THE HOLY WAR TO DESTROY BILL 99...
When Canadians rose up in March against the secret police state That Could Happen Here, what were we fighting? A fake backed Here is the factual but fantastic history of the Ontario law that “trampled liberty underfoot”
BILL 99, you may remember, was the infamous Act that not long ago confronted us with all the tyrannies of the Star Chamber and the subtler terrors of the modern police state. "Are we in the Canada of 1964 — or in the Germany of 1934?” the Toronto Globe and Mail declaimed on March 20, 1964. That week the press, the Parliament, and the legal profession waged a holy war, in the sacred name of individual liberties, to destroy Bill 99 of the Ontario legislature before Bill 99 destroyed freedom under democracy.
Beyond almost any political crisis in Canadian history the attack on Bill 99 aroused men and women who ordinarily ignore political reports. Anger and fear come naturally to anyone who reads a sentence as bizarre as this one from the March 20 Toronto Star. "|Bill 99] sweeps away at one blow almost every safeguard erected by common law and statute to protect the liberties of the individual, from the habeas corpus to the right to due process of law contained in the Canadian Bill of Rights.” The front pages during those days had a nightmarish quality: mi i tout D JAM. YOU WITHOUT TRIAL. WORLD .JUDGES' BODY TO SEE I’OI.ICE BILL.
We are all more or less conditioned to a kind ot secular faith in The Law and the Institutions ol Parliament; we all believe, perhaps naively, that the law is somehow above human error, and that parliamentary democracy is superior to, and will protect us from, the mistakes or even the evil intentions of any man. Bill 99 made faith in the law, not to mention Parliament, look very naïve indeed.
THIS I’ROEOUNDLY unnerving version of Bill 99, 1 have since learned, was in some ways a fake, and the holy war to destroy it was in one important respect a fraud.
• Bill 99 was written by the law officers ol the Crown to give the Ontario Police Commission the same powers that tribunals appointed under the Public Inquiries Act or the Ontario Securities Act have had for many years. One provision in Bill 99, the right to exercise these powers at private as well as public hearings, w'ent beyond the older Acts. But several provisions of the Securities Act go beyond Bill 99.
• The version of Bill 99 that caused the holy war to save democracy w'as an imaginary Act that sprang from the mind of a pudgy, rumpled politician named Frederick Cass as he sweated under the lights strung by two television crews at a fantastic press conference on March 19.
• The crusade against the infamous Cass version of Bill 99 was led by men learned, as they themselves say. in the law. But for seven days in March any man who damned Bill 99 was a hero. Any man who defended Bill 99 was a Fascist. It is easy to understand the reluctance of any eminent lawyer, or any legislator, or even any editorial writer to stand up and say that Bill 99 was damnable only if the earlier Acts that confer the same powers on appointed tribunals are damnable. But their neglect to say so amounted to fraud. There may very well be a battle to fight against the inclination of governments to give the full powers of a judge in court to an investigator appointed by an attorney general and responsible only to an attorney general. But if there is, the fight in Ontario is only one third won. and in the other provinces it has not begun.
SEVERAL WEEKS AGO, in order to arrive at some understanding in my own mind ot the issues raised by Bill 99, I began trying to reconstruct the events of that week in March. It turned out that the recorded history ol Bill 99—or. more properly, of the controversial clauses ol Bill 99.
Ex-Attorney General Gass describing Bill 99 on television: "It's a drastic, terrible law"
AND MAKE CANADA SAFE FOR DEMOCRACY
Premier Robarts talking to a protest rally: “I will not tolerate any violation of f reedom”
which appeared in Section 14—goes back to November 14. 1963. That is the date of a memorandum from Judge Bruce Macdonald, then chairman of the Ontario Police Commission. to William Common, the deputy attorney general. Macdonald was just winding up the opening phase of a continuing investigation of organized crime in the province. The commissioners had been holding their hearings in private. Macdonald was concerned about the precise limits of his authority to question witnesses at private hearings.
The Police Commission had been established early in 1962 by an Act that gave the commissioners “all the powers and authority that may be conferred" by the Public Inquiries Act. This statute gives a commissioner appointed under its terms "the same power to enforce the attendance of witnesses and to compel them to give evidence and produce documents and things as is vested in any court in civil cases."
Any court: the question bothering Mac-
donald. then, was his right to hold hearings in camera, which a court can do only in special circumstances. His memorandum asked the deputy attorney general to advise him. Several times during the next few weeks the two men discussed the memorandum by telephone. Common agreed that there was no clear definition of the Police Commission’s powers at private hearings, and that this called for new legislation.
