 7 is, in my opinion,
perfectly plain if attention is paid to sub-heads 1, 2, 3, and 5, to which those
words are as applicable as they are to sub-head 4. If the overt acts mentioned
in sub-head 1, for example, i.e., using violence or intimidation, are proved,
and it is proved that they were done with a view to compel, etc., and there is
no reasonable ground for justifying them, it is unnecessary to give further
evidence to prove that they were committed "wrongfully and without legal
authority"; see Reg. v. McKenzie.
If this be true of all the subheads except 4 (watching and besetting), I can
discover no justification for giving the words "wrongfully and without
lawful authority" any different meaning or effect when applied to
4—namely, "watching or besetting."
Others in like manner in same case and in a further appeal refer
to this and express analogous opinions, and such was taken to-be the law until
the case of Ward, Lock & Co. v. The Operative Printers'
Assistants' Society et al, in
1906, 26th February. Even in that Stirling J. expresses himself as if the court
were in accord with what Lord Justice Lindley had said in the Lyons Case (1).
It was the provision of exception that created the difficulty.
By our Canadian courts, cases were decided in Manitoba and Alberta
adopting the law as settled by Lyons v. Wilkins (1) and
other cases.
This I accept as good law yet, and more especially so when the
subsequent paragraph above referred to had been eliminated in framing our
Criminal Code in 1892.
It became increasingly more difficult to do so in England by
reason of the Trades Disputes Act, to which I refer above. Indeed that
rendered it almost quite impos-
[Page 515]
sible for us to follow the later English
decisions. I imagine said Act was
a result of the Ward, Lock Case (1).
I need not
elaborate further but submit the foregoing considerations remove all doubts
such as in question, and therefore am of the opinion that this appeal should be
dismissed.
I may add, however,
that having read the entire case I find
there is evidence of actual violence, trespass and abusive and vile language,
even in the presence of policemen keeping guard, which removes all doubt in law
and in fact of the guilt of the appellant, who ran away on hearing someone
approach. Why, if innocent, do so?
I have out of
respect to the learned judge below, dissenting, tried to confine the expression
of my opinion above to the point in which he expresses doubt, but, if others
think we should go beyond, I think
it as well to state concisely my conclusions if needed.
Appeal dismissed.
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