THE GREAT BIRTH CONTROL TRIAL
For six months in an Ottawa courtroom an historic battle studded with famous figures flashed around a 28-year-old book clerk while the world watched. Was Dorothea Palmer a criminal for spreading birth-control information among Catholic mothers?
Two decades ago, in the independent Ottawa suburb of Eastview, the longest and perhaps costliest trial ever held in a Canadian magistrate's court was fought to a bitter conclusion. The case —the Crown vs. Dorothea Palmer, social worker —involved the broad question of whether the public good was served by the dissemination of birthcontrol information in a community whose religious convictions were against such practices.
On October 27, 1936, a week after the trial had begun, the defense had already introduced some eighty pieces of literature and a dozen expert witnesses. Acting Crown Attorney Raoul Mercier complained, “We shall not be out of the trenches by Christmas if the defense continues to roam the world on sociological data!”
As a matter of record, Mr. Mercier was not to see Miss Palmer acquitted of his charges till St. Patrick's Day, almost six months and three quarters of a million words later.
From start to finish the Palmer case was enlivened by famous figures, brilliant testimony and cross-examination, surprise witnesses, unsuspected pathos, plus that most titillating of trial ingredients: sex. So delicate were some ot the side-issues —from the sins of Onan and the interesting moral customs in the French Congo, to the efficacy ot household vinegar as a contraceptive—that both
Oltawa English-language papers sought to protect their readers’ purity by burying insipid accounts of all but the highlights in their inner pages.
The third Ottawa daily, Le Droit, though loftily ignoring the day-to-day testimony, was censured b\ the presiding magistrate for its sensational accusation that the defendant’s work was part of a Toronto-sponsored plot to choke off the FrenchCanadian race at the womb. Other newspapers across Canada and the world hung on wire reports of the case. Many referred to Miss Palmer as "the Marie Slopes of Canada,” recalling the furor in Britain a decade earlier over this famous English woman who opened the first birth-control clinic in the British Empire at Manchester in 1921.
The cause of the celebrated trial was a series of calls made on Eastview housewives by twentyeight-year-old Dorothea Palmer, a pleasantly plump social worker who had emigrated to Canada from Wales ten years before. Miss Palmer’s normal occupation was listed as, "saleslady. Egoist Library (and stamp shop). Queen Street. Ottawa,” but she worked part time for the Parents’ Information Bureau of Kitchener. Ontario.
This organization, financed and directed even today by A. R. Kaufman, a wealthy Kitchener manufacturer of rubber boots, raincoats, gloves and other wearing apparel, employed about fifty women across Canada—most of them nurses—to visit poorer homes and discuss spacing of children with the mothers. Acting on their reports, the P1B sent a free box containing birth-control devices and information to approved mothers who had signed requests for such boxes. Further supplies were available from the Bureau at cost, or gratis if the case warranted it.
Eastview, in this mid-Depression year of 1936, held about 4,000 souls, most of them French, the rest mainly Irish, with a handful of other groups. Although it is just across the Rideau River from Ottawa, where some of its people found work, the town itself was virtually at an economic stand-still. A quarter of its people were destitute. The rest were able to raise in taxes less than four percent of the $130,000 in relief required annually to feed and clothe their indigent fellow-townsfolk, and their growing families.
The remainder of the money as the defense was to point out, came not from Ottawa but from the predominantly English-supported provincial treasury in Toronto.
All the women visited by Miss Palmer were Catholic, all but one were French-Canadian. Most had a number of children. Most received relief money. Miss Palmer was non-Catholic and spoke no French. Though she had been trained as a social worker in Sheffield, she was not a registered nurse.
Acting on a complaint laid against Miss Palmer,
Constable Emile Martel of the Eastview Police visited several homes and confiscated a number of boxes and one pamphlet entitled Birth Control and Some of its Simplest Methods. Then on September 14 he met Miss Palmer leaving an Eastview home, and asked her to accompany him to the police station. Miss Palmer did so. In conversation there she admitted surprise that it was the police who had tried to stop her and not the clergy. Whatever happened, she declared, she would go on
with her work. She also stated, “A woman should be master of her own body. She should be the one to say if she wants to become a mother.”
Several hours later she was informed that she was under arrest, that anything she said might be used against her, and that bail would be five hundred dollars.
