A Rock Fell on the Moon

by Alicia Priest

  Was just wondering what your expenses would be to come up to Mayo and testify for me? With the kind of money behind me now, I’m sure I could cover them…

  In a second letter Dad spelled out just what an expert witness could expect to receive in compensation for his time.

  I am receiving the full weight of Mr. Campbell’s support. He’s the head of Canada’s second largest construction company, a millionaire three times over, and it’s on the advice of his geologist who has examined the ore, that he is backing me.

  As of last week he has deposited $50,000 with my lawyer and if you have any doubt that your expenses will be covered, I suggest you drop him a line.

  So that’s what it’ll be, [name withheld], one hundred dollars per day plus all expenses, and a guarantee of a minimum of five days, or 500 dollars, even if you are only one day away from your business.

  Dad’s offer amounted to about $700 per day in today’s dollars. He ended his letter saying with the “backing of a man who can buy out United Keno Hill twice a week and once on Sunday,” he was not only going to win his case, but would one day see a mine operating on the Moon.

  In early October, Dad entered the courtroom in Whitehorse for the first day of what would be a trial lasting more than five weeks. It was a cool, turquoise-sky day and the first snowfall of autumn was just over a week away. A crescent smile flitted across his full lips. Dressed in a white shirt, royal blue tie and soft grey business suit, tailored to flatter his lanky frame, he was the essence of respectability and composure.

  By then, he had a new lawyer to replace Molson. Patrick Hogan specialized in corporate law, particularly in the mining sector, and had a solid reputation in Vancouver legal circles. He was not an accomplished litigator but that hadn’t prevented Dad and Campbell from hiring him.

  Dad and Poncho pled not guilty to four charges: conspiracy to sell stolen silver ore; unlawfully selling silver ore; theft of ore concentrates; and theft of silver precipitates.

  By the third day of the Crown’s case, which closely paralleled the evidence presented at the preliminary hearing, Dad wrote home that the prosecution looked “far more worried than anyone else.” Crown counsel Vic Wylie had good reason to fret. With the trial poised to drag on for weeks, and jurors up against hundreds of pages of geotechnical reports and arcane arguments from duelling experts, Wylie feared jurors might become so mired in methodological quicksand, they wouldn’t know a crime if it bit them on the ass. Underscoring the point was Justice Parker’s decree that due to the case’s unusual complexity, the jury would sit for only four and a half hours a day.

  Meanwhile, public sentiment was mounting in Dad and Poncho’s favour. One story circulating in northern homes, hotels and bars was that a predecessor of UKHM, Treadwell Yukon Ltd., had waylaid a cartload of valuable ore that Dad happened to stumble upon. And now greedy and powerful UKHM aimed to do Dad and Poncho out of what was rightfully theirs.“There has been a considerable change in thinking amongst the mining inspectors and geologists,” Dad wrote Mom. “The opinion around town is that the ore was obtained over 40 years ago from another property on Keno Hill and dumped on the Moon claims.”

  One week later, Dad wrote Mom from his room at the Capital Hotel—“kind of expensive, but it keeps me in a good frame of mind”—that he was holding up well as the Crown case dragged interminably on: “I’m not nervous or upset, but cold as a cucumber! It’s nowhere near as bad as I thought it would be. The jury is bored and they smile at me when I meet them.”

  True to form, in the seven letters Dad penned during the course of the trial, not once did he touch on the Crown’s case. Mentioning the slew of expert witnesses who swore the ore came from the Elsa mine, or the disturbing volume of mill concentrates and precipitates in the shipment, or the former mill worker who confessed to stealing and selling precipitates to Poncho would have acknowledged that all was not exactly as Dad portrayed.

  But he had an exceptional expert witness on his side. Allan Fawley was a founding member of the Geochemical Society, a member of the Canadian Institute of Mining and Metallurgy, and a lifetime member of the Society of Economic Geologists. He had a PhD in geology from Berkeley and a long list of work experience as a consulting mining engineer to augment his academic accomplishments. From his early student days working for the Geological Survey of Canada in Saskatchewan and the Northwest Territories, to employment with various Canadian mining companies including Pioneer Gold Mines, the International Nickel Company and the Freud and Lavaque Mines, to stints overseas working for the Marshall Plan and doing survey work in Africa for the Tanganyika Geological Survey, to various silver, gold and iron mine projects in South America, Fawley had covered an immense range of geographical and geological territory.