Both men took it for granted that private hearings would be essential if the Police Commission was to get on with its job. A previous report on organized crime in Ontario, the result of an investigation during 1962 by Justice Wilfred Roach, had concluded that local criminals were not organized “to any alarming extent" except, perhaps, in gambling. Roach's report was widely described as a whitewash. But to Macdonald's mind a fairer appraisal is that Roach found out as much about criminal activity as anyone could by
holding hearings in public. When Vito Agueci, a Toronto narcotics trafficker, suggested to Mafia leaders in Buffalo that he might talk to police, he was tortured and killed. Agueci's misfortune seems to confirm the experience of American crime commissions; criminals called to testify in public have reason for saying nothing. Although they may be offered immunity from prosecution for their own crimes, their associates are apt to dispose of them if the next day’s newspapers carry testimony that might damage the criminal conspiracy. A lesser but still persuasive argument for private hearings is the damage that is sometimes done during public hearings to the reputations of men who are described in damaging terms. Justice Roach was himself abused by criminals who appeared before him, and these slanders appeared at length in the newspapers. Several other men who were not called by Roach, but whose names appeared in the testimony he heard, were abused in the same way.
I can speak at first hand for yet another variety of witness who would prefer to be heard in private. In August of 1963 Judge Macdonald telephoned me to ask that 1 arrange for Alan Phillips, the author of a series of articles on the Mafia in Canada that was then running in Maclean’s, to appear before the Police Commission. I told him I would, provided the hearing was held in private — there have been a few cases of retaliation against journalists by the Mafia. Macdonald said that all the commission's hearings were being held in private. We set a date for Phillips to appear. Later, I called Macdonald back and told him our lawyer would appear with Phillips; Macdonald made no objection. We wanted our lawyer there because a journalist has no particular right in law to refuse a court the names of his sources. Phillips had an unbreakable commitment to respect the confidence of more than one source of information about the Mafia, but Macdonald, as we have seen, had all the powers of any court. By refusing to disclose these names, Phillips could have placed himself in contempt. The penalty available to the court in a case like this is eight days in jail; if Phillips had still refused to answer Macdonald at the end of the first eight days, he could have been sent back to jail for another eight days, and another, indefinitely. (The court holds this power to punish for contempt under Section 457 of the Criminal Code, a little-known but interesting passage of the law.) As it turned out. Phillips had no particular need of legal counsel. The hearing was friendly on both sides.
Macdonald resigned from the Police Commission at the beginning of 1964, but stayed on for several weeks to finish writing the commission's preliminary report on organized crime. By the middle of January he had completed the section that set out the commission’s recommendations, and he sent a copy to Deputy Attorney General Common. This became the working paper for the amendment to the Police Act that was eventually numbered Bill 99.
Not long after Common received the working paper, it came up for consideration at a full departmental meeting presided over by the attorney general. Twelve of his advisers were there, including Common and all the senior legal officers of the Crown. The Act, as they finally drafted it, dealt in the main with the administration and jurisdiction of the Ontario Provincial Police. But the section that gave the most trouble in the early stages, as it did so spectacularly later on. was the one that appeared in the Bill as Section 14. This, of course, was the section that defined the commissioners powers at private hearings. Cass,
particularly, insisted on language that would make it clear the Bill did not interfere with the legal rights of witnesses called in to testify in private. “He was worried." one of the men who was present at the first meeting on Bill 99 and two subsequent ones said a few' weeks ago. “He didn't really like extending these powers to private hearings, but he couldn't see how to avoid it."
Seeking reassurance, Cass checked with the legal department of the Ontario Securities Commission. Under a 1960 Act the Securities Commission has powers almost identical to those the legal officers were writing into Bill 99. with some others — the Securities Act says, for one thing, that "no person shall refuse to answer any question upon the grounds of privilege" except a lawyer about his client's affairs. (Like the more general clause in Bill 99 dealing with contempt for refusing to answer questions, this provision would appear to violate a witness’s right to say nothing that might incriminate him. Much of the anger against Bill 99, in fact, was directed against this assumed interference with individual liberties. The truth is that Canadian law recognizes no such right, although the fifth amendment, which does, is of course a conspicuous feature of American law. In Canada a witness who objects to answering on this ground must go ahead and answer or be held in contempt; his objection merely makes his answer inadmissable as evidence against him in court.) The lawyers at the Securities Commission told Cass that there had not been any serious complaints against the powers of the commission.
