An Exceptional Law: Section 98 and the Emergency State, 1919–1936 by Dennis G. Molinaro (review)

In An Exceptional Law, Dennis G. Molinaro helps us understand the origins of the "emergency state." During World War I, the Canadian government amassed considerable power through Order-in-Council government, including the power under Order-in-Council PC 2384 to suppress "unlawful organizations" and sedition. These were specifically delineated emergency powers, designed to pass in the wake of the conflict. Yet, after the war, with the Winnipeg General Strike, the Workers' Revolt, and then the Great Depression, governments took it upon themselves to continue these "exceptional powers" on an ongoing basis.

Much of Molinaro's book focuses on section 98, which took effect in October 1919 and which was identical in spirit to the wartime Order-in-Council PC 2384. Drawing on the work of philosopher Giorgio Agamben, who will probably be new to many historians, An Exceptional Law concerns itself in part with his idea of the homo sacer – individuals excluded from the protection of the law but at the mercy of it. This is good, deep history of the crafting and execution of a law. We see how section 98 is used against the Communist Party of Canada, how the trial of the party general secretary Tim Buck and eight others was used to normalize the law and make it no longer "unusual or exceptional," and how in the wake of this action the legal system administratively deported scores of Canadians and normalized political violence. The chilling story of how the police murdered Nicholas Zynchuck in 1933 shows the very real human consequences of this legislation. The police shot Zynchuck during a heated altercation during his eviction and were later able to claim in their successful defence that Zynchuck was a "communist."

Much of the rhetoric used both in support and opposition of section 98 seems familiar today, and Molinaro's book adds much-needed historical context to contemporary debates over civil liberties and political freedom in liberal democracy. While William Lyon Mackenzie King's Liberals repealed section 98 in 1936, Molinaro convincingly shows how the underlying powers were maintained. King himself took pains in both public and private discussions to ensure that the power to prosecute communists remained, and much of the repressive potential of section 98 continued in other parts of the Criminal Code. Indeed, an irony in the story is that throughout the campaigns to repeal section 98 – waged, in this account, variously by the Canadian Labour Defence League, everyday people, and the On-to-Ottawa Trek – the focus on the legislation itself failed to consider the broader context in which it was operating. In a chilling coda to An Exceptional Law, Molinaro convincingly walks us through Quebec's Padlock Law, the War Measures Act during the October Crisis, and even contemporary anti-terrorism legislation and the Edward Snowden revelations, to show us how "memories" of section 98 remain today.

While a strong work, there are moments when we can see that there are almost two books at play here. Molinaro very much wants to tell us both the history of section 98 – which is riveting reading that should find itself at the heart of our understanding of this period – as well as the more granular stories of communist activists and the party itself. Readers for the legal arguments may find some of these histories of the Communist Party of Canada overlong. Similarly, at other points, more context could have helped Molinaro's argument. Molinaro argues at several points that the On-to-Ottawa Trek was not just about relief camp conditions but also about section 98, but little evidence is marshalled to demonstrate this. We also see that section 98 was part of King's 1936 election campaign; but without much context of the campaign more generally, it is hard to tell if it was a key concern or one of several more minor ones. Finally, while there is some global context, more would have...