In the Public Good: Eugenics and Law in Ontario 9780228009719

Table of contents :
Cover
In the Public Good
Title
Copyright
Dedication
Contents
Illustrations
Acknowledgments
A Note About Vocabulary
Introduction
1 Places and People
2 Legislating Eugenics: Dr Forbes Godfrey and His Private Member’s Bills
3 Investigating Eugenics: Three Ontario Royal Commissions
4 Eugenics on Trial: A.R. Kaufman, the Parents’ Information Bureau, and the Eastview Birth-Control Trial
Conclusion
Appendix 1: Godfrey’s Sterilization and Marriage Bills
Appendix 2: Government’s Successful Marriage Act Amendment
Appendix 3: Section 207 of the Criminal Code
Notes
Bibliography
Index

Citation preview

In the Public Good

mcgill-queen’s/associated medical services studies in the history of medicine, health, and society series editors: j.t.h. connor and erika dyck This series presents books in the history of medicine, health studies, and social policy, exploring interactions between the institutions, ideas, and practices of medicine and those of society as a whole. To begin to understand these complex relationships and their history is a vital step to ensuring the protection of a fundamental human right: the right to health. Volumes in this series have received financial support to assist publication from Associated Medical Services, Inc. (ams ), a Canadian charitable organization with an impressive history as a catalyst for change in Canadian healthcare. For eighty years, ams has had a profound impact through its support of the history of medicine and the education of healthcare professionals, and by making strategic investments to address critical issues in our healthcare system. ams has funded eight chairs in the history of medicine across Canada, is a primary sponsor of many of the country’s history of medicine and nursing organizations, and offers fellowships and grants through the ams History of Medicine and Healthcare Program (www.amshealthcare.ca). 1 Home Medicine The Newfoundland Experience John K. Crellin 2 A Long Way from Home The Tuberculosis Epidemic among the Inuit Pat Sandiford Grygier 3 Labrador Odyssey The Journal and Photographs of Eliot Curwen on the Second Voyage of Wilfred Grenfell, 1893 Ronald Rompkey 4 Architecture in the Family Way Doctors, Houses, and Women, 1870–1900 Annmarie Adams 5 Local Hospitals in Ancien Régime France Rationalization, Resistance, Renewal, 1530–1789 Daniel Hickey

6 Foisted upon the Government? State Responsibilities, Family Obligations, and the Care of the Dependent Aged in NineteenthCentury Ontario Edgar-André Montigny 7 A Young Man’s Benefit The Independent Order of Odd Fellows and Sickness Insurance in the United States and Canada, 1860–1929 George Emery and J.C. Herbert Emery 8 The Weariness, the Fever, and the Fret The Campaign against Tuberculosis in Canada, 1900–1950 Katherine McCuaig 9 The War Diary of Clare Gass, 1915–1918 Edited by Susan Mann

10 Committed to the State Asylum Insanity and Society in Nineteenth-Century Quebec and Ontario James E. Moran 11 Jessie Luther at the Grenfell Mission Edited by Ronald Rompkey 12 Negotiating Disease Power and Cancer Care, 1900–1950 Barbara Clow 13 For Patients of Moderate Means A Social History of the Voluntary Public General Hospital in Canada, 1890–1950 David Gagan and Rosemary Gagan 14 Into the House of Old A History of Residential Care in British Columbia Megan J. Davies 15 St Mary’s The History of a London Teaching Hospital E.A. Heaman 16 Women, Health, and Nation Canada and the United States since 1945 Edited by Georgina Feldberg, Molly Ladd-Taylor, Alison Li, and Kathryn McPherson 17 The Labrador Memoir of Dr Henry Paddon, 1912–1938 Edited by Ronald Rompkey 18 J.B. Collip and the Development of Medical Research in Canada Extracts and Enterprise Alison Li

19 The Ontario Cancer Institute Successes and Reverses at Sherbourne Street E.A. McCulloch 20 Island Doctor John Mackieson and Medicine in Nineteenth-Century Prince Edward Island David A.E. Shephard 21 The Struggle to Serve A History of the Moncton Hospital, 1895 to 1953 W.G. Godfrey 22 An Element of Hope Radium and the Response to Cancer in Canada, 1900–1940 Charles Hayter 23 Labour in the Laboratory Medical Laboratory Workers in the Maritimes, 1900–1950 Peter L. Twohig 24 Rockefeller Foundation Funding and Medical Education in Toronto, Montreal, and Halifax Marianne P. Fedunkiw 25 Push! The Struggle for Midwifery in Ontario Ivy Lynn Bourgeault 26 Mental Health and Canadian Society Historical Perspectives Edited by James Moran and David Wright 27 SARS in Context Memory, History, and Policy Edited by Jacalyn Duffin and Arthur Sweetman

28 Lyndhurst Canada’s First Rehabilitation Centre for People with Spinal Cord Injuries, 1945–1998 Geoffrey Reaume 29 J. Wendell Macleod Saskatchewan’s “Red Dean” Louis Horlick 30 Who Killed the Queen? The Story of a Community Hospital and How to Fix Public Health Care Holly Dressel 31 Healing the World’s Children Interdisciplinary Perspectives on Health in the Twentieth Century Edited by Cynthia Comacchio, Janet Golden, and George Weisz 32 A Surgeon in the Army of the Potomac Francis M. Wafer Edited by Cheryl A. Wells 33 A Sadly Troubled History The Meanings of Suicide in the Modern Age John Weaver 34 SARS Unmasked Risk Communication of Pandemics and Influenza in Canada Michael G. Tyshenko with assistance from Cathy Patterson 35 Tuberculosis Then and Now Perspectives on the History of an Infectious Disease Edited by Flurin Condrau and Michael Worboys 36 Caregiving on the Periphery Historical Perspectives on Nursing and Midwifery in Canada Edited by Myra Rutherdale

37 Infection of the Innocents Wet Nurses, Infants, and Syphilis in France, 1780–1900 Joan Sherwood 38 The Fluorspar Mines of Newfoundland Their History and the Epidemic of Radiation Lung Cancer John Martin 39 Small Matters Canadian Children in Sickness and Health, 1900–1940 Mona Gleason 40 Sorrows of a Century Interpreting Suicide in New Zealand, 1900–2000 John C. Weaver 41 The Black Doctors of Colonial Lima Science, Race, and Writing in Colonial and Early Republican Peru José R. Jouve Martín 42 Bodily Subjects Essays on Gender and Health, 1800–2000 Edited by Tracy Penny Light, Barbara Brookes, and Wendy Mitchinson 43 Expelling the Plague The Health Office and the Implementation of Quarantine in Dubrovnik, 1377–1533 Zlata Blažina Tomi and Vesna Blažina 44 Telling the Flesh Life Writing, Citizenship and the Body in the Letters to Samuel Auguste Tissot Sonja Boon

45 Mobilizing Mercy A History of the Canadian Red Cross Sarah Glassford

51 Strange Trips Science, Culture, and the Regulation of Drugs Lucas Richert

46 The Invisible Injured Psychological Trauma in the Canadian Military from the First World War to Afghanistan Adam Montgomery

52 A New Field in Mind A History of Interdisciplinarity in the Early Brain Sciences Frank W. Stahnisch

47 Carving a Niche The Medical Profession in Mexico, 1800–1870 Luz María Hernández Sáenz 48 Psychedelic Prophets The Letters of Aldous Huxley and Humphry Osmond Edited by Cynthia Carson Bisbee, Paul Bisbee, Erika Dyck, Patrick Farrell, James Sexton, and James W. Spisak 49 The Grenfell Medical Mission and American Support in Newfoundland and Labrador, 1890s–1940s Edited by Jennifer J. Connor and Katherine Side 50 Broken Institutions, Families, and the Construction of Intellectual Disability Madeline C. Burghardt

53 An Ambulance on Safari The ANC and the Making of a Health Department in Exile Melissa Diane Armstrong 54 Challenging Choices Canada’s Population Control in the 1970s Erika Dyck and Maureen Lux 55 Foreign Practices Immigrant Doctors and the History of Canadian Medicare Sasha Mullally and David Wright 56 Ethnopsychiatry Henri F. Ellenberger Edited by Emmanuel Delille Translated by Jonathan Kaplansky 57 In the Public Good Eugenics and Law in Ontario C. Elizabeth Koester

In the Public Good Eugenics and Law in Ontario

C. Elizabeth Koester

McGill-Queen’s University Press Montreal & Kingston • London • Chicago

© McGill-Queen’s University Press 2021 ISB N ISB N ISB N ISB N

978-0-2280-0850-7 978-0-2280-0851-4 978-0-2280-0971-9 978-0-2280-0972-6

(cloth) (paper) (eP df) (eP UB)

Legal deposit third quarter 2021 Bibliothèque nationale du Québec Printed in Canada on acid-free paper that is 100% ancient forest free (100% post-consumer recycled), processed chlorine free

We acknowledge the support of the Canada Council for the Arts. Nous remercions le Conseil des arts du Canada de son soutien.

Library and Archives Canada Cataloguing in Publication

Title: In the public good : eugenics and law in Ontario / C. Elizabeth Koester. Names: Koester, C. Elizabeth, author. Series: McGill-Queen’s/Associated Medical Services studies in the history of medicine, health, and society ; 57. Description: Series statement: McGill-Queen’s/Associated Medical Services studies in the history of medicine, health, and society ; 57 | Includes bibliographical references and index. Identifiers: Canadiana (print) 20210227591 | Canadiana (ebook) 20210227729 | i s bn 9780228008514 (paper) | isbn 9780228008507 (cloth) | isbn 9780228009719 (eP df ) | isbn 9780228009726 (ePUB ) Subjects: l csh: Eugenics—Law and legislation—Ontario—History. Classification: lcc keo724.k64 2021 | lcc kf3832 .k64 2021 kfmod | ddc 344.71304/8—dc23 This book was typeset in 10.5/13 Sabon.

To Stephen

Contents

Illustrations

xiii

Acknowledgments xv A Note About Vocabulary Introduction

xix

3

1 Places and People

26

2 Legislating Eugenics: Dr Forbes Godfrey and His Private Member’s Bills

45

3 Investigating Eugenics: Three Ontario Royal Commissions 89 4 Eugenics on Trial: A.R. Kaufman, the Parents’ Information Bureau, and the Eastview Birth-Control Trial 160 Conclusion

211

Appendix 1: Godfrey’s Sterilization and Marriage Bills Appendix 2: Government’s Successful Marriage Act Amendment

228

Appendix 3: Section 207 of the Criminal Code 230 Notes

233

Bibliography Index

281

303

223

Illustrations

Lieutenant Governor Herbert Bruce and aides

4

Chorley Park, residence and grounds of Lieutenant Governor Herbert Bruce

5

Furniture warehouse in the Ward 30 Sleeping in a doorway in the Ward 31 Toilet in an impoverished neighbourhood, Toronto 32 Interior, 152 York Street, Toronto

33

Dr Forbes Godfrey 47 Hon. Frank Egerton Hodgins Dale Avenue, Toronto

99

Philip Dansken Ross

120

98

Clifford Magone 142 A.R. Kaufman

169

Dorothea Palmer 177 Eastview Courthouse

183

Sterilization and Birth Control say, “Maybe we can get together and we’ll both win” 203 “Mr. Kaufman alone tackles the job of stopping the leak” 206

Acknowledgments

The publication of this book finds me, to my surprise, having travelled quite a distance on a path that I never imagined following, even as I took what turned out to be the first steps along it. It began when I decided to leave the practice of law and return to university, inspired by the interesting things our children were beginning to study as undergraduates. From the moment I audited a pair of classes, just to see how I liked being a student again, I was hooked. The result was several enormously rewarding years at the Institute for the History and Philosophy of Science and Technology (ihpst ) at the University of Toronto and a PhD dissertation from which this book has grown. I have many people to thank for their help and encouragement as I refocused my energies from law to the study of the history of medicine at such a late stage in my professional life. To begin with, I owe a great debt to my PhD supervisor and mentor, Nikolai Krementsov (who also played a role in getting the process started by giving me permission to audit his undergraduate seminar on human biology and science fiction in January 2011). Even now, well beyond the end of our official relationship, he continues to be endlessly generous with his time and advice whenever I need it, and his exacting standards and direct, insightful comments have never failed to make my work better. I was particularly lucky to have been part of such a wonderful cohort at the ihpst . Thank you to Kira Lussier, Kristen Schranz, and especially Riiko Bedford and Jennifer Fraser who travelled a road very similar to mine. Thanks also to Esther Atkinson, Oana Baboi, and again Jenn Fraser, fellow members of wham , an informal writing group devoted to the history of medicine (the meaning of whose

xvi

Acknowledgments

name no one can quite remember but which we recall being very amusing!) All were endlessly supportive both intellectually and personally (and great fun to know!) despite the differences in the stages of our lives. I have benefited greatly from the generosity and friendship of other historians. These include the two members of my dissertation committee, Jim Phillips (also the coordinator of the Osgoode Society Legal History Workshop) and Marga Vicedo; my internal and external examiners, Mark Solovey and Alexandra Minna Stern, respectively; Constance Backhouse, who pointed me in the direction of very useful information about Crown Attorney Raoul Mercier in her own work; Margaret Derry, who provided me with her then-unpublished article for the Dictionary of Canadian Biography on her grandfather F.W. Wegenast; Michael Harrison, who shared information about Forbes Godfrey; Julie Hird, Dorothea Palmer’s great-niece, whose genealogical research on her family led her to me and helped me fill in some blanks in my biographical sketch of Palmer; Joseph Sinasac, who sent me a copy of his book on anti-eugenicist Henry Somerville of Toronto; Mary Stokes and other members of the Legal History Workshop, whose attentive reading and insightful comments and questions greatly improved chapter 4; and my brother James, who eagerly explained the role of canon law and marriage and burial practices in Ontario’s past and always provided a keen ear. I would also like to acknowledge the many archivists and librarians who have offered assistance with an enthusiasm that always energized my own: the staff at the Archives of Ontario; Christine DeLuca and Jane Freeman at Bennett Jones llp, who on several occasions delivered copies of legal material I could not readily access myself; the tireless John Court at the Centre for Addiction and Mental Health, whose regular emails provided a wealth of information; Jillian Forsyth and Mandy O’Brien at the City of Toronto Archives; Crystal Williamson Campitelli and her colleagues at the College of Physicians and Surgeons of Ontario; Paul Leatherdale at the Law Society of Ontario; Ellen Thomas at the Stratford-Perth Library (who re-sent material upon my discovery that my own system of filing the original batch had defeated me!); and, at the University of Waterloo, Special Collections and Archives, Sue Plouffe, Martha Lauzon, and especially Nicole Marcogliese, who went out of her way to make the headaches related to trying to pin down images and

Acknowledgments

xvii

a few remaining references during the covid shutdown much less painful than they would otherwise have been. Much appreciation goes to Kyla Madden especially, along with Kathleen Fraser, Curtis Fahey, and the rest of the team at McGillQueen’s University Press, who guided me through the process leading to publication, and particularly to the three very generous anonymous reviewers whose careful reading and thoughtful comments on the manuscript resulted in significant improvements. Any errors, of course, remain my own. With respect to the illustrations included, I have made every effort to secure the necessary permissions. If any additions or corrections are required in this regard, I will be happy to make them in future editions. I am grateful for the financial support I received during the studies that led to this book: a doctoral fellowship from Social Sciences and Humanities Research Council, a McMurtry Fellowship from the Osgoode Society for Canadian Legal History, a University of Toronto Fellowship, an Ontario Graduate Scholarship, and a Hewson Research Grant from the Centre for Addiction and Mental Health. A number of friends have followed my progress both as a graduate student and as an author with seemingly unlimited interest: Maria Case, Mary Beth Currie, Sue Doyle, Joanne Eidinger, Nancy Eber, Victoria Fisher, Jane Ford, Carol Hensley, Barbara Leonard, Freda Miller, Lee Ramsay (who, as a librarian, sent me a link to every single book about eugenics that crossed her desk), Georgette Sheridan, Teresa Smegal, and Tina Torlone and her gang of travelling singers. I thank them all for listening so closely for so long. Thanks as well to other members of my family for their enthusiasm about the entire undertaking. Finally, and most importantly, I thank my husband, Stephen Bowman, and our children, Michael, Callie, and Peter. Together, they have been the source of unending support, encouragement, advice, and humour. Stephen’s enthusiasm for my work is boundless. He has read many times over every single word of everything I have written and his insight (and editing) has enriched the final product immensely. We joke that, while he could not actually have produced this book himself, he could persuade almost anyone that he had! What I said of my dissertation remains true now: I could neither have begun nor completed this project without him.

xviii

Acknowledgments

p e r m is s io ns Some of the material in chapter 3 describing the operation of royal commissions generally and the Hodgins Commission specifically first appeared in altered form in C. Elizabeth Koester, “An Evil Hitherto Unchecked: Eugenics and the 1917 Ontario Royal Commission on the Care and Control of the Mentally Defective and Feeble-Minded,” Canadian Bulletin for Medical History 33, no. 1 (2016): 59–81. It is used here with permission of the University of Toronto press (www.utpjournals.press), ©Canadian Society for the History of Medicine/Société Canadienne d’histoire de la médicine 2016. The opening lines of chapter 3 from A.P. Herbert’s poem “The Royal Commission on Kissing” are used with the permission of United Agents llp on behalf of the Executors of the Estate of Jocelyn Herbert, M.T. Perkins and Polly M.V.R. Perkins.

A Note about Vocabulary

Writing about the history of eugenics presents a problem for the contemporary author since the vocabulary of eugenics included numerous words and concepts that are offensive today. Terms like “feeble-minded,” “defective,” “unfit,” and “moron” were commonly used descriptions, many of which conveyed specific information regarding the perceived level of intellectual capacity and were used to classify mental abilities within a hierarchy. In Britain, for example, “feeble-minded” meant someone who was just below normal intelligence, an “imbecile” was someone believed to be in the mid-range of mental deficiency, and an “idiot” was at the very bottom. While some readers may find the use of these words in the following chapters shocking, my view is that it is important to hear the actual voices of historical actors. However, when writing in my own voice, wherever possible I have tried to use expressions that emphasize the individual rather than the characteristic; hence, my use of rather wordy phrases like “individuals believed to be feeble-minded” or “supposedly feeble-minded” rather than the “feeble-minded.”

In the Public Good

Introduction

On 25 October 1938, a chilly Tuesday evening in Toronto, listeners burdened with worries of winter and war could tune their radios to cbl , the local station for the new Canadian Broadcasting Corporation (cbc) , and hear Herbert Bruce conclude a talk with the following words: Therefore, the men whose task and duty it is to direct the destinies of a nation must naturally concern themselves with the question of what the quality of the coming generation is going to be and are bound to encourage every practical means of improving the general physical and mental standards of the race. For this reason they will not set chief importance on charitable measures to care for the lives of the unfit but rather on measures that will help to prevent hereditarily diseased and defective people from propagating their kind, and at the same time on positive measures for encouraging the best hereditary stocks to transmit their qualities to future generations.1 Herbert Bruce was not just any radio personality and his address was not just any broadcast. He was the Honourable Dr Herbert Alexander Bruce (28 September 1868–23 June 1963), a man in every way imaginable a member in good standing of Canada’s elite despite his humble beginnings on a farm in southern Ontario. Just a year before this talk, he had completed his five-year term as the fifteenth lieutenant governor of the province of Ontario. He was professor of surgery at the University of Toronto, having been educated in Toronto, Paris, and Vienna. He was a member of the Royal College

4

In the Public Good

Lieutenant Governor Herbert Bruce and aides, c. 1934. (City of Toronto Archives, Fonds 1244, Item 8090a.)

of Surgeons as well as founder of Toronto’s Wellesley Hospital. He had achieved the rank of colonel in the Canadian Army (Permanent Active Militia) as a result of his service during the First World War. Two years later he would become the Conservative member of Parliament for the riding of Parkdale in Toronto.2 The broadcast itself was the fourth in a series of eight talks presented by the Eugenics Society of Canada (esc ). The talks were collectively entitled “The Future of the Race” and aired weekly on cbc radio between 4 October and 22 November 1938. Having been established in 1936, the cbc was a recent addition to the “new kind of social space” created by the inauguration of radio broadcasting in the 1920s.3 The esc segments were programmed by the cbc ’s “Talks Department” which had been formed as part of the broadcaster’s mandate to cultivate “the intelligent listener.” The department’s job was to “present experts speaking on a wide range of subjects, from nature study to poetry to adventure,” with the only requirement that they be “tasteful.”4 The esc ’s approach in 1937 to the Talks Department had not been successful; the idea for the programs had been turned down. However, a year later,

Introduction

5

Lieutenant Governor’s Herbert Bruce’s home, Chorley Park, and its grounds, Toronto, c. 1926. (City of Toronto Archives, Fonds 1244, Item 2493.)

the broadcaster itself contacted the esc to request that the series go ahead. It had reconsidered and now agreed that the programs indeed passed the “tasteful” test.5 By the time listeners tuned in to catch Bruce, they had already heard the first three talks. C.W.M. Hart, a University of Toronto professor of anthropology, opened the series with an address entitled “Survival of the Fittest.” Hart began by explaining that it was his task “to indicate some of the factors in human history and prehistory which have affected man’s position in the natural order and given rise to what is usually called the problem of population.” His conclusion was that this problem was “the result of the way in which man has adapted himself to his environment.”6 Hart was followed by W. Burton Hurd, professor of political economy at McMaster University in Hamilton, who addressed the topics of “Population Growth in Early Times” and “World Population since 1750.” He explained the problem of the differential birth rate, revealing his frank belief in the equation of education and professional class with fitness. “[The mentally and morally defective] are continuing to multiply,” he stated, “while the professional and more

6

In the Public Good

highly educated groups are falling far short of reproducing themselves … Obviously some solution must be found to this situation”7 (emphasis added). Bruce’s first talk, “German Population Policy,” was followed the next week by his second, the fifth of the series. It was entitled “German Sterilization Policy.” In it he made two points. First, there should be no mistake – he was not endorsing euthanasia. He was not speaking about “the right to destroy life,” only agreeing with the argument that “something should be done in the interest of the coming generation … to enact measures to prevent the sub-normal elements of the population from increasing.” Second, sterilization laws served a dual purpose: they protected the community against “the propagation of degenerate members” and were “merciful” because they “made life easier for such people here and now by relieving them of all grounds of anxiety about having children.”8 Next came A.M. Harley, kc , a leading lawyer in Brantford, Ontario, whose topic was the “California Sterilization Law” and the need for something similar in Ontario. Harley was clear about the narrow circumstances in which the law was applied and the value of sterilization to those upon whom the surgery was performed. And he was adamant: the law was eugenic. It prevented the birth of children who would probably have an unfavourable heredity. It had “one effect only – it prevents parenthood. It in no way or degree unsexes the patient. It in no way impairs the health of the patient. It is a protection, not a punishment, and therefore carries no stigma or humiliation.”9 Harley left his listeners with the sense of how widespread these ideas were. He described the eugenic sterilization laws enacted in Alberta and British Columbia, the recommendation made by the Brock Committee in Great Britain that voluntary sterilization be legalized, and the U.S. Supreme Court’s conclusion in Buck v. Bell, where it upheld a Virginia sterilization law, that “three generations of imbeciles are enough.”10 The final two talks were given by W.L. Hutton, md , also from Brantford. The first was called “Tomorrow’s Children” and the second “The Future of the Race.” Together they emphasized two rights: the first was the right of every child in the world to be born with “sound inheritance into a good environment,”11 which would be passed on from generation to generation, and the second was the right of the race to be composed of “vigorous, strong, intelligent” individuals.12 Moreover, Hutton argued, it was important not to

Introduction

7

wait until feeble-minded individuals existed and then spend money to build institutions in which to house them. The solution was to attack the problem before it occurred by passing eugenic laws. A satirical poem accompanied the printed version of his first address. “Why,” it asked ironically after describing the dangers of walking along a treacherous path atop a cliff, “should people of sense stop to put up a fence, / While the ambulance works in the valley?”13 The Eugenics Society of Canada clearly favoured the fence. The twenty-first-century reader experiences a shock at seeing people described as “feeble-minded,” “defective,” and “unfit,” especially in the absence of any such eugenic laws in Ontario’s past and in the context of a history that remains largely unknown. This shock is intensified by learning that the host of the radio series was the cbc , which intended the series to appeal to the “intelligent listener,” and that it was men of high standing, education, and accomplishment using these descriptions. Moreover, these academics, physicians, lawyers, and dignitaries were promoting eugenics as a good thing, not only for the individuals who might be subject to those laws, but as a public good for the nation itself. Thus, the very existence of these broadcasts as well as their content opens the door to many interesting questions, including some that lead beyond the specifics of the broadcasts themselves. What exactly were the eugenic ideas about which Bruce and others were so enthusiastic and how did they play out in Ontario, particularly with regard to the use of law both as urged by the broadcasts and otherwise? What was the relationship between eugenics, law, and the public good? How did eugenicists use this relationship to advance their goals? And, why, ultimately, did Ontario not pass eugenic legislation? These questions are addressed in the pages that follow. Along the way, this book shows that the story of eugenics in Ontario has important implications for the study of the history of eugenics more broadly. To begin with, it fills a major gap in the Canadian historiography – the detailed trajectory of eugenics in Ontario. To date, a few historians have assessed the history of eugenics on a national scale, beginning with Angus McLaren’s seminal work.14 Others have delved more deeply into this history in Alberta and British Columbia,15 in particular, and are beginning to do so with respect to other provinces,16 but this is the first book-length study focused on Ontario. At first glance (the curious esc broadcasts notwithstanding), Ontario seems a place of little significance in the history of eugenics, and

8

In the Public Good

the gap has often been explained away with comments like “not much happened” with respect to eugenics in Ontario compared to other provinces which actually passed eugenic legislation. That explanation is unsatisfactory since Ontario, the most populous and urbanized province, was home to many leading proponents of eugenics in Canada. Yet it is true that the same issues and concerns (like the supposed increase in feeble-mindedness which resulted in the implementation of actual eugenic sterilization laws in two western provinces) failed to produce the same outcome in Ontario. Where, then, was the manifestation of eugenic thinking in Ontario? By looking for it beyond just statutes, this book has uncovered a rich history in the province where (supposedly) “not much happened.” The foundation for this work is a historiographical approach based on law as revealed by records of its processes and extensive contemporary newspaper reporting. Law, grounded in a problem/ solution dialectic, can be helpfully applied to the history of eugenics because the eugenicists themselves were engaged in precisely the same dialectic – identifying problems and proposing certain kinds of solutions. What is more, the concept of the “public good” is fundamental to both law (apart from its role in arbitrating private disputes) and eugenics. This book assesses how that concept was constructed, debated, and weighed in Ontario in connection with eugenic notions in the first decades of the twentieth century, and how it was used by supporters of eugenic measures to add power to their ideas. In doing so, it answers that long-standing question in the Canadian historiography of eugenics – why did Ontario never pass eugenic legislation when Alberta and British Columbia did? At the same time, however, this study demonstrates the historiographic limitations inherent in that very question. The Ontario case shows that, when the history of eugenics is placed exclusively within the framework of laws enacted, much interesting eugenic activity that occurred outside that framework is missed, resulting in the inaccurate assessment that “not much happened.” Moreover, as discussed in the Conclusion, elucidating the Ontario story highlights its similarity to Alberta’s and allows us to develop an explanation for the very different outcome. The first question fundamental to this study is the most basic: What was eugenics? In brief, eugenics was a set of ideas that took hold around the world in the latter years of the nineteenth century and the first decades of the twentieth. As was made clear to the cbc

Introduction

9

radio audience, they were based on the belief that humankind could be improved through selective breeding. That brief statement, however, hardly begins to convey the complexities, the fluid nature, or the adaptability of these ideas. Indeed, eugenics might be described as a shape-shifter – the character in myths and fairy tales that alters its form to suit both its own purposes and the needs of those to whom it appears. Historians debate what eugenics was, when it started, when it ended, whether it has ended, whether it actually was a movement, and how its principles have morphed into “newgenics” – in the form of genetic counselling and selective abortion, for example.17 Even Francis Galton himself, who coined the term “eugenics” from the Greek syllables “eu” for good and “genos” for “birth” in 1883, described eugenics in many different ways (although the definition he appears to have settled on was “the study of agencies under social control that may improve or impair the racial qualities of future generations either physically or mentally”18). Attempts to understand who the proponents of these shape-shifting concepts were range from the straightforward contemporary layperson’s view that associates eugenicists with the racist policies of Nazi Germany to the subtleties added by historians who have uncovered evidence that there were Jewish eugenicists, African-American eugenicists, and Roman Catholic eugenicists, all members of religious or racial groups that are commonly understood to have been either targets of eugenic practices and policies or, in the case of the Roman Catholic Church, strongly anti-eugenic.19 The origins and early days of the spread of eugenic ideas provide context for this fluidity. Galton, like many others, was distressed by what he saw as the deterioration of British society. One of the triggers for this concern was the discovery that as many as 60 per cent of the recruits to fight for the British Army in the two South African wars which took place between 1880 and 1902 were rejected on medical grounds. Other concerns swirled around as well: the number of supposedly mentally defective individuals appeared to be growing, along with prostitution and crime (with the former believed to be responsible for the latter); birth rates were worrisome, with the poor and the so-called mentally defective reproducing quickly and the wealthy only slowly, so that the “wrong type” of people would soon outnumber the “right”; syphilis, believed to be brought home by soldiers returning from abroad, was on the rise and set to poison future generations; alcohol abuse was rampant. At the same time, it

10

In the Public Good

was a period of “tenacious confidence in science.”20 Darwin’s work on evolution had fostered new and dramatic debates about heredity, and there was broad support for the idea that it was possible to cultivate desirable human characteristics and eliminate undesirable ones in the same ways that were familiar to plant and animal breeders. Thus, the science of eugenics was born, conceived out of eagerness to solve a multitude of social problems and optimism about the possibilities of improving humanity. In 1912 the British Eugenics Education Society (which had been formed in 1907), led by its president Leonard Darwin (son of Charles), organized the First International Eugenics Congress in London. Approximately four hundred delegates attended from more than a dozen countries around the world, including England, Germany, Italy, France, Japan, Australia, New Zealand, the United States, Norway, India, and Canada.21 Alexander Graham Bell and Winston Churchill, two of the society’s vice-presidents, were listed in the records of the proceedings, along with important figures in the eugenics movement like Charles Davenport, head of the Eugenics Record Office (ero ) in Cold Spring Harbor, New York, and Alfred Ploetz, president of the Society for Racial Hygiene in Germany. Two delegates from Canada attended: J.G. Adami, then professor of pathology at McGill University, and Robert Ramsay Wright, the charismatic first professor of biology, and eventual dean of arts, at the University of Toronto.22 Other delegates included representatives from churches and religious organizations (notably Ernest Leopold Walford of the Jewish Free School of London) and from a wide range of university faculties including medicine, statistics, political economy, philosophy, and sociology. Also participating were municipal politicians, teachers, and representatives of women’s organizations and an assortment of interest groups such as the National League for Physical Education and Improvement and the Metropolitan Public Gardens Association. In addition to representation from such diverse organizations and individuals, the wide range of topics covered in papers printed in the conference report showed the broad connections between eugenics and other issues, as well as the fact that problems and solutions varied from location to location. These papers included: “Eugenics and Militarism,” “The Effect of Alcohol on the Germ-Plasm,” “Heredity and Eugenics in Relation to Insanity,” “The Inheritance of Fecundity,” “Eugenics and the New Social Conscience,” “Marriage

Introduction

11

Laws and Customs,” “The Influence of Race on History,” and “The Place of Eugenics in the Medical Curriculum.”23 Some focused on “positive eugenics,” which encouraged the fit to marry and have children. Others emphasized “negative eugenics,” which was intended to prevent the unfit from reproducing. A number of ideas were presented for preventing undesirable progeny, from requiring marriage certificates documenting adequate fitness as a condition of marriage to segregation of supposedly unfit individuals (women, in particular) during their reproductive years. The draconian solution of legally coerced sterilization, although far from universally supported, was believed by its proponents to be the most successful way of preventing unwanted characteristics like feeble-mindedness from being propagated in the population.24 As is clear from this brief catalogue of delegates who attended and papers presented, the notion of eugenics was flexible enough to connect widely disparate groups concerned with matters ranging from alcoholism to insanity, feeble-mindedness, prostitution, fecundity, and more. At the same time, however, prominent eugenicists were not the only ones troubled by these problems. Scholarship on the social history of Ontario reveals just how deep the anxiety about such social ills ran and how many groups, including the social-purity and temperance movements, set out to tackle them.25 Given this flexibility, the breadth and diversity of ideas connected to eugenics, and their overlap with those of other social reformers, as well as the differences in the way these ideas could manifest from place to place, it becomes clear that a simple definition actually limits our understanding of a concept so capacious. The alternative is a broad description which accepts this diversity as a characteristic rather than confounding feature. Such is the one offered by historian of eugenics Nikolai Krementsov, who not only acknowledges but builds on the multi-faceted nature of eugenics by calling it “a specific amalgam of ideas, values, concerns and actions regarding human reproduction, heredity, development and evolution.”26 But even with this open-ended description, we are left with the challenge of trying to understand what drew such disparate matters together under the umbrella of “eugenics” at the 1912 London congress and elsewhere, and of ensuring that we are able to distinguish eugenics from its fellow travellers. With its focus on Ontario, this study meets that challenge with a novel approach. Basing the analysis on legal events and sources, it argues that it is the kinds of

12

In the Public Good

solutions that were proposed and the reasons for them that separates eugenics from other social movements. Restricting marriage, sterilization of the so-called unfit, and segregation, coupled with a particular understanding of heredity and added to concerns about the future of humanity, collectively make sense of the “eugenic” label. Consequently, it becomes clear that, although certain social problems were of interest to many, not every reformer was a eugenicist even though mutual concerns about certain problems may have drawn them together. The temperance movement provides a good example of the way in which one specific social problem provided a focus for a variety of campaigners. Members of the women’s movement who supported temperance saw alcohol as, among other things, a cause of breakdown in the family. Religious crusaders were concerned that the use of alcohol promoted immorality. Eugenicists worried that incautious couplings resulting from the use of alcohol, especially those involving prostitutes, would result in the birth of more illegitimate and feeble-minded babies and lead to the deterioration of the race.27 Thus, we see how a variety of activists, each with their own goals, might have rallied around one cause – in this case, the elimination of alcohol. This illustrates the importance of assessing any particular solution to determine whether or not it was based on concerns about heredity or intended to promote fitness of the individual and of humankind. Looking at the solutions proposed and the reasons for them allows us to see more clearly where exactly eugenics lay in the debate about temperance as well as other social issues. A discussion of eugenic solutions leads naturally to law. Indeed, the story of eugenics has always been intimately connected to law since, from the early days of the movement, using the law represented the most obvious and dramatic method by which eugenicists attempted to achieve their goals. Eugenic sterilization laws were passed in numerous jurisdictions, including Japan, China, Switzerland, Germany, Iceland, and thirty American states. In Canada, enthusiasm for eugenics led to compulsory sterilization laws in Alberta (1928) and British Columbia (1933).28 In other places, including the Scandinavian countries, laws restricting marriage based on lack of fitness were passed.29 In its North American incarnation, eugenics has often been conflated with coercive reproductive-sterilization laws, sometimes considered the high-water mark of eugenic policy making. The

Introduction

13

early historiography of eugenics naturally reflected this connection to law, and to sterilization laws in particular. This makes sense for many reasons. Sterilization laws are not subtle: given the difficulty in deciding what eugenics is and is not, they seem to make eugenics easy to spot – in fact, sometimes too easy. As the study of the history of eugenics advanced, the focus on such laws revealed its limitations. Identifying eugenics with sterilization alone is a simplistic approach which carries with it the twin pitfalls of understanding eugenics either too narrowly or too broadly: too narrowly insofar as the existence of sterilization legislation risks quickly becoming shorthand for eugenics generally, which means that other aspects of eugenics may be missed, and too broadly inasmuch as the inclination to view sterilization automatically as a eugenic practice means that all sterilization laws appear, incorrectly, to be eugenic. Given these limitations, scholars like Erika Dyck have rightly suggested that historians “[refocus their] attention on eugenic practices, and [move] away from eugenics as defined by legal definitions or Acts.”30 Recent studies have done just that, showing how the concerns and values that underlay eugenic laws played a role in contemporaneous notions and practices related to race, immigration, disability, education, and much else.31 They have also expanded our understanding of how widely influential were the anxieties that drove the eugenics movement. Given that this book explicitly recognizes the value of the refocus Dyck urges, why does it nevertheless rely on law as the analytical lens for its study of eugenics in Ontario? There are two main reasons. To begin with, as noted at the outset, the inherent operation of law in its plural sense offers a unique way of understanding the history of eugenics.32 This is because at the very heart of law is a problem/solution dialectic which matches the structure of eugenics. On the one hand, no matter what the form, law has one set of goals – to identify a problem and to provide solutions that understand, prevent, and solve or resolve it. When the government is one of the participants in any legal process, it must be able to satisfy the population (voters, specifically) that the solutions it proposes reflect the public good. On the other hand, eugenics itself was a set of ideas developed to combat a set of problems related to the perception of increasing unfitness of that population. It offered a number of specific solutions centred on the public good, which often involved legal responses. Thus, by adopting this dialectic to

14

In the Public Good

examine how governments and individuals used law to tackle these problems – how they described them, the solutions they proposed, and the reasons for those solutions – we gain a better understanding of precisely how they understood eugenics. This dialectic also makes it considerably easier to pinpoint what eugenics was and was not. As the temperance example above shows, it is dangerously easy to conflate eugenics with other social movements simply because they addressed the same problems or offered the same solution. Looking at the problem and the solution and assessing whether the latter addressed the key eugenic goal of improving the race helps us find the eugenics in overlapping histories. The second reason for relying on a legal lens in this study is that such a lens gives us a close-up look at the “sausage-making” – the very detailed ways in which eugenic ideas were promoted, and in some cases deflected, in Ontario. Until now, the scholarship on eugenics has generally leap-frogged over the details of how exactly eugenicists attempted to implement eugenic programs and headed directly to the examination of the programs (like sterilization laws) themselves. This study actually uses those details to further our understanding of the history of eugenics. In this sense, the present work is not merely one more story of eugenics and sterilization laws (even though it is based in part on an analysis of attempts to implement sterilization laws in Ontario). Rather, it is an examination of the ways in which eugenicists went about the work of developing, marshalling support for, and implementing their philosophies – in this particular case, how they attempted to harness the law in its plural sense to achieve the results they believed were both desirable and possible. The use of law as a lens allows us to understand considerably more about the motives and methods of those who supported eugenics (and those who did not). This, in turn, has cracked open the story of eugenics in Ontario and provided an important new entry into the history of eugenics in Canada. It has also shown the value of using law in the study of eugenics, but using it differently. By using law as an analytical tool rather than simply as a measure of the end result, we can expand our ability to understand where, why, and how these ideas might have flourished in other places as well as in Ontario. Furthermore, studies that have emphasized eugenic sterilization (and marriage) laws have generally focused on the point at which the law was passed and moved the analysis forward to the law’s implementation and enforcement. Rarely do they look at examples

Introduction

15

of where a bill failed,33 and even more rarely at the ways in which the law in a more diverse sense was used to promote eugenics outside legislatures and courtrooms. This also forms part of the new approach this book brings to bear on the history of eugenics. The analysis reflects the concept of law well beyond just statutes on the books, which allows us to explore a wider variety of related events, ideas, arguments, and responses. These include not only legislative acts and trials but also bills and royal commissions as well as choices by legal actors in different places to apply the same law in different ways, arguments about the role of canon law within the Anglo/ Canadian legal tradition in the 1930s, and the view that requesting and delivering birth-control information and samples of devices was neither wrong nor illegal despite the fact that “the law,” in this case the Criminal Code of Canada, seemed to dictate otherwise. Taking this broad perspective on the law and relying on the variety of legal sources described below which flows from it allows us to understand more about the strength of the appeal of eugenic ideas in one particular locale. In fact, this study examines eugenics and law not to show that, because there were eugenic laws in force (or not) there must have been eugenics (or not), but to demonstrate how much eugenics there was even in the absence of those laws. It makes clear that it is incorrect to conclude on the basis that no laws were passed that eugenics found no fertile ground or had little support in Ontario. The episodes in this book, beginning with details of the esc broadcasts, enable us to see that eugenic ideas were circulating in the province. They were arriving from other locations, both national and international, in the form of newspaper articles, material acquired by the Ontario Legislative Library, and speeches by prominent U.S. eugenicists like Harry Laughlin, to name but a few. Moreover, these ideas were sought out and advanced by the province’s government and professional elites through their own interests, travel, research, and work. This book, then, is a serious dive into the world of eugenics as uncovered by examining the use of law and lawmaking. Chapter 1 provides background. It sketches Ontario in this period and also discusses a number of matters connected to eugenics, including race, religion, public health, birth control, and women’s rights, in order to foreground the themes that emerge in the subsequent pages. In addition, it provides a sense of eugenics in the Anglo-American world and the influences it had on the way eugenics unfolded in Ontario.

16

In the Public Good

Three chapters follow, each a case study from the period between 1910 and 1938 centred on a different legal process used by Ontario eugenicists to promote their ideas – legislative bills, royal commissions, and a criminal trial. Chapter 2 tells the story of Dr Forbes Godfrey, a physician and member of the provincial legislature, and the eight private member’s bills he introduced between 1910 and 1921. Four of these were sterilization bills and four aimed to restrict marriage by requiring pre-marital medical certificates. The debates about these bills, which were hotly contested both within the legislature and without, focused in part on the issue of whether the public good outweighed the intrusion into individual lives and decision making which would result if they were passed. Although none of his bills passed, they kept interest in eugenic solutions alive and were ultimately part of the reason for Godfrey’s appointment to the provincial cabinet in 1923. Chapter 3 revolves around three Ontario royal commissions appointed by the various governments of the day in 1917, 1929, and 1938, and led by Frank E. Hodgins, P.D. Ross, and Clifford Magone, respectively, to look into a variety of matters related generally to public health and welfare. All three commissions made recommendations of interest to eugenicists. Their timing, each about ten years apart and spanning a period of approximately twenty years, permits us to gauge interest in eugenics moving through the first decades of the twentieth century. Again, as with Forbes Godfrey’s bills, none of the recommendations of any of the three royal commissions that might have appealed to eugenicists were adopted by the government (although some of their other recommendations were). However, the examination of archival documents from the periods in which the commissions operated reveals that senior civil servants and even the political leadership expected the Ontario government to pass sterilization legislation. Once again, the assessment of where exactly the public good lay, while not as explicit as it was in the debates about Godfrey’s bills, underpinned both the commissions’ recommendations and the government’s response to them. Chapter 4 relates the story of A.R. Kaufman, a self-proclaimed eugenicist from Kitchener, Ontario, the Parents’ Information Bureau (pib ), and the sensational trial of Kaufman’s employee, Dorothea Palmer. The trial, which took place in Eastview, Ontario, in 1936–37, involved criminal charges brought against Palmer under section 207 of the Canadian Criminal Code which proscribed certain activities

Introduction

17

relating to birth control. The same section provided a statutory defence if it could be shown that the activities “served the public good.” The judge acquitted Palmer partly on the basis of explicit eugenic arguments that birth control indeed served the public good by preventing births of unfit children, a decision upheld by the Ontario Court of Appeal a few months later. The trial therefore adds much to our understanding of the importance of the concept of the public good to the promotion of eugenic ideas. It also illustrates that eugenics might exist in unexpected places – in this case, at the heart of a trial focused on the issue of birth control – and influence the law in ways that at first may not be apparent. The Conclusion reviews the interaction between eugenics and law in each of the three case studies and shows that, by substantially expanding the Ontario narrative of eugenics, it has been drawn much closer to the better-known story in Alberta. While each episode illustrates the great reluctance of any Ontario government in this period to legislate eugenic solutions, together they reveal just how closely the Ontario story resembled what happened in Alberta despite a very different outcome. The Conclusion also knits together the elements of the complex explanation of why eugenic laws were kept off the statute books in Ontario; it consolidates our understanding of the ways in which eugenic ideas were understood, promoted, and circulated; and it assesses the tension between the eugenicists’ concept of the public good and the importance of individual rights and the role that tension played in the Ontario outcome. These case studies rely on three different legal processes and the related archival sources, including contemporary newspaper reports. In chapter 2, the focus is on lawmaking by legislatures. A legislative bill is first proposed, then debated, perhaps amended, and ultimately passed or rejected, all of which takes place in an important public forum, the legislature. Examining the circumstances by which a bill becomes law can aid in appreciating how and why certain measures were implemented. Yet laws passed are only part of the story. Unsuccessful attempts to legislate should not be overlooked since they also provide useful historical insight. The very failure of a bill indicates a possible disagreement, one that may have been overshadowed if the legislation had passed, and the details of which may reveal significant rifts in public opinion. This, in turn, allows historians to assess why certain measures were popular and not others, the sources of support and disagreement, and why some measures were

18

In the Public Good

implemented while others failed. Of course, failed attempts to legislate unfortunately remove the opportunity to see how the law would have been administered in practice, including in different locations. As chapter 4 shows, the experience of the Hamilton Birth Control Clinic provides helpful insight into how section 207 of the Criminal Code was understood before the Eastview trial. The main sources for chapter 2 are archival material related to Godfrey’s bills. The Archives of Ontario holds files for every bill that has been introduced in the Ontario legislature. These contain printed versions of the bill at each stage of its progression through the House (first reading, second reading, third reading, etc.). The collection of Godfrey’s bills is complete, contained in file boxes, each set neatly folded in three and bound with red ribbons. In some cases, these files also contained early drafts, including some with handwritten notations. Unfortunately for this book, “Hansard,” the official records of the debates in the Ontario legislature, was not produced by that province until 1944. In its place, provincial archivists and librarians compiled scrapbooks known as “newspaper” or “scrapbook Hansard,” which contained clippings of newspaper reports of the legislative debates. These were invaluable for following the debates about Godfrey’s bills. However, there were certain frustrations inherent in the fact that there was no formal Hansard, since not every stage of every bill was reported in the newspapers, presumably the result of practical editorial decisions about what stories could be included on any given day. The second legal process is royal commissions, or public inquiries, which are created by governments and given legal powers by statute to inquire publicly into certain matters. Their recommendations often include proposed new laws or amendments to existing ones, although they are not necessarily followed by the governments who receive them. One might expect that there would be good archival records for royal commissions, since they are a formal instrument of government. Disappointingly, this was not the case for any of the three this book discusses, although the reports themselves provided extensive information about their operations. Available historical material is most substantial for the Hodgins Commission, some of it in the form of daily diaries called Benchbooks connected to the commissioner’s duties as a judge. These contain jottings relating to his time on the commission, such as expenses, travel arrangements and appointments, and calculations for invoices to the government,

Introduction

19

and overall convey the flavour of his work. Although Hodgins refers to commission files in his report, none seem to still exist. In the case of the other two commissions, those headed by Ross and Magone, even less official material apart from the reports has survived. There are no files for the Ross Commission itself. Although P.D. Ross’s diaries are held in Library and Archives of Canada, they shed minimal light on this period of his life. The Magone Commission worked so swiftly that its report was submitted in a few weeks, contains no appendix material, and exists only in typewritten, not printed, form. There is one small gem, though. The counsel for the Magone Commission, Eric Silk, donated a complete manuscript of his memoirs to the Archives of Ontario. He was a witty observer and had much to say about his participation on this royal commission, but unfortunately only a little of it is specifically helpful for the subject matter of this book. His comments on the characters of the three commissioners, however, have made their way into the discussion that follows. In contrast, the third legal process examined in this book, trials in the courts, is focused on specific facts and issues involving particular parties. By their nature, trials resolve specific disputes and adjudicate the consequences of specific actions, although the outcome may have implications and effects far beyond the immediate parties to the dispute, as was true of the important U.S. constitutional case Buck v. Bell. The latter case and the Palmer decision confirmed and established, respectively, national standards – Buck. v. Bell in declaring a U.S. state sterilization law constitutional and Palmer, or the Eastview trial as that case is known, in effectively legalizing distribution and advertising of birth-control information in Canada. A veritable cornucopia of source material relating to Kaufman, Palmer, and the Eastview trial exists in the Special Collections and Archives Department of the Library of the University of Waterloo. Kaufman’s lawyer, F.W. Wegenast, left all his papers relating to the trial (as well as Dorothea Palmer’s papers, which had by then come into his possession) to Kaufman, who subsequently donated this material along with his own files on the trial, his birth-control efforts, and business and family matters to the local university. The Eastview files include correspondence, transcripts of the evidence, legal-research memoranda, and drafts of witness-preparation material and legal arguments. These made it possible to reconstruct Kaufman’s instructions to his legal team and the development of the

20

In the Public Good

approach they followed as well as to imagine vividly the trial itself. The files also include a curious collection of scrapbooks which contain clippings, drawings, and collages associated with the trial and other events.34 Some of these are included in chapter 4. In addition to the sources related to the specific legal events, this study makes extensive use of newspaper reports from the period, especially the Toronto Daily Star and the Toronto Globe. These helped in tracking the public discussion and views about eugenics generally and the specific events described in the case studies. They also provided a sense of Ontario in the first decades of the twentieth century, something that was essential in order to begin to assess the companion notions of the “public” and the “public good.” Each chapter also includes short biographies of its main characters, mainly based on newspaper articles. Since, with one exception (John McCutcheon, who sat on the Ross Commission), they were men of considerable prominence, reports of their deaths and obituaries reported their lives in great detail. This provides insight into their backgrounds (some quite lively), which is vital in understanding why and how eugenic ideas might have appealed to them. These case studies all demonstrate how law, much more than being merely a punitive instrument to be invoked when broken, can be used to attempt to balance social or civic interests. In these examples, the law was intended to prioritize the interests of the state (in other words, the public good) over those of individuals. (Ironically, the outcome of the Eastview trial was greatly welcome to the witnesses called to testify against Palmer.) Moreover, these examples also show how the law provided a means of both making something desirable possible (shaping the future of the province by ensuring that the right kind of people had children) and preventing something undesirable (growth in the supposedly unfit percentage of the population). Today, many would strenuously disagree with the value judgments inherent in the law’s use (or attempted use) in these instances. Yet the measures proposed (by Godfrey), considered (by the royal commissioners), and effected (by Kaufman) were understood then (although not by all) to be ways of making important and positive social changes. In the words of the statute at the heart of the Eastview trial, they “served the public good.” These episodes also remind us that the law is a collective enterprise, not subject to the whims of one individual. Because Godfrey failed to persuade his own party of the value of his proposed bills,

Introduction

21

those measures themselves did not become law. Similarly, recommendations made by royal commissions to governments are only that; it is the government itself that must decide whether to act. Even in matters that seem more private, such as courtroom litigation, the judge is asked to decide every legal question in the context of decisions that have been made on the same or similar issues in the past.35 So, while individuals or governments may initiate these kinds of legal change, their success is still subject to a complex process conducted at least partly in public and is ultimately subject to public sanction through the electoral system and public opinion as expressed in the popular press. Not only the outcomes but also the debates and surrounding public discussion before, during, and after the decision-making event provide a reading of the times. The range of sources examined by the case studies and available in the context of this plural view of law opens many analytical doors. These include the opportunity to examine the ways in which particular individuals used the law as they tried to achieve their own eugenic goals, how they understood their own efforts, and how those individual efforts fit within the existing system of law and government. In chapter 2, we see how, as a provincial politician, Dr Forbes Godfrey was perfectly situated to attempt to change the actual laws governing the province through the process of introducing private members’ bills in the legislature. In chapter 3, the royal commissioners all grappled with what recommendations to make to address the problems their commissions had been established to study. Chapter 4 shows how Kaufman’s knowledge of the law influenced the way he and the pib , formed to educate families about birth control, provided advice regarding both sterilization and birth control and thus how Kaufman himself pursued his eugenic agenda. His and the pib ’s use of the law was different from that of Godfrey and later the Eugenics Society of Canada. Kaufman employed the legal concepts of consent in the case of sterilization and of the public good in the case of birth control as a shield, or a defence, to protect the pib ’s activities in any legal challenge. In contrast, Godfrey and the esc , who shared the goal of changing the law to allow certain eugenic activities to take place, tried to use the law as a sword to force open the door to eugenic solutions. As with any kind of source material, historians must understand precisely what they are scrutinizing. Scholars have addressed some of the issues in using the law to study social history and have identified

22

In the Public Good

some useful considerations. Among these is the need to ask whose voices are being heard and how they are being mediated by the legal process.36 Ironically, most of the voices of individual women who appear in chapter 4 serve to counterbalance concerns about the inequities women often faced in legal proceedings. There, we meet Dorothea Palmer, Kaufman’s employee and the actual defendant in the Eastview proceedings, who was at the mercy of an almost completely male criminal justice system and yet relished her position and refused to play the victim. We also hear the brave testimony of each of the twenty-one women who, speaking through an interpreter in open court, gave evidence on the crown’s behalf. Challenging the authority of their church and often of their husbands, they made plain their desire to be informed about birth control; indeed, it was the collective voices of these women that spoke for the “public” in the legal assessment of the public good. The legal sources on which this work relies are, of course, Canadian. While this is self-evident given the subject matter, its implications may not be. Although the Canadian government and legal systems are very similar to those of Great Britain and the United States, there are some differences. An important example is the particular division of power between levels of government. In Canada, most matters relevant to eugenic issues – such as marriage laws, the establishment, maintenance, and management of hospitals, asylums, and jails (although not federal penitentiaries for the most serious crimes), and education – fall under provincial legislative jurisdiction. This division of powers, which places most of the legislative authority to address eugenic problems in provincial hands, is one reason why the Canadian scholarship on eugenics appears fractured. One important exception to provincial authority for most matters related to eugenics is criminal law, a federal matter, which is codified in the Criminal Code of Canada. The fact that the legal issue at stake in the Eastview trial fell under federal criminal law jurisdiction explains why this particular local story had immediate and direct national implications, unlike Godfrey’s bills or the three royal commissions. At the same time, however, while the criminal law is federal, for constitutional reasons, its administration falls under provincial responsibility. Thus, it was the Ontario legal community – from the local police, to the Ontario crown attorney who prosecuted the alleged crime, to the Toronto law firm that defended Palmer, to the provincial court judge who decided the outcome – that was key

Introduction

23

to the way this story played out. This explains the inclusion of the Eastview trial in a book about eugenics and law in Ontario. These case studies examine a particular set of events and focus on the actions and words of a particular set of actors. While together they present a rich story, that story is naturally framed by those events and actors, and certain matters remain outside that frame.37 This explains, for example, why the issue of sterilizations taking place in institutions in the absence of any eugenic law authorizing them is not discussed.38 Also, some may be surprised that a work on eugenics and law does not include a discussion of attempts in this period to change immigration laws to restrict “undesirable” immigrants from certain countries being admitted to Canada, especially given the importance of such laws during this same period in the American history of eugenics. The reason is simple and reflects once again the peculiarities of the Canadian system of government under which immigration, like criminal law, is a federal, not provincial, matter. However, while immigration law may not be part of this story, immigration itself certainly is. As described in chapter 1, one of the major triggers for social reform in so many quarters was the influx of individuals not only from Britain and but also from continental Europe, the arrival of the latter causing many (outside Quebec) to become concerned about the country’s ability to retain its British character. One might also expect to read about taxonomies – schemes of classification – in a book about eugenics and law. After all, eugenics was about categorizing people based on fitness. The 1913 British Mental Deficiency Act, which was enacted in order to provide for the “care and management” of four classes of people (“idiots,” “imbeciles,” “feeble-minded,” and “moral imbeciles”), provides a good example of the taxonomies of fitness developed by Galton’s followers (although even in Britain the concept of feeble-mindedness was very loose).39 Furthermore, law itself is regularly used to categorize: degrees of murder, different kinds of assault, guilty or not-guilty pleas, and so on. Yet detailed thinking on such matters and the careful development of schemes for organizing and classifying groups was generally not a concern of the individuals involved in these episodes in Ontario. Instead, where necessary, the categories of fitness determined elsewhere were adopted with little apparent discussion. Justice Hodgins, in the first of the three royal commissions, was the only one who demonstrated some interest in taxonomies as

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In the Public Good

he considered the issues related to his task, but in the end his recommendations were unclear and somewhat contradictory. As part of a proposed province-wide survey of every individual in order to make a complete list of those who suffered from mental deficiency, Hodgins proposed the use of just two categories –“feeble-minded” and “moral imbecile” – already in use in Britain. In rejecting any need to include a definition of the remaining two, “idiots” and “imbeciles,” Hodgins took a “we will know it when we see it” approach. He noted that individuals in these groups were “easily known” and that the survey could be expanded to include the additional categories at some later point if necessary. Yet, just a few pages later, he recommended that any legislation ultimately passed could use all four of the British categories. Dr Godfrey himself did not do any original thinking on the matter of classification in the process of bringing forward his sterilization bills but merely incorporated wording from American sources. While the origins of Godfrey’s proposed marriage amendments are obscure, given what we know of his personal characteristics (and although at one point he denied knowing of similar legislation elsewhere), it is more likely that he once again adopted existing wording for his bills rather than created something himself. Finally, in light of the indirect focus on eugenics in the Eastview trial, the subject of eugenic taxonomy is not so relevant since, at least on the surface, A.R. Kaufman’s goal was to promote birth control. In any event, his overall approach to categorizing was neither sophisticated nor scientific. Kaufman simply directed his efforts at those whom his own substantial prejudices told him were less worthwhile: the poor, the Roman Catholics, and the French. Thus, these episodes do little to further our understanding of how the notion of “feeble-mindedness” and related concepts like “idiocy” and “imbecility” were constructed or even understood in Ontario in this period. The case studies show how these historical characters rallied around the cause of eugenics in Ontario but looked elsewhere for specifics and brought their own understandings of what exactly those specifics meant. As will now be apparent, this book uses a thematic rather than a chronological approach to explore the issues in order to obtain the analytical advantage of discussing “like” episodes together. While this is helpful for understanding the evolution of Godfrey’s proposed bills, for instance, it does tend to push the social context in which

Introduction

25

these events occurred a little to the background and may obscure the fact that these things were happening at the same time, one example being the fact that the Hodgins Commission was created in the midst of Godfrey’s efforts to have eugenic legislation passed. That said, chapter 1, with its discussion of Ontario at the time and of the broader eugenics crusade, provides the backdrop for the case studies that follow. Overall, this structure allows the reader to understand better each of the particular forms of law and the ways in which a variety of individuals used them to promote eugenic solutions in the period between 1910 and 1938. These years, which bookend this account, span the first of Godfrey’s bills and the final royal commission, with everything else taking place within that time period. The reader might be tempted to conclude that the third royal commission, reporting on the eve of the Second World War, marked the end of the eugenics story in Ontario. Indeed, conventional public thinking and even some studies reflect the view that eugenics disappeared as the horrors of Nazi eugenics were increasingly exposed during and following the war. Contemporary scholarship resists this tidy endpoint.40 In terms of the story presented here, knowledge of the Nazi program, as well as the broader evolution in the way people and nations addressed human rights following the war, did affect how individuals viewed and discussed eugenic ideas, but 1938 marked the last pre-war milestone in the Ontario story of eugenics.

1 Places and People

The metaphor of eugenics as a shape-shifter used in the Introduction reminds us that broadly similar eugenic solutions could be adapted to local circumstances. It also draws attention to the fact that diversity and inconsistency could characterize the ways in which eugenic thinking was expressed from place to place. Both points emphasize the importance of examining a particular social and political environment in order to comprehend why eugenics manifested in that environment as it did, including identifying the individuals along with their particular interests who drove its eugenic agenda. Thus, it is essential, as we delve into the case studies that follow, to have an awareness of the Ontario context, and that of Toronto in particular, in the early twentieth century, while recognizing the common themes and elements of eugenics more generally in order to see how the course of eugenics in Ontario fit into a broader national and international picture. This chapter proceeds along both tracks. It begins with a description of early-twentieth-century Ontario, with a particular focus on Toronto in order to make sense of the appeal of eugenic ideas in that time and place. It then discusses some of the ways in which individuals who feature in the following case studies were influenced by eugenics in other places, specifically, Britain and the United States. Next, it elaborates on certain themes like race, religion, and public health that affected how eugenics played out in individual locations, and highlights the ways in which they shaped the trajectory of eugenics in Ontario. Together, this discussion serves three purposes. It helps the reader understand more about eugenics overall; it illuminates the relationship between eugenics and its specific Ontario

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incarnation; and it provides a useful touchstone for the issues and themes in the case studies that follow.

e a r ly- t w e n t ie t h - c e ntury ontari o The first challenge, then, is to assess what local conditions drove interest in eugenics in Ontario in the time period in which the events described in this book took place. Eugenics was largely an urban phenomenon in Ontario and much of the eugenic activity in the province was centred in the province’s capital city, Toronto. This is not surprising because, at the time of the 1901 census, Toronto was the second-largest city in the country, behind Montreal, and by far the largest city in the province, more than triple the size of Ottawa, which was next, and quadruple the size of Hamilton, which was third. Toronto was also the home of the legislature, the government, the University of Toronto, and several hospitals.1 Its size along with important institutions like these attracted professional elites and newcomers alike. In many ways, therefore, the history of eugenics in Ontario can be mapped by the demographics and the social and political culture of Toronto. Like the rest of Canada at the beginning of the twentieth century, Ontario was experiencing “fundamental changes in [the] composition and structure”2 of its population. Toronto’s growth was downright startling, with changes of an enormity that are hard to comprehend today. Between 1901 and 1911, while the province’s population grew 15.5 per cent, from 2,182,947 to 2,523,274, Toronto’s population almost doubled from 208,040 to 376,538 – an increase of 81 per cent in just ten years. And, while the province had added almost 800,000 people by 1921 (an increase of 34 per cent in the twenty-year period), Toronto grew to 521,893 in the same period, an eye-popping increase of 150 per cent.3 Other cities were growing at a similarly staggering rate. In this same twenty-year period, the populations of Ottawa and Hamilton increased by 81 per cent and 116 per cent, respectively.4 Yet, at the same time, the birth rate in Canada, as elsewhere, was actually dropping: in 1897 there were 189 live births per 1,000 Canadian women, a number that had dropped to 94 by 1931.5 Driving this dramatic increase in population was immigration: between 1900 and 1909 alone, Canada accepted 1,244,597 immigrants in total, 315,151 of whom were from Central and Eastern

28

In the Public Good

Europe.6 Although in absolute numbers most of the immigrants initially came from Britain, it was another story in terms of percentages. Moreover, this proportion changed dramatically over the course of the first three decades of the century. In Toronto, this meant a quintuple increase in the non-English-speaking population between 1900 and 1911 – from 6,000 to more than 30,000.7 Whereas, in 1901, 59.4 per cent of the immigrants residing in Canada were of British or Irish origin, this overall percentage dropped to 54.5 per cent in 1921, to 48 per cent in 1926, and to 33.6 per cent in 1928. Historians of statistics Jean-Pierre Beaud and Jean-Guy Prévost note that “despite efforts and expenses incurred to attract immigrants from Britain and from ‘preferred’ countries [such as Scandinavia and Germany], the proportion of immigrants from ‘non-preferred’ countries continued to rise.”8 There is another salient aspect to these statistics: the growth of the cities meant that Ontario and, partly in consequence, Canada as a whole was rapidly becoming urbanized. While the province’s urban population in 1891 was 818,998, by 1921 it had more than doubled to 1,706,632 – an increase of 108 per cent.9 This reflected the overall Canadian numbers. The 1881 census showed that Canada’s urban population was 1.1 million, about a quarter of the overall population. But in 1921 the urban population stood at 4.3 million people and the proportion had increased to half.10 Urbanization was partly the result of the growth in the manufacturing economy and the employment it provided. In Toronto, this was reflected in railyards, iron foundries, garment, shoe, and tobacco operations, and a proliferation of wholesalers and retailers distributing “everything from stoves to pianos.”11 In Ottawa, at the confluence of two important waterways and a canal, transportation and the lumber industries were the foundation of the economy, while in Hamilton steel companies Stelco and Dofasco, as they later became known, had begun operating in 1910 and 1912, respectively.12 Across the province, industries supported by an extensive banking network mirrored the world “spawned by the industrial revolution.”13 Together, all these trends – population growth, a booming economy, and urbanization – produced rapid modernization. In Toronto, motor-driven fire trucks replaced horse-drawn carriages in 1911.14 The streetcar system had been fully electric in Ottawa since 1893, and in Toronto electric lights had been shining along King, Queen, and Yonge streets since 1894. Major engineering, transportation, and public-health projects were being completed, such as water

Places and People

29

chlorination in 1910 and filtration facilities in 1912 in Toronto and pumping stations in Hamilton in the same period.15 Dredging had enlarged the Hamilton harbour in 1907 and the massive Prince Edward Viaduct linked Bloor Street on the west and Danforth Avenue on the east over the Don River ravine in 1918. Entertainment was flourishing as well. Babe Ruth hit his first professional home run playing against the baseball Maple Leafs on 5 September 1914. The Ottawa Senators were one of the original teams in the National Hockey League, founded in 1913, and the hockey Maple Leafs played their first game in 1917. A permanent movie theatre, the Theatorium, opened in 1906 in Toronto, where Massey Hall had provided a beautiful location for concerts since 1894. The Hamilton Botanical Gardens was conceptualized in the 1920s. The exhilarating aspects of modernization notwithstanding, changes of such magnitude would have presented difficulties in any circumstances as municipalities struggled to accommodate the unprecedented growth in their populations. With its stunning increase, Toronto was no exception. Even in the early decades of the twentieth century, the city’s long-standing disparaging nickname still applied. The label “Muddy York” had been coined before the settlement of York was renamed Toronto and incorporated as a city in 1834. It reflected the problem of streets turned into impassable bogs after almost any amount of rain, which, even nearly a century later, made passage by the horse-drawn carriages, motor vehicles, bicycles, and pedestrians that shared the roads almost impossible. The name carried metaphoric overtones as well, related to the concerns about the unsanitary conditions in which many lived and the “muddiness” of the city’s moral tone. Such growth was indeed linked to urban poverty: between 1906 and 1919, the period of Toronto’s biggest population increase, “wages for male workers declined while the housing crisis was aggravated due to the influx of immigrants.”16 Historian William Brown writes grimly about what the city was like for some: “By all accounts, Toronto in the 1910’s was an unhealthy place to live, to bear children and to raise a family particularly for the working classes. The combination of rapid growth, industrial expansion and limited government involvement in public health had made living conditions quite dangerous. The drinking water was contaminated; there was an overuse of privy pits; the streets were poorly drained; the milk supply was unregulated; outbreaks of communicable disease were commonplace.”17 These problems affected infants and

30

In the Public Good

Furniture warehouse in the Ward, an immigrant neighbourhood in the centre of Toronto, c. 1910. (City of Toronto Archives, Fonds 1244, Item 683.)

children especially severely. Between 1901 and 1913, infant mortality in Toronto ranged from 135.4 to 179.7 per 1,000 live births, a figure “exceeding the rates of contemporary American cities of comparable size.”18 The problems were most pronounced in an area in the centre of Toronto known as the Ward. Urban historian Paul Rutherford writes that “by the beginning of the twentieth century, it was widely accepted that urban growth posed a serious menace to the future of the nation.”19 Among problems like poverty, lack of public health, and poor housing, prostitution stood out as both a cause and an effect. Prostitution was, of course, seen as a moral issue, but it brought other evils in its wake. First, political scientist Harvey G. Simmons reports that “contemporary statistics indicated that 60% of all prostitutes were feeble-minded.”20 Second, supposedly feeble-minded individuals were believed to have higher than normal fertility rates. Third, feeble-mindedness was thought to be hereditary. Taken together, this all meant that prostitution was deeply implicated in the idea that the

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31

Sleeping in a doorway on a hot summer night in the Ward, c. 1910. (City of Toronto Archives, Fonds 1244, Item 1034.)

percentage of the population believed to be feeble-minded appeared to be increasing more rapidly than the supposedly normal population, one cause of the “race suicide” that eugenicists were concerned about. Moreover, prostitution was seen as the main factor in the spread of venereal disease, which, as chapter 3 shows, was a significant public-health concern of the day. Yet, as keen as were the problems created by this swift growth and urbanization, they were exacerbated by Toronto’s increasingly non-British, non-Protestant character. In the nineteenth century, Toronto, like the province as a whole, was British, English-speaking, and “overwhelmingly Protestant,”21 reflecting a country that, at least outside Quebec, was a proud Dominion of the British Empire. However, things were changing. In 1901 Roman Catholics were the largest minority religious group in the province, making up 17.8 per cent of the population. This percentage continued to increase over the next few decades – to 19.2 per cent by the time of the 1911 census, 19.8 per cent by 1921, and 21.7 per cent by 1931.22 The

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In the Public Good

Toilet in an impoverished neighbourhood, Toronto, c. 1913. (City of Toronto Archives, Fonds 200, Series 372, Subseries 32, Item 251.)

percentages were somewhat lower in Toronto, where they actually continued to shrink in the face of non-Roman Catholic (mainly Irish Protestant) immigrants from Britain and Jewish immigrants from Eastern Europe. In 1901, 1911, and 1921 the Roman Catholic population made up 13.9 per cent, 13.2 per cent, and 12.4 per cent respectively of Toronto’s overall total. On the other hand, although in absolute numbers it was small, the Jewish population was increasing extremely quickly and would continue to do so, growing from 3,090 (1 per cent) in 1901 to just under 35,000 (6.7 per cent) in 1921.23 Statistics about Ottawa reveal its non-British character even more dramatically. There, French-speaking and Irish Roman Catholics made up about half the population in the first few decades of the twentieth century. In fact, by 1912, Ottawa had “emerged as the capital of Franco-Ontario and the centre of early Canadian conflicts over language.”24 This characteristic prompted A.R. Kaufman’s decision to “poke the lion” and have his workers distribute birth-control information to residents of Eastview, a French-speaking suburb

Places and People

33

Interior, 152 York Street, Toronto, c. 1911. (City of Toronto Archives, Fonds 200, Series 372, Subseries 32, Item 1.)

of Ottawa, in the face of strenuous opposition from the Roman Catholic Church. The arrival of many thousands of people, many of whom could not speak English, not only in Toronto but in the province’s two other large cities, Ottawa and Hamilton, was shocking to many. The shock was evident throughout Ontario, but it was especially keen in “Toronto the Good,” another old nickname, this one referring to the city’s dour morality in the Victorian era. The mental adjustment required would take time, especially since not everyone was enthusiastic about integrating many of the newcomers in the first place. This included some members of Parliament, who complained that the feeble-minded immigrants arriving in the country were “a social virus that cannot be exterminated from our land for centuries.”25 As historian Ian Dowbiggin notes, “a sinister view persisted that a high percentage of newcomers were carriers of hereditary weaknesses that made them prone to crime, dependence and physical and mental disabilities.”26 It did not help that, even

