Rogue Tory

by Denis Smith

  Following their Great Lakes trip, the Diefenbakers settled temporarily into the Avenue Hotel in Prince Albert while their new house was being finished. Edna was soon friendly with their fellow residents, entertaining the women with coffee and bridge games, but John found relaxation more difficult. “John just never seemed to bend or get the starch out,” one of Edna’s close friends remembered.106 But he was besotted with Edna. In her company he beamed, kissed, whispered, and ignored his surroundings. Edna’s niece, Sheila, who visited on weekends and holidays and was treated as a daughter, was embarrassed by this constant “smooching around”: “Aunt Edna used to call Uncle John ‘Donny Boy,’ and this man, who was so articulate in the public arena, reverted to baby talk in private. In the evening they relaxed and were playful; he pulled her down on his knee and she would just sit there and they would neck, and hug and kiss as though they had just discovered smooching.”107

  During the day, John telephoned Edna frequently to tell her about his work or to seek her advice and comfort. At a reception for the newlyweds given by the local Conservative Party, Edna captivated the guests, who saw her instantly as a political asset for the still-dour and unsuccessful candidate. Once the couple moved into their home, a stucco bungalow with two bedrooms on 20th Street West, Edna and her mother decorated and furnished it with slightly flowery taste and great enthusiasm. As the customs of professional life dictated, Edna would be the homemaker and loyal spouse, standing in the background to sustain and encourage her husband’s career with total dedication. She would be unusually close in that background, softening, reassuring, urging on, indulging his fancies and his ambitions. Edna hoped there would be children and decorated the second bedroom in yellow as a nursery. John’s natural ease and generosity with Sheila suggested that he would make a good father. But there would be no children. That absence was almost certainly a factor in the strains of discord that soon entered the Diefenbaker home.108

  JOHN DIEFENBAKER’S FIRST DEFENCE IN A MURDER TRIAL CAME IN 1927, WHEN HE appeared as junior counsel in R. v. Bourdon, a case involving drinking, mutual threats, and a shotgun killing. The accused offered a confused story that mixed claims of self-defence and accident during a struggle at his farmhouse. There were no witnesses and there was no solid evidence to undermine the defendant’s claims. At the preliminary hearing Diefenbaker raised doubts about the competence of the police investigation, but at trial, senior counsel chose to emphasize the defendant’s story instead. That was enough, in the end, to bring a jury decision of not guilty. But the successful defence did not quite fit Diefenbaker’s combative style, and he never again served as a junior in a criminal trial.109

  The Prince Albert lawyer’s second involvement in a murder trial came at the appeal stage of R. v. Olson, late in 1928. Ernest Olson, a farm labourer who had been charged with the murder of William Robson, was defended at trial by H.E. (Bert) Keown, a political friend of Diefenbaker. Olson, who had left Robson’s employment taking Robson’s wife with him two years earlier, was convicted of murder and sentenced to death on the sole evidence of Mrs Robson that he had confessed the murder to her. The trial jury had rejected medical evidence that the accused was too “feeble-minded” to stand trial. Keown had appeared without any opportunity to prepare his case, and there were questions about the trial judge’s impartiality. Keown gave notice of appeal and called in his associate John Diefenbaker.

  At the appeal hearing, Diefenbaker accepted the original jury decision to allow Olson to stand trial. But he argued that the judge had improperly told the jury that Mrs Robson was a credible witness; Mrs Robson herself might have committed the murder and falsely accused her former lover. He asked that the conviction be quashed in favour of a new trial.

  The Court of Appeal ruled that, on balance, there had been no miscarriage of justice. The conviction was sustained, but the court recommended that the medical evidence on Olson’s mental capacity should be brought to the attention of the minister of justice. Diefenbaker did so, and in February 1929 the federal cabinet commuted the death sentence to life imprisonment.110

  The young lawyer’s next murder case – the first that he handled through all stages of trial himself – occurred in the late summer and early autumn of 1929. This one exemplified his courtroom style and added to his popular reputation as a defender. Nevertheless, it was anything but a model victory.

