news
Historicist: Kill Bill 99
Every Saturday at noon, Historicist looks back at the events, places, and characters—good and bad—that have shaped Toronto into the city we know today.
Justice being stomped upon by the proposed amendments to the Police Act. The Telegram, March 20, 1964.
In the fallout of the G20 summit, much has been made about the treatment of civil liberties by the police and various levels of government. Some commentators have drawn parallels between the extended powers bestowed upon law enforcement during the summit with legislation the Ontario government attempted to pass nearly fifty years ago. The amendments to the Police Act put forward in Bill 99 provoked mass outrage from the public and politicians, including those within the government of Premier John Robarts. For nearly a week, most observers sat back and scratched their heads as they watched a circus unfold at Queen’s Park that could have been prevented if more care had been taken in thinking about the implications of the bill.
Headline, the Globe and Mail, March 20, 1964.
The figure at the centre of the storm was Attorney General Frederick Cass. The small town lawyer, whose maternal relatives developed the McIntosh apple, developed a reputation in several government portfolios as a no-nonsense taskmaster with a short fuse. Since his appointment as attorney general in late 1962, he had overseen a report conducted by Judge Bruce Macdonald that would revise the Police Act to allow law enforcement to battle a perceived increase in organized crime and Mafia activities in the province. The spectre of gang wars had been one of the provincial Liberals’ main campaigning points during the 1963 Ontario election and it was felt in some quarters that the governing Progressive Conservatives had to show they weren’t soft on crime regardless of the true level of the mobster menace.
There were signs something unusual was up when the report was released on March 19, 1964. Reporters reviewing its contents were locked in a room for six hours under an OPP watch that included supervised bathroom trips. Cass dropped by around 9:30 a.m. to answer questions and made it clear that he had disagreed with Macdonald on several sections of the report. Those perusing the report noticed proposed changes to section 14 of the Police Act that gave the Ontario Police Commission (OPC) sweeping powers that suspended normal civil liberties. The new subsections would allow the OPC to summon anyone and require them to provide evidence in camera. Legal counsel could be refused until the OPC was satisfied with questioning. If the person being summoned refused to answer questions or provide requested evidence, the OPC “may, by warrant, commit the person to prison for a period not exceeding eight clear days” without bail or appeal. Once out of jail, if the person continued to refuse to cooperate, not only would another eight-day sentence ensue, but the OPC “may commit the person to prison from time to time until the person consents to do what is required of him.” Those questioned were forbidden to disclose anything that occurred during their hearing—if they did, a two-thousand-dollar fine and a year in jail could result.
Early in the afternoon, Cass quickly outlined the legislation stemming from the report that he intended to bring to the floor that day. He assured the small number of attendees (estimated at eleven out of seventy-seven Tory MPPs) that the proposed amendments to the Police Act were a matter of housekeeping. As bills in those days were rarely printed before they were given first reading in the legislature, those in attendance accepted Cass’s explanation without any visible concern.
The bill boomerangs back on Attorney General Fred Cass. Cartoon by Al Beaton, the Telegram, March 21, 1964.
After Bill 99 was tabled for first reading, Cass held a press conference. He noted that some individual rights would have to be sacrificed for the public good and trusted the OPC to act carefully, then stunned reporters when he suddenly attacked his own bill: “It’s drastic, it’s dangerous, and it’s new, and it’s terrible legislation in an English common law country.” If the law passed, he mused that a person could be plucked off the street, hauled before the committee and sent to jail without anyone else’s knowledge. The question on everyone’s mind: if this legislation was so repulsive to the minister bringing it to the legislature, why was it being brought forward?
Around 9 p.m., during a party thrown by the government for the media corps, Robarts received word that the Globe and Mail had prepared a rare front-page editorial regarding the legislation. Titled “Bill of Wrongs,” the piece lashed out at the government:
“For the public good,” the Ontario Government has taken an axe to the fundamental rights and liberties of this province’s people. “For the public good,” it proposes to trample upon Magna Carta, Habeas Corpus, the Canadian Bill of Rights, and the Rule of Law…Are we in Ontario—or are we in Ghana? In the Canada of 1964—or in the Germany of 1934? This legislation is supposed to be directed against organized crime. In fact, it is directed against every man and woman in this province…Cass says of it: “The rights of a few individuals may have to be overridden for the public good.” These rights, which belong to every individual ARE the public good. Overridden for one man, they are overridden for all. Where, then, is “the public good?”…This legislation could make Ontario a police state. It would give the Ontario Police Commission powers comparable with those of the OGPU [a forerunner of the KGB] or the Gestapo.
