Gralewicz et al. v. R., [1980] 2 SCR 493

Supreme Court of Canada

Gralewicz et al. v. R., [1980] 2 S.C.R. 493

Date 1980-10-07

Roman Adolfe Gralewicz, John Royce, Roy Norris Willis, Roger Desjardins, Richard Thomasson, Edwin Aldon Williams, Hedley Harnum, Andre Bansept, William Lisenchuk, William Mercer and George Baldo (Plaintiff) Appellants;

and

Her Majesty The Queen, (Defendant) Respondent.

1980: February 11, 12; 1980: October 7.

Present: Martland, Ritchie, Dickson, Beetz, Estey, McIntyre and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Conspiracy—Conspiracy to prevent members of a union from participating in the lawful activities of their union—Whether the information discloses an offence known to the law—Criminal Code, R.S.C. 1970, c. C-34, ss. 8, 115(1), 128, 159, 381, 382, 387, 423(2)—Canada Labour Code, R.S.C. 1970, c. L-1 s. 110.

Labour law—Right of employees to participate in the lawful activities of the union of their choice—Members of a union being prevented from exercising such a right—Whether that conduct is an unlawful purpose within the meaning of s. 423(2)(a) of the Criminal Code—Canada Labour Code, R.S.C. 1970, c. L-1, ss. 110, 184, 185, 191(1)—Criminal Code, R.S.C. 1970, c. C-34, s. 423(2)(a).

The appellants have been charged, under s. 423(2)(a) of the Criminal Code, with conspiracy “to effect an unlawful purpose”: to prevent members of Seafarers’ International Union from participating in the lawful activities of their union, in accordance with s. 110(1) of the Canada Labour Code. Brown J. of the Provincial Court of Ontario quashed the information on the grounds that (1) it was general and vague and was lacking in substance falling short of the requirements contained in s. 510 of the Criminal Code and (2) it did not allege an offence known to our criminal law. The Supreme Court of Ontario set aside the order of Brown J. and made an order in the nature of mandamus directing that the matter be returned to the Provincial Court for preliminary hearing and the Court of Appeal affirmed that decision. Hence the appeal to this Court on both grounds dealt with by the Provincial Court and on the further ground raised before the Supreme Court of Ontario and the Court of Appeal that mandamus is not available as a remedy in this case.

[Page 494]

Held (Martland and McIntyre JJ., dissenting): The appeal should be allowed.

Per Ritchie, Dickson, Beetz, Estey and Chouinard JJ.: The first submission of the appellants that the Labour Code is a complete and exhaustive code by itself and that s. 110 is merely declaratory and contains no requirement and no prohibition has little merit. The fact that within a code of labour relations there is no specific sanction to enforce the rights of employees to participate in the lawful activities of their union does not sanctify otherwise criminal conduct. However, the appellants’ second contention, namely that their conduct does not amount to a conspiracy to effect an unlawful purpose within the meaning of s. 423(2)(a) of the Criminal Code is well-founded. Unlawful purpose in that paragraph means contrary to law, that is prohibited by federal or provincial legislation. There are no Canadian cases where a charge of conspiracy was upheld based on conduct not prohibited by legislation. To prevent members from participating in the lawful activities of their union is not necessarily unlawful. It is possible to conceive of many situations where it would not be so. The information is not here related to the means. It is not laid under s. 423(2)(b), nor under s. 381, nor under any other section charging a specific crime. It is laid under s. 423(2)(a) and as laid it does not set out an offence known to the law of Canada.

Per Martland and McIntyre JJ., dissenting: While it may be doubtful if any effective sanction for the enforcement or protection of the rights of employees to participate in the lawful activities of a trade union appears in the Canada Labour Code, s. 381 of the Criminal Code makes it an offence and therefore an unlawful purpose to use the means therein described to compel a person to abstain from doing anything he has a lawful right to do. The fact that Crown counsel did not rely upon s. 381 of the Criminal Code does not prevent this Court from considering its effect and finding that the unlawful purpose alleged in the information falls within the terms of this section. Secondly, the information meets the requirements of the law and thirdly, the error made by the trial judge results in a failure on his part to exercise his jurisdiction and mandamus will lie to compel such exercise.

