summarize "The legal recognition in section 590 of the right to strike, which is of the essence of freedom of combination is, having regard to the conditions of modern industrial disputes, of a very limited character. Some of the most important incidents of a strike, notably picketing, may be punishable by statute. The strike of workers in public utilities before invoking the provisions of the Industrial Disputes Investigation Act[76] is an indictable offence. A sympathetic strike may become a wholesale violation of statutory prohibitions and in addition, a seditious conspiracy.

In the case of Rex v. Russell[77], which grew out of the Winnipeg general strike of May 1919, the defence urged was that the strike was the lawful act of a trade combination under the protection of section 590. It was however held by the Manitoba Court of Appeal that;

"The immunity provided by section 590 of the (Criminal) Code does not extend to a general 'sympathetic' strike. A conspiracy to bring about a strike involving no trade dispute between the strikers and their employers is illegal. The law in Canada applying thereto is the same as it was in England before the Trade Dispute Act, 1906, to which there is no similar enactment in Canada.

"It is lawful for workmen to combine in a strike in order to get higher wages, because that would be a combination to regulate or alter the conduct of a master in his employment of his workmen. Persons who aided or encouraged such a strike would not be committing an unlawful act, because they were endeavoring to bring about something that is legal. But suppose there is a strike by the moulders in A's foundry and in order to assist the strike the employees of a cartage company combine in a refusal to carry goods to or from A's foundry, or the railway company's employees combine in refusing to receive or handle A's goods; neither of these combinations comes within the protection afforded by section 590."

Sympathetic strikes, writes the Editor of the Law Quarterly Review[78] have been the practice for over 50 years and to hold that they are illegal at the present time would constitute a revolution in what has been universally held to be the law. This was said in discussion whether a sympathetic strike came within the definition of section 5 subsec. 3 of the British Trades Disputes Act (1906).[79] But in the view of the Department of Justice to hold the sympathetic strike legal would constitute the "revolution." Following the events of the Winnipeg Strike, the Trades and Labor Congress proposed to the Government to amend section 2 subsec. 38 of the Criminal Code defining 'trade combination' by adding the words from the English Act of 1906 that "workmen means all persons employed in any trade or industry whether or not in the employment of the employer directly involved in a trade agreement." In this Memorandum of the Department of Justice in reply, it was affirmed "as a principal of the common law founded in the right of protection of individuals and of the public that a combination of persons to do an unlawful act, or to do a lawful act by unlawful means, is criminal, and it is moreover actionable civilly, if there be special damage. Compatible with this rule a sympathetic strike cannot practically be worked. This is an inheritance which we have from the common law... The decisions of the English courts in Lyons v Wilkins (1896), I Ch pII, Quinn v Leathem (1901) A.C. 495 and in Giblan v National Amalgamated Laborers' Union, etc (1903), 2 K.B. 600, make it clear that at common law strikes of this nature are illegal, and assuming that the Criminal Code does not conflict, this is the present position of the law in Canada."[80]