  Under questioning by Hogan, Fawley told the court how surprised he was when he first saw the ore in question. “I was expecting it to look like underground ore and instead it looked like surface ore,” he said. And there were few if any signs of powder burns indicating that the rock had been blasted from the walls of an underground tunnel, he added.

  By the end of Fawley’s first half-day testimony, Dad wrote, “The jury just love him! The Crown’s case has finished on a sour note—both Regehr and Hogan are sure of the outcome… I’m going to make it!!”

  Back home, Mom celebrated these exuberant missives, jotting in her Hilroy notebook, “His letters sound very good!”

  The next day Fawley told the court that he had briefly inspected both the Elsa mine and the Moon claims and concluded that the presence of silver-rich ore on the Moon could certainly be explained. It could have happened in one of three ways. First, someone decades ago could have mined the rock elsewhere and then for whatever reasons dumped it at the site. Perhaps the miners intended to return one day but didn’t. Maybe they didn’t realize the value of what they had. Second, thousands of years earlier during the last ice age a glacier could have “rafted” the ore into position. Slowly, as the glacier retreated and its massive icy walls melted, the boulder could have come to rest on the Moon. This phenomenon was well known, Fawley said. Glaciers can carry giant pieces of rock, called “float,” some 70 miles. The one problem with this scenario was that—as Crown witness Alexander Smith later rebutted—the northwestern part of the Yukon had not been glaciated.

  Fawley’s third theory was that the rock could have fallen on the Moon. This scenario would involve ice as well. But the timelines would have been shorter and the events far more dramatic. Instead of the 70-ton chunk rafting or floating into position it would have tumbled into place in a sudden, violent burst of gravitational energy.

  Fawley explained, in the simplest terms possible, how this might have happened. The Moon claims lay at the base of a narrow, steep-sided ravine known as Faro Gulch. The ravine’s rock walls were pockmarked with crevices. In the spring and summer, accumulated ice and snow in the crevices would melt and be augmented with rainfall. Then in the fall and winter, the water would freeze. This freezing action would exert tremendous pressure on the surrounding rock, widening the crevices ever so slightly, Fawley said. Over time, with repeated thawing and freezing cycles, a portion of the rock wall could have given way and fallen onto the land below. If the rock gave way in the summer when it was soft, Fawley said, it would have shattered into a million pieces. But if the break occurred in winter or early spring when the rock’s pores were crammed with ice, making the mass heavy and hard, events would have unfolded very differently.

  “That big block could skid down on the snow… without being broken up… particularly if you realize how hard a combination rock and ice is,” Fawley said. Voila! Once fallen, the colossal chunk of silver-rich ore would lie there for eons until a sharp and lucky prospector came along. The treasure was there for the taking and, of course, was very, very different geologically from rock surrounding it.

  In his cross-examination, Wylie couldn’t poke many holes in Fawley’s theories. He did,
however, cast some doubt on the geologist’s integrity. First, Fawley was forced to admit to having a small financial interest in proving Dad had title to the ore. Curiously, Fawley had advised Campbell to purchase the Moon claims before even visiting the site. This raised the possibility that Fawley made his recommendation solely on the ore from the shipment. Fawley conceded that he’d never set foot in the Elsa mine when the Bonanza Stope was being excavated. Therefore, Wylie’s questioning implied, the geologist was in a poor position to infer that the bulk of the shipment could not have come from underground but was, instead, surface rock. Fawley also confessed to taking only a cursory look around the Moon, not a detailed geological survey. Finally, Fawley acknowledged that underground rock, in depths of up to 500 feet, could show signs of oxidization. In other words, underground rock could resemble float or surface rock.

  Despite these and other admissions, Fawley’s testimony stood up remarkably well. As Strathdee later wrote, he gave the court “the impression that in geology anything is possible.”

