by Rudy Wiebe
It was during these days that, for the first time, the four accused heard all the evidence, and witnesses, that the police had brought together about the case up to that point. Ernie had said in the cell shot, “Play dumb to see what the preliminary shows”—well, now each of them knew what they had to contend with.
On 22 May 1990, Judge Casson ruled that the evidence presented at the inquiry satisfied him that it would be open to a jury to conclude that all four accused participated in the process of killing Leonard Charles Skwarok. He declared, “Accordingly, I’m ordering that the accused Wenger, Jensen, Johnson, and Salmon are to stand trial on the charge of first-degree murder.”
A first-degree murder charge against all of them—it shocked the four defendants. A conviction meant a life sentence in prison, twenty-five years without the possibility for parole.
Though Shirley Anne had been arrested on a first-degree-murder charge, this judicial ruling terrified her. She had always insisted Chuck was still alive when she fled. Consequently, her lawyer, Stirling Sanderman, arranged for her to act as an informant on Yvonne in the Edmonton Remand Centre. Shortly after the inquiry ruling, she began to press Yvonne about details concerning the offence; to insist that Yvonne would deal. She was so awkward in her questioning that it seemed to Yvonne she was eliciting information, and finally, as she wrote it later, she yelled back at Shirley Anne,
“It was you and Ernie kicked his neck, I heard it crack, then he gurgled, and then it was you who choked him!” At that, Shirley Anne flipped out, ran to the toilet and ripped off the tape of the bug she wore under her shirt and tried to flush the bug down the john, smashing it on the toilet and trying to stomp it down. To return to the bars gunning me off, with a shiny wire bouncing in front of her to her hard breathing, yelling, “I want to see my lawyer now!” I laughed at her as she stood there, I told her her shiny wire is sticking out. She was yelling, the matron came, and then a RCMP, to let her out and he retrieved the broken tape recorder out of the toilet.
Within days after that Shirley Anne was removed to the Red Deer Remand Centre, 150 kilometres from Edmonton, and on 19 August 1990 Corporal Bradley flew in 2,000 kilometres from Whitehorse, where he had been transferred, to interview her again.
When he was cross-examined at Yvonne’s trial about these particular August 1990 interviews, Bradley stated he was told by J. Barry Hill, the Crown Prosecutor, “in no uncertain terms that there were to be no inducements or deals at all offered to this lady … and none were.” Nevertheless, the first point he made to Shirley Anne was that she and her legal-aid lawyer, Stirling Sanderman, had agreed she should talk to him, and that Mr. Hill had instructed him to tell her that what she was going to give was a witness statement only.
“In other words, what you say to me now deals with what you saw as a witness, it cannot be used in any proceedings against you, it cannot be used at your trial [in this case].”
Further, he had written up his notes of that first interview of 19 September 1989—he showed her the typescript, from which he had quoted extensively in the preliminary inquiry—but since she had never signed it, it was now considered a verbal statement only and would “not necessarily, no” as he said it, ever be used against her in any trial.
Reassured on these points, she did a two-hour tape-recording with him, which became a seventy-four-page statement; he returned to Red Deer from Whitehorse again on 30 August 1990 to corroborate the typescript, and witness her initialled changes and final signature to it. He reassured her, “My commanding officer told me I can travel any time on this investigation because the Crown has basically said that they want me and you to deal with each other.”
Shirley Anne was satisfied. She repeated and elaborated further on what she had already said, and in all signed three different statements totalling ninety-six pages of testimony.
Yvonne did not know that Shirley Anne was dealing in Red Deer, but she was proving herself in her own unique way at the Remand Centre. On 2 April 1991, the centre’s senior psychologist, Dr. Patrick Thauberger, would write of her:
During the past 16 months I have provided counselling to Ms. Johnson […]. She has been the leading player in facilitating the adjustment and coping of mentally low functioning female offenders [in her unit]. These individuals are very difficult to place and are vulnerable to pressures and intimidation of less compassionate offenders. Ms. Johnson has consistently taken each and every one of these lower functioning offenders under her guidance […]. She is, in my evaluation, one of the most capable and sincere offenders I have encountered in 14 years of Corrections.