By the middle of February Cass and his advisers believed they had set out the terms of a workable Bill. A legal draughtsman — "a young lawyer who's handy with the language" — was assigned to translate their understanding into legal English. At the beginning of March there was another full departmental meeting to reviewthe written Bill. Cass asked once again whether there was any chance that Section 14 might interfere with civil liberties. He was assured that there wasn't a man in the room who could see how Section 14 might interfere in the slightest with any witness’s legal rights. Moreover, one of his advisers pointed out, to spell out one or more such rights — say, the right to counsel — in this Bill would immediately call into question the same right under seventy other Ontario statutes, in which the right to counsel is not written out but is nonetheless absolute. The right to counsel and the right to appeal from conviction for contempt are both part of what jurists call due process of law. Due process, in common law countries, is usually thought to outweigh the provisions of any local statute. An
Cass walking the last mile: “Not only Bill 99 must go. Cass must go too,” enemies said
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Hew the Tories’ chief takeover artist and master buck-passer talked his way out of politics
Ontario police commissioner who tried to use any such clause as Section 14 to justify denying a witness the right to counsel, or the right to appeal a sentence for contempt, would almost certainly overreach himself. An appeil court could be expected to quash the action and the commissioner might well find himself out of a job. (A complicated version of this issue came up during the Roach inquiry. The appeal court quickly ruled that the witnesses, a pair of gamblers, had the usual right to counsel.)
Cass appeared to understand these points as they were made; at the end of the review he said he was satisfied wiih his new Bill. A few days later one of the sitting members of the Police Commission showed a copy of the legislation to Judge Macdonald. “I looked at it and said, ‘Holy cow, they're really ready to go on this.' ” Macdonald said later. “Cass had told me, ‘Whatever you recommend, we'll carry it out.’ But. frankly, I was surprised that they were ready to go as strong as they did.”
EARLY IN MARCH Cass three times took a copy of Bill 99 to cabinet meetings, but pressure of business left no time to discuss it. At eight on the morning of Thursday, March 19, Bill 99 began to emerge from the back rooms into the limelight. Cass was on hand to see bound copies of the Police Commission report delivered to a third-floor committee room. William Kinmond. the premier’s press assistant. ushered in the regular members of the Queen’s Park press gallery, along with several reporters on special assignment for this important story. Two provincial police officers locked the door and took up positions outside. At nine-thirty Cass, along with his deputy, Common, and a few other legal officers from his department, reentered the room to answer questions. Cass began by telling the reporters that there had been bitter disagreement between him and Judge Macdonald during the months that led up to Macdonald’s resignation. This was the opening move in a memorable display of public buck passing. Cass went on to criticize several points in Macdonald’s report, particularly passages that involved people then before the courts, or that connected people with criminal activities when there was no legal proof of their involvement in crime. “As a lawyer,” Cass said, “Macdonald should knowbetter.” He reserved his most telling invective for the first of Macdonald's sixteen recommendations, which suggested that police forces should he divorced from political control. “Macdonald’s ideas,” he said, "could lead Ontario into a police state.”
Cass then left the press conference; be had to hurry to make a ten o'clock cabinet meeting. As well as Bill 99. be was carrying ten other new pieces of legislation that he intended to table for first reading in the House
that afternoon. He was one of fifteen ministers at the cabinet meeting. Six of them, including Premier Robarts. are lawyers. Cass ran through his legislation for them, reading the Bills aloud. He had no copies to distribute to his colleagues, but this is usual for cabinet consideration of new Bills at this stage. Cass said that Section 14 of Bill 99 was routine, and the other ministers asked him no questions about the section.
A few minutes after he left the cabinet meeting at eleven-thirty Cass sent a note in to Kinmond, who w'as still locked in the committee room with the newspapermen going over the crime report. The note asked Kinmond to see Cass as soon as he was free. Kinmond caught up with Cass during the lunch break, and Cass told him to set up a press conference for three-thirty. He asked Kinmond to tell the reporters that he would deal with the Bills he intended to introduce that afternoon, particularly the ones that concerned consumer credit. Kinmond made twenty copies of each of the eleven Bills.
Cass got up from lunch and w'ent to a Conservative caucus called for onethirty, half an hour before the House was to meet. Ten of the seventy-one Tory members showed up. and Cass rushed his eleven Bills past them in an effort to reach the House on time. He said nothing about Section 14 of the Police Bill.