[R. v. Celebrity Enterprises Ltd. et al., [1977] 4 W.W.R. 144 aff’d (1979), 42 C.C.C. (2d) 478, leave to appeal refused, [1978] 1 S.C.R. xi; R. v. Knuller, [1973] A.C. 435; R. v. Withers, [1975] A.C. 842; Shaw v. D.P.P., [1962] A.C. 220; Re Thodas (1970), 10

[Page 495]

C.R.N.S. 290; R. v. Chapman and Grange, [1973] 2 O.R. 290; R. v. Jean Talon Fashion Centre Inc. (1975), 22 C.C.C. (2d) 223; Frey v. Fedoruk et al., [1950] S.C.R. 517, referred to; Wright, McDermott & Feeley v. The Queen, [1964] S.C.R. 192, distinguished.]

APPEAL from a judgment of the Court of Appeal for Ontario dismissing an appeal from a judgment of the Supreme Court of Ontario setting aside the order of Brown J. of the Provincial Court quashing the information. Appeal allowed and order of the Provincial Court restored, Martland and McIntyre JJ. dissenting.

Joseph Nuss, Q.C., and Aubrey E. Golden, Q.C., for the appellants.

John A. Scollin, Q.C., and D.D.G. Reynolds, for the respondent.

The reasons of Martland and McIntyre JJ. were delivered by

MCINTYRE J. (dissenting)—The facts involved in this case are set out in the reasons for judgment of my brother, Chouinard J., which I have had the advantage of reading. However, I am unable to reach the same conclusion that he did. I would dismiss the appeal and direct that the trial of the appellants, on the information set out below, proceed. The information was in these words:

(1)      that Roman Adolfe GRALEWICZ, John ROYCE, Roy Norris WILLIS, Roger DESJARDINS, Richard THOMASSON, Edwin Aldon WILLIAMS, Hedley HARNUM, Andre BANSEPT, William LISENCHUK, Walter MERCER and George BALDO, between the 1st day of January 1971 and the 18th day of January 1977 in the Province of Ontario and elsewhere in the Dominion of Canada, unlawfully did conspire and agree together, the one with the other and with John Robert LAZARUS, John PEARSON, Glen Patrick MILLEY, Ian Joseph VICKERS, Lawrence CAREY, George KEAGAN, Donald Roy SWAIT, Arthur HUNT, Michael DABOUR, John Richard WOOD, Kenneth Henry McGUIRE, and with another person or persons unknown to effect an unlawful purpose to wit: to prevent members of the Seafarers’ International Union of Canada from participating in the lawful activities of their Union,

[Page 496]

in accordance with Section 110(1) of the Canada Labour Code, R.S.C. 1970 chapter L‑1 as amended, by committing the following acts, to wit:

1) Threats and assaults upon members of the said Union,

2) Possession and use of offensive weapons,

3) Defrauding members of the said Union through falsifying expenses,

4) Violations of the articles of the said Union’s Constitution as they relate to elections, trials and individual rights,

5) Unlawfully preventing the said Union members from obtaining employment,

thereby committing an offence contrary to Section 423(2)(a) of the Criminal Code, R.S.C. 1970, chapter C-34.

In this matter, I am of the opinion that the dismissal of the appellant’s appeal in the Ontario Court of Appeal is sustainable for the reasons there given. I am also of the opinion that the appeal should fail for yet another reason.

The information alleges an offence against the provisions of s. 423(2)(a) of the Criminal Code which provides:

(2) Every one who conspires with any one

(a) to effect an unlawful purpose, or

(b)…

is guilty of an indictable offence…

Section 381 of the Criminal Code is set out as follows:

381. (1) Every one who, wrongfully and without lawful authority, for the purpose of compelling another person to abstain from doing anything that he has a lawful right to do, or to do anything that he has a lawful right to abstain from doing,

(a) uses violence or threats of violence to that person or to his wife or children, or injures his property,

(b) intimidates or attempts to intimidate that person or a relative of that person by threats that, in Canada or elsewhere, violence or other injury will be done to or punishment inflicted upon him or a relative of his, or that the property of any of them will be damaged,

(c) persistently follows that person about from place to place,

[Page 497]

(d) hides any tools, clothes or other property owned or used by that person, or deprives him of them or hinders him in the use of them,

(e) with one or more other persons follows that person, in a disorderly manner, on a highway,

(f) besets or watches the dwelling-house or place where that person resides, works, carries on business or happens to be, or

(g) blocks or obstructs a highway, is guilty of an offence punishable on summary conviction.