And, at the same time, she herself was beginning to speak. Not to a police officer, but to herself. She writes a document headed: “YVONNE JOHNSON / SEP-6th 1990 / Edmonton Alberta Canada.” It is typewritten and single-spaced, fourteen pages loaded with words from edge to edge. From the very first page it is clear that she intends to write her life story:
[…] My life story may not be believable by most, but I bet a lot of people can understand […]. Since I’ve been here waiting for trial for first degree murder I’ve come to know a lot about myself, and for the better. […] I don’t know how long my book will become, but at least it will help me deal with things in my head. I hope anyways. You see, to me writing this book will release long hidden fears, dreams, hurts, love, pain. […] I’m doing this also in hopes of dealing with things that I never did before. Somehow maybe figure out some answers. I don’t even know how to write a book but I will give it my best shot.
She continues with memories of her childhood, family, and personal incidents—funny, painful, many ordinary, some frightful. There is no detailing of any particular violent or sexual abuse, but several times she notes “I was a very scared child,” and on page 8 her reasons for writing surface again:
I was not a child long enough. Maybe my childhood was not what my mom thought it was. Poor Mom, what this book has in store for you and Dad. Please believe me, I’m not doing this to hurt anyone. But I feel things must be said. I’ve held things inside for so long, and I can’t deal with it […] obviously something is not right, if only, if, if, if, if I want the ifs to stop. I want the whys to be answered. […] I have been quiet too long. […] I feel dirty all the time.
This amazing document of stories circling through Yvonne’s life is filled with sketches of her father, mother, her siblings, and the continuing traumas of her cleft palate throughout her childhood: many facts and events we will use to write this book. And though Earl’s death is not mentioned, pain appears often, and her admissions of her adult “hiding in drugs, booze, that never did give me any satisfaction, just confusion,” and several of the incidents with her father and Leon edge close to the abuse she will later detail to me. The last page concludes with:
[When I was small] I feared my dad not because of him and the spanking he was giving me, but because of other experiences that had happened to me. […] Writing this and finishing it will be that thing in life that so many fear to look at. […] As I always knew, but did not.
Nevertheless, for five years, Yvonne does not tell me about her memories of what happened in the basement. She drops a hint here or there, or makes a comment on the trial or factum records—“That’s a lie” … “it didn’t happen that way”—but reveals nothing consecutive or coherent.
On 1 September 1995, she writes to me, in her last words of Journal 16:
I just can’t seem to write in length of detail of Lyle or the offence. I feel it’s not safe to do so. Or at this point in time. I just cannot do it. I will try to write what I can of things, but it’s the best I can do. I will not write of the hours before, during, or right after the offence. I just can’t bring myself to that.
To write the whole story, I need to hear her memory of the basement, but I cannot push her. So, I wait.
The preordained order of the legal process of Canadian justice and guilt and punishment in the death of Chuck Skwarok ground inevitably on, and with great slowness.
; In its wisdom—presumably on the basis of the evidence it had gathered and the deals it had made—the Crown decided to try Dwayne and Shirley Anne in separate trials, but to link Yvonne’s and Ernie’s in one. Consequently, there were three trials.
On a serious charge such as murder, the trial usually takes place before judge and jury. However, if the accused pleads guilty the trial is conducted by judge only because there is no need to prove the guilt, only evaluate a just sentence. Since both Dwayne and Shirley Anne entered “guilty” pleas on which they could be judged, they did not need to face a jury.