Headline, the Toronto Star, March 20, 1964.
The editorial was just the beginning of the torrent of criticism hurled at the government on March 20. The Star also published a front-page editorial condemning the government for creating conditions for a police state out of panic:
A case could perhaps be made out for measures such as this in a country ravaged by civil war. But the only justification the government offers is that these drastic powers are needed to combat crime syndicates from the United States. A few months ago the cabinet was denying that these syndicates were operating in Ontario at all. Now they have become, we are told, such an awful menace that the traditional rights and liberties of the people of Ontario must go by the board. This looks like a reaction of sheer panic…This law is not aimed at just racketeers and gangsters and their accomplices. It can be used against anyone—against opponents and critics of the government whom someone in authority has a grudge. In the hands of corrupt officials it could be used not to repress crime but protect it…This is the most offensive and dangerous legislation ever introduced in Ontario.
The opposition pounced during the day’s legislative session. Acting Liberal leader Farquhar Oliver demanded that the government either dismiss the legislation or call an election. Tempers flared among the argumentative MPPs—at one point, Speaker Donald Morrow sent the sergeant-at-arms over to Oliver when he refused to yield to the speaker’s request to allow Robarts to speak. In an emotional speech, Dovercourt Liberal MPP Andrew Thompson (later infamous for his tardy attendance record as a senator) argued that in a British-inspired parliamentary system, a cabinet must stand in solidarity, so the front benchers were as guilty as Cass in creating chaos. “We don’t see this as a political battle,” he noted, “but a battle for the sanctity of the people.” Thompson’s speech received applause from the visitor’s gallery and he was able to ride this positive reaction to become party leader later in the year.
Premier John Robarts gets out the cleaning equipment. Cartoon by Al Beaton, the Telegram, March 24, 1964.
In a statement partly crafted by former premier Leslie Frost, Robarts indicated he would not tolerate draconian legislation and would send the bill back to a committee. The Liberals continued to shout and, as soon as Robarts finished speaking, Oliver questioned how the bill had gotten so far. The premier also faced internal opposition from MPPs who had no prior knowledge of the bill and shuddered at its content. Backbencher Allan Lawrence (St. George riding), known for his frequent dissent with the government, was found by the press after Cass’s press conference. When one reporter described the bill, Lawrence replied “It can’t be that…People picked up without charge, incarcerated, denied a lawyer on the mere suspicion of the police? If that’s the case I’d certainly be against it.” After the debate, Lawrence rushed Robarts and indicated there were many on the benches (including many lawyers like himself) willing to vote against the legislation due to a mix of personal beliefs and large volumes of calls from irate constituents since 7 a.m.
Outrage quickly spread to Ottawa where MP Reid Scott (NDP, Toronto-Danforth) proposed a motion to censure the Ontario government. Though the speaker ruled it out of order, Scott’s motion received applause from all parties except the federal Tories, whose leader, John Diefenbaker, looked embarrassed as he fidgeted in his seat. Diefenbaker, who as prime minister had legislated a national Bill of Rights four years earlier, contemplated denouncing the police state overtones of Bill 99 in the House of Commons, but kept silent out of respect for Robarts. Diefenbaker urged the premier to drop the bill, as its passage would allow the federal Liberal government a rare opportunity to disallow provincial legislation and make the public view them as the defenders of civil rights…in short, the Liberals would have made Tories at both levels of government look bad.
The bill took on international dimensions when Joseph T. Thorson, a recently retired legal official who served as the honorary president of the International Commission of Jurists, sought to obtain a copy of the legislation to submit to the commission’s headquarters in Geneva for consideration. Thorson was outraged by the proposals, which he found worthy of a third-world dictatorship (he picked on everyone’s favourite target, the increasingly repressive government of Kwame Nkrumah in Ghana). He told the Globe and Mail that “they contravene the basic rule of law. They offend the very sense of justice.” As outrage grew, Thorson felt that the public’s anger showed “the value of always being on alert.”