34

In the Public Good

when the newcomers were British and Protestant, many believed that they, too, were “unfit.” It is not surprising that such changes resulted in questions about the kind of country Canada should be and become. After all, nation building (which ignored the history and rights of Indigenous people) was a continuing political concern in the young settler-colonial land: Alberta and Saskatchewan had become provinces only in 1905 and even the Canadian Pacific Railway, promised by Sir John A. Macdonald as a transcontinental link in order to entice British Columbia into the Canadian confederation in 1871, had been completed merely twenty-five years before Dr Godfrey introduced his first eugenic measure in the Ontario legislature. The objective of building a geographic nation went hand in hand with considerations about the desired characteristics of its inhabitants, thus linking the goal of physical nation building to that of ensuring the fitness of its individual inhabitants in achieving a modern state. A striking aspect of the response to problems like poverty and prostitution was the number of organizations created to deal with them, especially in Toronto. In addition to the Toronto Police’s Morality Department (which was accused of being ineffective and inconsistent, at best, and corrupt, at worst), there were many private organizations, both religious and secular, that relied on the work of middle- and upper-class women devoted in one way or another to the problem of morality. Historian Carolyn Strange notes that “Toronto was national headquarters of the social purity movement, a loose coalition of Protestant activists and educators who set out to ‘raise the moral tone’ of Canadian society in the late nineteenth and early twentieth centuries.”27 Religious denominations like the Presbyterians and Methodists each boasted their own moral-reform committees with names like the Methodist Temperance, Prohibition and Moral Reform Department. The Moral and Social Reform Council and its local arm, the Moral and Social Reform League, operated in Toronto, as did its offshoot, the National Committee for the Suppression of the White Slave Traffic.28 The National Council of Women was an important voice in lobbying for women’s rights such as suffrage, and one of its local branches, the Toronto Local Council of Women, played an active role in social reform, including in the founding in 1914 of the Big Sisters’ Association,29 whose members provided informal parole services for women in trouble with the law. While the Woman’s Christian

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35

Temperance Union, called by some the “most radical of moral reform organizations,”30 focused its efforts on anti-alcohol promotion, it also had a social-purity committee.31 The Salvation Army had been brought to Canada by English immigrants in the mid-1880s.32 It focused less on lobbying than on activism, as its members, including spirited young women in uniform accompanied by brass bands, marched into slums and jails to “save” criminals, alcoholics, and prostitutes. Meanwhile, in English-speaking Canada, the sabbatarian movement tried to keep Sundays free of sinful activities and even the operation of streetcars, which might transport – literally – the faithful to sin. A number of these groups got together to lobby for the creation of a municipal Social Survey Commission in Toronto in order to undertake a statistical analysis of crime and morality issues, similar to the analyses conducted in New York City in 1902 and Chicago in 1911.33 Their efforts were successful and the commission was established in 1915. While the general focus of many of these activists was moral reform, their specific concern was feeble-mindedness since it was individuals believed to have reduced mental capacity who were thought most likely to become prostitutes, abuse alcohol, and promiscuously reproduce their own type at a far higher than average rate. In fact, according to activists, the “menace of the feeble-minded” was the single greatest problem of the day.34 The issue was more than one of mere numbers. There was the additional concern that feeble-mindedness, believed to be the condition of being just below normal intelligence, was insidious – it was hard to detect except by a trained eye. It was commonly believed that “the feeble-minded” were particularly dangerous since they were able to move undetected among the healthy population. Toronto newspapers reflected this concern. In the period between 1910, when Forbes Godfrey introduced his first private member’s bill, and 1917, when the Hodgins Royal Commission on the Care and Control of the Mentally Defective and Feeble-Minded was created, Toronto’s Globe alone carried over 389 articles that either discussed or made passing reference to feeble-mindedness.35 One response was to urge that those believed to be feeble-minded be placed in custodial care, segregated in institutions, partly to allow for their care and safety and partly to ensure they would not have children. The solution of institutional care was not a new idea in this period, or one promoted exclusively by eugenicists. In fact, as Simmons points out, “in advocating permanent custodial care for

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In the Public Good

feeble-minded women, the social reformers were not advocating something new or radical, for large numbers of people who had committed no crime were already institutionalized in Ontario’s asylums, houses of refuge and houses of industry.”36 Furthermore, Ontario already had institutions where individuals considered to be insane were housed, such as the ones in Whitby and Orillia, as well as laws ensuring that they could be committed; however, it had no facilities specifically intended to care for those with mental deficiencies. Public interest in filling this gap can be seen as early as 1894.37

e u g e n ic s o l uti ons Among the reformers were those focused on eugenic solutions. Prominent individuals like Helen MacMurchy, C.K. Clarke, and Clarence Hincks, notably all physicians, became public spokespeople on both the Ontario and national stages for issues relating to the supposed increase of unfit individuals, which they believed resulted from both immigration and the apparent high birth rates among those deemed less desirable. MacMurchy was appointed the provincial inspector of the feeble-minded in 1906, a role that gave her a public platform from which to draw attention to these issues. She began to label her ideas for dealing with this “menace” as “eugenic” as early as 1914 and became the best-known defender of eugenic sterilization.38 In contrast, Clarke championed restrictions on immigration of unsuitable individuals. Hincks, along with MacMurchy and Clarke, became a founder of the Provincial Association for the Care of the Feeble-Minded in 1912. These activists brought eugenic solutions to the social problems they identified in Ontario and its urban landscape, particularly Toronto. In Ontario, by virtue of its close relationship to both Britain and the United States, these solutions often reflected the influence of eugenic ideas and strategies of one or the other of those places. As noted in the Introduction, the question “What is eugenics?” is surprisingly difficult to answer. The challenge is that contradictions abound: what might be characteristic of one location is not of another. Thus, writing about the history of eugenics carries the risk of assuming (or leaving the impression) that what was true in one place was true everywhere. For example, while implementation of sterilization policies characterized the American eugenic response to concerns about growing numbers of unfit individuals in

Places and People

37

the population, sterilization was not accepted as the solution to the same problem and never became law in Britain, the location generally described as the birthplace of eugenics. In that country by contrast, the focus of eugenic policies was on segregation of feeble-minded individuals within institutions. Even the role of Galton, unquestioned in the realm of British influence as the father of eugenics and indeed the very individual who coined the word, was different in different places. For example, historian Nikolai Krementsov shows that, in Russia, Galton played more of a parallel than foundational role in the origins of eugenics. Moreover, at the First International Eugenics Congress in London in 1912, German representative Alfred Ploetz successfully argued that the movement had actually begun in his own country, where an international congress on race hygiene had been held eight years earlier, in 1904.39 In France, eugenic solutions to concerns related to the quality of the population and the falling birth rate generally concentrated on positive steps, a result of the influence of the Lamarckian view of heredity, which suggested that acquired characteristics could be inherited and which thus emphasized the importance of the environment. Hence, while a study may be focused on a specific place, neither the historian nor her reader should forget that it may be like just one description of the proverbial elephant which seemed to be a rope, a palm leaf, or a tree trunk, depending upon where each blind man touched it. At the same time, though unique environments were moulding eugenic ideas to suit local issues in specific jurisdictions, there were aspects of eugenics that replicated along common lines internationally – such as in settler-colonial locations where the “mother country” still held authority or in “spheres of influence” where cultural and economic characteristics of one country prevailed in another. A number of such common elements were present in Ontario, where the eugenics movement, like Canadian/Ontario culture of the day, was a kind of Anglo-American hybrid. Ontario, notwithstanding its status as part of the British Empire, had much in common with the United States, including British origins, the need for immigration to populate the territory, and the arrival of many who neither spoke English nor immediately understood the land or the culture in which they now found themselves. The tensions that accompanied the country’s changing ethnic character produced solutions like sterilization legislation, of which there

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In the Public Good

were many examples in the United States. Forbes Godfrey and others drew on them directly. The royal commissions, themselves creatures of British political and legal culture, showed the influences of both countries. In their roles as sole or chief commissioner, both Hodgins and Ross travelled to the United States to investigate institutions and meet with experts. While the former shied completely away from sterilization, even failing to address it in his report, preferring the more British approach of institutional segregation, almost all the appendix material he included in his report was from American experts. Details of American eugenicist Harry Laughlin’s speech on matters related to eugenics and immigration in Toronto on 12 August 1924 were front-page material in the Toronto Daily Star, providing easy access for the general public to his ideas.40 Subsequently, both the Ross and Magone commissions recommended sterilization, a solution adopted in many American jurisdictions. Eugenicist A.R. Kaufman sometimes drew on expertise from abroad and in other cases followed his own instincts, for example, in his support of sterilization only when it was a private decision with no element of coercion and in his belief that segregation was cruel. But he corresponded with Marie Stopes and Margaret Sanger, British and American birth-control pioneers, respectively, and availed himself of American expertise in setting up his own birth-control program. Among the matters that were often intertwined in various ways with eugenics were race, religion, public health, birth control, feminism, and, as we saw above, immigration and moral reform. Not only were the relationships between eugenics and these factors not identical everywhere, as the following discussion shows, but some were more important in certain places and at certain times than others, a fact that is both reflected by and helps explain the local character of eugenics. The issue of “race” provides a revealing example. The first complication is that the very concept had many different meanings at the time, from nationality and country of origin to humanity in general and skin colour. This means that historians must exercise caution about what, precisely, was meant by the notion of “improving of the race” as it may have been used in any particular instance. In Ontario, during the period covered in this book, “race” generally referred either to ethnic or national origin or to the human race as a whole: categorizing individuals on the basis of skin colour would have served largely to separate only those with Asian or Southern European complexions

Places and People

39

from those of British and other European backgrounds since there were so few members of different groups in Ontario at the time. In fact, the 1901 census indicates that there were just fifteen Indigenous people then living in Toronto41 and “Blacks” represented just 0.32 per cent of the entire Canadian population, a total of approximately 17,000 individuals across the country.42 Moreover, being a member of the British “race” did not automatically confer fitness in the eyes of eugenicists and others in early-twentieth-century Toronto. As we have seen, some in Canada worried that it was the dregs of British society who were being sent across the Atlantic.43 Ironically, these were the flip side of certain British concerns that it was the strong and adventurous (in other words, the fit) who were choosing to leave the country for greener pastures. Although eugenics in Britain has been understood to focus more on class than on race, the latter was not absent from discussions about eugenics in that country.44 The issue of race had a more complex relationship to eugenics in the United States; however, historians have pointed out that African Americans were not the initial targets of early eugenic policies but became so only after the Depression era and the implementation of the New Deal social policies which had the effect of “discovering” a population previously ignored by reformers. Moreover, among the early supporters of eugenics in the United States were some prominent African Americans, including activist and intellectual W.E.B. Du Bois, who saw eugenics as a way to “uplift” blacks as well as whites.45 Similarly, Erika Dyck notes that, while ultimately the percentage of Indigenous people who were sterilized under the 1928 Alberta law overall was much higher than their percentage of the total population, this became true only in the 1960s when the law was applied aggressively to them.46 The subject of religion also offers an entry point into a nuanced discussion of eugenics, beginning with the horror of the Nazi program to exterminate the Jews. Yet the very origins of the movement included Jewish eugenicists.47 Next, the role of the Roman Catholic Church is also more complex than often understood. Despite its belief in the sanctity of every human life, the church was not the bitter enemy of all eugenic philosophies. In fact, a number of early promoters of eugenics in the United States were members of the Roman Catholic clergy48 while the church itself supported eugenic marriages as well as natural birth control.49 At the same time, however, this book illuminates the deep-seated anti-Catholic and

40

In the Public Good

anti-French-Canadian animus that motivated A.R. Kaufman and resulted in a successful birth-control program (highly offensive to that church) largely based on his eugenic views about the inherent lack of fitness of the poor, French-speaking Roman Catholic residents of Eastview, Ontario. Another of the most central aspects of eugenics is the connection to public health. Given that eugenic philosophies were directed at improving the human race, their association with public health should come as no surprise, especially in the early twentieth century as governments recognized their responsibilities to develop policies to ensure the health and fitness of their populations. The province of Ontario, for example, legislated a variety of public-health measures, including mandatory smallpox vaccination in 1914, mandatory reporting of venereal disease in 1917, and compulsory sterilization of milk in 1937, and, in Toronto, outdoor privies became illegal in 1918.50 In fact, the first departments of health in Canada and Ontario were formed at the same time as explicitly eugenic thinking was popular – 1919 and 1924, respectively. The relationship between public health and eugenics was tailor-made to attract the interest and involvement of physicians. For many, like Dr Herbert Bruce, the characterization of eugenics as a science, made by Galton himself, appealed to their pride in their own professional training, which, by virtue of its scientific foundation in universities, distinguished them from other kinds of practitioners like homeopaths and chiropractors. In addition, for professional reasons, physicians were looking for ways to enhance their status and social authority in the face of competition from members of such other groups. Eugenics, especially understood as a public-health matter, created both local and national platforms from which physicians could expand their professional reach. It is no coincidence that two important figures in the Ontario history of eugenics also had significant roles in Canadian public health: Dr Forbes Godfrey was appointed the first minister of health in Ontario in 1924 and Dr Helen MacMurchy left Toronto for Ottawa in 1920, shortly after the delivery of the Hodgins Report, to take up the newly created position of chief of child welfare in the federal Department of Public Health. The birth-control campaign that attracted many social reformers was closely connected to eugenics partly because the supporters of both movements believed in the “social efficacy of fertility control” and partly because both birth control and eugenics were seen as

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public-health measures.51 Some, including historians, have actually argued that birth control and eugenics were essentially the same thing.52 Others have not gone so far but have nevertheless pointed out that “in some instances, eugenics and birth control came to be more or less interchangeable terms, one selected over the other according to locally expedient politics,” and that “the eugenic component of birth control campaigns needs to be appreciated as historically common place.”53 Overall, however, there is general agreement that the two campaigns were separate, although there was certainly much overlap among promoters, supporters, and goals.54 Indeed, Marie Stopes and Margaret Sanger have been identified so closely with eugenics as to have drawn censure on the basis that this tainted their advocacy of birth control. In each case, their work has sparked vigorous debates about whether or not they were actually “true believers” in the eugenic cause or whether they associated themselves with it merely out of convenience. There is no debate about the views of A.R. Kaufman. His promotion of birth control was unequivocally part of his eugenic beliefs although he also made clear that he saw them as different but connected activities. Moreover, he explicitly linked his promotion of birth control to public health, arguing that it would improve the well-being of infants and mothers. The cause of birth control was only one of many in this period that had great appeal to women. Their participation in reform movements of the late nineteenth and early twentieth centuries was “made possible by technological improvements, new consumer practices, increased availability of domestic servants and a declining birth rate, as well as aspirations fostered variously by religious faith, political ideologies, educational advances, and professional ambitions.”55 And participate they did. The Woman’s Christian Temperance Union, for example, boasted of membership (which was restricted to women) of over 5,500 in Ontario alone by 1900.56 Moreover, it was not uncommon for organizations to focus their efforts on a range of issues that affected women generally, resulting in groups with overlapping goals, such as temperance, women’s suffrage, and eugenics. The role of women in promoting eugenics in North America is multi-faceted and has attracted much consideration from feminist historians in particular grappling with questions related to the role of women generally in this period and attempting to understand why and how eugenic ideas appealed to first-wave (or maternal) feminists.

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Women like Ontario physician Helen MacMurchy, Alberta magistrate Emily Murphy, and writer Nellie McClung were important leaders and promoters in the eugenics movement, while Harvard biologist Charles Davenport, who created the Eugenics Record Office in Cold Spring Harbor, New York, drew upon a cohort of college-educated women to undertake family-studies fieldwork. Of course, supposedly feeble-minded women were also the target of eugenic policies, both reproductive sterilization (along with their male counterparts) and segregation during their child-bearing years, which could be applied more easily to women. The reason for feminists’ attraction to eugenics lies partly in the notion implicit in the views of maternal feminists that “women did not merely have babies: they reproduced the race”57 and, as such, had a responsibility beyond their own families to ensure that its future was fit and healthy. Running through all these diverse elements was the theme of “modernizing” which sparked the enthusiasm of the progressives in this period for using the power of the state to regulate, especially in the area of public health.58 Not all agreed, however, since this state involvement was at odds with the liberal doctrine of the primacy of individual rights. These values clashed in Ontario as they did elsewhere in North America. The case studies in this book illustrate both concepts at play. Godfrey’s bills were an attempt to require the state to regulate marriage and reproduction in the public good. He failed partly because of objections from the then-premier about the bills’ interference with individual rights. The royal commissions, themselves vehicles of state intervention, also recommended such regulation. The Eastview trial demonstrates a different approach. By harnessing the instruments of state regulation (the legal process), and with support from many elements of the public both as witnesses at the trial and in the press, Kaufman succeeded in having the law effectively changed. The result was that individuals had the right to acquire the knowledge (and hence the power) to control their own reproduction. Along with this description of some of the themes that intersected with eugenics thinking, it is useful to note the highlights of such thinking in jurisdictions with similarities to, and significant influence on, Ontario.59 In Britain, while eugenics never obtained the degree of influence that its supporters had anticipated, a number of steps were taken nevertheless. The year 1907 saw the formation of the Eugenics Education Society. This organization maintained a high profile in

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stimulating the understanding of eugenics, with the publication of the Eugenics Review among its numerous activities. The 1908 report of the British Royal Commission on the Care and Control of the FeebleMinded was the basis for the Mental Deficiency Act adopted in 1913. This legislation set out a system of caring for so-called “mentally deficient” individuals in four categories which included institutionalization for some cases.60 In total, some 65,000 individuals were segregated in institutions as a result of this legislation, mainly “young women designated morally wayward.”61 Sterilization legislation, even authorizing voluntary eugenic surgeries, while hotly debated was never enacted, partly because the powerful labour movement was “largely hostile”62 and geneticists tended to promote non-genetic explanations for conditions like feeble-mindedness.63 Similarly, legislation restricting marriage was discussed but never implemented.64 In the United States, restrictions preventing the marriage of “epileptics, imbeciles and feeble-minded” were passed in Connecticut as early as 1895,65 and, in 1907, Indiana became the first American state to pass eugenic sterilization legislation. In 1910 Charles Davenport established the ero for the purpose of undertaking scientific research into human heredity. He was also interested in the value of marriage restrictions and presented a paper on this topic at the First International Eugenics Congress.66 While his own views about the benefits of reproductive sterilization ebbed and flowed over his career, he was joined at the ero by Harry Laughlin, a Missouri high school teacher who had become interested in the mechanics of heredity and made the campaign to have laws passed authorizing sterilization of so-called unfit individuals his life’s work. By 1922, when the ero published Laughlin’s report Eugenical Sterilization in the United States, fifteen American states, including New York and California, had adopted sterilization legislation (although in certain instances it was never implemented after having been struck down for constitutional reasons).67 Eventually, over thirty U.S. states passed eugenic sterilization laws, some of which remained on the books for decades (as was the case in Alberta) and under which over 60,000 individuals were sterilized. Eugenic ideas were also proving popular elsewhere in the British sphere of influence.68 That was certainly true in Canada, where concerns about individuals labelled “feeble-minded” and the apparent high birth rate of this group had begun to surface in the early years of the 1900s. This so-called differential birth rate was understood to

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be the source of a number of social problems in this country, including the rise of crime, prostitution, and venereal disease. Sterilization laws to address this problem were passed in Alberta in 1928 and British Columbia in 1933, and attempts were made to do likewise in other provinces including Manitoba and Saskatchewan. Initially, the Alberta legislation required the consent of the individual or his or her guardian to the surgery, but amendments to the law in 1937 removed this requirement in certain cases, including where the person was considered mentally defective. Ultimately, over 2,800 people were sterilized in Alberta before the legislation was finally repealed in 1972. In British Columbia, the number of surgeries was much smaller, approximately 300. This overview of eugenics in other places and some of the factors that played a role in the various ways it evolved, along with the snapshot of Ontario, leads back to the questions of what and how eugenic ideas were promoted in that province and what was the outcome of such promotion. Each of the three chapters that follows tells part of that story.

2 Legislating Eugenics: Dr Forbes Godfrey and His Private Member’s Bills

On 28 March 1913 the Toronto Daily Star featured a cheeky headline: “Whitney Orders; Godfrey Withdraws.”1 The accompanying story reported that “once more the favourite bills” of Dr Forbes Godfrey, introduced to sanction reproductive sterilization and marriage restrictions for unfit individuals, had been withdrawn from consideration by the Ontario legislature at the direction of the province’s premier, James Whitney.2 During his time as a member of the Ontario provincial Parliament, Godfrey, then a Conservative mpp on the government backbenches representing the constituency of York West, introduced a total of eight such bills which proposed eugenic solutions to social problems. On this occasion, there were two. The first was a bill proposing surgical sterilization of individuals considered unfit to procreate because of particular mental or physical conditions which it was believed could be passed on to future generations. The second was an amendment to the Ontario Marriage Act which in certain circumstances required a medical certificate from a physician attesting to the fact that neither party to the proposed marriage was “an idiot, insane, epileptic or imbecile.”3 Although reluctant to acquiesce even to the demand of the premier, the leader of his party, Godfrey was eventually persuaded to withdraw these bills when he received an undertaking from the Conservative government that its own long-awaited Marriage Act amendment was finally about to be introduced. Speaking to the matter in the legislature in the course of complying with Whitney’s demand, Godfrey got one further kick at the can, noting that he was “appalled to think what the harvest would be” in the absence of legislation of the kind he had proposed.4

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This anecdote introduces the main actor and the legal form used as the case study in this chapter – the colourful Dr Forbes Godfrey and the legislative bills he introduced between 1910 and 1921 with which he attempted to implement eugenic laws in the province of Ontario. Four of these would have enacted coerced sterilization (1910, 1912, 1913, and 1914) and four were intended to restrict marriage (1912, 1913, 1918, and 1921). The anecdote provides a sense of the vigorous debates about these bills within the legislature as well as the keen public interest in them as demonstrated by the press reports. It also shows how Godfrey’s measures, while not successful in their own right, spurred the government to action of its own. Although there are many examples of similar bills being introduced and passed in both the United States and other Canadian provinces, Godfrey’s unsuccessful bills were the only ones of their kind ever proposed in Ontario. Given that legislative solutions to similar social problems captured interest around the world, this is a surprising element of the history of the most populous province in the country and the home of most of the leaders of the Canadian eugenics movement. Yet the failure of Godfrey’s legislative efforts does not mean that there was no interest in or support for eugenics in the province. In fact, parsing the reasons why these bills were introduced and accounting for their failure to become law illuminates the extensive public debate and reflects the wide range of opinion about eugenics at the time, including the ways in which lawmakers and others weighed the public good against importance of individual rights in assessing these kinds of eugenic solutions. It also shows how one particular individual went about using his knowledge as a physician and his position as a lawmaker to promote eugenic ideas in the province and how the government responded to his actions.

f orb e s g o d f r e y: p h ys ic ian and poli ti ci an Forbes Godfrey (31 March 1867–6 January 1932) was born in Monck Township in rural Ontario. He was educated as a physician and surgeon at the universities of Toronto (where he won the General Proficiency Medal), Edinburgh, and Glasgow, and set up practice in the village of Mimico, now part of Etobicoke in Greater Toronto.5 On 1 June 1907 he was elected in a by-election as the Conservative mpp for the constituency of York West, which included Mimico, telling his supporters that “his chief aim” was to “seek legislation to aid

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Dr Forbes Godfrey, c. 1932. (Editorial, “The Hon. Dr. Forbes Godfrey,” Public Health Journal, 14, no. 8 [August 1923]: 385. Reproduced with permission of the Canadian Public Health Association.)

preventative medicine.”6 In that era, with the legislature in session only two or three months a year, politics was a part-time occupation for backbench members in particular and Godfrey was therefore able to continue his medical work. Over the years, that work had many aspects: he was a surgeon for the Canadian National Railway, the Mimico medical officer of health from 1918 to 1930, the physician for an industrial school (a “reform school” for boys) from 1894 at least to 1912,7 and the local coroner.8 He eventually

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joined the cabinet in the Conservative government of his close friend and ally Howard Ferguson – first as minister of labour in 1923, followed by a concurrent appointment as the first Ontario minister of health in 1924. He held these cabinet posts until he resigned them in 1930, reportedly after a serious disagreement with Premier Ferguson, although by this time he had been in ill health for some years. Godfrey died on 6 January 1932 at the age of sixty-four. Mimico schools were closed on the day of his funeral and the Globe reported that a “great throng” lined the streets in mourning: he was a wellknown and popular politician.9 Godfrey took to his political responsibilities with enthusiasm, and his activities, including numerous late-night speeches in the legislature on a wide range of controversial topics, were regularly reported in local newspapers. He earned a reputation as a strong advocate of public-health measures, such as the implementation of obligatory medical-reporting procedures and mandatory inoculation in connection with infectious diseases,10 and he campaigned for building provincial institutions for the treatment of tuberculosis. In fact, the Globe reported that, presumably because he had been “active in bringing forward advanced ideas on medical jurisprudence,” Godfrey was rumoured to be under consideration for appointment as commissioner to the anticipated Ontario Royal Commission on Medical Education.11 As an Irish Protestant Orangeman, Godfrey was “absolutely opposed” to French being taught in any publicly funded school in the province, particularly in the Roman Catholic separate school system. On this issue, he was not alone but rather part of a vociferous Protestant/Conservative contingent which believed that permitting the instruction of French in Ontario schools would result in a sinister increase in Roman Catholic influence in the province. Indeed, Godfrey was so outspoken in these views that his own Conservative Party was rumoured to be hesitant about renominating him as its candidate in the 1911 election.12 On other fronts, he introduced but almost immediately withdrew a bill that would have prevented white women from being employed by “orientals.”13 Yet he also supported legislation permitting Sikh immigration, arguing that Sikh soldiers were the “king’s subjects” who had fought for the empire and thus deserved the right to come to Canada.14 Godfrey was rather accident-prone, judging by reports of some of the odd things that happened to him: he was once hit in the face with

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the engine crank while attempting to start his car,15 and on another occasion his carriage was struck by lightning, which injured his horse so severely that it had to be put down.16 These incidents, plus the relatively regular travel to the Caribbean to recover “from a recent illness,”17 as well as unexplained “personal problems,”18 suggest that there might have been mental-health or alcohol concerns. Either condition would have been a great irony for an individual who supported eugenic ideas as Godfrey did, since such issues meant that he himself would have been subject to his own proposals.19 There were two main sources for Godfrey’s interest in eugenics, both related to his status and work as a physician. First, Godfrey was a member of a profession that was knowledgeable about eugenics and, as a whole, generally supported its philosophies.20 The movement’s “scientific” underpinning appealed to physicians, who valued their own scientific training and practices. Furthermore, physicians could claim new and important professional territory by making the argument that certain individuals should be assessed and sterilized or prevented from marrying, and then setting themselves up to do the assessment and, if necessary, the surgery. This was a particularly attractive prospect at a time when they were finding themselves in competition with other practitioners in the medical marketplace, such as osteopaths and chiropractors, and were seeking ways to establish their own primacy. Second, in his work as physician at the Mimico Training School, Godfrey was exposed to many boys labelled feeble-minded and had seen for himself the social problems that were perceived to be connected to this condition. This made him receptive to eugenic solutions like sterilization and restrictions on marriage, both of which required changing the law of the province of Ontario. As a physician and an mpp , Godfrey was in a good position to initiate steps to do just that. Forbes Godfrey was not the only one in this period working to solve the problems associated with feeble-minded individuals. At the same time as he was promoting his bills in the legislature, parallel reform efforts were being conducted elsewhere. Notable among them was the formation in 1912 of the Provincial Association for the Care of the Feeble-Minded following a one-day conference at Toronto’s City Hall to consider the problem of feeble-mindedness. Attended by over one hundred delegates from Ontario municipalities as well as representatives from women’s groups such as the National Council of Women, the conference passed numerous resolutions, including

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one asking the government to amend the Marriage Act to prevent the marriage of mental defectives.21 Godfrey, who did not attend, shared these concerns and as an mpp had avenues available to him for promoting precisely such legislative solutions. As he discovered, however, promoting them is one thing and having have them implemented quite another, since it is generally the government party and its leaders, not individual members of the legislature, who determine which bills pass.

t h e l e g is l at iv e landscape In Canada, legislation is usually sponsored by the government in the form of bills to be considered and passed by the legislature. A bill can propose legislation in a completely new area or amend an existing law. The government’s position, with either a majority of members of the legislature of its own party or the support of one or more smaller parties, generally ensures that its bills will pass. Each bill is put forward and voted upon (or “read”) three times. “First reading,” or the “introduction,” of a bill is a formality which results in the bill being printed and circulated to the members of the legislature without debate; it does not imply or confer consent or support for the actual content of the bill. Second reading, which may take place at any time in that particular session of the legislature, is the most important stage because this is when the content of the bill is debated and voted upon in principle, and, consequently, also when it is usually most heavily reported by the press. (This explains why almost all the legislative debate and public reaction to Godfrey’s bills took place at the second-reading stage.) Once a bill is debated and successfully passes the vote on second reading, it is given clause-byclause study by a committee made up of members of the legislature representing all parties. The bill is then “reported back” from committee to the House and any changes made in committee are voted on. The bill, with any successful amendments incorporated, is then given “third,” or final, reading. Provincial bills as passed by the legislature are then sent to the province’s lieutenant governor for royal assent, a constitutionally required step that is essentially a formality – the lieutenant governor’s personal views are not relevant, nor can he or she withhold assent. Once the bill receives royal assent, a date is determined for proclamation, at which point it becomes a law, or statute, of the jurisdiction.

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Unless party leadership determines otherwise, party members are generally subject to “party discipline,” with parliamentary votes “whipped” to ensure that individual members attend the proceedings when votes take place and cast their votes as their party directs them, not as they might otherwise choose, even if they believe their constituents might take a different view on a particular bill. On rare occasions, members are released from party discipline and allowed to “vote their conscience” in a “free vote.” This is usually restricted to matters that involve serious ethical issues.22 Private members’ bills follow a somewhat different process, a distinction that is key for the discussion below and for understanding the fate of Godfrey’s bills. In Godfrey’s time, as today, part of the legislature’s schedule was set aside for business raised by private members – “backbenchers” who are neither part of the cabinet nor the “frontbenchers” of the Opposition parties. During this period, the rules allow members from any party to introduce their own bills for consideration by the legislature. Like government bills, they are given first reading (printed) and then debated on second reading. At this point, even before any vote takes place, the debate may run out of time or the bill be withdrawn, including those introduced by government-side members, as Godfrey was when he introduced most of the eight bills under discussion here. Furthermore, since any government would generally be loath, for political and policy reasons, to have significant decisions made in the legislature without its imprimatur, these bills generally do not have support of the government, and thus, in most cases, even government members are instructed to vote against them. Practically speaking, using the legislative process to further broad social-policy goals such as implementing eugenics is a route open not to individual legislators but only to the government, which can usually command success. There are nonetheless good reasons for introducing private members’ bills, even if they are unlikely to pass. Introducing them is a way of getting publicity and recognition for a particular cause within the legislature. It is also a way of responding to specific concerns of constituents. Of course, there is the possibility that such a bill might actually be passed, especially those dealing with minor, local matters. Therefore, a backbench mpp like Forbes Godfrey could introduce private members’ bills even though he knew that his bills would probably never become law. Moreover, in Godfrey’s day, parties exerted somewhat less control over their members than they

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generally do today and, as a result, there was a little more opportunity for private members’ bills to make their way into law. Thus, Godfrey could remain hopeful of success. Godfrey’s bills, as noted above, attempted to change Ontario statute law in two ways – first, by introducing a new law which required compulsory reproductive sterilization of certain individuals, and second, by amending the province’s existing marriage laws. In the case of the former, Godfrey’s bills were entering fresh legislative territory. His sterilization proposals (which were introduced in two forms, one in 1910 and three successive attempts of an alternative form in 1912, 1913, and 1914) were intended to create a sterilization regime from scratch.23 Marriage, on the other hand, had long been regulated by legislation. The marriage laws are among the oldest in Ontario, having been “received” from Britain as a result of the first legislative enactment of the province after it came into being as Upper Canada under the Constitutional Act of 1791.24 On 9 July 1793 the Parliament of Upper Canada passed its own Marriage Act to “confirm and make valid certain Marriages heretofore contracted in the Country now comprised within the Province of Upper-Canada, and to provide for the future Solemnization of Marriage within the same.”25 At the time of Godfrey’s efforts to amend them, the province’s marriage laws were of concern to many reformers. Since the institution of marriage creates the family, a basic unit of social stability and a standard framework for the inheritance of name, property, and wealth, its regulation has always been a useful tool for governments in securing and maintaining orderly societies. Yet it seemed to some churches and charitable organizations at the turn of the twentieth century that the institution was being overwhelmed by social change and was thus in danger of losing its foundational status.26 This was the subject of growing anxiety for overlapping groups of activists. While some worried about social stability and family property, eugenicists were more concerned about the mental and physical fitness of offspring from ill-considered marriages and their effect on the future of humankind. Couples who were “marrying too young and without adequate parental supervision”27 challenged the order marriage could provide, and procreation outside marriage or by unfit individuals within a marriage was thought by eugenicists to be dangerous since it was likely to lead to the physical, mental, and moral weakening of the “race.” Moreover, in this

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period, “there was new concern that commercial criteria were taking precedence over more important principles. Jewelers were reported to be selling rings, issuing [marriage] licenses, and renting rooms for the wedding ceremony, while a few clerics had developed weddings into a considerable business … Furthermore, jewelry and furniture stores found marriage licenses to be one way of attracting business among prospective newlyweds, at times going so far as to offer free licenses to those making appropriate purchases.”28 At one point, Forbes Godfrey himself publicly railed against the fact that “any Tom, Dick or Harry” could issue marriage licences.29 The existing Marriage Act contained two provisions of particular interest to eugenicists. First, section 17 required each party to a marriage to sign an affidavit stating that there was no affinity (a relationship through marriage or adoption) or consanguinity (a relationship of blood). The latter was important to eugenicists because of the belief that consanguineous marriages carried a high risk of defective children who could then pass on the defect to their own offspring. Second, subsection 16(2) imposed a penalty of $50030 on anyone who performed a marriage ceremony “between two persons knowing or believing either of them to be an idiot or insane.”31 This focus on “idiot” and “insane” came from the British Marriage Act, where it formed part of the law even before 1883 when Francis Galton coined the word “eugenics.” This open playing field in the matter of sterilization and the existing provincial Marriage Act was the legislative landscape that Godfrey set out to alter.

g o d f r e y ’ s bi lls Thanks to the compilation of sterilization laws in the United States prepared by the influential American eugenicist Harry Laughlin in 1922, the origins of Godfrey’s 1910 sterilization bill in the Indiana legislation and of his second and sterilization subsequent bills (1912, 1913, and 1914) in the Connecticut law are apparent.32 As to how the text of the Indiana legislation came to Godfrey’s attention in the first place, there are at least two possibilities. The first is that Godfrey read about the Indiana measure in newspaper reports, although there are no contemporaneous articles from 1907 on that law in either the Globe or the Toronto Daily Star. The second and more likely is that Godfrey learned what was happening elsewhere

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as a result of attending medical meetings or reading medical journals.33 The June 1907 issue of the Canada Lancet included the text of a speech given at a meeting of the Ontario Medical Association by Dr R.W. Bruce Smith, Ontario’s provincial inspector of hospitals and public charities, entitled “Mental Sanitation, with Suggestions for the Care of the Degenerate, and Means for Preventing the Propagation of the Species.” Smith touched on many eugenic themes such as the “menace to the country” presented by the differential birth rate between defectives and normal people, and promoted consideration of a variety of responses to this menace, including marriage restrictions (listing a number of American states including Indiana which had enacted such laws), sterilization, and segregation.34 Moreover, in September 1907, the same journal carried a brief note in its review of news from abroad that Indiana had enacted a provision “making it lawful under certain conditions to render sterile confirmed criminals, idiots, imbeciles or rapists.”35 Once Godfrey knew about the Indiana law, it was easy for him to get access to the full text. The Ontario Legislative Library of the day was considered one of the best in the Dominion. By 1912, its collection included copies of the statutes of many U.S. states, including Indiana and Connecticut, the laws Godfrey drew on for the two forms of his sterilization bills. Apart from books of and about law in other jurisdictions, it had an impressive general collection which included Galton’s Hereditary Genius, an abstract of the 1908 report of the British Royal Commission on the Care and Control of the Feeble-Minded, and copies of the 1914 report of the British Royal Commission on Venereal Diseases, as well as works by Galton’s disciple Karl Pearson (Mendelism and the Problem of Mental Defect) and Clifford Beers (A Mind That Found Itself, which recounted the author’s own mental problems and deeply influenced Canadian eugenicist Clarence Hincks).36 Even though it was not Godfrey’s style to undertake detailed investigation of such complex issues on his own, the staff of the library provided documents and did basic research for their “clients,” including members of the legislature and the courts.37 If the material was already on the shelves, they could produce it for Godfrey in short order; otherwise, they could request it from other institutions. The source for Godfrey’s marriage bills is less obvious. Again, there were two forms, the first introduced in 1912 and 1913 and the second in 1918 and 1921. The precise model for both forms is

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obscure but once more it is likely that he read or heard about what was going on elsewhere with respect to marriage laws from medical meetings and journals. The address by Dr Bruce Smith reprinted in the Canada Lancet is a possibility, as are other items in that journal such as one from June 1911 which quoted the text of a marriage restriction which had recently passed in Illinois.38 In addition, in December 1911, a few months before Godfrey’s first marriage bill, an editorial in the Canada Lancet noted the need for legislation “to restrain the marriage of such as are likely to produce degenerates.”39 Thus, Godfrey must have searched for the text of a marriage bill which could be adopted for Ontario purposes or had one drafted. Curiously, during the committee deliberations on Godfrey’s third marriage bill, when asked about similar legislation in other places, he replied that he “did not know of precedents for the legislation elsewhere.”40

f i rs t s t e r il iz at io n b il l (25 february 1910) In the years leading up to Godfrey’s first bill, the sterilization measure introduced in 1910, there had been very little public discussion about sterilization in Toronto newspapers. Despite much interest in the problem of the feeble-minded, newspapers and professional journals rarely used the term “sterilization” (or “eugenics”) in this period. Nevertheless, a few early instances can be found in journals such as a 1904 editorial in the Canada Law Journal entitled “Survival of the Unfit” which considered the work of a British physician who had recommended sterilization. Noting that it was a “startling proposal,” more a matter for doctors than lawyers, the writer added: “The time may come when something along the line indicated above may take more definite shape.”41 For Dr Forbes Godfrey, this time was 25 February 1910, approximately three years after his election to the legislature, when he introduced his first sterilization bill. Bill 184, entitled An Act to Prevent Procreation by Confirmed Criminals, Idiots, Imbeciles and Rapists, was introduced on 25 February 1910.42 It began with a preamble (not part of the actual law) setting out the philosophical basis for the proposed legislation: “Whereas heredity plays a most important part in transmission of criminal instincts ...” It then continued with the brief three paragraphs that made up the actual text of the law itself. The first paragraph indicated that “the governing body” of every institution in which “confirmed criminals, idiots, imbeciles and rapists” were

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confined was to appoint “two skilled surgeons of recognized ability” whose duty it would be, in conjunction with the chief physician of the institution, to examine any inmates “recommended by the chief physician as to their mental and physical condition.” The second paragraph outlined the results of this examination: if the judgment of these surgeons was that procreation was “not advisable,” and there was “no probability of improving his mental condition,” the surgeons could perform “such operation on the inmate for the prevention of procreation” which they deemed safest and most effective. Significantly, the decision to sterilize did not require consent from the person to be sterilized. The third and final paragraph provided that any surgeons consulted about the condition of an inmate should be entitled to a fee of not more than $3 to be paid from the institution’s funds. The archival records for Bill 184 allow speculation about its drafting history and provide some clues as to what precisely the law was intended to accomplish.43 These records include three versions: one printed in parliamentary format (referred to below to as the “printed” or “final version”), one typewritten version almost identical to the printed version (“typewritten version #1”), and one typewritten version that appears to be an earlier, perhaps even the initial, draft (“early draft”). Furthermore, a detailed comparison of this early draft version of Bill 184 and the Indiana sterilization law, which, when it was passed on 9 April 1907, became the first such law enacted in the United States, reveals that they were virtually identical.44 Examining these four documents together permits us to track certain ideas as they evolved into the final version of Bill 184. The first difference among the documents is found in the preamble. This part of the Indiana law stated that “heredity plays a most important part in the transmission of crime, idiocy and imbecility.” The early draft of Bill 184 also used this wording although both typewritten version #1 and the printed version stated that heredity played an important part in the transmission of “criminal instincts.” This change from “crime” to “criminal instincts” improved the drafting (for how can heredity play a part in the “transmission” of “crime”?), but the revised wording also limited the characteristics identified as being among those in which heredity played a part by removing from the list “idiocy” and “imbecility,” traits related to intelligence. This deletion is puzzling although there are at least two possible explanations – it might suggest doubt about the role of

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heredity in the conditions of idiocy and imbecility, or, alternatively, a reluctance to have these latter conditions result in sterilization under the legislation. However, both these explanations (and indeed the change) are inconsistent with the actual provisions of the bill, which maintained the wider net by including “confirmed criminals, idiots, imbeciles and rapists” as the categories of individuals to whom the actual provisions of the bill applied. In any event, since the conventions of statutory interpretation mean that the opening sentence, as part of the preamble, did not form part of the actual law, this change did not have a consequent change on the bill’s legal effect. The next question is which kinds of institutions and individuals came under the ambit of the bill. The Indiana law applied to “every institution in the state, entrusted with the care of confirmed criminals, idiots, rapists and imbeciles.” The early draft of Bill 184 contained identical wording but the typewritten version #1 showed a change made in two stages. Paragraph 1, as typewritten, read “governing body of every gaol, asylum or other institution …” (emphasis added). Yet this sentence has been marked up in handwriting to read more simply “governing body of every institution,” a change that was adopted in the final version of Bill 184.45 This change suggests that the Ontario legislative drafters ultimately decided they preferred the wording of the Indiana legislation in this instance, perhaps wanting to leave the concept of “institution” as broad as possible. The Indiana law and all three of Godfrey’s versions included the condition that the surgery should be performed only where “there is no probability of improving [the mental condition of the inmate],” but the Indiana legislation and the early draft, unlike the two subsequent versions, also emphasized that point by adding the mirror-image restriction that the sterilization operation should not be performed “except in cases that have been pronounced unimprovable.” While this may also have been considered a drafting point that eliminated a redundancy, its inclusion suggests great caution about when sterilization surgeries could be performed – a point that is tempered in the bill’s final form. There is one other noteworthy difference between the Indiana law and both the two drafts and the final version of Bill 184. All versions of Godfrey’s bill applied to precisely the same group of people (“confirmed criminals, idiots, imbeciles, and rapists”) as the Indiana legislation. Similarly, Godfrey’s versions and the Indiana legislation all require the medical examination to consider the individual’s

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mental and physical conditions. Yet the Indiana legislation alone authorized the surgery only when there was “no probability of improvement of the mental and physical condition of the inmate” (emphasis added). By contrast, Bill 184 and its drafts authorized sterilization only where there was “no probability of improving [the individual’s] mental condition.” Thus, Bill 184 in its final and draft versions established a lower threshold for authorizing sterilization surgery. This meant that Godfrey’s proposal had a harsher effect than Indiana’s legislation in the case of someone with a mental condition to which the bill applied, even if there was also a physical condition for which there was some probability of improvement. In such a case, the requirements for sterilization under the Indiana legislation would not have been met. However, the result would have been different in Ontario under Godfrey’s bill. Any probability of physical improvement would not have been a factor – it was irrelevant to the decision. Hence, sterilization could have been authorized on the basis of there being no probability of improvement of mental condition alone, a narrower test that would have been easier to meet.46 Despite the differences, this detailed comparison of Godfrey’s bill to the Indiana law lends credence to the possibility that he (or his advisers) found inspiration for his bill in the Indiana counterpart. It also shows Godfrey’s willingness to adapt the Indiana bill for Ontario purposes. In order to appreciate Godfrey’s proposal fully, the reader must keep in mind the importance of the concept of heredity for eugenicists, and particularly the fact that this concept was understood more broadly than today.47 They were not merely content with addressing social problems in the “here and now” – for example, by sterilizing unfit individuals so that they would not add to the state’s burden by having children they could not look after or who might be born with unwanted conditions which meant they could not look after themselves or contribute to society. Instead, many eugenicists thought that, although those characteristics were hereditary, they could nonetheless be eliminated from future generations. For example, many believed that, if feeble-minded individuals were prevented from having children, the hereditary characteristic of feeble-mindedness would quickly be wiped out. That said, some argued that the “science” was not certain enough to form the basis of such draconian legislation as compelled sterilization. Specifically, not all eugenicists were persuaded that these undesirable characteristics

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were actually hereditary or that, even if they were, sterilization would be an effective solution. Some blamed a poor environment for the proliferation of unwanted characteristics and others were concerned that it would take too many generations to breed them out. In fact, as historian Sharon Leon points out, the Roman Catholic Church’s advocacy against sterilization in the United States was based in large measure on its rejection of the scientific validity of the premises about heredity on which such laws were based.48 Yet these doubts about the science of eugenics and the operation of heredity did not beset Forbes Godfrey or his supporters. His bill reflected the clear view that heredity had created the problem and sterilization could solve it. As set out in its preamble, Bill 184 explicitly reflected the eugenic belief that “criminal instincts” were hereditary and that sterilizing individuals identified as “confirmed criminals, idiots, imbeciles and rapists” was an appropriate solution. The use of this specific wording illustrated the eugenic reasoning that individuals with mental deficiencies (“idiots” and “imbeciles”) as well as criminals and rapists could pass these characteristics or tendencies on to their offspring and should thus be prevented by surgery from having children. The broader wording in the actual law as well as the title of the bill, which included the same categories (confirmed criminals, idiots, imbeciles, and rapists), shows specific evidence of precisely which groups many believed presented problems because of the hereditary nature of the undesirable behaviour or condition in question and of the belief in sterilization as the solution. Godfrey’s proposal also illustrates the role played by institutions and their physicians in the history of eugenics. Since the application of the bill was restricted to those confined in institutions, there was an expanded role for physicians working within those institutions. This was because they were the ones who would become responsible for identifying candidates for the surgery and then carrying it out. However, the text of the bill was silent on two related points: it did not specify the type of institution (the words “gaol” and “asylum” having been struck out in the early draft), nor was any explanation provided for who should be considered a “confirmed” criminal. The answers to these questions were probably considered matters of fact, albeit confirmed through circular reasoning – institutions where certain individuals were confined would be institutions where those types of individuals were found, and “confirmed criminals” would be those who had been “confirmed” as “criminals” by the judicial process.

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Press reports provide helpful insight into both the public and political reactions to these legislative events. Toronto newspapers were very interested, at least initially, in Godfrey’s efforts. The Star reported the debate on Bill 184, commenting that “with a number of epigrams such as ‘the future of the child is molded before the child is born,’ Dr Forbes Godfrey asked for the second reading of the most radical bill which has been introduced in the Ontario legislature for years, a bill which would prevent the births of children from a father affected from mental disease or criminal tendencies.”49 The Star called Godfrey’s speech, in which he claimed that “race culture is one of the most important questions” of the day, “outspoken to a degree, touching freely on delicate subjects,” and pointed out that it received “considerable applause on both sides of the house.” Alan Studholme, who represented Hamilton East, “recognizing the delicacy and gravity of the issue,” wanted the bill to go to committee.50 But not so the leader of Godfrey’s own party, Ontario Premier James Whitney, who thundered against it in the legislature: “We had better serve notice upon Providence to change his ways to our ways, we had better take two physicians who may be of the lowest order of morals and let them determine what proportion of human beings shall live. I hope the honourable member will withdraw his bill. It is not the type of bill which should pass, or which should occupy the attention of this House.”51 The medical profession also took great interest in Bill 184, generally, but not always, expressing support. The British medical journal The Lancet reported neutrally that Dr Godfrey “had introduced a bill somewhat similar to the well-known Indiana edict.”52 By contrast, the view expressed by the Canada Lancet was much more enthusiastic than its parent. While noting Premier Whitney’s remarks against the bill during the legislative debate, it stated that Godfrey “presented his case [for sterilization] with much ability,” adding that “we think that Dr Forbes Godfrey merits the thanks of the medical profession for his manly stand. To unsex a criminal is neither a serious nor difficult task. It has the effect of rendering it impossible for him to leave any progeny behind him. It has the other effect of making him more amenable to discipline and often rids him of criminal impulses. This is good for the person and for posterity.”53 In their assumption that Bill 184 would apply only to men, even though the bill did not say this, both the Canada Lancet and the Star demonstrated some confusion about what exactly Godfrey

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had proposed. Furthermore, the Canada Lancet’s comment about “unsexing” a criminal suggests castration – not what Godfrey was proposing at all. Premier Whitney’s passionate reaction is striking. It is not clear from the words alone whether his position was based on a belief that individual rights (in this case, to procreate) should prevail over the public good as interpreted by physicians (to prevent the birth of children believed to be unfit), religious objections, or perhaps both. Given the views Whitney had earlier expressed when rejecting Godfrey’s attempts to require mandatory reporting by physicians of tuberculosis cases – he claimed that such a practice would interfere with individual liberty – it is likely that the same concern was at the heart of his opposition to Bill 184. In any case, as premier and leader of the Conservatives, he exerted considerable influence within his, and Godfrey’s, party. His remarks would also have served a political purpose through their appeal to the significant Roman Catholic minority, then constituting approximately 19 per cent of Ontario’s population.54 Godfrey withdrew the bill, albeit under protest, complaining that “I [didn’t] think I was taking so serious steps when I introduced a bill which is already adopted by the State of Indiana.”55 The Star reported that he “gave notice that he would introduce the same bill at the next opportunity” although it was two years before he did so.56 The gap can be explained by a lengthy illness that kept Godfrey away from the House57 and a provincial election in 1911.58 The next time around, however, the sterilization bill was debated in the legislature at the same time as Godfrey’s first marriage bill, which had been introduced a few days earlier.

f i rs t m a r r iag e b il l ( 1 9 march 1912) and s e co n d s t e r il iz at io n b ill (22 march 1912) Godfrey introduced Bill 193, entitled “An Act to Amend the Marriage Act,” on 19 March 1912.59 This marriage bill, the first of four, proposed three key new elements for the existing Marriage Act. First, it specified that an officiant would be penalized $500 if he performed a marriage ceremony while either party to it were under the influence of liquor. Second, in addition to the existing penalty (also $500) which would be imposed if the officiant had reason to believe that either of the parties were an “idiot or insane,” the bill included a condition that had received great support from eugenicists

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elsewhere: mandatory medical certificates in certain cases. Finally, the bill added provisions to the affidavits which were required to be sworn60 by the parties to the marriage stating that “I am not epileptic and [the other party] is not insane, idiotic, epileptic or imbecile” and imposing the possibility (“may be liable”) of a “fine of up to $500” or “a period of imprisonment not exceeding twelve months, or both”61 for misstatements in the affidavit. The bill placed the initial burden of preventing the marriage of mentally unfit individuals on the issuer of marriage licences. This was done by making it that individual’s responsibility to require that a medical certificate be produced before he issued the licence “if he has knowledge or has reason to believe that either of the parties to the intended marriage is an idiot, insane, epileptic or imbecile.” In other words, no medical certificate would be required unless the issuer of the licence raised concerns about the mental fitness of either party. The burden to do so was a heavy one. If he issued the marriage licence despite such knowledge, he would certainly be fined $500 (“shall incur a penalty of five hundred dollars”) and might also be imprisoned (“in the discretion of the Court”) for up to twelve months. This focus on the issuers of marriage licences is significant because it reflected the concern noted above that issuing licences was merely a commercial business conducted without concern for the social importance of marriage. It suggests the blinkered belief that the problem of feeble-minded individuals having feeble-minded children could be prevented by denying them marriage licences. The individuals who were parties to the licence were also liable to fines and imprisonment for “misstatements” in the affidavit. However, the wording of the bill made these penalties simply a possibility, while, in contrast, taking a harsher approach to issuers who were in breach of its provisions by making the $500 fine mandatory in their case. In this form of Godfrey’s bill, the involvement of the physician, a “duly qualified medical practitioner,”62 was dependent on the licensor’s initial assessment and prompted only once the licensor had knowledge or reason to believe that one of the parties might be unfit. The medical certificate must then declare that “neither of the parties” were unfit even though the requirement for the certificate was triggered if the licensor knew or had reason to believe that “either party” was unfit. The requirement that the medical certificate clear both parties suggests a belief that, if one of the applicants to the marriage was feeble-minded, the other might be as well.

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Godfrey’s second attempt at a sterilization bill came on 22 March 1912, a few days after his first marriage bill, when he introduced Bill 201, this one more simply titled “An Act Concerning Operations for the Prevention of Procreation.”63 In this instance, Godfrey used as his template a law passed in Connecticut on 1 October 1909 and stuck even more closely to its wording than he had to that of the Indiana law on the first occasion.64 The bill provided that “two skilled surgeons” to be appointed by the lieutenant governor in council (effectively, the provincial cabinet) would, along with the physician or surgeon in charge at the institution, form a board. This three-member board would examine any individual “by whom procreation would be inadvisable,” as determined by the superintendent of the institution or the physician or surgeon in charge. Specifically, the board would examine the physical and mental condition of the person and their record and family history “so far as it can be ascertained.” If the majority (thus two of the three doctors) of the board concluded that procreation would produce children with “an inherited tendency to crime, insanity, feeble-mindedness, idiocy or imbecility” and that “there is no probability that the condition … will improve to such an extent as to render procreation … advisable,” or “if the physical or mental condition of the person will be substantially improved” by the surgery, then the next steps would be taken. This meant that the board would appoint one of its members to perform either a vasectomy in the case of a man or oophorectomy (removal of ovaries) in the case of a woman. The bill also included prohibitions against such surgeries for other (unnamed) reasons, presumably birth control or abortions.65 As with the earlier Bill 184, restricting the legislation to individuals confined in institutions again emphasized the importance of these sites, and particularly their physicians, in addressing social problems such as feeble-mindedness. However, there were several notable ways in which Godfrey’s second sterilization bill differed from its predecessor. While the title now simply referred to “operations for the prevention of procreation,” the list of individuals to whom it applied had been expanded from “confirmed criminals, idiots, imbeciles and rapists” to include those whose family history predicted that they would “produce children with an inherited tendency to crime, insanity, feeble-mindedness, idiocy or imbecility.” Similarly, whereas the earlier bill had applied to institutions “in which confirmed criminals, idiots, imbeciles and rapists were confined,” the

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institutions identified in Bill 201 were those “for the care of the insane, feeble-minded and epileptic.” Thus, the description of the institutions had shifted as had the labels of the individuals affected, although the broad categories related to crime and mental affliction at the heart of the bill remained. The second sterilization bill gave the superintendent of the institution a role in identifying individuals not fit for procreation that had not been contemplated in the earlier bill. Furthermore, although the bill’s use of the term “Board” suggests that the decision-making process might be more formal, in fact, it might actually have made it easier to reach the conclusion that someone should be sterilized. This was because, whereas the earlier bill required both appointed surgeons to agree on the decision, Bill 201 authorized a decision by a majority (although agreement of two physicians was still necessary). Finally, the specific reference to female surgeries eliminated the earlier impression that the bill applied only to men. The most revealing aspect of Bill 201 is the way it addressed the issue of heredity even more directly than its predecessor. While the subject of heredity was mentioned only in the preamble of Bill 184, it was addressed in the body of Bill 201. Paragraph 1 explicitly required the decision makers to examine not only the “physical and mental condition” of the individual being assessed but his or her family history as well in order to determine whether an “inherited tendency” with respect to a number of undesirable conditions existed. This illustrates clearly that the concept of heredity, like a two-faced Janus facing forward and backward, could be used as a tool to look into the past (“family history”) in order to predict the future (children with an “inherited tendency”) and thus improve that future by restricting reproduction to cases where it was “advisable.”66 Once again, Godfrey’s bills provoked both a political and a public reaction. This time, however, the response of his own party leaders was decidedly friendlier. The Globe noted the change in tone, recalling that Godfrey had been “almost read out of court” with his first such bill but that this time “the Government showed a half-way conversion,” with even Premier Whitney complimenting Godfrey on “a careful, illuminating address” in the legislature.67 The Toronto World also reported that Whitney and W.J. Hanna, who as provincial secretary was the cabinet minister responsible for the province’s institutions, “were quite profuse in the presentation of bouquets to the physician members,”68 with Hanna going so far as to express

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his “personal sympathy with the principle”69 of the marriage bill. Yet, despite the generally friendlier attitude from the government, Hanna asked Godfrey to withdraw both bills, hinting that “next session might see an important change in the law respecting marriage licenses.”70 Godfrey complied. Outside the legislature, Godfrey received kudos as well. In commenting enthusiastically on the requirement for a medical certificate of health before anyone could be married at a particular cathedral in Chicago, the Canada Lancet also drew the attention of its readers to Godfrey’s “noble work.” At the same time, it staked the professional claim for the role of physicians (rather than some of their competitors) in carrying out his program. “Yes, eugenics should be a study by the profession and the nation,” it agreed, “and no one should be allowed to marry unless duly examined and by authority of our profession – not osteopaths, Christian scientists, chiropractics or fakers.”71 In an editorial, the Canada Law Journal also lent its support to Godfrey. Although it raised the same issue as may have troubled Premier Whitney with respect to Godfrey’s first sterilization bill – infringement of personal liberty – it suggested that in this case infringement “would seem to be warranted.” Under the heading “Sterilization of the Unfit,” the editorial acknowledged that Dr Godfrey’s bill proposed a “drastic” measure with respect to “the liberty of the subject.” It then cited the legal authority of James Patterson, a nineteenth-century English scholar, who had argued that there was no such thing as “absolute liberty” and that the right to personal liberty was always subject to the right of the state to prevent “mischief.” The editorial went on to observe that “a discussion of this subject [could not] but have a good effect … Dr Godfrey’s bill, has for the present, been withdrawn, [but] the country is indebted to him for bringing the matter thus prominently before the public, and it will have an educative effect that will very probably result, in the near future, in some such legislation as has taken place in other countries.”72 Although the Star initially called these bills “two very progressive legislative proposals,”73 an article the following day raised a note of caution. Rather than arguing that the government or the province was “not ready,” as Whitney and Hanna had done in the House this time around, the Star attacked the bill on its very theory: “There is too much surmise and too little fact in theories of heredity to

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warrant dogmatism.” It then suggested that segregation was a better route until “scientists and legislators reach more general agreement on other suggested preventive measures.”74 The reaction of other groups was not reported. There was no specific commentary about this bill by women’s organizations, although there is little doubt that they would have supported it. As noted above, partly as a result of the impetus from groups like the National Council of Women and individuals like Helen MacMurchy, the year 1912 saw the formation of the Provincial Association for the Care of the Feeble-Minded, one of the goals of which was to lobby the government for the implementation of marriage restrictions for individuals believed to be feeble-minded. Godfrey, temporarily mollified by the government’s hint of marriage legislation in the near future, soon lost patience. With no sign of a government bill, he went on the offensive again less than one year later with another pair of sterilization and marriage bills. On 24 February 1913 he introduced his third sterilization bill. This was Bill 142, again entitled “An Act Concerning Operations for the Prevention of Procreation.” It was followed three days later by Bill 146, “An Act to Amend the Marriage Act,” his second marriage bill.75

t hi rd s t e r il iz at io n b il l (24 february 1913) an d s e c o n d m a r r iag e b il l (27 february 1913) The title and text of Godfrey’s third sterilization measure was identical to that of his second – in fact, archival records for the third sterilization bill include a copy of the earlier Bill 201 with its number crossed out and the revised number 142, the date, and the details of the new legislative session added by hand. Similarly, Bill 146 on marriage was also almost identical to its predecessor.76 The first four sections of the two bills were the same but two sections were added to Bill 146 to require a public notice containing the names and addresses of the parties to the proposed marriage to be posted in the office of the clerk of the municipality for three weeks before the licence could be issued or the marriage could take place, a provision aimed less at issues of heredity than those related to bigamy and age of consent. The Star and the Globe both reported in detail the second-reading debates on Bill 142 (sterilization) and Bill 146 (marriage) which took place together on 27 March 1913. With respect to the sterilization bill, the Star (although using wording slightly different from

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that contained in the actual text) wrote that “the evening session saw Dr Forbes Godfrey contending the merits of his bill to provide for operations to prevent the procreation in the case of imbeciles, idiots and others unfit for parentage. Twice has this bill been thrown out of the house but Dr Godfrey believed that in the meantime the province had become sufficiently educated to the needs of such an Act to support him. New York, Indiana and six other states had made the experiment and had found it better to prevent the filling up of institutions with imbecile children.”77 This last comment, presumably lifted from Godfrey’s speech rather than the newspaper’s own words, alluded to the argument that sterilization should be preferred to institutional segregation of unfit individuals because of the money that would be saved. The same article reported on the marriage bill, including Godfrey’s claim to the legislature that he was “prepared to give examples of instances of border towns where ministers would tip cabmen to bring them [idiots and imbeciles] to marry.” Godfrey received “warm” support from a number of fellow members, including Dr James McQueen, the Liberal mpp for Wentworth North, who, speaking on the sterilization bill, noted that “if Ontario wished to improve her citizenry in the same proportion as they labored to better their class of stock and fruit, they must eliminate the degenerates and weak-minded.” He received additional support from groups including the National Council of Women, the Canadian Law Journal, the Methodist Church, and Dr Bruce Smith, then Ontario inspector of hospitals and charities.78 Backing for Godfrey’s sterilization bill, a measure he described as being “in defence of the unborn child,” came from “all sides of the House” and “politics did not enter into” the discussion of it. But there was no unanimity as to whether the proposed measures should be made law. Many considered his sterilization proposals too drastic and suggested that the problem Godfrey’s sterilization bill was intended to address could be solved by amending the marriage laws.79 More fatal to the prospects of the sterilization bill than lack of unanimity among mpp s about whether it should pass, though, was the government’s response. Provincial Secretary Hanna was one of a number who “strongly opposed” the bill, saying that “in none of the American states had the administration the courage to put their law into general force.”80 Once again, Godfrey withdrew his bills before the vote at the government’s request, clearly incorrect in his

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assessment that the province had become “sufficiently educated” to the needs of such legislation. The Star obliquely noted the recurring cycle with the 28 March 1913 headline quoted above: “Whitney Orders; Godfrey Withdraws.” Yet, once more, Godfrey may have felt some reason for optimism that his efforts might be about to affect government policy. This was because, as the Globe reported, “as a result of his persistent efforts to place some restriction upon the indiscriminate issuance of marriage licenses, Dr Forbes Godfrey (West York) had the satisfaction of hearing an announcement from Hon W.J. Hanna yesterday that the Government was preparing a bill to establish some regulation in this direction.”81 This time, the government acted swiftly (although, as it would turn out, not nearly forcefully enough for Godfrey). Its own bill, An Act to Amend the Marriage Act, moved quickly through the legislature and passed less than two weeks later, on 9 April 1913. 82

t he g ov e r n m e n t ’ s m a r r iage bi ll (9 apri l 1913) The government’s bill was similar to Godfrey’s efforts of 1912 and 1913: in fact, the Star reported that it resembled Godfrey’s measures “in a most remarkable manner.” Godfrey acknowledged in the legislature that he approved of some sections, adding dryly, “seeing that they are my own suggestions.”83 The bill that the government introduced was actually more restrictive in some ways. Like Godfrey’s bills, its amendment focused on the issuer of the licence and the officiant, either of whom would be subject to a fine of up to $500 and liable to imprisonment of up to twelve months if he went ahead “knowing or having reason to believe that either of the parties … is an idiot or insane or under the influence of intoxicating liquor.” But now the responsibility to ensure that the decision to marry had not been fuelled by alcohol and to be wary of the mental condition of each party was no longer divided – both the issuer of the licence and the officiant had equal responsibility and potential liability. The government bill also added a provision for public notice similar to but considerably more detailed than Godfrey’s 1913 additions. With limited exceptions, if either party applied for a marriage licence in a location where they had not lived for fifteen days immediately prior to the issuing of the licence, they would be required to complete an affidavit that a public notice had been published once a week for three weeks in a local newspaper (or one nearby if there were not a

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local one). The amendment included a penalty for those who provided a licence to or performed a marriage of any individual known or believed to be an “idiot or insane.” However, the element most important to Godfrey was missing: there was no requirement for a pre-marital medical certificate. With tongue in cheek, the Star commented that “all was not marital calm” when the government’s bill was introduced.84 Godfrey stood in the House, theatrically waving a preacher’s business card “which gave assurances to brides and grooms that there would be no publicity” and “exploded” that “every Tom, Dick, Harry, every tinker, tinsmith and grocer can become an issuer of marriage licenses if he knows how to pull Queen’s Park strings.”85 In fact, Godfrey was so annoyed about the contents of the bill that he actually voted with the Liberal Opposition against his own government’s amendments. They were, he argued with justification, not as comprehensive as his own, and, in any event, he claimed (without giving reasons why) that the government had no intention of enforcing the changes. Not surprisingly, Godfrey’s opposition was unsuccessful: the bill passed in short order and was given royal assent on 6 May 1913. Based on its substance alone, the government’s marriage amendment does not at first glance appear to be part of the story of attempts to enact eugenic legislation in Ontario, since it did not include the eugenic solution of medical certificates. However, the circumstances under which it was introduced and the response to it in the legislature confirm that it is indeed part of the story of Godfrey’s bills. To begin with, the government used the promise of introducing its own amendment to induce Godfrey to withdraw his 1913 sterilization and marriage bills. Godfrey agreed, but not quietly, once again proving to be lively copy for local newspapers. In describing the pressure on Godfrey to withdraw his bills, the Globe hinted at the humiliation of the “rebel doctor,” who had been required to “[swallow] himself in order to please the Government.” Even using the same colourful verb as the Star, it noted that he had “exploded” during the debate about the inadequacy of the government’s proposal. Premier Whitney, “in an indulgent mood” as he defended the government’s bill by pointing out that it was taking action, “did not so much as frown” during Godfrey’s outburst.86 The government’s bill was also attacked by the Liberal Opposition leader, N.W. Rowell, who claimed that it did nothing to correct the problem that Godfrey had tried to address.87 Dr James McQueen, the Liberal mpp who

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had supported Godfrey’s 1912 bills, argued that medical men, not clergymen or issuers of marriage licences, should carry the burden of deciding whether someone was fit for marriage and introduced his own amendment to the government’s bill which added back the requirement for medical certificates.88 It was rejected and the government amendment passed unaltered.

f ou rt h s t e r il iz at io n b il l (20 march 1914) Godfrey’s fourth and final attempt at sterilization legislation was Bill 123, “An Act Concerning Operations for the Prevention of Procreation,” which he introduced on 20 March 1914.89 Again, it was a duplicate in title and text of its two predecessors.90 If the scant attention to it paid by Toronto newspapers is an indication, the public had lost interest in Godfrey’s campaign. This time, the only report in the Globe was the simple acknowledgment in an article primarily about the House of Commons in Ottawa that “Dr Godfrey had again introduced his bill to prevent by a surgical operation the procreation of idiots and insane people.”91 There was no mention of the details of the debate in the legislature. The bill was withdrawn before the vote on second reading. Nevertheless, public discussion continued. Some months later, the Star wrote that “the value of the knife to lessen criminal tendencies is a radical step in surgery which is gradually being forced upon the attention of the medical profession of this city ... As to tampering with nerve cells to correct a moral or criminal defect, the local men have not yet ventured in that direction although it must be remembered that Dr Forbes Godfrey mpp is a strong advocate of the knife as a means of checking mental degeneracy.”92 Marriage restrictions were a different matter for Godfrey and he persisted on two further occasions, in 1918 and 1921, with the second form of his marriage bill. In the meantime, the public debate on marriage that had begun several years earlier continued with a broad range of organizations demanding the enactment of stronger laws aimed at its restriction. The Social Services Council, an association of Protestant churches,93 “declared that their Executive should seek legislation to prevent the marriage of feeble-minded persons”; the Ontario Educational Association “were on record as being in favour of a law being passed on the statutes of the province permitting no marriage until the parties have satisfied the authorities as

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to their mental and physical fitness”; the Anglican Church Synod94 discussed ways of preventing “trafficking in marriage licenses”; and the Woman’s Christian Temperance Union95 urged its members to “demand of candidates [in the upcoming provincial election] that they work to secure amendments that will prohibit the marriage of [the] feeble-minded.” Individuals weighed in through letters to local newspapers.96 Public figures like Helen MacMurchy also commented. She noted in a 1916 speech reported in the Globe that “the right to happiness and comfort and the right to parenthood are different matters.”97 Although this comment was made in the context of a discussion of marriage restrictions, it equally reflected her views on sterilization.

t h ir d m a r r iag e b il l (11 march 1918) The public discussion in the period following the government’s successful amendment must have emphasized Godfrey’s own unhappiness with it, although he did not respond quickly. Five years later, on 11 March 1918 (four years after his final attempt to pass sterilization legislation in 1914),98 Godfrey took another run at his marriage amendments with Bill 113, “An Act to Amend the Marriage Act,” a new and very different bill from his two earlier attempts.99 As described above, the initial responsibility in the marriage bills of 1912 and 1913 for identifying an individual who might be mentally unfit was that of the licensor: Godfrey’s first two bills had proposed that a medical certificate be required only if the issuer of the licence had any doubts as to the mental fitness of either of the parties. With his third marriage bill, Godfrey made an important change: all marriage licences would be conditional upon a medical examination and certificate. Specifically, before a marriage licence could be issued, a medical certificate from a physician was required stating that he had personally examined both parties and determined that neither of them suffered from any of the listed conditions. This list itself was significantly expanded in Bill 113. Not only did it include mental diagnoses such as “lunatic” and “feeble-minded,” as well as physical diseases like tuberculosis, cancer, and other deleterious conditions which were believed to be hereditary, but “behavioural” conditions such as “habitual criminal” and “habitual vagrant” were also named. With the number of conditions greatly increased, and the physician’s declaration that the offspring of the marriage would