Dwayne Wenger’s trial came first. On 15 September 1989, he had been the first of the four to be apprehended; Constable Witzke arrested him at the door of Parkside School, where, he said, he had gone to make sure Chantal was in class. In the cell shot he also said that he’d gone to look for Chuck’s car where Ernie had left it behind bushes in the adjacent park, though it had, of course, been towed away hours before. On 14 January 1991, Justice Nina Foster accepted his plea of “Guilty” to second-degree murder. Dwayne had hoped for the more lenient sentence of manslaughter since he had, to quote the prosecutor, “shown a great deal of remorse and cooperated all that he could,” that is, with statements and video re-enactments, but rather than an extended trial he settled for a sentence that implied his intent to commit murder. Perhaps one critical point against him was his confession that, when the fight raged in the kitchen, he was the person who had thrown Skwarok into the basement. Judge Foster sentenced him to life in prison, but with the possibility of parole after ten years.
Within a week Shirley Anne Salmon’s trial followed, and she got “the chance” she had so apprehensively asked Corporal Bradley about when he first talked to her after her arrest; she got her chance in spades. Her lawyer, Stirling Sanderman, reached an agreement with Crown Prosecutor J. Barry Hill and at her trial, on 21 January 1991, she pleaded “Not Guilty” to the first-degree-murder charge, but “Guilty to Aggravated Assault.” Sanderman stated that she felt remorse and guilt for what she’d done, that her judgment had been affected by drink and also by pressure from the others involved. In an unusual, even astonishing move, Crown Prosecutor Hill accepted the much lesser plea of “Guilty to Aggravated Assault.” Justice T.W. Gallant agreed to it and summarily sentenced her to an extremely light possible jail term of one year in prison and five years’ probation. Peculiar as it was, the Crown attorney offered Shirley Anne less time than she wanted. She had already been incarcerated for sixteen months; however, at Yvonne’s trial she testified that she herself asked to remain in the Red Deer Remand Centre for some time longer. As she explained, “There was one point that I was going to go out on bail last September [1990] and I asked my lawyer—I said could you ask for more time. I said I want to stay. My soul still feels bad because I believe I sentenced this man to death. So he said well, you phone me back in a few days. They’re asking for more time anyway. Since you don’t mind staying there. It’s not that I mind staying there, but I didn’t want to be going out somewheres down the line and think I hadn’t done enough time for the death of this man.”
Yvonne later wrote in the margin of the trial record: “You should be in my place.”
As Shirley Anne stated under cross examination by Brian Beresh, she would “still be in the joint [ie: the Remand Centre] till May 21, 1991.” That is, she would serve a sentence of exactly twenty months.
At this point I had become more than uneasy about the legal process which I had been attempting to assemble and narrate in a logical order. I felt I needed to have more comprehension of what, in terms of Canadian legal practice, was going on here. So I contacted several lawyers I knew, both those who served as prosecutors and those who act as defence counsels. To summarize:
Question: All four accused had legal-aid counsel because they had no money to pay for their defence; does this raise particular problems?
Answer: Legal-aid lawyers are paid minimal professional fees. They do their professional best, of course—legal aid is often the way lawyers build their reputations—but it is very onerous work and there are always more cases than there are capable lawyers willing to handle them. They are invariably rushed; they cannot spend extraordinary amounts of time on any one case, however complex. Besides that, there may be little or no money provided for extra investigative work, beyond what the police are already doing.
Question: What kind of a defence lawyer is Brian Beresh?
Answer: He has a reputation within the profession as being one of the best. He’s defended some very difficult cases. For instance, in 1987, in another well-known Wetaskiwin trial, he defended William Nepoose, who was found guilty of second-degree murder. Though Beresh lost that case, in 1992 he presented new evidence that two of the women witnesses had confessed to giving false testimony and indeed to “outright lying.” A new trial was ordered, and Nepoose was declared innocent.
[In August 1997, Brian Beresh was chosen the defence lawyer for Larry Fisher, the Saskatoon man now charged in the 1969 rape/murder of Gail Miller, for which David Milgaard was once convicted. Clearly, Beresh has a wide reputation.]