The charges, as Eastview Police Chief Richard Mannion outlined them after a telephone conversation with Carleton continued on page 76
The great birth control trial
Continued from page 23
“Miss Palmer,” the defense claimed, “was beinc prosecuted for something druggists did openly”
County prosecutor Raoul Mercier, were all contained in Section 207, Subsection 1, of the Criminal Code of Canada. This section of the Code provides that anybody who advertises or sells contraceptive drugs or devices “without lawful justification or excuse” is guilty of an indictable offense and liable to two years’ imprisonment. But Subsection 2 provides that nobody shall be convicted who can prove “the public good was served by the acts alleged.”
1'he charge against Miss Palmer read that she had “unlawfully and knowingly” (a) offered contraceptives for sale in Eastview; (b) advertised by pamphlet, etc., various methods of contraception, and (c) actually “had for disposal” some contraceptives. Her. defense hinged, of course, on establishing that she had been acting in the public interest.
It is doubtful that the authorities knew that Miss Palmer was an agent of a large organization. All their actions show they assumed she was just someone trying to pick up extra money. Following the arrest, however, they permitted the nowshaken young woman to make a longdistance collect call to Kitchener, as a result of which they were almost immediately confronted by one of Ottawa’s ablest lawyers. A. W. Beament, brandishing bail.
At the sight of this unexpected opposition, the Eastview police suggested that perhaps the best thing for all would be for Miss Palmer to agree to conduct her activities elsewhere, in which case they would drop the charges. This Mr. Beament refused to allow. The police had arrested his client. Let them now prepare to accuse her of the alleged offences.'in open court.
The battle of Eastview had been joined.
The case opened on October 21, 1936, in the tiny Eastview courtroom which held less than fifty people. The courtroom was jammed, mostly with Eastview residents, but these were to disappear the following day on verbal orders from their parish priests. They were replaced for the rest of the trial largely by non-Catholics, mostly Ottawa women. Two Ottawa priests reported the proceedings to their bishop.
Miss Palmer had elected trial by magistrate, in this instance Lester H. Clayton. Toronto barrister F. W. Wegenast, KC, had joined Mr. Beament on defense. Perhaps anticipating the siege to follow, the defense lawyers engaged a suite in the nearby Eastview Hotel. A great part of this suite was taken up by a library of birth-control literature perhaps unequaled anywhere else on earth. Many of the books had been lent by well-wishers, from all corners of the globe. Marie Stopes herself contributed a large number.
Among the witnesses called by the prosecution in the first days of the trial were twenty-one Eastview housewives. The first, whose husband was a blacksmith earning forty-five dollars a month, had only one child. The next, however, had five children. The next, aged thirty, had nine. Her husband earned three dollars a week as a laborer. One woman, whose husband had worked only a week
in the whole previous year, had twelve children living and three dead. Most admitted to one or more miscarriages as well.
All disconcerted the crown’s case by revealing, on cross-examination, that they had very warm feelings for the defendant. Despite what they may have said to officers, several made it plain that Miss Palmer had not tried to sell them anything, or even give them anything directly. But she had made them understand where they could get birth-control materials, about which some of them had been totally ignorant heretofore.
The only Irish woman in the group admitted telling Miss Palmer that she had five children living, and didn’t want any more.
The defense had one question to ask of them all: did they think they were doing wrong in accepting the box sent by Miss Palmer’s employers?
“No,” said nearly all the women, in turn.
“Do you think so now?”
“No,” was the answer.
With his own witnesses eager to repudiate publicly anything they may have told him in private, Crown Attorney Mercier did the wise thing: he graciously accepted defeat on the charge that Miss Palmer had tried to sell contraceptives. Magistrate Clayton himself knocked out one of the two remaining charges when he decided that the devices she had with her when arrested were for demonstration, not disposal.
Was the “public good” served?
But he rejected a defense motion that the whole suit be dismissed. The trial must proceed on the remaining charge, which read that Miss Palmer unlawfully advertised by means of a pamphlet materials intended as means of preventing conception.
The defense had already indicated it would not deny Miss Palmer’s actions, but would fight the case on Subsection 2 of the law in question, an escape clause which read, “No one shall be convicted . . . who proves that the public good was served by the acts . . . and that there was no excess . . .” There was little legal precedent for such a defense. In Britain this section of the law was worded differently, and previous cases in Canada had contested the evidence itself. The Palmer defense was in unbroken territory.
Since they were setting a precedent. Magistrate Clayton waived the customary limit of five expert witnesses when the defense announced it might call authorities in sociology, labor, religion, psychiatry, economics and other fields. The crown attorney said the defense might call as many experts as it pleased. For tlie prosecution, one would suffice—Ottawa physician Dr. J. E. DeHaitre.