Outside Queen’s Park, between sixty and one hundred protesters from the Ontario College of Art chanted “If it starts, where will it end?” and “We want Robarts!” The premier met with three protesters, then stepped in front of the crowd and repeated an earlier statement that no law infringing civil liberties would pass. While there were some jeers, most of the crowd cheered Robarts with cries of “Thatta boy!”
Those who spoke out in favour of section 14 were few and mostly tied to the OPC. Defenders stressed that only those involved in organized crime had anything to worry about. Judge Macdonald believed the legislation was necessary to battle the bad guys—”What’s the point of individual rights when there is an invisible government operating behind the scenes,” he told police officials gathered at the Royal York Hotel. Among legal experts, University of Toronto law professor John Willis thought the dangers most lawyers described were the result of imaginations gone wild. He told the Star that “any attempt by a public authority to deal with social menace necessarily involves interference to some extent with so-called civil liberties of individuals.”
Headline, the Toronto Star, March 24, 1964.
All camps spent the weekend trying to figure out their next moves. Oliver threatened to launch a filibuster if the bill moved to second reading in its current state. Robarts met with his advisors, but resisted their calls to force Cass to resign. The premier announced that he would carefully examine the bill before clarifying or withdrawing the offensive sections. Newspapers continued to publish editorials wondering where the government’s judgment and common sense wandered off to. Public fury extended to local pulpits, as Reverend J.F. Chidsey of the Don Heights Unitarian Congregation read to worshippers a letter that blasted the legislation for destroying freedoms that citizens had gone to war to protect. The Telegram noted that seventy-five members of the congregation signed the letter, which was addressed to the premier and joined the chorus of people looking for Cass’s head.
The March 23 session of the Ontario legislature was a raucous affair. For the first half of the day, debate went back and forth between cabinet members asking for more time to review Bill 99 and the opposition demanding its withdrawal. In the face of constant attacks from the opposition and his party, Robarts took full responsibility for the fiasco, yet stubbornly clung onto preserving the offending sections of the bill until a committee could review them. Tory MPPs threatened to resign. A motion from Oliver to kill the entire bill was defeated. NDP leader Donald MacDonald moved an amendment to change section 14 only. Robarts plead for discussion in committee, to which Oliver retorted “I don’t think you’re in any position to preserve even a shred of it.” Verbal jousting continued until Robarts finally indicated he would instruct the reviewing committee to delete section 14 as long as it was fully discussed. MacDonald’s motion passed the house with approval from all ninety-six MPPs in attendance. It was the first time a premier had accepted an opposition amendment since George Drew voted for a Labor-Progressive motion asking the government not to contest the principle of family allowances in court in 1944.
But where was Cass? The attorney general maintained a low profile after his initial encounters with the press, as he sat out most of the action at Queen’s Park. Cass and his wife secluded themselves at the Royal York as they awaited his fate…
After MacDonald’s motion passed, an ashen Robarts pulled out Cass’s resignation letter and read it to the legislature in a strained voice. Cass defended the bill, but acknowledged that he “unintentionally touched upon the sensibilities of our people. In doing this, however, I was answering the dictates of my own conscience.”
Cartoon by Al Beaton, the Telegram, March 25, 1964.
Within days, Arthur Wishart was named as the new attorney general. Bill 99 was sent to the Legal Bills Committee and rewritten to include common law protections of individual rights. The bill was brought back to the legislature and passed on April 28. Robarts realized he could, as biographer A.K. McDougall described, “no longer be just a relaxed chairman of the board,” and took time to review all legislative proposals before they were introduced. Robarts and Wishart looked into creating new legislation that would redeem the government in the eyes of the public by strengthening civil liberties, which led to the creation of the Ontario Royal Commission on Civil Rights. Chair James McRuer’s recommendations, which included limits on powers of arrest, search and seizure, and provided compensation for crime victims, were implemented by Robarts’s successor William Davis in a series of bills in 1971.
Additional material from John P. Robarts: His Life and Government by A.K. McDougall (Toronto: University of Toronto Press, 1986), Public Triumph Private Tragedy by Steve Paikin (Toronto: Viking Canada, 2005), and editions of the Globe and Mail, the Telegram, and the Toronto Star published between March 20, 1964 and March 25, 1964.