Question: Is there a kind of “good defence strategy” for abused women accused of crimes?
Answer: They don’t really teach you in law school how to represent abused women, or a raped child. And cases can’t come any worse than the one you’re talking about.
Question: What is this business of “making a deal” with one of several persons accused of the same crime?
Answer: It’s standard legal practice. If someone agrees to serve as witness against other accused, they may or may not stand trial on a reduced charge and with a reduced sentence.
Question: But will their sentence be lighter?
Answer: It may well be, if they agree to plead guilty to a lesser charge. But a judge still decides on the sentence, according to the evidence presented.
Question: The evidence as presented by the Crown Prosecutor?
Answer: Yes, it’s his or her responsibility to present the relevant facts of a crime gathered by the police, and for the judge to decide on a reasonable, fair sentence.
Question: And who decides with which of the accused “the deal” is made?
Answer: The Crown Prosecutor. Based on the evidence the police gather.
Question: So, the Crown Prosecutor has, in effect, already decided, before any trials take place, who the guilty parties are?
Answer: Well … that’s not the way it should be phrased.
Question: Okay. But the Prosecutor decides which of the accused he or she will make a deal with, and then subsequently could present the facts against that “dealer” in the “dealer’s” trial in a rather less stringent fashion?
Answer: (from a Crown Prosecutor): You must understand, you can only prosecute according to the legally defined laws of evidence. You have to weight where the clearest, most credible evidence lies, in order to get a conviction for the crime—in this case, the killing of a man—that has obviously taken place.
Question: Okay, so does the Prosecutor then decide that the party “most guilty” is the one for which he can most readily gather the clearest, most believable and incriminating evidence?
Answer: I wouldn’t say “most guilty.”
Question: And would you, as Crown Prosecutor, perhaps back off a little on the evidence against the party you’re “dealing” with?
Answer: Some might. After all, it is a “deal.” In any case, ninety-nine percent of the time the judge asks no questions whatsoever about possible further evidence. That’s not his job.
Question: But a crime has been committed, you need a conviction, so you’re looking for the most “believable evidence”?
Answer: That’s true, but——
Question: And in weighing that evidence, in order to get a conviction, you might, for example, leave out of consideration that one participant could easily run away from the scene of the crime and claim—since no time of death has been established anyway—tha
t the man was still alive before she left, while the other accused had to remain at the scene because her children were there and had to be protected? In other words, in this case the mother, because of her duty to her small children, provided the prosecution with the most believable motive and evidence?
Answer: No. You’d weigh the mother thing—but of course, there’s no legal exemption for mothers to kill.
Question: But perhaps one could expect some understanding for a mother who believed her children were being threatened?
Answer: Oh sure—but a jury is a jury, if they say “First” no judge can do a thing about it. Because we have an adversarial courtroom system: the defendant is innocent until the prosecution proves him guilty beyond a reasonable doubt, and the defence will try its professional best, within its means, to expose every extenuating nuance and contradiction in every testimony. As Prosecutor you count on that—for the dialogue of oppositions to expose the factual truth. The fundamental concept is, the conviction does not depend on what either the Prosecutor or the defence says at a contested trial; it depends on what the judge or jury understands as being the most credible. In an agreed guilty plea, it’s different, because the Prosecutor selects the charges and decides what evidence to call in support.
Question: Okay, that’s the basic concept. Is that why, if you’re rich enough to hire enough detectives and expert witnesses, you have a very good chance of throwing “reasonable doubt” on the prosecution’s case?
Answer: Unfortunately, that’s sometimes true. That may be part of the reason why jails are filled mostly with poor people.
Question: If so, if a person—especially a poor person from a racial minority seen generally in the community as being socially upsetting—if such a person goes to trial, one shouldn’t really expect justice. One can only expect what the judge or jury, who are invariably of the majority race, will find “believable”?