In so acting, Mr. Mercier made what many legal minds consider a major blunder. For the Canada Evidence Act (as the defense had taken pains to learn) specifically states that intention to cal! more experts than five must be announced before expert testimony begins. Mr.
Mercier was giving his opponents access to the whole world while limiting himself to five witnesses the moment he called Dr. DeHaitre to the stand.
Dr. DeHaitre, a physician of thirty years’ experience, took only a short time to express his belief that the use of contraceptives without medical advice was basically wrong. The only birth-control method he favored was the natural one outlined in a book called The Rhythm approved by the Catholic Church. This stressed abstinence from sexual intercourse at certain times of the month, calculated from the onset of the next menstrual period.
On cross-examination, Dr. DeHaitre revealed himself to be sincerely and deeply distressed over some aspects of the non-use of contraceptives, particularly “the appalling number” of women who died during abortions. He had also been moved by the courage shown by the Eastview mothers in defying Church and husbands to utter a small cry for some personal rights. He admitted that the rhythm system was not infallible, and that about half his women patients were so irregular in their periods that for them it was either total continence, constant risk of pregnancy or the use of contraceptives.
He said there were at least five hundred methods of contraception and not all of them were bad.
With Dr. DeHaitre’s testimony on October 22 the crown rested its case. Since the onus was on the defense to prove that Miss Palmer had acted in the public good, the real battle now began.
The first defense witness was Miss Anna Weber, head nurse at the Parents’ Information Bureau in Kitchener. Asked why birth-control knowledge could not be left to doctors to spread, she was quite blunt: most doctors knew very little about the subject; their patients often owed them money and were ashamed to go to them for advice; often women didn’t have car fare or anyone to stay with the other children; some were too embarrassed to be examined even by a medical man.
“They will open their hearts to another woman, however,” concluded Miss Weber. "That is why we send nurses around to visit them.”
A. R. Kaufman, founder and head of the P1B, was the next to testify. He told the court that he had first become interested in birth control as an aid to happier, healthier living when he noticed that in his own factory there was a direct relationship between absenteeism and large families. The less time between children, the more time the wage-earner lost through illness or other causes. In other words, those families which needed the most earned the least.
In a survey in 1929 to see how he could ease distress among such families, he discovered that many mothers had no idea how to space children. He therefore hired competent medical people and set up a clinic in his own factory, giving family-planning data to all who asked for it. So gratifying were the results that women all over Ontario began writing him for information. Thus the work had expanded. Some twenty-five thousand requests for boxes had been processed to date.
Drawn out, Kaufman said he gave large sums to the Y MCA and other social agencies; that his first outside birth-control clinic, in Windsor, Ontario, had been taken over by the Essex County Maternal Health League, to which he donated the equipment; that he made no profit directly or indirectly from the work, but instead lost thousands of dollars each year.
“If the government would take over my job, I would gladly quit.” he said.
The crown’s attack on the crusading
Mr. Kaufman was that he was making money out of the manufacture of the contraceptives. Kaufman protested that he manufactured only one item because he had been unable to buy it as cheaply as he could make a superior one himself.
At this juncture the courtroom was jolted by the appearance of two surprise witnesses, Walter E. Scott, a relief inspector, and Duchaine Larocque, a truck driver. They testified, grinning, that at the defense’s request they had visited many drug stores in Ottawa and East-
view. In none of these. English or French, had there been any questions asked when they inquired for “something to keep my girl from getting pregnant." Their loot, spread out on the crowded exhibit table, included more than twenty-three devices under many brands.
One telling point, besides this proof that Miss Palmer was being prosecuted for something which druggists did openly (and for which Mr. Mercier subsequently declined to prosecute them) was the price of the articles: in every case the druggists charged far more than Kaufman did. One
item he sold for sixty cents was variously priced at a dollar. $1.50 and $3.50. Kaufman's statement that he lost thousands each year did not seem nearly so hard to believe now.
During the next few days the court was to hear evidence from many authorities, including a Salvation Army officer who said he had “often wished for some (similar) advice to give women;” a Presbyterian minister who countered the crown’s claim that Miss Palmer was wrong in speaking to French women in English, with the statement that they
used no interpreters in his Toronto clinic either, because nurses speak “the universal language of kindness;” a statistician who showed the direct relation between proper spacing of children and lowered infant mortality; a Jewish rabbi who said the defendant’s work fitted exactly with Hebrew concepts that a wife may use contraceptives, but not a husband; a labor leader who said it was the poor
who suffer most from lack of birthcontrol information.