(2) A person who attends at or near or approaches a dwelling-house or place, for the purpose only of obtaining or communicating information, does not watch or beset within the meaning of this section.

When this section was referred to in the argument before this Court, counsel for the Crown, as I understood him, said that the Crown did not rely on it, that it never had, and that the similarity between the particulars given in the information, and in s. 381 of the Criminal Code, was purely coincidental. It was said further that the appellants had not been charged under that section. It seemed to have been assumed by counsel that somehow the section was removed from consideration.

The principal question raised in this appeal is whether the information discloses an offence known to the law. The fact that Crown counsel considered that a particular section of the Criminal Code was not relied upon in drafting the information does not preclude this Court from considering the effect of the section and finding that the unlawful purpose, alleged in the information, falls within the terms of s. 381 of the Criminal Code. While the information, to disclose an offence, must allege a conspiracy to effect an unlawful purpose, specific reference to a numbered section of the Criminal Code is not necessary.

Section 110 of the Canada Labour Code confers rights upon employees to join trade unions and participate in their lawful activities. While it may be doubtful if any effective sanction for the enforcement or protection of such rights appears in the Canada Labour Code, s. 381 of the Criminal Code makes it an offence and, therefore, an unlawful purpose to use the means therein described to compel a person to abstain from doing anything he

[Page 498]

has a lawful right to do. The information alleges a conspiracy to prevent members of the Seafarers’ International Union of Canada from participating in the lawful activities of their union by committing the acts described in the information, thereby making the use of the described means a part of the unlawful purpose alleged. Such a conspiracy would therefore be a conspiracy to effect an unlawful purpose, and would be an offence within s. 423(2)(a) of the Criminal Code. I am, of course, far from saying that the Crown would be able to prove its case at trial, but I am of the view that an offence has been alleged in the information and the trial should proceed.

To the argument, which could be raised by counsel for the appellants, that reliance on s. 381 of the Criminal Code could take the appellants by surprise and prejudice them in their defence, there is a short answer. This argument might well have force where a previously unmentioned issue is raised after the completion of the evidence at a trial and before judgment, or even where it is produced during a trial when the defence has already adopted a position without consideration of the effect or influence such a change in the Crown position might have. However, that does not apply here where no trial has been commenced, and the appellants would have, from the outset, abundant notice of the problems they face.

Two other points raised by the appellants require attention. It was argued that the information, as presented to the Court, was void for uncertainty because it lacked the fundamental requirements of specificity of time, place, matter and other essential ingredients, and, secondly, that there was error on the part of the Court of Appeal in holding that mandamus was available as a remedy in this case.

Dealing with the first point, in my view, it has no merit. The information charges a specific conspiracy between stated dates to effect a precisely stated objective and meets the requirements of the law in that respect.

[Page 499]

As to the second point, the facts are that before election and plea, and before any consideration was given to the merits of the case, the motion to quash was made to the trial judge, and it succeeded. Where, as here, error is made by a trial judge in these circumstances, which results in a failure by the trial judge to exercise his jurisdiction, mandamus will lie to compel such exercise. For this proposition, authority is found in Kipp v. Attorney General for Ontario[1], and the authorities referred to therein, including the very helpful judgment of Grant J. at trial in the Kipp[2] case, which was specifically approved by Judson J., speaking for the majority of this Court. I would dismiss the appeal.

The judgment of Ritchie, Dickson, Beetz, Estey, and Chouinard JJ. was delivered by

CHOUINARD J.—Upon motion of the appellants the following information was quashed by order of Judge Brown of the Provincial Court (Criminal Division) of the District of York:

That Roman Adolfe Gralewicz, John Royce, Roy Norris Willis, Roger Desjardins, Richard Thomasson, Edwin Aldon Williams, Hedley Harnum, Andre Bansept, William Lisenchuk, Walter Mercer, and George Baldo between the 1st day of January, 1971 and the 18th day of January, 1977, in the Province of Ontario and elsewhere in the Dominion of Canada, unlawfully did conspire and agree together, the one with the other and with John Robert Lazarus, John Pearson, Glen Patrick Milley, Ian Joseph Vickers, Lawrence Carey, George Keagan, Donald Roy Swait, Arthur Hunt, Michael Dabour, John Richard Wood, Kenneth Henry McGuire, and with another person or persons unknown to effect an unlawful purpose, to wit: to prevent members of the Seafarers’ International Union of Canada from participating in the lawful activities of their Union, in accordance with Section 110 (1) of the Canada Labour Code R.S.C. 1970 Chapter L-1 as amended, by committing the following acts, to wit:

(1) Threats and assaults upon members of the said Union;

(2) Possession and use of offensive weapons;

[Page 500]

 (3) Defrauding members of the said Union through falsifying expenses;

(4) Violations of the articles of the said Unions’s Constitution as they relate to elections, trials and individual rights;

(5) Unlawfully preventing the said Union members from obtaining employment,

Thereby committing an offence contrary to Section 423 (2) (a) of the Criminal Code, R.S.C. 1970 Chapter C-34.

The Supreme Court of Ontario set aside the order of Judge Brown and made an order in the nature of mandamus directing “that this matter be returned to the Provincial Court (Criminal Division), Judicial District of York for a Judge thereof, other than His Honour Judge A. B. Brown, to proceed with the preliminary inquiry for the trial of the accused upon the information herein”.

The appeal to the Court of Appeal was dismissed.

The grounds raised by the motion to quash are summarized as follows by Judge Brown:

… One, the information is general, vague and confusing and is lacking in substance falling short of the requirements contained in Section 510 of the Criminal Code of Canada. Two, the information does not allege an offence known to our criminal law.

On the first ground the judge concluded:

After careful consideration of the authorities and of the charge before me, and, of course, the careful submissions of counsel, I accede to the submissions of defence counsel, that the information is confusing and lacks the fundamental requirements of specificity in relation to time, place and matter, and that it does not meet the essential requirements of Section 510 of the Criminal Code. And I also find that it is beyond redemption by amendment.

Accordingly, I rule that it is a nullity, and the information is therefore quashed.

The judge nevertheless went on to consider the second ground and concluded that were he forced to make a decision on this point, he would lean toward the views expressed by Judge Trainor of

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the County Court of British Columbia in R. v. Celebrity Enterprises Ltd. et al.[3]:

… which would lead me to say that in my view it is not an unlawful purpose within Section 423 of the Criminal Code of Canada to enter into an agreement to prevent a person from participating in activities of his Union merely because that right of free participation is so declared by virtue of the provisions of Section 110 of the Canada Labour Code.

Considering the two grounds in the reverse order, Carruthers J. of the Supreme Court of Ontario held that the offence as set out in s. 423 (2)(a) of the Criminal Code is contained in the information and that the information does meet the requirements of s. 510 of the Code.

The Court of Appeal took the same view. It does not appear however to have disposed of a further ground of appeal raised before it, namely that mandamus was not available as a remedy in respect of the decision of the Provincial Court judge on the sufficiency of the information.

The same grounds were argued by the appellants’ counsel before this Court, expressed as follows: (i) The information does not set out an offence known to the law of Canada. (ii) The information is a nullity because it lacks in the fundamental requirements of specificity of time, place, matter and other essential ingredients. (iii) Mandamus is not available as a remedy in respect of the decision of the Provincial Court judge on the sufficiency of the information.

However, counsel for the respondent were invited by the Court to restrict their argument to the first ground and these reasons will accordingly deal only with the first ground: if the appellants succeed on that ground, as I believe they must, there is no need to dispose of the others.

Section 423(2) of the Criminal Code reads:

(2) Every one who conspires with any one

(a) to effect an unlawful purpose, or

(b) to effect a lawful purpose by unlawful means,

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is guilty of an indictable offence and is liable to imprisonment for two years.

In the appellants’ submission an agreement to prevent anyone from exercising his freedom under s. 110 of the Canada Labour Code to participate in the lawful activities of his union does not amount to a conspiracy to effect an unlawful purpose within the meaning of s. 423(2) of the Criminal Code.

Section 110(1) of the Canada Labour Code reads as follows:

(1) Every employee is free to join the trade union of his choice and to participate in its lawful activities.