The house met at two. The second speaker was Cass, who moved first reading of his eleven Bills. First reading does not mean that the minister or anybody else actually reads the Bill. Cass, in the usual manner, had only three copies of each Bill with him. He rose from his seat beside the premier, planted his feet on the deep crimson carpet that gives the House its august air, and said a few words about each Bill in turn. In the case of Bill 99, which he dealt with first, he said that it w'as intended to “define more particularly the powers of the Ontario Police Commission, and to give to it certain additional powers, particularly with respect to determining the adequacy of policing and the designation of areas under the Police Act where municipalities are required to have their own police forces.” He added that it would help clear up some uncertainties about policemen's contracts and police officers’ commissions. First reading of all eleven Bills, in this brisk manner, took no more than a quarter of an hour. When Cass was finished with the last of them (a new law to control used car dealers and salesmen) an attendant ran one copy of each Bill up to the press gallery and handed them to the gallery’s president. Peter Bruton, of the Toronto Telegram. Bruton passed them around. Star and Telegram men singled out Section 14 of Bill 99 and filed stories to their downtown news desks. The Telegram judged the story to be so routine that it never did appear in the paper. The Star thought more highly of the story; the makeup editor gave it eight inches, from which the Star's readers could learn that Cass proposed to give the Police Commission power to call witnesses in private and impose penalties on those who refused to answer questions. “This was a problem that plagued the commission in last
year's hearings.” the Star added, accurately. This was the only comment anyone made on Bill 99 until Frederick Cass threw his high, hard one later in the day.
Cass, meanwhile, was presenting the House with the Police Commission’s report on organized crime. A copy of the report was now in front of each member. Cass told the House that the report had not been censored or altered in any way. He added that he was concerned, though, about the report’s disclosure of “sources of information, and the names of individuals.” It was his hope, he said, that “the responsible persons who have copies of this forthright report will recognize that harm and embarrassment might be caused by the injudicious publication of the whole or any part of the report.” Donald MacDonald. the Ontario leader of the NDP. suggested that since the report would be available to anybody who wanted to read it there seined to be a lack of sense in Cass's plea for selfcensorship. Cass told MacDonald that he’d better read the report. Then he left the House for his three-thirty press conference.
He detoured through his office to shave for the television cameras and bustled in to the press room at ten to four, a sallow, fleshy man in a dun gabardine suit. Cass retains some of the physical and vocal characteristics he acquired as a major of the .Stormont, Dundas and Glengarry Highlanders during the Second World War. On this day he was well into his tenth year as MPP for Grenville-Dundas, and was known as the takeover man of the Tory government. When former ministers in. successively, the highways department, the department of municipal affairs and. finally, the attorney general’s department had embarrassed the government. Cass had come in to clean up. He had always been short with reporters, but since becoming attorney general had been particularly impatient with interviewers who seemed to question his authority in matters of law. He had been, as the reporters knew, a practising lawyer since 1936 and for several years an associate magistrate. The press gallery did not love him; nor did most of his fellow members. (“That goddamn little parade-ground sergeant,” a backbench member of his own party said when C'ass's name came up a few weeks later.)
At about the time C'ass came into the press room Rendall Dick received his third telephone call from businesspage reporters downtown, who had heard that the attorney general was holding a press conference on some consumer credit Bills. They called Dick because he was the senior legal officer for civil matters. Dick hadn’t heard about the press conference himself, and after the third curious reporter had called he thought he'd look in to see what it was all about. He reached the press room at about four-thirty and stood against the back wall, behind, as he later described it, “a jungle of cables, film cans, tripods, wires, shoulders, cigarette smoke and confusion.” Cass and the reporters had just begun to talk about Bill 99. Most of the reporters were interested in the Police Bill mainly as a footnote to the report on organized crime they
had been reading earlier in the day. When they came to Section 14 the Star's reporter, Hyman Solomon, asked the routine question about sections of this kind: will these new powers interfere with civil liberties?
“Yes,” Cass said. “That’s what bothers me.”
BY THE TIME Cass had completed this sentence Bill 99 had ceased to exist as it was drawn up by the legal officers of the attorney general's department. From now on the press, the Parliament and the public were dealing with a Bill that was written in Frederick Cass’s mind as he went along, and which could say anything.
“What?” Solomon shouted. The reporters at the back of the room shoved the men in the front row to within a few inches of the attorney general's face.
“As a lawyer,” Cass said, “I’m not easy in my mind about this arrangement, but I feel that for the public good it's necessary to curtail the established liberties of certain elements in our society. I hope there will be no interference with the rights of lawabiding citizens. But the rights of a few individuals will have to be overridden for the good of all.” (This quotation and the others attributed to Cass here are taken from newspaper accounts published the next day, or from the sound tracks of television film.)
During the next hour Cass specified the rights that would have to be overridden. He did not press the information on the reporters but, according to Peter Bruton, he did reply “frankly and openly to every question.” His frankness has probably never been matched by a Canadian minister speaking for the record. At one point, justifying — as he thought — his comments on Bill 99, Cass said: “There should be the power to make these people (hoodlums) lay their cards on the table — and if they don’t, whack them in the cooler.” Cass has somewhere picked up the idea that a wide smile on the face of a man under pressure gives the impression that he is relaxed. A wide smile now became his fixed expression. He began, understandably, to sweat. This is what he told the reporters, according to the paraphrase published the next day by the inimitable Toronto Telegranv.