The most interesting witness was undoubtedly the erudite Reverend Dr. Claris E. Silcox, of the United Church, general secretary of the Social Service Council of Canada. Questioned for thirteen hours on many aspects of birth control, he spoke, in part, of the Lord’s wrath at Onan for casting his seed upon
the ground. This was not for reasons usually supposed, however, but because Onan had broken his tribal law (Deuteronomy 25:5) which said that "If brethren dwell together, and one of them die, and have no child . . . her husband’s brother shall go in unto (the wife of the dead) . . . and perform the duty of an husband's brother unto her,”
Taunted by the crown with the charge that contraceptives were unnatural and indecent. Dr. Silcox was unruffled. All progress came about by adaptation of natural objects to unnatural ends, he said. Clothes, for example, flying machines, cooked food. And many things once considered indecent—such as skimpy bathing suits: who called them indecent nowadays?
On each question Dr. Silcox quoted from so many authorities, citing page and paragraph each time, that the magistrate finally instructed him to refrain from giving references. They would take his word for any statements from now on— to save time, which was stretching on and on.
At the close of this display of erudition, Dr. Silcox returned to the present day. Miss Palmer’s work, in his view, was "an amplification of the spirit of Christ himself. He went out to seek lost sheep; He didn't wait for them to come to Him." Christ’s teaching had not been popular with the religious and state authorities of His day either, but would anyone now say it was not in the public good for that reason?
The M-O went farther
Three other notables also made statements damaging to the crown's case. Dr. William A. Scott, professor of obstetrics and gynaecology at the University of Toronto, testified that the information and methods used in the Parents’ Information Bureau pamphlet were "the most efficient and least harmful of any . . .” There was no possibility, as the crown alleged, that they could cause cancer or sterility, under normal use.
Dr. W. L. Hutton, medical officer for Brantford, who came to Eastview at his city council’s request, went even further: the Kaufman pamphlet was the only sound information ordinary people could get.
Dr. Brock Chisholm, Toronto psychiatrist who was later to become head of the World Health Organization and to shock Canadian parents with the advice that they should stop telling their children there is a Santa Claus, was another surprise witness. He said that the IQ tests he conducted showed the need for birth control because they indicated that the least intelligent people unfortunately bred the quickest. An irrepressible witness, Dr. Chisholm was most amazed, however, that Kaufman could provide contraceptive diaphragms for only fifty cents. “Many doctors 1 know charge ten dollars,” he said.
On November 6 the defense closed its case. They had called thirty-five witnesses, heard 327,000 words of testimony and had caused some second thoughts on the part of the crown attorney. Mr. Mercier now demanded the right to call as many experts as he needed for rebuttal. He was informed by a sympathetic judge that he should have thought of this before. As it was, he had till December 8 to find the four more experts allowed him under law.
A month later, crown witness Leon Gerin-Lajoie. professor of gynaecology at the University of Montreal, testified that in the hands of the average woman any of the physical devices advised in the Bureau’s pamphlet was dangerous. On cross-examination, however, Gerin-Lajoie
admitted that he knew very little about contraceptives in detail, and taught no course in such things to his own medical students. Yet, he asserted, he would always advise women to go to their doctors for advice on such matters.
A second Ottawa doctor. Ernest Couture, deposed that he too knew few details about contraceptives. After hours of questioning, he conceded that a woman should have the best medical advice, not the best religious medical advice.
On December 1 1, 1936. Reverend
Canon A. H. Whalley, of Ottawa, a Church of England minister, was called as a surprise crown witness. Canon Whalley said he was “aghast” at contraceptives as “a flagrant contravention” of the marriage contract. The last witness to testify, the prelate said that even if his church favored birth control he would have to search his own soul, and resign his ministry if he didn’t agree.
With the end of the crown’s rebuttal attempt, and nothing remaining but the summing up, Magistrate Clayton postponed the final pleas till February, 1937.