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“probably” be “of normal mentality and physique,” Godfrey’s proposal would give thus physicians authority and responsibility for who could marry and have children within wedlock (or, at least, who would be socially and legally sanctioned in doing so). There is no direct evidence as to why the second form of Godfrey’s bill differed from the first. Certainly, by broadening the requirement for a pre-marital medical certificate to all marriages, the bill had a much wider effect. One explanation might be the hope that Godfrey had also expressed in connection with his 1913 bills that the public had finally become “sufficiently educated” to support the clear principle of the bill. The influence of the First World War is also relevant. Historian Kristen Schranz has noted that the war enhanced the status of physicians who were seen as having the knowledge and standing to help reshape society in its aftermath. Ensuring that marriage took place only between “fit” individuals was one way to do so.100 Godfrey’s 1918 bill fared better than his previous two attempts, but it failed nonetheless to become law. The bill itself was “discharged,” or removed from the list of parliamentary business before the vote on second reading. However, upon a motion from Premier William Hearst, who had replaced Whitney as premier after the latter’s death in 1914, the legislature ordered that Bill 113 be referred to a special committee of the legislature for further consideration. The Marriage Act Committee was made up of eight members of the legislature, six Conservatives from the government side including Godfrey and two Liberals from the Opposition. Three members of the committee (all Conservatives) were physicians. In addition, there were four lawyers and a businessman. The committee was instructed to meet during the recess and to report back to the legislature at the next session. A lengthy report in the Globe provided detailed information about this committee and its deliberations, which took place on 12 February 1919.101 Even if Hearst had intended to “bury” Godfrey’s bill as press reports suggested,102 the appointment of a special committee to study it meant that, on this occasion at least, his ideas received considerable exposure. The Globe article reported comprehensively on the views of both committee members and representatives of groups who appeared before it.103 Religious leaders from the Anglican, Methodist, and Roman Catholic churches supported the principle of the bill but worried about the practicalities of enforcing it, such as lack of physicians in rural areas to perform the examinations, as well

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as the need to ensure that its measures went only as far as needed so as to interfere as little as possible with “the freedom of society.” An important representative of the social-service community, Mrs A.M. Huestis, the president of the Ontario Provincial Association for the Care of the Feeble-Minded, offered “warm support.” She argued that, since this was such an important measure, it would not be an imposition to “ask people to go long distances to secure a proper certificate.”104 Actually, she told the committee, she preferred that psychiatrists rather than physicians conduct the examinations,105 a suggestion that was regarded as even more impractical by the committee.106 Huestis’s next comment was startling: in response to the concern that the requirement of a medical certificate before marriage might be a “hardship to the delicate and bashful girl,” Huestis stated that “medical men in examining girls sometimes give them an anesthetic, so that they are not aware of what actually takes place. If a delicate girl so desired, a doctor could make the examination in that way. It might cost $10 but it would be worth it.” The committee did not agree; the suggestion was looked upon “with strong disapproval” as well as “some amusement.”107 Other commentators hedged their bets. The editors of the Public Health Journal congratulated Godfrey and urged him to “continue to press the matter” but hesitated to give him full support. “While it is possible,” it opined, “that as it stands this amendment is not desirable legislation nevertheless Dr Godfrey is to be commended on the fact that he has raised the question at the present moment.” Noting the value of the bill’s “education effect,” the editorial concluded that no doubt “as soon as public opinion is ready for it the essentials of Dr Godfrey’s present amendment should and will become law.”108 Although most of the members of the public who appeared before the committee supported Godfrey’s measures, this was not the case with the actual committee members. In addition to the concerns about the impracticality of a bill that the chairman, F.W. McGarry, a lawyer from Renfrew South, maintained would require some of his constituents to travel sixty miles, Dr William Jaques of Haldimand claimed that it put too much responsibility on the “ordinary physician,” suggesting darkly that “while such a law might prevent the spread of venereal diseases it would probably result in worse evils” (the nature of which were not reported). Another possibility was that the measures simply might not be effective:

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an unidentified participant pointed out that even physicians might not be able to detect epilepsy in someone they had not previously examined. Others like Severin Ducharme, a real estate and insurance agent from Essex North who agreed that the bill would put too much responsibility on the medical man, also raised concerns that the bill would interfere with the “liberty of the citizen.” Finally, V.A. Sinclair, a lawyer representing South Oxford, stated that the bill was “too drastic to be adopted at this time.” Echoing a common refrain in the story of eugenics, he added that “the public would have to be educated before such a measure could properly become law.”109 Godfrey was understandably unhappy with the objections expressed by the members of the committee and “deplored” the suggestion that Ontario could not take the lead in passing such legislation. But even rhetoric such as the statement by committee member Ducharme that “under present conditions any two fools that have a five-dollar bill can get married and keep on propagating the species such as we have today”110 did not sway other members. With at least seven of the eight members opposed to the bill (including Ducharme), the committee decided not to report it back to the House, a procedural move that would have kept it alive.111 In fact, perhaps its fate had been sealed from the outset with Hearst’s motion: the Star later reported in a review of Godfrey’s marriage bills that this third attempt had been sent to a “burial committee,” suggesting that a majority of the committee members may have been known from the outset to have opposed the bill’s measures.112 Approximately three weeks later, a number of the same objections as had been voiced by the members of the special committee were expressed by labour leader James T. Gunn. In a speech at the Labour Temple in Toronto, Gunn criticized Godfrey’s “eugenic bill,” again on the basis that it was “too drastic.”113 Gunn went beyond complaints about the bill’s assault on principles of liberty to attack its very foundation. Although it was easy enough to “formulate a clause embodying such general terms as ‘feeble-minded’ and ‘criminal,’” he argued, “it was a very different matter to define any proper lines of demarcation between those who were and who were not within the meaning of these terms.” He also dryly pointed out that “Rosedale,” a reference to an area of the city with large, expensive houses and a thus metaphor for the city’s elite, “would always be able to preserve its real imbeciles from the clutches of the Eugenics bill while the man from the masses, if he were slightly

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below the average in intelligence, would become the butt of the lawyers and the doctors.” Gunn’s use of the term “eugenic” to describe the bill provides clear evidence as to how at least some of Godfrey’s contemporaries viewed it. The range of views both pro and con regarding Godfrey’s bill and their sources is revealing. The leaders of the most prominent religious groups, notably including the Roman Catholics, expressed support for the basic principle of marriage certificates. The negative response from the two other physicians apart from Godfrey on the committee is also interesting, given the reasons physicians had for supporting eugenic measures. In light of the political context of the committee’s deliberations, of course, it would be misleading to read too much into this lack of support from two of its three doctors. Reasons for support, or lack of it, for any particular measure are not necessarily straight-forward and may actually have more to do with political exigencies than personal views. Nevertheless, it is a good reminder that physicians did not necessarily speak with one voice. Finally, Gunn expressed skepticism of two kinds: the first was a doubt about the scientific legitimacy of the claim that anyone could accurately identify individuals to whom the legislation was meant to apply; the second raised the class issue in its suspicions about the lack of even-handedness with which the law would be applied by professional-class lawyers and physicians to a resident of “Rosedale” compared to a “man from the masses.”

f ourt h m a r r iag e b il l (14 february 1921) Godfrey, now in Opposition after the election of a United FarmersLabour government in 1919, made one last attempt to have the Ontario marriage law amended to include a requirement for pre-marital medical certificates when he introduced Bill 101 on Valentine’s Day, 14 February 1921, again identical to its predecessor.114 It was debated in the House on 28 February 1921. Toronto newspapers reported on Godfrey’s final attempt with enthusiasm. The Star, explicitly using the term “eugenic,” noted the contrast between the apparent support in the legislature for the bill and its fate: “There probably was never introduced into the provincial legislature a bill whose general principle was so generally approved and universally acclaimed and yet whose young life was so inevitably doomed to the lethal chamber as that in which

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Dr Forbes Godfrey proposes to place eugenic restrictions on marriage.”115 In tracing the history of Godfrey’s proposals, the Star reached back to his first sterilization bill in 1910, describing it as the “precursor to the present measure.” Godfrey’s fourth marriage bill was the subject of “vigorous” discussion in the legislature. Godfrey argued that it was an “advanced measure,” and his advocacy “won support of Liberals and Conservatives alike.” Once again, he ran into opposition from the premier – in this case, Ernest Drury of the United Farmers, who stated that while he was “thoroughly in favor of the principles of the bill,” the time was not right for it. In fact, the premier noted, “compulsion would be unthinkable.” He gave two reasons – first, the bill would harm “innocent” people; and second, it would drive people who feared the bill might prevent them from marrying into illicit relations, which would in turn result in “an outbreak of illegitimacy.” Education, Drury claimed, was the key. Despite its fate, the bill received support from both sides of the legislature: Howard Ferguson, who would himself become premier when the Conservative Party was returned to power on 16 July 1923, congratulated Godfrey for “his splendid missionary work” on the subject matter of the bill, and C.F. Swayze, the Labour member for Niagara Falls, commended Godfrey for his “bravery” in introducing the bill, despite its impracticability, especially in border towns where individuals who wished to marry without restrictions could simply cross the border to adjoining provinces or states.116 The Star followed up on the fate of Godfrey’s bill a few days later, paraphrasing Drury’s comments as suggesting that “enlightenment” provided the only way to combat the (unspecified) “great menace” which Godfrey had hoped to address with his bill. This report was humorously included under the headline “‘Damaged Goods’ Shown Just When Needed,” a news item about the release of a film called “Damaged Goods,” which told the story of a young couple who had contracted syphilis, and suggested that seeing the film was one way to obtain such enlightenment.117 Although the bill was ultimately withdrawn without a vote on 27 April 1921, it is not clear whether it was first considered by a special (or other) committee. When Godfrey indicated that he would refuse to withdraw the bill but instead would demand a vote, Premier Drury in response suggested sending it to a special committee.118 There are no legislative records of this having been done.119

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r e f l e c t ions Since none of his bills passed, it is easy to dismiss Godfrey’s efforts to promote the eugenic solutions of sterilization and marriage restrictions as a “failure.” Yet using the yardstick of “becoming law” to assess his success results in an inadequate appraisal of the significance of his role in the history of eugenics in the province. Probing beneath the surface of the failure of his bills exposes the details of a story that has been largely unknown. Moreover, in uncovering the ways whereby a particular individual used a particular legal process in his campaign for a eugenic future, it also shows the tension between the understanding of the public good that grounded that view and the interference with individual liberty that would result. To begin: Why did every single one of Godfrey’s eugenic bills fail? The simple explanation is that all Godfrey’s bills were private members’ bills and, as discussed above, it is difficult for this type of bill to pass unless it has the support of the governing party. The reported responses from various powerful politicians like premiers Whitney, Hearst, and Drury and Provincial Secretary Hanna make clear that Godfrey’s bills did not have this necessary support. In fact, as in the case of sterilization bills, Godfrey ran dramatically and publicly afoul of none other than his own premier, James Whitney, who raged in the legislature against the idea that any individual physician could determine who should procreate and who not. Provincial Secretary Hanna also expressed his strong opposition, speaking “forcefully” against the measure.120 By considering why the government did not support him, the simple explanation can be parsed further to help explain the failure of Godfrey’s bills to become law. Closer investigation begins to illustrate what can be learned not only about eugenics in Ontario but also the ways in which eugenic ideas were promoted, the reasons they were supported, and the objections to them. There are two main reasons why any political party would support a particular policy measure: either it is in philosophical agreement with the policy, or, more opportunistically, the public support for a particular policy is meaningful enough that the party needs to adopt it in order to be elected or re-elected. As is plain from the statements quoted above which Whitney made in 1910 in connection with Godfrey’s first sterilization bill, the premier made a dramatic public show of philosophical disagreement with the idea of sterilization. Since he was the leader of his party, his views were highly influential,

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if not determinative of the party’s position. But, even so, the government might have been more likely either to support Godfrey’s bills (or at least moderate its own criticism) or even to introduce eugenic legislation of its own had it believed that these measures had a significant degree of public approval. There was an example of this in the case of the government’s own 1913 Marriage Act amendment bill which it introduced as a less provocative replacement for Godfrey’s second marriage bill. The government’s response to Godfrey’s campaign for sterilization and marriage laws was to push through a bill on only one of those matters. In the face of a pair of bills from Godfrey (his third sterilization and second marriage bill), the government introduced a marriage bill that did not even include the most basic element of Godfrey’s crusade, the requirement of a pre-marital medical certificate. While the government was prepared to make certain kinds of changes to the marriage laws in the province in order to respond to social problems related to marriage, the eugenic solution of sterilization was simply not on its legislative agenda. Without the context of Godfrey’s bills, the government bill, not a eugenic measure itself, would not be part of the story of eugenics in Ontario at all. Public support could be reflected in the views of members of the legislature, evidence in part for the opinions of their constituents, or in newspaper editorials and reports of the reaction of other individuals and organizations to these ideas. When Godfrey introduced a sterilization bill for the second time in 1912, in concert with his first marriage bill, Whitney and Hanna took a different tack in response, issuing “bouquets” to physician members of the legislature (of whom Godfrey was one) but stating that government was “not ready” to pass such bills.121 The reason for this very different reaction is not clear but it suggests that perhaps in 1910 Whitney at least had been putting on a bit of a show for supporters to whom he thought it would appeal. One explanation (although one that still did not alter the result) is that they now sensed some support for these solutions, particularly marriage restrictions, and did not wish to provoke voters with the same vehement retort as they had made in response to Godfrey’s first sterilization bill in 1910. There were certainly pockets of support from both within the legislature and without. However, based on the lack of government action, it was not either sufficiently widespread or powerful to influence the government in the face of the criticism and skepticism of these views from other quarters.

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The lack of public support from two quarters in particular is also significant. First, in considering jurisdictions where sterilization legislation was passed and examining the factors that made this possible, scholars such as Randall Hansen and Desmond King have identified the need for spirited promotion of the idea from the leader of the institution where the sterilization surgeries would take place. They note several examples of this in the United States.122 In Ontario, the main institution that Godfrey’s bills would have affected was the Orillia Asylum.123 In the same year as Godfrey introduced his first sterilization bill, Joseph Patrick Downey became the superintendent at Orillia. A well-known journalist, Downey had been a very popular Conservative member of the legislature from Guelph between 29 May 1902 and 1 August 1910 when Whitney appointed him superintendent of the province’s largest asylum, a position he held for fifteen years, until shortly before his death in 1926.124 His lack of medical background was the subject of considerable criticism in the press, as was the political nature of the appointment, but Downey threw himself into running the facility with enthusiasm and apparent concern for the well-being of its inmates.125 Downey’s views on sterilization from the period during which he was either an mpp or the superintendent at Orillia are revealing. In a letter to Provincial Secretary Hanna shortly before the scheduled debate on Godfrey’s third sterilization bill, Downey wrote that he was enclosing “a copy of a paper I read at the annual meeting of the Provincial Board of Health … I thought if there is discussion on Godfrey’s Bill, this might be of some use to you.” Hanna replied the next day, promising to read it “with great interest.”126 The premise of Downey’s speech, entitled “Heredity as a Cause of Mental Defectiveness,” was that feeble-mindedness was hereditary and that feeble-minded individuals demonstrated “remarkable fertility” and a “predisposition to sexual passion,” both notions that were common at the time. Claiming that “the injunction to ‘increase and multiply’ appears to appeal to them with special force,” he was concerned about how to prevent the feeble-minded from reproducing and passing on their unwanted characteristics. After an analysis of how marriage laws had been amended in other locations, Downey considered the situation in Ontario, concluding that its marriage legislation should be “materially strengthened,” as described below. He then addressed sterilization. Referring to Godfrey’s bills, he noted that “I was of the opinion

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[when Dr Godfrey introduced his first sterilization bill in 1910] … and my experience at Orillia has strengthened me in the view that as far as the feeble-minded are concerned, a measure of that scope would have little practical efficacy … My brief experience in dealing with the feeble-minded,” he concluded, “has not convinced me that drastic measures directed toward the elimination of that unfortunate class would be desirable or efficacious.”127 While he did not explain what he meant by “desirable or efficacious,” Downey was no doubt hinting at doubts about the scientific validity of this approach. Whatever his reasons, a potentially significant source of support for a eugenic sterilization law was missing in Ontario through the period of Godfrey’s attempts to have one enacted. The argument about the importance of support from an institutional superintendent can only be pushed so far, however, since Downey also supported eugenic marriage restrictions in Ontario which did not pass, at least in Godfrey’s formulation. Another element of public support missing from the Ontario story is that of eugenics organizations.128 In both the United States and Britain, such organizations not only existed, having been formed in the early days of enthusiasm for eugenic ideas, but were also very influential in conducting eugenic research, educating the public about the need for eugenic measures, and lobbying politicians for them.129 In contrast, the Eugenics Society of Canada, the host of the cbc radio broadcasts described at the beginning of this book, was not formed until 1930 and thus played no role whatsoever in the promotion of Godfrey’s bills. Even after 1930 its role was more limited and its influence much less pronounced than that of its international counterparts. A further reason for the lack of support may have involved considerations of practicality – some objections to Godfrey’s bills were on the basis that his plan simply would not accomplish the goals he had set out, even though in certain cases there was agreement in principle with what Godfrey was trying to achieve. McGarry’s comments on Godfrey’s third marriage bill about the difficulty his rural constituents might have in finding a physician near enough to conduct a pre-marital medical exam and Swayze’s concerns with respect to Godfrey’s fourth marriage bill that people could simply hop across the border to a friendlier jurisdiction are examples of such views. The trajectory of Godfrey’s marriage bills was somewhat different from that of his sterilization proposals, although, in the end, the

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result was exactly the same. As described above, there is a record of Premier Whitney’s vehement negative reaction to the first sterilization bill Godfrey introduced in 1910. Each of the next two (in 1912 and 1913) was introduced along with a marriage bill and these pairs were treated as a package in legislative debate. As a result, there is no record of Whitney’s views specifically on Godfrey’s 1912 and 1913 marriage bills.130 Still, newspaper headlines like “Whitney Orders; Godfrey Withdraws,” which describe the fate of the second pair of bills, suggest that Whitney was not happy with Godfrey’s marriage bills either. Although Whitney himself may not have supported these marriage bills, there was much more public discussion of the idea of restricting marriage than there was of sterilization. At least two reasons for this are possible. The first is the discomfort caused by directly discussing procreation instead of using “marriage” as a metaphor for it. The second is the lack of conviction that sterilization would actually solve the problem. Downey had expressed concerns about whether the legislation was efficacious and the Toronto Daily Star had editorialized at the time of Godfrey’s second sterilization bill that there was “too much surmise and too little fact” to proceed with this kind of legislation. By contrast, public discussion about marriage took place in many quarters – from women’s groups to religious institutions to social-service organizations. In the speech that he sent to William Hanna, Downey was enthusiastic about the usefulness of marriage restrictions as a way of controlling feeble-mindedness in the population. He proposed, among other things, to make it an offence for anyone “who had been confined in a public institution as a lunatic or mental defective” to marry without a medical certificate from two qualified practitioners stating that “he or she has been restored to normal mental condition.”131 However, even this boost was not enough to bring the government around to Godfrey’s side and throw its support behind his marriage amendments. Its own amendment, an attempt to pacify him and others calling for restrictions, was a watered-down version of what Godfrey had proposed, with the key eugenic element of medical certificates missing completely. The special committee appointed to consider Godfrey’s third marriage bill during the parliamentary recess in the summer of 1918 and the offer to have Godfrey’s fourth bill go to committee appeared to bring success for this measure a little closer. On closer inspection, though, these moves were merely

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political manoeuvres by governments which actually had no intention of allowing Godfrey’s bills to move forward. Godfrey’s decision to introduce both marriage and sterilization bills at the same time on two occasions is interesting. Perhaps after being rebuffed by Whitney so thoroughly with his sterilization bill in 1910, Godfrey set his hopes on the marriage amendments, anticipating that the legislature might be inclined to pick what it perceived as the preferable solution to the problems related to feeble-minded individuals and vote in favour of his proposed changes to the Marriage Act. Alternatively, by introducing them together, perhaps Godfrey intended to offer a comprehensive eugenic plan for the province, hoping that this thoroughness might bolster each side of the equation. In the end, whatever the reasons for this strategy, Godfrey had no better luck introducing bills together than he did separately. Having been unsuccessful twice (in 1912 and 1913) with the marriage/sterilization pairing, in 1914 he tried a sterilization bill on its own once more before he gave up on that particular solution for good and focused his last two attempts on marriage amendments alone. Ultimately, Godfrey faced the same problem in 1918 and 1921 with his last two bills as he had in 1910 with his first: neither the political nor the public support was sufficient to ensure their passage through the legislature. The story of Forbes Godfrey and his bills reveals many things about the history of eugenics in Ontario. First, there was eugenic activity in the province, prompted by the same apprehensiveness about the same problems that existed in other places. While other groups shared similar concerns about the weakening of society, Godfrey, a lawmaker, responded to these concerns with eugenic solutions and used his position as a member of the legislature to introduce bills concerning procreation and restricting marriage. Second, the vehement response from Whitney, a lawyer, to the proposals from Godfrey, a physician, is an example of a common argument at the time against eugenics. On the one hand, Whitney’s response132 suggests that Anglo-Canadian lawyers may have generally preferred to give primacy to individual rights rather than collective ones, at least with respect to these kinds of issues.133 On the other hand, Godfrey received editorial support from the Canada Law Journal, which predicted that his 1912 sterilization bill would “have an educative effect that will very probably result, in the near future, in some such legislation as has taken place in other countries.”134

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Other lessons can be drawn too. Whitney’s reaction and this editorial explicitly draw attention to a debate within the eugenics movement which pitted the importance of the public good as the eugenicists saw it and the future of the race or the nation against the interference with individual rights. The premier’s views were in distinct contrast to those of the medical profession generally. Enthusiastic about developments in science and the physician’s role as messenger for them, especially at a time of growing authority of public health and its emphasis on populations rather than individuals, doctors were more likely to argue for the common good rather than the individual good. This interest of the medical profession in eugenics may help explain Godfrey’s own enthusiasm, although, as discussed above in connection with his third marriage bill, such broad statements need to be made with caution: Godfrey received support in the legislature from some of his medical colleagues, but it was not unanimous. With respect to Godfrey’s sterilization bills, Whitney’s view clearly prevailed, but the result was somewhat different in the case of Godfrey’s marriage bills. In the end, however, the arguments reflecting the importance of promoting the public good which might result from Godfrey’s bills becoming law were not sufficiently powerful in any of the eight cases to outweigh the damage it was feared they would do to individual rights, especially when some of the other objections were added. Again, superficially, one might conclude that Godfrey was unsuccessful since none of his four bills regarding pre-marital medical certificates ever passed. Yet his work on marriage prompted government action, as when it asked him to withdraw his 1913 bill in order to introduce its own – one that toughened procedures for issuing marriage licences but made no reference at all to medical certificates. The government must have been responding to concerns about marriage from a broader range of individuals and organizations than simply those interested in eugenic solutions and attempted to balance the views of those who wanted to see stricter controls enacted with the views of those who were happy with milder steps. Since it restricted marriage by subjecting it to tighter state control and making it harder to enter into, its 1913 amendments might be seen as a small victory for Godfrey and his aggressive pursuit of change. Yet, without the requirement of a medical certificate, the government’s amendment was a poor substitute for his own attempts to implement eugenic solutions.

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Godfrey was obviously not afraid of courting controversy; in fact, he had actually made things hot for himself at times. One explanation for his appointment to the cabinet in 1923 as minister of labour (two years after he introduced his final marriage bill) is that it was perhaps his own party’s way of trying to keep him quiet on these controversial issues, since the principle of cabinet solidarity required him not to stray publicly from the government’s position on contentious matters, and as a minister he would not have had the process of private members’ legislation available to promote his own views. Another explanation, in light of his concurrent appointment as minister of health a year later in 1924, is that Godfrey’s appointment was actually a reward for his work in the legislature as well as elsewhere. This work, of course, included his marriage and sterilization bills, which promoted policies that claimed some public support even though the government felt unable to back them. In fact, as described above, in both 1918 and 1921, there was broad support within the legislature itself for Godfrey’s last two marriage bills. By appointing Godfrey to the cabinet, the government could point out that it had given his views a voice in its policy decisions, an indication, perhaps, that it wished (and saw a need) to appeal to the supporters of these measures. It is also possible for these two explanations to co-exist: the cabinet appointments prevented Godfrey from pursuing these interests as a private member in the legislature while still giving them a voice at the cabinet table. The record is silent with respect to any ongoing promotion of eugenics by Godfrey once he was appointed to the cabinet. Since cabinet deliberations are confidential, there were no press reports about them and we therefore have no way of knowing whether Godfrey continued his advocacy in that forum. Furthermore, bound by the principle of cabinet solidarity, he was unable to publicly promote causes which were not those of the government. It is certainly conceivable that he did so quietly: chapter 3 raises the possibility that he was a “behind the scenes” source for the eugenic-sterilization recommendation made by the Ross Commission. Another question is whether Godfrey himself as the promoter of these bills might have been part of the explanation for their failure. Perhaps his personal characteristics – a “rebel doctor,” as the Globe called him, a bit of a loose cannon and a gritty, opinionated politician not afraid to mix things up even with his own premier – actually meant that the issues were not taken as seriously as they might have

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been had someone else been behind them.135 On the other hand, his dual appointments as minister of labour in 1923 and the next year as minister of health in the Ferguson cabinet indicate that he was a sufficiently credible politician to be given responsibility for not just one but two areas of the province’s administration. Indeed, the public-health sector of his profession welcomed the announcement of Godfrey’s appointment to the cabinet; a laudatory editorial in the Public Health Journal pointed out that Godfrey had “always been an outstanding figure in the Legislature … [someone who] had the courage to stand up for his convictions on all occasions and [had] been unique among most doctors in parliament in that he [had] consistently and repeatedly used his medical knowledge on the floor of the House in the interest of measures making for health. An outstanding example of this [had] been his advocacy of Bills designed to control feeble-mindedness and for medical examination before marriage.”136 This wording, while entirely supportive of Godfrey’s efforts, is nonetheless revealing about how they were viewed. It does not use the explicit vocabulary of “eugenic,” “procreation,” or “heredity,” and so on but instead describes Godfrey’s bills as “measures for making health.” This denotes the public-health focus one might anticipate based on the source of the comment rather than a perspective directly engaging with the “eugenic” nature of Godfrey’s solutions. With the failure of all of Godfrey’s bills, it would be easy to conclude that his work had little effect on advancing a eugenic agenda in Ontario.137 However, closer inspection provides greater nuance to the analysis. To begin with, the reader must recall the repeated sentiments of numerous of Godfrey’s colleagues that, even though the “time was not right” or the “public was not ready” for Godfrey’s particular bills, the very fact that he brought them forward and the ensuing legislative and public discussion had an “educative effect.” Along with the work of others such as eugenicists Drs Helen MacMurchy and C.K. Clarke, these bills and the newspaper reports of them were among the factors that kept the issue of “the menace of the feeble-minded” before the public, amidst arguments about what solutions were desirable. While Godfrey’s obvious goal was to have eugenic legislation passed (and in this respect, he undeniably failed), his bills surely helped create an environment in which the government felt the need to appoint a royal commission to study related matters.

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As discussed in the next chapter, MacMurchy and Clarke and a number of organizations including the National Council of Women and the Provincial Association for the Care of the Feeble-Minded had been lobbying for some time for a royal commission to study the problem of feeble-mindedness. The government finally responded on 8 November 1917, appointing the Ontario Royal Commission on the Care and Control of the Mentally Defective and Feeble-Minded led by Justice Frank Hodgins, a move that was met with considerable enthusiasm from MacMurchy, Clarke, and others. However, one possibility is that the government, by putting this task in the hands of a respected third party, was endeavouring to deflect the need for it to consider eugenic solutions publicly. In this sense, ironically, Godfrey’s bills and the influence they had on the public may have been partly responsible for a government move calculated to give the appearance of taking steps while actually doing little in concrete terms apart from engaging in prolonged “study” of the commission’s recommendations. Yet, despite the failure of his bills, Godfrey’s efforts undeniably affected the trajectory of eugenics in the province since the government did act in three ways which were all related to it. It passed its own marriage amendment, it created a royal commission to study the problems related to feeble-mindedness, and it appointed Godfrey to the cabinet. This is not to say that it was Godfrey or his bills per se that resulted in the government taking these steps; it is more accurate to say it was the public support for the ideas that Godfrey aroused and fanned with his bills that was key to the government’s decisions. Specifically, none of these three steps would have been taken unless there had been sufficient public support for Godfrey’s ideas to move the government to act in some way on them, even if it was not the legislative action that Godfrey hoped for. Nor is it to suggest that support for the eugenic solutions that Godfrey promoted was the only reason for these various responses from the government. Some might argue that Godfrey’s appointment to the cabinet in 1923, thirteen years after his first bill and two years after his last, was too distanced from most of his bills for them to have been a credible factor in his elevation. Nonetheless, the regular discussion in the legislature and the newspapers of the issues raised by Godfrey’s bills over more than a decade kept him associated with these ideas for this extended period. Even if there were other reasons for appointing him, such as his political and professional qualifications, personal

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friendship with Premier Ferguson (of which there is ample evidence), or loyalty to the Conservative Party, his appointments as minister of labour and health must have been at least partly in consideration of his role in addressing the issues of marriage and sterilization.138 Unfortunately, we are limited in our ability to assess Godfrey’s proposed solutions thoroughly precisely because they were proposals that were never implemented. As a result, some questions remain unanswered – most importantly, how would the legislation that contained his eugenic solutions have been implemented and who exactly would have been subject to its provisions had these laws been enacted? As is shown in the study of eugenics elsewhere, just because a law was passed does not automatically mean it was applied. This could be the result of court decisions to strike down unconstitutional sterilization laws such as occurred in Pennsylvania in 1905 and Idaho in 1919 or legal decisions such as the one made in the Eastview trial which meant that an existing law was ignored. However, neither the reported discussions in the legislature nor Godfrey himself ever provided more detail than what was contained in the wording of his bills about how the laws would actually work. Had they been passed and actually implemented, we would be able to gain insight into how the classifications of individuals were understood in practice, as we can for jurisdictions where bills became laws and were put into effect. One striking feature of the story of Godfrey and his bills is the solution he failed to propose. Eugenicists had a number of possibilities for changes to the law to promote their philosophies. In addition to immigration law reform (not open to Godfrey for constitutional reasons), these included sterilization, marriage restrictions, and segregation of unfit individuals during their reproductive years. Completely missing from the solutions proposed by Godfrey was the idea of segregation. He did not raise this possibility for addressing the problems that concerned him. Perhaps as a physician, he was more attracted to solutions in which he had a professional interest – sterilization, of course, required surgery, and pre-marital medical certificates would have vaulted physicians into the important social role of arbiters of who could marry. On the other hand, as a politician, he was more aware of and concerned about the costs associated with housing the large numbers of unfit individuals, a reality that might explain his silence on this point. The fact remains that there were no further attempts to introduce eugenic legislation in Ontario – Godfrey’s 1921 marriage bill was

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the last.139 His lack of success despite considerable persistence perhaps acted as a deterrent to any Ontario lawmakers who wished to see those types of measures become law. However, as the following chapter shows, others made efforts both in this same period and after it to persuade the Ontario government of the need for legislated solutions to the same problems as Godfrey had addressed with his bills.

3 Investigating Eugenics: Three Ontario Royal Commissions I am the Royal Commission on Kissing; Appointed by Gladstone in ’74; The rest of my colleagues are buried or missing; Our Minutes were lost in the last Great War. But still I’m a Royal Commission Which never has made a Report, And acutely I feel my position, For it must be a crime (or a tort) To be such a Royal Commission. My task I intend to see through, Though I know, as an old politician, Not a thing will be done if I do. A.P. Herbert1

Not every royal commission suffers the same fate as Herbert’s Royal Commission on Kissing. However, the three discussed in this chapter share some uncomfortable similarities, at least with respect to the eugenic goals that they promoted for Ontario. While no colleagues were buried or missing and each “saw through” its task of preparing a report, the commissioners to a man would have sympathized with the complaint that “nothing will be done” about the recommendations. The most direct way of using law to tackle social problems is to enact legislation. Although individual lawmakers can initiate legislation, their bills are likely to fail without government support. This was Forbes Godfrey’s experience. A less direct alternative is the approach the Ontario government took on three occasions between 1910 and 1938 – that of appointing a royal commission, or public inquiry, to examine and make recommendations on certain matters of importance and concern. These commissions are the second legal

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process examined in this book to illustrate the history of eugenics in the province of Ontario. Over a period of approximately twenty years, three successive Ontario governments created royal commissions relevant to this study, either because of the particular matters they were directed to address, the solutions they proposed, or both. Their timing is very helpful, as they provide a picture of the interest in eugenics and eugenic solutions as well as the doubts about them at three specific points of time, each more or less ten years apart. The first was the Royal Commission on the Care and Control of the Mentally Defective and Feeble-Minded established in 1917 and reporting in 1919, led by sole Commissioner Justice Frank Egerton Hodgins, an Ontario Court of Appeal judge (the “Hodgins Commission”).2 The second was the Royal Commission on Public Welfare, established in 1929 and reporting in 1930, with newspaperman Philip Dansken Ross as chairman and civil servant John M. McCutcheon and Conservative member of Parliament David McKenzie Wright as commissioners (the “Ross Commission”). The third was the Royal Commission on the Operation of the Mental Hospitals Act, both established and reporting in 1938, led by prominent Ontario government lawyer Clifford Magone as its chairman, with William H. Avery, a physician, and sportsman-turned-politician Lionel P. Conacher as the commissioners (the “Magone Commission”). The Hodgins Commissions was set up to consider a set of problems that was the focus of the eugenics movement as well as of other social reformers – the apparently growing number of mentally defective and feeble-minded individuals in the province, and the prevalence of venereal disease. It made a number of recommendations consistent with implementing a eugenic program but did not explicitly label any of them “eugenic” and avoided any discussion whatsoever of the most controversial eugenic solution at the time – sterilization of the so-called mentally defective. By contrast, the subsequent Ross and Magone commissions were created to consider types of problems that did not immediately implicate eugenics – public welfare and the operation of provincial institutions in one case, and the operation of the mental-hospital legislation and related individual complaints in the other. Nothing in archival records, including newspaper reports, indicates that a consideration of the issue of sterilization or any other explicitly eugenic matter was intended to be part of the mandate of either. Yet each commission responded with a report which

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included a recommendation for sterilization – a position that, in both instances, can easily be labelled “eugenic.” In order to expand our understanding of the history of eugenics, this chapter examines the problems these royal commission addressed as well as the solutions they proposed. It scrutinizes the ways in which certain individuals, organizations, and governments used a particular legal process to advance or deflect eugenic ideas and illustrates once more the role of the “public good” in their efforts.

w h at is a roya l commi s si on? In order to understand the legal structure within which these three royal commissions operated, a brief discussion of the vehicle itself is in order. The definition of a royal commission, or commission of inquiry, is hard to pin down. Commentators have noted that such bodies are something everyone (at least in countries with governments developed on the British model) knows but no one can define – “a subject wrapped in a haze of common knowledge.”3 It is an “ancient British institution” that has been part of the apparatus of government since 1085 when William the Conqueror ordered a survey of who owned what in England and Wales in order to determine what was owed to the crown in taxes.4 Their basic function is primarily investigatory: depending on their mandate, they do not generally make law or policy. They have been used by governments since Norman times, although never more so than in the nineteenth century when 388 were appointed in Britain between 1830 and 1900. Of the Commonwealth countries, Australia and Canada have made the most continuing use of them. They have been formed to investigate an almost unimaginably wide range of subjects, from historical monuments, to the Oxbridge system of education, to monetary policy, to opium, to environmental issues, to national sports policy, and even to, as set out above in satiric verse, kissing.5 Their structure and operation can vary widely. Sometimes they are made up of a single commissioner, sometimes several. Subject to their mandate, they are free to report at their own discretion as to timing and content. Ontario royal commissions are appointed pursuant to the Public Inquiries Act, which authorizes their creation but, in keeping with their historical development, provides no set rules as to their operation.6 As their longevity attests, royal commissions have been very useful tools of government, sometimes

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used to diffuse political issues, and at others by governments genuinely seeking expert study and advice based on input from the public, answers to specific questions, or investigations into misconduct. In some cases, their recommendations have been rushed into legislation (as was the case with the bill drafted as part of Hodgins’s First Interim Report, which is discussed below); and in others, apparently ignored (although in the 1930s one scholar noted that, on average, it took nineteen years “for recommendations of a unanimous report of a Royal Commission to assume statutory form,” much longer if the report were not unanimous).7 In early-twentieth-century Ontario, they were a common response by governments to social problems.

t h e h o d g in s c ommi s si on Rising public concern about two specific matters led to the appointment of the Hodgins Commission. The first was a belief in a growing number of supposedly feeble-minded individuals and the second was the high rate of venereal disease in the Ontario population. As described in chapter 1, in the years leading up to the 1917 appointment of the Hodgins Commission, concerns about the “menace of the feeble-minded” were shared by a variety of social reformers in Ontario, eugenicists among them. Two individuals were particularly prominent in publicizing their views about these problems – Dr C.K. Clarke and Dr Helen MacMurchy. Charles Kirk Clarke (15 February 1857–20 January 1924), a prominent psychiatrist, is remembered for his significant role in enhancing the treatment of mental illness in Canada. He was responsible for establishing the first outpatient clinic for treating mental illness in 1909 and his lobbying efforts were largely responsible for the first psychiatric institution in the country.8 An additional preoccupation that focused his interest on eugenics was his belief that the federal government’s immigration policies had resulted in Canada becoming “a dumping ground for the riffraff of the world.”9 In 1915 Clarke was credited for establishing a “ground-breaking” clinic for the treatment of venereal diseases. Dr Helen MacMurchy (7 January 1862–8 October 1953), a protégé of Clarke, was a Toronto physician noted for her interest in public health and the welfare of mothers and infants in particular. In 1905, at the urging of the National Council of Women, a group concerned with the connection between feeble-mindedness and

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wayward women, Provincial Secretary W.J. Hanna, the member of the Ontario cabinet in charge of asylums, prisons, and other institutions, asked MacMurchy to travel to New York City to discuss the issue of feeble-mindedness with members of the British Royal Commission on the Care and Control of the Feeble-Minded, who were there to investigate the American approach to this matter. The following year, she was appointed Ontario provincial inspector of the feeble-minded (although the position was not given a formal name until 191410), in which capacity she was noted for applying the techniques of “yellow journalism” in her annual reports.11 In 1910 she was sent on a fact-finding mission to England where she visited some of the “most prominent” facilities for housing the feeble-minded and studied “advanced methods in vogue” for their treatment.12 In Ontario, the year 1911 was a watershed for attention to issues relating to feeble-mindedness, partly as a result of increasing concerns about non-British immigration. On 22 March 1911 a large deputation spoke to Ontario legislators on the “problem of the feeble-minded,” and almost exactly one year later, on 20 March 1912, a one-day conference attended by one hundred delegates from twenty municipalities around the province (at which MacMurchy gave the opening address) was held for the purpose of organizing to respond to this problem. At the meeting, as a result of the efforts by MacMurchy, Clarke, and others, the Provincial Association for the Care of the Feeble-Minded (pacfm ) was formed. MacMurchy was on its first executive committee and Clarke was the first president of the Toronto chapter. Among its main goals was persuading the government to establish facilities for the custodial care for those deemed feeble-minded and to implement marriage restrictions.13 At the same time, pressure on the Ontario government to form a royal commission to study the problem of the feeble-minded was mounting from several directions. One source of inspiration was the 1908 report of the British royal commission, which had been instrumental in the drafting of the British Mental Deficiency Act.14 The main thrust of this 1913 statute was compulsory institutional care for those labelled mentally deficient.15 On 12 August 1915 the National Council of Women sent a delegation to Ottawa to urge Prime Minister Robert Borden to set up a national royal commission to “enquire into the question of the feeble-minded in Canada.” The objects of such a commission would be:

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1 To ascertain the number of feeble-minded persons in the Dominion of Canada. 2 To ascertain the number of mentally-defective immigrants admitted into the Dominion of Canada per annum. 3 To consider the existing methods of dealing with the feebleminded. 4 To report as to what measures should be framed and adopted in this matter, due regard being had to the expense involved in any such proposals, and the best means of securing economy therein.16 Borden forwarded the request to the British Privy Council, which suggested that it might be possible to issue an order authorizing the creation of such a commission should the provinces agree, but it was ultimately referred to the Ontario lieutenant governor in council (the formal designation of the Ontario provincial cabinet) in deference to the delicate nature of Canadian federal-provincial relations and the fact that the subject was “a matter which primarily appertains to the Governments of the Provinces.”17 Early in 1917, MacMurchy and the pacfm stepped up their efforts to persuade the Ontario provincial secretary, W.D. McPherson, to appoint a royal commission.18 McPherson then held the most senior position in the cabinet after the premier, William Hearst, and was responsible for institutions such as hospitals and prisons. Numerous meetings with McPherson were noted in the local press, including one on 12 May 1917 where he indicated that a royal commission would be established “in a short time.”19 On 21 June 1917 a delegation of religious representatives pointed out to McPherson that both the Anglican and Methodist churches had passed resolutions in favour of a royal commission.20 The Roman Catholic Church had also done so.21 McPherson needed little persuasion, having considered the possibility of appointing a commission to “investigate the subject of the public provisions for the care, custody, and treatment and training of the mentally deficient including epileptics” even before his selection as provincial secretary in 1916.22 Along with feeble-mindedness, a second matter of increasing concern was the high rate of venereal disease and the connection between them. The First World War had brought the scourge of venereal disease squarely to the public’s attention. The infection rate of gonorrhea and syphilis in the Canadian military at the end of the war was among

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the highest of the British allied forces: the total of 66,083 cases represented 12 per cent of all sickness (not including wounds) treated.23 These figures corresponded to civilian rates as well, with 12.8 per cent of new admissions to the Toronto General Hospital in 1917 suffering from syphilis alone.24 The army took the predicament very seriously, implementing education, treatment, and quarantine programs and undertaking statistical analyses.25 Nevertheless, its medical men were of the view that, at least with respect to the quantity of disease found within its ranks if not the immorality that triggered it, the military itself was the victim as “the great majority of venereal cases found in the army were infected previous to enlistment.”26 The problem, so a spokesman claimed, was prostitution, more specifically, “clandestine prostitution,” since the large number of young girls who “pursued this abnormal occupation without charging a fee” but accepted theatre tickets, presents, and meals were out of the reach of the law against soliciting which was triggered only by financial transactions. One cause for apprehension was the relationship between venereal disease and the apparent wave of feeble-mindedness for which it was blamed. Since the vast majority of purportedly feeble-minded women (perhaps even 75 per cent) were believed to be prostitutes27 who would then contract venereal disease and pass it on not only to their sexual partners but also to their own infants who would in turn grow up feeble-minded themselves, it was a tightly drawn circle, connecting feeble-mindedness, prostitution, and venereal disease. The Toronto Globe emphasized these connections. In a stirring call for action on the problem of venereal disease, the Globe, castigating the “prurience that has left the race enervated, debilitated, and polluted,” explicitly linked the disease to “feeble-minded women at large, the class to which most fallen women belong, [who] are almost invariably diseased” and the “chief source of infection ...The problem,” it continued, “is consequently connected with the segregation and treatment of the feeble-minded.”28 The College of Physicians and Surgeons of Ontario also expressed concerns. In its 1917–18 “Announcement” to its members, the college reported on the motion it had passed to prepare a resolution embodying its “interest and concern” about the “alarming menace to the public from the serious prevalence of venereal disease.”29 A royal commission tasked with studying these problems together was an obvious way for the government to respond to calls for attention to both matters. By the fall of 1917, it was ready to act, turning

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to Frank Egerton Hodgins, an Ontario Court of Appeal judge and experienced royal commissioner.30 On 8 November 1917 Hodgins was appointed as sole commissioner of the Ontario Royal Commission on the Care and Control of the Mentally Defective and Feeble-Minded.31 Its mandate was to “consider and inquire into the existing methods of dealing with imbecile, feeble-minded or mentally-defective persons in the Province of Ontario,” and, also making explicit the apparent link between feeble-mindedness and venereal disease, “in connection therewith to consider and inquire into the extent to which venereal disease is either the cause or consequence of present conditions and to report as to the measures which should be adopted.”32 Highlighting both the individual as well as the public good, the directive was premised on the recognition of “the hardship or danger resulting to such persons and the community from insufficient provision for their care, training and control.” Although there was no direct reference to procreation, the scope of the matter that Hodgins was asked to consider was sufficiently broad to encompass that issue also. The commission’s recommendations, including any necessary amendments to provincial laws, were to give “due regard” to the expense involved in any such proposals and to advise how and by whom the costs should be borne.33 In keeping with the latitude of royal commissions generally, it was provided with wide powers to call and examine witnesses under oath, demand and review documents, and visit and inspect premises. The appointment of Hodgins as sole commissioner was significant: a sole commissioner has the exclusive power to function and ultimately report as he (in this case) sees fit. Accordingly, the government’s choice of Hodgins was a political decision, since picking the commissioner would certainly direct, if not actually assure, a particular outcome. Hodgins was not the only person who might have been selected to perform this role. Aside from judges and lawyers, other candidates were also available, including some with considerable experience in the field of feeble-mindedness. MacMurchy was one: her interest in these issues had been long-standing and in her role as Ontario inspector of the feeble-minded, which included publication of annual reports, she was, as Hodgins himself noted in his report, “regarded in the United States as a leading authority.”34 C.K. Clarke was another. Not only was he a prominent Ontario

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psychiatrist with noted expertise in this field, but he also had been a member of similar commissions of inquiry in British Columbia and Europe in 1907.35 Although the legislation allowed the government to appoint “any person or persons” as commissioners, the fact that neither MacMurchy nor Clarke was a judge or had legal training was a practical drawback since commissioners, especially when they were appointed sole, were usually drawn from the ranks of practising lawyers or judges.36 Also, given the antipathy of the government over the preceding years to Godfrey’s attempts to have eugenic measures passed by the legislature (by this point all four sterilization and his first two marriage bills), the fact that MacMurchy and Clarke were known to be advocates of state intervention was likely another negative factor for both. MacMurchy, who had favoured sterilization from at least the early 1900s,37 and Clarke each had a clear agenda of which the government was well aware, having already been the object of lobby campaigns in which both had played key roles. Appointment to the commission would have given either of them a highly visible platform from which they could promote their ideas as well as attempt to guide future government policy through the royal commission’s eventual report. Moreover, in this period, as a woman, even a highly qualified one, MacMurchy was at a further disadvantage. Instead, the government turned to Justice Frank Hodgins. Francis (known as Frank) Egerton Hodgins (27 March 1854–18 September 1932) was born in Toronto to John George Hodgins and his wife, Frances Rachel Doyle. He was educated with the sons of the Toronto Anglican elite at Upper Canada College, Trinity University (now Trinity College at the University of Toronto), and Osgoode Hall Law School, following which he was called to the bar in 1879. In 1911 he was appointed to the Court of Appeal, First Appellate Division, where he served until his retirement in 1932, a few months before his death.38 At least in some ways, Hodgins’s approach to the administration of the law was liberal: he urged greater input from the growing field of psychiatry in matters of criminal law, he considered the significance of a poor home environment in matters relating to juveniles, and, more than many, he was sympathetic to the plight of women, as evidenced by his support for women testifying in rape cases and for widening the allowable grounds for divorce.39

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Hon. Frank Egerton Hodgins, c. 1920. (© National Portrait Gallery, London.)

Hodgins’s death on 18 September 1932, a front-page story in the Globe, was described as an “irreparable loss” to the province at the ceremony for the opening of the Ontario Supreme Court two days later on 20 September 1932.40 While such glowing praise was commonplace on occasions of this kind, it also conveyed some truth: recognition from both his colleagues, who elected him to the prestigious position of bencher (or governor) of the Law Society of Upper Canada from 1910 to 1912 and as one of the first presidents of the Ontario Bar Association,41

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Dale Avenue, Toronto, the street where Hodgins lived until his death in 1932, was a world away from the Ward as shown in the images on pages 30 to 33. (City of Toronto Archives, Fonds 200, Series 372, Subseries 10, Item 155.)

and from both provincial and federal governments, which appointed him as commissioner to three other royal commissions.42 In keeping with the public reticence expected of members of the judiciary, there is no indication that Hodgins, unlike MacMurchy and Clarke, had previously expressed any public views about the issues that he was asked to consider. As a judge, he heard a wide range of cases, criminal and others, and this, coupled with his experience as a lawyer, meant that he had acquired considerable experience in the task of assessing evidence and witnesses. From the bench, he also gained useful insight into what reform might be needed in courtroom procedure for dealing with individuals believed to be feeble-minded, experience that held him in good stead on this particular royal commission. In appointing Hodgins, the government benefited from the “instant credibility and aura of objectivity and independence”43 that comes from naming a judge as head of a royal commission, and from naming this one in particular.

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in t e r im r e p o rt s : v e nereal di sease Despite the formal name of the commission, the care and control of the feeble-minded was not the first matter to which Hodgins directed his attention. Instead, it was the topic of venereal disease that he tackled in short order, expeditiously producing the first of two interim reports which he submitted on 20 February 1918, barely three months after he had begun his work. He did this, he explained, so that the government could take action immediately.44 In order to facilitate such action, the First Interim Report contained a draft bill which was passed promptly by the legislature, effective 1 July 1918, as “An Act for the Prevention of Venereal Disease.”45 Then, in order to “supplement” the new law, which he regarded as the foundation for action against venereal disease, the Second Interim Report submitted on 23 October 1918 contained the additional steps needed in order to secure the law’s “successful operation.”46 It was clear from his emphasis on the relationship between feeble-mindedness, prostitution, and venereal disease, and their significance in reducing “fitness,” that Hodgins himself had also accepted the connection. The First Interim Report was just twenty-one pages long. In it, Hodgins conveyed a great sense of urgency as he explained the necessity of creating “in the public mind as well as in that of the sufferers, the consciousness that venereal disease is so far reaching and so terribly serious … that all must co-operate loyally to secure its effective diminution if not its complete elimination.”47 He accepted the assessment of military physicians that the war had underscored the “undeniable conclusion” that the civilian population was the “real centre of contamination.” He also urged the public to look beyond the “nauseating” nature of the problem in order to direct efforts to control it by seeking out, isolating, and treating “those propagating the disease or suffering from its effects, not only in the larger cities and towns, but in the smaller rural communities.” His recommendations were made after considering what had been done elsewhere, Britain and Australia in particular, and he quoted long sections of expert reports prepared for those jurisdictions. His bill set out a comprehensive program for finding and treating those infected with venereal disease, while at the same time maintaining their privacy. Its main provisions set out rules for compulsory testing (and, if necessary, treatment, detention, and isolation of any person under arrest or in custody)48 and compulsory examination by a

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physician of anyone who the medical officer of health had reason to believe (“credibly informed” was the wording used in the bill) was infected with venereal disease. The bill also authorized entry by the medical officer of health “in the day time” into any premises “for the purposes of making enquiry and examination with respect to the state of health of any person therein” and removal to a hospital of anyone within found to be infected with venereal disease. The bill imposed penalties on anyone who knowingly risked infecting another. It prohibited quacks from either treating patients or advertising cures and also prohibited anyone from stating or intimating, “whether such statement or intimation is or is not true,” that anyone else had been subject in any way to the provisions of the act. The bill was enacted swiftly and, according to a note from the publisher of the First Interim Report, in a form that differed so minimally from Hodgins’s proposal that “it has been thought advisable to print it instead of the proposed Act.”49 Hodgins’s First Interim Report also briefly raised the issue of marriage. “There is also the advisability or otherwise,” he wrote, “of prohibiting the marriage of those afflicted with any form of venereal disease, into which enter the element of heredity and the whole system of eugenics.” He provided no explanation of what he meant by “the whole system of eugenics” but left this and other questions related to the “feeble-minded” to “be dealt with at a later stage.”50 After the bill had passed, Hodgins maintained his focus on venereal disease in order to develop a broader plan for combatting it. His Second Interim Report, equally short at just twenty-three pages, again emphasized the need for the public at large to be “aroused to the terrible and urgent nature of the disease and the necessity for conforming to very drastic rules.”51 Hodgins expanded his recommendations to include matters subject to federal responsibility, including immigration and quarantine. “Naturally,” he wrote (echoing a concern about immigration expressed by Dr Clarke and other eugenicists), “there should be medical inspection at the port of entry” and, in addition, “proper inspection at the port of departure,” something that “ought not to be difficult, in the present state of public opinion in Great Britain,”52 the departure point for much immigration to Canada. This interim report also argued for the creation of a federal department of health as part of the coordinated attack on venereal disease.53 In addition, Hodgins addressed the need for more juvenile courts, another matter he revisited in his final report.

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In the Second Interim Report, Hodgins returned to the issue of marriage. Having by then had a chance to consider the matter more fully, he suggested that “although we are not far enough advanced yet to put an absolute bar on marriage unless each party can show an absolutely clear bill of health in every respect … the simple requirement of a certificate from a reputable physician, who will himself be subject to the cancellation of his registration for giving a false certificate, will call attention to the hygienic duty that rests upon every man and woman designing to marry.”54 Hodgins presumably intended the certificate to provide a clean bill of health with respect to venereal disease. Beyond noting that such a provision “would be suited to our conditions,” he made no further recommendation regarding marriage in the Second Interim Report. However, he continued to refine his thinking on the matter and, in his final report, made a more complex recommendation – that a list of every feeble-minded individual in the province should be created, one of the uses of which could be to deny marriage licences to anyone on it.55 He did not follow up with any further discussion on the “element of heredity and the whole system of eugenics” which he had raised in the First Interim Report. The Globe responded favourably to Hodgins’s work as well as to the government’s decision to implement the legislation on venereal disease, expressing front-page support: “Ontario Declares War on Venereal Diseases – Legislation to Restrict Evil Consequences of Deadly Disorders Will Be Passed by Ontario Government Next Few Weeks.” The same article reiterated the connection between feeble-mindedness, prostitution, and venereal disease, calling them “intimately related” and noting that a “large percentage of cases of venereal diseases can undoubtedly be traced it is believed to the habitually immoral and many of this class are considered to be mentally-defective. On the other hand, it is believed that many cases of insanity and feeble-mindedness are the result of venereal disease.”56 Other reaction reported in Toronto newspapers to Hodgins’s interim reports was matter-of-fact. A subsequent article in the Globe contained a simple report, without commentary, on the new regime under the headline “Legislation to Limit Disease: Will Enforce Treatment and Provide for Detention of Venereal Patients.”57 The Toronto Daily Star reported that the Women’s Institute convention heard a “short talk” about the new venereal-disease legislation,58 and a few months later it noted that an exhibit on child welfare at the

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annual fall Canadian National Exhibition showcased “provisions for the treatment of venereal diseases” as part of the illustration of the work of the provincial Board of Public Health.59 Those with professional interest in the matter were equally brief. The Canadian Public Health Association passed a resolution of thanks “for recent legislation about venereal diseases” which was sent to Premier Hearst, Isaac Benson Lucas, the province’s attorney general, and Hodgins himself.60 The Public Health Journal published part of Hodgins’s report in the pages of its April 1919 volume, although it concerned a debate about patent and price issues of the drug developed to combat venereal disease and nothing about legislation or other steps Hodgins proposed.61 Once again, the two interim reports raised an issue that had been noted in connection with Godfrey’s bills – that is, balancing concerns about interference with individual liberty, on the one hand, and the public good, on the other. Premier Whitney’s response to Godfrey’s bills made clear the importance of individual liberty and how the prospect of its violation created an impediment to the implementation of certain eugenic solutions, particularly sterilization. Here again such unease is apparent, this time factored into Hodgins’s thinking as he struggled with the tension between “drastic interference” with the rights of individuals and the need to make “progress” in stamping out the “scourge” of venereal disease. 62 He even worried that treating venereal disease as a public-health issue like other infectious diseases would create the need for more government interference in the personal realm since it would “tend to intimidate those most chiefly concerned, and by driving them to concealment, defeat the end to be aimed at.”63 Ultimately, Hodgins landed on the side of the public good, which meant taking the steps necessary to combat the disease even at the cost of such intrusion. He proposed an interesting solution to keep it to a minimum: if treatment were free, he argued, more individuals would “overcome their reluctance … to disclose their condition and … initiate for themselves or submit to proper and systematic treatment,” thus reducing the need for coercion.64 He also included prohibitions against disclosure or even intimations that an individual was being dealt with under the act. These provisions were intended to reduce the serious embarrassment of being identified (either inadvertently or maliciously) as someone suffering from venereal disease. Here, Hodgins himself struggled between matter-of-fact

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and judgmental approaches to venereal disease. Although he noted that the “disease may be and often is acquired thoughtlessly and unknowingly, and every opportunity should be afforded to enable those infected to be cured without feeling disgraced,” in the very same paragraph he wrote of the “habitual, though clandestine, immorality” by which the disease was propagated. Hodgins’s comments illustrate the importance of health status in nation building through a determination of the characteristics of individuals who were welcomed to Canada. By advocating a federal department of health in order to prevent individuals suffering from venereal diseases from coming to Canada (which by then had existed for barely fifty years), Hodgins added his voice to those like physician Dr Michael Steele who, speaking in the House of Commons in 1917, worried that “feeble-minded people … in future years will by themselves and their prolific progeny burden and curse this country, producing in their various ramifications a social virus that cannot be exterminated from our land for centuries.”65 As we have seen, immigration was also a key concern of one of Canada’s leading eugenicists, Dr C.K. Clarke. The two interim reports (20 February and 23 October 1918) were submitted the same year as Godfrey’s third marriage bill, which was introduced on 11 March 1918 and which, like its 1921 successor, also addressed venereal disease: both required a medical certificate stating that neither party was suffering from that condition. Hodgins’s observation that prohibiting the marriage of anyone afflicted “raised the whole system of eugenics” itself drew the link between venereal disease and eugenics66 but he did not mention Godfrey’s bills at all.

t h e r e p o rt o n t h e f eeble-mi nded Hodgins’s work on venereal disease completed, he then turned his attention to the main task. He delivered his report on the feeble-minded approximately one year later, on 18 October 1919, just two days before a provincial election which brought with it an unexpected change in government from the Conservatives to a coalition of the United Farmers and Labour parties. The Hodgins Report on the Feeble-Minded consisted of 236 pages, just over half of which were Hodgins’s discussion and recommendations. The balance was an appendix containing twenty of the third-party reports (or extracts from them) that were submitted to the commission.

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Many of these were written by Americans associated with eugenics. They included three pieces by Dr Walter E. Fernald, the superintendent of the Massachusetts Experimental School for the Teaching and Training of Idiotic Children, an advocate of eugenics. These outlined the types of facilities becoming available in the United States for those believed to be feeble-minded, practical ideas such as segregation for reducing mental defects, and suggestions, such as preventing marriage, for reducing the burdens on society resulting from feeblemindedness. There were two items by Adolph Meyer, a prominent psychiatrist at one time involved with the Eugenics Record Office and a member of the American Eugenics Society; one examined the issue of heredity and the right to marry, and the other set out Meyer’s aims for psychiatric clinics. The appendix also included two items from the British Royal Commission on the Care and Control of the Feeble-Minded (a list of the principles upon which it was founded and the conclusions arrived at following the commission’s visit to the United States). There was nothing slapdash or provincial in the way Hodgins approached his work. In fact, in his own telling, it was precisely the opposite. Noting that he discussed the matter with “everyone who I thought might have any useful information to impart,”67 including “State and Provincial authorities,” organizations such as the pacfm and the Canadian National Committee for Mental Hygiene (cncmh) , and “many social workers,” he recorded visits to Hamilton, Ottawa, and Orillia, in Ontario, and, in the United States, to Washington, Boston, New York State (Rome and Thiells), New Jersey (Vineland), and Massachusetts (Waverley and Wrentham).68 Wishing “to call particular attention to the facts, experiences and conclusions made before me in evidence of the following,” he listed local figures like Dr C.K. Clarke, Dr Helen MacMurchy, J.P. Downey, superintendent of the Orillia Asylum, and numerous judges and officers of the Juvenile Court in Toronto, as well as a number of Americans involved in eugenic work.69 Finally, he cited the names of over one hundred individuals (almost half of whom were women) who appeared before the commission, gave statements to him during his travels, and/or sent submissions. They represented a wide range of groups involved with social problems, primarily from Toronto but also from a number from other locations in Ontario including Hamilton and Ottawa, along with a few from the United States.70 Hodgins also “perused an immense number of pamphlets, papers

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and addresses written or delivered by authorities in Great Britain and the United States, and the Report of the Royal Commission [on the Care and Control of the Feeble-Minded] in Great Britain.”71 He stated that his review of activities in other jurisdictions had allowed him to “arrive at some solution of the matter from an Ontario standpoint … projected upon lines in keeping with the best that exists elsewhere.”72 Hodgins divided his report into two parts. The first part, comprised of 119 pages, was a lengthy description of the “extensive work” with respect to the “feeble-minded” carried on in Britain and the United States, and the second, a five-page description of twenty recommendations, concluded with a one-page identification of the five most urgent. He was careful not to over-dramatize the problem or to create undue pessimism about the prospects of its resolution, as MacMurchy’s annual reports as provincial inspector of the feeble-minded did. He stated that, even though feeble-mindedness was a serious problem, it was capable of being addressed.73 The first section contained very little material which Hodgins himself wrote: most of it was lengthy passages quoted from experts in other jurisdictions on a wide variety of topics including “Why the Feeble-Minded Are a State Problem,” “Definitions and Discussion of Feeble-Mindedness,” “Marriage,” and “Legislation.” For example, in the section on “Marriage,” Hodgins stated that “many authorities are very emphatic on the importance of preventing the marriage of feeble-minded men and women” and identified two of the “most striking” of these individuals – Dr A.F. Tredgold and Henry H. Goddard, leading British and American authorities, respectively. This three-page section was primarily a listing of jurisdictions where marriage restrictions had been imposed, followed by two paragraphs outlining his own views, as detailed below.74 Similarly, under the heading “Legislation,” Hodgins quoted extensively from the “outstanding enactment in relation to mental defectives,” the British Mental Deficiency Act of 1913, including its definitions of the four categories of mental deficiency (“idiots,” “imbeciles,” “feeble-minded” and “moral imbeciles”), and a 1919 New York law on the feeble-minded.75 He pointed out the need to consolidate and rationalize numerous Ontario statutes which were relevant to the issues he was studying, a piecemeal and inconsistent system of the rules and regulations covering hospitals, sanitaria, lunatics, reformatories, and refuges. He did not provide a specific plan for doing so, remarking that the “exact form” in which this should be done

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depended on what system for caring for the feeble-minded was ultimately adopted.76 Many of the articles quoted in the Hodgins Report identified heredity as the cause of feeble-mindedness. For example, in his discussion of marriage, Hodgins cited the British expert Dr Tredgold, physician to the National Association for the Feeble-Minded, quoting the American Henry Goddard’s statement that “one great cause of feeble-mindedness and the source of two thirds of it … is heredity.” Similarly, Hodgins included material from Dr William J. Hickson, medical director of the Chicago Psychopathic Lab, stating that “mental defectiveness is hereditary.”77 Hodgins himself explicitly adopted this view. He stated that “heredity is a recognized cause of mental defect,” and, foreshadowing his ultimate recommendation, he added that “nothing short of” segregation from the community “will suffice to stamp out this terribly degenerating influence.”78 Hodgins made twenty recommendations, which, taken together, provided a comprehensive (and correspondingly expensive) plan for dealing with feeble-minded individuals. While his report mentioned the need to amend certain laws, including marriage laws, he did not consider the issue of sterilization. Nor did he mention Godfrey’s sterilization or marriage bills (although this was perhaps not surprising given that none had passed). Hodgins began with the fundamental need to create an office that would undertake a “systematic, detailed survey” conducted with “proper professional assistance” of the population of the province and register those assessed as mentally defective. He recommended that this office should take the form of a board of control or a departmental committee directed by the office of the provincial secretary, under the chairmanship “if possible, of some energetic, well-known and philanthropic citizen” who would be assisted by an executive and paid secretary “of known experience.” It would also include individuals from organizations with an interest in these issues, “such as the Children’s Aid Societies, the Canadian National Committee on Mental Hygiene and the Provincial Association for the Care of the Feeble-Minded, and other kindred bodies engaged in social welfare work.”79 Other possibilities for membership were: hospital physicians “already interested in psychiatric work,” medical officers of municipalities and probation officers, and “some public-spirited men whose experience and interest would be of great value in stimulating public opinion.” He suggested that the survey should “proceed first through existing

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agencies, such as the Children’s Aid Societies, Juvenile Courts and the public schools.”80 As part of conducting the survey, the board should ensure that it addressed the subjects of early diagnosis, paid expert study, and supervision of the feeble-minded. It should also coordinate the work of social agencies and workers. Unlike Godfrey’s bills, which provided no precise definitions or classifications of the groups of individuals to whom they would apply, one important feature of Hodgins’s survey process was to provide a legal definition of the various terms used to denote mental deficiency. He proposed the use of two to begin with. The first was “feeble-minded,” which he suggested would refer to “persons in whose case there exists from birth or from an early age mental defectiveness not amounting to imbecility, yet so pronounced that they require care, supervision, and control, for their own protection or for the protection of others, or, in the case of children, that they by reason of such defectiveness appear to be permanently incapable of receiving proper benefit from the instruction in ordinary schools.”81 The second was “moral imbecile” – individuals “who from an early age display some permanent mental defect coupled with strong vicious or criminal propensities on which punishment has had little or no deterrent effect.” Hodgins was dismissive of the need to set out parameters for identifying “idiots” and “imbeciles” initially since they were already “easily known and generally taken care of” and were “usually unlikely to marry” in any event. The survey could be expanded to include these groups when the “urgently needed work already outlined has been got in hand.”82 Confusingly, Hodgins later suggested that the definitions of the four categories of mental condition in the British Mental Deficiency Act could be followed in any legislation passed in Ontario addressing these questions.83 Hodgins called upon the members of the bar and bench as well as municipal officials to assist in remodelling the province’s statutes and procedures to support his recommendations.84 Curiously, while he saw a role for community representatives and other experts in the survey process, he did not call on assistance from either physicians or legislators to help update the province’s laws. He also recommended the immediate appointment of an inspector for mental defectives and the feeble-minded, an “independent officer” in the provincial secretary’s department, but gave no indication of what this person’s qualifications or their duties ought to be.85

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Next, Hodgins recommended an extensive capital-construction program in order to provide the required infrastructure to permit the segregation of feeble-minded individuals, an approach to the problem of the feeble-minded that Godfrey’s bills did not address. It included the erection of new temporary hospitals until permanent structures could be built. In addition, he proposed building one or more residential facilities in the countryside. These would be accessible to Toronto and dedicated not only to housing feeble-minded people but also to providing them with access to fresh air, exercise, and basic work, such as laundering or gardening. He noted the need for improvements to court premises, particularly those where juvenile cases were heard, to provide space for medical clinics staffed by physicians and social workers to assist the judges. Hodgins believed strongly in the need to segregate feeble-minded women of reproductive age in institutions as well as provide education suitable for all children, no matter what their limitations. He proposed reforming the justice system, partly through the assistance of psychiatric evidence and improving the functioning of the courts. In particular, he wanted to ensure that juveniles were treated not only in a humane and compassionate way suitable to their ages but also one that recognized the influence of the environment on their behaviour. His plan necessitated a broad range of new or amended laws, from stronger provisions for the education of those with mental defects to changes to the federal Immigration Act86 to limit the “evil of immigration” of such individuals into the country. Expanding on his preliminary comments in the two interim reports, Hodgins again took up the issue of marriage restrictions. His report quoted Tredgold and his alarming pronouncement about the very high birth rate among supposedly feeble-minded individuals (“approximately twice that of the normal population”), and the First Report of the New York Committee on Feeble-Mindedness, issued in October 1917, which noted the tendency of feeble-minded females to live “dissolute lives.”87 He observed that “the English Mental Deficiency Act of 1913 contains no reference to the subject [of marriage laws], though questions were put to many witnesses thereon. The answer to all such questions generally was that the procreation of feeble-minded children should be prevented by detention, and that if that were done, legislation against marriage was unnecessary and most difficult to formulate.”88 Hodgins did not agree: like Forbes Godfrey, he wanted to see marriage restricted by requiring a pre-marital medical certificate.

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However, Hodgins’s proposal outlined a more complex scheme than both forms of Godfrey’s marriage bill, which had focused on certain mental and physical conditions of the parties who wished to marry, the responsibilities of the officiants and the issuers of the marriage licences, and the requirement of medical certificates. Hodgins’s final recommendation had three elements – first, that a provincial register of feeble-minded individuals be kept in connection with the survey described above; second, that individuals wishing to marry be required to produce certificates from the “proper medical and departmental authority” (presumably confirming that neither party was feeble-minded or listed in the register of feeble-minded); and third, that legislation be enacted imposing imprisonment “for a reasonable period upon anyone who knowingly and willfully marries or has carnal connection with a person who is mentally defective.” His conclusions here, as with his plan in the interim reports for preventing the transmission of venereal disease, gave priority to the public good rather than the individual. “The evil of propagating feeble-minded children is so great,” he wrote, “and the result of preventing it is so beneficial to the community that I feel justified in suggesting some action along the lines I have proposed.”89 Elsewhere in the report, Hodgins was more specific. Addressing marriage only as opposed to cases of “carnal connection,” Hodgins proposed that it be a criminal offence with a minimum two-year jail sentence for a man to marry a mentally defective female under the age of forty-five, and the marriage declared void upon conviction. He made no corresponding suggestion for cases of women marrying feeble-minded men. Hodgins did not explain why his final recommendation differed from his earlier suggestion. Once Hodgins had described his twenty recommendations, he pointed to five as “urgent matters” that could not await the “elaboration of any detailed scheme.”90 These included ensuring that special school classes for students with mental defects, under the supervision of an inspector, were established; turning the Orillia Asylum into a facility for patients with mental defects and transferring people designated as insane living there to other facilities; relocating juveniles then being dealt with by the courts or the Children’s Aid Society to Orillia; building (by the province) of a new “psychopathic” hospital in Toronto and a new reception (or psychiatric) hospital (by the city) in Toronto; and, finally, creating temporary facilities until all the foregoing could be accomplished.