YOU could be summoned to a “Star Chamber” hearing by the Police Commission and forced to produce any document it might want to see.
YOU could be forbidden to disclose anything that was said or done in the hearing.
YOU could be sent to jail—without further hearing if you refused to be sworn, to answer questions or produce documents, or to sign your deposition —for a maximum of eight days on each charge.
IF YOU were brought back before the commission, the entire process could be repeated—ad infinitum.
AND YOU couldn't have a lawyer represent you in the process.
Just how Cass himself phrased these indictments of his own Bill will never be known. Every reporter who was there has, for unfathomable reasons, thrown away his notes. The CBC, which made a complete radio tape of
the conference, cut it into fragments the same night and a few days later scrubbed most of the fragments. The television crews, faithful to the convention that their newscasters are somehow part of the news, filmed only those snatches of dialogue that involved Cass and their own interviewers. Memories of what really happened V a r y, sometimes violently. The most interesting dispute, and the niost important, turns on an exchange between Cass and Peter Reilly, the C'BC's reporter at Queen's Park. This is the dialogue, taken from the sound track of film shot by the CBC :
Reilly: This amendment will provide the Police Commission with the power to have a man [appear) without counsel. Is this not at direct variance w ith the Bill of Rights, which provides for due process of law before somebody can be locked up in jail?
Cass: I Bill 99) is due process of law now'. By enacting it. it becomes due process of law.
Reilly: Is not the right to counsel part of the due process of law? Cass: Not necessarily, no.
As Rendait Dick remembers this exchange, he was so startled by Cass's peculiar interpretation of the law that ho broke in. even though there is an unwritten law that civil servants keep their mouths shut when their ministers are talking. Dick says he told Cass and Reilly there was a misunderstanding — that Bill 99 did not and could not interfere with the right to counsel. Afterward. Dick and Reilly talked privately. Dick says he charged Reilly with deliberately ignoring him when he tried to correct Cass: that is to say. he charged Reilly with distorting the news. “What do you mean?’’ Reilly replied. “Cass didn't deny it. did he?" Dick says he turned away from his conversation with Reilly in frustration, and put the case to another reporter. "What the attorney general says is news," the reporter told him. "What you say isn't."
Reilly's account disagrees with Dick's in almost every detail. Reilly says that Dick's interjection, if he made one. must have been inaudible — the only time Dick spoke during the Cass interview w'as in answer to a question from Cass. Dick told Cass he was right; the Bill did deny counsel to some witnesses. It is true. Reilly says, that he and Dick talked privately: but Dick merely amplified Cass's version of Bill 99.
The other members of the press gallery remember the incident pretty well the way Reilly describes it. Peter Bruton, the gallery’s president, says Dick even leafed through a copy of Bill 99, and was astonished to find that it said nothing at all about denying counsel to anybody. "He thought they'd put it in," Bruton says. Reilly and several other members of the CBC's news department later spent the best part of a day searching their library for film and tapes of the Cass conference, and playing back to me what they found. Dick's voice was nowhere to be heard. His moment in history is gone, and so is the only evidence that might have verified his account of what he said while it lasted.
There is no dispute at all about the most striking statement Cass made that day. the one that was later re-
peated over and over again to damn him and destroy his Bill. He was seen to make the statement again that night, on the CBC telecast of the new-s. "It's drastic and it's dangerous and it's new' and it's terrible legislation in an English common law country," Cass said. Why, then. Reilly asked him, had he framed it and brought it into the Hous. ? With the polish of a long day’s practise. Cass passed the buck. "Don't ask me," he said. "Ask Judge Macdonald."
THE HOUSE adjourned at six o'clock, a few minutes before the Cass press conference broke up. A dozen reporters raced down the hall to catch members for comment on what seemed to them the utterly fantastic remarks made by the attorney general about Bill 99.
Fraser Kelly, a Telegram reporter, came into the House by the rear door and caught Allan Lawrence, a young but influential Tory member, still at his seat a few steps away. Kelly
broke the news to Lawrence. “I didn't believe him until he showed me the Bill and some of the quotes from Cass," Lawrence said later. The next day's Telegram reported that Lawrence had told Kelly: "I'm aghast.” The same scene was played scores of times all over the floor of the House. Some Tory members reserved judgement; the opposition members reached for adjectives like "perfidious" and "horrible." Later, in the press gallery, the reporters were in the
faintly ugly high spirits that sometimes arise when a powerful hut arrogant man has a hand in h:s own destruction. “We were in a pretty hilarious mood for a while,” one of them said later. “I’m not proud of it.” The gallery emptied slowly as the members went home to change for the evening. John Robarts had long before invited them to a press party at the Royal York Hotel. (The Star, which was quarreling with Robarts, boycotted the party.)
