We are continuing our long but worthwhile journey through the Canadian Criminal Code. In this episode, we are still wading through the sections in the Code under “Part II Offences Against the Public Order.” The section we will discuss today is one of the many “prohibited acts” listed under this heading, along with Alarming Her Majesty (s. 49) and Intimidating Parliament (s. 51). So far, we have learned that these offences come to us from the English common law and have essentially been in our Criminal Code since its inception in 1892. We have also realized that many of these offences have been subsumed under other, more modern, sections of the Code, particularly the terrorism and criminal organization offences. Although these sections are occasionally referenced in a recent case or two, they remain virtually unused as “relics of the past.”
The section for today’s podcast is sabotage under section 52, which has a different history than the previous sections. The offence came into our Criminal Code later, in the 1951 amendments to the Criminal Code, under s. 509(a) as “acts prejudicial to security.” Soon thereafter, in the 1953-54 amendments to the Code, the section was re-labelled as “sabotage,” with the essence of the offence remaining unchanged. The original placement of the offence, under the mischief sections, tells us that the offence is a form of mischief involving willful damage to property but with a more serious connotation involving prohibited acts against the national interests of the state.
You may rightly ask why such an offence wouldn’t have been in our first Criminal Code? The answer connects us to the etymology of the word “sabotage.” The term “sabotage” does not actually appear in the section, it is found only in the descriptive heading. Even so, “sabotage” is a word readily identifiable: we all have a notional sense of what sabotage is and what it entails. Despite this, the etymology of the word is surprising yet familiar.
The word “sabotage,” according to the online Oxford Dictionary, comes from the French word saboter, meaning “kicks with sabots, willfully destroy.” A sabot was a wooden shoe traditionally worn by the working class – akin to the Dutch wooden clog. According to the Oxford online dictionary, the somewhat apocryphal story connecting sabot to the crime of sabotage involves the French workers, in the early 1900s who protested the advent of the Industrial Revolution and the replacement of machine for man. In these strikes and protests, the workers showed their displeasure by throwing their wooden shoes into the machinery, which “clogged” (pun alert) the inner workings of the machine. The authorities viewed these actions as “sabotage” and so, the story goes, was the birth of a new crime of mischief. Within a few years the crime would have more significance during World War I and thus become an action intersecting intimidation of the government, espionage, and treason but with an element of mischief.
However, etymologists suggest the wooden shoe story is not behind the crime. Apparently the word sabot referred to “bungling” as in doing something very badly or messily. This connects better to the early uses of the word and does tie to labour action, which also explains the exceptions to sabotage as enumerated under s. 52(3) and (4) of our Criminal Code. A great use of the term can be found in the 1907 speech given by Arturo M. Giovannitti, who was an Italian-American social activist and labour union leader. He decried the concept of “sabotage” as murder instead describing it as “giving back to the bosses what they give to us. Sabotage consists in going slow with the process of production when the bosses go slow with the same process in regard to wages.” As an aside, Giovannitti and two other labour leaders were charged in 1912 with “constructive murder” on the basis of inciting a riot which led to a death of a striker by police. All men were eventually acquitted. Giovannitti, who was a self-rep, gave a memorable jury address, an excerpt, provided by the author, Upton Sinclair, himself a social activist, can be found here.
The evolution of this crime antedates the first Code, which explains why it is not in there. However, when you look at what is in the 1892 Code it becomes clear how the crime easily found its way into our criminal law nomenclature. Other mischief sections in the 1892 Code, such as s. 489, prohibit mischief on railways and injuries to the electric telegraphs (s. 492), all of these important infrastructure features of the new state. On that basis, the addition of sabotage seems a rational addition. However, as mentioned earlier due to the labour connection, the final definition of sabotage protects the right to strike and peaceably protest.
Now, let’s look at the actual words found in the section. The first part of section 52, setting out the offence, reads as follows:
(1) Every one who does a prohibited act for a purpose prejudicial to
(a) the safety, security or defence of Canada, or
(b) the safety or security of the naval, army or air forces of any state other than Canada that are lawfully present in Canada,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
The mens rea or mental element requirement can be found in the phrase “for a purpose.” This offence is an example where the prohibited act of the offence is committed for a specific purpose ulterior to that prohibited act or acts. (See para 92 of R v Khawaja, 2010 ONCA 862 (CanLII)). The ulterior purpose is outlined in subsection (1) as “prejudicial” to the safety, security or defence of Canada or safety and security of any armed forces of “any state” lawfully in Canada. This would require the Crown to prove a high level of mens rea and recklessness would not be enough. Again, as mentioned in previous podcasts, the new terrorism offences would cover these prohibited acts and in a much broader manner both in terms of actus reus and mens rea.