  Early in August Constable L.V. Ralls of the RCMP detachment at Foam Lake, Saskatchewan, was called to investigate the death, by shooting, of a prosperous farmer, Nick Pasowesty, on his land near Sheho. Nearby Constable Ralls found one shotgun shell and one empty casing; police later found the family weapon that had fired the fatal shell. Under questioning, Nick’s two sons, his third wife, Annie, and the hired help all confessed ignorance of the shooting; they had dispersed to work in several directions that morning. Further investigation revealed some conflict with a neighbour and tension between husband and wife. But suspicion soon focused on the seventeen-year-old younger son, John, a spendthrift whom Nick had recently bailed out of a car purchase and a bad debt. When a friend of John’s told Ralls that John had boasted of shooting his father on the day of the killing, Ralls took the boy into custody.

  After a night in the cells, John Pasowesty told Ralls he was ready to confess and, in the presence of a witness, he said he had killed his father in self-defence after Nick had fired first at him. When Ralls pointed out that only one shell had been used, John altered his confession, admitting that he had hidden in the brush and ambushed his father. He was charged with murder and quickly committed for trial. One week later, in Prince Albert jail, he changed his account again. The real story, he said, was that his mother had shot her husband and “told me that I should say that I have killed my old man because I might get out of it somehow because she would get some lawyers for me.” On that basis another charge of murder was laid, against Annie Pasowesty. She consulted John’s lawyer, G.T. Killam, who shifted to her defence and suggested John Diefenbaker as her son’s new defence counsel.

  Diefenbaker could not be present for Annie’s preliminary hearing on September 6 in Sheho, but instructed his replacement that John Pasowesty should refuse to testify. Since John’s evidence was the sole basis for the charge, the hearing was brief. John was called to the witness stand but refused to identify himself. Annie’s lawyer asked for dismissal of the charge and, after a week’s adjournment, it was dropped. Once again there was a single defendant.

  The case came to trial on November 19, 1929, before Mr Justice George E. Taylor of the Court of King’s Bench at Wynyard. He was, in the words of Garrett and Kevin Wilson, “a prosecution-minded martinet” who habitually intimidated defence lawyers in his courtroom.111 Diefenbaker knew and disliked him.

  The defence counsel’s hope was to make the case for Annie Pasowesty’s guilt and to challenge the admissibility of his client’s confession on the ground that it was coerced by the police. That meant getting John’s statement about his mother into evidence, preferably by her own admission or in police testimony in order to avoid calling the accused to the stand. But when Diefenbaker questioned Annie, the judge brusquely barred any reference to her arrest. Next Diefenbaker called Constable Ralls and led him firmly through the events leading to John’s arrest. Despite eliciting evidence that the youth had been driven “somewhere up the road” by the police for questioning, that they had told him his boots seemed to match the prints at the murder scene, that he had been arrested without any chance to speak to his family, and that he had acted strangely – perhaps out of fear – in custody, Diefenbaker could not convince the judge that the confession was inadmissible. Mr Justice Taylor cut him short and allowed it.

  Now Diefenbaker could only try to get his client’s accusation into evidence and convince the jury that it might be true. Believing that the Crown would call the RCMP constable who took down the accusation, Diefenbaker had not subpoenaed him; but Crown counsel did not call him. As the prosecution’s summing up began, Diefenbaker asked that
the officer be called. The judge intervened. “You know how to get them; to subpoena them and bring them here.”

  “But the deputy attorney general was down here,” Diefenbaker responded.

  “Do not make any more statements about that,” said the judge. “There is a legal way in which you can get witnesses, and do not start giving evidence in this case yourself.”

  “With all due diffidence,” Diefenbaker replied, “I was told that all I had to do was to give them the names and they would arrange for subpoenas and everything.”

  Mr Justice Taylor rebuked Diefenbaker before the jury: He had no right to “make statements by way of evidence” or to entangle the case in cross-trails, and the failure to call the witness was his own responsibility.112 The rebuke may have been deserved, but it was crude, and it inevitably tipped the psychological balance against the defence. Diefenbaker was now forced to call the accused in order to get John Pasowesty’s story about his mother into evidence. But putting the accused on the stand was something Diefenbaker sought always to avoid.