Robarts quite evidently failed to enjoy himself. When the reporters had reached him late that afternoon with the news about Cass and Bill 99, he had been surprised but calm. It was government legislation, he said; naturally he would support it. At the party that night, where Robarts was one of a dozen cabinet ministers and government officials mingling with about 150 journalists and their wives, the totalitarian iniquities of Bill 99 were impossible to evade in conversation. Robarts left early for his suite a mile uptown in the Westbury Hotel. Half an hour later copies of the bulldog edition of the (7lobe and Mad reached the Royal York. The Globe's headline, in three unusually bold decks, said: QUEEN’S PARK PI ANS ‘DRASTIC, DANGEROUS’ NEW POLICE POWERS. A page - one editorial, slugged Hill of Wrongs, began by saying that the government had “taken an axe to the fundamental liberties of this province’s people,” and warmed up from there.
A newspaperman passed a copy of the paper to Malcolm McIntyre, the secretary to the cabinet. “No, no, no. they’re all wrong,” McIntyre said. “It’s the very reverse of what they say.” McIntyre was making the same mistake that Robarts made for the next four days: they and several other Tories were unable to distinguish between the Bill that Cass tabled in the House at two-thirty and the Bill he described to reporters two hours later. When the premier’s press assistant, Kinmond, saw the Globe at the Royal York party he telephoned Robarts at the Westbury. Robarts told Kinmond he’d sleep on it, but asked him to be in the office by eight-fifteen the next morning.
Three miles uptown from the Royal York, the Hallelujah Chorus was moving into the second stage of a private dinner party at the Benvenuto Place apartment of one of their number. Darcy McKeough. The Hallelujah Chorus is one of the press gallery’s names for ten of the tw'entytwo Tories who were forced by the heavy government majority—seventyseven of I OS members — to sit on the opposite side of the House. They are the most recently elected Tory members, and tend to be the youngest. McKeough was leaving the next day for Florida, and a quorum of the Chorus was toasting his departure. Allan Lawrence, who sits on the government side but shares the youth and many of the attitudes common to the boys in the Chorus, arrived late carrying a copy of the Globe and Mail. The dinner party became an informal caucus. By the time the meeting broke up it was apparent that any plan Robarts might devise to manoeuvre a safe passage for Bill 99 would run into trouble not only from the
opposition, but from most of the Hallelujah ( horns as well.
Robarts and Kinmond met in the premier’s office at eight-fifteen Friday morning to draft a statement to the press. The substance of what Robarts told the newspapermen was that he, personally, would not tolerate any legislation that jeopardized the rights of any individual. The premier then sent word to the Speaker of the House that he intended to make a statement before the orders of the day. The House met at ten-thirty and Robarts was beaten to the punch at the opening bell. Before the premier had shuffled his papers Farquhar Oliver, the grizzled leader of the Liberal Opposition, was on his feet demanding that the government withdraw Bill 99 or call an immediate election. The Speaker told Oliver to sit down: by the rules of the House the premier had the floor. Some of the Tory members started shouting at Oliver. He shouted back, with some help from the opposition benches. For a few minutes it was impossible to hear the Speaker hammering on his desk. The sergeant-at-arms moved over and asked Oliver to obey the Speaker. Reluctantly, Oliver sat down. Robarts made much the same statement he had made to the newspapers earlier. The House settled down to a long list of routine Bills. Frederick Cass came in quietly, talked to Robarts for a while in an undertone, and went out. It was his last appearance in the legislature until May 7. The final speaker of the day was Andrew' Thompson, a young Liberal who made an impassioned attack on Cass and Bill 99 but managed to score a political point against the NDP in the same speech. Thompson’s reference to “the sanctity of the people” was so popular in the crowded galleries that the Speaker threatened to clear the visitors from the House.
Robarts left the House with twenty men on his heels. Allan Lawrence, who broke into a run, caught him first. Lawrence said he had heard a press gallery rumor that the government intended to jam Bill 99 through its second reading before the Bill was even printed, and asked if this was true. Robarts said it wasn’t. Lawrence said he was glad to hear it, because if Bill 99 did come back for second reading he and several other government members would vote against it. By this time four or five more Tory backbenchers had caught up with the two men, and they gave Robarts the same message. This was the first of several exchanges that were later magnified by at least one newspaper story into “a backbench revolt.”