The first submission advanced on behalf of the appellants is that:

The Canada Labour Code is a complete and exhaustive code provided by the Parliament of Canada for the conduct of those industrial relations which come under federal jurisdiction. It was not the intention of Parliament that its provisions should be enforced by resort to the Criminal Code or to any other statute since it provides its own mechanisms for enforcement.

In the appellants’ submission, s. 110 is merely declaratory and contains no requirement and no prohibition. It does not create an offence. Various offences are created by ss. 184 and 185 relating to interference with the freedoms of employees and employers recognized by s. 110 but none in the nature of that alleged in the information. Section 186 enacts a general prohibition to the effect that “no person shall seek by intimidation or coercion to compel a person to become or refrain from becoming or to cease to be a member of a trade union”. This deals with membership, not with participation in the lawful activities of a union.

The only section of the Act under which a prosecution could be contemplated for preventing members of a union from participating in the lawful activities of their union would be s. 191(1):

191. (1) Subject to section 190, every person other than an employer or a trade union who violates or fails to comply with any provision of this Part other than section 148, 184 or 185 is guilty of an offence and liable

[Page 503]

on summary conviction to a fine not exceeding one thousand dollars.

Counsel for the respondent conceded however, and rightly so in my opinion, that this section could not apply because the words “violates or fails to comply” imply a prohibition or a requirement and there are none in s. 110.

I see little merit in the appellants’ first submission and I can but conclude as suggested by the respondent that “the fact that within a code of labour relations there is no specific sanction to enforce the rights of employees to participate in the lawful activities of their union does not sanctify otherwise criminal conduct”.

The appellants further submit that their conduct as charged in the information does not constitute an offence under the Criminal Code. In their submission:

If a statute does not expressly provide a penalty then, the only possible offence one can commit with respect to it, is the one set out in Section 115(1) of the Criminal Code.

Every one who, without lawful excuse, contravenes an Act of the Parliament of Canada by wilfully doing anything that it forbids or by wilfully omitting to do anything that it requires to be done, is, unless some penalty or punishment is expressly provided by law, guilty of an indictable offence and is liable to imprisonment for two years. 1953-54, c. 51, s. 107.

Section 115(1) has no application here since s. 110(1) of the Canada Labour Code contains no prohibition and no requirement.

The only specific offences in the Criminal Code related to interference with union membership are those by employers under s. 382.

As regards interference with the right of a person to do something or to abstain from doing something, s. 381 enacts:

381. (1) Every one who, wrongfully and without lawful authority, for the purpose of compelling another person to abstain from doing anything that he has a

[Page 504]

lawful right to do, or to do anything that he has a lawful right to abstain from doing,

(a) uses violence or threats of violence to that person or to his wife or children, or injures his property,

(b) intimidates or attempts to intimidate that person or a relative of that person by threats that, in Canada or elsewhere, violence or other injury will be done to or punishment inflicted upon him or a relative of his, or that the property of any of them will be damaged,

(c) persistently follows that person about from place to place,

(d) hides any tools, clothes or other property owned or used by that person, or deprives him of them or hinders him in the use of them,

(e) with one or more other persons follows that person, in a disorderly manner, on a highway,

(f) besets or watches the dwelling-house or place where that person resides, works, carries on business or happens to be, or

(g) blocks or obstructs a highway, is guilty of an offence punishable on summary conviction.

(2) A person who attends at or near or approaches a dwelling-house or place, for the purpose only of obtaining or communicating information, does not watch or beset within the meaning of this section. 1953-54, c. 51, s. 366.

The appellants have not been charged under s. 381. We were told by counsel that the respondent never relied on this section and that any similarity between allegations in the information and s. 381 is purely coincidental.

On the other hand, as recognized by counsel for the appellants, “it is evident that there may be interference with the rights of a person to do what he has the right to do other than by the means set out in s. 381. However, those other means of interference do not attract criminal law sanctions unless, of course, they constitute crimes in themselves”.

In this case what the appellants have been charged with is conspiracy “to effect an unlawful purpose, to wit: to prevent members of the Seafarer’s International Union of Canada from participating in the lawful activities of their Union, in

[Page 505]

accordance with s. 110(1) of the Canada Labour Code”.