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As required by his mandate, Hodgins considered the costs of his recommendations, stating that he was “desirous of suggesting what can be accomplished without casting an undue burden upon the finances of the Province or on its municipalities.” However, “at the same time,” he continued, “a well-defined objective and the means necessary to reach it are indispensable.”91 He reiterated throughout the report that cutting corners was likely to be unsuccessful,92 and, in the end, the cost of incarcerating feeble-minded individuals would be greater than that of preventing the condition by the methods he was proposing in the first place.93 Hodgins was also conscious that responsibility for implementing his recommendations crossed all legislative boundaries – municipal, provincial, and federal. Accordingly, he noted which level should be responsible for which recommendations and where cooperation would be necessary. The reaction to the report generally in the early months following its release was enthusiastic. Government officials were highly complimentary, considering it to be “one of the most important reviews that have ever been submitted, equaling the best of those that have been prepared in the United States and Great Britain.”94 Dr C.K. Clarke expressed a similar view: “The Commissioner has not only done his work well, but has succeeded in gathering a mass of information that in itself would be invaluable. Taken in conjunction with the eminently sane conclusions arrived at and recommendations made, the report establishes itself as one of the most important documents of the kind produced in any country, and its influence for good must be incalculable.” Although Clarke had previously worried that “when the u.f.o. [United Farmers of Ontario] Government came into power the long-looked-for report on the mentally-defective of Ontario by the Hon. Justice Frank E. Hodgins, would be pigeonholed,” the fact that the report had been put before the legislature by the new government was “proof” that it was “alive to the importance of the document.”95 On behalf of the medical community, the Canadian Medical Association praised the report succinctly as “one of the most important ever handed to the government on this subject. Important reforms are suggested.”96 Women’s groups were equally enthusiastic. The keynote address by founder Mrs H.V. Laughton at the first annual dinner meeting of the newly formed Women’s Law Association of Ontario held on 14 February 1920 centred on the Hodgins Report, and emphasized the role and responsibility

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of women, in particular, in taking up the “much needed reform” it proposed.97 Clarke’s cautious optimism based on the new government’s initial response turned out to be misplaced. As time wore on, his earlier forebodings were confirmed as complaints about government inaction emerged.98 There are many reasons why this might have been the case, the first of which was connected, as Clarke feared it might be, to the timing of the report’s delivery and the change of government.99 William Hearst and the governing Conservative Party, which had appointed the commission, had experienced a particularly eventful period in government. Not only was Hearst required to steer the province through the First World War, but he also oversaw the implementation of two controversial initiatives – prohibition legislation, which was passed in 1916 with the promise of a referendum to be held in conjunction with the next election, and the vote for women, which became law in Ontario in 1917. Although the referendum on prohibition passed, the government itself, to the surprise of all, and reportedly to the devastation of Hearst, was defeated. Hearst was not the only politician for whom this result was unanticipated. The winner was not one party but two – a coalition of the United Farmers and Labour. Not only had neither expected to win but the coalition had no leader. As a result, the swearing in of the new government was delayed and it took office without specific plans for governing. Moreover, leadership continued to be a distraction well into its first term.100 The lack of action on the report may have been the default position of a new government hamstrung by the organizational problems of a coalition, fiscal concerns related to the expense of Hodgins’s proposals, and constitutional complexities arising from the need to involve all three levels of government in order to implement the report’s recommendations. However, one aspect of the Hodgins Report may actually have been a relief to the new government. Its silence on sterilization allowed the government, already beset by the complicated problems of governing and now additionally facing those raised by Hodgins, to avoid having to deal with that issue. Thus, even while it may have been stuffed in the proverbial drawer (or pigeonhole, as Clarke worried), at least as far as its expensive and complex proposals were concerned, the report provided the government with a ready response on the subject of sterilization if it were raised. It now had the opportunity to say that even the learned judge, appointed by

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the previous government, one of a different political stripe, had not suggested this particular solution for dealing with the problem of feeble-mindedness. Interestingly, however, the issue of sterilization – either in support or against – was not raised in the public response to the Hodgins Report. The report itself relied heavily on American expertise and material. This suggests that the commissioner was influenced by the U.S. approach to the issues he was considering since all but four of the twenty papers Hodgins chose to include in the appendix of his main report were by Americans. The others were three from Britain, including extracts from the report of the royal commission (although not from the British Mental Deficiency Act), and one from Nova Scotia. Of course, British authority was important for Hodgins, if perhaps simply less visible. As a Canadian appeal court judge, Hodgins had been steeped in the British legal tradition and the deference to British precedent from his first day studying law. Nor was this mere custom – until 1949, the Judicial Committee of the British Privy Council was still the highest court of appeal for Canadian cases. Furthermore, Hodgins had a very strong personal attachment to England – two of his married daughters lived there, and he travelled to visit them so often that he joked that crossing the Atlantic was his “principal hobby.”101 Nonetheless, his focus on the American experience of caring for people who were feeble-minded suggests he considered it more relevant to the direction Ontario should take. As interesting as what the report contains is what it omitted. The first thing a eugenics-minded reader notices about it (the result, after all, of investigations into the “feeble-minded,” a matter of keen interest to those involved in the eugenics movement at the time) is the absence of explicitly eugenic vocabulary. Hodgins even restricted his use of the term “eugenics” to a very few occasions, and never explained what he meant by the phrase the “whole system of eugenics” which he used in his First Interim Report in connection with marriage reform. Perhaps even more surprising is that, despite the well-known arguments of some like Helen MacMurchy that sterilization was the best way to prevent feeble-mindedness, as well as the example of sterilization laws passed in the United States, Hodgins was almost completely silent on this matter as well. A very occasional reference appears in material quoted from others, but never in Hodgins’s own words. The omission of this subject from the report was no doubt deliberate, suggesting that Hodgins did not consider it viable social policy

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and that he had no intention of making it an issue in any respect, even by considering and dismissing it. He was unquestionably aware of the public debate. After all, Godfrey’s private member’s bills on sterilization had already been introduced in the Ontario legislature four times in the seven-year period leading up to the commission’s appointment. Although these bills were unsuccessful on each occasion, the issue of sterilization continued to be publicly debated and, given their views, it is impossible to believe that MacMurchy and the pacfm had not raised it with Hodgins in the consultations to which he referred. Moreover, his extensive investigation of U.S. material and witnesses made him fully aware of the issue’s legislative history in the United States, and his profession’s own publication, the Canada Law Journal, had included articles on the matter.102 Considering the lengths to which Hodgins went to educate himself in order to prepare his report, it is inconceivable that he was not fully familiar with the idea of sterilization. One other aspect of the report is noteworthy. Although, as noted, Hodgins emphasized the need to look to the experiences of others, he did not include any material presented or supplied by MacMurchy, the pacfm , or the cncmh – not only local but national experts. Hodgins himself stated that, while he had consulted international experts, he had tried to craft a local solution.103 Thus, it would be logical to expect him to have relied on local experts. He met with MacMurchy as well as Clarence Hincks, a founding member of the cncmh, and Clarke; the pacfm and the cncmh made formal submissions to the royal commission104 and MacMurchy and Hincks themselves expected to exert a heavy influence on it.105 Perhaps the appreciation Hodgins directed to MacMurchy at the beginning of the report – his praise of the helpfulness of her yearly reports and the public recognition of her status as a “leading authority in the United States” – was polite rather than sincere, maybe even a dismissal of the expertise he claimed to appreciate, and an indication of his views about sterilization.106 Yet, even with these omissions, there is little doubt that Hodgins provided solutions in line with eugenic principles. First, he analyzed the problem he was asked to address, feeble-mindedness, in terms of a key element of eugenics – heredity. Second, the solutions he put forward, which included segregation and marriage restrictions, were prime examples of negative eugenics since they were aimed at preventing reproduction by individuals considered unfit, and he pointed

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out the public good to the community of taking these steps. Hodgins’s failure to recommend the one solution most closely identified with eugenics – sterilization – does not alter the character of those he did propose. In the same way that we can be confident about describing Forbes Godfrey’s bills as eugenic even though he did not include one mandating segregation, we can be similarly confident in concluding that the Hodgins Report urged the adoption of eugenic solutions. It is nevertheless interesting to speculate about the reasons for the absence of any discussion of eugenics or sterilization in the report’s pages. There might be a clue in Hodgins’s own views if they were available; however, consistent with the understanding of the role of judges as neutral arbiters, he left none. As we saw, he struggled with the balance between the public good and individual rights in the case of marriage restrictions, and so perhaps sterilization was for him simply a step too far. Moreover, assuming that he had an interest in seeing his recommendations adopted, another possibility is that this omission was an intentional strategy on his part in order to make his recommendations more palatable to the government and the public. Accordingly, he may have simply decided to practise the “art of the possible” by limiting the discussion on his report to concrete (and less controversial) proposals which he believed had a better chance of actually being implemented. Whatever the explanation for the absence of any discussion either about eugenics generally or sterilization specifically, the Hodgins Report, the work of a highly regarded judge, was a milestone in the story of eugenics in Ontario – first, by recommending eugenic solutions such as segregation and restriction of marriage to the problems related to the “care and control of the mentally-defective and feebleminded,” and second, by taking eugenic sterilization off the table, at least at that moment, through its silence on the matter. In so doing, it kept some eugenic solutions to social problems the focus of continuing public debate, and, at a time when many, like Forbes Godfrey and his supporters, had hoped, in vain, that the ground was fertile for sterilization initiatives, it limited discourse on that issue until a point when, broadly speaking, society might be more receptive.

t h e ro s s c o m mi s si on In the decade between 1919, when the Hodgins Commission issued its report, and the appointment of the Ross Commission in 1929, eugenic responses to social problems continued to hover in the air,

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gaining interest and often support, notably among members of the medical profession. For example, a December 1921 editorial in the Canadian Journal of Public Health began: “It is a pity that the word ‘eugenics’ is not better understood for it means so much to the ordinary happiness or misery of every-day life.” Then, referring to “this science of ‘eugenics’” and further reassuring its readers of its authority (“for it is a science”), the editorial remarked that one of its newest uses was in giving “scientific advice to young couples contemplating marriage.”107 Similarly, in December 1927, the Canadian Medical Association Journal contained an article titled “Eugenics and the Medical Profession,” which defined eugenics as the “science which deals with the influences which improve the inborn qualities [of an individual]” and outlined the important role for physicians in educating the public about its value and undertaking research regarding the hereditary nature of certain conditions.108 An editorial the next year urged further study of eugenic sterilization, specifically.109 Some of the interest focused on immigration and echoed the earlier views of C.K. Clarke. For example, on 12 August 1924, the Toronto Daily Star reported on its front page specifics of the meeting of the British Association for the Advancement of Science held in Toronto. In an address to that organization, Harry Laughlin, the noted American eugenicist, colourfully remarked that “[a] nation which desires numbers above inborn quality of its citizenry sells its birthright for less than a mess of pottage.” He went on to complain that “immigrants of the last generation have not improved the average quality of the American people.”110 However, while the public was indeed becoming educated about eugenics through news reports such as the above, this was not always producing the results that the medical profession had hoped. A tongue-in-cheek letter to the editor in the Toronto Daily Star on 24 October 1924 from a correspondent identified only as F.T.C. read: May I be permitted to make a suggestion in the furtherance of the noble cause of eugenics so ably advocated by the chief city medical health officer. It may be urged that my suggestion goes beyond eugenics, in that it includes euthanasia … My suggestion is that the doctors, with the aid of the clergy and of the lawyers … frame legislation … including the power to sterilize, expire or otherwise destroy offspring and also to administer euthanasia to the aged and incurable and other members of the

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medical profession and their families … Of course the doctors, who advocate eugenics for mankind generally, will be ready to help the cause by setting the example and practising upon one another … If drastically applied, the methods proposed would improve and elevate the noble profession of medicine and assist in relieving it from overcrowding.111 Meanwhile, the practical problems that Godfrey had attempted to address with his bills did not simply vanish along with the latter’s disappearance from the legislative agenda. Nor did concerns about the legal issues related to sterilization. For example, on 30 July 1928, E. Bayly, the Ontario deputy provincial secretary, wrote to A.N. Middleton, acting deputy attorney general, about the case of Anna Lunman, an inmate at the Ontario Hospital in Brockville. Lunman was a thirty-year-old feeble-minded woman who, while unmarried, had already given birth to three children. The superintendent of the institution, on whose behalf the letter had been written, had determined there was “scant hope” of her improvement. Accordingly, he had recommended that she be sterilized and had received consent from her father and sister for the surgery. The question was: Would the superintendent be justified in proceeding with the operation? Middleton responded that as long Lunman was in a provincial institution there was no need for the operation although, if she were to be released in the future, “it might be done upon the condition that the Father have the operation performed by some outside medical man.” The reason was to ensure that “the whole responsibility for the operation will be the father’s and the provincial authorities will not be a party to it,”112 a revealing comment that indicated the degree of nervousness among officials about the controversy which might be triggered by knowledge of provincial involvement. Against this background, the Royal Commission on Public Welfare was appointed on 10 September 1929 by Conservative Premier G. Howard Ferguson. This was a pivotal moment in the province’s history, coming at the end of a period of vigorous expansion in population and the economy but on the very eve of the stock market crash of 29 October 1929 and the Great Depression which created demands for which the province’s aging infrastructure was unprepared.113 The commission’s report, delivered just under a year later on 13 August 1930, recommended a widely conceived program for improving the operations of public institutions, from

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jails to hospitals to agencies for the care of children.114 In addition, unprompted by any specific formal mandate to do so, it contained three stark paragraphs at different points in a slim report of just 111 pages recommending sterilization for “immoral defectives and immoral criminals.”115 Although, as we have seen, the appointment of a commission of inquiry was not an unusual step for a government to take, Ferguson’s decision was “abrupt,”116 coming less than a week before he called a provincial election for 30 October 1929. Noting that “even before the cataclysms of the 1930s, it was apparent that the province’s vaunted social service structure direly needed overhaul or replacement,” historian Peter Oliver contends that Ontario’s “outmoded system of relief and welfare services was tragically ill-equipped for the agonies of the depression years.” Oliver also argues that the appointment of the commission signified that “Ferguson’s confidence [in his own officials, one of whom, as minister of health, was Dr Forbes Godfrey] had been shaken and that he realized at least the need to look beyond the government for guidance and new ideas.” Appointing the commission on the eve of calling a provincial election allowed Ferguson and the Conservative Party to fight that election partly on the basis that the government was doing something about these inadequacies. Indeed, a statement about the commission’s work is included as item 9 in the Conservative Party platform which was detailed in a front-page story in the Globe on 17 September 1929 announcing the election. Making no reference to specific policies such as sterilization, it read: “With a view to the better coordination of a great many of the activities carried on by hospitals and the numerous other welfare agencies in the Province that have to do with humanitarian work, a survey has been instituted and a competent Commission authorized to gather data and make suggestions for improvement in this broad field of social betterment.”117 Premier Ferguson had made clear his intention to establish such a commission well before he actually did so with an announcement of its pending formation in the legislature on 12 June 1929.118 He subsequently went so far as to indicate that P.D. Ross would be its chairman. However, the decision was not formalized until 10 September 1929, when an order-in-council was passed appointing

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the Royal Commission on Public Welfare “to investigate and report upon the Public General Hospitals of Ontario, the Private Hospitals, the Public and Private Sanatoria, the Ontario Hospitals for the Insane and Mentally Defective, etc. the Penal and Corrective Institutions, the Jails and Industrial Farms, the Houses of Refuge, the Agencies for the Care of Children, and any cognate subjects.”119 The parameters of the commission’s mandate specified that its focus was to be on institutions: they made no reference to any disease, social condition, or category of individual. This is in contrast to the Hodgins Commission, whose title indicated that it was set up to consider the “feeble-minded.” Philip Dansken Ross, not then an elected politician (although throughout his life heavily engaged in politics at all levels) or a judge, but a journalist and publisher, was named its chairman. John M. McCutcheon, head of the Ontario Civil Service Commission, and David McKenzie Wright, a businessman and a Conservative mp, were selected as commissioners. All three men were highly capable. Philip Dansken Ross (1 January 1858–5 July 1949), the publisher of the Ottawa Journal, was on his way to becoming “the dean of Canadian journalism and one of the best-known publishers on the North American continent.”120 Beyond journalism, Ross was a man of wide interests and significant accomplishments – professional, political, and personal. In 1886 he purchased the Journal and quickly turned it into both an influential Conservative voice and a financial success; he was a lifelong Conservative but unsuccessful provincial Conservative candidate, a local municipal alderman for a time, and a governor of McGill University, and in 1931 he turned down the position of lieutenant governor of Ontario because of the poor health of his wife, Mary. He was also a superb athlete, competing over the course of his life in a long list of sports (some at the international level) which included hockey, curling, golf, football, sculling, lacrosse, gymnastics, fencing, and boxing. His death was international news, reported beyond Toronto and Ottawa, in Chicago, Washington, and New York, and his funeral was close to a state affair with Prime Minister of Canada Louis St Laurent, former prime minister William Lyon Mackenzie King, and former Ontario premier Leslie Frost chosen as pallbearers.121 While the obituaries make occasional reference to Mary, who had died a few years earlier, there is no mention of children.122

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Philip Dansken Ross, c. 1931. (P.D. Ross, Retrospects of a Newspaper Person [Toronto: Oxford University Press 1931].)

Given the terrible state of the province’s social-services structure as described by Peter Oliver, it makes sense that Ferguson saw the need for a strong leader for the royal commission and, specifically, one who would not be afraid to make hard decisions and innovative recommendations. Ross was the man for this. His death provided an

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opportunity for vivid newspaper reporting of his personality: he was characterized as a man who did not back away from a fight, even when his opponent was the chief justice of the Supreme Court of Canada who threatened him on one occasion with imprisonment for contempt of court.123 Among his many achievements, his appointment as chairman of the Ross Commission was not given particular prominence. In listing his accomplishments, the Globe, for example, mentioned his role as the commission’s chairman but gave it little attention compared to other aspects of his career, noting only that “the body made an exhaustive study of prison welfare and charitable units throughout Ontario.”124 As for the second person appointed to the Ross Commission, John M. McCutcheon (1 November 1874–24 November 1950), little is known about him beyond certain professional milestones.125 McCutcheon attended Queen’s University where he received a doctorate in pedagogy, in connection with which he wrote about the physical well-being of the child as well as public education.126 This was followed by a period as a high school teacher and then as principal of the London Normal School.127 He held a number of provincial appointments, including the post of commissioner of the Ontario Civil Service Commission (in which capacity one historian has referred to him as “pliable”128). Like Ross, McCutcheon was known to be “keenly interested in athletics.”129 The minimal biographical information available makes it hard to determine with assurance why Ferguson appointed McCutcheon to the Ross Commission. Nevertheless, certain plausible reasons come to mind. The main one was probably his knowledge of the operation of the provincial government and its institutions in particular; another was his expertise relating to children and education and the potential he therefore had for making a valuable contribution to the issue of “Agencies for the Care of Children” which formed part of the commission’s mandate. At the time of his appointment as the third member of the Ross Commission, David Wright (11 February 1874–24 August 1937) was the federal Conservative member of Parliament representing Perth North, a riding that included his home of Stratford, Ontario. He was also a well-known local businessman, the head of the McLagan Furniture Company. Like Ross, he too had served for a time as a local alderman before entering federal politics. The obituary (almost a full page) in the Stratford Beacon Herald the day after his death

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emphasized his devotion to his community, noting that “apart from his career in business and in the political field he gave much time and energy to the work of the church, the ymca , the Rotary Club, Board of Trade, Children’s Aid Society, General Hospital and other worthy enterprises.”130 A follow-up article about Wright’s death in the same newspaper included testimonials from nine individuals including the mayor, a church minister, numerous politicians, a judge, and several colleagues. An editorial praising him was simply captioned “He Served – and Well.”131 This impression of a very busy man is borne out by his letter of 18 October 1929 to F.V. Johns, the provincial secretary, regarding his appointment to the Ross Commission. “Your letter of October 11th is received and also a copy of the Commission under the Public Inquiries Act,” he wrote, and then continued, somewhat anxiously: “I appreciate very much your furnishing me with this copy but at the same time I may state that when I read the scope of the duties of the Commission I appreciate it is a big task for a man who is already heavily loaded with varying responsibilities. The work that has been assigned to the Commission is of a type that I am in very great sympathy with and will endeavour to organize my time so as to give as liberally as occasion may demand.”132 These details suggest Wright’s appointment was quite routine – that of a well-regarded citizen and experienced politician and businessman (not to mention one with the correct political leanings). But one further aspect of Wright’s biography makes it remarkable. The Beacon Herald reported that Wright was closely involved with the issue of crippled children, an interest that, like McCutcheon’s, matched the commission’s mandate to review agencies for the “care of children.” In the context of the royal commission’s eventual recommendation to sterilize certain “defective children,” this would be interesting on its own. However, the Beacon Herald added that Wright saw his work with the Rotary Club as “a powerful means of contributing to the happiness of crippled children,” noting that “D.M. Wright understood crippled children. Stricken by infantile paralysis in childhood, he himself had suffered. For more than fifty years he was able to walk only with great difficulty, aided by a cane. For more than fifty years he was practically never free of physical discomfort.”133 The three commissioners were cut from the same cloth (as Hodgins had been before them). All three were white, AngloSaxon, Protestant134 males and each had political (or government)

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or business experience in leadership capacities. Ross had both, as did Wright, and McCutcheon had moved from the field of education into government service. In their professional capacities, each was held in high regard by their communities. The athletic accomplishments of two of these men (particularly Ross) were noted by newspapers upon their deaths. In this respect, Wright, with a severe physical impairment, was the odd man out. The appointment of the Ross Commission was given modest attention in the press, no doubt overshadowed by the election campaign. The Toronto Daily Star, a supporter of the opposition Liberal Party, gave it only cursory attention, with a brief story hidden away on page 26, headed “Commission to Study All Institutions – ‘Welfare Inquiry’ into Hospitals, Jails, Orphanages, Ordered by Ferguson Govt.”135 The story noted that the “report would enable reforms calculated to give Ontario the finest institutional system in the world.” The Star also carried the report a few days later of a local Council of Women meeting at which it was moved (to no avail) that “a woman be appointed” to the royal commission.136 The Globe, by contrast, was more enthusiastic. A story about the pending appointment, titled “Exhaustive Inquiry of Welfare Problems to Start Forthwith: P.D. Ross of Ottawa Is Chosen as Chairman of Commission Which Will Survey Provincial Mental Institutions, Public General Hospitals and Various Juvenile Welfare Organizations,” was front-page news.137 The subsequent report of the commission’s official establishment was thorough, but no longer on page 1.138

t h e ro s s report There are very few details about the actual operation of the commission or of the individuals and groups who appeared before it since, disappointingly, the appendix material relating to its hearings (which the report indicated was filed with the government) is not part of the holdings of the Archives of Ontario.139 However, a partial list of participants can be pieced together from Ross’s diary entries and newspaper reports. Not surprisingly, for example, Dr C.K. Clarke, the Canadian National Committee for Mental Hygiene, and the Lincoln Goldie, the provincial secretary, were among the first to meet with the commission, and Clarence Hincks on behalf of the cncmh made one of its first formal presentations.140 Ross’s memoirs as well as the report itself shows that the commission visited

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“a great many of the public institutions in the Province [and] also many institutions in adjoining States of the neighbouring Union.”141 Furthermore, $1,057.83 of its total expenses of $5,116.98 were spent for travel, and none of the commissioners received any fees for their work.142 Ross’s diaries indicate that he spent many hours on commission work, although they provide almost no detail regarding the nature of that work. An exception is the entry for 27 November 1929, near the very beginning of the commission’s life, which reads: “pm to office – Reading u/o [up on?] Judge Hodgins’ report on mental defectives.”143 The Ross Commission worked swiftly and sparely. While Judge Hodgins delivered three reports in total – two interim reports dealing with venereal disease in that commission’s first months and the final report approximately two years after its appointment – the Ross Commission filed its final report on 13 August 1930, less than a year after its 10 September 1929 appointment.144 At 111 pages, made up of nine sections, the Ross Report was similar in length to Hodgins’s final report (excluding the appendix material included with the latter). The final page itemized the commission’s expenditures. The focus of the commission’s study and its recommendations was broad – the report noted that the latter affected fifty-six different provincial statutes.145 For example, in Section II, the first substantive section, which addressed general hospitals and sanatoria, the recommendations touched on, among other matters: implementing improved systems for the provision of and payment for medical services; building a dedicated cancer hospital, more sanatoria for treating tuberculosis, and an isolation hospital for treating venereal disease; installing social workers in hospitals and considering the provision of dental services there as well; ensuring the supply of radium for X-ray purposes from Saskatchewan; and replacing the Hospitals and Charitable Institutions Act.146 The next section, titled “Mental Hospitals of the Province and Allied Subjects,” covered operations in specific hospitals, making recommendations regarding budgets, nursing, facilities, supplies, food, staff residences, and more. One of the hospitals it described was the Orillia Asylum. Observing that, as the only one of its kind in the province, not only was it severely overcrowded, but there was a waiting list of 1,100, a number close to its capacity of 1,400. This indicated to the commission the existence of “a large number of defectives who ought to be cared for in institutions” but were not.147

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The report began with the statement that it had conceived its task, not to “set forth statistics other than seem necessary … nor to dwell on moral reflections or minor issues, but to try to indicate important practical steps to promote social welfare.”148 It characterized the state of the province’s charitable, mental, and corrective institutions as “in considerable part as creditable, as regard their condition and management, as their accommodation and equipment permit.” The jails were another story – they suffered from “bad over-crowding.” More significantly, it added, “there is shortcoming and weakness in Ontario of another kind. Your Commission as a result of its inquiries holds that the Province is badly lacking in seven important respects.” After a brief description of the deficiencies in each of the areas (which included “preventive, social and health work” and “proper inspection of institutions maintained or assisted by the province”), the Introduction broached a new topic – sterilization. This first reference came in one unnumbered paragraph, headed “Sterilization,” where it set out the problem (“another subject which deserves attention”) and its recommended solution for addressing it. Relying on “elaborate statistics,” the commission concluded that “a great part of crime and prostitution is due to heredity or to mental deficiency: and, consequently, probably the greatest part of human misery.” On the basis of that premise, the report linked the problem of mental deficiency to heredity and blamed it for crime and prostitution. Expressing no qualms about interfering with personal liberty, something that had troubled Premier Whitney and others, it continued: “Inevitably a question arises why an immoral defective or an immoral criminal should be free to propagate more defectives or more criminals, thus promoting the burden of misery with which the community endeavours to cope.” With emphasis on “immorality” and attention to what had been done elsewhere, it laid out the solution: Your Commission recommends that some endeavour be made by legislation to lessen the amount of evil which is certainly promoted by unchecked sexual freedom of criminals or defectives who have a record of immorality. The medical process known as Sterilization or Asexualization does not destroy sexual desire, nor to a certain degree sexual power, but it does prevent procreation. Your Commission holds that the Legislature should take action parallel to that which has already been taken in this regard by other States and Provinces on this Continent. In the

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State of California where six thousand operations have taken place under a law of this kind, no objections to it are reported. The Province of Alberta has a law for similar purpose, under which a number of operations has taken place.149 The subject of sterilization was addressed again in the fifteen-page Section III, “Mental Hospitals of the Province and Allied Subjects,” both at the beginning under the heading of “General Considerations” and as item 10 in the “Recommendations” portion at the end. Section III began with a description of the mental hospitals the commission visited and a brief discussion of the difference between “insanity,” some types of which could be cured, and “mental defectiveness,” which was caused either by a “lack at birth” or “early in life by a disease” but could not be cured. Proclaiming that “defectives propagate defectives terribly,” and also that “from such defectiveness comes a large proportion of the immorality and crime in the community,” it described the consequent need for government attention to the problems these individuals created.150 This included ensuring the availability of facilities, equipment, and treatment (by trained psychiatrists) in hospitals, establishing training facilities and special classes, and implementing preventative measures. The report again raised the issue of sterilization in a paragraph very similar to its previous statement, this time adding: “For various reasons any such law can have only limited application at best, but it can be of great value; and no stone should be left unturned which may help to check the spread of mental defectiveness and mental disease, the greatest evils from which civilization suffers. As suggested in the general introduction to our Report, the appointment by the Government of a judicial and medical commission to frame an act for submittal to the Legislature is recommended.”151 The “General Considerations” segment of Section III ended with consideration of the suggestion that “higher grade morons” who have been fitted by “special training” for “self-supporting employment” should be placed in the community. However, it concluded with the comment that, although there may be some advantages such as “practical economy and social desirability, we seriously question whether such life in the ordinary community, can be contemplated at all, apart from parallel provision of such social safeguards as scientific supervision, sterilization and legal prohibition of the marriage of defectives.”152 This is the only reference to marriage in the Ross Report.

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Section III concluded with the formal recommendations with respect to mental hospitals and mental defectives. Item 10 dealt with sterilization. In a paragraph that echoed the themes of its earlier discussion of sterilization, it began by emphasizing the authority of statistics and then made repeated references to heredity, immorality, and criminality and the relationship between them. Again, citing legislation in both Canada and the United States, it recommended similar enactments for Ontario. Information given in various quarters to your Commission is to the effect that from sixty to seventy-five per cent of all defective children are the offspring of parents defective on one side or the other, or both. Also, that backward children are peculiarly liable to fall into immoral ways. From such a source come many of our offenders against law. Any part of this evil, that can be prevented by reasonable and safeguarded means, should be prevented. Such a means we believe can be given to a small extent by the sterilization of defectives who are known to be immoral; who are inmates of a Provincial institution, but about to be disgorged into the community where they may propagate indescribable misery.153 The report mentioned sterilization once more: “Sterilization of mental defectives” is the eighth and final item in a list summarizing the “essential points of the foregoing recommendations regarding mental deficiency”154 which concluded Section III. The “brutally frank assessment,” particularly of conditions in jails and mental hospitals, by the Ross Commission created a stir.155 The release of the report was briefly reported on the Globe’s front page.156 Its headline referenced the “grave defects” the Ross Commission had found in the public-welfare system as well as the $20,000,000 capital outlay that was required to eliminate them. The Globe provided details of the report in follow-up stories about the “sweeping changes” advocated by the Ross Commission, crisply claiming that “Ontario citizens will experience shock and gratification on reading the report of the Royal Commission on Public Welfare. They will be shocked at the revelations of overcrowding and neglect in public institutions and gratified that at last the facts have been brought out thoroughly and fearlessly … The Report,” it concluded, “cannot be put aside lightly.”157 This story also summarized the sterilization recommendation: “Steps are urged to obtain

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legislation for the sterilization of criminal defectives, science and statistics being quoted to show that much crime is traceable to heredity or mental deficiency.” The Toronto Daily Star’s initial appraisal was even more direct: “The complacency, not to say pride, with which the people of Ontario regard their social institutions has been rudely disturbed … The report shows that this province, while it may have been an example for other communities 20 years ago, is backward in its provisions for the sick, the feeble-minded and the delinquent and must spend large sums of money and make sweeping changes.”158 A follow-up story indicated that “sterilization of immoral defectives and of persons with proven criminal tendencies is proposed,” and that “the sterilization plan … favoured is similar to that followed in Alberta and California.”159 Premier Ferguson was equivocal about the Ross Report, commenting privately in a letter to a friend that he had “gone through the Ross Report more or less hurriedly” and that there were “a great many suggestions contained in it with which I would be very reluctant to agree ... When the entire report is printed and distributed, and you have had an opportunity of reading it, I am sure you will agree that there are a number of things that could not possibly be adopted at the present time, if indeed any Government can be found to face the expenditure and responsibility involved in carrying them out.”160 Nevertheless, the government was prepared to implement some of the commission’s recommendations. For example, the portfolio of Public Welfare was created almost immediately and its new minister, Leopold Macaulay, announced that the conditions in the Don Jail would be remedied quickly.161 As time wore on, the government’s initiatives dragged, especially as the Depression continued. The press began to focus primarily on the costs of the recommendations. “It is apparent,” offered the Globe, “that these expenditures cannot continue to be expanded without imposing new taxation, or in some other way finding the money. Inasmuch as the report of the Ross Commission provides for heavy additional charges for welfare work, the Provincial Government will be forced, if it adopts the report, to do hard thinking to meet the new burdens.”162 A few months later, it was blunter: “The proposals of the recent report of the Ross Commission if adopted would lead to the expenditure of additional millions for welfare in the future.”163

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Given the strong language used in the Ross Report about “mental and moral defectives,” it is noteworthy that the notion of eugenic sterilization was so little discussed in the press, either in editorials or in reports about the views of civic organizations, even as a potential source of savings resulting from the release of some from custodial care once they were no longer able to have children. However, the response from one group was reported. The Globe, covering a meeting of the Provincial Council of Women, wrote that “in reviewing the report of the Ross Commission on matters concerning mental hygiene and mental defectives, Mrs Smythe pointed out that many of the recommendations were things which the Council had been petitioning the government for many years” and that “upon a recommendation put forward by Mrs Smythe, the meeting decided that discussion of the question of the sterilization of the feeble-minded should be on the Council agenda at its meeting in June.”164 There is no record of reactions from other quarters, including the medical and legal communities, to the report’s sterilization recommendation. The Ross Report contained very little eugenic material. The bulk of it, in line with its mandate, was taken up by the assessment of the state of the province’s institutions, while its recommendations suggested ways of improving them. Even so, the commissioners chose to offer one important eugenic solution to the problems faced by the province. That solution was sterilization. Moreover, it relied on certain eugenic assumptions and adopted eugenic vocabulary to underscore its support for sterilization. Its rhetorical query of “why an immoral defective or an immoral criminal should be free to propagate more defectives or more criminals?” provides a good illustration of common eugenic beliefs that “characteristics” such as “defectiveness” and “criminality” were hereditary and that they would be passed on because of the “immorality” (unchecked sexual drive outside marriage) of the individuals in which they were found. The reference to “elaborate statistics” reinforced the scientific character of eugenics. The mention of mental defectiveness and mental disease as “the greatest evils from which civilization suffers” echoed the language of eugenics generally. It also echoed two of the phrases used by Hodgins in his report – the first, when he called mental defectiveness a “hitherto unchecked evil,”165 and the second, his reference to the need to consider the community. The report also offered another example of the breadth of local knowledge about eugenics elsewhere: like Forbes Godfrey, who

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based his sterilization bills on existing Indiana and Connecticut legislation, the commission was familiar with sterilization laws not only in Alberta but in other jurisdictions as well. Although no specific sources directly explain how it acquired this familiarity, there are several credible possibilities. An obvious one is through testimony from the cncmh as well as from the informal meetings that group had with Ross upon the commission’s formation. Furthermore, eugenics was “in the air” in this period: in the years leading up to the appointment of the commission, Ross’s own newspaper, the Ottawa Journal, carried regular items, including book reviews, highlighting eugenic ideas and describing eugenic enactments in other places.166 Similarly, McCutcheon and Wright had ample opportunity to educate themselves beyond any general awareness of these ideas they may have had before taking up their appointments. As for the question of how the sterilization recommendation made its way into the report, there are two general possibilities – either one or more of the commissioners promoted it from the outset, or, during its deliberations, an individual or group persuaded the commission of its value. Regarding the first possibility, there is useful biographical information available about only two of the commissioners – P.D. Ross and David Wright, including the diaries, papers, and published reminiscences of the former – against which to assess this question. However, there is no conclusive evidence of support for sterilization by either Ross or Wright. Indications that Ross was the commissioner who pushed for inclusion of the sterilization recommendation are scanty, at best. Articles, editorials, and letters to the editor in his newspaper, the totality of which expressed a range of views, indicate that the issues of eugenics and sterilization must have been very familiar to him. In any event, neither his private papers nor his published memoirs nor the Journal’s editorial stance from this period contain any specific revelations on either matter.167 There is nothing to suggest that he was a particular advocate of such a dramatic policy as sterilization. An Ottawa Journal editorial almost a decade later provides a clue to Ross’s personal views at that time. Headlined “A Grim Problem,” it quotes a story from the Stratford Beacon Herald (the newspaper in fellow Commissioner Wright’s hometown) which concluded that “our Ontario legislators with rare exceptions have exhibited a lamentable lethargy in respect of such challenging problems as the fighting of social diseases, improvement of marriage laws and the legalization of the intelligent use of sterilization.”

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Without identifying these “rare exceptions,” the article reviewed the work of the Ross Commission almost a decade before, including its “repeated references to the problem of birth propagation by criminals and mental defectives,” quoted its observations about Alberta’s sterilization law, and concluded that “the report in which the foregoing excerpts appears was made ten years ago. But the problem is a very difficult one to deal with, and the legislators have fought shy of it.”168 While this statement suggested support for a policy of sterilization, it did not state it directly. In any event, there are two problems with attributing these views to Ross himself. First, it is not clear whether this statement was written by Ross or someone else, and, second, the statement came almost a decade after the Ross Report was delivered, over which period Ross’s views might have evolved from what they had been when he was appointed commissioner. Thus, while provocative, the statement does not provide any certainty in assessing Ross’s personal position on eugenics or sterilization. There is no record of Wright’s views on either sterilization or eugenics and, quite naturally, one wonders how his own disability affected his thinking in this regard. On the one hand, it might have made him more sympathetic to individuals with certain types of problems, but, on the other, it seems improbable that he compared himself to the categories of mentally or morally defective that the Ross Commission was considering. Given the commission’s recommendation in favour of sterilization, Wright must have agreed with it or was unsuccessful arguing against it.169 The second possibility is that the idea of sterilization came from an individual or group other than one of the commissioners. Perhaps the cncmh, in its appearance before the commission, made a strong case that eugenic solutions be implemented in the province. Or perhaps Dr Forbes Godfrey exercised some influence on the commission. In addition to being a long-time friend and close political ally of Howard Ferguson, Godfrey was the minister of health at the time the Ross Commission was appointed and held that position until he was forced to resign six weeks after its report was released. It is possible to read, at least obliquely, a comment in the editorial “Notes and Comments” section of the Globe on 19 September 1930 as a reference to Godfrey’s promotion of eugenics in the legislature years before. “In spite of his indiscretions,” it read, “Hon. Forbes Godfrey, ex-Minister of Health, for years past championed some of the reforms recommended by the Ross Commission – and

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commended by the whole Province.”170 Indeed, he may have continued to champion the idea of eugenic sterilization privately after his appointment to the cabinet.171 Turning to the sterilization recommendation itself, there is a curious discrepancy in the wording at the points in the report where it is discussed. The first reference to sterilization (in the Introduction) and the actual recommendation in Section III used very similar wording to propose that Ontario follow the example of a number of U.S. states and two Canadian provinces and adopt sterilization legislation. By contrast, the actual discussion of the issue in Section III stated that “as suggested in the general introduction to our Report [emphasis added], the appointment by the Government of a judicial and medical commission to frame an act for submittal to the Legislature is recommended.” However, there is no specific reference in the Introduction or indeed anywhere else in the Ross Report to any such commission. More than just an ambiguity in the text, this inconsistency is revealing since it indicates that there must have been some debate among the commissioners about what exactly the recommendation regarding sterilization would be. It suggests that the commission (or at least the commissioner who prepared an earlier version) initially intended to recommend that a subsequent royal commission be appointed to draft sterilization legislation, but that, in the end, that recommendation was changed simply to one that Ontario should follow the example of other jurisdictions and enact similar legislation.172 The diary entries documenting Ross’s work on the report disclose that he was the one who shepherded it through the drafting process, although a number of these indicate that all three commissioners (or, on one occasion, just Ross and McCutcheon) worked together in revising it.173 Thus, Ross himself probably originally penned the idea of the subsequent royal commission, although he may not necessarily have conceived it. Moreover, this recommendation was subsequently changed as the report was finalized, with the remaining reference left by editorial oversight. Beyond that, we do not know why the change in approach to the legislation was made, whether by Ross himself or as a result of input from one or both of his fellow commissioners. No matter what the explanation is, the intent of the change is hard to pin down – both versions of the recommendation accepted the idea of sterilization and saw the need for a law to authorize it. Perhaps the commissioners simply concluded that a

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commission was unnecessary for the purpose of drafting legislation. Ultimately, the significance of the references to sterilization is not in the fact that they differ, but in the fact that the commission thought the sterilization recommendation was important enough to mention in its report, not once but three times. The commission, like Forbes Godfrey, regarded at least part of the solution to this “evil” as a legislative one, recommending that “some endeavour be made by legislation to lessen the amount of evil which is certainly promoted by unchecked sexual freedom of criminals or defectives who have a record of immorality.” Such a law, the report added without providing further explanation, although of “only limited application at best,” would nonetheless be “of great value.” It is not clear whether this alluded to a need for consent and assumed that this could be hard to obtain, to the fact that such legislation might apply only to a relatively small number of individuals in institutions, or to something else entirely. In keeping with its recommendations on other matters, the report provided no guidelines for such legislation, nor any details of what it might include other than the suggestion that the legislation be “similar” to Alberta’s. None of even the major issues regarding its implementation – to whom it should apply and what should be the process for determining which particular individuals should be sterilized, for example – were considered in detail, although at one point the commission suggested that the proposed law should apply to institutionalized individuals “about to be disgorged into the community.” In some ways, the Hodgins Report and the Ross Report are mirror images of one another. As noted previously, one might have expected that a royal commission specifically instructed to examine the conditions of the “feeble-minded” would address the matter of sterilization; however, the Hodgins Commission did not do so. On the other hand, one would not have been surprised if the Ross Commission had not discussed sterilization at all, since that was not explicitly part of its mandate to consider institutions. The Hodgins Commission’s invocation of eugenics can be seen in its discussion of restricting marriage and segregation of feeble-minded individuals, measures intended to prevent them from having children, whereas the Ross Report did discuss sterilization but nowhere expanded on its single reference to the “legal prohibition of the marriage of defectives.”174 There were similarities between the two reports as well as these differences. In each instance, the work of the commission took

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place in an unsettled political atmosphere – the First World War in Hodgins’s case, and just following the crash of the stock market and the onset of the Great Depression in Ross’s. The government or its leadership changed almost immediately upon the receipt of each report – Hodgins delivered his report to a government on the eve of electoral defeat, and the Ross Report came a few months before the premier who had ordered it resigned to take up a diplomatic post. In both cases, these events forced a recalibration of government policy in order to reflect the priorities of new leadership. In 1919 this was particularly substantial when a coalition of two parties formed a new government, while in 1930 the new leadership of George Stewart Henry, a prominent farmer and at one time minister of agriculture under William Hearst, provided an opportunity for the existing Conservative government to refocus.175 Moreover, although neither report used the word “eugenic,” each proposed eugenic solutions. In the Ross Report, it was through promotion not of marriage restrictions or segregation laws but of sterilization. Although the Ross Commission was not specifically asked to consider sterilization, it did so in connection with its analysis of the expense of constructing and operating facilities for the feeble-minded. While the report nowhere stated directly that sterilization would be a cost-saving measure compared to the expense of housing certain groups of individuals, this conclusion was easy to draw, especially since one of its main goals was to consider the costs related to improving Ontario’s provincial welfare system. However, none of the news stories related to the commission’s work picked up this point. Ferguson registered his reluctance to agree with a number of items recommended by the Ross Report (although, as we saw above, certain changes were implemented immediately). His worry about facing the “responsibility involved” is a hint that this reluctance extended to the sterilization recommendation. Moreover, as with the Hodgins Report, timing played a role in the government’s overall reaction. By the time the report was delivered in 1930, the government’s focus was on the enormous problems created by the stock market crash and the Depression that followed. Ferguson’s subsequent departure from politics for a diplomatic post meant that the onerous task of governing in these times fell to someone else – George Stewart Henry – for whom, judging by the outcome, sterilization legislation was not a priority.

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t h e m ag o n e c o mmi ssi on The period between the Ross Commission, which reported in 1930, and the 1938 Magone Commission was a difficult one for the province, since this was the period of the Great Depression. High unemployment meant high demand for social assistance at a time when the province’s financial resources were low. This in turn created a feeling of resentment against those who needed to rely on the state for support. One effect was to invigorate the campaign for solutions to this problem, sterilization in particular, by preventing procreation by individuals likely to contribute to it. This occurred on several fronts. The Ontario Medical Association passed a resolution at its annual convention in Hamilton in May 1933 requesting that the provincial government pass legislation to provide for voluntary sterilization of any inmate of a provincial institution about to be released into the community who had been recommended by a “properly constituted authority” for such surgery. The resolution also asked for legislation allowing the surgery for any mentally defective person who requested it.176 The mayor of Fort Erie, Ontario, “called for the sterilization of all men on relief,”177 typical of increased interest by many municipal governments over the decade in such a policy.178 It was in this period that the Eugenics Society of Canada was formed, with the primary objective of persuading the government to implement sterilization legislation.179 In response to such calls by municipal leaders and others, Ontario governments in the 1930s were actively considering the idea of implementing a sterilization law. A letter dated 5 December 1933 from Sidney Horne, the medical superintendent of the Orillia Asylum, to T.J. Simpson, Simcoe County clerk in Barrie, in response to the latter’s request for his views about sterilization, stated: “I beg to state that up to the present time we have not been expressing our opinions on sterilization owing to the fact that it is possible it might become Government policy.”180 Additionally, the acting deputy minister of hospitals, Dr B.T. McGhie, considered this step so probable that he instructed municipally appointed medical officers of health not to discuss the matter publicly in case they expressed views that turned out to be at odds with the ultimate government policy.181 Other activity was apparent. Mitch Hepburn, who had become premier in 1934, proposed to “launch [a] wide insanity probe” which reportedly would also include the issue of sterilization

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of the “mentally unbalanced.”182 Ontario government officials were gathering information about practices both in Canada and beyond, requesting and receiving information from their Alberta counterparts about the operation of the legislation in that province as well as from the Human Betterment Foundation, an American eugenics organization, including tables relating to sterilization surgeries carried out in the United States.183 The issue of implementing a sterilization law, however, was not an easy one. While the matter was indeed under consideration, it was nevertheless troubling for both politicians and bureaucrats. Sidney Horne was an active participant in certain discussions about the benefits of sterilization. His view, as expressed in correspondence with the Garnet Tanner, mpp from Simcoe County, the home of the Orillia Asylum, was that while the province should have a law that permitted sterilization “to assist in the prevention of mental deficiency, we are going to get much further by stating the facts as we see them and know them rather than by any radical ideas or statements which we all have read both for and against a Sterilization Law.”184 But what troubled him even more than the promulgation of “radical ideas or statements” was the direction from the “powers-that-be” that the issue was not to be discussed. A pair of letters written in early 1935 between Horne and his counterpart at the Manitoba School for Mentally Defective Persons in Portage la Prairie, Manitoba, revealed Horne’s concern.185 Horne wrote to Dr H.S. Atkinson (whose province was on the brink of pulling back from a decision to implement sterilization legislation) to thank him for the latter’s “excellent” paper titled “The Social Control of the Feeble-Minded.” He then added, sounding almost plaintive: “There is one thing that I would like to know, and that is, how you are able to persuade your Minister to allow you to discuss this problem. I would like to have the opportunity of laying the same proposition before them as you have outlined in your paper, as I frankly feel the same as you. However, so far as this institution is concerned, the powers-that-be have issued instructions that we are not to discuss this problem because of political reasons.” He continued: “As you are probably aware, during the past year there has been considerable discussion of sterilization in the Province of Ontario by a group of the Eugenic[s] Society and the radical statements that have emanated from this group have done more to retard the Sterilization Law in Ontario than anything of which I know.”

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Atkinson responded, perhaps enjoying a sense of superiority over a colleague from Ontario when he wrote, “I would consider that it is certainly a matter of regret that any discussion concerning sterilization should be suppressed. I think I am safe in saying that it is not the policy of the Government in this Province to apply any such measures of suppression to any subject that may be discussed without being contrary to the constitution of the Dominion or the Province. That politics should interfere with such a matter of import is almost calamitous.” Then, becoming a little more sympathetic, he added, “Certainly the wild statements that they [sterilization proponents] make are not true to fact or conducive of swaying public opinion in favour of sterilization. The question it seems to me will have to be built up on pure scientific fact.” Meanwhile, the government itself was struggling on the policy front. Premier Hepburn made a statement on 23 July 1936 acknowledging the problem but not going so far as to accept the solution of sterilization. “Sterilization of the mentally unfit is one of the major problems now engaging the attention of the Ontario Government. There are some 14,000 defectives in Ontario Institutions, and the Province could build four more similar institutions.” Then, he added, perhaps being intentionally opaque, “While the Government is not considering immediate legislation, it is being seriously considered.”186 A letter from I.A. Humphries, deputy attorney general, to Dr C.E. McLean, medical office of health, Township of East York, showed just how seriously the sterilization solution was being considered behind the scenes. In response to McLean’s request to publish a letter from Humphries which provided a legal opinion about sterilization, Humphries wrote: “As this whole question, I believe, of sterilization, has been under consideration for some while, I think it would be just as well not to have the communication that I forwarded to you published in your bulletin.”187 The “communication” referred to was a legal opinion prepared by Humphries in response to questions posed in a letter from McLean regarding the legality of sterilization with the patient’s consent. Specifically, McLean asked for guidance in the case where “the patient was desirous of having the operation to prevent further pregnancies” but did not mention eugenic sterilization. First noting that Department of the Attorney General had issued no official position on this matter, Humphries then quoted the opinion of a Dr Gray, the solicitor for the Department of Health. It considered sterilization broadly and addressed a matter that did not appear

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to have concerned Forbes Godfrey,188 the potential liability of physicians for such surgeries performed in three circumstances: (a) for the benefit of the health of the person sterilized; (b) for eugenic reasons to prevent the birth of defective offspring; and (c) for economic reasons relating to the ability of the parents to care for additional children. Gray pointed out that the matter had never been considered by a court, and thus his conclusion was derived from analogous situations as well as the state of the law in England. He concluded that a physician would be protected for sterilization surgery done for the benefit of the patient as long as the patient had consented but that sterilizations done as either eugenics or birth control would be illegal.189 There was, of course, a potential solution to the uncertainty: new provincial legislation (such as that recommended by the Ross Commission) could clarify the situation. Meanwhile, the Eugenics Society of Canada had been formed and begun its work.190 The first executive of the esc included Dr William Hutton, medical health officer of Brantford; A.R. Kaufman, Kitchener industrialist; David B. Harkness, welfare expert and magistrate; and Madge Thurlow Macklin, Canada’s first medical geneticist. Historian Angus McLaren points out that the esc never appears to have had more than one hundred members, although some, such as Hutton, Kaufman, and Dr Herbert Bruce, the lieutenant governor of the province, were highly influential. Based on the frequency of his name in connection with the esc ’s activities, Hutton seems to have been the driving force behind the organization while Bruce not only lent it the respectability of his office but was also an active advocate, particularly of eugenic sterilization.191 The organization conceived its role as partly to provide education to the public about eugenics and partly to lobby the government for the implementation of eugenic measures. In one of its few publications, the Society set out its definition of eugenics as “the study of the science of the improvement of the human stock,” adding that “producing the proper kind of men and women is the fundamental step in solving every social problem.” It then listed its goals: securing legislation for sterilization of the “feebleminded and of those persons who are known to carry physical or mental hereditary taints”; segregating “those persons who are a menace to the race and require institutional care”; promoting the establishment of university and college courses on eugenics; developing a bureau of speakers; and stimulating public interest though literature and newspapers.192 Its campaign for

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sterilization along with that of other supporters showed results; on 19 January 1935 a headline in the Toronto Daily Star read: “Sterilization Policy Has Support of Social Workers, Doctors.”193 One other important esc activity was the series of eight radio broadcasts on the cbc in early 1938 which are detailed in the Introduction to this book. Judging by the number of newspaper headlines in these years, public interest in eugenics matters was aroused. On 21 September 1931 the Toronto Daily Star headline in connection with a public lecture read: “Subject of Eugenics Is a Lure for Women – Ninety Percent of Audiences Composed of Fair Sex.”194 The next year, a court declared invalid the will of a Hamilton man who left money to the mother who bore children judged most “mentally and physically fit to marry.”195 On 5 April 1933 the Daily Star recorded support for eugenics and sterilization from a senior Anglican Church official.196 With increased public interest and the esc ’s strong support for eugenic sterilization (quite literally in the air), the Hepburn government created the Magone Commission a few months later. Over the course of 1938, Premier Hepburn had regular communications from a solicitor in St Thomas, Ontario, John R. Green, who complained vociferously (and at considerable length) that he had been illegally detained in a provincial mental asylum in London, Ontario, for nearly two years. He wanted Hepburn to put this right, first, by publicly declaring the impropriety of his incarceration, and, second, by providing him with financial compensation. Green’s complaint coincided with accusations in the press about the institution’s superintendent, Dr George Stevenson, and his management practices, alleging that brutal behaviour by the asylum’s staff had resulted in the deaths of several patients. Initially, Hepburn was sympathetic to Green’s viewpoint.197 Accordingly, under the umbrella of an examination of the laws and regulations by which decisions were made to commit individuals to asylums, as well as the actual practices in these institutions, Hepburn decided that a public inquiry was needed, and on 10 September 1938 the government appointed the Magone Commission. Official documents by which the commission was created contained no mention of specific newspaper reports of Green’s or other complaints, although the step of appointing the royal commission was widely believed to be directly a result of Green’s appeal.198 The order-in-council by which it was created stated that the commission was to “inquire into and report upon

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1 The management and administration of any hospital established under the provisions of The Mental Hospitals Act, Revised Statues of Ontario, 1937, Chapter 392; 2 The operation of The Mental Hospitals Act, Revised Statutes of Ontario, 1937, Chapter 392; 3 Any matter concerning the admission or committal, treatment or detention of any person admitted or committed to a mental hospital under the provisions of said Act; 4 Any charge or complaint made against the Superintendent or any member of the staff of any hospital established under the said Act.199 The problems that the Magone Commission was set up to address were very specific. The first three parts of its mandate were narrowly focused on the operations of the mental hospitals and the procedures by which an individual was committed to them. Item (3) authorized it to examine individual complaints such as the one by John Green relating to his incarceration. Item (4) was broader: it authorized the commission to assess “any charge or complaint” against the superintendent or any staff member of a mental hospital, a provision clearly intended to apply to the allegations of brutal behaviour brought against the staff of the Ontario Hospital for the Mentally Ill in London. The royal commission was comprised of a chairman and two commissioners. Clifford Magone, identified as “Barrister-at-law, Solicitor in the Department of the Attorney-General for Ontario,” was named as chairman; the other two members were Dr William H. Avery, “of the City of Toronto, Surgeon,” and Lionel P. Conacher, “Member of the Legislative Assembly of the Province of Ontario.”200 Two of these three men, Magone and Conacher, were particularly accomplished. Magone, a star government lawyer, was the obvious candidate for chairman. As for his fellow commissioners, a physician was a natural choice for an inquiry into mental hospitals. Avery filled this role, although it is unclear why the government appointed him in particular. He was very interested in the public-health aspects of venereal disease and its treatment, and while this condition was linked to mental deficiency and institutionalization, it never became directly germane to the work of the Magone Commission. Conacher, perhaps Canada’s most prominent athlete of all time, had by then turned to politics and had real celebrity status although no

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background that related to the issues the commission was intended to study. His very involvement would have attracted public interest to the commission’s work, but there is no indication that this had been the government’s goal in appointing him. Clifford Richard Magone (31 January 1897–21 April 1982) was born in the poor Irish district of Toronto known as Cabbagetown. In light of his humble beginnings, his success was startling: he began work in the Attorney General’s Department as an office boy but by the outbreak of the First World War had been promoted to the position of clerk. At the end of the war, he returned to the Attorney General’s Department as chief clerk in the law clerk’s office and co-authored a number of legal guidebooks.201 He “established himself as an authority on criminal law and constitutional matters” and in fact was “one of the most knowledgeable constitutional authorities in Canada even before he was admitted to the bar.” 202 While continuing to work, he studied law at Osgoode Hall and was eventually called to the bar in 1935. Magone received the designation of “King’s Counsel” or “kc ” three years later. This honour, typically reserved for senior members of the profession, was indeed an “unusual distinction.” His career as a government lawyer was illustrious. He represented the province of Ontario on several occasions on appeals to the Privy Council in London203 and in 1947 was appointed deputy attorney general. The unpublished memoirs of Eric Silk, the commission counsel, provide a glimpse of Magone’s personality. He was, according to Silk, “a great constitutional lawyer; able counsel specializing in appeal work, efficient and always pleasant,” adding that “one can never complain that he was curt, but, at the same time, he never had time for any conversation that was not absolutely necessary unless it was restricted to a very few words.” These characteristics of directness and a pleasant but no-nonsense demeanour held him in good stead in conducting hearings and directing the work of a royal commission, especially when the subject matter involved difficult witnesses such as John Green, who may not have been of sound mind. William Hambly Avery (19 February 1890–18 November 1953) was born in Strathroy, Ontario. He graduated from medical school at the University of Western Ontario in 1913 and completed his licensing exams two years later.204 He served in the First World War with the Canadian Medical Corps. Nothing is known of his activities for the next twenty years, until his appointment as the province’s associate coroner in 1933 and later to the Magone Commission in 1938.

Clifford Magone, Osgoode Hall graduation, 1935. (Law Society of Ontario Archives, Osgoode Hall Law School Fonds, “Graduating Class, Osgoode Hall Law School, 1935” [detail], P468.)

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After the winding down of the commission in December 1938, his trail becomes easy to pick up again because of his own promotion of his work in connection with the treatment of venereal disease. In 1939 he was appointed as director of the Venereal Disease Control Division of the Ontario Health Department205 where he “pioneered” the use of “fever treatment” for venereal disease and “was instrumental in having the treatment widely used in Ontario hospitals.”206 The Toronto Daily Star wrote enthusiastically of this work, reporting that Avery’s “fever machines” might save the province $200,000.207 He also served for a period as the city of Toronto’s director of venereal-disease control. In addition to his work with fever treatment on behalf of the province, Avery set up his own private fever-treatment clinic.208 It appears he was inattentive to ethical concerns: on one occasion, he was criticized for a breach of medical ethics by fellow members of the profession for asking his superiors in the Ontario Health Department to advertise fever cure as a “sure thing” in the treatment of venereal disease, and on another for his request that nurses in one provincial asylum (which housed individuals suffering from neurosyphilis) provide him with the doctors’ notes about the patients that they had treated.209 During his period as a royal commissioner, Avery did not attract the high personal regard in which both Magone and Conacher were held, at least according to Eric Silk. “Dr Avery,” he wrote in his memoirs, “was not as popular with the Commission staff as Conacher. He made demands upon them to run messages and do menial tasks and showed little appreciation of their efforts.” Silk was also critical of Avery’s performance during the hearings, reporting that “Avery had trouble framing his questions … Lots of ‘um’ and ‘er’ and ‘let me see.’”210 Even today, many Canadians would recognize the name of the third royal commissioner, Lionel Conacher (24 May 1902–26 May 1954), the eponymous sportsman memorialized by the prestigious Canadian Press National Award for the Male Athlete of the Year. Conacher, like Magone, was born to a large poor family living in a slum area of Toronto. Until grade 8, he attended an elementary school whose principal encouraged the boys to play sports as a way of keeping them out of trouble. Conacher excelled at every one he tried. His citation in the Canadian Sports Hall of Fame notes that, during his teenage years, he played on fourteen teams, eleven of which won championships.211 Turning professional, he made his

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mark in hockey, wrestling, boxing, lacrosse, baseball, rugby, and North American football. When he retired from professional athletics in 1937, he entered politics as the Liberal member of the Ontario legislature for the Toronto riding of Bracondale. It was during his tenure as mpp that Hepburn appointed Conacher to the Magone Commission. Upon his death (from a heart attack during a social softball game) he was eulogized effusively – one report referred to him as “an international symbol of greatness in athletics”212 and, another, “the greatest man in Canada.” As with P.D. Ross, coincidentally also an athlete of impressive ability, his pallbearers included luminaries from all walks of public life – prime ministers, premiers, cabinet ministers, mp s. Although in politics he was considered “bluntly partisan,” Conacher was well liked and his “genius for leadership made him an invaluable team player.” This comment reinforces Eric Silk’s sympathetic portrayal: “We got to know him well,” Silk wrote, “and to know him was to like him.”213 As in the case of its Ross counterpart, the Magone Commission was also composed of three middle-aged, white, (probably) Protestant,214 successful men with high standing in the community. In the case of Magone and Avery, this was partly a result of their professions – a lawyer and a doctor, respectively. Coincidentally, Magone and Conacher both came from impoverished Irish backgrounds, one of the very demographics that many eugenicists worried about – individuals who were poor, lived in slums, and produced large families.215

t h e m ag o n e report There was little interest in the formation of the Magone Commission, at least in Toronto where the newspapers paid no attention to the announcement on 19 September 1938 that the government had appointed a royal commission to study the operation of the Mental Hospitals Act. This was no doubt because, while the terms of reference for the commission’s work were expressed in generalities, the government intended that the inquiry concentrate on the operation of one hospital in particular, the Ontario Hospital in London, along with the complaints of John Green about his incarceration and the accusations directed at its superintendent and staff. The actual operation of the commission reflected this focus; indeed, the report noted that “an examination into these charges took up a good deal of your Commission’s time at the London Hospital.”216 After its organiza-

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tional meeting on 14 September, the commission reconvened the next day in London, where it held twelve out of nineteen days of hearings, the remainder spread across five other locations including Toronto. Hearings were completed on 15 November 1938 and the final report (typewritten but never printed217) was filed on 29 December 1938, a mere six weeks after the last day of sitting. It was a slim eighty-four pages – all of which speaks to a straightforward job completed quickly. The report itself was comprised of a five-page Introduction (which listed the locations and dates upon which sittings were held) followed by four chapters. The Introduction described one notable feature of the commission’s procedure – its insistence on receiving written briefs wherever possible rather than hearing oral evidence. While the commission did hear oral evidence from a number of individuals, including the superintendents of a number of mental institutions, it tried to be as selective as possible about that kind of testimony in order to avoid the difficulties in hearing from individuals suffering from mental illness. In cases where correspondence suggested that a particular individual “appeared to be quite rational,” the commission investigated “by personal interview or otherwise.”218 However, it showed no such flexibility when it came to organizations. “We were of the opinion,” the report stated, “that the views of these bodies could be expressed in a written brief to be filed with the Commission, and thus save the expense of holding sittings.” Only two written reports from organizations were filed – one from the Social Services Council, which advocated the appointment of a fulltime chaplain to the Ontario mental hospitals, and the other from the Eugenics Society of Canada, which will be discussed below. The longest portion of the report (Chapter III) was devoted not only to an examination of the laws and procedures for committing, treating, and releasing individuals who had been confined in mental institutions but also to specific complaints of abuse against employees of the London facility and others based on the superintendent’s alleged lack of administrative ability, including his brutality to staff members. It also reviewed certain suspicious patient deaths that had occurred at the London hospital and undertook a lengthy analysis of the concept of a provincial board which could be formed to deal with individual patient issues. The submission from the Eugenics Society of Canada was also addressed in Section XI – “Briefs Received,” of Chapter III, just ahead of Section XII – “Treatment of Patients.” In response to the

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commission’s request for a brief from the esc rather than permitting it to appear, the Society forwarded a copy of a letter it had sent to the minister of health, which set out its recommendations with respect to sterilization legislation. It proposed that a new section 39(a) be added to the Ontario Medical Act. This time the recommendation focused on the physician’s liability for sterilization surgery and not directly on the reasons why such surgery should be allowed: No action shall be brought against any duly registered member of the College of Physicians and Surgeons of Ontario for any liability arising out of any vasectomy and salpingotomy operations performed by him unless such operation has been performed without the consent of the person operated upon, or in the case of a mentally ill or mentally defective person without the consent of his or her parent or parents, guardian or guardians, as the case may be, provided that nothing herein contained shall absolve such member of the College of Physicians and Surgeons from liability arising through negligence or malpractice.219 The commission found the esc ’s submission entirely persuasive – “we see no objection to the enactment of [this section,]” it wrote, adding that “the proposed amendment to The Medical Act is not a drastic one, and merely gives to the parent or guardian of a mental defective the power to permit that to be done, which a person of sound mind could consent to have done upon himself. We recommend this for the consideration of the Government.” The commission made an additional suggestion. It proposed that “possibly some provision might be made for obtaining two additional certificates from duly qualified medical practitioners that such an operation should be performed in the interests of society and the mental welfare of the nation.” It then concluded that “a doctor who performed a sterilization operation would not, in our opinion, be guilty of a criminal offence under [section 207 of the Criminal Code]. There is no reason, therefore, to suppose that the legislation proposed above would not be within the power of the Provincial Legislature.” The constitutional basis for this conclusion, which simply asserted that the new section would protect the physician but airily ignored the possibility of a constitutional argument over jurisdiction even though the Criminal Code was federal legislation, was not stated.

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The commission explained part of its reasoning for the sterilization recommendation: it saw value in being able to release some of the inmates of institutions into the community, commenting that “we heard evidence to the effect that if sterilization were legal in Ontario, a number of woman patients might be released from the Ontario Hospitals.”220 This wording revealed the apparent assumption (not supported by the actual wording of the recommendation) that sterilization surgeries would be done on women more than, or perhaps even to the exclusion of, men. The commission hinted at the unfairness of girls being committed to institutions for the mentally defective only because they became pregnant. “If sterilization could be carried out,” the report concluded, “while these girls would still be a sex problem in the community, they would not be the same problem that they are now.” Ironically, in attempting to redress an unfairness, the commission revealed the assumption that it was women and “girls,” rather than men, who were the “sex problem.” Once again, this time in the context of incarcerating individuals with mental illness, we see the emphasis on the importance of individual liberty. “The right to personal liberty,” the report stated, “is one of the most cherished rights of our citizens, and it has been long regarded as one of the tenets of British justice that that right should not be interfered with lightly … we know that from time to time changes have been made in the law which have had the effect of altering or taking away the so-called ‘inalienable’ rights of the British subjects. We cannot, however, too strongly condemn a section of the law which has been found in its operation to infringe unduly upon the legal rights of an individual to his personal liberty.”221 Of course, in the context of mental illness and disease, such a pronouncement of principle is not surprising in a review of precisely how and when such liberty should be restrained. But it is helpful in a study of the history of eugenics, where the relationship between individual liberty and the public good existed in a marked tension, to see how such views were expressed in a different (although related) context. Unlike Hodgins, who refused to consider sterilization at least partly on this basis, the Magone Commission saw no contradiction between its eloquent emphasis on the importance of the individual right to liberty and its readiness to infringe upon the individual’s right to make their own decisions about their body on the important issue of procreation. They applied this thinking at least in the case of a “mental defective,” as long as that person or his or her parent

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or guardian had consented, or, in the case of the additional wording they suggested, if two physicians had declared it to be “in the interests of society and the mental welfare of the nation.”222 Even though the sterilization recommendation was once again only a small part of the Magone Report as it had been of the Ross Report before it, this time it generated considerable attention and mixed responses from the numerous groups who commented upon it. Although its initial story about the Magone Report the day following its release merely listed sterilization among the commission’s “major recommendations,”223 the Globe’s editorial a day later was decidedly enthusiastic: “Mr Clifford R. Magone, chairman, and his colleagues, Dr William H. Avery and Mr Conacher, had in mind the growing magnitude of the mental problem and struck at its root when they advised sterilization of women inmates before release, although it is not clear why they failed to apply the same rule to men. The statistics compiled leave little room for doubt that mental defectives propagate their kind, and if this is the case it is folly to continue filling the country with a section of population which will require constantly more and larger public buildings for their confinement.”224 In this case, the “statistics compiled” were those provided by Dr Bruce in an address to the Ontario Municipal Association (oma) in September 1938. The Globe contended that these statistics showed the “appalling conditions already reached in this country,” and it expressed concern about the high number of feeble-minded individuals. Whereas Ontario was “trying to cope with this appalling situation by building new and larger hospitals,” the Globe noted with approval that “Dr Bruce explained that Denmark, Norway, Sweden, Finland, Switzerland, Germany, twenty-nine states in the American Union and two Canadian provinces had sterilization legislation.” The newspaper picked up on the report’s one-sided focus on young women rather than men and, in its reference to “filling the country,” seemed to allude to immigration as well as procreation. The Star was even more enthusiastic. It carried the story of the Magone Report on page 1 under the headline “Bruce Heartily Favors Sterilization Proposal – Present Social Set-Up Seen ‘Tolerating Vicious Circle’ – ‘Important Step.’”225 An interview with Bruce in response to the release of the Magone Report was quoted at length, and here he expressed the same views as he had in his speech to the oma. “Dr Herbert A. Bruce gave his blessing today to the section of

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the Magone commission report which recommends that the province legalize sterilization of some of the women patients now in mental hospitals. ‘The sooner it’s adopted the better for our country,’ declared the former lieutenant-governor. ‘I will be delighted to see it put into effect, and I hope it will ultimately apply to men as well as women.’” This is another example of emphasis on sterilization of women as well as on what was going on in other jurisdictions in Canada and the United States. It is not clear why some believed the recommendation itself applied only to women – the use of the word “person” in the wording of the actual recommendation showed that the application of the provision was not limited to women; moreover, the surgeries named were “vasectomy and salpingectomy operations,” which are for male and female individuals, respectively. Perhaps the newspapers were responding to the focus in the report about the value of sterilizing women incarcerated because of unwed pregnancy in order to be able to release them. In any event, the sterilization recommendation was generally regarded as (and criticized for) applying only to women and not to both men and women. Not surprisingly, the negative reaction of the Roman Catholic Church hierarchy as well as its individual members to the notion of sterilization was a matter to be reckoned with. William Avery referred to this in an interview he gave upon the release of the report.226 “The problem is a vexed one for any political administration,” he told the Star, “on account of the definite stand taken against it by the Roman Catholic Church. I do not believe that the rank and file of Roman Catholics are opposed, but the ruling of the ecclesiastical authorities is there and with it the danger of loss of the Roman Catholic vote by any administration which puts sterilization into effect.”227 Senior members of the Roman Catholic Church indeed spoke out against the recommendation. Shortly after the report’s release, the Star reported that a Father Brennan, speaking at a meeting of the Catholic Hospitals’ Association, “claimed modern trends ignore the human element in treatment and that [an attendant evil] is sterilization as a cure for the mental deficiency problem.”228 The proposal also drew comments in the letters-to-the-editor sections. “It may be of interest for you to know,” wrote Monseigneur J.P. Treacy to the Globe, “that the Catholic Church has time and again condemned this unethical practice, and no Catholic doctor can participate in the operation. Dr Bruce’s suggestion that it is already

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in vogue in Denmark, Norway, Sweden and Germany will not constitute a sufficient reason for its adoption in Canada.” Referring to the example of Germany, he continued: “A hereditary health court for the preservation of the ‘socially adequate’ against the domination of the ‘socially inadequate’ … would not be accepted by our Canadian people. Their minds should be first sterilized of notions of British fair play, Christian justice and mercy, before they accept the findings of [the members of the commission and Dr Bruce.]”229 Avery’s optimism about the Roman Catholic rank and file was misplaced, since members of the laity also protested. One group, the Ontario Holy Name Society, held a rally a few months after the commission’s report was delivered. There, it passed a resolution against sterilization which read: “Whereas the matter of sterilization of the feeble-minded is again before the public and appears to have received some official approval, the provincial convention makes known in positive fashion that legislation to permit or authorize mutilation of human beings is contrary to Christian teaching and that Catholic citizens must oppose such measures in every way possible as unnatural and un-Christian.”230 Other groups, such as the St Thomas Board of Education and the Ontario Convention of the Children’s Aid Society, were enthusiastic, passing resolutions in support of sterilization or approving further study of the idea.231 There were no reports of the response of women’s organizations to the sterilization proposal in either the Globe or the Star. This time, there was a suggestion that Hepburn’s provincial government was ready to take the sterilization recommendation further. “Legislature May Debate Sterilization of Defectives,” a headline in the Toronto Daily Star announced.232 However, a closer reading of the story itself shows some overstatement on the part of the headline writer: it actually reported only Hepburn’s more general statement that “the findings of the Magone commission, which investigated mental hospitals through the province” would come before the House, and that “something must be done to curb the spread of social diseases” which he linked to the institutionalization in mental hospitals of five hundred patients every year. In any event, no debate on sterilization was ever held in the legislature. Again, one must consider how the sterilization recommendation came to form part of the Magone Report. It was adopted exactly as proposed by the Eugenics Society of Canada, yet, in order for

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this to happen, the provision needed the support of the commission. Accordingly, the question of which commissioners supported its inclusion becomes relevant, although, as we have seen, it is not necessarily easy to answer. For example, Hodgins’s legal training and experience made him suspicious of eugenic sterilization as an unacceptable limitation on individual liberty and, for this reason, it was predictable that there was no mention of it in his report. In the case of the Ross Report, the source for the sterilization recommendation was unclear although there were a number of ways it could have come about. The story is very different in the case of the Magone Commission. The views of one commissioner in particular, Dr William Avery, when combined with evidence about the way the commission operated, make it certain that Avery played an important role in promoting the inclusion of the eugenic-sterilization recommendation. Eric Silk’s critical views about Avery’s effectiveness as a commissioner notwithstanding, Avery was a direct link to the commission’s recommendation regarding eugenic sterilization. In newspaper interviews after the report was released, Avery showed himself a keen proponent of the notion. “Our present social set-up is tolerating a vicious circle whereby the ex-institutional parent reproduces his or her kind to become inmates of public institutions. Male and female mental defectives alike should be sterilized to end this situation,” he told the Toronto Daily Star the day after the report was made public.233 The Hepburn Papers at the Archives of Ontario contain limited documentation about the Magone Commission although they do include some material that provides insight into the way the commission prepared its report. Specifically, an undated note from Avery attached to a draft section of the report entitled “Report on prevention and cure of G.P.I.s (General Paralysis of the Insane)” read: “This will be incorporated in the report of the Royal Commission.”234 Avery’s participation in the drafting (or approval of this section) suggests that the work of preparing the various sections may have been shared among the commissioners.235 This process made sense, especially as part of an effort to speed along the commission’s work. Given his views about sterilization, Avery was a logical candidate to shepherd that particular recommendation into final form. In any event, preparing this particular recommendation was not an onerous task – the wording was taken directly from the written submissions of the Eugenics Society of Canada.

