Rogue Tory

by Denis Smith

  In May he received his law degree. At his request, the Law Society of Saskatchewan granted Diefenbaker two years’ exemption from the normal three years of articling (for “the period of your unfitness for military service”), and the same month he wrote his final bar examinations, placing seventh among thirty-nine candidates. On June 30, 1919, John George Diefenbaker signed the roll of the Law Society in Regina, and on July 1 he opened a practice in the small town of Wakaw, Saskatchewan.118

  CHAPTER 2

  Choosing a Party, Choosing a Wife

  1919-1929

  FORTY MILES NORTH OF SASKATOON THE PRAIRIE GIVES WAY TO PARKLAND, A belt of rolling fields and woodland groves of poplar, birch, spruce, and pine. This was the first area of intensive homesteading in the province, settled before the First World War by immigrants from Germany, Hungary, Ruthenia, and Galicia (later Poland, Ukraine, and western Russia). By 1919, as a result of the wartime agricultural boom, the region was moderately prosperous and thriving, served by an extensive railway network and a growing system of highways, producing wheat for export and market products for the towns and cities. Midway between Saskatoon and Prince Albert in this parkland belt lies Wakaw Lake, and one mile to the west the village of Wakaw, which was established on the Grand Trunk Pacific Railway line in 1911. In 1919 Wakaw was a busy market town of slightly less than four hundred residents, surrounded by the most densely settled rural townships in the province. The skyline was dominated by three grain elevators on the east and a scattering of still-expanding one- and two-storey buildings on the two business streets running west from the railway line: a hotel, post office, town hall, mission hospital, school, Catholic and Ukrainian churches, weekly newspaper, general stores, farm suppliers, a restaurant or two, and a few business offices. To the east, at the original townsite on the shores of Wakaw Lake, there were a few more buildings, including a Baptist church. The village was on the district court circuit, with a provincial police office and a local jail, and was easily accessible to Saskatoon, Prince Albert, and Humboldt, where the high court sat.1

  John Diefenbaker was not content to remain in Saskatoon as a junior employee of an existing law firm. He was determined to get as much courtroom experience as he could, to make his reputation, and to earn enough money to pay off his debts. That meant opening his own office in a town that needed a barrister. With the help of a lawyer friend, he reviewed the court dockets for a number of places in the province and settled on Wakaw, where, he recalled, “people were particularly litigious.” It was close enough to home, in familiar country, and had only one practising lawyer. During the month of June the newcomer made his preparations – with some difficulty. Local businessmen, he found, were loyal to the lawyer who was already on the scene and reluctant to rent office space to a competitor. Diefenbaker was offered the use of a vacant lot opposite the railway line. He negotiated credit purchases from a lumber company and, within weeks, he and a carpenter had built a primitive two-room frame shack for $480.08 plus labour. Here he opened for business on July 1. He was joined in the office by an articling student, Michael Stechishin, a classmate from the Faculty of Law. (The arrangement required special permission from the Law Society, since Diefenbaker had no more experience than his student.) Stechishin’s fluency in Ukrainian was of significant help in dealing with clients, many of them fellow immigrants from Ukraine.2

  The slim young lawyer now to be seen in Wakaw had an unusual presence. As Garrett and Kevin Wilson describe him, he had “an intense and serious look.” “Above a frame that was tall and slender, almost slight, was a head that was arresting in its appearance. A finely-sculpted mouth and nose went almost unnoticed as the observer’s attention was drawn to the strange, commanding blue eyes, piercing and questioning, that made one somewhat uncomfortable. Full black hair, receding in striking waves, unfashionable for the time, accentuated the effect of the eyes beneath. Dressed severely and formally in dark suit and vest, the lawyer was an outstanding figure as he strode the streets of Wakaw.” 3 That sober presence, those intense blue eyes, were the signs of a man who did not expect to be slighted.