It is therefore necessary to determine whether preventing members of a union from participating in the lawful activities of their union is an unlawful purpose within the meaning of s. 423(2) of the Criminal Code, or what is the meaning of unlawful purpose.

According to the appellants’ counsel an unlawful purpose can only be one prohibited by statute either federal or provincial:

In our respectful submission, the law does not create offences consisting of conspiracies to do acts not themselves prohibited by law under the guise of a conspiracy to effect an unlawful purpose. If the act which is the subject of the conspiracy is not prohibited by statute, it cannot form an unlawful act or purpose as the subject of a conspiracy.

They rely principally on R. v. Celebrity Enterprises Ltd. et al. (supra) where Judge Trainor acquitted the accused of a count of conspiracy “to effect an unlawful purpose, to wit, produce a public mischief …with intent thereby to corrupt public morals, contrary to the form of the Statute”.

Analyzing the sections of the Criminal Code dealing with public mischief (s. 128), mischief (s. 387) and offences tending to corrupt morals (ss. 159 and following) as well as other sections, Judge Trainor determined that none applied to the case and that consequently the unlawful purpose charged did not relate to an offence under the Criminal Code.

It would relate however to an offence at common law. While no such generalized offence as conspiracy to effect a public mischief was known to the law (R. v. Withers[4]), a conspiracy to corrupt morals was indictable (Shaw v. D.P.P.[5]; R. v. Knuller[6]).

[Page 506]

Judge Trainor was of the opinion that unlawful purpose does not extend to common law offences and he stated at p. 176:

I cannot accept the Crown’s invitation to follow Shaw and Knuller and either extend the meaning of unlawful purpose to include a purpose not authorized by law or to hold that a common law offence can be an unlawful purpose. In my view our law has developed clearly and surely to the point that the unlawful purpose in Section 423(2) must be one contrary to law. Although the point is not before me I would think this reasoning applies equally to “unlawful means” in Section 423(2)(b).

By contrary to law I mean prohibited by Federal or Provincial legislation. Thus would be included all summary conviction offences under the Criminal Code and other Federal legislation and offences created by Provincial legislation.

That decision was upheld by the British Columbia Court of Appeal[7] where speaking for the Court Robertson J.A. states at p. 480:

If something that someone does is not something of which he can be convicted, that something cannot, in my opinion, be “unlawful” in the sense in which the word is used in s. 423(2)(a).

Leave to appeal to this Court was refused[8].

All the Canadian cases in which conduct was held capable of being the subject of a criminal conspiracy to effect an unlawful purpose were based on conduct prohibited by legislation. See Wright, McDermott & Feeley v. The Queen[9], Re Thodas[10], R. v. Chapman and Grange[11], R. v. Jean Talon Fashion Centre Inc.[12] Counsel for the respondent recognized that there are no Canadian cases where a charge of conspiracy was upheld based on conduct not prohibited by legislation.

[Page 507]

The respondent relies however on the following passage by Fauteux J., as he then was, in Wright, McDermott & Feeley (supra) at pp. 193 and 194:

While marginal notes in the body of an Act form no part of the Act, the marginal note appended to s. 408(2) accurately designates as “Common Law conspiracy” the offence described in this section which, as defined by Lord Denman in Rex v. Jones, (1832), 4 B. & A. 345, 110 E.R. 485 consists in a combination “either to do an unlawful act, or a lawful act by unlawful means”. Common Law conspiracy is one of the few Common Law offences which, upon the 1954 revision of the Criminal Code, Parliament thought advisable to perpetuate by codification. Martin’s Criminal Code 1955 ed., p. 35. Hence the law pertaining to this offence, its elements and the wide embracing import of the term “unlawful purpose”, remains unchanged.

But all that was decided in that case was that unlawful purpose extends to a breach of a Provincial statute, in that case The Ontario Provincial Police Act. After the above passage, Fauteux J. continues:

… While the term, as shown in Harrison The Law of Conspiracy, encompasses more than criminal offences, sufficient it is to say, for the purpose of this case, that the purpose alleged in the charge, to wit, the obtention from a constable of information which it is his duty not to divulge, is an unlawful purpose. In the language of Lord Mansfield, in Rex v. Bembridge (1783), 3 Doug. K.B. 327 at 332, 99 E.R. 679:

A man accepting an office of trust concerning the public, especially if attended by profit, is answerable criminally to the King for misbehaviour in his office.