Half a dozen reporters broke in on the group w'hile they were talking. The premier’s office had earlier “leaked” word to the Telegram that Cass would probably be forced to resign almost immediately. The Telegram w'as carrying the story on page one. Was it true? Robarts appeared to be upset by the question. “It’s ridiculous,” he said. (The Telegram's competitors carried that story on page one.) Kinmond then grabbed the premier's arm and persuaded him to talk to sixty students from the Ontario College of Art. who were milling
around on the steps of Queen's Park carrying signs that read NO POLICE STATE, and chanting "WE WANT ROBARTS.” The premier joined them on the steps and repeated what he had said in the House. “Thatta boy,” one of the youngsters shouted back.
Robarts spent the rest of the day ducking reporters and consulting civil servants. The reporters ran down dozens of rumors and one or two fresh facts. The Telegram, for one, learned that three ministers who told reporters they had missed the Thursday cabinet meeting were lying, presumably because they feared to admit that they were present when Cass described Bill 99. By diligent telephoning, other reporters learned that politicians everywhere in Canada were appalled by Bill 99. The exception was Premier Ernest Manning of Alberta, who told the Star that when there is danger of syndicated crime getting the upper hand, “then I think it’s comparable to times of war, when the emergency justifies setting aside some rights in order to fight the enemy.”
ROBARTS left Toronto for the weekend, but he was back in his office on Sunday afternoon. Not long after he arrived, a Globe reporter telephoned his press assistant, Kinmond. who called back a few minutes later with a statement from Robarts about the future of Bill 99: “I have had an opportunity to examine in minute detail the offensive sections of the Bill to amend the Police Act. It is my opinion that these sections will have to be deleted and they are being redrawn.” This was the headline story in the first edition of Monday’s Globe. Late Sunday Kinmond telephoned the Globe, and the other Toronto newspapers, to say that he was sorry but the Robarts statement had been unauthorized. An accurate version of the statement should read that the Bill would be “clarified.” The Globe revised its story for later editions.
Between the two statements Robarts had been shut up in his office with the deputy attorney general, William Common, and most of the other senior legal officers of the department on the carpet in front of him. The session was a rough one, but the government lawyers convinced Robarts, as he later said, that “at the time this legislation was drawn it was their opinion that it did not prohibit rights to habeas corpus, certiorari, and to other prerogative writs, did not interfere with the individual’s rights under Magna Carta and the Canadian Bill of Rights, nor did it deprive any person of the protection of . . . the Evidence Acts of Ontario and Canada.” Then he said, in an oblique reference to Frederick Cass’s contribution to Bill 99, “If these opinions had been expressed at the time the Bill was introduced the apprehension and disquiet which arose in people's minds before the Bill had actually been examined, would have been avoided.”
At nine on Monday morning Donald MacDonald, the NDP leader, walked into the Speaker's office with a motion to adjourn the House that day for debate on a matter of urgent public interest. The Speaker said he
would rule on the motion later. His answer reached MacDonald just before noon; there would be no adjournment. MacDonald sent back word that he intended, instead, to ask a question. Such questions must be submitted before noon: in the orderly conduct of the legislature’s affairs, they are asked on the floor just before the orders of the day. MacDonald's question — it called for Cass to explain his criticisms of Bill 99 — was never asked. By the time the House reached the orders of the day the question had become irrelevant.
At about the time MacDonald sent his question to the Speaker, the Liberals were telling a press conference that they would “filibuster to the end" unless Bill 99 was withdrawn completely. They added a rid^r: “In our view, Cass must go.” An hour later Cass and the other ministers were summoned to a special meeting in the cabinet chamber. Within five minutes Cass came out alone and marched stiffly down the long legislative hall to his office. He was flushed, but his features were set in the wide smile he had been wearing in public since Thursday afternoon. Fraser Kelly, a Telegram reporter, caught up u'ith him. Without turning his head Cass said, “1 have nothing to say. There's no use talking to me.” He went into his office, came out with a document, took it into the cabinet chamber, and left again empty-handed. Robarts now had Cass's letter of resignation, and there was only one scene left to play.
The House met at three. Several strained members of the local Tory brains trust, men who do not themselves hold seats in the legislature, w ere assembled in the distinguished visitors' space behind the speaker, ready to help call the shots even though the rules kept them out of the game. Robarts, an assured but quiet man with a monochromatic personality and pres-
ence — medium grey hair, medium grey mustache, medium grey suit — rosé in the manner of a man about to do an ordinary day's work. He moved that Bill 99 be taken out of the House and sent to the Legal Bills Committee for further study. The committee would hold its hearings in public, he said, “with no restrictions and no holds barred.” If Bill 99 was then found to violate individual liberties, the Bill would be changed.
