... having been breathed out

Would it have been feasible [in the early 1930s] to pass legislation banning 'masked meetings' or explicitly outlawing the [Ku Klux] Klan as an organization? The legislative response to the formation of the Communist Party of Canada is an interesting point of comparison. Canadian politicians took that organization to pose such a threat that they passed the 'infamous section 98' of the Criminal Code in the wake of the Winnipeg General Strike of 1919. Section 98 defined as an 'unlawful association' any organization whose purpose was 'to bring about any governmental, industrial or economic change within Canada' by advocating the use of 'force, violence, terrorism or physical injury.' Once the court declared an organization to be an 'unlawful association,' the police were authorized to seize and forfeit its property. Officers, representatives, and members were potentially liable for up to twenty years' imprisonment. Publishing, importing, or distributing books, newspapers, or other publications advocating such goals also netted offenders up to twenty years. Contemporaneously with the KKK Oakville raid [in which 75 Klan members burnt a cross in the main street and then demanded that white woman Isabel Jones leave the home of her Black fiancé Ira Johnson, and that the two sever their relationship], substantial lobby campaigns were being initiated 'coast to coast' to expand section 98 to outlaw the Communist Party by name.

The KKK's advocacy of white, Protestant supremacy did not seek to 'bring about any governmental, industrial or economic change within Canada,' and consequently did not run afoul of section 98 of the Code as then written. It is reflective of attitudes about racial and religious equality in Canada in this period that no one seems to have suggested expanding section 98 to encompass the advocacy of violent or terrorist methods in furtherance of racial and religious bigotry. Nor did anyone campaign 'coast to coast' to outlaw the Ku Klux Klan by name.

It was not only the letter of the law that distinguished between Communist and KKK activities. There were striking disparities in enforcement as well. In a spectacular show of criminal justice authority, Tim Buck and eight other white Communist Party leaders and activists were convicted of being 'members of an unlawful association,' contrary to section 98, in September 1931 in Toronto. Their convictions were upheld by the Ontario Court of Appeal in 1932. Prosecutions for seditious libel, disorderly conduct, obstructing police and unlawful assembly were routinely pursued against members of the Communist Party between 1928 and 1932 in Sudbury, Port Arthur, Fort William, and Toronto. The offence of 'disorderly conduct' was also pressed into service, with Communist soap-box orators convicted under the vagrancy law of 'causing a disturbance' in or near a street or public place 'by impeding or incommoding peaceable passengers.' To quell Communist rallies, police and city officials threatened that they would 'read the riot act.' The 'unlawful assemblies and riot' section of the Criminal Code allowed police to invoke 'the riot act' whenever twelve or more persons assembled a meeting that was likely to 'disturb the peace tumultuously.' This offence carried with it possible life imprisonment and permitted the police to shoot to kill.

The readiness of the authorities to use the full force of criminal law against the Communists presents a dramatic contrast to their recalcitrance in the face of Klan activities. When it came down to it, in the end the only charge laid against the four Hamilton Klansmen was 'disguised by night.'