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There are no records about the views of either Magone or Conacher on sterilization although it is possible to connect Conacher to one aspect of the commission’s analysis – the distinction it made between mental deficiency and alcoholism. The Globe lauded Conacher for promoting it: “The interest shown by Mr Lionel Conacher, mla ,236 in alcoholics has brought a proposal that victims of liquor without psychosis be segregated in one hospital for treatment. This is sound recognition of the difference between alcoholism and mental deficiency and should result in closer study and more appropriate treatment of alcohol’s serious effects on the human system.”237 Conacher himself suffered from serious health problems related to alcohol during the period when he played on a professional baseball team owned by a notorious bootlegger,238 another example of a case in which the personal concerns of a commissioner, like Avery’s interest in eugenic sterilization, were reflected in a commission’s final report. As in the case of the Ross Commission, there is very little in the Magone Report that can be specifically identified as “eugenic,” apart from the recommendation with respect to sterilization which is obviously key to this study. In fact, the initial impression of this recommendation is that it is perhaps not “eugenic” at all. It is certainly very different from what might have been expected, based on the Godfrey bills and the 1929 recommendation in the Ross Report which suggested following the approach enacted by the legislatures of Alberta in 1928 and numerous American states. In those cases, the model proposed may be summarized as follows: a decision regarding an individual held in a mental institution was to be made by a committee of physicians based on the recommendation of the institution’s superintendent, in many cases without the requirement of consent from either the individual or a parent or guardian. Indeed, the necessary condition of consent in the Alberta law was removed by an amendment in 1937. This was also the regime enacted in many American jurisdictions which passed sterilization legislation.239 By contrast, the Magone Commission put forward a very different concept. Rather than completely new legislation, it proposed an amendment to the Ontario Medical Act intended simply to protect from lawsuits any doctor who performed a sterilization operation, as long as he had received the consent of a parent or guardian of the mentally ill or mentally defective person. The implications of this approach are significant. First, sterilization would be a private matter between the physician and the individual’s family. As chapter 4 will show, this was in contrast to the esc ’s

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undated pamphlet entitled “Aims and Objectives of the Eugenics Society of Canada” which listed securing “legislation for the sterilization of the feeble-minded” as its first goal and did not mention private decisions at all. It was also in contrast to the contents of the esc pamphlet called “A Brief for Sterilization of the Feeble-Minded,” dated June 1936, which was an exhibit at the Eastview trial of the preceding year.240 Second, no method was determined for a formal assessment of the mental ability of the individual undergoing the surgery (although the condition of mental illness or defectiveness was assumed to be present). Third, consent would be required in order for the surgery to be performed. The consent was from the parent or guardian, rather than the individual who would be operated upon. On the one hand, this made perfect sense: it was logical to view the individual as mentally incapable of giving consent, given that the very reason for the surgery was the individual’s mental incapacity. On the other hand, the commission’s comment that “a large number of girls have been committed to the institution because they were pregnant, and if it had not been for that, they would never have found themselves in an institution for the mentally defective,” shows that it recognized that the categories of mental defectiveness and unmarried pregnancy did not necessarily overlap.241 Although the recommendation dealt with sterilization, it does not immediately appear to be “eugenic.” It did not refer to “heredity” and did not address the elimination of unwanted characteristics or reduction of social problems. In fact, it can be read merely as a change intended to clarify the law in order to prevent physicians from being sued for what they were already actually doing. (As the following chapter details, A.R. Kaufman received a legal opinion which suggested but did not clearly state that physicians undertaking private sterilization surgeries were not acting against the law.) This provision, had it been adopted, would have assured that. However, the eugenic intention behind the sterilization recommendation becomes obvious when three additional points are considered: the source of the wording for the amendment; the commission’s suggestion for the additional provision of obtaining certificates from two medical practitioners verifying that the operation was in the interests of society and the mental welfare of the nation; and Dr Avery’s comments upon the release of the report. The characterization of this proposal as eugenic by those who supported eugenic solutions and those who opposed them clearly reflects the same understanding.

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The fact that the source of this specific proposal was the Eugenics Society of Canada indicates that that organization believed this method of implementing a sterilization policy in the province would advance its own (by definition, eugenic) goals. Certainly, by providing the commission with the specific wording, the esc made it very easy for the commission to adopt that organization’s approach. In light of the growing criticism of eugenics from some quarters based on its lack of scientific underpinning and simplistic understanding of the mechanisms of heredity and the role of the environment, one explanation for such an atypical recommendation coming from a eugenic organization might be that the esc felt that a private solution to the problem of mental defectiveness and to the “sex problem” created by unmarried women having children was more likely to be acceptable to the government and the public than the institutional solution which was by then the law in Alberta and British Columbia, as well as in numerous jurisdictions in the United States. Next, the requirement for two medical certificates, which would have effectively taken the decision regarding sterilization beyond the realm of a private family matter, reflected a belief by the commission in the larger public interest in the issue of sterilization and would have made the statutory amendment that included this provision more similar to legislation enacted elsewhere. If adopted, it would also have prevented sterilization surgery from being used merely as a method of birth control since two physicians would have to certify that the operation was “in the interests of society and the mental welfare of the nation.”242 Dr Avery’s subsequent comments about the recommendation – that male and female mental defectives should be sterilized to prevent the “vicious circle whereby the ex-institutional parent reproduced his or her kind to become inmates of public institutions” – reflected an understanding of heredity promoted by the eugenics movement: namely, that “like produces like,” and, at least in the case of the characteristic of mental defectiveness, reproduction should be prevented so that particular characteristic could be eliminated. These three factors considered together confirm that the commission’s sterilization proposal was indeed a eugenic one. Clearly, eugenicists like Dr Bruce, as well as their critics, the Roman Catholic Church in particular, also saw this measure as eugenic. The Magone Commission’s sterilization recommendation also provides insight into the commission’s knowledge of the Criminal Code

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provisions about birth control. Its casual comment that “a doctor who performed a sterilization operation, would not, in our opinion, be guilty of a criminal offence under [section 207]” expresses a legal interpretation of an important Canadian statute without explaining the basis for it. Of course, the chairman of the commission was a leading government lawyer and, in the person of Eric Silk, the commission counsel, the commission had a full-time lawyer assigned to assist to it who could also have provided or obtained a legal opinion from the provincial Attorney General’s Department on this matter. Beyond the personal knowledge of these two individuals, this comment may indicate how firmly established in government and political circles was the celebrated Eastview birth-control trial just eighteen months earlier and its significant conclusion that the distribution of birth-control devices and information was not in violation of that same section.243 Again, a familiar question remains: Why did the government ignore the sterilization recommendation? As before, one explanation that makes sense is that the government simply did not want to venture into this legislative territory, having concluded that the political disadvantages of promoting steps that would so dramatically interfere with individual liberty outweighed the advantages of promoting the eugenic view of the public good. Furthermore, sterilization legislation of any kind would have been very controversial in a province with a significant Roman Catholic minority.244 Newspaper reports in this period show the Roman Catholic Church becoming more outspoken in its opposition to sterilization. A related reason is lack of interest on the premier’s part in championing a policy that required so much political and legislative attention and capital. Although the premiership of the province did not change shortly after the Magone Report was filed in 1938, as had happened in 1919 and again in 1929, the focus of Premier Hepburn, who ordered and received the report, was diverted elsewhere at the time. Hepburn, known as an unpredictable,245 “impetuous,” and, at times, “truculent” leader, was more interested in scrapping with federal leaders and political opponents than in many provincial matters.246 Moreover, this report was, like the two previously discussed, delivered in a very challenging political and economic period, with the effects of the Great Depression still being felt and the Second World War now on the horizon, both conditions that imposed significant other priorities on the government. The result

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was that this government, like others before it, never adopted the Magone Commission’s sterilization recommendation.

r e f l e c t ions The foregoing discussion reveals how varied the role of the three royal commissions was in the history of eugenics in Ontario. The Hodgins Commission, set up to address problems that concerned eugenicists and others (the rise of venereal disease and the “care and control of the mentally defective and feeble-minded”), did so using the eugenic analysis of heredity and procreation and proposed the typical eugenic solutions of segregation and marriage restrictions. At the same time, it avoided any discussion whatsoever of sterilization or eugenics generally. The Ross Commission was created to deal with a problem one step away from what some might have characterized as “eugenic” – public welfare and public institutions – but for which there was still some overlap. This was because institutions for individuals considered mentally defective were included in the commission’s study and also because of the severe overcrowding in those institutions. Since many eugenicists believed that one benefit of a sterilization policy was that it would reduce the costs of segregating feeble-minded individuals by allowing them to return to their communities, the Ross Commission’s proposal for sterilization legislation is not a surprise. What is surprising is that, although the commission’s report was devoted in part to the issue of costs, it did not use that argument to justify its sterilization recommendation. The issue that the Magone Commission had been set up to consider was even further away from what might be expected to concern eugenicists. This commission was formed as a response to complaints against one particular hospital, its superintendent, and certain staff but given a broader mandate to consider the operation of the Mental Hospitals Act generally. Yet it also chose to respond to this mandate by proposing sterilization legislation. What is interesting about this case is the form that proposal took. By explicitly protecting physicians who performed sterilization surgeries done with appropriate consent, such legislation was intended to refocus the issue of sterilization away from the institution where (in the history of eugenics) it is generally been located and put it into the hands of the private physician. Fundamentally, all three sets of recommendations reflected decisions by each commission to interpret its mandate to provide

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solutions to a specific set of problems related to the “feeble-minded.” In each case, the solutions can be labelled “eugenic” although none of the commissions described them that way, but it is also true that they would have appealed to other social reformers as well. Hodgins, of course, was asked to consider these problems, but the other two were not. In all three cases, the commissions made recommendations regarding eugenic legislation which the governments that received the reports chose to ignore (even as they accepted others). Thus, a gap opened between awareness and interest on the one hand and action on the other. While all three reports demonstrated awareness of and interest in the same general problem – a problem that some would identify as eugenic – the failure of three separate governments to implement the proposed eugenic solutions demonstrated a lack of political will (based partly on a corresponding lack of public support) to move forward with such policies. The reasons for the lack of action related to costs and government priorities but also to a reluctance to enact the recommended sterilization legislation because of its interference with the right of each individual to determine his or her reproductive future. The vehicle of a royal commission could be used very flexibly, not only by governments but also by various participants in the process. In the case of the Hodgins Commission, the government probably used it to obfuscate its own intentions and interests, appointing the commission as a way to be seen to be doing something (and, of course, actually enacting legislation related to venereal disease) and yet doing nothing at all with respect to the larger issue of “the feeble-minded” (although, even had it intended to implement some of the recommendations, the timing of the delivery of the report weighed heavily in its ultimate fate). Another motivation behind the appointment of royal commissions is that this kind of exercise allowed a government not only to have difficult or controversial matters investigated at arm’s length but also to claim surprise about particular recommendations and ignore unpopular or impractical ones. The result was that all three governments in this story had the benefit of “outsiders” manning the front lines of the discussion of such issues. This was very valuable in the case of the investigation into the complaints against the London Hospital because it gave the government some space between itself and the investigations and recommendations. Furthermore, this space allowed the government to assess public opinion resulting from unexpected and/or

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controversial recommendations. Thus, the process of the royal commission offered the opportunity for arm’s length consideration of issues while also allowing the government to distance itself, if necessary, from contentious recommendations. These three examples also provide insight into how individuals and groups used the vehicle of the royal commission to promote eugenic solutions. In the case of the Hodgins Report, these individuals and organizations can be identified very clearly as “the usual suspects” – MacMurchy, Clarke, the pacfm, and the cncmh . Similarly, the cncmh was instrumental in the inclusion of sterilization in the Ross Report since details exist of the group’s involvement in the commission’s process. In the third case, the Eugenics Society of Canada literally wrote the sterilization recommendation for the Magone Report and the commission was influenced by Dr Avery to suggest an expansion of it. They all used their participation in a commission’s proceedings as a way both to publicize their views through press reports of the hearings and to convey their ideas to the government, in the form, so they hoped, of recommendations from the commission based on their evidence. Thus, involvement by these groups and individuals in the royal commission process proved to be a good way of promoting and, they hoped, advancing their causes. Although, for a variety of reasons, this involvement did not translate into the desired political action in any of the three cases, it did mean that eugenic solutions, even sterilization (at least in connection with the second two commissions), were kept in the public eye through press reports of the work of each commission. The snapshots these reports offer identify the responses to eugenic solutions from the government and the public at three particular moments. They show various governments’ flirtation with implementing eugenic solutions, sterilization in particular. However, despite this flirtation, no Ontario government was prepared to take the final step of actually enacting laws (in any form) to permit it. The responses to the work of these royal commissions highlight the continuing disputes about eugenic ideas. In particular, these included disagreements about whether the cost of interference with individual liberty was balanced by the public good in addressing the perceived problem of the growing numbers of individuals identified as feeble-minded, and about whether enough was known about the science of eugenics to be assured that the measures proposed would

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bring the results predicted and desired. In the end, while the royal commissions, like Forbes Godfrey and his bills, repeatedly offered the province eugenic solutions to certain problems, these particular solutions, like Godfrey’s, were rejected.

4 Eugenics on Trial: A.R. Kaufman, the Parents’ Information Bureau, and the Eastview Birth-Control Trial

On 15 September 1936 Dorothea Palmer, aged twenty-eight, was arrested just outside the Mousseau family home in Eastview, Ontario, where she had completed a visit made for the purpose of providing advice and information about birth control.1 She was charged under the obscenity provision of the Canadian Criminal Code (subsection 207[c]), on the basis that she “unlawfully and knowingly and without lawful justification or excuse: did advertise to several persons in the said Town of Eastview, by means of a pamphlet entitled ‘Birth Control and some of its simplest methods’ and also ‘Le Control [sic] de la natalité et quelques unes de ses méthodes les plus simple,’ instructions, drugs, medicine or articles intended or represented as a means of preventing conception.”2 At the time, Palmer was employed by the Parents’ Information Bureau, an organization set up by A.R. Kaufman, a Kitchener-area industrialist, to promote birth control as part of his interest in eugenics. Palmer had been assigned to Eastview, a small French Canadian town of five thousand just outside Ottawa across the river from the province of Quebec, reeling from poverty in the midst of the Great Depression. The charges against her led to the sensational criminal prosecution known as the Eastview birth-control trial, which began a few weeks later on 21 October 1936. In statistical terms alone, the Eastview trial was remarkable. At twenty days (over a six-month period), it was the longest magistrate’s court trial on record in Canada to that date.3 There were forty witnesses, eighty-seven books and documents plus twenty-three boxes of contraceptives introduced as evidence, four days of closing arguments, including a sixteen-hour submission from the defence, and a

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trial transcript of 1,250,000 words – 750,000 in witness testimony and 500,000 more in argument.4 Palmer’s defence was expensive – at $25,000 it was the equivalent of over $460,000 today.5 The trial, a welcome diversion in the midst of the economic privation of the Depression, was an international spectacle, reported daily in newspapers throughout North America. Some even compared its significance to the landmark Scopes Monkey Trial a decade earlier.6 In the words of one witness, “there was … a profound consciousness that all concerned were dealing with the most far-reaching problems of human life – sex, the family, love and marriage, health and disease, the population of Canada, morality, economic problems, social justice, the rights of women ‘qua’ women, intercultural friction, interreligious problems, the limitations of law in creating a sound morality, the proper relations between the church and state, even questions of war and peace.”7 The trial had a bit of everything, from a “pretty, dark-haired girl” defendant, to detailed, and, for its times, salacious descriptions of how to use a variety of contraceptives, to rowdy spectators whom the judge threatened on numerous occasions to clear from the courtroom,8 to a recently appointed French Canadian crown attorney clearly out-manoeuvred by his counterpart for the defendant, a “big city” lawyer from Toronto who quoted Galileo and Shakespeare.9 There were even allegations of attempted rape made against two men who trapped Palmer in an alley on her way into court one morning and threatened “to show [her] what it was like without birth control.”10 Ultimately, Palmer was acquitted on the basis that her actions served the “public good,” and, as such, fell under a statutory defence contained in the same section 207 of the Criminal Code under which she was charged. In addition to Kaufman’s personal interest in eugenics, it is this notion of the public good that links the story of the Eastview trial to a study of eugenics and law. This is because the legal analysis of that concept at the trial was partly based on arguments regarding eugenics – that it served the public good for individuals to have access to information about birth control so that there would be fewer children born to unfit parents. Implicit in this link was the view illustrated earlier that fewer children born to unfit parents was itself a public good. A.R. Kaufman and the Eastview trial form the nucleus of the third case study in this book. Here, the focus narrows from a broad consideration of activities that took place over decades and involved

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many participants, all of whom were working at a distance from the actual implementation of eugenic solutions, to a close examination of one episode in the history of eugenics in Ontario. It shows from the inside how a commitment to eugenics influenced one particular individual and some of the steps he took to promote that cause. In this case, it meant harnessing the legal system and its social power to implement a solution – the ready availability of birth control – which he considered to be in the public good because of his own eugenic beliefs. Equally important, it allowed him to lead that charge himself. Kaufman was a man of action and practicalities, not interested in theory and abstract rights. Instead, he successfully fought so that he and others could provide birth-control information without fear of Criminal Code charges. Part of his success came from the astute recognition of the need to express, at least in his public pronouncements, a different balance between the public good and individual rights from that demonstrated in the examples explored in earlier chapters. As we see below, this meant a non-coercive approach to sterilization which took into account individual choice and rights, even as he complained about the abuse of personal liberty by mentally deficient parents having children. The details of the trial also draw attention to the work of the Eugenics Society of Canada, an organization of which Kaufman was a founding member and which played an important role for the defence. Both Kaufman and the esc identified the same problem that Forbes Godfrey, the royal commissioners, and others like Helen MacMurchy and C.K. Clarke had done: the concern that the supposedly unfit portion of the population was increasing more rapidly than the fit. Since Kaufman, like others, also assumed that the characteristics by which lack of fitness was measured (such as feeble-mindedness) were hereditary, he, too, believed that the correct response to the problem was to prevent individuals with those traits from having children. As to how to ensure this, both Kaufman and the esc promoted the solutions of sterilization and birth control. Yet a careful examination of their efforts, which came together in the Eastview trial, demonstrates that the details of these solutions, and how they were emphasized, differed in important respects. This case study also underscores the close relationship between eugenics and birth control while demonstrating equally that they were not synonymous. In this same period, the use of birth control in Canada was not itself illegal although certain related activities,

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such as advertising, were prohibited by the Criminal Code subject to a public-good exception.11 Even the Roman Catholic Church did not forbid the use of all birth-control methods for its members: in the papal encyclical of 31 December 1930 entitled Casti Connubii, Pope Pius XI castigated artificial means of birth control but permitted Roman Catholics to use the natural “rhythm method.”12 Canadian historians Angus McLaren and Arlene Tigar McLaren as well as Dianne Dodd note that birth control was practised extensively, both within and outside family settings.13 Yet, despite its use being legal and relatively common in the educated strata of society, access to birth-control information and devices was nevertheless limited, partly because of the criminal sanctions against their advertisement. Although physicians could provide birth-control advice, as a group, they tended to be reluctant to do so: their education did not include instruction in its methods and they saw themselves as members of a scientifically trained profession who had nothing in common with seedy dispensers of birth control or with the immoral, promiscuous side of life to which many believed it related.14 This meant it was daunting for some to seek out information, and when the cost of the doctor’s visit was added, it became practically unattainable for poor and uneducated individuals. This was the situation that Kaufman through the pib sought to remedy. Some scholars have argued that “birth control and eugenics were so intertwined as to be synonymous,”15 or at least “came to be more-or-less interchangeable terms,”16 pointing, for example, to the remark in 1940 by the American eugenicist Henry Pratt Fairchild that “these two great movements have now come to such a thorough understanding and have drawn so close together as to be almost indistinguishable.”17 However, the defence argument in the Eastview case that eugenics was only one aspect of birth control shows that they were not necessarily understood as synonymous at the time. While the trial indeed illustrates the overlap between these two movements, the analysis of the public-good defence by Kaufman’s lawyers also shows where they differed.

t h e c r im in a l code There is little doubt that, in the first decades of the twentieth century, physicians were already quietly providing sterilization surgery privately to patients who sought it, either as a birth-control measure

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or at the request of parents concerned about the future of children with disabilities.18 Since there was no Ontario legislation explicitly governing sterilization in any circumstances, and since the question had never been put to a court, Kaufman retained solicitors to assess its legality. They did so by piecing together the provisions of the Criminal Code that applied to surgery generally, such as those regarding assault and battery, surgery by qualified physicians, consent, and the good of the patient, and concluded that voluntary sterilization would likely be found legal.19 Kaufman therefore felt free to offer sterilization advice through the pib to those who sought it. Birth control, on the other hand, was directly addressed in the Criminal Code. The Canadian Criminal Code dates back to 1892. By virtue of the distribution of powers between the federal government and the provinces set out in the British North America Act, criminal law was (and remains) a matter of federal rather than provincial jurisdiction. This means that it is enacted by the Canadian Parliament and is uniform across the country. At the time of Confederation, criminal matters were covered both by common law and by a large number of colonial statutes dealing with specific acts, such as murder, larceny, and so on. The federal government passed many statutes between 1867 and 1892 consolidating different aspects of the law. The idea of organizing them all into one comprehensive statute, or Code, had many supporters, including Sir John A. Macdonald, who saw its nation-building possibilities after Confederation. In 1889 this project was taken on with enthusiasm by the then-minister of justice (and future prime minister), Sir John Thompson, who had been attracted by the British plan to do the same thing.20 In the spring of 1892 he introduced in the House of Commons “Bill 7 Respecting the Criminal Law,” an improved version of the bill he had introduced the previous year.21 At the same time as Parliament was considering Bill 7, John Charlton, a Liberal mp representing the riding of Norfolk North, a rural constituency in southern Ontario, raised concerns in the House of Commons that “vile literature is secretly and widely circulated in Canada, literature of a character calculated to undermine the morals of the people, and entail the most disastrous consequences on society. Improper and obscene, or semi-obscene literature is imported into this country and openly sold. Drugs and instruments for procuring abortion and for kindred purposes are advertised secretly and are sold by agents, and this abuse cannot very readily be reached by the law as it now stands.”

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Charlton himself proposed a bill to deal with this “vile literature.” It also included a prohibition against, among other acts, selling, lending, or giving away “any medicine, drug, or article whatever for the prevention of conception, or for causing unlawful abortion.” Some mps raised concerns during the debate on Charlton’s bill that it could restrict pharmacists and medical men in their education or work. Since Bill 7 was already under discussion in a special committee, the House agreed to send Charlton’s bill to the same body so that it could be examined as part of the criminal law codification. Bill 7 was debated extensively, and the House, sitting as a special committee, considered it clause by clause. By this time, the bill already contained obscenity provisions including the birth-control prohibition sought by Charlton. Moreover, during the debate there was no discussion of this subsection; the birth-control provision attracted no interest whatsoever. Instead, the debate concerned problems related to determining the difference between obscenity and art (Thompson indicated the solution was to err “on the side of prudishness”) as well as the need for doctors to show students pictures and photographs of nude bodies to illustrate anatomy, disease, and surgical techniques.22 The public-good defence that was eventually included as part of what became section 207 was the solution to both these problems: even if something was found to be obscene on its face, should the matter end up at trial, the defence could still argue that the allegedly obscene activities served the public good.23 This was the lifebuoy that rescued Dorothea Palmer from conviction and a possible jail term. Bill 7 was passed on 8 July 1892 and received royal assent the following day. The obscenity provision was originally section 179 of the Criminal Code; however, by the time of the Eastview trial, amendments and additions to the Code resulted in its being renumbered as section 207. It contained only four subsections. The first categorized the offence as “indictable” and set out a jail term of two years. This is significant because indictable offences are considered more serious than the alternative category of summary offences.24 The first subsection then set out the three circumstances in which a person would be guilty. First was selling or “exposing for public sale or to public view” certain items such as obscene books, pictures, photographs, or models which would tend to “corrupt morals.” Second was publicly exhibiting “any disgusting object or indecent show.” Third was offering to sell, advertise, or publish an advertisement or

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have for sale or disposal “any means or instructions of any medicine, drug or article intended or represented as a means of preventing conception or of causing abortion or miscarriage.” The next subsection 207(2) contained the public-good defence. It provided that “no one shall be convicted of any offence in this section mentioned if he proves that the public good was served by the acts alleged to have been done.” It applied to all the acts prohibited in subsections (a), (b), and (c) and was structured as a “reverse onus” provision, an effect that became highly relevant to Palmer’s defence. The third subsection set out where the decision-making responsibility lay as between the court or judge and a jury. The decision about the public good was to be made by the former, but the jury, if there were one, determined whether there was evidence that the defendant’s activities had been “in excess” of what was required for the public good. The last section stated that the motives for the prohibited activities were irrelevant. In general, Canadian criminal law is based on the presumption of innocence. This means that in criminal matters the crown has to prove beyond a reasonable doubt that the defendant is guilty; the defendant is not required to prove his or her innocence. With a reverse-onus provision, once certain facts are established by the prosecution, the onus of proof shifts to the defendant to prove his or her position. In the case of section 207, in order for the public-good defence to apply, the crown would first have to prove beyond a reasonable doubt that one or more actions described in section 207 took place. Then the onus would shift to the defendant to prove that his or her actions “served the public good.” In this way, section 207 provided the solution to the concerns that Charlton’s proposed wording would restrict physicians and pharmacists in their professional work: if the crown proved that someone had committed an act described in subsection 207(a), (b), or (c), as long as the defendant could demonstrate that any obscene material or information employed in their professional practices was used in order to provide education about medical conditions and treatments, they could argue that “the public good was served” and therefore, by virtue of subsection 207(2), they should not be convicted. Of course, if the crown failed to prove that one or more actions described in section 207 had taken place, the defendant would be acquitted and the public-good section would not need to be considered. Although subsection 207(c) had been part of the Criminal Code since 1892, by the time of the decision in the Eastview trial, it had

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been considered in only one reported Canadian case. This was Rex v. Karn, a 1903 case in which the accused “conducted a large business in various proprietary medicines, including a certain medicine for stimulating or renewing the menstrual flow.”25 The question was whether wording on the packaging as well as the packaging itself was actually intended to suggest that the product could be used intentionally to induce a spontaneous abortion in violation of subsection 207(c). The defendant was acquitted without the issue of the public good having been considered.26 The need for birth-control information was becoming a matter of increasing public interest, especially in light of the poverty created during the Great Depression. However, section 207 of the Criminal Code presented an obstacle for anyone working to make birth control more generally available. One such enterprise was the Hamilton Birth Control Clinic, established in 1931, the first dedicated birth-control clinic in Canada. According to an early history of that organization by Presbyterian minister and local historian Thomas Melville Bailey, its origins were inspired by Kaufman and the steps he had begun taking approximately a year earlier to provide his workers with birth-control information.27 In addition to identifying this connection between Kaufman and other proponents of birth control, the story of the Hamilton clinic shows that, despite being the law of the land, section 207 of the Criminal Code was not interpreted with uniformity by crown attorneys whose job it was to conduct prosecutions under it. The Hamilton clinic’s founders were Mary Hawkins and Gertrude Burgar, two community leaders whose goal, according to Bailey, was to improve the lives of families who had fallen into poverty.28 They considered a variety of practical matters before their clinic actually opened, including finding suitable premises which would avoid conflict with Roman Catholic physicians and patients who considered birth control and its practitioners sinful. However, an overriding issue was whether the law actually permitted a facility of the sort they wished to open. Accordingly, the women took a number of steps to verify their legal ability to run a birth-control clinic. The first was to make an appointment with the local crown attorney, George Ballard. According to Burgar’s reminiscences, “he found the Section and told us to go ahead as there was nothing to prevent it.”29 Although the role of the crown attorney is not to determine the law, he or she plays a significant part in deciding which cases go

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forward to trial. Ballard’s remark indicated that he believed the public-good defence applied to the clinic’s activities and that there was no basis on which its operators could be convicted, even if they were brought to trial. In fact, he supported the birth-control cause, later writing to Burgar that “I trust your work may advance as favourably as your efforts deserve.” As reassuring as this was, Hawkins and Burgar were not satisfied to let the legal fortunes of the clinic and their work rest merely on the goodwill of a local prosecutor who might have chosen simply not to apply the law. A change of heart by Ballard or a new person in the position could mean a very different reaction. Therefore, on 29 February 1932, Hawkins wrote to C.W. Bell, an mp from Hamilton, requesting his help in having the Criminal Code amended to permit the activities of the clinic. Bell agreed to “take this up with the Minister of Justice [Hugh Guthrie], without delay.” Guthrie’s initial response a few days later that this raised “a very important and very controversial subject” gave some hope that the problematic provision might be amended, but his subsequent answer, five days later, dashed it. “It is not the intention of the Government,” he wrote, “to introduce any general Bill to amend the Criminal Code this session nor to put forward any amendments which might prove controversial.” Hawkins was not ready to give up: she next consulted the deputy attorney general of Ontario, who suggested she hire legal counsel to assist her. She chose one of the leading members of the Law Society of Upper Canada, D.L. McCarthy. His discouraging assessment, that “the proposed amendment would be bitterly opposed by the members from Quebec,” ended her crusade to have the Criminal Code amended, and so Hawkins and her colleagues continued to worry about the possibility of a “black maria” (slang for a police van) arriving at the clinic or “a lawyer’s letter summoning them to court.” Though neither of these concerns ever materialized, the clinic’s work, continuing to be controversial, carried on under a cloud of uncertainty until the decision of the Eastview trial dispelled it.

a . r . k au f m a n and the pa r e n t s ’ in f o r m at i on bureau The Eastview trial did not occur immediately, however. In fact, it was preceded by several years of activities directed by Alvin Ratz Kaufman (11 February 1895–1 February 1979) in his efforts to promote the

A.R. Kaufman, c. 1960–69. (Photograph by Ashley and Crippen Photographers, Toronto, in the holdings of the University of Waterloo Library, Special Collections and Archives, A.R. Kaufman Fonds, ga 173–3–19–001).

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use of birth control. Kaufman was born in Berlin (now Kitchener), Ontario, to Jacob and Mary Kaufman, immigrants to Canada from the United States. Jacob was a businessman who over the years had been part owner of two separate rubber-manufacturing plants. In 1907, at the urging of his son, known as A.R., Jacob formed the Kaufman Rubber Company which began operations a year later, employing almost four hundred people in the manufacture of rubber footwear for domestic and international markets. Upon Jacob’s death in 1920, A.R. became president of the company, and he soon expanded the product lines to include rubber clothing for heavy industries like fishing.30 The business was very successful: A.R., like his parents, became wealthy and was soon well known for his philanthropy. In addition to donating significant amounts to local institutions such as the ywca , Kaufman provided health-related services to his employees such as a “sick room” and medical clinic along with a company nurse in his factory. It is not clear when and how Kaufman first became interested in the eugenics movement or when and how, specifically, its ideas reached him. However, when the Eugenics Society of Canada was formed in 1930, he was one of its founders. The views he expressed in this period echoed those of eugenicists elsewhere.31 “Society has interfered with the ‘natural law’ by protecting the unfit, who in turn reproduce their kind. Mentally deficient parents who exercise their ‘personal liberty,’” he wrote, “usually have mentally deficient children, who are deprived of real ‘personal liberty’ by an unfortunate inheritance which has deprived them of intelligence and opportunity.”32 He also expressed the common view that “the large group of feeble-minded … have a life expectancy which is practically normal. They live well beyond the child-bearing period and reproduce more morons like themselves.”33 Kaufman had been drawn to the “population issue” by 1929. This was partly a result of the crash of the stock market as well as the seasonal nature of his business.34 As with most manufacturing concerns, production at the Kaufman Rubber Company reflected market cycles, with periods of activity followed by slowdowns. Its busy period was the fall, leading up to Christmas. After that, operations slackened and fewer workers were required. Kaufman laid workers off during these slow periods. They “promptly” complained to him about their “desperate plight” and “the need to support their large families.”35 Without a union, an institution that Kaufman

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battled against tooth and nail over the years, there was little they could do but complain.36 Those complaints did not fall entirely on deaf ears. In January 1929 Kaufman hired a company nurse, Anna Weber, who moved to Kitchener from Chicago, where she had been involved in the birth-control movement, to implement a birth-control program for Kaufman’s workers.37 Kaufman later recalled that, in December 1929, following protests about heavier layoffs than usual because of the beginning of the Great Depression, he sent Weber to visit the families of laid-off workers to assess their circumstances. She reported back that “conditions were particularly hopeless in families where one or both parents were more or less mentally deficient, the housekeeping consequently very bad, and frequently too much of the meagre income wasted on non-essentials” and that “the less intelligence, the larger the families, and the more hopeless their condition.”38 Kaufman responded that he could not “meet competition by using inferior help,” and that “employing such help merely enabled them to increase the social problem by raising more unfortunate, handicapped children.” Weber suggested that, instead of jobs, Kaufman offer “birth control information or free sterilization.” Kaufman agreed that “the most constructive help was assistance in family limitation”39 and decided to take up Weber’s suggestion to provide birth-control information and even free sterilization (although, in other records, Kaufman claimed the ideas for his own and stated that Weber agreed to implement them on his behalf).40 Kaufman corresponded with Mary Hawkins at the Hamilton Birth Control Clinic and also sent his personal physician to Margaret Sanger’s Birth Control Clinical Research Bureau in New York to learn about its practices.41 He also indicated, without specifying the exact date, that he began making arrangements for whatever type of birth control, permanent or temporary, his employees requested (or perhaps, on a more cynical view, could be talked into) – a physician performed vasectomies for men in the sick room at the factory, fitted women with diaphragms, and referred women seeking sterilization surgery to outside physicians who performed these operations in local hospitals.42 “I found eager response and gratitude,” he wrote in 1937, “and the gratitude expressed by desperate mothers has encouraged me in this work.”43 Interest in these services spread beyond his own employees and Kaufman began to receive requests from other employers and

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social workers,44 ultimately expanding this work not just to nearby centres but across the country.45 As the demand for birth-control information grew, Kaufman experimented with providing it through different means, from the medical clinic in his factory for his workers, to a birth-control clinic in Toronto, to in-home visitations. He also developed strong views about what type of birth control he wanted to promote and concluded that women were more likely to actually use something they could manage at home themselves (such as contraceptive jelly) rather than something they could receive only in a doctor’s office (such as a diaphragm). In addition to providing the kinds of birth control that Kaufman believed would be most successfully used, home visits also meant that his workers could target the particular women Kaufman wanted to reach. Once his system of visiting nurses and social workers (with subsequent delivery of birth-control information and products by mail) was firmly established, his Toronto clinic was closed in 1938. Kaufman himself managed this program, which he began calling the Parents’ Information Bureau in 1933, from the premises of the Kaufman Rubber Company. Eventually he decided that he needed a corporate entity to carry out these activities and on 6 April 1935 he incorporated the pib as a private company. The incorporating documents stated that the bureau’s purpose was “to obtain and distribute, by publication of books, magazines and periodicals, or otherwise, education and scientific information” (although they do not provide detail). The bylaws stated that “the Company was incorporated for the purpose of making available to parents certain educational and scientific information and services which they are unable, because of poverty and other adverse circumstances, to obtain otherwise.”46 Corporate income-tax returns stated that the pib was set up as a non-profit corporation “to administer public welfare and benefits. It is not intended to earn profits and no dividends may be paid to shareholders.” In practice, the purpose of the pib was to distribute birth-control and sterilization information and to arrange for the sterilization of individuals who requested this surgery. In the first of numerous similar publications of the pib , this one prepared a few months after the dust of the Eastview trial and the subsequent appeal had settled, Kaufman explained how the organization undertook its work.47 Over fifty nurses across the country were employed to contact mothers “in their homes.” There, the nurses prepared applications for birth control which were sent to

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the pib office in Kitchener. Contraceptives, obtained from other suppliers since Kaufman’s company did not manufacture them, along with instructions would be sent to the mothers by mail “in approved cases.” The pamphlet also described how the finances worked: “Over 99% of our work is charitable, and the same applies to initial contraceptive supplies. Later supplies are sold at cost, but sale of same is confined to patients whose applications are on file, and to the medical profession. Our policy is to contact only those in need, and we find that over 2/3 are on relief or have an income of less than $50.00 per month.” Proudly pointing out the reach of its activities, the pamphlet added, “the Parents’ Information Bureau has mailed contraceptive supplies and information to over 70,000 others in large and small communities, and also in isolated places where there are no doctors or hospital facilities available for distances of 25 to 150 miles, and sometimes more. We have sent contraceptives to the Arctic Circle.”48 Other documents indicate that Dorothea Palmer and the other nurses were paid $1 to $1.50 for every application that was approved.49 The follow-up package of contraceptives and instructions then sent directly to the women included a price list in English and French for ordering further supplies. “Good quality condoms” were $.25 a dozen and four-ounce tubes of contraceptive jelly were $.35 each or 3 for $1.00.50 Although Kaufman was accused of making a profit from these sales, he maintained that he had not, going so far publicly as to offer to share the business with anyone who wished to participate. He later noted smugly that no one had seen fit to come forward. Kaufman insisted that he supplied information only to those who wanted it. For example, elsewhere in the same pamphlet, he emphasized (with respect to birth-control information) that “we do not make door to door canvasses as critics have stated. Our calls are confined to cases regarding which we have advance information.”51 He also pointed out the importance of obtaining consent, explaining that he always “informed his nurses that they were not to urge birth control information on those who did not want it. Such pressure was not only counterproductive, but,” he added, with a view to the legal defence Palmer would rely on, “it could also strip the pib of the claim that it was working for the public good.” Still, the policy of contacting “those in need,” and only with “advance information,” is ambiguous: it is not inconsistent with a paternalistic assessment by Kaufman and his workers of that need.

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While his workers fanned out across the country to deliver birth-control information, Kaufman took a different approach to sterilization. Dr Forbes Godfrey and others, including the esc , promoted sterilization through attempts to implement legislation which would allow the state, generally acting through a medical board in an institution for feeble-minded individuals, to require such operations to be performed on certain people, in some cases without their consent. There is also evidence that sterilizations were taking place informally as a private matter between patients, or their guardians, and their physicians.52 In the absence of specific legislative provisions, such sterilizations were, at the same time, both easier and riskier for the participants. They were easier because no formal administrative steps were required before the surgery could take place, but riskier because the law did not explicitly address sterilization. As a result, these surgeries took place in a legal grey area. It was into this legal grey area that Kaufman inserted his own promotion of sterilization, a measure he believed was necessary in some instances because “there are cases of the mentally weak where sterilization is essential, as such persons are incapable of using contraceptives properly.”53 In pib publication number 21 (undated), Kaufman wrote that he had asked his lawyers to review the law in order to assess whether sterilization was legal. Their analysis was set out in a legal opinion which considered the relevant provisions of the Criminal Code and concluded that if such surgery was requested and consented to, and done for the health of the patient, the physician who performed it would not be subject to legal liability. Female sterilization that required slicing through muscle and other tissue to reach the abdominal cavity was major surgery and had to be done in hospitals: in these cases, the pib acted as a facilitator between the prospective patient and the physician. This was in contrast to vasectomies, a number of which were reportedly done in the sick room at the Kaufman Rubber Company.54 This latter situation did not seem to worry Kaufman or his lawyers who did not address it in their opinion about the legality of sterilization.55 However, the risk remained in either case that charges might be pursued by an unsympathetic crown attorney (as they were in the Eastview case) and that a court might not agree with the opinion that the procedure was legal. The first step in protecting the pib , therefore, was to make sure that consent had been obtained from each patient for all surgeries, male or female. Accordingly, the paperwork required in advance of any surgery was extensive.

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The pib initiated the actual process by providing information about the surgery to those who requested it, requiring both husbands and wives to fill out detailed consent forms, and then, if it was the woman who was to be sterilized, referring her to a cooperative physician. Should the individual wish to carry on with the surgery after the initial consultation, he or she was asked to sign an extremely detailed and explicit consent addressed to the physician and his assistant, the hospital, and the social worker (with spots for the names of each to be filled in). In the case of the female surgery, it clearly described the purpose of the operation as “preventing me from becoming pregnant in future.” By signing, she agreed that she understood the seriousness of the surgery and that it was a “major operation” (emphasis in original) which involved “some risk,” occasionally even “failure,” and that she was “willing to accept all risks involved.” One notable aspect of the document was that, in signing it, the woman gave up any claims against anyone for “any representations, inducements or statements made to me or to anyone else” regarding the operation.56 Having clearly set out the purpose of the operation, the consent form tried to protect against any subsequent argument that the woman had been talked into it or persuaded to undergo it against her will. In addition to the female patient’s signature (which needed to be witnessed), the husband was required to “consent and agree and represent that I do consent and approve of the said operation.” In the case of surgery on a male, both consent forms were prepared in the reverse, but the description of the operation was different. The surgery was described as “simple” and “much less serious than the removal of the tonsils,” although it still carried “some risk of serious consequences” and, in a small percentage of cases, failure. The man nonetheless agreed “to accept all risks.” The form contained a corresponding provision once again releasing liability in the case of “representations, inducements or statements.”57 The requirements were even more stringent for minors. The form to be signed by the parents or guardians not only acknowledged their belief that the surgery was in the interest of the health and welfare of the child, but also stated that this belief was supported by the findings of the “medical and psychiatric examination,” itself documented in a statement attached to the consent form.58 A pib nurse followed up with the individual a few months after the surgery by sending a short questionnaire which asked about

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both the physical and emotional aftermath of the surgery: “How long before you were able to return to work?” and “Are you happy you had the surgery?” Kaufman proudly reported in subsequent years that “the Bureau has assisted with arrangements for over 1,100 sterilizations that were performed by sympathetic surgeons. Hundreds of letters of gratitude have been received, and not one letter expressing regret.”59

t h e t r ia l The Eastview trial that opened on 21 October 1936 was a direct result of the activities of the Parents’ Information Bureau. Whether or not Kaufman provoked it as some historians believe, it gave him the perfect opportunity not only to publicize the benefits of birth control but also to have a court rule on the issue of whether providing information about it should be a criminal offence.60 His decisions to hire a top lawyer, F.W. Wegenast, and to spare no expense in providing Palmer with the most comprehensive defence possible paid off. She was completely exonerated on 2 June 1937 when the Ontario Court of Appeal upheld the magistrate’s decision of 17 March 1937 to acquit her. Kaufman’s position and strategy had been vindicated. Eastview, Ontario – with its poor, uneducated, French-speaking, Roman Catholic population – was definitely “enemy territory” as far as Kaufman was concerned and he may have chosen to undertake pib work there in anticipation of a backlash from Roman Catholic Church officials to which he could vigorously respond. The residents heard regular sermons from their local priests about the sinfulness of birth control and Palmer’s predecessor with the pib in Eastview, a Miss Todd, had received threats from angry husbands who Kaufman believed had been unofficially encouraged by their priests. When Todd expressed concerns about her own safety, Dorothea Palmer, feisty and independent by nature, was assigned by Kaufman to the Eastview territory in her place.61 Dorothy Evelyn Palmer (6 December 1908–5 November 1992) was the youngest of eight children, fathers unknown, born to an unmarried woman named Mary Ann Palmer, in Ludlow, Shropshire, England.62 Dorothea, as she became known, immigrated in the mid1920s to Canada where she became one of the fifty or so workers employed by the Parents’ Information Bureau to visit women in their homes for the purposes of providing them with birth-control

Dorothea Palmer at approximately the time of the Eastview trial. (Bill Stephenson, “The Great Birth Control Trial,” Maclean’s Magazine, 23 November 1922.)

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information. Unlike most pib employees, all of whom were women, Palmer was not a nurse although she had worked briefly in a hospital. Instead, she had had a year’s training as a social worker in Sheffield, England, where she had been involved in the birth-control movement and been heavily influenced by two of its pioneers, Marie Stopes and Margaret Sanger.63 When Palmer first moved to Ottawa, she operated a small bookstore with a man named Ferguson, whom she described as her husband, although there is some uncertainty about her marital status. She explained that she used her maiden name, Palmer, in her work with the pib in order to avoid embarrassing her husband and his family who did not support it, even going so far as to swear an affidavit, one of the documents needed for the appeal, which identified her as “Dorothea Palmer, Spinster.”64 McLaren and McLaren suggest that Palmer and Ferguson were not actually married and that suspicion about her status contributed to the decision not to call her as a witness for the defence during the trial. Testifying would subject her to the crown’s cross-examination, and the possibility that she was “living in sin” would cast doubt on her integrity and thus on her reliability as a witness.65 At the time of the trial, the twenty-eight-year-old Palmer was a striking figure – tall, dark-haired and good-looking.66 The long trial and its looming threat of a jail term must have been difficult for her, but she relished the opportunity to fight hard for something she believed in strongly, even enjoying the publicity that came with it. Upon her arrest, she recalled many years later, the police considered not charging her once they discovered her connection with the pib . However, when they asked if she was willing for them to proceed: “Yes,” she replied. “What do you think I came into Eastview in the first place for?”67 In some of Palmer’s contemporaneous statements she portrayed herself as a victim. At the time of her arrest she told the police that she had been assured by Kaufman that what she was doing was entirely legal because of the public-good provision and she had to fear only the reaction of local Roman Catholic officials, not the police. Once she was arrested, she testified that the police tricked her into giving a detailed statement about the precise nature of her work by telling her that they would not be laying charges but just wanted to know how she went about her activities – information that was then used as the basis for the criminal charges against her.68 Yet this

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account conflicts with her bold assertion to the police that “I may be imprisoned for two or three months but I can assure you that the moment I am at liberty I will go back to the same work. I am doing this for the service of women in general.”69 All in all, it appears that at times Palmer felt that she was exploited as a result of her determined support for birth control so that Kaufman could mount his challenge to the law.70 Sometime around Labour Day weekend in September 1936, Palmer was arrested, either still inside or just leaving the house of the Mousseaus, a young French Canadian Roman Catholic family.71 Madame Mousseau had telephoned Palmer, about whose work she had heard from a friend, and asked her to visit her at home for the purposes of providing information on birth control.72 A local police constable, Emil Martel, alerted by local Roman Catholic officials, arrived on the scene in an attempt to put a stop to Palmer’s activities. He immediately arrested her and took her to the Eastview Police Station where she was questioned by Chief Richard Mannion and other members of the police staff.73 The Eastview police initially assumed that she was a young woman on an individual crusade and offered her an opportunity to explain her activities. Her answer was a surprise: she was an employee of A.R. Kaufman and his Parents’ Information Bureau, and was following up on referrals for information about birth control. Moreover, she informed them (as all pib workers had been instructed by Kaufman to do in the event of trouble) that what she was doing was entirely legal, since it served the public good as permitted by the Criminal Code. Once the police learned of her connection to the Parents’ Information Bureau, they offered to let her go, but in consultation with A.W. Beament, an Ottawa lawyer contacted by Wegenast on her behalf, she told them that she was ready to be charged.74 Despite earlier assurances, the police followed through, charging her under section 207 of the Criminal Code with “unlawfully and knowingly” (a) offering contraceptives for sale, (b) advertising by pamphlets and other methods various methods of contraception and (c) having contraceptives for disposal. She was kept in jail at least one night until Kaufman provided bail of $500 and she was released.75 The charges against Palmer meant immediate work for a number of lawyers, from the crown attorney who would prosecute the case on behalf of the government to the lawyers who would defend her. A defence team was quickly assembled, starting with the highly

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regarded Toronto lawyer F.W. Wegenast and his office associate, Margaret Hyndman. Since the trial would take place in Eastview, a short distance from (and now a suburb of) Ottawa, Wegenast called again on the firm Beament and Beament. Although Palmer was the person charged, it was Kaufman who acted as the actual client. He hired the lawyers, participated with them in devising the trial strategy, and agreed to be responsible for all costs. Palmer herself had very little to do with her own defence. Franklin Wellington Wegenast (17 June 1876–2 June 1942) was an erudite man of many talents and a wide range of interests, from music to languages to politics, in addition to law.76 As a young man, he supported himself as a professional singer, composer, and conductor and was still performing as late as 1940; his command of Gaelic (self-taught) meant that he was often taken for a Scottish Highlander although his family was of German origin. He served the town of Brampton, Ontario, now part of the Greater Toronto Area, in many elected capacities, including mayor, from 1925 to 1928 and again in 1940. As a lawyer, he achieved considerable prominence. He was a sought-after counsel, appeared before the Supreme Court of Canada and the Privy Council, and was specially called to the bar in Manitoba in order to represent clients in that province. His work is still influential today. He drafted the first Ontario Workman’s Compensation Act which, when it became law in 1915, significantly altered the relationship between employers and employees in the province.77 Along with Margaret Hyndman, he authored the 1931 textbook The Law of Canadian Companies, colloquially known as “Wegenast on Companies.”78 Wegenast, along with Kaufman and Dr William Lyle Hutton, a Brantford physician, was a founding member of the esc in 1930.79 His representation of Dorothea Palmer is in keeping with an espousal of eugenic principles, especially given their importance to the public-good defence, and some suggest that he took on the file in order to promote ideas that he shared.80 Others argue that this view is not supported by the evidence and point to Hyndman’s claim that it was she who convinced Wegenast to take the case.81 Although he was reluctant to do so (partly for reasons of poor health), she appealed to his scholarly instincts: the case would break new ground since it concerned a point of law never before argued – the meaning of the public-good defence as it related to birth control.82 Moreover, the general popularity of eugenic solutions to social problems may

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explain Wegenast’s membership in the esc (whose letterhead identified him as “legal counsel”) even if he himself was not a true believer, especially since Kaufman was a client seeking legal assistance for the formation of the organization. Whatever his motives, Wegenast defended Palmer with creativity and vigour, and made an appeal to eugenic principles in doing so. Right from the beginning, Wegenast recognized he had become involved in a lengthy undertaking. No doubt realizing that the effort would be aided by working with someone closer to Eastview than he himself was in Toronto, he teamed up for the duration with Beament and Beament, a practice consisting of a father and two sons, working primarily with the elder son, A.W. As their preparations got underway, he wrote to Beament: “Relying on the opinions expressed by you and others, [Mr. Kaufman] has concluded that the circumstances of this case are as favourable as we can expect for bringing the whole question to an issue and he wants to see this done. We do not want to succeed on any technicality. Mr. Kaufman is also desirous of getting all the publicity possible in aid of his cause. He wants to have the issues argued broadly.”83 Arguing the issues broadly meant more than just a long trial – it also meant a very expensive one for Kaufman, who was footing the bill not only for the legal fees but also for his team’s living expenses and their travel costs between Toronto and Eastview. A subsequent letter to Beament two months later, after a few days of hearing with many more to come, suggested that Kaufman was regretting the carte blanche he had initially given his lawyers. “Mr Kaufman has,” Wegenast wrote, “perhaps not unnaturally, become a little apprehensive about the expense of all these proceedings and he has put a little pressure on me to find out what your bill to date will amount to.”84 Whatever the answer was, the defence strategy did not change. In the years following the trial, Kaufman often stated that he had paid $25,000 for Palmer’s defence, a very significant sum in the middle of the Great Depression.85 The crown attorney was Raoul Mercier (23 May 1897–6 May 1962).86 Mercier was from an old Quebec family which traced its roots in New France to 1645. The son of a real estate and insurance broker, Mercier attended school and university locally but received his legal training at Osgoode Hall in Toronto. There, he proved himself a capable student, winning awards for debating and public speaking, and gained valuable courtroom skills. For his first fourteen

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years as a lawyer, until his appointment as assistant crown attorney in 1935, he worked in private practice as defence counsel. Mercier was the first Franco-Ontarian ever named to the office of assistant crown attorney, and the appointment was vigorously opposed by some who argued that Ontario was “a traditional Anglo-Saxon province.”87 In 1936 he became the crown attorney for Carleton County, which included the town of Eastview. The Eastview case must have been one of Mercier’s first in this new position. Sensitive to being seen as merely a mouthpiece for the local Roman Catholic authorities, he claimed on numerous occasions that he was managing the case on his own and, specifically, that he was not being instructed by anyone on behalf of the Roman Catholic Church. Furthermore, as far as he knew, Palmer had not been “set-up.” During his final argument, Mercier laid out the story of how Palmer came to be charged. Some five or six weeks before the proceedings were started, I received a telephone call at the Crown Attorney’s office, from a lady who did not give her name, and did not wish to name herself, asking me if it was right to peddle safes in the City of Ottawa. I must say at that time I didn’t know anything about the Parents’ Information Bureau or Miss Palmer or her work, or anything of that kind. But I didn’t take the matter too seriously then, because I thought it was more or less of a joke by some woman who didn’t know exactly what she was talking about; I couldn’t imagine such a thing could be possible. Later on I received a similar telephone call, but again the woman would not name herself, so after that the officer Martel … came to the office for a consultation and told me that in the police court at Eastview they had received complaints about a certain person, whom I did not know at the time, making calls and doing the same kind of work as this other woman. So I asked Martel to make an investigation and find out about it, and Martel did make an investigation. He informed me of the results of his investigation, and glancing at Section 207 of the Criminal Code of Canada I thought prosecution might be instituted.”88 Mercier served as a crown attorney until his retirement a year before his death. He was highly regarded by his peers, perhaps because of his belief that his job was to serve justice, not one side or the other, and thus always to “live up to [the] maxim: ‘The Crown

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The Courthouse, Eastview, Ontario. (University of Waterloo Library, Special Collections and Archives, Parents’ Information Bureau Ltd Fonds: 2005 accrual, ga 172–5–57.)

never wins; the Crown never loses.’” Mercier was elected president of the Ontario Crown Attorneys’ Association in May 1960 and, on his hospital bed just a few days before he died, he was presented with a silver tray in recognition of his twenty-five years in office. Like Wegenast, Mercier was accomplished in areas beyond the law: he was a noted local amateur actor and sportsman and had also served a term as a municipal councillor in Ottawa from 1932 to 1933. Later in his career, Mercier might have proven to be a strong adversary for Wegenast. With only a few months as a crown attorney under his belt, he was not. Wegenast had experience on his side and it not only showed but mattered. Little information beyond a few basic biographical details is available about the man who made legal history with his ruling in the Eastview case. Lester Herbert Clayton (3 May 1905–11 January 1971) was born in Chicago to a Canadian father. He attended the University of Toronto, where he studied politics and law, participated

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in the debating club, and was a member of the fraternity Tau Sigma Phi. Clayton was called to the bar in 1930 and began his legal career in Ottawa where he was senior magistrate, or judge, in the provincial court from 1935 to 1945.89 He enjoyed presiding over the Eastview trial: the transcripts show that he maintained a firm hand on the proceedings, which at times, not surprising given the subject matter, risked becoming rowdy. Yet he enjoyed the frequent repartee between counsel and participated in it occasionally himself.90 With the key players in place, approximately six weeks after Palmer’s arrest, the trial began. It lasted twenty days spread over a period beginning on 21 October 1936 and ending on 11 February 1937, with Clayton’s decision released on 17 March 1937. It took place at the Eastview courthouse, a “ramshackle” two-storey wooden structure on a wide dirt street which also housed the Town Hall.91 As a preliminary matter, the crown dropped two of the three charges against Palmer – that she offered contraceptives for sale and that she had contraceptives at her disposal. This was a reasonable decision, since the evidence would show that she herself was not selling contraceptives but merely taking applications from interested individuals and forwarding them for approval to the pib, which would then mail the devices.92 Thus, only one charge remained: that Palmer’s activities constituted “advertising” contraceptive devices. The first step was for the crown to show that Palmer had breached subsection 207(c). Given that the facts were not in dispute, the defence could have decided simply to concede that Palmer had indeed violated this provision, so that the parties could move on to the real issue: the application of the public-good defence. Such an agreement would shorten the trial considerably and in turn result in reduced costs for Kaufman. However, although the defence was not seriously interested in contesting the facts relating to her activities, for tactical reasons it did not wish simply to concede the matter. There was little doubt that Palmer had knowingly done precisely what she was accused of doing – providing information regarding contraception – but without an agreement from the defence as to the facts, the crown was required to prove them and to call numerous witnesses in order to do so. This gave Wegenast the strategic advantage of being able to cross-examine those witnesses, a critically important opportunity that served him well. Nevertheless, there was really only one significant issue in dispute: whether the defence could prove under subsection 207(2) that “the public good was served by

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the acts alleged to have been done,” in which case “no one shall be convicted of any offence in this section mentioned.” First up was the crown with its evidence against Palmer on the charge of advertising birth control. Its case on the breach of subsection 207(c) was straightforward. In order to prove that Palmer had advertised birth control, the crown took the obvious step of calling women whom Palmer had visited to give evidence that she had done so. Mercier called twenty-one women; all were Roman Catholic, and only one was not French Canadian. They testified, as expected, that Palmer visited each one in their home and provided a free box containing condoms and contraceptive jelly, along with an application form and a price list for ordering more products if the application were successful.93 The defence used the opportunity to cross-examine these women to begin building its case on the public-good issue. The following questions and answers between Wegenast and the crown’s first witnesses were typical of the exchanges. Q. You did not think you were doing anything wrong in talking to her? A. No. Q. She asked, did you want a birth control box? A. I might. It might come in handy. Q. You told Miss Palmer you were not anxious to have any more children. A. Yes, that is what I told her. Q. Do you think you were doing anything you shouldn’t do? A. No, I didn’t. Q. And you wanted Miss Palmer to have these things sent to you? A. Yes. Q. You were intending to use it? A. Yes. Q. Do you think you are entitled … to make up your mind when you want another baby? A. I certainly do. Q. You are not doing anything wrong? A. No. Several women even admitted that they had purposefully brought on abortions in the past and the information Palmer provided would have obviated the necessity of taking that step.

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Kaufman, clearly a biased reporter, noted that “the women obviously had the kindliest feelings towards Miss Palmer.”94 Yet, even without the filter of Kaufman’s partisan view, it is evident that the answers were almost uniformly helpful to the defence. Palmer had helped them. They wanted the information and they intended to use it. Only two testified that they should not be using contraceptives because their priest had told them it was immoral. The rest believed they were doing nothing wrong. The crown’s final witness was an expert – a physician named Dr De Haitre. He testified that contraceptives should not be handed out before a physical examination was done.95 Once again, on crossexamination, his evidence helped the defence more than the crown. De Haitre told the court that he was a Roman Catholic and therefore was opposed to the use of contraceptive devices. He testified that, even though the use of contraceptives might be beneficial in individual cases from a medical or scientific standpoint and would be effective in reducing the numbers of abortions, he himself would certainly never prescribe them. Furthermore, he admitted that, although he supported the use of the rhythm method, he agreed that it was unreliable in approximately 50 per cent of the cases.96 The crown’s case was straightforward: Palmer had visited twenty-one women in Eastview and given them information about birth control. Its one expert witness had testified that contraceptives should be handed out only by physicians. The defence cross-examination had shown that almost none of the women who met with Palmer believed they were doing anything wrong. They intended to put to use the information they had received because they believed they should have the right to decide when and how many children to have. Moreover, the cross-examination had elicited the admission from the crown’s expert that the rhythm method, the only type of birth control as a Roman Catholic he would support, was highly unreliable. With the crown’s case on the breach of subsection 207(c) completed, it was over to the defence to argue that the public-good defence applied to Palmer’s actions. Its preparation on this point in particular had begun the moment Wegenast’s office heard the news of Palmer’s arrest. Margaret Hyndman recalled that, as soon as the office was contacted, she herself called the Reverend Dr Claris Silcox, a Toronto Protestant religious leader, whom she knew to be a major proponent of birth control, and immediately retained him

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to assist with the case. Even before Wegenast returned to the office a day later, she and Silcox “sat there dreaming up all the things” that they could argue brought Palmer’s activities within the public-good defence.97 But the preparation did not stop there – its thoroughness is evident in the number of witnesses, many of whom were experts, Wegenast called and the breadth of their testimony on precisely what comprised the “public good.” The testimony of experts is governed by the rules of evidence which include matters such as who can be qualified as an expert, how many experts a side is able to call, and the parameters of the expert’s testimony. On the point of calling expert witnesses, Wegenast scored a clear victory over his less experienced opponent. When it came time for the defence to present its case, Wegenast asked the court’s permission to call fifteen experts. Mercier objected that the rules permitted only five, but that if Wegenast were permitted to call more than five, Mercier wanted to do so as well. Wegenast countered that Mercier had not requested permission to call more than five initially (and in fact had called only one) and could not do so after his case had closed. When Clayton suggested he was considering restricting Wegenast to the five permitted by the rules, Wegenast indicated he would then argue that the rules permitted him to call five for each part of his multi-part argument. Seeing the number of witnesses for the defence about to skyrocket, or, at the very least, a protracted argument about it, Clayton allowed Wegenast to proceed as he had planned, ruling that it was indeed too late for Mercier to call more witnesses.98 Mercier had been outplayed. Wegenast’s main expert, Claris Silcox, who represented a council of Protestant churches, testified first. Silcox was on the stand for thirteen hours, giving evidence about the history and benefits of the use of contraceptives. Demonstrating the thoroughness of the defence case, Wegenast took Silcox through testimony regarding fifteen benefits, including a reduction in infant and maternal mortality, improvement in infant and maternal health, prevention of abortions, reduction in prostitution and the spread of venereal disease, promotion of mental and physical health and marital happiness, promotion of economic equality between men and women, reduction in taxation, improvement in the quality of the race, reduction in intercultural friction, and improvement in the standard of living and reduction in unemployment. Silcox also provided evidence against the three main objections to birth control that had been put forward

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by the crown’s expert: that it was opposed to divine command; that it was unnatural and therefore wrong; and that it offended against an innate sense of decency.99 The defence’s next witnesses all supported particular aspects of Silcox’s testimony about the value of birth control. Seven more religious leaders testified, representing the United Church of Canada (the Reverend Dr John Coburn and the Reverend Roy Essex), the Anglican Church of Canada (the Reverend T.F. Summerhayes and Canon C.G. Hepburn), the Scott Mission (the Reverend Maurice Zeidman), the Salvation Army (Colonel E. Sims), and the Jewish community (Rabbi Samuel Sachs). These men all testified about the importance of birth control to the emotional well-being of couples and families. Some also testified that women should have the right to plan their families.100 Next, J.W. Buckley, secretary of the Toronto District Trades and Labour Council, testified that birth control would help reduce unemployment.101 Four physicians also testified: Dr William A. Scott of the University of Toronto’s Department of Gynaecology; Dr G. Brock Chisholm,102 a psychiatrist in private practice and also a member of the University of Toronto faculty; Dr W.L. Hutton, the medical officer of health of the city of Brantford and a founding member of the esc; and Dr Margaret Batt, who had worked with the Toronto Birth Control Clinic. They gave evidence as to the medical value of birth control with respect to the health of mothers and infants, the harmlessness of the methods of birth control that Palmer had advocated, and the importance to mental health of being freed from the continuous prospect of pregnancy.103 Next came Mary Hawkins of the Hamilton Birth Control Clinic,104 followed by two young men who testified that they had freely purchased a variety of contraceptives from drugstores in Eastview without any questions having been asked.105 The theatrical deposit of all their purchases on a courtroom table as exhibits in the case caused precisely the stir that Wegenast was hoping for. Finally came Kaufman himself, as well as two of his nurses, who testified about the operations of the pib , the reasons it was established, and the continuing need for its work.106 The defence strategy was to show that Palmer’s activities had served the public good in a number of ways. One of these was the eugenic argument that access to information about birth control would improve the race since it would mean that fewer unfit individuals would have children. Although not all the defence witnesses

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raised specifically eugenic matters, three of them did: Dr Silcox, Dr Chisholm, and, of course, Dr Hutton.107 Dr Silcox’s testimony was extremely wide-ranging, touching on all the defence’s arguments for the public good.108 Partway through his thirteen-hour testimony, he came to eugenics. This section of his evidence was very brief; his main point was that birth control could help improve the quality of the race. “The eugenicist would say that … it would improve the birth rate along eugenic lines. I think it is perfectly obvious,” he continued, “that we don’t need any statistics to prove … [that] in general the highest fertility is among the more economically depressed classes.” He referred to a text called Population Problems, which was then entered as an exhibit. It contained a collection of articles based on the proceedings of the American Statistical Association at its annual meeting in 1924 which discussed the problem of the differential birth rate. Wegenast did not ask Silcox to elaborate, but, surprisingly, Mercier did. In an answer that once again served to support the defence’s argument, Mercier allowed Silcox to describe at length the problem of differential fertility, the reasons for it, and how birth control could solve it. In fact, Mercier himself brought up the well-known eugenic case study of the Jukes family. Part of a genre called family studies, it was often used along with a similar work on the Kallikak family to demonstrate that characteristics such as criminality and pauperism were supposedly hereditary. However, Mercier did not follow up with any questions to Silcox regarding it. The next witness whose testimony touched on eugenic concerns was Dr Brock Chisholm. He reiterated Silcox’s evidence about the differential birth rate, stating that Canada was facing a “biological crisis” since the less intelligent were breeding faster than the more intelligent.109 Then came Dr William Hutton, the defence’s main witness with respect to the eugenic grounds for the public-good argument. Arising from his interest in the differential birth rate and the family studies, Hutton had done his own study which was published in the booklet titled “The Aims and Objects of the Eugenics Society of Canada.” He testified he was now in the process of making a study of the relationship between relief, or social assistance, and what he called socially inadequate families in Brantford. As the basis for the eugenic argument for sterilization and segregation of unfit individuals, Hutton testified that his study of 500 families showed that the average number of children in families that contributed inmates to mental institutions

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was 4.8 while in “normal” families the average was 3.7. This meant that “we are losing in health, wealth, usefulness and happiness, and are increasing in mental defectiveness, and consequently in misery and in taxation for the maintenance of corrective institutions.”110 Using a familiar eugenic argument, Hutton claimed that the world was facing a “biological crisis … [because] … the advance of science and humanitarianism had brought about a saving of many lives which formerly had been wiped out by disease and famine.” These conditions, “in addition to eugenical considerations,” he testified, called for “scientific intervention and control in the matter of reproduction.” Dr Hutton also testified that, although he had initially been against the use of birth control because of the possible dysgenic effect if used by fit families to limit their number of children, he had come around to the view that the upper classes would find and use it anyway, and it was therefore very important to get it into the hands of people whose reproduction was particularly problematic.111 The crown made no attempt on cross-examination to refute the defence evidence regarding eugenics. Instead, it called four witnesses of its own in rebuttal. 112 First came Dr L. Gérin-Lajoie, a professor of gynecology at the University of Montreal, who testified that the birth-control methods Palmer was recommending would be harmful if used without medical advice. Dr Ernest Couture, a local obstetrician, testified that “biological laws were against birth control” and that “if we interfere with the biological order for each organ we must pay the penalty and suffer some pathology.” Dr Richard Cargill, a physician from Ottawa, testified that he was in favour of birth control as long as it was used under medical supervision. Finally, Canon Arthur Whalley, the rector of St Albans Anglican Church in Ottawa, testified that birth control defeated the purpose of marriage, which, in his view, was procreation, and that abstinence should be practised by those couples not ready to have children. Once again, Wegenast had little trouble turning the evidence of these four to his advantage. On cross-examination, Drs Gérin-Lajoie and Couture each admitted that he had no scientific support for his statement; Dr Cargill conceded that poor women should not be denied access to birth-control information simply because their circumstances did not permit them to consult a physician; and Canon Whalley agreed that abstinence was “much easier in the unmarried state than in the married.”113 Eugenics was not raised with any of these witnesses.

