(3) Persistently follows such other person about from place to place; or

(4) Hides any tools, clothes or other property owned or used by such other person, or deprives him, or hinders him in the use thereof; or

(5) Follows any such other person with one or more other persons in a disorderly manner in or through any street or road; or

(6) Besets or watches the house or other place where such other person resides or works or carries on business or happens to be

Shall be liable to a fine not exceeding one hundred dollars, or to imprisonment for a term not exceeding three months.

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.

4. A prosecution shall not be maintainable against a person for conspiracy to do any act or to cause any act to be done for the purposes of a trade combination, unless such act is an offence indictable by Statute or is punishable under the provisions of the Act hereby amended; nor shall any person, who is convicted upon any such prosecution, be liable to any greater punishment than is provided by such Statute or by the said Act as hereby amended, for the act of which he may have been convicted as aforesaid.

For the purpose of this section "trade combination" means any combination between masters or workmen or other persons, for regulating or altering the relations between any persons being masters or workmen, or the conduct of any master or workman, in or in respect of his business, or contract of employment or service; and the word "act" includes a default, breach or omission.

This new section attempted to define the coercion prohibited in disputes and contained two important steps in ad

vance the provision that any act lawful for an individual would be lawful when done in combination and the legalizing of peaceful picketing.

Speaking in the House of Commons in 1890, Edward Blake said:

The law of conspiracy was thus swept out of all operation in connection with acts done for the purpose of a trade combination, except in two classes of cases, unless the act done was an offence indictable by statute, or unless it was an offence punishable under this particular Act, in which case, though not necessarily an indictable offence, it was an offence of that particular character and defined in that particular way by the very Act itself. Therefore, the law of conspiracy was abrogated, as to trade combinations, except in this particular class of offences defined, and in all cases of such graver offences as are indictable by statute. Any conspiracy, then, for the purposes of a trade combination, to do an act punishable at common law, or punishable by statute under summary procedure, was no longer criminal, and remained no longer capable of being prosecuted under the law of conspiracy. If it were one of these minor offences, not raised to the gravity of an offence indictable by statute, if it were a minor offence punishable summarily, it was swept out of the law of conspiracy altogether, if done in concert for the purposes of a trade combination.1

In 1876 organized labor in Canada had the protective clause of the Trade Unions Act, although limited to registered unions. The unions enjoyed the right of peaceful picketing granted by the law of 1876 and the important limitation on the law of conspiracy first secured in 1875 and reenacted in Section 4 of the law given above. A law of 1877 (c. 35), enacted after a strike of locomotive engineers on the Grand Trunk Railway, reproduced certain sections of the British Conspiracy and Protection of Property Act

1 Hansard, 1890, pp. 3374-75. Italics mine.

of 1875 (c. 86) with reference to breach of contract.

It

provided that in general a breach of contract of service should be a civil wrong and not a crime as up to that time, but the law held that "certain wilful and malicious breaches of contract, involving danger to persons or property, or grave public inconvenience, should be punished as crimes and to this end sections were inserted respecting breaches of contract by railway employees. These provisions, which are of especial interest to trade unionists employed on public utilities, are given as they now appear in the Criminal Code:

499. Everyone is guilty of an offence punishable on indictment or on summary conviction before two justices and liable on conviction to a penalty not exceeding one hundred dollars or to three months' imprisonment with or without hard labor who:

(a) Wilfully breaks any contract made by him knowing, or having reasonable cause to believe, that the probable consequences of his so doing, either alone or in combination with others, will be to endanger human life, or to cause serious bodily injury, or to expose valuable property, whether real or personal, to destruction or serious injury; or,

(b) Being bound, agreeing or assuming, under any contract made by him with any municipal corporation or authority, or with any company, to supply any city or any other place, or any part thereof, with electric light or power, gas or water, wilfully breaks such contract knowing, or having reasonable cause to believe, that the probable consequences of his so doing either alone or in combination with others, will be to deprive the inhabitants of that city or place, or part thereof, wholly or to a great extent, of their supply of power, light, gas or water; or,

(c) Being bound, agreeing or assuming, under any contract made by him with a railway company, or with His Majesty, or anyone on behalf of His Majesty, in connection with a government railway on which His Majesty's mails, or passengers or freight are carried, to carry His Majesty's mails, or to carry

passengers or freight, wilfully breaks such contract knowing, or having reason to believe, that the probable consequence of his so doing, either alone or in combination with others, will be to delay or prevent the running of any locomotive engine, or tender, or freight or passenger train or car, on the railway.

In 1886, in the revision of the statutes, the changing of one word in the text of the law of 1876 marked a setback. Prosecution for conspiracy for the purposes of a trade combination which by that law could only be maintained against the grave offences indictable by statute could now be maintained against the minor offences punishable by statute as well. The significance of this change is best expressed in the words of the Hon. Edward Blake:

You no longer have the protection as to the gravity of the excepted offence, which existed up to that moment. All offences punishable by statute, even though of the most trivial character, and punishable in the lightest way and by the most summary procedure, are once more, by the Revised Statute, drawn within the wide net of conspiracy, even though they are things done for the purposes of a trade combination. . . . I hope that all the protection which was given, and advisedly given, against this obnoxious law of conspiracy by the Act of 1876 will be restored by Parliament. . . . This law of conspiracy is a very wide law. I declare that the alteration which has taken place renders it impossible to say how small a matter may not now be punishable as a criminal conspiracy and introduces lamentable uncertainty into the operations of trade combinations.1

In 1889 three union bricklayers of Hamilton were sentenced to three months' imprisonment for conspiracy. These men were the mover, the seconder and a supporter of a resolution in the bricklayers' and masons' union that their body should boycott the city hall building and that any member

1 Hansard, 1890, p. 3375.

1

working on it while Buscombe, a non-union worker, was employed should be fined fifty dollars. On appeal the Court of Queen's Bench found, according to the Canadian Manufacturer, "that they could be convicted lawfully despite R. S. C., Chapter 173, Section 13." It was held that they might combine to regulate or alter the relations between masters and workmen as provided in that section [R. S. C. 1906, c. 146, s. 2(38)] but that what they had done was not for the purposes of their trade combination within the meaning of the statute; that they were actuated by malice, had conspired to injure and were guilty of an indictable misdemeanor. The Canadian Manufacturer commented: "Good British commonsense; good British law and a good British judge. decide that the liberty and rights of the good law-abiding citizen must and shall be respected. And for this God be praised." 2

3

conspiracy" as used in this qualified at the request of the The addition of the words

In 1890 (c. 37) the term section (1876, c. 37, s. 4) was Trades and Labor Congress. "in refusing to work with or for any employer or workman" provided that prosecution should not be maintainable in any such case. The law of 1876 with this amendment was incorporated in the Criminal Code of 1892.

In 1887 (c. 49) the law with respect to intimidation, as enacted in 1869 (c. 20), was amended on the initiative of the Quebec Board of Trade. This measure, "An act to amend the Revised Statutes (c. 173) respecting threats, intimidation and other offences," was directed at the ship-laborer's union of Quebec. The member promoting the bill said, 'They do not kill people, but they gather by hundreds on the

66

1 Canadian Manufacturer, March 1, 1889, p. 145.

2 Ibid., p. 146.

3 Trades and Labor Congress, 1889, p. 20.

4 Cf. supra, p. 82.