  Under oath, Pasowesty insisted that he had confessed to the murder to protect his mother. He identified his Prince Albert statement naming her as the murderer, and Diefenbaker was then able to read it into the record. But the fact that a charge had been laid against her could still not be mentioned. Perhaps most damaging to the Crown, Pasowesty recalled that his mother had spoken to him in Ukrainian in the presence of a police matron at the Prince Albert jail. When the matron had asked him what she said, he had replied: “My mother said, John, you say you did this, you say you did it, and I will see you get free.’ ”

  When cross-examination began the next morning, the prosecutor carefully and politely revealed the weaknesses in the boy’s story. He elicited further admissions that John Pasowesty had planned to leave home for Alberta and had recently attempted to buy poison for an uncertain purpose. On reexamination, Annie Pasowesty admitted that on the day her husband’s body was discovered she had ordered ten gallons of cider and invited the neighbours to drink it. Diefenbaker wondered whether this was custom or celebration.

  In his final argument to the jury, Diefenbaker insisted that the accused had no motive for murder, nothing that could weigh against “the great love of a son for his father, the respect and veneration in which we human beings hold our parents.” Instead, he suggested, “Annie Pasowesty committed this crime. A schemer, a plotter, she contrived an arrangement where she could kill her husband and throw suspicion upon her son. And worse. Then she induced this boy to confess to the crime, to take that responsibility upon himself and steer all suspicion away from her.” She had motives: her unhappiness in marriage, her husband’s estate. “The truth in this case lies in the statements the boy gave to the police in Prince Albert, the statements he made when at last he realized he was being used.”

  The prosecutor, Herb Sampson, concluded instead that the son was the callous schemer who could not be believed. The judge’s summing up – although it was phrased more obliquely – left the same impression of distrust: John Pasowesty was “the kind of person that he demonstrated himself to be in the witness box.” The jury, the judge reminded them, was obliged to consider the facts “uninfluenced by any consideration of sympathy whatever.”

  Four hours after they retired, the jury returned to the courtroom to request a review of evidence about the family’s movements on the morning of the killing. Since the record had not been transcribed, the judge offered to read his notes of the evidence. The jury concurred and the judge proceeded. When he was questioned about the accuracy of Diefenbaker’s suggestion that the accused had not been away from the house long enough to commit the murder, the judge made a crucial suggestion: “I am satisfied that I have taken down what was said correctly as to that, but while they put it that way, ten to fifteen minutes, still I would suggest to you that was not meant for any accurate statement at all. It is just a statement that men estimate about a thing afterwards, that they have kept no track of.” After further glossing of the record, the jury once again retired. An hour later they returned with a verdict of guilty. Mr Justice Taylor commented that the verdict was “the only reasonable conclusion that could have been arrived at upon the evidence,” and sentenced John Pasowesty to be hanged at Prince Albert jail on February 21, 1930.

  Diefenbaker’s appeal, on the ground that the court should not have allowed the boy’s confession into evidence, was summarily dismissed by the Court of Appeal on January 15, 1930. Now the defence was reduced to petitioning the federal cabinet for clemency – and assuring that the press was well supplied with sensational leads. Although he had not raised the issue of mental capacity at any earlier stage of the case, Diefenbaker now gained the evidence of two “alienists” or psychiatrists who judged that Pasowesty had a mental age of nine or ten years. That was enough to convince the cabinet and, after one stay of execution, the boy’s sentence was commuted to life imprisonment on March 3, 1930. At the end of a harrowing ordeal, that could almost be counted a victory.113

  While awaiting the appeal hearing in the Pasowesty case, the firm of Diefenbaker and Elder took on another murder defence without fee. The case was an equally sordid affair of family violence, R. v. Wysochan.114 The murder victim was Antena Kropa; her husband Stanley was the only witness. The accused, Alex Wysochan, had attempted to run off with the victim a few weeks earlier, but they had been intercepted by the police and Antena had returned to her husband. On Christmas Day, 1929, Stanley Kropa arrived bleeding at a neighbour’s home claiming that Alex Wysochan had broken into his house while drunk and brandishing a revolver, threatening to shoot him. Stanley claimed to have escaped out a window, and then to have heard four shots and his wife’s anguished cry. When the police arrived, they found Antena dying with three gunshot wounds, while Wysochan lay beside her in a drunken stupor, suffering from a superficial flesh wound. As she was carried to hospital, Antena reached out to her husband and cried, “Stanley, help me out because there is a bullet in my body.”