  The new lawyer in town soon had his first client. Early in the morning of August 6 a doctor from nearby Cudworth brought a wounded youth to the Wakaw hospital and his assailant, John Chernyski, to the provincial police detachment. There Chernyski made a statement, was charged with shooting the injured boy, and was placed in the cells. Ten days later, at the request of Chernyski’s wife, John Diefenbaker took on his defence at an agreed fee of $600 – a very substantial sum in 1919.4

  Chernyski admitted to the shooting and the defence was straightforward: the young boy had been crossing Chernyski’s land on his bicycle when he was set upon by Chernyski’s dogs. In the twilight the farmer had mistaken the grounded intruder for a fox or a coyote and had blasted him with his shotgun. The error was immediately clear. Chernyski and his family provided first aid and sought medical help in the village of Cudworth, and Chernyski turned himself in. After a preliminary hearing in Wakaw and his counsel’s successful appeal for bail to the district court in Prince Albert, Chernyski was committed for trial on a charge of wounding “in the absence of precaution and care,” or criminal negligence.

  The case was heard before Chief Justice J.T. Brown of the Court of King’s Bench in Humboldt late in October 1919. After a two-day hearing in which the injured youth testified to bad blood between the two families, while the defence relied on testimony that the shooting was an error committed in the fading evening light, the jury found Chernyski not guilty. John Diefenbaker had been succinct in his examination of witnesses and his summing up, and he had his first victory.

  In memory, he embellished events for the sake of a good story and ignored what may have been a key element in his success with the jury. In the 1960s Diefenbaker recalled that the jurors at first agreed to convict on a lesser charge than attempted murder because this was his first court case, and then decided to acquit after one of them had remarked: “But this is the kid’s birthday.” In fact, there had never been a charge of attempted murder, and the trial occurred more than one month after the defence lawyer’s twenty-fourth birthday. Diefenbaker’s successful appeal for bail in district court had been heard on the eve of his birthday in September, but that was not a jury hearing.5

  The missing element of explanation was provided by Emmett Hall. In the autumn of 1919 he was articling in Humboldt and joined his university friend at the defence table to assist injury selection. Afterwards he left the courtroom, and that evening he saw the judge in the dining room of the Arlington Hotel. Chief Justice Brown asked him to sit with him and told Hall that he believed, on the whole, the defence had a good case. But he thought Diefenbaker was overplaying the extent of darkness, making the scene too obscure to see any target. Hall took this as a bit of friendly advice intended for the defence lawyer, and the next morning in court he wrote a note to Diefenbaker on the back of his copy of the indictment:

  We were sitting & talking with the judge & he, in commenting on the case said that the only weakness displayed in your case so far was that you had too much stress upon the darkness. I would comment upon it, but don’t paint it too black, he is somewhat suspicious of your evidence as to the darkness – He is very favourable – He doesn’t believe that the injured man is telling the truth about his actions…

  He is very suspicious of the injured man on account of the discrepancies between his testimony here & at Wakaw. Referring to the darkness the judge is quite impressed by this fact, the light was lit inside & when accused rushed out the darkness would appear greater.6

  Once Diefenbaker read this missive, the darkness lightened to dusk, and the defence counsel emphasized the difficulty of sudden adjustment from a lighted room to the twilight outside. The argument for an unfortunate mistake became plausible and the case was won. When Emmett Hall met the chief justice again that evening, Brown joked about “the sudden ‘enlightenment’ that had struck the Chernyski trial.”7 If the freshman lawyer had a li
ttle unexpected assistance, it seemed to come from his friend and the judge, not from the jury.

  That first piece of good luck in the courtroom gave Diefenbaker’s career as a barrister its stimulus. Local scepticism disappeared and the office was soon busy. In his next substantial case he gained acquittals for five out of ten clients in a lawsuit for fraud in grain deliveries brought against them by the Progressive Farmers’ Grain Company. The charges involved kickbacks to the grain buyer for falsifying the records of grain deliveries; Diefenbaker convinced the juries that there was insufficient evidence to convict half his clients, and he received legal fees in excess of $3000 in the case. By the summer of 1920 he was able to begin paying off his debts, move into a larger office, convert his shack into living quarters, and buy an impressive new Maxwell touring car at a price of $1764.8