The fact that the purpose or the breach of trust contemplated by the conspirators, whether as their ultimate aim or only as a means to it, be, if carried into effect, punishable either under s. 103 of the Criminal Code (vide Rex v. McMorran (1948), 5 C.R. 338 at 345 et seq., O.R. 384, 91 C.C.C. 19, 3 D.L.R. 237) or under s. 60 of the Ontario Provincial Police Act, adequately manifests the unlawfulness of the purpose within the meaning of the law attending Common Law conspiracies.

When the Criminal Code was revised in 1954, s. 8 was introduced:

[Page 508]

8. Notwithstanding anything in this Act or any other Act no person shall be convicted

(a) of an offence at common law,

(b) of an offence under an Act of the Parliament of England, or of Great Britain, or of the United Kingdom of Great Britain and Ireland, or

(c) of an offence under an Act or ordinance in force in any province, territory or place before that province, territory or place became a province of Canada,

but nothing in this section affects the power, jurisdiction or authority that a court, judge, justice or magistrate had, immediately before the 1st day of April 1955, to impose punishment for contempt of court.

It follows that common law conspiracy would have ceased to be part of Canadian criminal law had it not been retained as a statutory offence. But to make it a statutory offence does not necessarily mean that it was embodied with all its implications and uncertainties recognized by the decisions of the English Courts when no decisions in Canada had ever gone as far as those of the English Courts. And Fauteux J. in the above cited passage clearly does not say that.

The Withers case (supra) is authority to the effect “that it is not open to the courts nowadays either to create new offences or so to widen existing offences as to make punishable conduct of a type hitherto not subject to punishment”. The more so in Canada and Cartwright J., as he then was, speaking for himself and five other members of this Court, stated in Frey v. Fedoruk et al.[13], at p. 530:

To so hold would, it seems to me, be to assert the existence of what is referred to in Stephen’s History of the Criminal Law of England, Volume 2, Page 190, as:

the power which has in some instances been claimed for the Judges of declaring anything to be an offence which is injurious to the public, although it may not have been previously regarded as such.

The writer continues:

this power, if it exists at all, exists at Common Law.

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In my opinion, this power has not been held and should not be held to exist in Canada. I think it safer to hold that no one shall be convicted of a crime unless the offence with which he is charged is recognized as such in the provisions of the Criminal Code, or can be established by the authority of some reported case as an offence known to the law. I think that if any course of conduct is now to be declared criminal, which has not up to the present time been so regarded, such declaration should be made by Parliament and not by the Courts.

It is difficult for me to see how the mere enactment of conspiracy as a statutory offence would have the effect of extending its scope beyond what it had been held to extend to at common law by the Canadian courts prior to its becoming a statutory offence while at the same time Parliament enacted s. 8 to exclude common law offences from the ambit of the criminal law of Canada. I am therefore of the opinion that in 423(2)(a) unlawful purpose means contrary to law, that is prohibited by federal or provincial legislation.

But even assuming that the meaning of unlawful purpose could be extended as far as it was at English common law prior to the 1977 amendments I do not believe that it would comprise a purpose to prevent members of a union from participating in the lawful activities of their union. (The law concerning conspiracy has been modified in England by the Criminal Law Act 1977, 1977, c. 45, and in brief it now relates to the commission of an offence, meaning an offence triable in England and Wales.)

In the 19th edition (1966) of Kenny’s Outlines of Criminal Law to which reference is made in the Withers case (supra), unlawful purpose as it then stood is described as follows at pp. 428 to 430:

451. The term “unlawful” is here used in a sense which, unhappily, has never yet been defined with precision. The purposes which it comprises appear to be of the following species.

(i) Agreements to commit a substantive crime; e.g. a conspiracy to steal, or even merely to incite someone else to steal. This extends to all cases where it would be criminal for any of the conspirators to commit the act agreed upon, even though there be in the gang other persons in whom it would be no offence to commit it;

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and to all “crimes”, even non-indictable ones, e.g. nonpayment of poor rates. A conspiracy to obstruct the course of justice can exist without there being any obstruction of the police (e.g. to fabricate evidence, or to keep witnesses away from the court). It therefore differs from a conspiracy to obstruct the police in the execution of their duty, for this may not be concerned in any way with the course of public justice, but have as its object, for example, to prevent the police from maintaining public order or keeping the highway clear.