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After each side introduced its own witnesses and conducted cross-examination of those from the other, the next step was to present their arguments to the judge.114 Not surprisingly, they focused primarily on the meaning of the phrase the “public good,” and whether the public-good defence should apply to Palmer’s activities. Mercier argued for a narrow interpretation – that the term must be interpreted locally, in this case as it applied specifically to the women in Eastview. This meant that court had to consider the teachings of the Roman Catholic Church with respect to birth control, since it was almost exclusively the faith of those women and the entire population of Eastview. Something could not be in the public good if it was knowingly done in violation of those teachings. Therefore, all the evidence about whether birth control was good from a medical or public health point of view was irrelevant since, according to the crown, it contradicted the teachings of the Roman Catholic Church. Wegenast argued for a broader interpretation: “public good” meant for the public good in Canada generally, not just for the women of Eastview. The public good was the public’s right to know and Palmer’s right to inform. No one needed to go against their conscience, he told the court; no one needed to use birth control or even to listen. Wegenast was concerned that the court would accept the crown’s argument that the analysis of the public good must reflect the religious context. Therefore, his main point, extensively detailed and taking up the full first day of argument, was that the law of the land overrode church law, and that the court should not consider the Roman Catholic position on birth control in determining the outcome of the case. Here, he recalled the seventeenth-century conviction of Galileo for heresy, claiming that such a conviction could never have happened in a British court. If Wegenast was trying to convince the judge that the trial was really to decide which was the prevailing law of the land, he need not have worried. Clayton announced toward the end of Wegenast’s argument on this issue that he was not concerned as to whether his judgment coincided with canon law.115 This did not end the matter. The defence still had to persuade the court that the evidence showed the public good had indeed been served by Palmer’s activity. Once again, Wegenast was thorough. He considered the “public good” in a variety of categories, including economic, eugenic, sociological, medical, and moral.116 His twelfth point under the sociological heading (after others, which included

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reducing infant and maternal mortality, reducing prostitution and venereal disease, and promoting marital happiness) was that the use of birth control would improve the quality of the race.117 He promised to come back to that issue under the heading of “eugenics.” When he did so later that same day, his remarks directly on eugenics were very limited, taking up just a few pages in the transcript.118 First, he wrapped eugenics into economics, medicine, and sociology by noting that eugenics could be considered a department of each of those fields. Following the evidence from Silcox, Chisholm, and Hutton, he pointed out that “by reason of advances in the science of health and in the developments of humanitarian sentiments the natural laws which formerly interfered with the survival of the unfit are impeded in their operation. The result is increase in population, and increase in the number of relatively less fit.” Moreover, he continued, “it is obvious that the number of people born into the world and the kind are matters of prime importance in sociology – call it eugenics or whatever else you like.” Quoting from one of the documents introduced as an exhibit during Hutton’s testimony, Wegenast read aloud for the benefit of the court the statement that, according to the author, restriction of human fertility was one of the most important steps to take in conquering the biological crisis resulting from the deterioration of human life.119 Consistent with his approach throughout the trial, Mercier did not address the concept of eugenics at all in his closing argument. Keeping in mind that the onus was on the defence to prove that the public good had been served, rather than on the crown to prove that it had not, Mercier had no obligation to do so. Perhaps he believed that the defence had not satisfied this onus. In any event, Mercier’s failure even to note this in his closing argument allowed the judge to draw the inference that, because this part of the defence’s evidence had not even been mentioned by the crown, it had not been controverted.120

t h e d e c isi on With the oral arguments from each side completed, the trial ended on 11 February 1937. Approximately one month later, on 17 March, Judge Clayton issued his judgment, a careful eleven-page decision in which he concluded that the charge against Palmer ought to be dismissed.121 Clayton first explained that he had found no guidance in any earlier decisions as to how the public-good defence ought to be

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applied. In addition to Rex v. Karn, Clayton cited three other cases decided under section 207 (or its predecessor, section 179) but noted that they were of little assistance to him since they were not on point with the issues he was deciding, first because they related to allegedly obscene novels rather than birth control, and, second, because none turned upon the question of the public good. He also pointed out that British obscenity law did not contain any similar defence. As a result, there were no directly relevant decisions to guide him as to the application of subsection 207(2): the Eastview trial required him to determine for the first time in Canadian legal history the meaning of the public-good defence to the obscenity provisions of the Criminal Code. As noted above, there were two ways in which Palmer could be found not guilty. The first was if the actual act of knowingly advertising birth control were not proven. The second was that, even if the act complained of were proven, it would be protected if it served the public good. Accordingly, the first part of the decision addressed the issue of whether Palmer had been advertising birth control. Clayton noted that section 69 of the Criminal Code stated that “everyone is a party to and guilty of an offence who … (b) does or omits an act for the purpose of aiding any person to commit the offence.”122 In the circumstances under consideration here, Palmer was not advertising on her own account; consequently, Clayton had to decide whether she had aided the pib in advertising birth control when she handed over the pamphlets and sent addresses and applications back to the pib, which responded by sending a box including an order form and a price list for additional products. The question he asked was “whether sending this pamphlet in such a manner constitutes ‘advertising’” within the meaning of section 207. Given that the pamphlet “had an element of commerce in it,” Clayton concluded that it was indeed advertising, which Palmer had knowingly aided the pib in carrying out. Therefore, Palmer’s acts fell within the ambit of subsection 207(c) and she would be found guilty unless subsection 207(2) applied. He then moved on to a consideration of that provision. Clayton began by pointing out that the Criminal Code did not prohibit the use of contraceptive devices; thus, the broad question for the court was not whether the use of contraceptives was in the public good, but whether the advertising of contraceptives was in the public good. This was a significant distinction (and one that was raised again by the crown at appeal), but at times it had seemed

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lost during the trial and subsequent news reports. Having clarified the question that he was called upon to decide, Clayton began his analysis. Even though Wegenast’s directly eugenic arguments made up only a small part of his overall case, they underpinned Clayton’s decision, although he did not use the term “eugenic.” Clayton first observed that it was “a well-known fact” that rich and middle-class people had no problem obtaining birth-control information since they could afford to go to a doctor. By contrast, this information was effectively inaccessible to anyone who could not afford to pay for such medical advice. Clayton accepted the defence evidence, especially that of Dr Hutton, about the differential birth rates, when he pointed out that the poor bred large families which they could not afford to look after and which left mothers in poor health.123 Even the crown’s own witnesses helped make this point – Clayton noted that several of them already had nine or ten children even though they were only thirty or thirty-five years old. He relied on more of the defence evidence, drawing eugenic inferences, when he noted that these children “are a burden on the taxpayer. They crowd the Juvenile Court [and they] glut the competitive labour market … What argument,” he continued rhetorically, “is there from a humanitarian point of view, from the point of view of the public good of humanity, that will deny to these people the knowledge and the means [of birth control]?” Clayton also saw the distribution of birth-control information to these families as a humanitarian act since it would improve the health and economic well-being of the mothers, the children, and of each family overall. However, there was no birth-control clinic in Eastview and the only two local doctors were both Roman Catholics who would provide advice only on the rhythm method, a technique, Clayton said, that was notoriously unreliable, “even with the most careful and intelligent application.” Adopting another basic notion of eugenics, Clayton asked rhetorically: “How can one then expect it to be efficacious among the poorer classes where intelligence is often below the general level?”124 Clayton’s decision did not refer to Wegenast’s invocation of Galileo, but it did adopt the appeal of “science” and “scientific truth” that Wegenast had urged on him. “I cannot see the harm of giving scientific truth and knowledge to the people. What they do with that knowledge is their own affair,” he wrote. In this respect, he pointed out that even some of the crown’s own witnesses, themselves Roman

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Catholic, had testified that “they wanted this information and intended to use it, the tenets of their religion notwithstanding.”125 After a brief consideration of questions relating to a technical issue and to the relevance of Palmer’s motive for her work (which he accepted was at least partly humanitarian despite the fact she was paid for it), Clayton concluded: “If therefore there are strong grounds for the dissemination of Birth Control information in Eastview, if there are no other means of Eastview women obtaining this information, if the methods advertised are harmless, if the women witnesses wanted this information and thought there was nothing wrong in obtaining it and if Miss Palmer, a nurse, had a bona fide motive in her work, should not any Court of Law in an honest effort to interpret the law for the well-being of the community come to the conclusion that Miss Palmer’s acts were for the public good?”126 He dismissed the charges.

t h e a p peal The matter was not quite over yet. Approximately one month after the verdict was handed down, on 12 April 1937, the crown issued a notice that it intended to appeal the magistrate’s finding. The Ontario attorney general at the time was Paul LeDuc, a French Canadian Roman Catholic, and although it was initially believed that he decided to go ahead with the appeal based on the importance of this issue to the Roman Catholic Church, it was later determined that the decision to pursue it had actually been made by his predecessor, Arthur Roebuck, a progressive journalist and lawyer turned politician.127 An appeal is not an opportunity to retry a case. The threshold for success at this stage is very high – it is not a general question of whether the trial judge “got it wrong” but whether he or she made an error of law (or, in extremely narrow circumstances, of fact). The appeal court does not hear evidence; instead, with almost no exceptions, it accepts the lower court’s findings of fact. In the Eastview case, both parties prepared briefs for the appeal court (and each other) which outlined the facts and legal arguments upon which they planned to rely. The defence, now referred to as the respondent, again prepared extensively.128 The appellant-crown’s case was presented by Clifford Magone (of the Magone Commission in chapter 3). Wegenast again appeared for the respondent-defence. The matter was heard on 1 and 2 June 1937 by a panel of three

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Ontario Court of Appeal judges, including N.W. Rowell, the chief justice of Ontario.129 The decision was announced mid-way through the second day.130 As appellant, Magone was up first with the crown’s case. The main thrust of the appeal was that the evidence on which Clayton made the decision should not have been admitted because it dealt with the question of whether birth control itself was in the public good and not with the more limited one of whether advertising birth control was in the public good. This was the very point with which Clayton began his decision. Here, the Court of Appeal decided that the magistrate had not used the objected-to evidence to reach his decision and that there was indeed “some [admissible] evidence” on which he based his decision on this point. Therefore, it rejected this argument.131 The crown also argued that public good was the same as public policy, and since evidence on what public policy should be was not admissible, the court should not have heard evidence on or decided what was in the public good. The Court of Appeal also rejected this argument. The crown next argued that Palmer’s motive was not material to the public-good defence and therefore the magistrate should not have considered Miss Palmer’s motive and recognized her desire to render a social service along with her desire to earn a fee. For its part, the Court of Appeal concluded that this finding was not essential to the magistrate’s determination that Palmer’s acts were in the public good. In three brief pages, the Court of Appeal concluded that the appellant had not made its case in the first instance and thus found no need to hear from the respondent. It dismissed the appeal without hearing from Wegenast at all.

r e f l e c t io ns Members of the public must have been sorry that the matter was finally over. It was a hugely popular diversion at a time, in the midst of the Great Depression, when the public needed it. Crowds gathered outside the Eastview courthouse every day, waiting to see the participants, especially Palmer, enter. The small public gallery inside the courtroom that held only fifty people was “jammed,” the spectators including reporters from local papers as well as wire services who sent their stories daily across Canada and the United States.132 Messenger boys employed by the newspapers hurried in and out of the courtroom, sending the stories off to waiting editors in order to

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meet press deadlines.133 In short, the Eastview trial was a sensation. And no wonder. At a time when even physicians were hesitant to discuss birth control, a trial centred on that very issue was bound to rivet public attention. Ironically, in an attempt by the crown to suppress the distribution of information relating to contraception, at least in the circumstances of Palmer’s work, the reporting of the trial itself meant that the details contained in the newspaper reports provided a comprehensive course of instruction in birth-control methods. “The magistrate’s table was soon littered with [boxes containing birth-control products],” wrote Claris Silcox, the main witness for the defence, after the trial. “It seemed for a time as if the court might become a Birth Control Clinic itself, if not indeed a veritable Birth Control Museum. In the course of the discussion, even the experts picked up new and unexpected information!”134 In addition to publicity in aid of Kaufman’s cause about which Wegenast had written to Beament, the wide distribution of birth-control information during the long and well-reported trial must certainly have been part of Kaufman’s strategy. If so, he was surely successful: newspapers in dozens of cities and towns across the country and the United States detailed the testimony day-by-day. A small sample list illustrates the variety in size and location: major and middle-sized cities in Canada including Montreal, Vancouver, Halifax, Toronto, Winnipeg, and Saskatoon; small Canadian towns like Lindsay and Owen Sound, Ontario; substantial American centres like Chicago and regional cities and towns like Des Moines, Iowa, Louisville, Kentucky, and Helena, Montana.135 In addition to demonstrating the popularity of the trial as entertainment, this range of newspapers shows the reach its ideas had. Most newspapers relied on wire services such as the Canadian Press, the Associated Press, and United Press which reported the details of the trial and decision as news.136 However, there was also supportive editorial comment. The Winnipeg Tribune wrote that “the verdict in the Eastview case will be approved by the great majority of intelligent people,”137 and the Saskatoon Star-Phoenix commented that “in the present matter, there are cases where the dissemination of such knowledge may be necessary to preserve the health of women or to create conditions which will permit children to grow up in reasonably healthy surroundings. To prevent the extension of this knowledge might be to work a grave injustice on some sections of the community.”138

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Conversely, articles in Roman Catholic and francophone publications were predictably antagonistic. “No court in the world can make good and right and permissible what is evil and forbidden by God,” declared the Catholic Record,139 while another suggested that “this idiot of a judge Clayton ought to be flayed.”140 The attitude of religious groups to the issues raised in the trial is reflected in the evidence which their representatives gave. Although there were individual clerics within each group who objected, such as Anglican Canon Arthur Whalley, who testified on behalf of the crown, the religious response, other than that of the Roman Catholic Church, was strongly in favour of permitting birth control in at least some circumstances. Women’s groups, long supporters of the birth-control cause, were equally enthusiastic about the outcome of the trial. In fact, Beament consulted the National Council of Women for suggestions of possible witnesses on the public-good issue.141 The story of A.R. Kaufman, the Parents’ Information Bureau, and the Eastview trial, including the role of the esc , provides the foundation for an examination of numerous issues related to eugenics and law in Ontario. In order to evaluate how Kaufman used the law to obtain his goals, it is helpful to begin by examining the differences in approach to the promotion of eugenic solutions between Kaufman and the esc . Given how closely Kaufman and the esc were connected, one might not expect these differences at all. After all, the esc was an organization created to promote eugenics in Canada. Kaufman himself was a founding member of the esc and a self-proclaimed eugenicist. The esc participated actively in the campaign for the adoption of sterilization legislation in the province and, through the voice of Dr Hutton in particular, provided evidence about eugenics during the trial. Yet, notwithstanding these connections, Kaufman did not play a significant role in the operations of the esc apart from lending his name (and presumably his wallet) to the cause and taking care of the legalities related to its establishment.142 While this may simply be a gap in archival records, it may also mean that Kaufman did not actually participate closely in the activities of the esc . What might explain this apparent anomaly? Apart from Kaufman’s own inclination to act independently,143 he and the esc did not share the same vision about how to implement eugenic policies, or even what exactly those policies were. One example is birth control,

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a matter that was at the heart of Kaufman’s work. Promotion of birth control was not among the esc ’s goals, although securing sterilization legislation and segregation of feeble-minded individuals were given priority as the first two of the six listed in its “Aims and Objects” pamphlet.144 This is not to say that the esc did not support birth control. Dr Hutton’s important testimony at the trial shows that it did. Yet, based on the pamphlet, it is clear that birth control was not a chief concern of the organization. Another example is the esc ’s focus on securing “legislation for the sterilization of those persons who are feeble-minded and for those persons who are known to carry physical or mental hereditary traits,”145 in contrast to Kaufman’s position that sterilization decisions should rest with the individual. Neither the list of objectives nor the narrative in the esc pamphlet said anything about encouraging individuals to arrange for their own sterilization, the approach that Kaufman and the pib had adopted. Of course, it was possible for both approaches to sterilization to co-exist. Moreover, Kaufman’s emphasis on individual decisions was helpful for accomplishing the overall goals that he and the esc shared. This is because it meant a potential increase in the number of individuals who might be sterilized, since surgeries would not be limited to those in institutions, nor to those who had been approved by a medical board on the basis of being feeble-minded. As with birth control, although some individuals considered eugenically fit might themselves arrange to undergo the procedure, the practice followed by the pib would allow physicians and organizations to encourage individuals they believed to be good candidates for sterilization to seek it. Another example of an instance where Kaufman’s approach differed from the esc , or at least from that of its leader, Dr Hutton, is with respect to the former’s strong views about the need for consent to sterilization. In a pamphlet, “A Brief for the Sterilization of the Feeble-Minded,” prepared for a speech at the 1936 Annual Conference of Ontario Mayors, Hutton addressed the issue under the heading “Should Sterilization be Voluntary?” After noting that the Brock Committee in the United Kingdom, which examined the same question, had strongly recommended voluntary sterilization, he pointed out that the Brock Report had added the words: “if public opinion is favourable to sterilization, compulsion is unnecessary.” Voluntary sterilization seems to have been Hutton’s preferred course,

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since he also wrote that, while “over 10,000 patients have been sterilized under the compulsory laws of the State of California … the compulsory provisions of the California law are rarely enforced for ‘it has been the custom to get the written consent of the patient’s nearest relative or guardian and rarely is the operation carried out against their wishes.’”146 However, these remarks suggest that he did not object to such laws as a fallback when consent was not provided. This approach was in contrast to the care that the pib took in obtaining formal written consent to sterilization from both husband and wife. More generally, in his pursuit of private sterilization in activities undertaken through the pib , Kaufman’s approach differed not only from that of Hutton and the esc but also from that of others who sought ways to force sterilization upon (and interfere with the individual rights of) certain “types” of individuals. A typical (although not universal) aspect of sterilization legislation, such as that of Alberta, was that in certain cases it authorized the surgeries even without the consent of the individual being sterilized. Kaufman’s insistence on consent might have been based on his view that individuals should make decisions with a thorough understanding of the implications. Requiring such consent, along with his insight that having the pib workers give out birth-control information which had not been requested would weaken the public-good defence, shows that Kaufman anticipated the possibility of legal challenges and prepared his response in advance. It also shows that his approach to the public good was more nuanced than that of many other eugenicists. He was sensitive to the political need to limit as much as necessary the interference with individual rights that would result from a public-good argument in order for that concept to be accepted. The existence of these varied approaches prompts an important conclusion: there was not just one way to enact eugenics, even for those who identified as eugenicists. There is a flipside to this point, as well. While eugenics may indeed have encompassed many practices, these practices were not always explicitly identified as eugenics. A eugenic tone can definitely be read into certain comments such as the one contained in the Toronto feature magazine Saturday Night which stated that “if the information available to [the rich and middle classes of society] is to be denied to those whose economic position is often unfavourable to rearing large families, then there is a danger that both the poorer classes and society as a whole [emphasis added] must pay the price of this discrimination.”147 However, many

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examples of supportive editorial commentary about the trial from outside the province of Ontario show that such views were not necessarily based on explicit enthusiasm for eugenics. Some applauded the fact that an important issue had been aired and clarified,148 while others approved of a result that made clear that Roman Catholic teaching on contraception was not the law of the land.149 This, like the Eastview trial itself, which is much better known for its connection to birth control than to eugenics, illustrates the important point that eugenics can be found in ideas and activities that do not initially seem to be eugenic. One striking aspect of the Eastview story is the way in which Kaufman recognized that he could use the law to advance his own program and then set about doing so. He was a man of action, with the wealth to support his goals. Because he had the money to do what he believed needed to be done, his work could be effective right from the start. No matter how Palmer’s activities came to the attention of the authorities, and whether or not Kaufman provoked her arrest in order to test the public-good provision, after her arrest, he did everything he could to make sure that the issues were aired as thoroughly as possible to elicit maximum public interest in and support for his cause.150 Either way, Kaufman fully exploited the advocacy opportunity that the trial provided. His views – not only on the significance of birth control but also on the value of eugenics and the malign influence of the Roman Catholic Church – were thoroughly aired during the trial and publicized far and wide. Even if Palmer had been found guilty, these genies were now out of their proverbial bottles and, thanks to the comprehensiveness of the defence mounted by Wegenast, people across Canada and beyond had received a thorough education not just in the practicalities of birth control but on these related social (including eugenic) issues as well. It is hard to imagine that these had not been among Kaufman’s prime goals from the outset – which, ironically, were achieved because of the crown’s position that distribution of birth-control information was not in the public good. Kaufman’s role in the Eastview trial invites comparison with Marie Stopes (15 October 1880–2 October 1958) and Margaret Sanger (14 September 1879–6 September 1966), two other individuals who played important parts in the related histories of birth control and eugenics. Both also fought legal battles in connection with their efforts. In 1927 Stopes, who founded the first birth-control clinic in

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Britain, successfully sued one Dr Halliday Sutherland, an opponent of her work, for libel, based on his reference to her as a “doctor of German philosophy,” a comment that she believed undermined her credibility by pointing out she was not a physician and exploiting anti-German sentiment. Margaret Sanger, credited with coining the phrase “birth control,” opened the first birth-control clinic in the United States in 1916 in New York City. She was almost immediately arrested and jailed for distributing contraceptive material and convicted in a trial held in 1917. Although Sanger’s conviction was upheld on appeal, Judge Frederick E. Crane made a ruling in a related decision which allowed physicians to prescribe contraception. Kaufman, who operated at one step removed from the risk of being jailed himself, personally knew of the efforts of both women, and they both sent supportive messages during the Eastview trial.151 Beyond revealing another way in which a particular individual used the law to promote eugenic solutions, this story also provides valuable insight into the complexities of the relationship between eugenics and birth control. While Kaufman embarked on his birth-control crusade primarily as a way of implementing his eugenic ideas, his pronouncements that birth control would lead to better maternal and family health suggest that his goals also encompassed issues of public health. Moreover, eugenics was only one of numerous categories through which Wegenast sought to demonstrate that Palmer’s birth-control activities were in the public good, an obvious indication that the defence did not view birth control as being synonymous with eugenics. In addition, curious scrapbooks from the trial suggest that the defence team also saw eugenics and birth control as separate matters. The illustration on the next page shows two men, one named “Sterilization” and one “Birth Control,” with the typewritten caption “Maybe we can get together and we’ll both win.”152 At the same time, however, this evidence makes it easy to see why Henry Fairchild claimed the “two great movements” were “almost indistinguishable.” Another interesting aspect of the Kaufman story is its illustration of how well information and knowledge about birth control and eugenics was circulated internationally. Kaufman himself was very knowledgeable about what was going on with respect to birth control elsewhere, testifying at the trial that he had learned the birthcontrol business through “correspondence with leading authorities in the world.”153 The trial and other files contained publications

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Sterilization and Birth Control say, “Maybe we can get together and we’ll both win.” (University of Waterloo Library, Special Collections and Archives, A.R. Kaufman Fonds, ga 173–4–23–01.)

from other eugenic or birth-control organizations such as Paul Popenoe’s Human Betterment Foundation in California,154 and correspondence with eugenicists in addition to Stopes and Sanger in other countries,155 such as Clarence Gamble in the United States.156 Evaluating the place of the issue of consent in this story opens up a number of analytical doors. As noted earlier, the Alberta sterilization law, which provided a typical example of eugenic legislation, was amended nine years after it was first passed to remove the requirement for consent of the individual being sterilized. Yet, at least as far as the activities of the pib were concerned, Kaufman believed strongly, perhaps for practical rather than ethical reasons, in the need for individuals and their spouses to provide full consent to their sterilization operations. The information and forms that the pib provided to individuals who expressed interest in having such

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surgery not only set out its implications in detail but also required both husband and wife to provide their consent to the other’s surgery.157 These mirror consents, which meant that any woman would have to provide consent not only for her own surgery but also for that of her husband, provided women with agency in such matters. This fact supports the view of Kaufman as being driven, at least in some measure, by the motive of helping women participate as equals in reproductive decisions for themselves and their families, even those physically affecting their husbands, along with the eugenic goal of reducing the birth rate among some. Kaufman’s requirement for any consent at all is difficult to square with the concept of eugenics as something done, in Galton’s terms, by “an agency under social control” (unless the phrase can be stretched to include the pib as such an agency) or as a movement in which steps to improve the race might be taken without the consent of the individual who was affected. Of course, one argument is that the consent obtained by the pib was not freely given since the individuals might very well have been influenced by the person requesting it.158 Even though there is ambiguity in Kaufman’s claim that the pib workers did not call on women unless they were wanted, at the same time Kaufman recognized that coerced consent would weaken his case for the public good, since “the public” would be far less likely to accept the “good” that came from his work if people had been tricked or talked into surgery or using birth control. Thus, through assessing Kaufman’s insistence on obtaining consent, we see not only the complexity of Kaufman’s own motivation but also another example of the ways in which eugenics encompassed many different practices. The mutual consents on which Kaufman insisted as well as the role of the women as witnesses at the trial also provides the opportunity to examine more closely the gender divide and its connection to eugenics. Certainly, most of the movement’s leaders, like Kaufman (and, of course, Galton in Britain and Davenport and Laughlin in the United States), were male, although Helen MacMurchy in Canada provides a counter-example. By contrast, the workers Kaufman employed to carry out his program were women, as were the people whom they visited. Later in life, Palmer saw this as something sinister (doing the “dirty work” for the men, was how she described her role in a 1978 newspaper interview).159 Yet Kaufman’s employment of women and focus on women in the matter of birth control both made practical sense: he realized that women would connect better

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with women in discussions about intimate matters, and that women were more amenable to the birth-control message than were their husbands, who feared they would be (or would feel) emasculated by the surgery even though the pib material made clear that no such thing would occur. In fact, the pib often tried to interest husbands in vasectomies before discussing female sterilization with their wives. Kaufman also expressed the view that, since women were the ones to take the risks related to pregnancy and childbirth, they ought to be the ones to make the decisions related to birth control. Of course, while Kaufman legitimately believed that the publicgood defence would apply, it was Palmer and the other workers, not Kaufman himself, who took the risk of going to jail. In Palmer’s case, it was a risk she took willingly. Her contemporaneous comments suggest that she was proud of her role and was engaging in the pib work for her own reasons. As she later recalled, when a Catholic priest told her she could go to jail for what she was doing in Eastview, she had responded: “Good. Then I will be with Margaret Sanger and Marie Stopes.”160 The testimony at the trial provided by the women whom Palmer visited was part of the legal strategy each side employed to persuade the judge. Their cross-examination by Wegenast was not easy or comfortable since it required each of them – young, poor, uneducated, many speaking through an interpreter to a courtroom full of male officials, contradicting their priests and often their husbands – to stand up in a public forum and express her desire to plan her own family along with her belief that she had a right to do so. Seen this way, their evidence is a moving testament to their bravery and their confidence in their right to control their own fertility. In their quest for information about birth control, they did not see themselves as victims of eugenic motives but rather as independent actors seeking to control their own fates. Ironically, in doing so, these women became the “public” in the judge’s determination of the public good. Another theme that runs through the Kaufman story is the role played by religion in eugenics in Ontario. Kaufman’s religious views were an important factor in his campaign for birth control. He has been described as an “aggressive anti-Catholic” based on evidence of his use of questionable statistics about the percentages of Roman Catholics in mental institutions (44.5 per cent) and his assertion that the Roman Catholic Church continued to castrate men well into the twentieth century in order to produce the castrato voice for its sacred

Originally, this image had an upper caption which read: “In which the social worker attends Parliament to observe the members’ attitude to the separate school tax situation so she will be prepared for the attitude of the different representatives when a bill for birth control comes up.” While confusing on its own, when placed in the context of the drawing of a boy with his finger in the dyke and a lower caption which read, “Mr Kaufman alone tackles the job of stopping the leak in the Social Welfare Work, that will yet flood the country in all sorts of horrors,” the scrapbook page hints at the link between Kaufman’s eugenic views and his anti-Catholicism and the role of his promotion of birth control in preventing “all sorts of horrors.” (University of Waterloo Library, Special Collections and Archives, Kaufman Family: 2013 accrual, ga 260–1–10–025.)

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music.161 This characteristic is also illustrated in the mocking collages contained in scrapbooks that Kaufman or perhaps his daughter put together. The illustration on the preceding page hints at a link connecting Roman Catholic attitudes to birth control to a deluge of “all sorts of horrors” which in turned created a social burden that “Mr Kaufman alone,” represented by a Hans Brinker-style boy with his finger plugging a hole in a dyke, “tackles the job of stopping.”162 Keeping in mind the anti-Roman Catholic prejudice in this period, in some incarnations of the eugenics movement, the “race” that eugenicists wished to protect was educated, white, Anglo-Saxon, and Protestant – in other words, individuals much like Kaufman himself, Godfrey, or the royal commissioners.163 Roman Catholics, arriving in Canada often as poor and, in some cases, non-English-speaking immigrants, were easy targets for eugenicists. Furthermore, the Roman Catholic Church itself was against those aspects of eugenics that interfered artificially with human reproduction. One question that arises from the Kaufman story is why would he, after several years of operating successfully and quietly through the Parents’ Information Bureau, decide to undertake operations in Eastview when there were many other locations, the choice of which would not have carried with it the risk of such opposition from the Roman Catholic Church or threatened the freedom of one of his workers as well as the future of his own operations, nor required the expenditure of so much money? One answer is simply that he was spoiling for a fight with an institution he so vehemently disliked and Eastview, with its English-language court administration combined with a French-speaking Roman Catholic population, was the perfect location. Official pronouncements coupled with (sometimes vitriolic) arguments against eugenics from its local representatives turned the church into a bulwark against which Kaufman and others could do battle. In this case, the church’s own anti-birth-control stance made it vulnerable to Kaufman’s vigorous attack, which, in turn, ironically created the very conditions that encouraged some of its members to depart from its teachings. Moreover, a fight against the Roman Catholic Church would not have been unappealing to Orange Ontario and its courts. Again, this shows the importance of understanding eugenics locally. Without appreciating Eastview’s Roman Catholic and French Canadian demographics as well as Kaufman’s own antagonism to the Roman Catholic Church, one risks understanding his challenge to the Criminal Code in simplistic terms.

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The history of Eastview trial reveals an aspect of eugenics that can easily be missed when law is not part of the analysis – the potential tension between the law of the land and canon law, the set of rules and procedures set out for its followers by particular religious authorities. As described above, one of the crown’s main arguments was that birth control was against Roman Catholic canon law and that, since almost the entire population of Eastview was Roman Catholic, it could not be in the public good to promote it since this would mean knowingly going against the precepts of the religion that was practised by almost everyone in that particular community. This argument effectively meant that, at least within predominantly Roman Catholic communities, Roman Catholic canon law should weigh heavily, if not in fact be controlling, in determining the public good and that, because of the religious character of Eastview, the judge should find Palmer guilty. Clayton indicated during Wegenast’s argument that he had no intention of relying on or applying canon law in this way. He did not address this issue directly in his decision, noting only that “if their religion forbids [this particular “scientific truth and knowledge”] and they accept the tenets of their religion, they will not use the knowledge.”164 While Clayton did not take this argument about the primacy of canon law very seriously, both Mercier and, in response, Wegenast did – the issue consumed many pages of the transcripts of the trial. The Kaufman story is also another reminder that eugenics was seen as a scientific solution to a set of social concerns and problems that had been exacerbated by the Depression. First, Kaufman incorporated the pib for the stated purpose of “making available to parents certain education and scientific information and services.”165 Next, Wegenast invoked Galileo and science in his submissions during the trial.166 Finally, the appeal of science attracted Magistrate Clayton, who based his decision, in part, on what he saw as the value of “giving scientific truth and knowledge to the people.”167 This case study has shown how the concept of eugenics was used in the Eastview trial, both as an element in the statutory public-good defence mounted by Wegenast and as reflected in Clayton’s decision. Although a relatively minor part of the comprehensive defence strategy as a whole, its inclusion has added to our ability to assess how the influence of the eugenics movement seeped into legal thinking in the realm of courts, at least in this one instance. If the trial had taken

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place thirty years earlier, before Galton’s ideas had gained traction in Ontario, it is unlikely that eugenic arguments would have been included. This could well have affected the outcome since the magistrate’s decision adopted a eugenic tone, even though he did not label his reasoning “eugenic.” This story has also helped illuminate more about the concepts of eugenics and the “public good” themselves. As the Introduction described, the history of eugenics is characterized by a lack of consensus on what, exactly, “eugenics” was. Wegenast casually reflected this point during his argument when he suggested that eugenics might be considered a branch of economics, preventive medicine, or sociology. “Call it eugenics or whatever else you like,” he finally said, about the importance of the number and type of people born in the world.168 As we have seen, even ideas accepted under the umbrella of eugenics could vary. Thus, eugenics for Kaufman did not mean segregation, which he thought was an undue burden on taxpayers as well as unnecessary when sterilization was an option.169 However, sterilization for Kaufman did not mean state sterilization of individuals without their consent. By contrast, Hutton, testifying at the trial on behalf of the esc , was in favour of segregation and was not opposed to sterilization without consent if necessary. (A year later, in its proposal to the Magone Commission, the esc addressed only physician liability for private sterilizations.) Furthermore, even when Kaufman and the esc promoted the same eugenic solution (sterilization), they intended different methods of implementing it. As the details of the trial show, beyond the wording of the statutory defence that ultimately saved Dorothea Palmer from conviction, the notion of the public good also lay at the heart of the eugenic arguments about birth control. For Kaufman, the public good was served by giving individuals the right to educate themselves about birth control and make their own decisions about using it. The rich archival material relating to Kaufman and the pib has also provided an opportunity to reflect at length on why Kaufman and others did what they did. It plainly reveals that Kaufman’s motives were complex. He certainly had eugenic aims, but these co-existed at least to some degree with concern for the health and welfare of women and infants born into poverty. His insistence on the mutual-release forms, while helpful in fending off legal challenges, also suggests that he wanted both spouses to be full participants in the decision that one of them would be sterilized, especially since such

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mutual consents were not legally necessary. Of course, this may have reflected a practical rather than an ethical stance. He knew very well that half a loaf was better than none and that he might get further if he promoted more limited inference with individual rights even if this reduced the benefit to the public good. Dorothea Palmer was motivated by something different again. She characterized her role in feminist terms, stating that she engaged in birth-control work because she believed that women had the right to this information and the right to control decisions about reproduction. For her, birth control, while providing the same solution as Kaufman focused on, addressed a different problem from the one that preoccupied him. For F.W. Wegenast, in addition to any eugenic beliefs that he may have held, the operation of subsection 207(c) provided an interesting legal issue for which a eugenic argument just happened to be part of the answer. Finally, the story of the Eastview trial offers insight into one of the local aspects of this study – the trajectory of eugenics in Ontario. In the first two chapters, the question as to whether either Godfrey’s bills or royal commission recommendations had any lasting eugenic influence is difficult to answer conclusively, given that neither the bills nor the eugenic recommendations of any of the three commissions became law. By contrast, it is easy to see the role eugenics played in the Eastview trial and to assess this legacy.

Conclusion

This book has taken an original approach to the study of the history of eugenics – a close examination of how a variety of actors attempted to use law in many forms to implement eugenic solutions to social problems in Ontario in the period from 1910 to 1938. This examination has led through the territory of numerous unsuccessful attempts to pass legislation, the work of royal commissions, and the nitty-gritty details of a criminal trial. The results answer the historical questions that underpinned this work. They delineate the eugenic ideas about which Herbert Bruce and others were so enthusiastic and how these played out in Ontario in this period. They have also led to important insights into the history of eugenics using a problem/solution dialectic to consider the ways in which the law was used (successfully or not) to promote, and in some cases deflect, eugenic solutions. This has produced a rich story – first, with respect to the history of eugenics in Ontario where previously unexplored particulars of activity, events, and actors have emerged, and, second, showing how debates about the “public good” helped shape not only the discussion but the outcome of that story. Ultimately, the eugenicists’ interpretation of the public good was outweighed by the importance of individual freedom, a conclusion supported by religious objections and doubts about the science of eugenics. It was for these reasons combined that Ontario did not join some of its provincial counterparts in passing eugenic laws in this period. Centred on illustrating the interaction between eugenics and law, each of the three case studies is based on a different legal process. Chapter 2 told the story of Forbes Godfrey and the eight private member’s bills he introduced from 1910 to 1921. Practically speaking,

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government approval is crucial for private members’ bills. In the case of Godfrey’s first sterilization bill, not only was this approval missing, but his measure attracted violent public criticism from no less a personage than then-Premier James Whitney because of the way it would have interfered with individual liberty. In later cases, Godfrey garnered theoretical support from important government-side members, even from Premier Whitney, as well some cabinet ministers. Yet this support was undercut in practice by concerns expressed by some of the very same government members about lack of readiness on the part of the public to accept these measures. Ultimately, all eight bills failed to pass into law. Chapter 3 told the story of three royal commissions. These were the 1917 Royal Commission on the Care and Control of the Mentally Defective and Feeble-Minded, led by sole commissioner Justice Frank Hodgins, which reported in 1919; the 1929 Royal Commission on Public Welfare, led by newspaperman Philip Dansken Ross, which reported in 1930; and the 1938 Royal Commission on the Operation of the Mental Hospitals Act, led by provincial lawyer Clifford Magone, which reported in the same year. The very name of the Hodgins Commission proclaimed it to be a matter of great interest to eugenicists as well as others, so the eugenic tone of certain of the solutions it recommended (segregation and marriage restrictions) was not a surprise. By contrast, the other two royal commissions each used an issue focused on one type of problem (the management of public welfare in one case and the operation of mental hospitals in the other) to raise and address a different one, procreation by the so-called unfit. Both these royal commissions then recommended solutions with a very definite eugenic character – sterilization. As was the case with Godfrey’s bills, the responses to their recommendations reflected concerns about whether the cost of interference with personal liberty was acceptable in order to address the perceived problem of growing numbers of the so-called feeble-minded, and whether the science of eugenics was certain enough to produce the results claimed for it. Ultimately, these components of all three reports were ignored by the governments of their day although certain others were adopted. Despite the fact that no legislation authorizing segregation, sterilization, or pre-marital medical certificates ever resulted from the work of these royal commissions, their collective story revealed that interest in eugenic solutions to social problems was very much alive during the decades they spanned. It

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also revealed that, despite its disclaimers, the provincial government appeared to come very close to enacting sterilization legislation in the 1930s. Chapter 4 told the story of A.R. Kaufman, his Parents’ Information Bureau, and the Eastview birth-control trial which took place over the fall, winter, and spring months of 1936–37. Kaufman also focused on the problem of procreation by the “unfit” and created the pib to promote individual sterilization and birth control. He hired F.W. Wegenast, a noted lawyer, to defend Palmer and instructed him to make all possible arguments to secure an acquittal based on the statutory defence that Palmer’s actions served the “public good.” She was ultimately acquitted on the basis of this defence. Analyzing how Kaufman went about his work alongside the approach taken by the Eugenics Society of Canada illustrates the differences between their interpretations of and plans for implementing eugenic solutions, even as contrasted to the esc ’s recommendations to the Magone Commission a year later. This provides an example of the flexibility of eugenic ideas and the range of ways they were conceived by actors who explicitly identified themselves with the movement. In terms of methodology, in the Eastview case study the problem/ solution dialectic was particularly helpful in separating the solution from the reasons it was proposed. By looking for solutions advocated on the basis of “human heredity” and the “future of the race,” we can more reliably determine whether an idea is based on eugenic principles, rather than or in addition to others such as those related to public health. Of course, people (and the history they make) are complex and their motivations can rarely be neatly compartmentalized. It was thus quite possible for Kaufman to have supported a particular solution, such as making birth-control information widely available, for reasons related to both eugenics and public health.1 The stories of Godfrey, the three royal commissions, and Kaufman together show sustained effort to implement eugenic ideas in one decade after another over a thirty-year period. Notwithstanding the variety of people and tactics involved, there is one notable recurring theme: the government’s failure to act. This is certainly easy to see in the first two stories in particular – since none of the governments in power allowed Godfrey’s bills to go forward or implemented the eugenic solutions recommended by either the Ross or Magone reports, or, in the case of the Hodgins’ Commission, any of the recommendations at all (apart from those related to venereal disease).

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At first glance, it may seem that the Eastview trial is outside this analysis but it, too, fits this pattern (although the government in that story was the federal rather than the Ontario government). The federal government initially refused to change the Criminal Code by removing the provisions related to birth control when it was asked to do so by the women who opened the Hamilton Birth Control Clinic. Even when the Eastview trial judge decided that Palmer’s activities related to birth control served the public good and that decision was upheld by the Ontario Court of Appeal, the federal government did nothing to amend or repeal the provisions – they were simply left on the books for another thirty years, but unenforced. What might explain this consistent inaction? As the previous chapters show, each time there were logical reasons to justify the government’s failure – elections, changes of governments or leaders, cost factors, major international upheavals, and so on. Taken together, however, these case studies show great reluctance on the part of individual governments – which over the period in question meant governments of a variety of political stripes – to legislate eugenic solutions to a set of serious social problems. The solution of sterilization was the most dramatic case, but all Ontario governments in this period – Conservative, United Farmers-Labour, and Liberal – chose to let slip one opportunity after another to pass eugenic sterilization, segregation, or marriage laws. One significant explanation has emerged – the priority given to individual rights over the public good as expounded by the proponents of eugenic solutions. As we see in each case, no Ontario government in this period was prepared to accept the principle that the public good that eugenicists believed would flow from taking the steps urged was worth the interference with individual rights. From Premier Whitney to Commissioner Hodgins to labour leader James Gunn, many expressed worries and objections. In some ways, this is curious since in this same period in Ontario all kinds of social-policy legislation was passed which interfered directly with individual liberty including mandatory smallpox vaccination (1914), temperance (1916), mandatory reporting of venereal disease as proposed by Hodgins’s interim reports (1917), and pasteurization of milk (1937). Nor were the various governments that took these steps afraid of courting controversy with their voters, since the measures concerned were all highly contentious. Yet the connection to public health was not enough to persuade governments that there would be support

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for eugenic laws. As Premier Drury pointed out, the time was “not right,” “compulsion would be unthinkable,” and “innocent” people would be harmed. For some reason, the enactments listed above were perceived differently from courses of action that more clearly reflected eugenic ideology. One explanation for why certain measures gained broader support as matters of public health is because they were also good for individual health. Being protected from alcohol abuse, smallpox, venereal disease, and bad milk could each be defended as an individual benefit as well as a public good. This was a harder argument to make when the interference was surgery preventing someone from having children (unless Bruce’s argument about the “merciful” nature of sterilization was accepted). Not only was “the good of the race” an abstract concept, but preventing someone from having children interfered with those rights profoundly and permanently. The Kaufman episode provides a slightly different gloss on the debate about public good versus individual rights. His story shows how allowing people to exercise the individual right to use birth control actually served the public good as he understood it. Moreover, he was successful because he recognized that arguments for the dramatic interventions in people’s lives that would occur through sterilization laws would not likely prevail. He gambled that a more moderate stance, one that would allow people to have access to the knowledge necessary to make individual choices about birth control, would succeed. His gamble paid off. Unlike the others who supported marriage and sterilization laws, Kaufman achieved his ends. Although interference with individual freedom emerges as the main reason the eugenicists failed to convince governments about the value of their solutions for the public good, it was not the only reason these solutions were not implemented. There was also opposition from the Roman Catholic Church. There is no doubt that the importance of attracting the Roman Catholic vote made politicians wary of enactments that directly contradicted that church’s teachings. However, it appears that Roman Catholic opposition to eugenic measures, while it indeed existed, was not the predominant concern. We also saw doubts expressed by the Toronto Daily Star and others about whether enough was known about the science of eugenics to justify taking these steps. The Ontario outcome, of course, is part of the larger Canadian story. Given the distribution of powers between the federal

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government and the provinces, with most of the matters related to eugenics, such as hospitals, medical care, and education, under provincial jurisdiction, the story of eugenics in Canada is by definition primarily the story of eugenics in its provinces. At the same time, the similarities, differences, and overlap between these provincial stories are illuminating. One way to understand better the Ontario case is to compare it to Alberta, already the touchstone of the study of eugenics in Canada. Quite unexpectedly, this reveals an under-appreciated aspect of that story and begins bridging the gap between the histories of eugenics in these two provinces. Beneath the simple declaration that “Alberta passed sterilization legislation in 1928” lies a complex chronicle. As historian Timothy Christian documents, a sterilization bill was actually first introduced in the Alberta legislature in 1927.2 Perhaps since the government had not even decided what form the legislation should take, the bill died on the order paper. Moreover, the fight to pass the bill the next year was extremely bitter – its introduction resulted in a “raging controversy,”3 legislative debates were “stormy,”4 and the press reported that never before had a “measure aroused deeper resentment.”5 The controversy generated by these bills reminds us of the objections to Godfrey’s efforts. Rather than being the opposite case, Ontario was in fact more like Alberta than has been recognized until now. Christian also points out that, astonishingly, the Alberta premier responded by saying that while the measure would be passed it would “practically be a dead letter in the statute books, in that it will never be acted upon.”6 This assurance turned out to be completely hollow – as historian Erika Dyck tells us, Alberta’s sterilization program was administered robustly7 – but it is a reminder that even though a law exists “on the books” it should not be an automatic conclusion that it was enforced, a result also noted with respect to the birth-control elements of section 207 of the Criminal Code after the Eastview trial. The question of what led to the legislation in Alberta has been examined carefully. The 2004 work by Jana Grekul, Harvey Krahn, and Dave Odynak that parses the Alberta case provides a very helpful foil against which to consider Ontario.8 They identify a number of factors, discussed below, which they argue resulted in the vigorous eugenics program in Alberta. Strikingly, many of these were not present in Ontario. Considering their absence is another way of exploring why Ontario did not legislate eugenic solutions.

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To begin with, the United Farmers Party, in power at the time the legislation was passed, had an extremely active women’s wing, the United Farm Women of Alberta, which Timothy Christian and Angus McLaren argue was mainly responsible for aggressively pushing the eugenic platform.9 No comparable political movement existed in Ontario. Women’s groups in Ontario were very active on a range of social issues, but perhaps precisely because there were so many organizations and issues that captured their attention, they did not take up the eugenics cause with the same energy or single-minded focus that these scholars suggest was the case for their counterparts in Alberta. A related suggestion was that the push to legislate sterilization benefited from the work of charismatic leadership from individuals like the indefatigable Emily Murphy, the determined provincial magistrate who also took up the issue of the appointment of women to the Senate of Canada, a matter that ended up as a court case appealed all the way to the Privy Council. Ontario also had wellknown supporters of eugenics. Three names noted in this narrative were all individuals with national profiles who devoted considerable effort to the cause of eugenics: Dr Helen MacMurchy, Dr C.K. Clarke, and Dr Clarence Hincks. Yet, while all of them were very active in eugenic causes at particular times, for a variety of reasons, none of them provided a voice strongly identified with eugenics at any moment when it might have been most effective to sway Ontario public opinion sufficiently to influence government. Of the three, Helen MacMurchy has been called the “best-known” advocate for sterilization rather than segregation in the country.10 However, following what she perhaps saw as the snub of not being appointed to the Hodgins Commission, MacMurchy abandoned the provincial scene in Toronto and the Provincial Association for the Care of the Feeble-Minded (which fell apart shortly afterwards) for a job with the Department of Health in Ottawa. Although she spoke and wrote extensively in support of eugenics and related issues in the first two decades of the twentieth century and participated in the proceedings of the Hodgins Commission, her name is missing from records relating to Godfrey’s bills or the Ross or Magone commissions. Similarly, although C.K. Clarke was prominent in connection with Canadian eugenics, particularly for his focus on lobbying the federal government to limit immigration, his death in 1924 came relatively

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early in the Ontario story. Furthermore, as historian Ian Dowbiggin describes, at one point he withdrew from the public debate about immigration reform, his blunt manner having cost him support from friends and allies.11 The third name, Clarence Hincks, a generation younger and a protégé of Clarke, was also an important supporter of eugenics: he is credited with the 1918 founding of the Canadian National Committee for Mental Hygiene, and he also played a role in the Alberta process which led to its 1928 sterilization law. Over his career, he vacillated about whether sterilization laws should be implemented and, by the end of the Second World War, had redirected most of his energies to the mental-health movement and the renamed successor to the cncmh , the Canadian Mental Health Association.12 In the end, Ontario eugenics lacked the kind of charismatic bulldog that Murphy proved to be in Alberta. Of course, Murphy actually had an easier time in Alberta than the Ontario proponents of eugenics. It was certainly a shorter fight, ending with legislation in 1928, and thus before the Ross and Magone royal commissions in Ontario, the founding of the Eugenics Society of Canada and the airing of its radio talks, and the Eastview trial. Alberta’s unique history and culture, and in particular the openness to social experimentation, was also relevant. Specifically, in 1935, seven years after the sterilization bill became law, Alberta elected the first Social Credit government in Canada, one that held power until 1971. Led by William Aberhart, a preacher known as “Bible Bill,” this government adhered to a philosophy that combined evangelical Christianity with an unusual monetary policy, the goal of which was to provide residents of the province with “social credit” in the form “prosperity certificates.” Perhaps the enthusiasm for eugenic solutions represented by the sterilization legislation (albeit introduced by a different political party) reflected this same openness to social experimentation. Furthermore, the stability created by a single party holding power for over thirty-five years also helps explain the longevity of its sterilization program. Although it is unusual to think of Ontario in the opposite terms, as described in the preceding chapters, there was considerable political turmoil in the period under discussion (including key moments when royal commission reports were delivered). As a result of election losses, there were three changes of government in Ontario between 1910 and 1938, compared to just one in Alberta.

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Grekul also examines the political influence of the Roman Catholic Church, which, as we have seen, was a force opposing eugenic solutions and birth control in Ontario, and notes that it was weak compared to the strong Protestant presence in Alberta.13 Moreover, she also argues that Alberta political leaders appeared to be highly authoritarian and indifferent to public opinion. This was far from the case in Ontario, where statements about the need to educate the public to the benefits of eugenics and warnings that the public was “not ready” for eugenic laws to be implemented were regular refrains from politicians. Even if these explanations were offered as excuses, such comments indicate that politicians wanted at least to appear to be taking public opinion seriously. Furthermore, the character of immigration to Alberta was more heavily weighted to non-English-speaking countries than was the case for Ontario, which had seen a high proportion of immigration from Great Britain. This likely would have resulted in a populace in Ontario that was more knowledgeable about its role in a parliamentary democracy and perhaps less fearful of criticizing its government’s decisions. Thus, in Alberta, the twin elements (both missing in Ontario) of a public less interested in challenging the government and a government less responsive to public opinion might have resulted in a government more prepared, in the context of the other elements that Grekul has suggested, to implement the solution of eugenic sterilization. One other factor that may have been influential in Alberta and not as relevant in Ontario was the agrarian character of the former. Explanations of eugenics from Galton onwards relied on the common understanding from agriculture that it was possible to breed plants and animals with the objective of strengthening or eliminating certain characteristics. In fact, as historian Gerald O’Brien points out in Framing the Moron, biological metaphors were widely used in contemporary discussions of eugenics.14 This familiarity would have likely made the Alberta population on the whole more familiar with any arguments based on heredity than their more urbanized Ontario counterparts and therefore more amenable to them.15 (Of course, this would not explain the fact that arguments related to the “menace of the feeble-minded” would have been more persuasive in Ontario, and particularly in Toronto, given the greater density of its urban population which made the supposedly unfit component more visible.) Others have also grappled with the question of why sterilization laws were or were not passed in various places and have

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suggested a variety of factors.16 Historians of eugenics such as Randall Hansen and Desmond King, whose examination focused mainly on the United States, as well as Grekul and others who studied sterilization in Alberta, point out that the existence of eugenic marriage laws was often a predictor – although not a guarantee – of whether a jurisdiction would also pass sterilization laws.17 They and historian-physician Philip Reilly note, too, that the majority of coerced sterilizations occurred in institutions and that support from the superintendents of those institutions for such a law was crucial both for its enactment and as well as for its actual application (rather than being ignored).18 In assessing the role of individuals in the successful advancement of eugenic programs, Hansen and King argue as well that a highly decentralized form of government like the U.S. congressional system and its variations at the U.S. state level effectively increases the power of particular individuals such as superintendents, politicians, or lobbyists both in promoting and in preventing (through multiple veto points) certain ideas. By contrast, the Westminster style of parliamentary government, which was adopted in Canada both federally and provincially, tends to “concentrate extensive power in the hands of the prime minister,”19 or, in the case of a province, its premier. In the history of eugenics, the strength and influence of opposition mounted by the Roman Catholic Church,20 which exerted political sway in direct relation to the number of Roman Catholic voters in a particular jurisdiction, is typically regarded as counterbalancing support from other quarters, such as superintendents of institutions. As this study has shown, even support from that direction in the person of Joseph Downey, the superintendent of the Orillia Asylum, was limited to marriage restrictions. If Alberta provides an example of an opposite outcome to Ontario’s experience, Saskatchewan and Manitoba and, beyond Canada’s borders, New Zealand are examples very similar to Ontario. Recent work on these jurisdictions reveals remarkable parallels to Ontario, since their legislatures engaged in heated debates about sterilization but never passed such laws.21 As these studies show, more attention to places such as Ontario where eugenics “failed” will strengthen our ability to analyze the question, not merely of how and why legislation passed in some locations, but the more difficult one of how and why it did not in others. Asking “where did eugenic solutions ‘fail’ and why?” can add as much to the scholarship as a focus on

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where and why they were “successful.” Using “law” as this book has done, and examining all of its various facets, processes, and actors, is a useful way of entering this territory. Once we appreciate failures as well as successes more fully, we will better understand the elasticity and diversity of eugenic ideas and why they endured for so long and with such tenacity across geographies and cultures.22 The analysis here has not, of course, changed the fact that Ontario did not pass any eugenic marriage or sterilization legislation. It does, however, illustrate in a different way the point already made by others that a focus on the existence of specific eugenic laws turns up only part of the history of eugenics, and, as such, is an interpretive lens that historians can profitably move beyond.23 At the same time, it has shown that investigating the ways in which the law was used in connection with eugenic ideas, and in particular the relationship between eugenics, law, and the notion of the public good, can add a significant new dimension to our understanding of that history.

appendix 1

Godfrey’s Sterilization and Marriage Bills

s t e r il iz at io n bi lls #1 – Bill 184, An Act to Prevent Procreation by Confirmed Criminals, Idiots, Imbeciles and Rapists [first reading 25 February 1910] Whereas heredity plays a most important part in the transmission of criminal instincts; Therefore His Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows: 1 The governing body of every institution in which confirmed criminals, idiots, imbeciles and rapists may be confined, in addition to the regular institutional physician shall appoint two skilled surgeons of recognized ability whose duty it shall be in conjunction with the chief physician of the institution to examine such inmates as may be recommended by the chief physician as to their mental and physical condition. 2 If in the judgment of such surgeons procreation by any inmate is not advisable and there is no probability of improving his mental condition, the surgeons may perform such operation on the inmate for the prevention of procreation as they shall deem most safe and effectual. 3 For every consultation as to the condition of an inmate of any such institution the surgeons concerned shall be entitled to a fee of not more than $3, to be payable out of the funds appropriated for the maintenance of the institution.

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#2 – Bill 201, An Act Concerning Operations for the Prevention of Procreation [first reading 22 March 1912] #3 – Bill 142, An Act Concerning Operations for the Prevention of Procreation [first reading 24 February 1913] #4 – Bill 123, An Act Concerning Operations for the Prevention of Procreation” [first reading 20 March 1914] His Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows: 1 The Lieutenant-Governor in Council may appoint for each of the Provincial institutions for the care of the Insane, feeble-minded and epileptic, respectively, two skilled surgeons who, in conjunction with the physician or surgeon in charge, shall examine such persons as are reported to them by the superintendent or the physician or surgeon in charge, to be persons by whom procreation would be inadvisable, such Board shall examine the physical and mental condition of such person and their record and family history so far as the same can be ascertained, and if, in the judgement of the majority of said Board, procreation by any such person would produce children with an inherited tendency to crime, insanity, feeble-mindedness, idiocy or imbecility, and there is no probability that the condition of any such person so examined will improve to such an extent as to render procreation by such person advisable, or if the physical or mental condition of any such person will be substantially improved thereby, then the said Board shall appoint one of its members to perform the operation of vasectomy or oophorectomy as the case may be upon such person. 2 Such operation shall be performed in a safe and humane manner, and the Board making such examination, and the surgeon performing such operation shall receive from the province such compensation for services rendered as the Lieutenant-Governor in Council shall consider reasonable. 3 Except as authorized by this Act, every person who shall be convicted of performing, encouraging, assisting in or other-

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wise promoting the performance of either of the operations described in section 1, for the purpose of destroying the power to procreate the human species, or any person who shall knowingly permit either of such operations to be performed upon such person unless the same be a medical necessity, shall incur a penalty of not more than one thousand dollars, or be liable to be imprisoned in the Provincial Penitentiary for not more than five years, or both, at the discretion of the Judge or Magistrate by whom such person is convicted.

m a r r iag e bi lls #1 – Bill 193, An Act to Amend The Marriage Act [first reading 19 March 1912] His Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows: 1 The Marriage Act is amended by repealing Section 17 and substituting the following therefor: 17. If any minister, clergyman, or other person solemnizes a marriage while either of the parties thereto is under the influence of liquor; or if he has reason to believe that either of said parties is an idiot or insane, he shall incur a penalty of five hundred dollars ($500.00) and shall also, in the discretion of the Court, be liable to imprisonment for any period not exceeding 12 months. 2 The said Act is further amended by inserting the following section immediately after Section 20: 20a. If the person having authority to issue license or certificate has knowledge or reason to believe that either of parties to the intended marriage is an idiot, insane, epileptic or imbecile, he shall require the applicant to produce and leave with him the certificate of duly qualified medical practitioner to the effect that neither of the parties to the intended marriage is idiotic, insane, epileptic or imbecile, and in default of such production of certificate, he shall refuse to issue the license applied

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Appendix 1

for, and if the said person having authority to issue the license or certificate has knowledge or reason to believe that either of the parties to the intended marriage is an idiot, insane, epileptic or imbecile, and does not require the applicant to produce such certificate of a duly qualified practitioner, he shall incur a penalty of five hundred dollars ($500.00) and shall also, in the discretion of the Court, be liable to imprisonment not exceeding 12 months. 3 The said Act is further amended by adding the following paragraph to Form 3. [This is just the third form attached as an appendix to the act. However, the forms are not labelled with numbers. This form is actually labelled Schedule D.] 8. I am not epileptic and the said C.D. is not epileptic, insane or imbecile. 4 Any person making the affidavit, Form 3, shall, if there are misstatements therein, in addition to all other penalties, be liable on summary conviction to a fine of five hundred dollars ($500.00) or imprisonment not exceeding twelve months, or both. #2 – Bill 146, An Act to amend The Marriage Act [first reading 27 February 1913] [Sections 1, 2, 3, and 4 are identical to those provisions in Bill 193, above. Sections 5 and 6 as set out below are added.] 5. Every issuer of Marriage Licenses on receiving an application for a license shall cause a notice containing the names and address of the parties to the proposed marriage to be posted up in a conspicuous place in the office of the Clerk of the municipality, and it shall be the duty of the Clerk to keep the said notice posted up in his office for a period of three weeks. 6. The license applied for shall not be issued until the expiration of three weeks from the day on which the said notice was first posted up. #3 – Bill 113, An Act to amend The Marriage Act [first reading 11 March 1918]

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His Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows: 1. Section 19 of The Marriage Act is amended by adding hereto the following subsection: (1a) In addition to the affidavit mentioned in subsection 1, before a license or certificate is issued, there shall be delivered to the issuer or deputy issuer, a certificate in writing, signed by a legally qualified medical practitioner, and stating that he has personally examined each of the parties to the intended marriage, and that neither of them is an idiot, imbecile, epileptic, or lunatic, or feeble-minded or defective, or a sexual pervert, drug habituate, habitual criminal, habitual vagrant, or suffering from venereal disease, tuberculosis or cancer, and that in his opinion the general condition of each the said parties is such that the offspring of the marriage will probably be of normal mentality and physique #4 – Bill 101, An Act to Amend The Marriage Act [first reading 14 February 1921] [This bill is identical to Bill 146, above, with the exception of the deletion of two commas, which does not affect the meaning.]

a p p e n d ix 2

Government’s Successful Marriage Act Amendment

An Act to amend The Marriage Act [first reading 9 April 1913, assented to 6 May 1913] His Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows: 1. Section 17 of The Marriage Act is repealed and the following substituted therefore: 17. If any issuer of marriage licenses issues a license for a marriage or if any minister, clergyman or other person solemnizes a marriage, knowing or having reason to believe that either of the parties to the intended marriage or to the marriage is an idiot or insane or is under the influence of intoxicating liquor, he shall incur a penalty not exceeding $500 and shall also be liable to imprisonment of any term not exceeding twelve months. 17a. If any person who having been a minister, clergyman or other person having the right to solemnize marriage, has been deposed from his ministry, or deposed and removed from office by virtue of which he was authorized to solemnize marriage, thereafter solemnizes or undertakes to solemnize any marriage, he shall incur a penalty of $500 and shall also be liable to imprisonment for any term not exceeding twelve months.

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2. Section 18 of The Marriage Act is amended by striking out all the words in Clause (c) of subsection 1 whereof after the words “lies,” in the seventh line of the said clause, and by inserting in the said section the following subsections: 1a. If the city, county or district in which it is intended that the marriage shall be solemnized is not that in which either of the parties has for the space of fifteen days immediately preceding the issue of the license or certificate, had his or her usual place of abode, the license or certificate may nevertheless be issued upon the production of an affidavit by one of the parties stating that notice of the intended marriage, stating the name, occupation, usual place of abode of each of the parties, has been public once a week for three successive weeks immediately preceding the application for the license or certificate in some newspaper published in the municipality in which the marriage is to take place, or if there is not such newspaper, then in a newspaper published in the nearest adjoining municipality, and accompanied by the production of the respective issues of such newspaper containing such notice. 1b. Upon an applicant for a license or certificate stating that he is unable to make the affidavit mentioned in the preceding subsection, and requesting the issuer or deputy issuer to report the circumstances of the case to the Registrar General, the issuer or deputy issuer shall do so, and the Registrar General, upon being satisfied that the reason for having the marriage solemnized in the place mentioned in the affidavit is not to evade due publicity or for any other improper purpose, may in writing authorize the issue of the license or certificate. 1c. Nothing in the two next preceding subsections shall dispense with the proofs required by subsection 1, except that of residence as was set out in clause (c) of that subsection. 3. This Act shall come into force on 15th day of May, 1913.

a p p e n d ix 3

Section 207 of the Criminal Code

207. Everyone is guilty of an indictable offence and liable to two years’ imprisonment who knowingly, without lawful justification or excuse, a makes, manufactures, or sells, or exposes for sale or to public view, or distributes or circulates, or causes to be distributed or circulated, or has in his possession for sale, distribution or circulation, or assists in such making, manufacture, sale, exposure, having in possession, distribution or circulation, any obscene book or other printed, typewritten or otherwise written matter, or any picture, photograph, model or other object, tending to corrupt morals, or any plate for the reproduction of any such picture or photograph; b publicly exhibits any disgusting object or any indecent show; c offers to sell, advertises, publishes an advertisement of, or has for sale or disposal any means or instructions or any medicine, drug or article intended or represented as a means of preventing conception or of causing abortion or miscarriage; or advertises or publishes an advertisement of any means, instructions, medicine, drug or article for restoring sexual virility or curing venereal diseases or diseases of the generative organs. (2) No one shall be convicted of any offence in this section mentioned if he proves that the public good was served by the acts

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alleged to have been done, and that there was no excess in the acts alleged beyond what the public good required. (3) It shall be a question for the court or judge whether the occasion of the manufacture, sale, exposing for sale, publishing, or exhibition is such as might be for the public good, and whether there is evidence of excess beyond what the public good required in the manner, extent or circumstances in, to or under which the manufacture, sale, exposing for sale, publishing or exhibition is made; but it shall be a question for the jury whether there is or is not such excess. (4) The motives of the manufacturer, seller, exposer, publisher or exhibitor shall in all cases be irrelevant.

Notes

i nt roduct i o n 1 Eugenics Society of Canada, “The Future of the Race,” 20; “Historical Climate Data,” Government of Canada, accessed 12 May 2020, www. climate.weather.gc.ca/. 2 “Parlinfo People: Herbert Bruce,” Parliament of Canada, accessed 13 May 2020, www.lop.parl.ca/; and Andrew Ball, “Herbert Bruce,” accessed 31 May 2020, www.eugenicsarchive.ca/discover/tree/ 512fa3fe34c5399e2c00000c. 3 Kuffert, Canada before Television. 4 “cbc in 1938,” Radio-Canada Archives, accessed 13 May 2020, www. archives.radio-canada.ca/days_to_remember/1257; Kuffert, “Needful Supervision,” accessed 13 May 2020, cjms.fims.uwo.ca/issues/10-01/ Kuffert.pdf, 2. 5 “Notes and Memoranda,” Eugenics Review 30, no. 4 (January 1939): 283. 6 Eugenics Society of Canada, “The Future of the Race,” 2, 6. 7 Ibid., 15. 8 Ibid., 23. 9 Ibid., 27. 10 Buck v. Bell, 274 US 200 (1927). 11 Eugenics Society of Canada, “The Future of the Race,” 30. 12 Ibid., 36. 13 Ibid., 34. 14 McLaren, Our Own Master Race, and Strange and Stephen, “Eugenics in Canada.”

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Notes to pages 7–11

15 For scholarship on Alberta, see: Stahnisch and Kurbegovic´, eds., Psychiatry and the Legacies of Eugenics; Grekul, Krahn, and Odynak, “Sterilizing the ‘Feeble-Minded’”; Dyck, Facing Eugenics; Dyck, “Sterilization and Birth Control in the Shadow of Eugenics”; and Samson, “Eugenics in the Community.” For scholarship on British Columbia, see McLaren, “The Creation of a Haven for ‘Human Thoroughbreds.’” 16 For some examples, see Baker on Nova Scotia in “‘A Visitation of Providence’”; Deighton on Saskatchewan in “The Nature of Eugenic Thought”; Kurbegovic´ on “Eugenics in Manitoba” and, focusing on Alberta and Manitoba, in “Eugenics in Comparative Perspective”; Horodyski on Manitoba in “Manitoba,” accessed 31 May 2020, www. eugenicsarchive.ca/discover/world; Koester on Ontario in “An Evil Hitherto Unchecked”; and Auffrey on Quebec in “A Better Harvest of Healthy and Strong Citizens.” 17 Paul, Controlling Human Heredity, especially 121–32; Bashford, “Epilogue: Where Did Eugenics Go?”; and Stern, Telling Genes. 18 Galton, “Probability: The Foundation of Eugenics.” 19 For discussions of Jewish, African American, and Roman Catholic eugenics, respectively, see: Falk, “Eugenics and the Jews”; Sherman, In Search of Purity; and Leon, An Image of God. 20 Cassel, The Secret Plague, 203. 21 Proceedings of the First International Eugenics Congress Held at the University of London, July 24th to 30th, 1912, vol. 2 (London: Eugenics Education Society 1912), 44 (hereafter Proceedings of First International Eugenics Congress). 22 Court, “Wright, Roger Ramsay,” Dictionary of Canadian Biography, accessed 12 June 2019, www.biographi.ca/en/bio/wright_robert_ ramsay_16E.html. Today his name is enshrined on the Ramsay Wright Laboratories building at the University of Toronto. 23 The papers listed here can be found in Proceedings of First International Eugenics Congress at 222, 353, 400, 47, 480, 151, 237, and 396, respectively. 24 “Preliminary Report of the Eugenic Section of the American Breeders’ Association to Study and to Report on the Best Practical Means for Cutting off the Defective Germ-Plasm in the Human Population,” Proceedings of First International Eugenics Congress, 460. 25 For a discussion of the social-purity movement, see Valverde, The Age of Light, Soap and Water; Strange, Toronto’s Girl Problem; Strange, “Casting Light on Women in the Shadow of the Law”; and Strange, “The Toronto Survey of 1915.” For a discussion of the Woman’s Christian Temperance Union, see Bedford, “Heredity as Ideology”; and Cook,

Notes to pages 11–15

26 27 28 29 30 31

32

33

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Through Sunshine and Shadow. For women’s suffrage, see Brookfield, Our Voices Must Be Heard; and Sangster, One Hundred Years of Struggle. Krementsov, With and Without Galton, 14. For an introduction to the literature of illegitimacy in Ontario, see Chambers, Misconceptions. See n.15. Tydén, “The Scandinavian States,” 368. Dyck, “Eugenics in Canada,” 41. For example, the work of historian of eugenics Stern in Eugenic Nation draws connections between the eugenics movement and the creation of the national-park system in the United States among other things, while López-Durán, a historian of art history and architecture, has connected the eugenics movement to urban planning and architecture in Latin America in Eugenics in the Garden. In Canada, Dolmage has used rhetoric as the lens through which to consider the relationship between eugenics, disability, and immigration in Disabled upon Arrival; historian of education Ellis has studied the development of special education in the Toronto public-school system in A Class by Themselves?; and historian Stote has examined sterilization surgeries on Indigenous women, both authorized by state and not, in An Act of Genocide. Examples of other recent academic work include: Leonard, Illiberal Reformers; Meloni, Political Biology; Sherman, In Search of Purity: Paul, “Reflections on the Historiography of American Eugenics”; Ladd-Taylor, Fixing the Poor; and Paul, Stenhouse, and Spencer, eds., Eugenics at the Edges of Empire. Legal pluralism itself is the idea that law is expressed in multiple ways and even legal systems within one geographical or cultural space. Consequently, we need to look beyond merely statutes passed and judicial decisions and consider matters such as variations in how these laws were actually interpreted and enforced, and what other kinds of law exist, including in the forms of accepted practices and informal law. Another important aspect of legal pluralism is legal systems and practices developed by Indigenous people in settler-colonial environments and their relationship to the law of the colonists. Hartog’s “Pigs and Positivism” is one of the early and still best-known discussions of legal pluralism. Other work that the author found especially helpful includes Hopman, “Lipstick Law,” and Merry, “Everyday Understandings.” Two exceptions include essays by Deighton, “The Nature of Eugenic Thought,” and Spencer, “Eugenic Sterilization in New Zealand,” which set out in detail the stories of the failure of Saskatchewan and New Zealand, respectively, to pass eugenic sterilization legislation.

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Notes to pages 20–7

34 It is not clear who assembled the scrapbooks. According to the Waterloo University archives, one possibility is that at least some were done by was Kaufman’s daughter, Helen. Kaufman Family Collection, sca 173, ga 260, Series 1, file 9, notes, uw . 35 The concept of precedent, or stare decisis, is the key element that connects a specific judicial decision to other events and places. This principle requires judges to consider and generally follow the precedent of earlier decided cases. In seeking to interpret a section of the Criminal Code, the Eastview trial judge searched (unsuccessfully) for legal precedent to assist him in doing so. Although generally bound by precedent where it exists, the judicial role of interpreting statutes or previous case law or both opens up the possibility, usually unstated, that a judicial decision will reflect local or new circumstances as it did in the case of the Eastview trial. 36 See Sangster, Regulating Girls and Women. 37 Divorce, for example, is not part of this story. This is partly because it was not addressed by any of the actors in it and partly because in Canada it falls under federal jurisdiction. However, for an interesting introduction to the topic, see “Divorce and Eugenics,” Eugenics Review 4, no. 4 (January 1913): 373–8, and, Darwin, “Divorce and Eugenics,” 363–72. 38 This seemed to be a sensitive point for government officials, who protested vehemently that sterilization surgeries were not occurring. “Would Reduce Ranks of Public Charges by Sterilizing Unfit,” Toronto Daily Star, 17 January 1933; and “Hospital Heads Deny Operations,” Toronto Daily Star, 18 January 1933. See also the work of historian Stote in An Act of Genocide, which shows that in fact such surgeries were occurring and indeed continue to this day. 39 Bland and Hall, “Eugenics in Britain,” 221. 40 For a discussion of this issue, see Bashford, “Epilogue: Where Did Eugenics Go?” 539.

chapter one 1 These included the Toronto General Hospital (1812), the Provincial Lunatic Asylum (1850), Victoria Hospital for Sick Children (1875), Women’s College (1883), St Michael’s (1892), and Toronto Western (1895). 2 Brown, “Making Representation,” 270. 3 Simmons, From Asylum to Welfare, 88. 4 Data from Census of Canada, Canada Year Book of 1932, Statistics Canada.