On February 8, the defense started a three-day filibuster for acquittal. Taking turns in ihe marathon, lawyers Wcgenast and Beament cited fifteen reasons why birth control was in the public good. Mr. Mercier, they then conceded, had put up a good fight, but since he really had nothing to say the chief feature of the crown’s case was its "incoherence.” The whole case against Miss Palmer, they said, made as much sense as the town councilor in Orillia who advocated running another Kaufman nurse out of town because her birth-control advice might injure sales of locally manufactured baby carriages. The crown’s real motive, they alleged, was to secure the court’s sanction for the Church’s views on birth control.
The crown took one day to state its case. Denying the defense’s charges, it turned to the records to prove that Miss Palmer had coaxed some women to sign, and had spoken in English to others who understood only French. These were excesses, said Mr. Mercier. As for birth control itself, hadn’t Canada progressed by big families, about which the country once used to boast?
“We need more people in Canada, not less,” he cried. “We are being asked to commit race suicide!”
The magistrate took one month to reach his decision. Addressing an overflow court on St. Patrick’s Day, he read from a prepared document, every phrase of which was a potential headline.
It was well known, he said, that the rich and the middle class obtained means of birth control if they wanted them. The one group from which such information was withheld was the poor. This was why they were a glut on the competitive labor market and a burden on the taxpayer. It was their offspring, by and large, who crowded the juvenile courts.
“What argument is there,” he asked “. . . that will deny these people the means of properly spacing children . . . so that mothers and children can enjoy good health . . . above the level of mere starvation existence?”
Turning to the crown argument that since seventy-one percent of Eastview was Roman Catholic it was not in the public good to go against their beliefs, Magistrate Clayton said he could see no harm in giving them information, as Miss Palmer had done. What they did with it was their own business. He had reached the conclusion that though there was excess in one or two cases, compared to the good in other cases it amounted to no excess at all.
“For the reasons stated above,” declared Magistrate Clayton, “I hold that
Miss Palmer has proved that the public good was served . . . and that there was no excess . . . The charge will therefore be dismissed.”
Editorial comment on the decision varied from the cry of “Scandal!” in Montreal’s L’Unité and the accusation by the London (England) Catholic Record that the defense had resorted to “Herrings and Tricks,” to the Winnipeg Tribune’s enthusiastic endorsation of the outcome. The Star-Phoenix, of Saskatoon, felt that Magistrate Clayton had rendered a great public service, because if information were to be denied to the poor, “society must pay the price.”
To the astonishment of everybody the crown protested the acquittal to the Ontario Court of Appeals. This court dismissed the appeal on June 2, 1937, without even calling upon defense lawyers for argument.
The war with its consequent prosperity, and the post-bellum boom, have dimmed the memory of days when fortyfive dollars a month was a living wage and having to go “on relief” was no disgrace to a family. The competitive labor market is no longer glutted. Family allowances now attempt to provide the essentials of life for children whether their parents practise birth control or not.
She was the focal point
Although twenty years have passed, the protagonists in this memorable case arc almost exactly as they were then. Chief Richard Mannion still heads the police force in Eastview. which, though its population has jumped to 23,000, is still relatively poorer than Ottawa and much poorer than adjacent Rockcliffe Park. Raoul Mercier still presides as crown attorney in the County of Carleton, where his opponent, A. W. Beament, still practises law.
Miss Palmer, focal point of the argument, whose non-appearance on the witness stand undoubtedly deprived the crown of an opportunity for telling rhetoric, still lives in Ottawa. Married the year after the trial to the proprietor of the book shop listed as her Ottawa address, she has one child, a daughter of seventeen. The book shop was razed some years ago to make way for a business block. The former Miss Palmer now acts as a floral designer for a FrenchCanadian florist’s shop. .She now has no difficulty making herself understood in French.
A. R. Kaufman still operates the Parents’ Information Bureau from a wing of his factory at 410 King Street West in Kitchener. Far from decreasing with prosperity, his work has increased. Over three thousand doctors now co-operate with the Bureau, and more than two hundred thousand requests for birth-control materials had been filled up to the end of 1956. “I hope that day is not far distant when the public will insist that family-planning information be made available to all,” Kaufman said recently. More than ninety-five percent of initial supplies are still given away free, to doctor-recommended mothers.
The famous case of Rex vs. Palmer had no effect on the provisions of the law. It is still an offence to have contraceptives for sale in Canada without “lawful justification.” But the Palmer case did have a bearing on the way the law is applied. It is unheard of now for anybody to be charged with advertising or selling contraceptives, because authorities know that a defendant could probably claim he was serving the public good. Exactly the same as a Welsh-born social worker did. in a small Ontario town called Eastview, two decades ago. ★