  The case seemed straightforward: Alex Wysochan was charged with murder. But the defence, too, seemed clear: if counsel could convince a jury that Wysochan was too drunk to form an intent to kill, the offence would be reduced to manslaughter and the accused man’s life would be saved. Instead, Diefenbaker chose to reject the claim of drunkenness and to assert that Stanley Kropa was the murderer. This was risky, even foolhardy. It meant that Diefenbaker would have to put his client onto the witness stand to challenge Kropa’s story with his own. Wysochan could not claim, as he had already told friends, that he had been too drunk to remember anything.

  The trial was called for March 18 in Humboldt. For much of January and February Diefenbaker had been bedridden with a revival of his old gastric ulcer and, after the first day’s hearing, the Regina Morning Leader commented that “Mr. Diefenbaker is recovering from a long illness and the strain of the trial is telling severely on him.”115 But he had Edna in the audience for support, primed to watch the jury’s reactions as an aid to her husband.

  The prosecution made a tightly woven case. Stanley Kropa told of his wife’s affair and his willingness to have her return to his home. He repeated the story of Wysochan’s drunken invasion and his own escape; other witnesses testified to Wysochan’s heavy drinking that day; the revolver was identified as Wysochan’s; police evidence showed that all four bullets had been fired at close range; and there were no identifiable fingerprints on the weapon. The prosecutor suggested that Wysochan must have fired all the shots after Kropa had dived out the window. The case rested.

  Diefenbaker called Alex Wysochan, who testified through a Polish interpreter. He admitted his affair. Wysochan claimed that when he and Antena were found by the police during their attempted flight a few weeks before the murder, Stanley Kropa had taken his clothes and the revolver home with him and had kept them. Wysochan said that the affair had continued after Antena’s return home. On Christmas Day Kropa had found him drinking at the Windsor Hotel and invited him home; af
ter his arrival, Kropa had set upon him, Antena had tried to separate them, and he had heard shots. Struggle and drink had left him confused, but he knew he had not used the gun. The story complete, Diefenbaker ended with a flourish. He asked Wysochan to bare his chest and reveal his wound to the jury.

  In cross-examination the prosecutor, Frank Clayton Wilson, sought to emphasize Wysochan’s brazen act of wife-stealing. For a prairie jury in 1930, that would be strong evidence of general depravity and untrustworthiness. Under questioning, Wysochan admitted that Kropa was a good man. Which one of these two was more likely to tell the truth?

  Diefenbaker’s concluding argument to the all-male, all-English-speaking jury came on the morning of the third day. Edna maintained her jury watch while he spoke, telegraphing messages to him by her expressions as he glanced now and then in her direction. Although strained and weak, Diefenbaker called forth his energies and riveted the attention of his audience. Alex Wysochan was a bad man, but the issue was not immorality; it was murder, and Wysochan had no motive for murder. He loved Antena Kropa. Stanley Kropa, on the other hand, had a motive. He had been wronged and he had killed in revenge. That was the only believable story.

  The prosecutor rose to drown the defence in invective. Wysochan was a “dirty little coward,” a “little rat,” a “reptile,” a drunkard who had gone to the Kropa house to kill his mistress’s husband. If Kropa had shot the couple, would he have left the house through a broken window? Would his wife have appealed to him as she lay dying?

  Mr Justice Bigelow, in his charge to the jury, commented carefully on the law, the evidence, and the arguments, but inclined towards the case for the prosecution. He disagreed with Diefenbaker on the question of motive. If the jury believed Stanley Kropa had told the truth, then a motive was unnecessary. Wysochan had come to kill Antena’s husband, and then for some reason – impossible to discover but perhaps related to the love triangle – had turned on the wife when her husband had escaped. Kropa was only likely to leave through a window if his life was threatened. If he had used the gun, wouldn’t he have done a better job on Wysochan? It seemed more likely that Wysochan had shot Antena as Stanley escaped and then attempted to kill himself. Bigelow agreed with the prosecutor that the dying woman would hardly have called for her husband’s help if he had shot her. The jury, he said, could dismiss the charge if they doubted Wysochan’s guilt; they could convict him of murder; or they could convict him of manslaughter if they judged him too drunk to form an intent to kill. At 4:30 pm the jury retired.