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5 Strange, Toronto’s Girl Problem, 165. 6 Ian Dowbiggin, “Clarke, Charles Kirk,” Dictionary of Canadian Biography, accessed 23 February 2016, www.biographi.ca/en/bio/clarke_ charles_kirk_15E.html. (These statistics greatly worried C.K. Clarke, who focused considerable energy on lobbying the federal government to have the numbers of new immigrants to Canada reduced.) 7 Dowbiggin, Keeping America Sane, 136. 8 Beaud and Prévost, “Immigration, Eugenics and Statistics,” 6. 9 Simmons, From Asylum to Welfare, 88. 10 Data from Census of Canada, 1881 and 1921, accessed 15 April 2016, www.statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/demo62a-eng.htm. 11 Levine, Toronto, 91. 12 “Hamilton’s Steel Industry from Birth, to Boom and Beyond,” Hamilton Spectator, 11 February 2012, accessed 1 June 2020, www.thespec.com. 13 Levine, Toronto, 91. 14 Toronto City Archives, accessed 10 June 2019, www.toronto.ca/citygovernment/accountability-operations-customer-service/access-cityinformation-or-records/city-of-toronto-archives. 15 “Projects Forthcoming: Celebrating 150 Years of Municipal Drinking Water,” accessed 10 March 2021, www2.hamilton.ca/NR/rdonlyres/ F8C9DE71-B66D-4C05-9380-DD5421671081/0/2010RateBookProjects Forthcoming.pdf. 16 Valverde, The Age of Light, Soap and Water, 32. 17 Brown, Making Representation, 270–1. 18 Ibid., 271. 19 Rutherford, “Tomorrow’s Metropolis,” 435–6. For good discussions of Toronto and its problems, especially as they related to women and children, see Strange, Toronto’s Girl Problem; Strange, “Casting Light on Women”; Valverde, Light, Soap and Water; and Wendy Mitchinson, “The WCTU,” 152. 20 Simmons, From Asylum to Welfare, 95. 21 Levine, Toronto, 122. 22 Census of Canada, 1901, 1911, 1921, Statistics Canada. 23 “Ontario,” accessed 24 May 2020, www.jewishvirtuallibrary.org/ontario. 24 John Taylor, “Ottawa,” Canadian Encyclopedia, accessed 23 May 2020, www.thecanadianencyclopedia.ca/en/article/ottawa-ont. 25 Dr Michael Steele in 1917 House of Commons Debates, as quoted in Buckley and McGinnis “Venereal Disease,” 346. 26 Dowbiggin, Keeping America Sane, 137. 27 Strange, Toronto’s Girl Problem, 14.

238 28 29 30 31 32 33 34

35

36 37 38 39

40 41

42 43 44 45 46 47 48 49

50 51 52

Notes to pages 34–41

Ibid., 98; Valverde, Light, Soap and Water, 84. Strange, Toronto’s Girl Problem, 125. Valverde, Light, Soap and Water, 58. Ibid. Ibid., 65. Strange, Toronto’s Girl Problem, 105–15. See Brown, Making Representation, 273ff., for a discussion of the use, particularly by physicians, of the phrase the “menace of the feeble-minded” as a rhetorical device in this period. This figure is based on an internet search of the Globe and Mail database by the author conducted on 26 March 2018, www.search-proquest-com. myaccess.library.utoronto.ca/hnpglobeandmail/results. Simmons, From Asylum to Welfare, 70. Ibid., 65. McLaren, Our Own Master Race, 42. Problems in Eugenics: Vol. II Report on Proceedings of the First International Eugenics Congress Held at the University of London, July 24th to 30th, 1912, 44. “Insulin Key to Door of Medical Problems,” Toronto Daily Star, 12 August 1924. In “Disappearing into White Space: Indigenous Toronto, 1900–1914,” accessed 15 May 2020, political scientist Jasmine Chorley notes that Indigenous people “left very few traces of themselves for historians.” www.activehistory.ca/papers/ disappearing-into-white-space-indigenous-toronto-1900-1914/. Backhouse, Colour-Coded, 4. Clarke, “The Defective Immigrant”; and Rutherdale, “‘Canada Is No Dumping Ground.’” Bland and Hall, “Eugenics in Britain.” Kline, “Eugenics in the United States,” 516. Dyck, Facing Eugenics, 56–7. Falk, “Eugenics and the Jews,” 462. Leon, An Image of God. See Pope Pius XI’s encyclical of 31 December 1930 entitled Casti Connubii. The English translation is “Of Chaste Wedlock,” but the document is generally referred to by the English title “On Christian Marriage.” Levine, Toronto, 126. Klausen and Bashford, “Fertility Control,” 104. Carey, “The Racial Imperatives of Sex.”

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53 Klausen and Bashford, “Fertility Control,” 104. 54 For interesting discussions of birth control in the context of eugenics, see, for example, Dodd, “The Canadian Birth Control Movement”; Dyck, “Sterilization and Birth Control in the Shadow of Eugenics”; Klausen and Bashford, “Fertility Control”; Paul, “Eugenic Solutions,” in Controlling Human Heredity; and Schoen, Choice and Coercion. 55 Brookfield, Our Voices Must Be Heard, 40. 56 Cook, “Sowing Seed for the Master,” 175. 57 Valverde, “When the Mother of the Race Is Free,” 4. 58 Turda, Modernism and Eugenics. The Scandinavian countries are another good example of how the drive to modernize led to increased state intervention and the rise of eugenic thinking. See Tydén, “The Scandinavian States.” 59 The histories of eugenics in both the United States and Britain are, of course, vastly more complex than the very brief descriptions of them here suggest and the historiography is correspondingly enormous. A good starting place to understand the British story of eugenics is Bland and Hall, “Eugenics in Britain.” Two standard reference works are: Kevles, In the Name of Eugenics, which discusses both Britain and the United States; and Searle, Eugenics and Politics in Britain, 1900–1914. To begin to explore eugenics in the United States, see Kline, “Eugenics in the US”; Stern, Eugenic Nation; and Lombardo, ed., A Century of Eugenics in America. 60 Bland and Hall, “Eugenics in Britain.” 61 Ibid., 221. 62 Ibid., 222. 63 Ibid. 64 Angelique Richardson, “Great Britain,” Eugenics Archives, 24 February 2014, accessed 1 June 2020, www.eugenicsarchive.ca/discover/world/. 65 “Chronology,” The Oxford Handbook, 559. 66 Proceedings of First International Eugenics Congress, 151. 67 Laughlin, Eugenical Sterilization in the United States, ix. 68 Paul, Stenhouse, and Spencer, eds., Eugenics at the Edges of Empire.

c h a p t e r t wo 1 “Whitney Orders; Godfrey Withdraws,” Toronto Daily Star, 28 March 1913. 2 The text of Godfrey’s sterilization and marriage bills is reproduced in appendix 1. The text of the government’s Marriage Act amendment is reproduced in appendix 2.

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Notes to pages 45–9

3 The Marriage Act, rso , 1897, c. 162, s. 17, as amended (hereafter Marriage Act). 4 “Whitney Orders,” Toronto Daily Star, 28 March 1913. 5 “Hon. Dr Forbes Elliott Godfrey,” Canadian Public Health Journal 23, no. 2 (February 1932): 100. 6 Unless otherwise indicated, the biographical information about Godfrey in this section comes from Currell, The Mimico Story, 82, 86–8. 7 “Ninety Defectives at Mimico School,” Globe, 16 March 1912. According to this report in the Globe, Godfrey had held this position for eighteen years. 8 I have not been able to establish the dates during which Godfrey held this appointment, although see “A Dangerous Crossing – cpr Held Responsible for Death of Percy Hansford,” Globe, 20 February 1908, and “A Horrible Tragedy – but Victim Refused to Admit He Was ‘Deceased,’” Globe, 9 January 1909, which both identify Godfrey as coroner. 9 “Great Throng Joins in Honoring Memory of Late Dr Godfrey,” Globe, 9 January 1932. 10 In advocating for these, Godfrey was strenuously opposed by Premier James Whitney, the leader of Godfrey’s own party, for their interference with individual privacy. 11 “Dr Forbes Godfrey for Medical Commission?” Globe, 20 August 1913. This appointment never came through. The sole commissioner ultimately named was Justice Frank E. Hodgins, who in 1917 accepted a subsequent appointment to the same role on the Ontario Royal Commission on the Care and Control of the Mentally Defective and Feeble-Minded in 1917, one of the royal commissions discussed in chapter 3. 12 This information and the quotation are from “West York Member Denounces Bilingualism,” Globe, 14 November 1911. 13 “Sudden Marriages Will Be Stopped,” Globe, 28 March 1913. 14 “Fight Sikhs’ Cause in the Legislature – West York Member Will Move if Unfair Restriction Is Not Withdrawn,” Globe, 4 January 1912. 15 “Dr Godfrey Has Painful Accident,” Globe, 10 September 1913. 16 “Dr Godfrey’s Escape,” Globe, 23 June 1910. 17 “Social Events,” Globe, 13 April 1911. 18 Oliver, G. Howard Ferguson, 312. 19 If Godfrey was afflicted with either of these problems, he would not have been the only eugenicist to suffer from a chronic condition or illness which might have made him subject to his own arguments about the need for marriage certificates. In the United States, Charles Davenport was affected by depression and Harry Laughlin hid his epilepsy all his adult life. Both men married, but Laughlin had no children.

Notes to pages 49–54

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20 See, for example, “The Care of the Feeble-Minded,” Canada Lancet 45, no. 10 (June 1912): 727–8. 21 Simmons, From Asylum to Welfare, 76. 22 One example was the vote in the Canadian House of Commons which abolished capital punishment in 1976. 23 In an attempt to reduce confusion between the texts of bills introduced and their drafts, when necessary I use the following terminology. I use the word “form” to refer to the final texts of Godfrey’s bills, and “version” to describe drafts of a particular bill. Thus, there were two forms each of Godfrey’s sterilization and marriage bills introduced in the Ontario legislature and several “versions” of the first “form” of Godfrey’s sterilization bill. 24 Phillip Girard writes in “British Justice, English Law and Canadian Legal Culture,” at 264, that the “reception of English law proceeded on two fronts: the importation of ‘hard’ law such as case law and statutes, and the transmission of ‘soft’ law – the values and practices associated with the law. With regard to the former, once a colony possessed a legislature it was free to set for itself a reception date after which no new statute passed in England would automatically become law in the colony. The common law as it stood on that date, including all English statutes passed prior to that date and considered suitable to conditions in the colony, would be in force in that colony.” In Ontario, this date was 15 October 1792. 25 33 Geo III c. 5 (uc ). For background on the history of the Marriage Act in Ontario, refer to Silverman in “History of Marriage Legislation in Upper Canada and Ontario.” Here, see Silverman, 29n.2. 26 Snell and Comacchio Abeele, “Regulating Nuptiality.” 27 Ibid., 470. 28 Ibid., 470n.11. 29 “Dr Godfrey Rebels over Marriage Act – Says Government Measure Is Inadequate – Defended by Premier,” Globe, 10 April 1913. 30 According to the Bank of Canada Inflation Calculator, www.bankofcanada.ca/rates/related/inflation-calculator, $500 in 1914 (the first year for which the calculation was available) is the equivalent of approximately $11,000 as of June 2019. 31 Marriage Act, ss. 16(2). 32 Laughlin, Eugenical Sterilization. 33 The Canada Lancet existed in this period but the Canadian Medical Journal did not begin publishing until 1911. 34 Smith, “Mental Sanitation.” 35 “News from Abroad.”

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Notes to pages 54–6

36 Catalogue of Books in the Legislative Library of the Province of Ontario on 1 November 1912, Toronto: printed by L.K. Cameron, Printer to the King’s Most Excellent Majesty 1913, 536, accessed 5 May 2020, https:// babel.hathitrust.org/cgi/pt?id=uc2.ark:/13960/t6pz56x6p&view=1up&seq=2. The actual process by which Godfrey obtained copies of laws from other jurisdictions is hard to pin down precisely, especially as related to the early days of his tenure as a member of the legislature, because the collection of the Ontario Legislative Library was largely destroyed in 1909 by a fire. The chief librarian, the dedicated Avern Pardoe, threw himself over the next years into the task of replacing the material which had been lost. The library had a practice of soliciting material from as many American states as were willing to provide it and, according to the catalogue that Pardoe prepared in 1912, the rebuilt library included a 1908 consolidation of Indiana statutes and a consolidation of Connecticut statutes from 1903 to 1911. These would have contained the statutes on which Godfrey based his bills. It is not clear whether this was new material or simply replacement. In either case, however, there is good reason to assume that Godfrey found the text for both forms of his bills with the assistance of library staff, whether the material escaped the fire or had to be acquired from elsewhere. 37 Watson, A Credit to This Province, 106. 38 “The Sterilization of Criminals,” Canada Lancet 44, no. 10 (June 1911): 721–2. The quoted text of the bill is very different from wording in either version of Godfrey’s marriage bills. 39 “Editorial,” Canada Lancet 45, no. 4 (December 1911): 245. 40 “No Change in Marriage Act Is Decision of Committee – Dr Godfrey’s Amendment Considered Too Drastic – Committee to Meet Again to Discuss Other Suggestions,” Globe, 13 February 1919. It is even possible that Godfrey had been exposed to Galton’s own writings on marriage. However, Godfrey was not a scholar or a man interested in reflecting on theories or principles but a practically oriented politician, and so it is unlikely that Galton was the inspiration for his marriage bills. 41 “Survival of the Unfit,” Canada Law Journal 40, no. 10 (15 May 1904): 330. 42 Bill 184, Ontario Assembly Journals, 25 February 1910 (hereafter Bill 184). 43 Material held by the ao (“Original Bills,” rg 49–39) includes three versions of Bill 184. The first is a printed version, typeset in standard parliamentary format, the cover page of which includes the information that first reading took place on 25 February 1910. The second version is a

Notes to pages 56–60

44 45

46

47

48 49

50 51 52 53

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one-page typewritten document with a cover page on which the details such as number and title of the bill are handwritten, as well as the tantalizing comment “To be kept back” written in a separate hand. The bill itself contains handwritten notations indicating how the subject matter of each of its provisions should be identified in the margin note of printed format. The third version is also a one-page typewritten document with a cover page attached. It appears to be an even earlier draft of the bill, based on the Indiana legislation. I was unable to find any indication of why, when, or by whom any of the notations or revisions on either of the typewritten documents might have been made. Laughlin, Eugenical Sterilization, 15. In other words, typewritten version #1 reads: “The governing body of every gaol, asylum or other institution …” This change is reflected in the printed version. My comments on the application of the Indiana law are based on the statutory language alone: I have not studied the way the Indiana law was applied. My focus is simply on how Godfrey, as a legislator, drew on and departed from the Indiana legislation and I am theorizing about the differences he might have intended. For an interesting discussion of thinking about heredity generally and its relationship to eugenics specifically, see Bedford, “Like Produces Like,” especially 219–26. Leon, An Image of God. “Godfrey Withdrew Bill Reluctantly and Talked Back Some at Sir James … It was a Medical Session …White Plague and Criminal Tendencies of Parents Discussed,” Toronto Daily Star, 3 March 1910 (headline partially ripped). The words “from a father” suggest that the Star thought it was only men who would be sterilized. Studholme was a Labour Party member of the House originally from England and a strong supporter of trade-union and worker rights. “Dr Godfrey Talks Back to Premier,” Globe, 3 March 1910. Lancet 175, no. 4526 (May 1910): 1505–6. The assumption for some reason is that the bill applied to men only. This could have been anticipating that the actual surgery would be a vasectomy, a procedure that carried considerably less risk for men than the corresponding surgery for women. It does not seem related to any argument that more men than women would qualify for it, especially since the issue of feeble-mindedness was often linked more directly to women than to men. Eugenic surgeries elsewhere were conducted on both men and women in percentages that varied from institution to institution. In any

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55 56

57

58

59 60 61 62

63

64

65

66 67

Notes to pages 60–4

event, this confusion was cleared up in the next form of Godfrey’s bill, which referred explicitly to both the male and female versions of sterilization surgery. Canada Lancet 43, no. 8 (April 1910): 562–3. Fifth Census of Canada: Religions, Origins, Birthplace, Citizenship, Literacy and Infirmities by Provinces, Districts and Sub-Districts, vol. 2, 1911 (Ottawa: C.D. Parmelee 1913), 42–3. “Godfrey Withdrew Bill Reluctantly and Talked Back Some at Sir James,” Toronto Daily Star, 3 March 1910. “Marriage Bill Was under Fire in House … Dr Godfrey Tells of a Preacher Who Advertises ‘No Publicity’ on His Card … The Premier Points to Demand by Some Pastors for Higher Salaries Because of Loss of Fees,” Toronto Daily Star, 10 April 1913. “We have all missed you for sometime back and I am glad yesterday afternoon to hear you are improving steadily … We hope to greet you here shortly in your old place.” Whitney to Godfrey, 2 March 1911, Sir James Whitney Fonds, f 5, box mu 3132, ao . One must also keep in mind as well that the parliamentary sessions were much shorter than they are today, typically running only from February to April or May each year. Bill 193, Ontario Assembly Journals, 19 March 1912. The full text of the bill is reproduced in appendix 1. Set out in Schedule d to the Marriage Act, rso 1896, c. 162. Bill 193, ss. 3 and 4. This stipulation speaks to the growing professional authority of university-trained physicians in the face of competition from a wide variety of other types of medical practitioners in this period. Bill 201, Ontario Assembly Journals, 22 March 1912. The archival file from the ao again includes a typewritten draft, but this time, once the few handwritten editorial notations are considered, it is identical to the final version. Bill 201, 1912, “Original Bills,” rg 49–9, ao . Laughlin, Eugenical Sterilization,19–20. As in the case of Bill 184, I have found no specific evidence about how the Connecticut law came to Godfrey’s attention. Erika Dyck has pointed out in Facing Eugenics that there are many examples of women in Alberta who tried to establish that they fit into the categories to which the Alberta law applied in order to be able to undergo sterilization for the purposes of permanent birth control. This apt metaphor is from Levine and Bashford, “Introduction,” 9. “More Favorable to Marriage Acts – Government Partly Converted to Dr Godfrey’s Bills – Restricts Degenerates,” Globe, 29 March 1912.

Notes to pages 64–9

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68 Toronto World, 29 March 1912. The plural reference included Dr Godfrey’s 19 March 1912 Marriage Act amendment. 69 “Mr Hanna Hints That Next Session Law May Be Changed Re Marriage Licenses,” Toronto Daily Star, 28 March 1912. 70 Ibid. 71 “The Care of the Feeble-Minded,” Canada Lancet 45, no. 10 (June 1912): 727–8. 72 “Sterilization of the Unfit,” Canada Law Journal 48, no. 7 (1 April 1912): 207–8. 73 “Mr Hanna Hints That Next Session Law May Be Changed Re Marriage Licenses,” Toronto Daily Star, 28 March 1912. 74 “The Day’s Work in the Legislature,” Toronto Daily Star, 29 March 1912. The solution of segregation within institutions would be a theme that Justice Frank Hodgins picked up a few years later in the report of the Royal Commission on the Care and Control of the Mentally Defective and Feeble-Minded. 75 Bill 142, Ontario Assembly Journals, 24 February 1913, and Bill 146, Ontario Assembly Journals, 27 February 1913. 76 As was the case with Godfrey’s later sterilization bills, records held by the ao indicate that Godfrey merely recycled his first marriage bill (Bill 193), making handwritten changes to the number and date and adding the two new sections to produce Bill 146. Bill 142 and Bill 146, 1913, “Original Bills,” rg 49–39, ao . 77 This quotation and the two in the following paragraph are from “Whitney Orders; Godfrey Withdraws.” 78 Ibid. 79 “Sudden Marriages Will Be Stopped … Drastic Legislation Proposed by Province … Opposition Will Assist … Marriage License to Be Issued Only after One of Contracting Parties Has Been a Resident of Municipality Thirty Days or after Advertising,” Globe, 28 March 1913. 80 “Whitney Orders; Godfrey Withdraws.” 81 “Sudden Marriages Will Be Stopped,” Globe, 28 March 1913. 82 “An Act to Amend the Marriage Act,” 3–4 Geo. V, c. 28. 83 “Marriage Bill Was under Fire in House,” Toronto Daily Star, 10 April 1913. 84 Ibid. 85 “Dr Godfrey Rebels over Marriage Act,” Globe, 10 April 1913. 86 Ibid. 87 Rowell’s name will come up again in chapter 4. In later years, he was the chief justice of the Ontario Court of Appeal when it dismissed the

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89 90

91 92 93 94 95 96 97 98

99 100 101 102 103 104 105 106

Notes to pages 69–73

government’s appeal of the Eastview verdict, and also the lawyer who successfully argued the “Persons’ case” before the Privy Council, which concluded that women were “persons” for the purpose of being appointed to the Senate of Canada. See the 10 April 1913 report in the Globe, “Dr Godfrey Rebels over Marriage Act.” McQueen’s proposed amendment read: “Issuers of marriage licenses who have reason to believe that either of the parties to the intended marriage is an idiot, insane, epileptic or imbecile, shall require the applicants to produce a certificate from a duly qualified medical practitioner to the effect that the parties so suspected are fit to be married.” Bill 123, Ontario Assembly Journals, 20 March 1914. Again, archival records show handwritten changes on the cover page to Bill 142 to prepare it for the next attempt as Bill 123. Bill 123, 1914, “Original Bills,” rg 49–39, ao . “Ottawa Bill Given Its Third Reading,” Globe, 21 March 1914. “Knife Lessens Crime,” Toronto Daily Star, 24 October 1913. “Social Service Council Tackles Modern Evils,” Globe, 29 December 1915. “Synod Hotly Debates Prohibition Question,” Globe, 16 September 1916. “Women Independent of Party Politics,” Globe, 23 April 1917. “Letter to the Editor,” Globe, 10 October 1917. “Menace of Defectives Must Be Banished,” Globe, 12 April 1916. I found no explanation for this lengthy delay. Perhaps Whitney’s death shortly after the 1914 election was a factor, although the Conservatives prevailed in that election and were not removed from office until 1919 when the United Farmers/Labour coalition replaced them. Bill 113, Ontario Assembly Journals, 11 March 1918. The full text of Bill 113 is reproduced in Appendix 1. Schranz, “Dr Godfrey’s Premarital Health Certificates,” 15. “No Change in Marriage Act Is Decision of Committee,” Globe, 13 February 1919. “Legislature Divides First Time in Session,” Toronto Daily Star, 1 March 1921. “No Change in Marriage Act Is Decision of Committee,” Globe, 13 February 1919. Ibid. This is an indication of the growing recognition of the role of psychiatrists. “But where would you get them in my country?” exclaimed F.W. McGarry, chairman of the committee and the member for the rural constituency

Notes to pages 73–6

107 108 109 110 111

112 113 114

115 116

117 118

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Renfrew South. “No Change in Marriage Act Is Decision of Committee,” Globe, 13 February 1919. Ibid. “A Certificate of Health Before Marriage,” Public Health Journal 10, no. 2 (February 1919): 94–5. This view had been voiced by Galton himself in the very early days of the movement. “No Change in Marriage Act Is Decision of Committee,” Globe, 13 February 1919. The Globe article reports the views of seven of the eight committee members. Of these, only Godfrey was in favour of his bill. The viewpoint of the eighth committee member, Liberal Opposition leader William Proudfoot, a lawyer representing Huron North, was not recorded by the Globe. At the time of Hearst’s announcement about the special committee, the Globe reported Proudfoot’s “regret” that the bill had been withdrawn, “as he had hoped it would be law at this session.” “Will Consider Marriage Laws: Dr Godfrey Withdraws His Bill on Promise of Sir William Hearst,” Globe, 20 March 1918. “Legislature Divides First Time in Session,” Toronto Daily Star, 1 March 1921. “Subversive of Liberty – James T. Gunn Criticizes Dr Forbes Godfrey’s Bill,” Toronto World, 5 April 1918. Bill 101, Ontario Assembly Journals, 14 February 1921. Godfrey was actually successful with a different bill to amend the Marriage Act. On 12 April 1919 he introduced a bill which dramatically increased the penalty for anyone who performed a marriage ceremony without the required parental or other consent or where a licence or adequate public notice was not provided. It received the government’s support and was quickly passed by the legislature. I have not included it in the discussion of eugenic legislation because it had no requirement for a medical certificate and did not otherwise modify the statutory test or process for obtaining a licence. “Legislature Divides First Time in Session,” Toronto Daily Star, 1 March 1921. “Examination for Marriage is Unthinkable, Says Drury – Premier Believes Public Opinion Lags behind Principles of Bill Introduced by Dr Forbes Godfrey, m.p.p. ,” Globe, 1 March 1921. “‘Damaged Goods’ Shown Just When Needed,” Toronto Daily Star, 2 March 1921. “Examination for Marriage Is Unthinkable, Says Drury.”

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Notes to pages 76–81

119 Journals of the Legislative Assembly of the Province of Ontario, Session 1921, accessed 11 March 2021, www.collections.ola.org/ser/23347/v0551921-152.pdf. 120 “Whitney Orders; Godfrey Withdraws.” 121 Toronto World, 29 March 1912. The plural reference included Dr Godfrey’s 19 March 1912 Marriage Act amendment. 122 Hansen and King, Sterilized by the State, 20–1. 123 This institution had officially become the Ontario Hospital School, Orillia, in 1907, but it continued to be known as the Orillia Asylum (the full name was the Orillia Asylum for Idiots). Hereafter it is referred to as the Orillia Asylum for the sake of simplicity. 124 There is some uncertainty about the precise date of his appointment, although not about the year. Similarly, records suggest that he left his post in 1925. 125 “A Wrong against Humanity,” Globe, 25 August 1910; “Patronage and the Feeble-Minded,” Globe, 29 August 1910; and “Laxity in Asylum Management,” Globe, 1 September 1910. Downey’s leadership would be criticized in subsequent years. In 1916 Dr C.K. Clarke wrote to the leader of the Ontario Liberal Party that “no one objects particularly to Mr Downey, but his reign at Orillia has been little better than a joke. He is ignorant of his subject, is utterly opposed to all scientific advancement, and his institution does not offer one thing better than simple custodial care of a number of idiots and imbeciles.” In Simmons, From Asylum to Welfare, 81. 126 Downey to Hanna, 10 March 1913, and Hanna to Downey, 11 March 1913, Correspondence of the Provincial Secretary, rg 8–5, ao . 127 Speech, Downey to the Provincial Board of Health, Correspondence of the Provincial Secretary, n.d., rg 8–5, ao . 128 Schranz, “Dr Godfrey’s Premarital Health Certificates,” 15. 129 Examples are the Eugenics Record Office in the United States, established in 1910, and the British Eugenics Education Society, established in 1907. Although Britain did not pass sterilization laws, following the 1904 Royal Commission on the Care and Control of the Feeble-Minded, the Mental Deficiency Act of 1913 was enacted. This law mandated institutional care of certain groups including the “feeble-minded.” 130 Whitney died in 1914, which was before the introduction of Godfrey’s third marriage bill in 1918. 131 Downey to Hanna, 10 March 1913, Correspondence of the Provincial Secretary, rg 8–5, ao .

Notes to pages 82–8

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132 And its echoes in the report of Court of Appeal judge Frank Hodgins on venereal disease which will be discussed in chapter 3. 133 This notion provides an interesting contrast to the (much later) U.S. Supreme Court decision by Oliver Wendell Holmes in 1927 which upheld eugenic sterilization legislation in the notorious Virginia case of Buck v. Bell on the basis that “the strength of the state” required certain individual sacrifices. See Cohen, Imbeciles, and Lombardo, Three Generations, No Imbeciles. 134 “Sterilization of the Unfit,” Canada Law Journal 48, no. 7 (1 April 1912): 207–8. 135 “Dr Godfrey Rebels over Marriage Act,” Globe, 10 April 1913. 136 “The Hon. Dr Forbes Godfrey,” Public Health Journal 14, no. 8 (August 1923): 383–4. 137 I have seen no suggestion that Godfrey’s efforts influenced or were even known to the promoters of eugenic legislation elsewhere in Canada. However, this is an issue that might be taken up in future by historians of eugenics in other Canadian locations. 138 Oliver, G. Howard Ferguson, 147, 312. 139 There is an ironic coda to the story of Godfrey and his marriage bills. In 1925, four years after his last attempt to restrict marriage, his only child, Constance, eloped with a man named Warren Snyder. Snyder was quite a catch, “fit” by any standard – a graduate of the University of Toronto’s Faculty of Medicine, captain of its rugby team, and a silver medalist for Canada in rowing at the 1924 Olympics. Godfrey put on a brave face when the newspapers caught up with him a few months later in northern Ontario where he was interviewed by the Winnipeg Tribune, which reported on 27 August 1925, under the headline “Daughter of Champion of Published Wedding Banns Marries Secretly,” that he was “all chuckles” at the “joke” his daughter had pulled on him by running away with Snyder. “I knew they were engaged,” Godfrey said, “and he is a fine fellow. I had no objections at all.” Godfrey even explained the joke: “The point of the joke is that for years I have been arguing, fighting, talking in the Ontario legislature, to force persons contemplating marriage to publish it a week or two beforehand, so that parents and guardians might know and protect their children from taking false steps.” Yet one wonders what Godfrey actually thought about this turn of events, and whether he was equally unruffled in private, given the embarrassment this must have created for the man who argued so publicly that marriage licences were far too easy to obtain.

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Notes to pages 89–93

c h a p t e r t h re e 1 Herbert, “The Royal Commission on Kissing.” 2 The sections of this chapter that describe the operation of royal commissions generally and the Hodgins Commission specifically first appeared in an altered form in Koester, “An Evil Hitherto Unchecked.” 3 Lauriat, “The Examination of Everything,” 24. 4 See ibid., 24, 26, for these details about royal commissions. 5 Herbert, “The Royal Commission on Kissing.” 6 In the period of the Hodgins Commission, it was Public Inquiries Act, rso 1914, c. 18. 7 Harold Laski, quoted in Lauriat, “The Examination of Everything,” 42. 8 Ian Dowbiggin, “Clarke, Charles Kirk,” Dictionary of Canadian Biography, accessed 23 February 2016, www.biographi.ca/en/bio/clarke_ charles_kirk_15E.html. 9 This and the next quotation are from McLaren, Our Own Master Race, 59. 10 Brown, “Making Representation,” 45. 11 Simmons notes in From Asylum to Welfare, 68, that “MacMurchy realized that murders, beatings, incest or other unusual events involving mentally retarded persons would have a greater impact on the reader than the usual litany of facts and statistics that characterized most government reports” and thus included details of them in her own. He also points out examples of catchy headings such as “What Delayed This Report?” and “Unfit for Publication” and innuendo concerning scandalous behaviour such as “the uncle admitted that he was responsible for the girl’s condition.” 12 “Care of Feeble-Minded – Dr Helen MacMurchy on Systems in Europe,” Globe, 2 September 1910. 13 The historical details in this paragraph are from Simmons, Asylum to Welfare, 73–6, and McLaren, Our Own Master Race, 108. 14 As his report made clear, Hodgins had become very familiar with the British act. He made numerous references to the system it set out for caring for feeble-minded individuals and he included suggestions on how it might be followed. For example, he indicated that the activities of the Board of Control established by the British legislation such as surveying feeble-minded individuals should provide the model for doing this in Ontario, and he recommended that the classification of levels of mental deficiency laid out in the British act should be adopted. See Hodgins, Report on the Care and Control of the Mentally Defective and FeebleMinded (hereafter Report on the Feeble-Minded), 24 and 131.

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15 Simmons, “Explaining Social Policy,” 397; Bland and Hall, “Eugenics in Britain,” 221, citing the Mental Deficiency Act (uk ) 3 & 4 George 5, c. 28. 16 Report of the Committee of the Privy Council Approved by His Royal Highness the Governor General on the 26th June, 1915. p.c. 1479 17 Minutes of the Privy Council re: the Desirability of the Appointment of a Royal Commission on the Feeble-Minded in the Dispatches of the Department of the Provincial Secretary, 1915, rg 8–20, Dispatches of the Department of the Provincial Secretary, ao . This assessment was slightly overstated – institutions such as prisons and hospitals were (and are) under provincial jurisdiction according to the division of powers set out in the British North America Act but immigration is a matter of shared responsibility. 18 McConnachie, “Science and Ideology,” 28. 19 “Government May Act on Feeble-Minded: Hon. Mr McPherson’s Intimation to Children’s Aid Delegates,” Globe, 12 May 1917. 20 “Stop Immigration of Feeble-Minded: Ontario Asks Help of Others in Return for Commission,” Globe, 21 June 1917. 21 McConnachie, “Science and Ideology,” 58. 22 Simmons, From Asylum to Welfare, 82n.52, identifies correspondence from W.D. Gwynne, a prominent Toronto lawyer and member of the pacfm, to C.K. Clarke as the primary source for this statement. 23 Buckley and McGinnis, “Venereal Disease,” 338. 24 Ibid. 25 Ibid. See also Gordon Bates, “The Venereal Disease Problem,” 354. 26 Unless otherwise indicated, the remaining quotations in this paragraph are from Bates, ibid. 27 Buckley and McGinnis, “Venereal Disease,” 345. 28 “The Secret Plague,” Globe, 7 June 1917. 29 College of Physicians and Surgeons of Ontario, Announcement of the College of Physicians and Surgeons of Ontario 1917–1918 and Report of Proceedings of Ontario Medical Council June, 1917 (Toronto: Registration Office, College of Physicians and Surgeons of Ontario, 1917), 93. This resolution was addressed to the federal government. 30 At the time of his appointment to the Commission on the Feeble-Minded, Hodgins had just completed his report as sole commissioner on the Royal Commission into Medical Education in Ontario which had been created on 29 September 1915. Hodgins, Report and Supporting Statements on Medical Education. That report considered, among other things, the meaning of the phrase the “practice of medicine” in order to bring clarity to the questions of who was allowed to practise medicine apart from

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32 33

34 35

36 37 38

39

Notes to pages 96–7

physicians (such as chiropractors, osteopaths, etc.) and whether the practice of medicine could be restricted to those who prescribed drugs. For a discussion of this royal commission, see Koester, “Private Detectives, Back Massages and Electric Knobs.” The ao holds copies of letters and documents noting the appointment of the royal commission in rg 18–65. Sometimes the date is stated as 8 November 1917 and other times 18 November. The more likely date is 8 November, given that 18 November 1917 was a Sunday. Hodgins, Report on the Feeble-Minded, 3. Order-in-Council 84/241, 18 November 1917, rg 18–65, Records of the Royal Commission on the Care and Control of the Feeble-Minded and Mentally Defective and the Prevalence of Venereal Disease, ao . Note that some press reports and documents reverse the order of the terms “feeble-minded” and “mentally defective” in the title of the report and the name of the commission. Hodgins, Report on the Feeble-Minded, 6. “Historical Synopsis – The Department of Psychiatry at the University of Toronto,” 5, accessed 2 June 2020, www.tspace.library.utoronto.ca/ bitstream/1807/90061/1/History%2c%20Dept%20of%20Psychiatry%20 -%20Update%202011.pdf. Lauriat, “Examination of Everything,” 32. Ellis, “‘Backward and Brilliant Children,’” 58. “Judge Hodgins Dies Suddenly – Appellate Judge Passes in Sleep; Ill Five Months,” Globe, 19 September 1932; “Mr Justice Hodgins Dies after Five Months Illness,” Toronto Daily Star, 19 September 1932. See, for example, his speech to the Ontario Bar Association on the topic of law reform reported in the Canada Law Journal 56, no. 6 (1920): 201, and “Divorce Court Needed Says Justice Hodgins,” Toronto Daily Star, 9 September 1929. Hodgins also dissented in a sensational 1929 case which saw Louis Auger, the mp from Prescott, Ontario, charged with rape and seduction as a result of his actions toward Laurence Martel, a young woman constituent who approached him in his House of Commons office in search of a job in the civil service. Historian Constance Backhouse, who directed me to this story, writes that Hodgins’s dissent from the majority Court of Appeal decision was “unprecedented” since he expressed concerns that the majority outcome would result in great unfairness to the female complainant. Interestingly, one of Auger’s defence lawyers was Raoul Mercier, the crown attorney who prosecuted Dorothea Palmer in the Eastview birth-control trial, the subject of chapter 4. See Backhouse, “Rape in the House of Commons.”

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40 “Judge Hodgins Dies Suddenly,” Globe, 19 September 1932. 41 “Mr Justice Hodgins Dies after Five Months Illness,” Toronto Daily Star, 19 September 1932. 42 These were in September 1915 to investigate medical education in the province of Ontario; in December 1918 to investigate the Northland troop-ship scandal involving riots in England by Canadian soldiers following delays in returning them home at the end of the First World War; and in February 1919 to investigate automobile insurance in Ontario, an area in which Hodgins was a recognized expert. 43 MacKay, “Mandates, Legal Foundations, Powers and Conduct of Commissions of Inquiry,” 45. 44 Hodgins, Interim Report on Venereal Diseases (hereafter First Interim Report), 3. 45 Ontario, An Act for the Prevention of Venereal Disease, 8 Geo. V, c. 42, 1918. 46 Hodgins, First Interim Report, 3. 47 The details in this paragraph are from Hodgins, First Interim Report, 3 and 4. 48 The sections of the act that correspond to the details in this paragraph are ss. 4, 6, 7, and 10 and can be found in Hodgins, First Interim Report, at 16, 17, and 19. 49 Hodgins, First Interim Report, 15. 50 Ibid., 14. 51 Hodgins, Report on Venereal Diseases (hereafter Second Interim Report), 3. 52 Ibid., 4. 53 Buckley and McGinnis, “Venereal Disease,” 337. The department was established the next year, in 1919, with Newton W. Rowell, the president of the Privy Council, expressly making the connection to venereal disease in his explanation to the House of Commons for the need for a federal department of health. Rowell makes a reappearance in chapter 4 of this story as the chief justice of the Ontario Court of Appeal and a member of the panel that rejected the crown’s appeal of the Palmer decision on 2 June 1937. 54 Hodgins, Second Interim Report, 21. 55 Hodgins, Report on the Feeble-Minded, 131. 56 “Ontario Declares War on Venereal Diseases – Legislation to Restrict Evil Consequences of Deadly Disorders Will Be Passed by Ontario Government during Next Few Weeks,” Globe, 11 January 1918. 57 “Legislation to Limit Disease: Will Enforce Treatment and Provide for Detention of Venereal Patients,” Globe, 25 February 1918.

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Notes to pages 102–6

58 “Girl Stock Raisers to Aid Production,” Toronto Daily Star, 4 April 1918. 59 “Farmers’ Day at Fair Has New Features,” Toronto Daily Star, 4 September 1918. 60 “Keen Interest in Exhibits – Medical War Congress Is Busy with Important Discussions, Too – Health Officers Meet,” Globe, 29 May 1918. 61 “Mr Justice Hodgins’ Report to the Ontario Government on the Venereal Disease Situation,” Public Health Journal 10, no. 4 (April 1919): 175–8. 62 Hodgins, First Interim Report, 3. 63 Ibid., 13. 64 Ibid., 3. 65 Buckley and McGinnis, “Venereal Disease,” 346. 66 Hodgins, First Interim Report, 14. 67 Hodgins, Report on the Feeble-Minded, 4. 68 Ibid. 69 Including L.E. Bowman, formerly secretary to the Committee on Mental Hygiene, New York State Charities Aid Association; and Ada Fitts, director of Special Classes, Boston, ibid., 133, 134. 70 Ibid., 133–5. Among them were: Mrs Adam Shortt, president of the Local Council of Women; representatives of the medical profession and public-health practitioners such as Dr C.J. Hastings, the medical officer of health for Toronto, and Major C.B. Farrar, inspector of mental hospitals; and representatives of groups set up to provide social assistance to children such as J.J. Kelso, superintendent of neglected children, Toronto, Bogue Smart, inspector of British immigrant children, Ottawa, and officials of the Children’s Aid Society. Yet others were the ymca and the Salvation Army, both of which aided those in need as part of a mandate to promote Christianity, and officials of provincial institutions like industrial schools and houses of refuge (or shelters for the homeless). 71 Hodgins, Report on the Feeble-Minded, 4. I have selected a small sample of Hodgins’s reading as set out in the report to display its breadth: Adolph Meyer, The Right to Marry (Baltimore, md : Psychiatric Clinic 1912); Proceedings of Mental Hygiene Conference at College of New York (1912); Understanding the Criminal (Chicago: Chicago Municipal Court, October 1918); Henry H. Goddard, The Binet-Simon Measuring Scale (1911) and Heredity of Feeble-Mindedness (1911); Mental Deficiency Law (New York State, January 1919); Reports from the Massachusetts School for the Feeble-Minded at Waverley, Mass. (1913, 1914, 1915, 1916, 1917, 1918). 72 Hodgins, Report on the Feeble-Minded, 4. 73 Ibid., 11.

Notes to pages 106–12 74 75 76 77 78 79

80 81 82 83 84 85 86 87 88 89 90 91 92 93 94

95

96 97

98 99

255

Ibid., 112–14. Ibid., 118. Ibid., 117–22. Ibid., 60. Ibid., 68. The activities of the pacfm were effectively folded into a new organization, the Canadian National Committee on Mental Hygiene, in 1918, when Helen MacMurchy left Toronto to take up a position with the federal government in Ottawa. Hodgins, Report on the Feeble-Minded, 127. Ibid., 128. Ibid. Ibid., 131. Ibid., 128. Ibid., 129. Immigration Act, 6 Edw. VII, c. 19. Hodgins, Report on the Feeble-Minded, 112, 113. Ibid., 113. Ibid., 114. Ibid., 132. Ibid., 127. Ibid., 22. Ibid., 17. “Help Feeble-Minded, Judge Shows the Way – Mr Justice Hodgins Submits Comprehensive Report on a Very Great Evil,” Toronto Daily Star, 24 November 1919. “Can Empty Jails by Controlling Feeble-Minded – Justice Hodgins’ Report Urges Proper Care of Mental Defectives – Some Recommendations – Suggests Better Provincial Machinery for Finding and Educating the Deficient,” Globe, 12 January 1920. Canadian Medical Association Journal 10, no. 3 (1920): 300. “Women’s Law Association Holds Dinner – Responsibilities of Women Barristers Discussed by Mrs. H.V. Laughton – Urges Need of Report – Should Consider Mental Deficiency in Connection with All Crime,” Globe, 17 February 1920. See, for example, “Big Sisters Deplore Government Inaction,” Toronto Daily Star, 9 February 1921. The timing of the report’s delivery so close to the election, whether determined by Hodgins or the government, seems too coincidental to have been anything other than deliberate. If indeed deliberate, assuming that the

256

100 101 102 103 104 105 106

107 108 109 110 111 112

113 114 115 116 117

Notes to pages 112–18

government had no inkling of its pending defeat, perhaps it hoped to be able to ignore the issues the report raised in the aftermath of the election. Drury, Farmer Premier, 93–5. “Mr Justice Hodgins Dies after Five Months Illness,” Toronto Daily Star, 19 September 1932. For example, Canada Law Journal, 48, no. 7 (April 1912): 208; and 46, no. 20 (October 1910): 604. Hodgins, Report on the Feeble-Minded, 4. Hodgins, Benchbooks of Justice Frank Hodgins, notes re Commission, rg 22–458, ao, and Hodgins, Report on the Feeble-Minded, 135, 136. McConnachie, “Science and Ideology,” 59. Possibly seeing the writing – or lack thereof – on the wall, MacMurchy appears to have given up trying to persuade the Ontario government of her views for, as McLaren tells us, in 1920, shortly after the release of the Hodgins Commission’s report and the concurrent change of government, she left her position with the province, abandoned the Provincial Association for the Care of the Feeble-Minded (which collapsed shortly afterwards), and moved to Ottawa to work for the federal government. McLaren, Our Own Master Race, 109. “Editorial,” Canadian Journal of Public Health 12, no. 12 (December 1921): 569–70. “Eugenics and the Medical Profession,” Canadian Medical Association Journal 2 (17 December 1927): 1526–8. “Editorial Comments – the Sterilization of Mental Defectives,” Canadian Medical Association Journal 5 (19 November 1928): 586. “Insulin Key to Door of Medical Problems,” Toronto Daily Star, 12 August 1924. “Voice of the People – Puts It up to the Doctors,” Toronto Daily Star, 24 October 1924. Bayly to Middleton, 30 July 1928, and Bayly to Middleton, 1 August 1928, Attorney General Central Registry Criminal and Civil Files, rg 4–32, b 247997, ao . Oliver, G. Howard Ferguson, 317. Ross, Wright, and McCutcheon, The Royal Commission on Public Welfare Report, (hereafter Ross Report). Ibid., 9, 32, and 44. This and the following quotations are from Oliver, G. Howard Ferguson, 317. “Ontario Election Called for Wednesday, October 30,” Globe, 17 September 1929.

Notes to pages 118–22

257

118 “Exhaustive Inquiry of Welfare Problems to Start Forthwith: P.D. Ross of Ottawa Is Chosen as Chairman of Commission Which Will Survey Provincial Mental Institutions, Public General Hospitals and Various Juvenile Welfare Organizations,” Globe, 13 June 1929. 119 Ross Report, 3. 120 “Philip D. Ross,” Washington Post, 6 July 1949. 121 “P.D. Ross, President of Ottawa Journal, Dies at Age of 91,” Chicago Daily Tribune, 6 July 1949; “Philip D. Ross,” Washington Post, 6 July 1949; “P.D. Ross, Headed Ottawa Journal, President of Paper since 1886, Is Dead at 91, Acquired Publication for $8,000,” New York Times, 6 July 1949. 122 “Mrs P.D. Ross – Married Publisher of Ottawa [sic] in 1891,” Globe and Mail, 9 December 1943. 123 “P.D. Ross, Ottawa Journal Publisher, 91, Keen Sportsman,” Globe and Mail, 6 July 1949. According to the Globe, the chief justice made this threat following Ross’s “sharp criticism” about delays, noting that “Mr Ross refused to back down. The chief justice did.” 124 Ibid. 125 “John McCutcheon,” Globe and Mail, 27 November 1950. 126 McCutcheon, The Physical Welfare of the School Child; and McCutcheon, Public Education in Ontario. 127 “Normal schools” were institutions established to train teachers. Toronto Evening Telegram, 6 September 1918. 128 Oliver, G. Howard Ferguson, 317. 129 “John McCutcheon,” Globe and Mail, 27 November 1950. 130 “Death Comes Suddenly to Former m.p. – Seemed to Be Improving, and Only Yesterday Talked with Friends – A Life of Service—First Entered Commons in 1925; Prominent Churchman and Rotarian,” Stratford Beacon Herald, 25 August 1937. 131 “Warm Tributes Are Paid to Work of D.M. Wright – City Suffers Signal Loss in Passing of Public-Spirited Gentleman – Lived Life of Service,” Stratford Beacon Herald, 26 August 1937 [?]. 132 Wright to Johns, 18 October 1929, Royal Commission on Public Welfare (13 August 1930), Commission of Appointment, rg 18 b -75, ao . 133 “Death Comes Suddenly to Former m.p. ,” Stratford Beacon Herald, 25 August 1937. 134 According to newspaper death notices, Ross’s funeral was held at an Anglican church in Ottawa and McCutcheon was an elder in a Presbyterian church in Toronto. Ellen Thomas, archivist for Perth County, informed the author in private email correspondence that Wright identified as a Methodist.

258

Notes to pages 123–6

135 “Commission to Study All Institutions – Welfare Inquiry’ into Hospitals, Jails, Orphanages, Ordered by Ferguson Govt,” Toronto Daily Star, 13 September 1929. 136 “Local Council Is Told of Commission’s Work,” Toronto Daily Star, 25 September 1929. 137 “Exhaustive Inquiry of Welfare Problems to Start Forthwith,” Globe, 13 June 1929. 138 “Ontario Welfare Commission Named by Premier Ferguson – Exhaustive Inquiry Promised under Chairmanship of P.D. Ross – Will Not Be Hurried,” Globe, 13 September 1929. 139 Ross Report, 10. The Hodgins Report on the Feeble-Minded included a description of its methodology – for example, where it held hearings, a list of the witnesses who appeared before it, and the written material it reviewed. Unfortunately for the historian, although the Ross Report stated (page 9) that “Appendices to this Report, giving full details of all the consideration on which we base our recommendations, have been placed in the possession of the Government [and it] is not considered necessary to print them as part of this Report,” this material is not held by the ao and is otherwise elusive. 140 Ross Diary, 19 and 24 November 1929, lac , mg 30, d 98, vol. 7, Diaries, 1929–38. In both places, Ross mistakenly identifies the organization as the National Association for Mental Hygiene. 141 Ross, Retrospects, 143, and Ross Report, 5. 142 Ross Report, 111. 143 Ross Diary, 27 November 1929. 144 The Ross Commission appears to have prepared a preliminary report on hospitals which, according to Ross’s diaries, it provided to the government in early January 1930, amazingly soon after its appointment. There is no evidence that this report was published separately and recommendations on the operations and needs of the province’s hospitals are included in the final report. 145 Ross Report, 5. 146 Ibid., 26. 147 Ibid., 43. 148 Ibid., 5. 149 Ibid., 9. 150 Ibid., 31. 151 Ibid., 32. The last sentence is puzzling as the Introduction contains no such suggestion whatsoever. 152 Ibid., 33.

Notes to pages 127–31 153 154 155 156

157

158 159 160 161 162 163 164 165 166

167 168 169

259

Ibid., 44. Ibid., 45. Oliver, G. Howard Ferguson, 318. “$20,000,000 Outlay for Public Welfare Urged on Province – New Government Department Recommended by Ross Commission after Probe of Present Social Institutions in Ontario – Grave Defects Reported Found,” Globe, 18 August 1930. “Jails Are Condemned, Health Reforms Urged after Ontario Inquiry – Sweeping Changes in Charitable and Corrective Institutions Advocated by Ross Commission –Expenditure of over $20 million Involved – Overcrowding Roundly Scored [sic] – First Offenders Herded with Hardened Criminals – General Hospitals Should Be Complete Charge on Public Funds Report Says,” Globe, 23 August 1930, and “Ontario Welfare at Stake,” Globe, 25 August 1930. “Ontario Faces Big Job,” Toronto Daily Star, 26 August 1930, quoted in Oliver, G. Howard Ferguson, 318. “System Breeds Crime Says Drastic Finding of Royal Commission,” Toronto Daily Star, 23 August 1930. Ferguson to Irving E. Robertson, 26 August 1930, Ferguson Papers, box 1 Miscellaneous, August-December 1930, ao . “Don Jail Conditions Soon to Be Remedied Says Macaulay,” Globe, 4 November 1930. “A Deficit in Ontario,” Globe, 8 January 1931. “Ontario’s Finances,” Globe, 13 March 1931. “Provincial Council Hears Fine Report on Mental Hygiene,” Globe, 5 December 1930. Hodgins, Report on the Feeble-Minded, 4. In the first category, see, for example, “Literature and Life: A Booklover’s Corner,” Ottawa Journal, 20 September 1924, which highlighted writing on eugenics by British intellectuals J.B.S. Haldane and Bertrand Russell; and “The Need for Eugenic Reform,” Ottawa Journal, 24 March 1927. In the second, see, for example, “Eugenic Law Is Set for Wyoming,” Ottawa Journal, 22 February 1923; and “Eugenic Marriages Made Compulsory – Bill Proposing This Now before Rumanian House,” Ottawa Journal, 5 March 1927. Ross Diaries, 1929–1938, Diary Correspondence of Political and Official Figures 1893–1948 (file 9–5), mg 30, d 98, vol. 7, lac; Ross, Retrospects. “A Grim Problem,” Ottawa Journal, 19 July 1939. Wright seems to have enjoyed his work on the commission and particularly his association with P.D. Ross. On 9 October 1931 he wrote to Ross:

260

Notes to pages 131–2

“As there has been a good deal of speculation lately as to who should be the next Lieutenant Governor of the Province of Ontario and having carefully considered a number of names that have been suggested I could think of no other person more deserving or better qualified than your good self. Hence, I took it upon myself to drop a line to the Hon. R.B. Bennett and the Hon. George Henry, suggesting your name. I have just received a reply from Mr Henry stating that you have been approached and on account of your wife’s health were not disposed to accept the appointment. Needless to state I am sorry that circumstances are not such as would warrant you accepting the appointment. Your appointment would have been a popular one and the duties of the office well looked after under your care.” Wright to Ross, 9 October 1931, Ross Diaries, 1929–1938, Diary Correspondence of Political and Official Figures 1893–1948 (file 9–5), mg 30, d 98, vol. 7, lac. Coincidentally, the man who was appointed in his place was Dr Herbert Bruce, whose participation as a spokesman for Eugenics Society of Canada in the cbc radio broadcasts is documented at the beginning of this book. 170 “Notes and Comments,” Globe, 18 September 1930. The “indiscretions” referred to were responsible, along with health problems, for the sorry ending to Godfrey’s political career. By his own admission, Godfrey informed a constituent that he, as minister of health, would help sort out her pension on the condition that she voted for the Conservative government in the upcoming election. Once this became public knowledge, Godfrey was pilloried by the press, leaving Ferguson no option but to sack him from the cabinet. The agonies this decision caused Ferguson, who had always counted on the support and loyalty of his old friend Godfrey, are poignantly documented in correspondence between Ferguson and Godfrey. “Godfrey Resignation,” Howard Ferguson Miscellaneous Records, f 8–10, ao . 171 There are no records of him doing so, although, given the requirement of cabinet solidarity and confidentiality, this is not surprising. 172 Of course, it could have happened the other way around with the reference to a new royal commission added later as the change that the commissioners intended to recommend in the final version of their report. However, given that this idea appears only once in the three places sterilization is discussed, a more satisfactory explanation is that the idea of a royal commission to draft legislation was the original plan which was later changed and that the single remaining reference to it was the editorial error.

Notes to pages 132–6

261

173 Ross Diary, 13 December 1929; 4 and 7 January; 13, 14, and 21 March; and 26 and 27 June 1930. See, for example, 21 March 1930: “In Toronto. Poring over draft of Mental Hygiene report with fellow commissioners”; and 27 June 1930: “In Toronto, McCutcheon and self-starting on final revision of Public Welfare report.” Ross Diaries, 1929–1938, Diary Correspondence of Political and Official Figures 1893–1948 (file 9–5), mg 30, d 98, vol. 7, lac. 174 Ross Report, 33. 175 Hector Willoughby Charlesworth, A Cyclopaedia of Canadian Biography: Brief Biographies of Persons Distinguished in the Professional, Military and Political Life, and Commerce and Industry of Canada in the Twentieth Century (Toronto: Hunter-Rose Company 1919), 282, accessed 11 June 2019, www.archive.org/stream/cyclopdiaofcan00charuoft#page/ 282/mode/2up. 176 William L. Hutton, “A Brief for the Sterilization of the Feeble-Minded,” Prepared at the Request of the Association of Ontario Mayors at Their Annual Conference June Orillia 1936, sca 88, ga 172, Parents’ Information Bureau, Series 3, file 11, Parents’ Information Bureau Fonds, accrual: 2005, uw. 177 McConnachie, “Science and Ideology,” 214. 178 These include the city councils of Belleville, Brantford, Chatham, Galt, Kitchener, North Bay, Oshawa, Port Arthur, Sault Ste Marie, and Toronto, and thirty-three town and township councils. See McLaren, Our Own Master Race, 121. 179 “The Aims and Objects of the Eugenics Society of Canada,” 4, wa 17, file 43, Dorothea Palmer Collection, uw. 180 Horne to Simpson, 5 December 1933, file: Sterilization 1933 to 1944, rg 8 1–1–a , b 226644, ao . 181 McGhie to Horne, 7 December 1933, ibid. 182 “Ontario Will Launch Wide Insanity Probe: Premier Announces Proposed Investigation by Experts – Sterilization to Be Studied,” Globe, 16 September 1936. I have been unable to find any details about this other than those contained in this newspaper article. One possibility is that it actually referred to the Magone Commission. 183 Sterilization 1933 to 1944, rg 8 1–1–a , b 226644, ao . 184 Tanner to Horne, 27 February 1936, and Horne to Tanner, 2 March 1936, ibid. 185 Horne to Atkinson, 18 February 1935, and Atkinson to Horne, 20 February 1935, Sterilization, 1933–1944, Huronia Regional Centre

262

Notes to pages 136–8

correspondence, subject files, and photographs, rg 29–24–1–18, b 226644, ao. 186 “Sterilization Notes,” Pamphlet No. 7, 1938, sca 88, ga 172, Parent Information Bureau, Series 3, file 15a, Parents’ Information Bureau: Literature: Numbered, Parents’ Information Bureau Fonds: accrual 2005,

uw. 187 Humphries to McLean, 7 December 1938, and McLean to Humphries, 17 December 1938, Sterilization 1933 to 1944, rg 8 1–1–a , b 226644, ao. As a senior civil servant, McGhie was to advise his minister about policy decisions; he was not responsible for making them himself. McLaren writes that McGhie, himself a member of the Eugenics Society of Canada, was a powerful opponent of both sterilization, which he did not believe could be effective, and segregation, which would be too expensive. His hope, according to McLaren, was special education. See McLaren, Our Own Master Race, 158. 188 There is no evidence that Forbes Godfrey considered the issue of physician liability in bringing forward his sterilization bills. 189 McLean to Humphries, 28 November 1938, and Humphries to McLean, 8 December 1938, Sterilization 1933 to 1944, rg 8 1–1–a , b 226644, ao . 190 There is some ambiguity about exactly when the organization was created. Kathleen McConnachie in “Science and Ideology” suggests it was in 1926, although she adds that it was “without notice in either the popular press or medical journals.” McLaren notes that there had been discussions regarding forming such an organization in the 1920s which had come to nothing on two separate occasions. However, he cites correspondence from David B. Harkness to the British Eugenics Society on 29 December 1930 informing it that the first meeting of the Eugenics Society of Canada had been held on 6 November 1930. By contrast, a headline in the Globe on 9 January 1931 announced the launching of a “Canadian Eugenics Society” at a meeting that night at the Royal York Hotel in Toronto. 191 McLaren, Our Own Master Race. Bruce’s memoir, Varied Operations (published in 1958), elaborates on his views about sterilization while at the same time softening them, minimizing his use of the term “feeble-minded,” criticizing the “improper use of sterilization by Hitler’s regime in Germany,” and emphasizing the connection between sterilization and the right to birth control. See 247–59. 192 Eugenics Society of Canada, “The Aims and Objects of the Eugenics Society of Canada,” 1. The segregation proposal was likely seen as also requiring legislation, but the wording used was simply “securing the segregation …”

Notes to pages 139–43

263

193 “Sterilization Policy Has Support of Doctors, Social Workers – Believe Benefits Both Eugenic and Economic Would Be Derived,” Toronto Daily Star, 19 January 1933. 194 “Subject of Eugenics Is a Lure for Women – Ninety Percent of Audiences Composed of Fair Sex,” Toronto Daily Star, 21 September 1931 195 “Leaves Large Fortune to Mothers Bearing Fine Children,” Toronto Daily Star, 28 November 1931; and “Eugenic Baby Bequest Voided by Court Order,” Toronto Daily Star, 27 June 1932. Watson G. Walton, a Hamilton man, left almost $300,000 in his will for the purpose of creating a charitable foundation to make payments to medically and physically fit parents and their offspring provided the latter were “99% perfect, physical and mentally.” Although the court recognized that the goal of the testator was for the eugenic purpose of improving the human race, that purpose did not qualify as a charitable and thus the provision was overturned. 196 “Play Golf Sundays Canon Skey Advises,” Toronto Daily Star, 5 April 1933. 197 A position he came to regret, according to the memoirs of Eric Silk, commission counsel. “Memoirs of the Parliament Buildings, (Queen’s Park) 1934–1958,” Eric Silk Fonds, mu 7805 #4, 83, ao . 198 “Want Board for Appeals by Patients – Magone Inquiry Proposes One Body to Deal with Detention Complaints from Mental Hospitals,” Globe and Mail, 30 December 1938. 199 Magone, Avery, and Conacher, Report of the Royal Commission on Operation of the Mental Hospitals Act (hereafter Magone Report), 3. 200 Magone Report, 1–2. 201 The biographical information in this paragraph comes from “Clifford Magone – Ex Office Boy Becomes Legal Authority,” Globe and Mail, 24 April 1982. 202 Eric Silk Fonds, mu 7805 #2, “Paper – Reminiscences or Memoirs,” ao . The specific quotations in this paragraph are found at 57 and 36, respectively. 203 An article in the Ottawa Journal on 13 April 1940 provides two good examples: Magone’s appearance on a constitutional case related to prohibition and on another occasion to argue against ending appeals to the Privy Council. 204 These details were provided in private email correspondence between the author and Crystal Williamson Campitelli, records analyst/archivist, College of Physicians and Surgeons of Ontario, 3 February 2017. 205 “Obituaries, Canadian Medical Association Journal 70, no. 1 (January 1954): 94.

264

Notes to pages 143–4

206 This treatment for neurosyphilis required individuals to lie for long periods of time inside a large box which was heated to over 100 degrees Fahrenheit. See the description contained in the article cited in n.208 below. 207 “May Save $200,000 by Fever Machines – Ontario Continues the Fight against Social Diseases,” Toronto Daily Star, 7 July 1939. 208 Eric Silk described the system: “Dr Avery practised from his home, an attractive red brick residence on the west side of Bathurst Street just south of Eglinton. He found fortune prior to the days of the antibiotics. At the World’s Fair in Chicago he came upon a demonstration of what came to be known as ‘hot boxes.’ They were boxes large enough to accommodate a person lying down, receiving the whole body, except the head. Electricity created from within the box caused the patient’s temperature to rise and it was found possible to keep the temperature at 106 degrees for several hours upon a diet of ice water. This proved a fast and effective cure for certain social diseases and Dr Avery’s office became a Mecca for those unfortunate ones who needed ‘the hot box treatment’ that, according to rumour, ‘didn’t come cheap.’” “Memoirs of the Parliament Buildings, (Queen’s Park) 1934–1958,” Eric Silk Fonds, mu 7805 #4, 87, ao . 209 Superintendent of the Ontario Reformatory in Guelph to H.C. Nixon, Provincial Secretary, 4 December 1940, “Venereal Disease,” rg 8–5, 2313, ao . 210 “Memoirs of the Parliament Buildings, (Queen’s Park) 1934–1958,” Eric Silk Fonds, mu 7805 #4, 85, ao . 211 “Lionel Conacher,” Canadian Sports Hall of Fame, accessed 2 June 2020, www.sportshall.ca/hall-of-famers/hall-of-famers-search.html?proID= 98&catID=all&lang=en. 212 The quotes and information in this paragraph come from: “Lionel Conacher Died as He Lived: On the Playing Field,” Toronto Daily Star, 27 May 1954; “Friend’s View – Big Train Best Yet,” Globe and Mail, 27 May 1954; “Sports Greats of Past to Form Honor Guard at Big Train’s Funeral,” Globe and Mail, 29 May 1954; “Big Train Conacher Dies Playing Game to the End,” Toronto Daily Star, 27 May 1954; and “Stricken Playing Ball, Lionel Conacher Dies,” Globe and Mail, 27 May 1954. 213 “Memoirs of the Parliament Buildings, (Queen’s Park) 1934–1958,” Eric Silk Fonds, mu 7805 #4, 85, ao . 214 The funerals for both Magone and Avery were held at funeral chapels rather than churches, an unlikely location if they had been Roman Catholics; see “Deaths – Magone, Clifford R. q.c. ,” Globe and Mail, 23 April 1982; and “Deaths – Avery, William Hambly, md ,” Globe and Mail, 19 November

Notes to pages 144–50

215 216 217

218 219 220 221 222 223

224 225

226 227 228

229

230

265

1953. Conacher’s funeral was held in an Anglican church; see “Sports Greats to Form Honor Guard at Big Train’s Funeral,” Globe and Mail, 24 May 1954. I was not able to find any details of Avery’s origins. The details of the report in this paragraph are from the Magone Report, 5. According to its official Journals, no order for printing was ever given by the Ontario legislature (accessed 16 March 2021, www.collections.ola.org/ ser/23347/v073-1939-203.pdf). The quoted sections in this paragraph can be found in the Magone Report, 8. The quoted sections in this and the following paragraph can be found in ibid., 49–50. The quoted sections in this paragraph can be found in ibid., 81. Magone Report, 32–3. Ibid., 50. “Want Board for Appeals by Patients – Magone Inquiry Proposes One Body to Deal with Detention Complaints from Mental Hospitals,” Globe and Mail, 30 December 1938. Editorial “A Constructive Report,” Globe and Mail, 31 December 1938. “Bruce Heartily Favors Sterilization Proposal – Present Social Set-Up Seen ‘Tolerating Vicious Circle’ – ‘Important Step,’” Toronto Daily Star, 30 December 1938. Unlike any of the commissioners on the Hodgins or Ross commissions, both Avery and Conacher spoke publicly about the Magone Report. “Bruce Heartily Favors Sterilization Proposal,” Toronto Daily Star, 30 December 1938. “Priest Sees Menace in Regimenting the Poor – Tendency to Ignore Human Element, Catholic Hospital Association Told,” Toronto Daily Star, 23 March 1939. “Compulsory Sterilization Is Opposed,” Msgr. J.P. Treacy, letter to the editor, Globe and Mail, 6 January 1939. A few weeks later, on 7 February 1939, the Globe published a letter in response from A.R. Kaufman, taking issue with the assumption that sterilization would be compulsory and noting that his organization had “in the last nine years been instrumental in arranging the sterilization of about 600 individuals scattered across Canada … I do not know of even one of the six hundred patients who has regretted the sterilization.” Kaufman’s sterilization program and promotion of birth control will be the subject of the next chapter. “Roman Catholics Want Every Signboard Censored – Pass Resolution Opposing Sterilization at Holy Name Rally – Elect W.J. Egan,” Toronto Daily Star, 26 June 1939.

266

Notes to pages 150–5

231 “Children’s Society Urges Sterilization – Ontario Convention Approves Principle, Leaves ‘Procedure to Others,’” Globe and Mail, 5 May 1939; “Urged Move to Cope with Mental Cases – Sterilization of Defectives Not Approved by Children’s Aid Societies,” Globe and Mail, 8 May 1939; and “Would Sterilize Unfit,” Globe and Mail, 23 March 1939. 232 “Legislature May Debate Sterilization of Defectives,” Toronto Daily Star, 21 March 1939. 233 “Bruce Heartily Favors Sterilization Proposal,” Toronto Daily Star, 30 December 1938. 234 “Mental Hospital Inquiry (Private) 1938,” Premier Mitchell F. Hepburn Office Records, box 343, rg 3–111, ao . 235 More intriguing is the possibility that Hepburn himself vetted the report before it was released although this may be too definite a conclusion to draw merely from the fact that this material is now contained in the Hepburn Papers. 236 Member of the Legislative Assembly. At the time, the characterization was used interchangeably with mpp , Member of the Provincial Parliament. 237 Editorial, “A Constructive Report,” Globe and Mail, 31 December 1938. 238 Conacher’s alcohol problems were part of his legend. Numerous online articles and sports blogs provide sources for this information, such as Podnieks, Players. 239 Laughlin, Eugenical Sterilization in the United States. 240 List of Exhibits, wa -17, g 31, Dorothea Palmer Fonds, uw. 241 Magone Report, 81. 242 Interestingly, on its face, this suggested addition to the wording of the proposed section of the Ontario Medical Act would seem to restrict that new section’s application by requiring the consent of parents or guardians and that of two physicians. Yet the authority that physicians have historically had over their patients meant that, in practice, if it had been adopted as part of the recommendation, the suggestion would likely have broadened the circumstances in which the operation could be performed for eugenic purposes although not for straightforward birth control. 243 As we see in chapter 4, which tells the story of A.R. Kaufman and the Eastview birth-control trial, this section of the Criminal Code had been at the heart of the successful fight in 1936 and 1937 to permit distribution of birth-control information and devices. Given the celebrity nature of the Eastview trial, it is certain that as lawyers Magone and Commission Counsel Eric Silk, if not also Avery and Conacher, were very familiar with this section of the Criminal Code.

Notes to pages 155–63

267

244 Census data show that the Roman Catholic population of Ontario was steadily rising and had increased from 21.7 per cent of the total in 1931 to 22.4 per cent in 1941. Seventh Census of Canada, 1931, vol. I, Summary, Published by the Authority of the Hon. W.D. Euler m.p. , Minister of Trade and Commerce (Ottawa: Printer J.O. Patenaude 1936), 240; and Eighth Census of Canada, 1941, vol. II, Population by Local Subdivisions, Published by the Authority of the Hon. James A. MacKinnon, m.p., Minister of Trade and Commerce (Ottawa: Printer Edmond Cloutier 1944), 519–21. 245 Silk refers to Hepburn as the “the redoubtable and maverick Hepburn,” “Paper – Reminiscences or Memoirs,” Eric Silk Fonds (b ), 13 March 1908, mu 7805 #2, ao. 246 Larry A. Glassford, “Hepburn, Mitchell Frederick,” Dictionary of Canadian Biography, accessed 11 June 2019, www.biographi.ca/en/bio/ hepburn_mitchell_frederick_18E.html.

c ha p t e r f o u r 1 There is some confusion about the exact date of Palmer’s arrest and the date upon which she was charged although most sources state that she was arrested on 14 September 1936 and charged the next day. 2 Rex v. Palmer, [1937] 2 dlr 609. 3 Now known as the Ontario Provincial Court. 4 “Trial on Birth Control Sets Police Court Record,” Toronto Evening Telegram, 12 February 1937. 5 Based on the Bank of Canada inflation calculator, accessed 11 June 2019, www.bankofcanada.ca/rates/related/inflation-calculator/. 6 In July 1925 John Scopes was accused of violating Tennessee’s Butler Act by teaching human evolution rather than biblical creationism to a highschool biology class. Although Scopes was found guilty, the verdict was overturned on a technicality. See Moran, The Scopes Trial. 7 Silcox, “Eastview and the Public Good,” 49. 8 “Birth Control Sale Charge Dismissed by Ottawa Cadi,” Toronto Daily Star, 21 October 1936. 9 Unidentified newspaper, sca 173, Kaufman Family Collection, A.R. Kaufman Fonds 1929–1979, ga 173, Series 4, file 24, uw . 10 Palmer later stated that she escaped only after delivering a quick knee to the groin of one of her attackers. 11 The full text of section 207 of the Criminal Code is set out in appendix 3.