  But the bounty was temporary. The wartime wheat boom was fading by 1920 and the entire Saskatchewan economy felt the results of falling grain prices. The firm’s business suffered and Diefenbaker suspected discrimination. In June, when his local bank manager wrote to inform him that his account was overdrawn by $72.80, Diefenbaker replied in a tone of aggrieved sarcasm that a personal meeting would have been preferable to a letter, but “it would appear that such course would not result in the necessary publicity… I was under the impression,” he continued, “that in return for doing little favours for you, such as taking care of orders for payments etc., that I might at least be treated in as courteous a manner as others of whom I know, but in that I again must have been mistaken.”9 The firm’s financial difficulties extended through most of the following year. Like other lawyers of the time, Diefenbaker supplemented his legal work by arranging mortgage loans and selling insurance, and this business helped to see him through. His annual net income, which he had estimated at $3600 in April 1920, actually amounted to $2400 for 1921.10

  Still, John Diefenbaker was gathering valuable experience – and confidence – in the courtroom and the community. In the fall of 1920 he was elected to the village council for a three-year term. He appears in a 1919 photograph as manager of the Wakaw football team, although he wrote in his memoirs that he was “the very enthusiastic manager of the local baseball team.” The young man had inherited frugal habits and his living expenses were low. He was devoted first of all to his work, and then, increasingly, to politics. The automobile seemed to be his main source of relaxation and adventure: in the summer of 1921 he drove to Vancouver and in 1923 to Los Angeles, both long trips over unpaved roads. He bought a summer cottage at Wakaw Lake, and he fished and hunted.11

  Diefenbaker remained on close terms with his parents and made it a habit to spend weekends in Saskatoon with them. He relied particularly on his self-assured mother for advice and emotional strength. His social life seems to have been cautious; with young women he remained shy and ill at ease, although he dated with school and university friends and attended Saturday dances at the Art Academy and Teachers’ Social Club in Saskatoon, or the village hall in Wakaw. Unlike his more relaxed brother, Elmer, John disliked dancing, had no sense of rhythm, and disdained small talk; he took part to keep up appearances and to avoid accusations of being a dull bookworm. One acquaintance told biographer Simma Holt: “We used to go to dances as a group … and we would see John there but did not pay much attention to him. He was always very properly dressed and stood board straight. He seemed just as inflexible. He was tall, slim, quiet, aloof, not aggressive, a very poor mixer.”12 As a young professional and politician-to-be, John planned to marry, since a wife was expected in both roles and he had no wish to buck the conventions. He also seemed very dependent on women for emotional support. But he found the social round leading to courtship and marriage a painful one.

  Olive Freeman, one of the performers in Diefenbaker’s tribute to Robert W. Service, was an early object of the veteran’s attentions. She was the teenage daughter of the minister at First Baptist Church in Saskatoon, Dr Charles B. Freeman. Olive made an immediate impression on the young man that he did not forget; but when she moved with her family to Brandon in 1921, the two lost touch for more than twenty years.13 Later John claimed that his infatuation led quickly to a proposal of marriage, either by mail or in person, and an implied rejection. Olive’s memory, as she conveyed it to her daughter, was that the returned soldier had merely asked her for a date, but had not pressed it when she told him her age.14

  By the early 1920s Diefenbaker was courting another young woman in Saskatoon, Beth Newell. She was as shy as he, and they carried on their romance in private, although friends were aware of it. Beth worked as a cashier at the Massey Harris Company and lived at home with her widowed, asthmatic mother, who took in boarders for income. By late 1921 or early 1922, according to Simma Holt, the couple were engaged, and soon Beth and her mother had collected linens and cottons for her hope chest and made a wedding dress. From the distance of fifty years, friends recalled Beth as John’s adoring companion. “She was a good listener and loved to hear him talk about his cases. This quality was one he sought in women all his life: he needed someone to listen, react, and tell him what she thought of his actions or aspirations.”15

  Late in the autumn of 1923 Beth, who had appeared “frail and weak” in the preceding months, was apparently diagnosed with tuberculosis. There is no direct record of what followed between the two, but Holt suggests that John never saw or talked to her again. She died in May 1924.16