In terms of the actus reus of the offence the Crown would not only need to prove the prohibited act as defined under subsection (2) but also the “prejudicial” purpose as enumerated in 52(1)(a) and (b). Turning yet again to the Oxford dictionary the term “prejudicial” may be fulfilled by proving the purpose was to harm or place at risk of harm. If proceeding under (b), the Crown would also need to prove the foreign armed forces was in Canada “lawfully” or under the law.
The prohibited act is specifically defined in the next subsection (2) as follows:
...an act or omission that
(a) impairs the efficiency or impedes the working of any vessel, vehicle, aircraft, machinery, apparatus or other thing; or
(b) causes property, by whomever it may be owned, to be lost, damaged or destroyed.
Here the prohibited acts are fairly broad only requiring an impairment (which could include a mere weakening of the productivity) or a hindering (which could include a mere delay) of the thing so impaired or impeded. In terms of the object of the prohibited acts, traditional rules of statutory interpretation such as ejusdem generis and nocitur a sociis, can be applied to argue that the general term “or other thing” must be interpreted in light of the preceding list, here a list of man-made items requiring generated power. Just how broad the prohibited act is can be seen by the definition under (b). Although the Crown would have to prove causation, the consequence can be as simple as an item lost. Further, there is no specific ownership of the item required. This broad prohibited act is thankfully tempered by that more specific mens rea requirement.
There is a militaristic tone to this offence as it pertains to our armed forces and even foreign ones. There are less serious mischief-related offences found under the National Defence Act such as under s. 116. For example in Reid S.A. (Petty Officer 2nd Class) and Sinclair J.E. (Petty Officer 2nd Class), R. v., 2009 CM 1004 (CanLII), the offenders originally faced charges as laid by the Canadian Forces National Investigation Services of sabotage, conspiracy and other mischief-related offences. The two officers impeded access to a military database by making it more difficult to access the information by removing a computer icon. Upon review, the charges of sabotage and conspiracy were dropped with the Director of Military Prosecutions deciding not to prefer those charges but to instead pursue the less serious National Defence Act offences. These “mitigating” facts were relied on by the defence in submissions on disposition. The defence requested a lesser sentence as the more serious charges first laid garnered much media attention and severe repercussions such as a loss of security clearance, computer access and access to classified information. In the end the Court Martial Judge found the offences were still significantly serious to attract a heavy fine and a reduction in rank.
There are also “saving” subsections, which provides an exception to the prohibited acts as outlined under (2). As mentioned earlier, these exceptions under (3) pertain to acts involving labour protests. They are as follows:
(3) No person does a prohibited act within the meaning of this section by reason only that
(a) he stops work as a result of the failure of his employer and himself to agree on any matter relating to his employment;
(b) he stops work as a result of the failure of his employer and a bargaining agent acting on his behalf to agree on any matter relating to his employment; or
(c) he stops work as a result of his taking part in a combination of workmen or employees for their own reasonable protection as workmen or employees.
The final exception to the enumerated prohibited acts under (2) come under (4) and ensure that the section could not be used as it relates to someone, for example, who canvasses door-to-door. It reads as follows:
(4) No person does a prohibited act within the meaning of this section by reason only that he attends at or near or approaches a dwelling-house or place for the purpose only of obtaining or communicating information.
In the recent case of R v Wagner (2015 ONCJ 66), the court made an analogous reference to s. 52. In that case, the accused person, Mary Wagner, was charged with breach of probation and mischief by interfering with private property by attending a Toronto abortion clinic. She was a continual attendee at these clinics in a concentrated effort to “persuade” women not to have abortions. On this occasion, she disconcertedly approached a woman in the clinic, while holding a rose in her hand, and softly repeatedly urged the woman to change her mind. When asked to leave she refused and eventually was forcibly removed by the police. One of the arguments advanced on behalf of Ms. Wagner raised the issue of whether or not her efforts to dissuade were acts of protection or defence of the fetuses pursuant to the defence of the person section in the Code. In his reasons for conviction, Justice O’Donnell dismissed this submission but referred to s. 52 sabotage as an offence which exempts behaviour, pursuant to s. 52(4), similar to the type of behaviour engaged in by Ms. Wagner. Certainly attendance at a place for the sole purpose of communicating would also not be contrary to s. 430(1)(c) mischief. However, where that communication interferes with the lawful use of property, then the mischief section would be applicable.
Needless to say there are few cases of sabotage under this section. Although it has been in the Criminal Code for decades, it is a relatively new offence, which was not part of our first Criminal Code. However, the underlying rationale for the offence, to protect national security, is certainly not a new concept. Whether this offence will continue in use considering the push to modernize offences remains to be seen.