268

Notes to pages 163–7

12 The English translation here is “Of Chaste Wedlock,” but the document is generally referred to by the English title “On Christian Marriage.” 13 McLaren and McLaren, The Bedroom and the State; and Dodd, “The Birth Control Movement on Trial,” 412. 14 McLaren and McLaren, The Bedroom and the State, 21, 122. 15 Carey, “The Racial Imperatives of Sex.” 16 Klausen and Bashford, “Fertility Control,” 103–4. 17 Ibid, 102. 18 Simmons in From Asylum to Welfare suggests that sterilization surgeries certainly took place at the Orillia Asylum. 19 A.R. Kaufman, “Planned Parenthood Progress in Canada,” sca 88, Parents’ Information Bureau Fonds, ga 172, Series 3, file 13, #5, uw . 20 Brown, The Genesis of the Canadian Criminal Code, 122. 21 The details of the debate on Bill 7 in this and the following paragraphs are found in Canada, House of Commons Debates (“Hansard”) for the following dates at the following pages: 12 April 1892, 1312; 11 May 1892, 2458, 2460, and 2461. 22 Hansard, 25 May 1892, 2969. 23 Magistrate Clayton outlines the confusing genesis of ss. 207(2) in his judgment, and the defence files that comprise part of the Eastview trial records at the University of Waterloo also contain at least two memoranda grappling with the same question. In any event, however, it was already a long-standing part of the obscenity provisions at the time Palmer was charged. 24 The former carry jail time in the harsher conditions of a federal penitentiary whereas the latter involve incarceration in a provincial jail. 25 Rex v. Karn, 1903 CarswellOnt 247, 2 owr 335. 26 The case was then “reserved” for “review” by the Court of Appeal, an unorthodox procedural step (of which the higher court was very critical). The Court of Appeal concluded that, although the acquittal appeared to have been in error and the issue of public good ought to have been considered, the matter had not been sent to it in the form of an appeal and hence it could neither alter the lower court’s decision to acquit nor order a new trial. 27 Bailey, For the Public Good, 5. While Bailey himself makes extensive use of primary sources which he indicates with quotation marks, he does not identify them. My references to the story of the Hamilton Birth Control Clinic are from Bailey’s book and not based on my perusal of any original-source material.

Notes to pages 167–71

269

28 Bailey provides a rather disingenuous description of their motives. Historians have subsequently shown that Hawkins and Burgar shared eugenic ideology with Kaufman and others. See Catherine Annau, “Eager Eugenicists: A Reappraisal of the Birth Control Society of Hamilton,” Histoire Sociale/Social History 27, no. 53 (1994): 111–33. 29 Unless otherwise indicated, the information and quotations in this page and the next are from Bailey, For the Public Good, 14. 30 “Kaufman Footwear,” “Doors Closed, Opened through Archives,” accessed 2 June 2020, www.doorsclosedwaterloo.wordpress.com/ kaufman-footwear/. 31 Kaufman’s views became more extreme over time. In 1969 he closed an address to a class on Contemporary Religious Issues at Waterloo Lutheran University (renamed Wilfrid Laurier University in 1973) by expressing his hope that “sterilization will soon become legal punishment for convicted criminals who evidently are not the caliber to be good parents, and should not be allowed to reproduce their kind. Since such a law is too much for the average politician to support, my compromise, and perhaps more effective suggestion, is a law to permit a six months reduction in a prison term of at least one year if the convicted prisoner voluntarily applies for a vasectomy, and is sterilized before being released.” Address by A.R. Kaufman, “Progress of Birth Control in Canada,” 2 December 1969, sca 88, Parents’ Information Bureau Fonds, ga 172, Series 4, file 54, uw . At the same time, however, his writings in later years painted a very rosy picture of his birth-control activities, ignoring their eugenic aspects and instead emphasizing (regularly and at length) the gratitude he had received for his “Report on Family Planning Activities and the Parents’ Information Bureau,” [1960?], ibid., Series 3, file 9b, #1, 4, uw. 32 “Sterilization Notes,” 1938, ibid., Series 3, file 15a, #7, 4, uw . 33 Ibid., Series 3, file 15a, #7, 17, uw. 34 McLaren, Our Own Master Race, 115. 35 “Progress of Birth Control in Canada,” 2 December 1969, sca 88, Parents’ Information Fonds, ga 172, Series 4, file 54, 1, uw. 36 “Alvin Ratz Kaufman,” accessed 30 May 2020, www.generations. regionofwaterloo.ca/getperson.php?personID=I39424&tree=generations. 37 McLaren and McLaren, The Bedroom and the State, 105. The material about Weber and the origins of the birth-control and sterilization work undertaken by Kaufman is based on “A.R. Kaufman and the Birth Control Campaign in Central Canada,” chapter 5 of The Bedroom and the State, as well as archival records in the Kaufman files at the University of Waterloo.

270

38 39

40

41

42 43

44 45

46 47 48

Notes to pages 171–3

The latter includes fact sheets and pamphlets, most of which are identified as having been written by Kaufman, about the activities and history of the Parents’ Information Bureau. Kaufman prepared several similar versions of the stories of the pib and the Eastview trial over a number of years, sometimes making only very minor changes and sometimes none at all. Selections from this material were redated, printed, and sent to individuals who asked for information. His idiosyncratic habit of reusing his own material with or without alterations makes it difficult to ascertain whether he was reporting a recollection or had based his account on his own records. Unless otherwise indicated, the information and quotations on this page are from McLaren and McLaren, The Bedroom and the State, 105. A.R. Kaufman, “Report on Birth Control Activities and Procedure,” 1 December 1937, sca 88, Parents’ Information Bureau Fonds, ga 172, Series 3, file 9a, 1, uw . See Kaufman, “Report on Family Planning Activities,” in which Kaufman wrote “when the company’s industrial nurse, at my suggestion, recommended sterilization to the more desperate cases, and the use of contraceptives to others, the eager response, and gratitude expressed, indicated that here was a field in which I could do much lasting good.” A.R. Kaufman, “Report on Family Planning Activities and the Parents’ Information Bureau,” [1960?], sca 88, Parents’ Information Bureau Fonds, ga 172, Series 3, file 9b, uw . The information and quotations in this paragraph are from A.R. Kaufman, “Report on Birth Control Activities and Procedure,” ibid., Series 3, file 9a, 1, uw . McLaren and McLaren, The Bedroom and the State, 105. A.R. Kaufman, “Report on Birth Control Activities and Procedure,” 1 December 1937, sca 88, Parents’ Information Bureau Fonds, ga 172, Series 3, file 9a, 1, uw . McLaren and McLaren, The Bedroom and the State, 105. A.R. Kaufman, “Report on Birth Control Activities and Procedure,” 1 December 1937, sca 88, Parents’ Information Bureau Fonds, ga 172, Series 3, file 9a, 1, uw . Corporate documents quoted in this paragraph are found in “By-laws of the Parents’ Information Bureau,” ibid., Series 1, file 1, uw . A.R. Kaufman, “Report on Birth Control Activities and Procedure,” 1 December 1937, ibid., Series 3, file 9a, 1, uw . Ibid. While this number initially seems hyperbolic, 50 nurses working for eight years would have to visit only 200 families a year to make it easily feasible.

Notes to pages 173–9

271

49 “Birth control notes,” sca 88, Parents’ Information Bureau Fonds, ga 172, Series 3, file 10a, #2, uw . 50 “Contraceptive price list for registered mothers,” ibid., Series 3, file 45, #54, uw . 51 A.R. Kaufman, “Report on Birth Control Activities and Procedure,” 1 December 1937, ibid., Series 3, file 9a, 1, uw . 52 A.R. Kaufman, “Progress of Birth Control in Canada,” 2 December 1969, ibid., Series 4, file 54, 3, uw . 53 A.R. Kaufman, “Report on Birth Control Activities and Procedure,” 1 December 1937, ibid., Series 3, file 9a, 1, uw . 54 Revie, “More Than Just Boots!” 122 and 129. 55 This opinion was somewhat different from that of the government’s lawyers. 56 “Request and Consent Forms, Male and Female,” sca 88, Parents’ Information Bureau Fonds, ga 172, Series 3, file 19, #11, uw . 57 Ibid. 58 “Consent to Sterilization of a Minor,” ibid., Series 3, file 19, #11, uw . 59 A.R. Kaufman, “Report on Family Planning Activities and the Parents’ Information Bureau,” [1960?], ibid., Series 3, file 9b, uw . 60 McLaren and McLaren, The Bedroom and the State, 116–17. 61 Dodd, “The Canadian Birth Control Movement on Trial,” 417. 62 Julie Hird, private email correspondence with the author, 11 May 2020. According to family genealogical research, Mary Ann herself was born to an unmarried woman named Sarah Palmer. Upon Sarah’s subsequent marriage to John Paget, he became Mary Ann’s stepfather. 63 Mary Bishop, “The Unlikely Fathers of Birth Control and Sex Therapy in Canada: A.R. Kaufman (1885–1979) and A.H. Tyrer (1870–1942)” (unpublished manuscript, n.d., file: Birth Control in Canada Mary Bishop), 63, Canadian Mental Health Association Fonds, camh . 64 Affidavit of Dorothea Palmer, Dorothea Palmer: Rex vs. Palmer, Appeal 1937, wa 17, file 1, Dorothea Palmer Collection, uw . 65 McLaren and McLaren, The Bedroom and the State, 117. 66 “Birth Control Sale Charge Dismissed by Ottawa Cadi,” Toronto Daily Star, 21 October 1936. 67 Bishop, “The Unlikely Fathers of Birth Control and Sex Therapy in Canada,” 66. 68 Ibid. 69 “Birth Control Charge Said Unique in Anglo-Saxon Law,” Toronto Daily Star, 22 October 1936. 70 After the trial, Palmer disappeared from public view, although she surfaced in an interview given to the Globe and Mail on 30 November 1978,

272

71

72

73 74 75 76 77 78 79

80 81 82

Notes to pages 179–80

pointing out wryly that Eastview was a story of women once again doing the hard work for the men. There are a number of versions of the story of Dorothea Palmer’s arrest, some made contemporaneous with the events and some recalled many years later. These include newspaper reports of the trial, the evidence at the trial, a transcript of the interview Palmer gave to historian Mary Bishop in 1978, a newspaper interview with her forty years after the trial, and the transcripts of an interview done in 1983 with Margaret Hyndman, who had been a young lawyer in the office of Kaufman’s Toronto lawyer F.W. Wegenast at the time of the trial. These versions vary with respect to details such as whether Palmer expected to be arrested, whether she realized when she described her activities to the police that she would be charged, and whether she viewed her own position as advocate or victim. It is not clear how Palmer communicated with the women in Eastview. I came across no evidence indicating that she spoke French and an interpreter was used at the trial since the proceedings were in English, which very few of the women who testified spoke. It may have been the case that Palmer could speak enough French and the women could speak enough English to facilitate their conversation. For his part, Kaufman was skeptical that an interpreter was actually necessary at the trial. He uncharitably believed that the women were dissembling and could actually speak better English than they let on. Bishop, “The Unlikely Fathers of Birth Control and Sex Therapy in Canada,” 63. Dodd, “The Canadian Birth Control Movement on Trial,” 414. Interviews with Margaret Hyndman, tape 11, c 81–1–0–29, Osgoode Society Oral History Program, ao . www.biographi.ca/en/bio/wegenast_franklin_wellington_17E.html, accessed 10 June 2019. “Death Claims F.W. Wegenast: Well-Known Toronto Lawyer Dies at Preston,” Globe, 3 June 1942. Wegenast, The Law of Canadian Companies. I found no evidence of how Wegenast and Kaufman came to know one another. Perhaps the explanation is as simple as the fact that Kaufman needed a lawyer and Wegenast was well known and highly regarded. McLaren, Our Own Master Race, 85. One such is historian Margaret Derry, who wrote the entry for Wegenast (her grandfather) in the Dictionary of Canadian Biography. Interviews with Margaret Hyndman, tape 11, c 81–1–0–29, Osgoode Society Oral History Program, ao .

Notes to pages 181–5

273

83 Wegenast to Beament, 30 September 1936, sca 31, Dorothea Palmer Collection, wa 17, file 14, uw . 84 Wegenast to Beament, 28 November 1936, ibid. 85 Doris Hopper, “Birth-Control Pioneer Ends 42-Year Exile,” Toronto Star, 30 November 1978, d 3. 86 The biographical details about Mercier come from the newspaper report of his death. “Crown Attorney Mercier Dies,” Ottawa Journal, 23 May 1962. 87 According to historian Constance Backhouse, a delegation of anglophone lawyers travelled from Ottawa to meet with Premier Hepburn to register their objections to the appointment on the basis that Mercier was in debt, French, and Roman Catholic. Hepburn did not relent, partly because Mercier was a supporter of Hepburn’s Liberal Party. See Backhouse, “Rape in the House of Commons,” 50 and 63n.44. 88 “R. v. Palmer: argument Taken on February 11, 1937, volume IV,” sca 31, Dorothea Palmer Collection, wa 17, file 8, uw . Wegenast had a different view. He stated in a speech to the Orange Lodge shortly after the trial but before the appeal that “I have been told that a certain lawyer in Ottawa, at the behest of certain religious authorities had been working for two months to try to get a case to prosecute, and that finally the editors of a certain French Canadian paper undertook to find the necessary evidence in Eastview. The arrest was the result.” Untitled and undated speech to the Orange Lodge of Brantford, sca 31, Dorothea Palmer Collection, wa 17, file 36, uw . This speech is contained in the Hutton correspondence file, suggesting that it may have given by Hutton rather than Wegenast. However, given the details of the speech, it is more likely that it was actually given by Wegenast. 89 University of Toronto, Torontoensis (Toronto: Students’ Administrative Council 1925, 1926, and 1927), and Ontario Bar Biographical Research Project, Law Society of Ontario Archives. 90 See transcripts of the Eastview trial generally, sca 31, Dorothea Palmer Collection, wa 17, in particular files 21–30, uw . 91 “Trial on Birth Control Sets Police Court Record,” Toronto Evening Telegram, 12 February 1937. 92 There was some initial confusion perhaps on the part of the police about whether Palmer actually gave samples away during her visits. The evidence of the women that Palmer had visited was that she had indeed done so although she was not charged for having such devices at her disposal. 93 This and the details of the testimony in the following paragraphs comes from “Rex v. Palmer: argument taken February 11, 1937, volume IV,” sca

274

94 95 96 97 98 99 100 101 102

103 104 105 106 107 108 109 110 111 112

113 114 115 116

Notes to pages 185–91

31, Dorothea Palmer Collection, wa 17, files 22, 391, 400, 403, 387, 409, and 415, uw . The thirty-page pib pamphlet reporting on the trial notes that six of these women “insisted on” an interpreter, “even though all but one knew more or less English.” “Eastview Birth Control Trial,” sca 88, Parents’ Information Bureau Fonds, ga 172, Series 3, file 33, #26, 6, uw . “Eastview Birth Control Trial,” sca 88, Parents’ Information Bureau Fonds, ga 172, Series 3, file 33, #26, 6, uw . “Examinations,” sca 31, Dorothea Palmer Collection, wa 17, file 22, d 116, uw. Ibid., file 22, d 170, uw. Interviews with Margaret Hyndman, tape 11, c 81–1–0–29, Osgoode Society Oral History Program, ao . “Examinations, Volume 8,” sca 31, Dorothea Palmer Collection, wa 17, file 29, 147, uw . “Examinations, Volume 3,” ibid., file 24. “Examinations, Volumes 2, 4 and 6,” ibid., files 23, 25, and 27. “Examinations, Volume 6,” ibid., file 27, 11. In 1944 Dr Chisholm, who was then the highest-ranking medical officer in the Canadian army, became the first federal deputy minister of health. He left that position in 1946 to become the executive secretary of the World Health Organization. “Examinations, Volumes 5 and 6,” sca 31, Dorothea Palmer Collection, wa 17, files 26 and 27, uw. “Examinations, Volume 6,” ibid., file 27, 12. Ibid. Ibid., 13. Ibid., files 24, 26, 27. Ibid., file 24. Ibid., file 27, n 7, n 8. “The Aims and Objects of the Eugenic Society of Canada,” sca 31, Dorothea Palmer Collection, wa 17, file 42, 1, uw . “Examinations, Volume 5,” ibid., file 26. The crown’s rebuttal evidence and the defence’s cross-examination on it is summarized in “Birth Control Trial,” sca 88, Parents’ Information Bureau Fonds, ga 172, Series 3, file 33, 13–17, uw . Ibid., Series 3, file 33, 16. “Rex vs. Palmer,” 9 February 1937, sca 31, Dorothea Palmer Collection, wa 17, files 5–8, uw . “Examinations,” sca 31, Dorothea Palmer Collection, wa 17–5, 17, uw . Ibid.

Notes to pages 192–5

275

117 He noted that these points also applied under the medical category. 118 “Examinations,” sca 31, Dorothea Palmer Collection, wa 17, file 6, uw . 119 The transcript does not identify exactly which exhibit this was. Based on a list of exhibits included in archival files, it is likely from either “Dynamics of Population,” the authors of which were listed as Lorrimer and Osborn, or “Eugenic Predicament” by S.J. Holmes. These were the two exhibits introduced immediately after Hutton’s “Brief for Sterilization of the Feeble Minded.” Wegenast then moved on to a review of the medical advantages of birth control. 120 I have had doubts about my analysis of Mercier’s handling of the case for the crown. For example, I have criticized Mercier for introducing evidence from all the women whom Palmer had visited, thus providing Wegenast with an opportunity to cross-examine each of them and thereby obtain a considerable quantity of evidence which allowed him to hammer home the point that witness after witness did not think she had done anything wrong. This, in turn, helped him deflect Mercier’s argument that the public good should be assessed on the basis of the characteristics of the local community. The counter view is that Mercier felt obliged as the crown to present a complete case, especially in order to prove the charge of “advertising,” and this was actually an indication of how seriously he took the maxim that “the Crown never wins and the Crown never loses.” Similarly, while I claimed that Mercier appeared to have been “outplayed” on the issue of the expert witnesses, this was perhaps not actually of much significance, since Mercier had another chance to introduce experts in rebuttal to the defence’s case. Furthermore, perhaps this simply reflected the unlimited resources provided by Kaufman which Wegenast had at his disposal compared to what Mercier would have had available. While I agree that the crown’s responsibility as Mercier saw it was quite likely a factor in the practical decisions about how to manage his case, I am still of the view that he made many tactical errors upon which Wegenast was able to capitalize. 121 [1937] 2 dlr, Rex. v. Palmer, Magistrate’s Court, District No. 10, Ontario, Clayton, Senior Magistrate, 17 March 1937. 122 The quotations from the decision on this page are from ibid., 613. 123 Ibid., 616. 124 Ibid., 617. 125 Ibid. 126 Ibid., 619. 127 “Appeal Is Taken on Birth Control,” unidentified newspaper, 24 April [n.d.; 1937?], sca 173, Kaufman Family Collection, ga 173, Series 4, uw .

276

128 129

130

131 132 133 134 135 136

137

138 139 140 141

Notes to pages 195–8

There are no records which explain the reason for the decision to appeal Clayton’s decision. No records of the crown’s material exist. One of the jobs of the chief justice is to assign cases to judges. The fact that Rowell chose to hear this case himself indicates he likely had a particular interest in it. It is tempting to read this decision as a political move on Rowell’s part, particularly considering that fact that, as a lawyer, he successfully argued the Privy Council appeal of the “Persons Case” which granted women the right to be appointed to the Canadian Senate. The details about the arguments and the decision come from the Appeal Court decision. [1937] 3 dlr, Rex. v. Palmer, Ontario Court of Appeal, Rowell, cjo , Middleton and Masten jja , 2 June 1937, 493–6. Rex. v. Palmer, Ontario Court of Appeal, 494. “The Great Birth Control Trial,” Maclean’s Magazine, 23 November 1957, 22. Silcox, “Eastview and the Public Good,” 48. Ibid. Various newspapers, sca 173, Dorothea Palmer Collection, g 173–4, uw . Examples of Canadian Press stories include the following: “Upholds Birth Control Drive – Canadian Court Rules Contraceptive Education for the ‘Public Good,’” Reading Times (Reading, pa) , 18 March 1937; “Controlled Birth Education Upheld – Charge against Ottawa Social Worker Dismissed,” Indianapolis News, 18 March 1937; and “Birth Control Case Dismissed,” Arizona Republican, 17 March 1937. Examples of Associated Press and United Press stories include: “Acquitted,” Dunkirk Evening Observer (Dunkirk, ny), 17 March 1937; and “Court Approves Advice on Birth Control to the Poor,” Chicago Tribune, 18 March 1937, accessed 10 June 2019, www.newspapers.com/image/48030708. “Birth Control,” Winnipeg Tribune, 19 March 1937, and “Magistrate’s Decision Creates a Landmark,” Toronto Evening Telegram, 18 March 1937, both quoted in “Eastview Birth Control Trial,” sca 88, Parents’ Information Bureau Fonds, ga 172, Series 3, file 33, 20–2, uw . “An Interesting Verdict,” Star-Phoenix, 19 March 1937, quoted in ibid., Series 3, file 33, 22–3, uw . “Herrings and Tricks,” Catholic Record, 27 March 1937, quoted in ibid., Series 3, file 33, 23–4, uw. “For a Legion of Decency?” English translation of French Editorial in L’Unité, quoted in ibid., Series 3, file 33, 25–6, uw. Wegenast to Beament, 29 September 1936, sca 31, Dorothea Palmer Collection, wa 17, file 14, uw .

Notes to pages 198–204

277

142 The unmarried name of Kaufman’s first wife, Jean, was Hutton. This suggests that she was related to Dr W.L. Hutton, which in turn may explain Kaufman’s involvement with the esc . 143 “Kauffman, A.R. [sic],” A.R. Kaufman to Marilyn E. Schima, 7 May 1974, Planned Parenthood Records, mu 4468, Series b, General Files, 1972–79, ao, cited in Revie, “More Than Just Boots,” 120, 137n.2. 144 “The Aims and Objects of the Eugenic Society of Canada,” sca 31, Dorothea Palmer Collection, wa 17, file 42, 4, uw . 145 Ibid. 146 Hutton, “A Brief for the Sterilization of the Feeble-Minded,” June 1936, sca 88, Parents’ Information Bureau Fonds, ga 172, Series 3, file 11, 10, uw. 147 “The Eastview Decision,” Saturday Night, 27 March 1937, quoted in “Eastview Birth Control Trial,” ibid., Series 3, file 33, 22, uw . 148 An Interesting Verdict,” Star-Phoenix, 19 March 1937, quoted in ibid. 149 “Magistrate’s Decision Creates a Landmark,” Toronto Evening Telegram, 18 March 1937, quoted in ibid., Series 3, file 33, 21–2. 150 McLaren and McLaren, Bedroom and the State, 116–17. Alternatively, if Wegenast is correct, it may have been the Roman Catholic Church looking for the fight. See n.88. 151 Bishop, “The Unlikely Fathers of Birth Control and Sex Therapy in Canada,” 67. 152 These scrapbooks contain many pages of cut-out newspaper and magazine illustrations glued onto blank pages with cut-out typewritten captions added. Some are whimsical, such as one with a number of Beatrix Potterlike rabbits labelled with names of participants in the trial and a typewritten list of “Memorable Remarks.” “Scrapbook,” sca 173 Kaufman Family Collection, ga 260, Series 1, file 9, uw . 153 “Rex vs. Palmer,” sca 31, Dorothea Palmer Collection, wa 17, file 23, uw. 154 “Population Problems,” ibid., file 47; and “Effects of Eugenic Sterilization as Practiced in California,” sca 88, Parents’ Information Fonds, ga 172, Series 3, file 17, uw . 155 Stortz to Kaufman, 25 March 1977, ibid., ga 58, Series 5, file 90, uw. 156 McLaren, Our Own Master Race, 84–5. 157 Kaufman and the pib were actually ahead of their time in this requirement – the concept of “informed consent” did not develop until the Nuremberg trials after the Second World War. 158 In fact, historian Linda Revie has suggested that men seeking vasectomies may have been influenced to undergo this procedure in order to keep their employment at Kaufman’s factory. See Revie, “More Than Just Boots,” 128.

278

Notes to pages 204–17

159 “Did Dirty Work for Men at Trial, Pioneer of Birth Control Says,” Globe and Mail, 30 November 1978. 160 Bishop, “The Unlikely Fathers of Birth Control and Sex Therapy in Canada,” 63. 161 “Sterilization Notes,” 1938, sca 88, Parents’ Information Bureau Fonds, ga 172, Series 3, file 15a, #7, 3, uw. 162 The separate-school system is Roman Catholic. The cartoon therefore makes an implicit link between the Roman Catholic Church, its antibirth-control stance, and a population “flood.” “Scrapbook,” sca 173, Kaufman Family Collection, ga 260, Series 1, file 9, uw . 163 The history of the bitter relations between Roman Catholics and Protestants in Toronto and Ontario is well documented. For two recent examples, see Smyth, Toronto, The Belfast of Canada; and Levine, Toronto. 164 Rex v. Palmer, 617. 165 Corporate documents quoted in this paragraph are found in “By-laws of the Parents’ Information Bureau,” sca 88, Parents’ Information Fonds, ga 172, Series 1, file 1, uw. 166 Unidentified newspaper, sca 173, Kaufman Family Collection, ga 173, Series 4, file 24, uw . 167 Rex v. Palmer, 617. 168 “Examinations,” sca 31, Dorothea Palmer Collection, wa 17, file 6, uw. 169 A.R. Kaufman, “Report on Family Planning Activities and the Parents’ Information Bureau,” [1960?], sca 88, Parents’ Information Bureau Fonds, ga 172, Series 3, file 9b, 2, uw .

c onc l usio n 1 Similarly, the judge’s decision, which was influenced by the eugenic arguments presented by Wegenast, also linked birth control to public health. Rex v. Palmer, 616. 2 Christian, “The Mentally Ill and Human Rights in Alberta.” 3 Ibid., 14. 4 Ibid., 15. 5 Ibid., 18. 6 Ibid., 17. 7 Dyck, “Eugenics in Canada: Coercion, Choice and Context,” 42. 8 Grekul, Krahn, and Odynak, “Sterilizing the ‘Feeble-Minded.’” 9 Christian, “The Mentally Ill and Human Rights in Alberta,” 8; McLaren, Our Own Master Race, 99–100. 10 McLaren, Our Own Master Race, 42.

Notes to pages 218–21

279

11 Dowbiggin, Keeping America Sane, 157. 12 Ibid., 181–2. 13 Ironically, in 1931, for example, the “weak” Roman Catholic Church in Alberta represented 23 per cent of the population whereas in Ontario the more influential Roman Catholic population represented 22 per cent. This demonstrates that absolute percentages cannot be simplistically interpreted as reflecting a comparative strength or influence. See Deighton, “The Nature of Eugenic Thought,” 74n.44; and Seventh Census of Canada, 1931, vol. I, 240. 14 O’Brien, Framing the Moron. O’Brien analyzes various metaphors, including biological, used by the eugenics movement to describe feeble-minded individuals. 15 This view is also espoused in Dyck, “Eugenics in Canada,” 49. 16 Hansen and King, Sterilized by the State, 7 and 117–38; and Largent, Breeding Contempt. 17 Hansen and King, Sterilized by the State, 118–19; and Grekul, Krahn, and Odynak, “Sterilizing the ‘Feeble-Minded.’” 18 Hansen and King, Sterilized by the State, 19; and Reilly, The Surgical Solution, 49. 19 Hansen and King, Sterilized by the State, 4. 20 Leon, An Image of God. 21 Spencer, “Eugenic Sterilization in New Zealand”; Deighton, “The Nature of Eugenic Thought”; and Kurbegovic´ “Eugenics in Manitoba” and “Eugenics in Comparative Perspective.” 22 This concept builds on the work of historian Diane Paul, who wrote about the diversity of the attraction of eugenic ideas in Controlling Human Heredity and The Politics of Heredity. For example, while the story of eugenics in Ontario is characterized by the work of middle-class white men and a few white women, this does not describe eugenics in every other place. This is apparent from more recent scholarly work such as that by Shantella Y. Sherman, who In Search of Purity analyzes the various ways in which eugenic ideology was appropriated by black intellectuals on behalf of the New Negro Movement, and Thomas C. Leonard, who makes a similar point in Illiberal Reformers about the appeal of eugenic ideas to certain black leaders and also describes the appeal of these same eugenic ideas across ideological boundaries within the same professions, including U.S. Supreme Court judges, social reformers, and scientists. 23 Examples of historians having done so include Stern, Eugenic Nation; Ladd-Taylor, Fixing the Poor; Rembis, Defining Deviance; Spencer, “Eugenic Sterilization in New Zealand”; Roll-Hansen, “Some Thoughts on Genetics and Politics”; and Dyck, Facing Eugenics.

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Note to page 230

a p p e nd i x t h re e The official version of Section 207 does not follow current conventions regarding the way the sections of a statute are numbered. Given that there is a subsection 207(2), one would expect each of a, b, and c to be part of subsection 207(1). However, the indication of subsection (1) is missing. Accordingly, for ease of reference and consistency, I have described 207 a, b, and c as well as 207(2), (3), and (4) as subsections of section 207.

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Index

Page numbers in italics indicate references to illustrations.

Aberhart, William, 218 abortion literature, drugs, and instruments, 164–5 An Act to Amend the Marriage Act (1913). See marriage bill of government (1913) An Act for the Prevention of Venereal Disease (1918), 100–1 advertisement of birth control, prohibition, 160, 163, 165–6, 184, 193, 196 African Americans, 39 agriculture, and breeding, 219 “The Aims and Objects of the Eugenics Society of Canada” (booklet), 189 Alberta: eugenics story, 216–17, 218–19, 220; sterilization consent, 200, 203; sterilization law, 44, 216, 217; sterilization surgeries, 39, 44, 216 appeals in courts, 195 Archives of Ontario, 18, 151 asylums in Ontario, admissions and practices, 139 Atkinson, H.S., 136–7

Avery, William Hambly: as commissioner (on Magone), 90, 140; description, 141, 143; and sterilization-law recommendation, 149, 151, 154; venerealdisease work, 143, 264n.208 Bailey, Thomas Melville, 167 Ballard, George, 167–8 Bayly, E., 117 Beacon Herald (Stratford), 122–3 Beament, A.W., 179, 181 Beament and Beament law firm, 180, 181 Beaud, Jean-Pierre, 28 Bell, C.W., 168 Benchbooks of Judge Hodgins, 18–19 Bill 7 Respecting the Criminal Law (1892), 164, 165 Bill 101, An Act to Amend the Marriage Act. See marriage bill of Godfrey (fourth, 1921) Bill 113, An Act to Amend the Marriage Act. See marriage bill of Godfrey (third, 1918)

304

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Bill 123, An Act Concerning Operations for the Prevention of Procreation. See sterilization bill of Godfrey (fourth, 1914) Bill 142, An Act Concerning Operations for the Prevention of Procreation. See sterilization bill of Godfrey (third, 1913) Bill 146, An Act to Amend the Marriage Act. See marriage bill of Godfrey (second, 1913) Bill 184, An Act to Prevent Procreation by Confirmed Criminals, Idiots, Imbeciles and Rapists. See sterilization bill of Godfrey (first, 1910) Bill 193, An Act to Amend the Marriage Act. See marriage bill of Godfrey (first, 1912) Bill 201, An Act Concerning Operations for the Prevention of Procreation. See sterilization bill of Godfrey (second, 1912) bills (legislative): as legal process in case study, 16, 17–18; and party members’ vote, 51; private members’ bills, 51–2; process in legislature, 17, 50, 51 birth control and birth-control campaigns: advertisement prohibition, 160, 163, 165–6, 184, 193, 196; application of section 207, 167–8; benefits, 187–8; in Bill 7 (1892), 165; in Eastview trial decision, 193–5; and esc, 199; and eugenics, 40–1, 163, 202, 203; Kaufman’s services and information, 171–2, 173, 197, 201, 202; in news during Eastview trial, 197; and pib, 160,

172–3, 204–5; as public good, 22, 162, 180; and Roman Catholic Church, 163, 191, 205–8; use in Canada, 162–3; work by women, 204–5. See also Eastview birth-control trial “Birth Control and Some of Its Simplest Methods” pamphlet, 160, 193 Borden, Robert, 93–4 Brennan (Father), 149 Britain: eugenic law, 43; eugenic solutions, 37, 42–3; feeble-minded legislation, 93; First International Eugenics Congress, 10–11; immigration to Canada, 28; and origin of eugenics, 9–10; race and unfitness, 39; as source of law in Canada, 52, 241n.24; taxonomies, 23 British Columbia, and sterilization, 44 British Privy Council, 94 Brock Committee and Report, 199 Brown, William, 29 Bruce, Herbert Alexander, 4; description and social standing, 3–4; in esc, 138; eugenic views, 3; home and grounds, 5; statistics used in Magone Report, 148; sterilization views, 6; support for sterilization law, 148–9; talks on cbl/cbc radio, 3, 5, 6 Buck. v. Bell (U.S.), 19 Burgar, Gertrude, 167, 168 California, compulsory sterilization, 199 “California Sterilization Law” radio talk, 6

Index Canada: birth-control use, 162–3; eugenic thinking, 43–4; legal system and division of powers, 22–3, 94, 164, 215–16; legislative process, 50, 51; nation building in early twentieth century, 34; power of government over individuals, 220; royal commission on feeble-minded, 93–4 Canada Lancet, 54, 55, 60–1, 65 Canada Law Journal, 55, 65, 82–3 Canadian Medical Association, on Hodgins Report, 111 Canadian Medical Association Journal, 116 Canadian National Committee for Mental Hygiene (cncmh): and Hodgins Commission, 105, 114, 157; and Ross Report, 131, 157 Canadian Public Health Association, on venereal disease, 103 Cargill, Richard, 190 case studies (three cases together): as different legal processes, 16–20, 211–13; and inaction by government, 213–14, 219; omissions in, 23; and public opinion, 219; sources (archival), 18–20, 21–2; state regulation vs. individual rights, 42; and taxonomies, 23–4. See also case study 1; case study 2; case study 3 case study 1 (Godfrey’s bills, generally): assessment of proposed solutions, 87; and history of eugenics in Ontario, 82–3; impact despite failure of bills to pass, 77, 85–8; origins of and models for bills, 53–5, 242n.36;

305

overview, 16, 46, 211–12; as private members’ bills, 52, 77; public good vs. individual rights, 83; sources, 18; text, 223–7; “two bills at once” strategy, 82; withdrawal of bills, 45, 61, 65, 67–8, 69, 70, 74 case study 1 (Godfrey’s marriage bills): first (1912), 54, 61–2, 65, 66, 81, 225–6; second (1913), 54, 66, 67, 69, 81, 226; third (1918), 54, 71–5, 80, 84, 226–7; fourth (1921), 54, 75–6, 80, 84, 227; forms and model, 54–5; government opposition, 81–2; marriage bill of government (1913), 45, 68–70, 78, 83, 228–9; overview, 46, 52; public support, 82 case study 1 (Godfrey’s sterilization bills): first (1910), 53, 55–61, 82–3, 223; second (1912), 53, 63–6, 78, 82–3, 224–5; third (1913), 53, 66–8, 69, 224–5; fourth (1914), 53, 70, 224–5; forms and model, 53–4, 56; government opposition, 77–8, 82; overview, 46, 52; public support, 78–80 case study 2: appointment of royal commissions, 86, 90; environment for, 85–6, 94, 95; eugenics and sterilization in, 156–7; inaction by government, 111, 112, 128, 155–6, 157, 158–9, 212, 213; overview, 16, 89–91, 212–13; participants and eugenic solutions, 158; recommendations, 89, 156–7, 212; sources, 18–19; use of royal commissions,

306

Index

157–8. See also royal commissions; individual royal commission case study 3: and federal-provincial division of powers, 22–3, 164; inaction by government, 214; overview, 16–17, 161–3, 213; sources, 19–20. See also Eastview birth-control trial cbc (Canadian Broadcasting Corporation): creation and mandate, 4; “The Future of the Race” radio talks, 4–5, 7 certificates. See medical certificates Charlton, John, 164–5 Chisholm, Brock, 188, 189 Chorley Park, 5 Christian, Timothy, 216, 217 Clarke, C.K. (Charles Kirk): as candidate for Hodgins Commission, 96–7; criticism of Downey, 248n.125; description and role, 92; eugenics support in Ontario, 217–18; on feeble-minded as problem, 36, 86; on Hodgins Report, 111, 112; and immigration, 36, 92; on pacfm, 93 classification schemes, use in cases, 23–4 Clayton, Lester Herbert: and canon law, 208; decision in Eastview trial, 192–5, 196; as judge in Eastview trial, 183–4, 187, 191; on public-good defence, 192–4, 195 College of Physicians and Surgeons of Ontario, on venereal disease, 95 Conacher, Lionel P.: and alcoholism, 152; as commissioner

(on Magone), 90, 140–1, 152; death and recognition, 144; description and achievements, 143–4 Connecticut law, as model for sterilization bills, 53, 63, 242n.36 consanguineous marriages, 53 consent in eugenics, 204. See also sterilization consent Constance (daughter of Godfrey), 249n.139 Couture, Ernest, 190 Crane, Frederick E., 202 Criminal Code, of Canada: description and origin, 164–5; inaction by government, 214; section 69, 193; on surgery, 164 Criminal Code, section 207: application to birth control, 167–8; in cases before Eastview trial, 193; charge of obscenity and advertisement of birth control (subsection 207[c]), 160, 184–6, 193, 196; charges against D. Palmer, 179, 184; obscenity provision, 160, 165–6, 193; origin and description, 165–6; public-good defence (subsection 207[2]), 165, 166–8, 184–5, 186–9, 191, 192; “reverse onus” provision, 166; statutory defence, 161; and sterilization recommendation in Magone Report, 154–5; subsections, 165–7; text, 230–1 criminal law: as federal jurisdiction, 164; presumption of innocence, 166 criminal trial: as legal process in case study, 16–17, 19–20; role, 19

Index Daily Star. See Toronto Star and Daily Star Darwin, Charles, and Darwinism, 10 Darwin, Leonard, 10 Davenport, Charles, 42, 43 De Haitre (doctor), 186 Dodd, Dianne, 163 Dowbiggin, Ian, 33, 218 Downey, Joseph Patrick: criticism of, 79, 248n.125; on marriage restrictions, 79, 80, 81, 220; views on Godfrey’s sterilization bills, 79–80, 81 Drury, Ernest, 76, 215 Ducharme, Severin, 74 Dyck, Erika, 13, 39, 216 Eastview birth-control trial: appeal, 195–6; archival material, 19–20; charge of obscenity and advertisement of birth control (subsection 207[c]), 184–6, 193, 196; costs, 180, 181; decision, 192–5; description and details, 160–1, 176, 184; esc in, 162, 198; eugenic argument, 188–90, 192, 194, 208–9; expert witnesses, 187–90; federal and provincial jurisdiction for, 22–3; judge, 183–4; lawyers, 179–83; overlap of birth control and eugenics, 162, 163; proceedings and testimony, 184–92, 205; and public good, 161, 187, 191–3, 196, 209; public-good defence (subsection 207[2]), 184–5, 186–9, 191, 192; public good and eugenics, 161, 162, 189–90, 192, 209; reaction to, 196–8, 200–1; state

307

regulation vs. individual rights, 42; and women, 22, 185–6, 198, 205. See also case study 3; individual participants Eastview (town): birth-control program of Kaufman, 32–3, 40, 207; courthouse, 183, 184, 196–7; description, 160, 176; non-British character and French-speaking population, 32–3, 40, 176 economy, in early twentieth century, 28 esc. See Eugenics Society of Canada Eugenical Sterilization in the United States (Laughlin), 43 eugenics: approaches to, 200–1; and classification, 23, 24; and consent, 204; definition, description, and concept, 8–9, 11, 36, 209; definition by esc, 138; diversity in (as shape-shifter), 9–10, 11, 26, 36–7, 38, 200–1, 209; etymology, 9; factors intertwined with, 33–5, 38–42; international responses, 36–8, 42–3; North American incarnation, 12–13; origin and early days, 9–11, 14; power of government over individuals, 220; and public good, 8, 83, 161; as solution for social ills, 9–10, 11, 12, 36, 115–16, 208; variation by place, 36–7, 38; vocabulary in book, xix. See also laws and eugenics; Ontario and eugenics; specific topics Eugenics Education Society (Britain), 10, 42–3

308

Index

eugenics organizations, role, 80 Eugenics Record Office (ero), 43 Eugenics Society of Canada (esc): and birth control, 199; definition of eugenics, 138; in Eastview trial, 162, 198; eugenic views compared to Kaufman’s, 198–200; executives of, 138; formation and role, 80, 135, 138–9, 262n.190; goals, 135, 138, 153, 154, 199; radio talks on cbc, 4–7, 139; sterilization law proposed in Magone Report, 146, 152–3, 154, 158; support of eugenic laws, 7; support of sterilization, 139, 199, 200, 209; use of law, 21. See also individual members Fairchild, Henry Pratt, 163 federal government, 22, 164, 214 feeble-mindedness and feeble-minded: connection with prostitution and venereal disease, 95, 100, 102; description and evils stemming from, 30, 35; and heredity, 58–9, 79, 107; and immigrants, 33–4, 93; and institutional care, 35–6; as issue in Ontario, 92, 93; laws and statutes, 106–7, 108; legal definition, 108; lobbying for royal commission in Ontario, 86, 93, 94; and marriage restrictions, 81, 102, 106, 109–10, 133; as menace, 35, 36, 92; as problem in Canada, 43–4, 93–4; and prostitution, 30–1; provincial inspector in Ontario, 36; segregation as solution, 87; and

sexual passion, 79; and social reforms of early twentieth century, 35–6, 49; and sterilization, 112–13; women, 42. See also Hodgins Report on the Feeble-Minded feminism, and eugenics, 41–2 Ferguson, Howard G.: appointment of Ross Commission, 117, 118–19; departure from government, 134; on fourth marriage bill, 76; and Godfrey, 48; and Ross Report, 127–8, 134 Ferguson (Palmer’s partner), 178 Fernald, Walter E., 105 First Interim Report (of Hodgins Commission), 100–1 First International Eugenics Congress (London, uk), 10–11 First World War, influence on third marriage bill, 72 France, eugenic solutions, 37 “The Future of the Race” radio talk, 6–7; series, 4–7 Galton, Francis, 9, 37 gender issues: divide in eugenics, 204–5; in Hodgins Report, 110; sterilization in Magone Report, 149 Gérin-Lajoie, L., 190 “German Population Policy” and “German Sterilization Policy” radio talks, 3, 5, 6 Germany, eugenic solutions, 37 Globe. See Toronto Globe Goddard, Henry H., 106, 107 Godfrey, Forbes, 47; bills as archival material, 18; birth and death, 46, 48; and controversy,

Index 84, 260n.170; elopement of daughter, 249n.139; health concerns, 48–9; interest in eugenics and feeble-minded, 49–50; and Marriage Act Committee, 72, 74; marriage bill (1919), 247n.114; as mpp and minister, 45, 46–7, 48, 49, 84, 85, 86–7; opposition to French in schools, 48; personal characteristics, 84–5; as physician, 46, 47, 49; private members’ bills, 51–2; in public health, 40, 48; reaction to marriage bill of government, 68, 69; and Ross Commission, 131–2; and taxonomies, 24; use of law, 21, 50. See also case study 1 Godfrey’s bills. See case study 1 gonorrhea, rates of infection, 94, 95 government: bills in legislative process, 50; cabinet confidentiality, 84; and private members’ bills, 51. See also federal government; specific topics Gray (doctor), 137–8 Great Depression, 117, 135 Green, John R., 139, 144 Grekul, Jana, 216, 219, 220 Gunn, James T., 74–5 Guthrie, Hugh, 168 Hamilton Birth Control Clinic, 167–8 Hanna, W.J.: and Downey’s paper on sterilization, 79; opposition to Godfrey’s bills, 77; reaction to sterilization bills, 64–5, 67, 78; travels with MacMurchy to United States, 93

309

Hansard (Ontario), 18 Hansen, Randall, 79, 220 Harley, A.M., 6 Hart, C.W.M., 5 Hawkins, Mary, 167, 168, 171, 188 Hearst, William: and Hodgins Commission, 112; and third marriage bill, 72, 74 Henry, George Stewart, 134 Hepburn, Mitch: creation of Magone Commission, 139–40; on insanity probe, 135–6; on sterilization legislation as possibility, 137; and sterilization recommendation in Magone Report, 150, 155 Hepburn Papers (Archives of Ontario), 151 Herbert, A.P., 89 heredity: and feeble-mindedness, 58–9, 79, 107; in sterilization bills, 56–7, 58–9, 64 Hickson, William J., 107 Hincks, Clarence, 36, 114, 218 Hodgins, Frank (Francis) Egerton, 98; background and beliefs, 97, 99, 99, 252n39; Benchbooks, 18–19; death and recognition, 98–9; on feeble-minded and heredity, 107; influence of Britain on, 113; as sole commissioner, 90, 96, 99; U.S. influences on report, 38; on venereal disease, 104 Hodgins Commission (Royal Commission on the Care and Control of the Mentally Defective and Feeble-Minded): appointment by government, 86, 90, 92, 95–6; archival material,

310

Index

18–19; choice of commissioner, 96–7, 99; description and role, 90, 92, 156, 157; and Godfrey’s bills, 103, 104, 109, 114; interim reports on venereal disease, 100– 4; mandate, 96, 111; and medical certificates, 102, 104, 109–10; public good and individual rights, 103; reaction to, 102–3; recommendations, 90, 96, 100–1, 106, 107–11, 112–13, 115; report, 104–15; sterilization in, 112–14, 115; and taxonomies, 23–4, 107 Hodgins Report on the FeebleMinded: and change in government, 104, 112, 134; description and work done, 104, 105–6, 114–15; eugenics in, 113, 115, 134; first section, 106–7; inaction by government, 111, 112; and marriage restrictions, 106, 109–10, 133; non-Canadian expertise, 105, 106, 107, 109, 113, 250n.14; omissions in, 112–14; reaction to, 111–12; recommendations, 106, 107–11, 112–13, 115; similarities and differences vis-à-vis Ross Report, 133–4; and sterilization, 112–14, 115, 151; survey recommended, 107–8; third-party reports, 104–5 Horne, Sidney, 135, 136 Huestis, Mrs A.M., 73 Humphries, L.A., 137 Hurd, W. Burton, 5–6 Hutton, W.L. (William Lyle): Eastview trial and eugenic argument, 188, 189–90, 192; and

esc, 138, 180; radio talks on cbc, 6–7; sterilization views, 199–200, 209 Hyndman, Margaret, in Eastview trial, 180, 186–7 immigration: and eugenics, 116; and feeble-minded, 33–4, 93; from “non-preferred” countries, 28, 31–2, 33–4; in Ontario in early twentieth century, 27–8, 32, 92; and venereal disease, 101, 104 immigration law, and eugenics in Canada, 23 inaction by government of Ontario: and case studies, 213, 219; on royal commission reports, 111, 112, 128, 155–6, 157, 158–9, 212, 213 Indiana law, as model for sterilization bills, 53–4, 56, 57–8, 242n.36 Indigenous people, sterilization, 39 individual health, and public good, 215 individual rights: and eugenics, 83, 215; in Magone Report, 147–8; and other legislation in Ontario in early twentieth century, 214; priority over public good, 211, 214–15; and public good, 83, 103, 214–15; vs. state regulation, 42; in sterilization bills, 61, 65, 83, 103; and venereal disease, 103 institutional care, for feeble-mindedness, 35–6 institutions: in first sterilization bill, 55–6, 57, 59; in mandate of Ross

Index Commission, 119, 156; public support for sterilization bills, 79–80; in second sterilization bill, 63–4 Jaques, William, 73 Johns, F.V., 122 Journal (Ottawa), 119, 130–1 Journal of Public Health (Canada), 116 Jukes family case study, 189 Kaufman, A.R. (Alvin Ratz), 169; anti-Catholic and anti-French Canadian animus, 31–2, 39–40, 201, 205–7; archival materials, 19, 269–70n.37; birth-control information and services, 171–2, 173, 197, 201, 202; costs of Eastview trial, 180, 181; description and activities, 168, 170; Eastview as target, 32–3, 40, 207; in Eastview trial, 180, 181, 186, 188, 201–2; in esc, 138, 162, 170, 198–9; and eugenics, 170–1, 198–200, 209–10, 269n.31; eugenics promotion, 162; individual rights vs. public good, 215; international influences, 38; overlap of birth control and eugenics, 40; and pib, 160, 172; and public good, 201, 209, 215; scrapbooks, 202, 207, 277n.152; on sterilization laws and Magone Report, 265n.229; sterilization legality, 164, 174, 176; sterilization promotion, activities, and consent, 174–5, 176, 199, 200, 203–4; taxonomies, 24; use of

311

law, 21, 162, 198, 201; views on mentally unfit, 162; and women, 204–5. See also Parents’ Information Bureau (pib) Kaufman, Jacob, 170 Kaufman Rubber Company, 170–1, 172, 174 King, Desmond, 79, 220 Krahn, Harvey, 216 Krementsov, Nikolai, 11, 37 The Lancet, 60 Laughlin, Harry, 38, 43, 53, 116 Laughton, Mrs H.V., 111–12 law and lawmaking: as approach to eugenics in Ontario, 11–12, 13–15, 211, 220–1; in case studies, 16–20, 211–13; as collective enterprise, 20–1; criminal law, 22, 164, 166; failed bills as insight, 17–18, 77, 85–8; and historiography of eugenics, 8, 13, 21; and precedent (stare decisis), 13, 236n.35; private members’ bills, 51–2; process in Canada, 50, 51; “received” from Britain, 52, 241n.24; and social history, 21–2; and social interests, 20; sources, 22; use for eugenic goals, 21 laws and eugenics: assessment of proposed solutions, 87; bills in Ontario, 46, 87–8; in Britain, 43; and feeble-minded, 106–7, 108; in history of eugenics, 12–13, 14–15, 211; Ontario vs. other provinces, 8, 46; support from esc, 7. See also sterilization laws LeDuc, Paul, 195 legal pluralism, 13, 235n.32

312

Index

legislative bills. See bills Leon, Sharon, 59 Lunman, Anna, 117 Macaulay, Leopold, 128 MacMurchy, Helen: as candidate for commissioner, 96, 97; description and role, 92–3; and eugenic solutions, 36; fact-finding missions on feeble-minded, 93; as inspector of feeble-minded in Ontario, 93; lobbying for royal commission on feeble-minded, 86; omission from Hodgins Commission, 113, 114; on pacfm, 93; in public health, 40; support of eugenics in Ontario, 217; views on marriage and sterilization, 71 Magone, Clifford Richard, 142; background and career, 141; as chairman of royal commission, 90, 140; in Eastview trial, 195, 196 Magone Commission (Royal Commission on the Operation of the Mental Hospitals Act): appointment by government, 90, 139–40, 144; archival material, 19; chairman and commissioners, 140–4, 151–2; description and role, 90, 156; focus of, 144; mandate, 140; recommendations, 91, 146–7; report, 144–56; sterilization law, 156 Magone Report: commissioners and sterilization law, 151–2; consent for sterilization surgeries, 146, 152–3; description and work done, 145–6; eugenics in,

152, 153–4; filing of, 145; inaction by government, 155–6; on individual rights, 147–8; and Ontario Hospital, 144–5; reaction to, 148–50; role of esc in, 145–6, 152–3, 154, 158; and section 207, 154–5; statistics used, 148; sterilization law model proposed, 152–3; sterilization law recommendation, 146–9, 150–2, 153–6; women and sterilization, 147, 148, 149; written briefs, 145, 146 Manitoba, sterilization law, 136, 220 Mannion, Richard, 179 marriage: and concerns of eugenicists, 52–3; as institution, 52; laws in Ontario, 52; and medical certificates, 62, 65, 69, 70, 71–2, 83; public discussion in Ontario, 81; and social change in early twentieth century, 52–3; and venereal disease, 101, 102, 104 Marriage Act (Britain), 53 Marriage Act Committee, and third marriage bill, 72–3, 247n.111 Marriage Act (Ontario): and concerns of eugenicists, 53; description and history, 52, 53. See also case study 1; marriage bill of government (1913) marriage bill (1919), 247n.114 marriage bill of Godfrey (first, 1912) (Bill 193, An Act to Amend the Marriage Act): description and text, 54, 61–2, 225–6; reaction to, 65, 66, 81; withdrawal, 65

Index marriage bill of Godfrey (second, 1913) (Bill 146, An Act to Amend the Marriage Act): description and text, 54, 66, 226; reaction to, 66, 67, 81; replaced by marriage bill of government, 45, 78; withdrawal, 67, 69 marriage bill of Godfrey (third, 1918) (Bill 113, An Act to Amend the Marriage Act): description and text, 54, 71–2, 226–7; discharge and further consideration by the Marriage Act Committee, 72–4; and physicians, 71–4, 75; reaction to, 72–5, 80, 84 marriage bill of Godfrey (fourth, 1921) (Bill 101, An Act to Amend the Marriage Act): description and text, 54, 227; reaction to, 75–6, 80, 84; withdrawal, 76 marriage bill of government (1913) (An Act to Amend the Marriage Act): description and text, 68–9, 228–9; eugenics in, 69–70; and medical certificates, 69, 70, 83; reactions to, 68, 69; as replacement for Godfrey’s second marriage bill, 45, 78 marriage licences, 53, 62, 68–9, 71 marriage restrictions: in Britain and United States, 43; Downey on, 79, 80, 81, 220; as eugenic solution, 12; for feeble-minded, 81, 102, 106, 109–10, 133; models, 55; overview of Godfrey’s bills, 46, 54–5; public debate about, 52–3, 70–1 Martel, Emil, 179, 182

313

McCarthy, D.L., 168 McCutcheon, John M.: as commissioner (on Ross), 90, 119, 123; description, 121 McGarry, F.W., 73, 80 McGhie, B.T., 135, 262n.187 McLaren, Angus, 138, 163, 178, 217 McLaren, Arlene Tigar, 163, 178 McLean, C.E., 137 McPherson, W.D., 94 McQueen, James, 67, 69–70 medical certificates: in Hodgins Report, 102, 104, 109–10; in Magone Report, 146, 154; for marriages in Godfrey’s bills, 62, 65, 71–2, 83; for marriages in government bill, 69, 70, 83 medical profession: eugenics as solution, 83, 116–17; reaction to first sterilization bill, 60–1, 83 men: sterilization surgery at Kaufman Rubber Company, 174, 175, 205; as target of first sterilization bill, 60, 243–4n.53. See also gender issues mental deficiency: institutions in Ontario, 36; legal definitions, 108; taxonomies, 23 Mental Deficiency Act (1913, Britain), 23, 43, 93, 106, 109 Mercier, Raoul: as crown attorney in Eastview trial, 181–3; in proceedings, 185, 187, 189, 191, 192, 275n.120; on public good, 191 Meyer, Adolph, 105 Middleton, A.N., 117 military in Canada, and venereal disease, 94–5

314

Index

Mimico Training School, 49 minors, sterilization surgery, 175 modernization, in early twentieth century, 28–9, 42 “moral imbecile,” legal definition, 108 morality, in Toronto in early twentieth century, 34–6 Mousseau family, 160, 179 Murphy, Emily, 217, 218 National Council of Women, and feeble-minded, 92–4 nation building, in early twentieth century, 34 Nazi eugenics, 25 newspaper clippings, of Godfrey’s bills, 18 newspapers: Eastview trial reports, 196–7; on feeble-mindedness, 35; as sources, 20. See also individual newspapers O’Brien, Gerald, 219 obscenity provision. See Criminal Code, section 207 Odynak, Dave, 216 Oliver, Peter, 118, 120 Ontario: appointment of royal commissions, 89–90, 91; bills as archival material, 18; and Eastview trial, 22–3; election of 1929, 118; marriage laws, 52; opposition to French in schools, 48; population and immigration, 27–8, 31, 33; race in, 38–9; social context in early twentieth century, 26, 27–36, 37, 52; social-policy legislation in early twentieth century, 214; state

regulation vs. individual rights, 42. See also specific topics, people, and laws Ontario and eugenics: bills on eugenics, 46, 87–8; circulation of ideas, 15, 85; eugenic solutions, 12, 36, 115–16; Godfrey’s bills in history of, 82–3; historiography, 7–8, 211; individual rights priority over public good, 214–15; international influences, 37–8; law as historiographical approach, 11–12, 13–15, 211, 220–1; public interest, 139; public support, 78, 217–18; sterilization law, 164, 214, 220, 221 Ontario Holy Name Society, 150 Ontario Hospital (London), as focus of Magone Report, 144–5 Ontario Legislative Library collection, 54, 242n.36 Ontario Medical Act, sterilization amendment, 146, 152 Ontario Medical Association, resolution on sterilization, 135 Orillia Asylum, 79, 124 Ottawa, description, 32 Palmer, Dorothea (Dorothy Evelyn), 177; acquittal and exoneration, 161, 176, 192, 195, 196; archival material, 19; arrest and charges, 160, 178–80, 182, 184, 193, 272n.71; background, 176, 178; belief in birth control, 178, 179, 205, 210; guilty of advertising charge, 193; work for pib, 160, 176, 178, 179, 193, 272n.72

Index Palmer decision, impact in Canada, 19 Pardoe, Avern, 242n36 Parents’ Information Bureau (pib): birth-control work, 160, 172–3, 204–5; consent for surgery, 174–5, 200, 203–4; creation and incorporation, 172; description of work and sales, 172–3; and Eastview trial, 176; employment of women, 204–5; objective in Eastview trial, 163; Palmer’s work, 160, 176, 178, 179, 193, 272n.72; purpose, 160, 172; surgery questionnaires, 175–6; use of law, 21 Patterson, James, 65 personal liberty/freedom. See individual rights physicians: birth control advice, 163; and first sterilization bill, 59; interest in eugenics, 40, 49; liability for sterilization surgeries, 138, 146, 152, 153, 156; and second sterilization bill, 63; and third marriage bill, 71–4, 75 pib. See Parents’ Information Bureau Pius XI (pope), 163 Ploetz, Alfred, 37 political parties: and party members’ vote, 50; support for policy measures, 77–8 population, as concern, 5–6 “Population Growth in Early Times” radio talk, 5–6 Prévost, Jean-Guy, 28 private members’ bills, 51–2, 77 procreation, in Hodgins Commission, 96

315

prostitution, 30–1, 95, 100, 102 Proudfoot, William, 247n.111 provinces: and division of powers in Canada, 22–3, 94, 164, 215–16; in eugenics story, 216–17; legislative process for bills, 50; sterilization laws, 44, 220. See also individual provinces Provincial Association for the Care of the Feeble-Minded (pacfm): formation, 49, 93; goals, 66; and Hodgins Commission, 94, 105, 114 Provincial Council of Women, 129 public good: in birth control, 22, 162, 180; in case study 2, 103, 110; and consent, 204; in Eastview trial, 161, 187, 191–3, 196, 209; Eastview trial and eugenics, 161, 162, 189–90, 192, 209; and eugenics, 8, 83, 161; and individual rights, 83, 103, 214–15; interpretation, 191; for Kaufman, 201, 209, 215; in law and lawmaking, 20; outweighed by individual rights, 211, 214–15; public-good defence (subsection 207[2]), 165, 166–8, 184–5, 186–9, 191, 192; and religion, 191, 208 public health: and eugenics, 40–1; individual rights vs. public good, 214–15 Public Health Journal, 73, 85, 103 public inquiries. See royal commissions race, and variation by place meanings in eugenics, 38–9

316

Index

reading of bills, 50 reforms (social) in Toronto in early twentieth century, 34–6 Reilly, Philip, 220 religion and religious groups: and Eastview trial, 198; and eugenics, 39–40, 205–7; lobbying for royal commission on feeble-minded, 94; and morality, 34; and Ontario in early twentieth century, 31–3, 34; opposition to sterilization, 149–50, 155; and public good, 191, 208 reproductive-sterilization laws. See sterilization laws Rex v. Karn, 167, 193, 268n.26 rights (individual). See individual rights rights of children, 6 Roebuck, Arthur, 195 Roman Catholic Church: and birth control, 163, 191, 205–8; canon law, 208; and Eastview trial, 186, 191, 198; population in Ontario, 31–2; response to sterilization, 149; role in eugenics, 39–40, 207, 215; and sterilization in United States, 59 Ross, P.D. (Philip Dansken), 120; as chairman of royal commission, 90, 118, 119, 120–1, 123; death and recognition, 119, 120; description and achievements, 119, 121; diaries, 19, 123, 124, 132; sterilization views, 130, 131; travel to United States, 38 Ross Commission (Royal Commission on Public Welfare): appointment by government, 90, 117, 118–19, 123; archival

material, 19, 123, 258n.144; chairman and commissioners, 119–23, 130–1, 132; description and work done, 90, 156; interest in children, 121, 122; mandate, 90, 119; on marriage, 126, 133; report, 117, 123–34; sterilization law, 156 Ross Report: and change in government, 134; description and work done, 123–5; drafts and revisions, 132–3; eugenics in, 129–30, 134; inaction by government, 128; reaction to, 127–9; recommendations, 91, 117–18, 124, 128, 130, 132–3; similarities and differences vis-à-vis Hodgins Report, 133–4; sterilization-law model proposed, 152; on sterilization and sterilization law, 118, 125–8, 129, 130–3, 134, 151 Rowell, N.W., 69, 196, 276n.129 Royal Commission on the Care and Control of the Feeble-Minded (Britain), 43, 93, 105 Royal Commission on the Care and Control of the Mentally Defective and Feeble-Minded. See Hodgins Commission Royal Commission into Medical Education in Ontario, 251–2n.30 Royal Commission on the Operation of the Mental Hospitals Act. See Magone Commission Royal Commission on Public Welfare. See Ross Commission royal commissions: description, role, and use, 18, 91–2, 157–8; international influences, 38; as

Index legal process in case study, 16, 18–19, 89–90, 91; national royal commission on feeble-minded, 93–4; powers, 96. See also case study 2 Russia, eugenic solutions, 37 Rutherford, Paul, 30 Sanger, Margaret, 40, 171, 201, 202 Saskatchewan, sterilization law, 220 Schranz, Kristen, 72 “scrapbook Hansard,” 18 Second Interim Report (of Hodgins Commission), 100, 101–2 section 207. See Criminal Code, section 207 segregation, as solution to feeble-minded, 87, 109 selective breeding, as goal of eugenics, 9 Silcox, Claris: in Eastview trial, 186–8, 189; on Eastview trial as birth-control education, 197; eugenic argument, 189 Silk, Eric: on Avery’s clinic, 264n.208; as counsel on Magone Commission, 155; memoirs as archival material, 19, 141, 143, 144 Simmons, H.G., 30, 35–6 Sinclair, V.A., 74 Smith, R.W. Bruce, 54, 55 Smythe, Mrs, 129 Snyder, Warren, 249n.139 social assistance, and sterilization, 135 social environment, in Ontario in early twentieth century, 26, 27–36, 37, 52

317

social issues and interests: eugenics as solution, 9–10, 11, 12, 36, 115–16, 208; law and, 20, 21–2; legislation in Ontario in early twentieth century, 214; reforms for feeble-minded, 35–6, 49; variety in approaches, 12 social purity movement, in early twentieth century, 34–5 Social Survey Commission (Toronto), 35 Special Collections and Archives Department (Library of the University of Waterloo), 19–20 Star. See Toronto Star and Daily Star state regulation, and eugenics, 42 states (U.S), sterilization laws, 43 Steele, Michael, 104 sterilization: effect of, 6; as eugenic solution, 129; and feeble-minded, 112–13; as grey area in early-twentieth-century law, 174; liability of physicians for surgeries, 138, 146, 152, 153, 156; omission from Hodgins Commission, 112–14, 115; private practice in early twentieth century, 163–4; public discussion in Ontario, 55, 135, 139; public support in Ontario, 78–80; in recommendations of royal commissions, 91; responses in United States and Britain, 36–7, 38; voluntary vs. compulsory, 199–200. See also specific topics or persons sterilization bill of Godfrey (first, 1910) (Bill 184, An Act to Prevent Procreation by

318

Index

Confirmed Criminals, Idiots, Imbeciles and Rapists): description and text, 55–6, 223; heredity in, 56–7, 58–9; Indiana law as model, 53–4, 56, 57–8, 242n.36; and physicians, 59; reaction to, 60–1, 82–3; versions and drafts, 56–8, 242–3n.43; withdrawal, 61 sterilization bill of Godfrey (second, 1912) (Bill 201, An Act Concerning Operations for the Prevention of Procreation): Connecticut law as model, 53, 63, 242n.36; description and text, 53, 63–4, 224–5; differences from first bill, 63–4; heredity in, 64; and physicians or surgeons, 63; reaction to, 64–6, 78, 82–3 sterilization bill of Godfrey (third, 1913) (Bill 142, An Act Concerning Operations for the Prevention of Procreation): description and text, 53, 66, 224–5; reaction to, 66–8; withdrawal, 67, 69 sterilization bill of Godfrey (fourth, 1914) (Bill 123, An Act Concerning Operations for the Prevention of Procreation): description and text, 53, 70, 224–5; reactions to, 70; withdrawal, 70 sterilization consent: in Alberta, 200, 203; in Magone Report, 146, 152–3; for surgery arranged by pib, 174–5, 200, 203–4; from women, 175, 204 sterilization laws: in Alberta, 44, 216, 217; authorization of

surgery, 58; in Britain, 43; concerns about, 117, 137–8; as focus in North America, 12–13; implementation issues, 136; as limitation in eugenics debate, 13; models for Godfrey’s bills, 53–4; models proposed in reports, 152–3; in Ontario, 164, 214, 220, 221; passed in jurisdictions, 12, 219–20; promotion of legislation, 174; purpose and value, 6, 13; push for in Great Depression, 135–8; recommendations in Magone Report, 146–9, 150–2, 153–6; in Ross Report, 125–6, 127, 128, 130–1, 132–3; in United States, 19, 43, 54, 56, 220; as widespread idea, 6 Stevenson, George, 139 Stopes, Marie, 38, 40, 201–2 Strange, Carolyn, 34 surgeons, and second sterilization bill, 63 “Survival of the Fittest” radio talk, 5 Sutherland, Halliday, 202 Swayze, C.F., 76, 80 syphilis, rates of infection, 94, 95 “Talks Department” at cbc, 4–5 taxonomies, use in cases, 23–4 temperance movement, 12 Thompson, John, 164, 165 Todd (Miss), 176 “Tomorrow’s Children” radio talk, 6–7 Toronto, in early twentieth century: description and population growth, 27, 29; immigration of

Index non-British or non-Protestants, 31–2, 33–4; morality issues, reforms, and organizations, 34–6; prostitution, 30–1; social context, 26, 27–36; urban poverty, 29–30, 30, 31, 32, 33 Toronto Globe: Conacher and alcoholism, 152; on connection to feeble-mindedness/prostitution/venereal disease, 95, 102; death of Godfrey, 48; election of 1929, 118; on feeble-mindedness, 35; on government’s marriage bill, 68; on Hodgins Commission, 102; on Magone Report and sterilization law, 148, 149–50, 265n.229; on Marriage Act Committee, 72, 247n.111; on Ross Commission and Report, 123, 127–8, 129, 131–2; as source, 20; on sterilization bills, 64, 70; on withdrawal of bills, 69 Toronto Star and Daily Star: Avery interview, 151; on esc, 139; eugenics as solution, 116–17; on Godfrey’s bills, 45, 76; on Magone Report and sterilization law, 148–9; on marriage bill of government, 68, 69; on marriage bills, 66–7, 74, 75–6; on Ross Commission, 123, 128; as source, 20; speech of Laughlin, 38; on sterilization bills, 60–1, 65–7, 70, 81; on sterilization law, 150; on venereal disease, 102–3; on withdrawal of bills, 68 Treacy, J.P., 149–50 Tredgold, A.F., 106, 107, 109

319

United Farmers of Ontario government, and Hodgins Report, 112 United Farm Women of Alberta, 217 United Kingdom. See Britain United States: contraception case (M. Sanger), 202; eugenic solutions, 36–8, 43; and origins of sterilization bills, 53–4; race and eugenics, 39; sterilization laws, 19, 43, 54, 56, 220; sterilization surgeries, 136 Upper Canada, marriage laws, 52 urbanization, rise in Canada, 28 venereal disease: bill draft and passage, 100; connection with feeble-mindedness and prostitution, 95, 100, 102; and immigration, 101, 104; interim reports of Hodgins Commission, 100–4; as issue in Ontario, 94–5; judgmental approaches, 104; and marriage, 101, 102, 104; recommendations of Hodgins Commission, 100–1; work by Avery, 143, 264n.208 Walton, Watson G., 263n.195 Weber, Anna, 171 Wegenast, F.W. (Franklin Wellington): archival material, 19–20; description and career, 180; in esc and eugenic principles of, 180–1, 210; as lawyer in Eastview trial, 176, 180–1, 184, 195; in Eastview proceedings, 185, 187, 189, 190, 191–2, 209; on public good, 191–2 Whalley, Arthur, 190, 198

320

Index

Whitney, James: and individual liberty, 61, 83, 103; and marriage bill of government, 69; opposition to first sterilization bill, 60, 61, 82–3; opposition to Godfrey’s bills, 77–8, 82; reaction to marriage bills, 81; support of second sterilization bill, 64, 78; withdrawal of Godfrey’s bills, 45 women: birth-control work with pib, 204–5; and consent for sterilization, 175, 204; and Eastview trial, 22, 185–6, 198, 205; eugenics in Alberta, 217; eugenics connection, 41–2; as feeble-minded, 42; in Magone

Report, 147, 148, 149; and morality in Toronto in early twentieth century, 34–5; reaction to Hodgins Report, 111–12; reaction to second sterilization bill, 66; sterilization surgery through pib, 174, 175. See also gender issues World, 64 “World Population since 1750” radio talk, 5–6 Wright, David McKenzie: as commissioner (on Ross), 90, 119, 122, 123; description and obituaries, 121–2; on P.D. Ross, 259–60n.169; sterilization views, 130, 131