  Dad’s second expert witness, geologist Charles Jewell Brown, echoed Fawley’s theories and bolstered the defense’s argument that while the occurrence of a 70-ton lump of rich ore on the Moon claims was improbable, highly unusual and even “unique,” it was not impossible.

  Finally, it was Dad’s turn to speak. He would be on the stand for four days. For Strathdee, who took copious notes during the trial, this was the first time he’d heard Dad’s story straight from his mouth. After preliminary questions—When had he started with United Keno Hill Mines? What did he do for the company?—Hogan led the alleged mastermind into the central matters at hand. First, he asked Dad to explain how he acquired the concentrates and precipitates.

  In 1951, when Dad began at UKHM, it was common practice for all material left over from assays to be considered “rejects.” Dad, however, knew that much of this material had value. So he wrote assistant mine manager Nicholas Gritzak a memo proposing that all material delivered by the mill be returned to the mill when assays were completed. In the same memo, Dad proposed other changes to how the assay office was run, including hiring more staff. Gritzak rejected Dad’s requests. From then on, as far as Dad was concerned, everything he’d raised was off the table, including his suggestion that materials delivered to the assay office from the mill be returned.

  For the next nine years, a growing pile of concentrates and precipitates accumulated at the assay office dump, a dirt-like pile outside the back window. Then, in 1960, a new directive came from mill superintendent Arthur Wall saying the office should place all materials left over from assays into buckets that would periodically be picked up and returned to the mill. But after a full year passed without any pickup, Dad added a ton of accumulated rejects to the stack outside. These, Dad said, comprised what he later gathered up and added to the ore shipment.

  Defense witnesses Jerry Pope and Erik Nielsen, both garbage truck swampers for UKHM, testified that they took many reject samples off to Elsa’s general garbage dump, bolstering Dad’s point that UKHM couldn’t care less about them.

  Then Dad told the court how he’d discovered ore on the Moon. He first met the owner of the Moon claims in 1958 or 1959, when John Strebchuk brought him ore samples to analyze. The ore assayed at a low 2 to 20 ounces of silver per ton, but its composition of siderite, tetrahedrite and galena piqued Dad’s curiosity. In June 1961, Dad happened to be near the Moon claims and decided to take a brief look. He discovered an old pile of ore behind Strebchuk’s cabin and pocketed a few pieces for analysis. To his gleeful astonishment, the assays ranged between 150 and 6,000 ounces of silver per ton.

  When Dad told Poncho what he’d found, the two made a verbal agreement to split whatever they mined on the Moon. The two men returned to the claims and after a thorough inspection came upon a massive clod of silver-rich rock in one confined space. They decided then that they would buy the claims from Strebchuk but not immediately. Over the rest of the summer of 1961, the two broke up the rock with sledgehammers, picks and crowbars and covered the mound of broken pieces with moss and brush. The claims were so remote no one saw them and no one reported this activity to Strebchuk. Later that same year, Dad told Strebchuk, who had evidently not been on his claims for a while, that he wanted to buy them. Strebchuk’s price was $5,000. Dad held off. In June the following year, Strebchuk sold Dad the Moon claims for $1,000.

  By then, Dad testified, he and Poncho had amassed 70 tons of ore averaging 2,230 ounces of silver per ton. And Poncho had targeted the Duncan Creek Road loading site as the closest unstaked ground where the ore could be stored.

  But as Dad later learned, Poncho had ideas of his own. That July, Dad testified, Poncho flew to Vancouver to ask Aaro Aho for money to buy equipment and build a road out to the Moon so the ore could be trucked to the Duncan Creek site. Previously, Aho had staked a number of new claims close to the Moon group. Later, against Dad’s explicit instructions, Poncho took Aho to the Moon claims. When Dad found out that Aho had been on the Moon, he demanded that Poncho sever all business ties with him.

  Poncho failed to build the road, so Dad considered other ways to get the ore out. He settled on a Ski-Doo and tow toboggan. The tow toboggan, he added, had a protective coating of red fibreglass on its underside to avoid abrasion under the weight of all that rock. Dad moved the ore over numerous trips during his holidays in April 1963, leaving it at a temporary spot on nearby Hanson Lake Road. During the following month, after the roads were plowed, Dad and Poncho moved the ore by truck to the Duncan Creek site, where it sat until it was shipped to the smelter. In all, the two men made 130 trips to transport the ore.