The Liberal leader, Farquhar Oliver. denounced Bill 99 and moved an amendment that called for the entire Bill to be done away with. Oliver suggested that Robarts wanted to get Bill 99 into committee because he was afraid not only of the opposition members hut of Tory members as w'ell.
Between Oliver’s speech and the six o'clock recess a score of opposition members attacked Bill 99 and the Robarts motion: a few Conservatives joined the assault on Bill 99. but so far all of them supported their leader’s motion. The attacks tended to be passionate but repetitious. A few phrases stood out:
Mr. Braithwaite: I talk first of all about a telegram from a constituent of Etobicoke, where we value freedom.
Mr. MacDonald: This government has lost the confidence of the province. This government has lost the confidence of the House. As a matter of fact, this government has lost the confidence of the backbenchers.
Mr. Singer: This, in my opinion, is not a time for dramatics, or breast beating, or berating the government.
Mr. Singer, a few sentences later: We have not got a government. We have chaos here.
Mr. Trotter: We as a province have received in the press throughout the world a shame and a blot . . . The House resumed at eight, and for two hours the debate sounded much as it had in the afternoon. (Mr. Thompson: We are being asked to believe in a benign dictatorship.) At ten the government defeated the Liberal amendment, seventy to twentysix. Vernon Singer, a Liberal, leaned over to the leader of the NDP, Donald MacDonald, whose part in the entire debate was conspicuous for its reasoned, constructive tone. Singer asked in an undertone if MacDonald had a further amendment. “Why, yes,” MacDonald said. “I've got five." He put one of them into play immediately. moving that Robarts' motion be amended to send Bill 99 to the Legal Bills Committee, just as Robarts proposed, but with instructions to the committee to delete Section 14. This meant that the controversial section of Bill 99 would die. but not before the thirty-five members of the committee had a chance to shoot some more holes in it. As MacDonald read his amendment John Robarts. who believed he had won his fight when the Liberal amendment was defeated, was seen to sag in his seat. Three hours earlier, during the supper recess, two cabinet members had brought Robarts an amendment proposed by Allan Lawrence. The ministers told Robarts that most of the Hallelujah Chorus, and even some more experienced Tory backbenchers.
had agreed in the corridors that Lawrence's amendment was a “reasonable” way out. Robarts had rejected Lawrence's note — no prime minister at the head of a powerful majority takes a warm view of amendments to his own motions, particularly when they come from his own backbenchers. Now Robarts heard in the House, the same "reasonable" amendment from the NDP. He hung on the ropes for half an hour of further debate, his face, toward the end, almost the grey of his mustache, and his voice shaking. At ten-thirty the House carried the opposition amendment unanimously. Since the amendment did not move non-confidence, the vote left the government bitterly humiliated but technically undefeated. Robarts then read into the record the resignation of Frederick Cass. The House adjourned. As the members left the floor a reporter overheard one of the cabinet's inner circle, whose name is unimportant here, say to a Tory backbencher, "We have been badly advised, and badly led."
FOR TWO DAYS the thunder rolled from the presses in a last salute to the victory of justice over Bill 99. The Legal Bills Committee later approved a new version of Section 14 that spells out the rights that had seemed to be garrotted by the original Act. Bill 99 became law, quietly, on May 8. The new law reads strangely: no other Canadian statute is hedged with phrases, as this one is, about the common law rights we have always taken to be there, unwritten, at the heart of our tradition of justice. Frederick Cass returned to the House and said, reading from a text, that it had been his aim as attorney general to “enlarge and secure” the rights of individuals. A few days later I met him for the first time when he looked through the door of an office I was visiting at Queen's Park. We shook hands and I asked him to tell me what he alone knows: why, when he alone was responsible for Bill 99. did he damn the Bill and try to pass the buck? "I've said my last word,” he replied, and went backward through the door, smiling.
John Robarts, who similarly declines to discuss Bill 99, told the House on May 20 that he had appointed yet another Royal Commission. This one is an Inquiry into Inquiries—Chief Justice James McRuer of the Ontario High Court is empowered to study the entire structure of administrative authority, and to recommend any changes in the law he believes are desirable “to safeguard the fundamental and basic rights, liberties and freedoms of the individual from infringement by the State or any other body.” Depending on the beliefs Mr. Justice McRuer comes to hold. then. Bill 99 now has a chance to become, in its own way, a starting point for the return of quasi-judicial powers to the courts, where many people believe they belong.
In the meantime McRuer. like any other investigator appointed under the Public Inquiries Act. has the power “to summon any person and require him to give evidence on oath and to produce such documents and things as he deems requisite.” Most of the powers, that is. of Bill 99. ★