  The young man’s own health, which he had regarded with care since his invaliding home in 1917, suffered several lapses in these years, and his apparent break with Beth Newell may have resulted from his personal fear of tuberculosis. Pulmonary TB, like polio and scarlet fever, remained a scourge in the 1920s. Diagnosis was haphazard, treatment was inadequate, and the possibility of infection could be a source of panic. Diefenbaker was still subject to occasional internal bleeding, although the nature of his illness remained uncertain. In March 1923 he was bedridden for several days with his undiagnosed complaint, first in Wakaw and then in his parents’ home in Saskatoon, where his mother could care for him. In April he spent a week at the tuberculosis sanatorium at Fort Qu’Appelle, and in November he followed the path of other Canadian pilgrims to the Mayo Clinic in Rochester, Minnesota, for examination and treatment. There he had surgery for a gastric ulcer, which led to a radical improvement in his health. But he was still not robust and continued to suffer stomach ailments for several years more.17

  JOHN DIEFENBAKER’S FIRST WIDELY PUBLICIZED COURT CASE WAS SIGNIFICANT FOR him for at least two reasons: he won a victory against his legal competitor in Wakaw, A.E. Stewart; and he acted in the case for clients from the minority French-speaking community of Saskatchewan. The Saskatchewan School Act provided that “English shall be the sole language of instruction in all schools,” but the provincial government, out of political prudence, in fact closed its eyes to infringements in some areas where there were few English-speaking settlers. In January 1922 Stewart, acting for William Mackie, an English-speaking resident of the Ethier School District, entered a complaint against two school trustees, Rémi Ethier and Léger Boutin, charging that their board had violated the School Act by permitting regular teaching in the French language. The local justice of the peace in Wakaw found Ethier and Boutin guilty, imposing a fine of $30 and costs. They asked Diefenbaker to appeal on their behalf.

  The appeal was heard before district court judge A.E. Doak in May 1922. The evidence convinced the judge that the school was in fact conducting its teaching “practically entirely” in French. “I have no hesitation in coming to the conclusion,” Judge Doak wrote, “that sec. 178 was being consistently and deliberately broken in this school, and that if the trustees did not know it, it was simply because they chose to ignore the fact. Indeed I am more than a little suspicious that it was being done with their connivance.” Diefenbaker, however, argued the legal fine point that the trustees were not responsible for the school’s internal operations. On that technical ground, the judge overtu
rned the previous conviction. Since the judgment seemed to sustain the de facto right of French language instruction, the Franco-Catholic association of the province was pleased and took up a subscription to pay the lawyer’s legal fees.

  Diefenbaker had handled a politically sensitive brief with dexterity: without challenging the legal dominance of English in the schools, he had won a practical victory for French language teaching. The case made headlines in the province and launched his public reputation as a defender of minorities. He was proud both to have taken the appeal, despite advice that it would harm his political reputation in the anti-French, anti-Catholic atmosphere of Saskatchewan, and to have won it as he did. If he took the case because he objected to a constitutional wrong, he won it by subtle indirection. The larger, constitutional wrong was not corrected, but for the French community the local triumph was reason enough for gratitude.18

  By Christmas 1922 John Diefenbaker had won two more criminal jury trials as a defence lawyer in Humboldt and Prince Albert, as well as handling many other criminal cases in the local police court. Although the volume of his civil work was increasing, his growing reputation was based on his talents in criminal defence. He found the role congenial and honed his skills in the courtroom with every case. On stage for the defence, he discovered his special dramatic genius. By the use of his voice, his penetrating eyes, his raised arm and accusatory finger, his sense of the ridiculous, his edge of sarcasm, his command of the fine points of law and evidence, he became a master of his juries. As defence counsel his role was not to prove a case but to raise doubts, to act on his instinctive feel for the mood of the jury. The man seemed made for the part and grew naturally into it. He could identify easily with the unfortunate, the dispossessed, the poor, with all those who lacked the birthright and assumed superiority of wealth, power, language, and education of the British Canadian mainstream; and he could argue with passion. In Saskatchewan there was fertile ground for his talent.19