  That same month, Dad said, he and Poncho formed a new company—Alpine Gold and Silver Mines Ltd.—in order to avoid paying a large amount of income tax on the shipment. Just prior to shipping, he drove to the assay office and loaded twenty-seven sacks of rejects, concentrates and precipitates from the dump into his truck. Then he drove the load back to the Duncan Creek site and chucked the contents onto the ore.

  But Poncho hit Dad with another unwelcome surprise. In the assay office attic, he showed Dad ten bags filled with precipitates from the mill. “I came up here to store some storm windows and found this,” Dad recalled Poncho saying. “Don’t know where it came from. How be we ship it with the rest of the ore?” Dad said he refused. He told Poncho to return the bags to the mill and throw the contents in with raw ore so it would be fed back to the mill and recovered. He watched Poncho drive to the mill and throw a sack or two into the bin. Then Dad turned around and left. The inference from Dad’s testimony was that if Poncho had not dumped all the bags into the bin but instead added the rest to the ore shipment, he’d done so against Dad’s will.

  Throughout the last stages of waiting for the pickup, Dad said he kept talk of the shipment as quiet as possible. By doing so, he believed that Aho would let his claims near the Moon lapse and Dad could then scoop them up.

  With that, Hogan sat down and Wylie stood up. Dad remained calm through much of the early cross-examination—When exactly did he start saving assay precipitates? Who had known about the ore shipment, and when? But he got decidedly agitated when Wylie suggested the ore could not possibly have come from the Moon. As Strathdee recalled, “He became very excited at this point and said it was his opinion that the RCMP and UKHM were in a conspiracy to take his ore.”

  Dad also became angry when Wylie asked about Aho’s testimony concerning his business arrangements with Poncho. Dad called Aho’s testimony “a pack of lies” and said Aho and his associates were after his ore.

  Wylie then asked Dad how the precipitates happened to be in the ore. At first, Dad said, he believed Poncho had followed his instructions and returned all the precipitates to the mill, adding that he even saw evidence of this the next day when the assays of mill samples showed a spike in silver. The spike was consistent with silver-rich precipitates being mixed in with the ore. Only much later
, Dad said, did he learn that Siegfried Haina was stealing precipitate material and storing it in the attic, and that Poncho intended to steal from Haina what Haina had stolen from the mill. These were damning words that Henry Regehr did nothing to counter, as he and Poncho had decided Poncho would not speak in his own defense.

  As for the mysterious letter “M” in the documents, Dad said the P stood for Poncho (Bobcik’s nickname) and the G for Gerry. The M, Dad explained, stood for Toronto lawyer Richard Irwin Martin. But why would Bobcik, who had written the notations and was known as a “definite first name user,” use first initials in two cases and a last initial in another? Dad could not explain. This was the only reference to M in the trial and the only attempt by Wylie to draw Martin Swizinski into the crime. If Swizinski had been involved, Dad wasn’t saying.

  After Dad’s testimony—the highlight of the lengthy trial—Hogan rose to give his closing arguments. Dad, he said, had established that the ore came from the Moon claims. If anyone’s actions should be questioned it was those of the RCMP, UKHM and ASARCO. During their watch, Hogan pointed out, the prime exhibit in the case—the ore shipment—had been smelted and may as well have disappeared.

  Dad’s demeanour in the witness stand, Hogan continued, was one of “candor, forthrightness and fearlessness—that of a man who is telling the truth. He stood for four and a half hours giving evidence almost without prompting or questioning from me. And searching cross-examination for two and half days did not weaken him.”

  Judge John Parker, the man who tried and sentenced my father, took a classist and colonial approach to justice. Born in Essex, England, and educated at the Law Society of Upper Canada’s Osgoode Hall, he answered the call of the north and spent fourteen years in the Northwest Territories as a criminal lawyer before being appointed to the Yukon judiciary in 1958. Coincidentally, he’d lost his first prosecution case early in his career to Vancouver lawyer Angelo Branca, who would go on to briefly represent Dad.