(ii) Agreements to commit any tort that is malicious or fraudulent. Some say that agreements to commit any tort, of whatever kind, are indictable as conspiracies. But the weight of authority seems to be in favour of limiting the rule to torts of fraud or malice, thus excluding, for instance, a trespass committed bona fide by persons eager to assert their supposed right of way.

(iii) Agreements to commit a breach of contract under circumstances that are peculiarly injurious to the public.

(iv) Agreements to do certain other acts, which (unlike all those hitherto mentioned) are not breaches of law at all, but which nevertheless are outrageously immoral or else are, in some way, extremely injurious to the public. We may quote, as instances, agreements to facilitate the seduction of a woman; or to run slackly in a race so as to enable a confederate to win his bets; or to hiss a play unfairly; or to defraud a shipowner by secretly putting stowaways on board. Similar criminality would arise in agreements to raise by false reports the price of the Funds or of any other vendible commodity; or so to carry on trade as to diminish the revenue; or to persuade a prosecutor not to appear at the trial; or to give false information to the police; or to indemnify a prisoner’s bail. On the other hand, it is doubtful whether an agreement to make loud noises for the purpose of disturbing an invalid neighbour would be indictable as a conspiracy. And a thrifty combination of poor-law authorities to marry a female pauper to a pauper of another parish, in order to relieve the ratepayers of the woman’s parish, is not a conspiracy. Yet some combinations for procurement of marriage will amount to conspiracy; e.g. taking a young woman of property from the custody of her relations in order to marry her to one of the conspirators. And although some combinations “in restraint of trade” may be so far illegal as to be unen-

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forceable, it is now settled that they do not necessarily constitute a criminal offence. As to the question whether a conspiracy formed in England to effect some unlawful purpose abroad would be indictable here, the House of Lords has laid it down that a conspiracy to commit a crime abroad is not indictable in this country unless the contemplated crime is one for which an indictment would lie here, and that a conspiracy to attain a lawful object by unlawful means, rather than to commit a crime, is not triable here when the unlawful means and the ultimate object are both outside the jurisdiction.

(I have omitted the footnotes and the references thereto.)

Reviewing this extensive list I do not see one head under which would come the conduct described in the information.

This is understandable because as it appears to me, to prevent members of a union from participating in the lawful activities of their union is not necessarily unlawful nor “outrageously immoral”, nor “extremely injurious to the public”. It is possible to conceive of many situations where to do that would not be so. This seems to be recognized by the Court of Appeal when speaking for the Court, Brooke J.A. says:

… The Canada Labour Code is silent as to acts by others outside of the employer‑employee relationship which may interfere with the exercise by the employee of the right of freedom to participate in lawful activities of the union. This is no doubt in recognition of the right or freedom of others to perhaps peacefully persuade such employee as to his participation in the lawful activities of the trade union.

But then Brooke J.A. goes on to say:

… But that is quite a different matter than acts or an agreement which has the purpose of preventing or depriving an employee from exercising his right or freedom to participate in the lawful activities of his union.

The distinction that is drawn here appears to me to relate to the means rather than to the purpose. The purpose in either case is the same namely that

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there be no participation by an employee in the lawful activities of his union. Only the means differ: persuasion in the first case, intimidation or other unlawful means in the other.

But we are not here concerned with the means. This information is not laid under s. 423(2)(b), nor under s. 381, nor under any other section charging a specific crime. It is laid under s. 423(2)(a) and, in my opinion, as laid it does not set out an offence known to the law of Canada.

I would allow the appeal, set aside the judgment of the Court of Appeal and that of the Supreme Court of Ontario, and restore the order of the Provincial Court quashing the information.

Appeal allowed, MARTLAND and MCINTYRE JJ. dissenting.

Solicitors for the appellants: Golden, Levinson, Toronto, and Ahern, Nuss & Drymer, Montreal.

Solicitor for the respondent: Roger Tassé, Deputy Attorney General of Canada, Ottawa.