by Amy Knight
Woikin was doomed from the start. She was still without legal counsel when she appeared on February 22 before the Royal Commission, which wrung further details out of her with little difficulty. By the time she was brought before the magistrate on March 2 to be formally charged with violating the Official Secrets Act, Woikin's mental state was precarious: “She wore no hat and her hair looked as if it had not been combed for days . . . she was ‘in shock.’ The first charge against her was read. In a flat, unnatural monotone, Mrs. Woikin said ‘I did it.’ The magistrate interrupted to ask her if she wished to be represented by counsel. She merely shook her head and repeated over and over, ‘I did it.’ . . . The clerk asked her to plead guilty or not guilty. She replied: ‘I did it.’ The magistrate tried to explain that she would have to offer a plea one way or another. She kept on repeating the same three words. Finally he was able to get through to her, and she said, in a voice that [could] scarcely be heard: ‘I did it. I’m guilty.’”61
Woikin's family in Saskatchewan scraped together money for the fifteen-hundred-dollar bail and hired her a lawyer for her trial. But given her confessions to the RCMP and the Royal Commission, there was little the lawyer could do, except to elicit some sympathy for her from the judge and to emphasize that the secrets she had betrayed were very minor. Woikin, the first of the spy suspects to be tried, was sentenced to two and a half years in prison.62 Given she had feared she would be executed, she may have considered her punishment mild. And she may well have deserved it. Nonetheless, it was a sad day for the Canadian system of justice.
Chapter 5
COLD WAR JUSTICE
For one brief moment, the communist trials would place Canada at the center of world politics. For the Western public, this was the moment when the Cold War began.
Merrily Weisbord, The Strangest Dream
While the RCMP interrogated suspects at the Rockcliffe Barracks, the Royal Commission, whose hearings were held in secret, was questioning Gouzenko. He was filling in the blanks – which were many – that appeared in the evidence he had produced. The commissioners, judges Taschereau and Kellock, were trying to establish the real identities behind the code names in the Russian documents and to explain the many anomalies that had cropped up. This was no easy task. As observed in a top secret message from Ottawa to MI6, “Corby's documents have to be interpreted with the greatest care and reservation.”1 The commissioners were also encouraging Gouzenko to provide additional verbal testimony that might help them establish the guilt of the detainees.
Gouzenko, who testified for several days, was a model witness. Whatever mental torment he had suffered at Camp X, he pulled himself together for his appearances before the commission. He understood what the commissioners were after, and, within certain bounds, was anxious to please them. On February 14, the day before the detentions, a message to MI6 read: “Corby is making [an] excellent impression on the judges.”2 Although an interpreter was present, most of the time Gouzenko answered questions in his still imperfect English. He was methodical and understated, impressing the commissioners with his knowledge and his unhesitating responses. The commissioners and their counsels were full of appreciation. The young man who had been for more than two years the linchpin of the GRU communications network was, now that he had seen the light of democracy, an object of admiration and respect. He was on their side in a struggle against the insidious and dangerous phenomenon of communist sympathizers among their own citizens. They hung on his words, depending on him to help them wade through the morass of espionage language.
The RCMP still feared the Soviets would attempt to abduct or assassinate their charge, so Gouzenko was housed in the Justice building on Wellington Street during the period of his testimony, leaving Anna on her own at Camp X with the children. Confined thus, he was living and breathing the process of the Royal Commission. Given these pressures, it is even more remarkable that he held together so well. But his questioners were disposed in his favor, and he knew that his future in Canada depended on his performance before the commission. His earlier testimonies for the RCMP, which had dragged on laboriously and caused his frustrated interrogators to threaten to send him back to Russia, were far behind him.
The cases against the suspects, based on Gouzenko and his documents, were far from straightforward. A case in point was the evidence against Fred Poland, a young journalist from Montreal who was swept up in the RCMP's net because of some pages from Colonel Zabotin's notebook. The scribbled Russian notes had puzzled investigators. At first the name Zabotin jotted down appeared to be “Holland,” but then someone looked at it again and decided it was Polland.
The brief description by Zabotin did not fit Fred Poland.3 The individual concerned was said to be working in Toronto as part of the intelligence branch of the Royal Canadian Air Force, and in the process of being transferred to Ottawa. Squadron Leader Poland had been stationed with the rcaf in Ottawa since the spring of 1942, over a year before Zabotin arrived in Canada, and was transferred to the Wartime Information Board in early 1944. What was the highly secret information Zabotin recorded as received from “Holland/Polland”? A map of training schools in the area, marked “for official use only.” When pressed for more information about Fred Poland, Gouzenko said he remembered seeing a 1943 telegram from Zabotin to the GRU in Moscow suggesting that Poland was such a good worker that he should be handed over to the NKVD. Given the rivalry between the GRU and the NKVD, and the fact that Zabotin's notes indicated only a vague knowledge of this agent, Gouzenko's recollection was probably wrong.4
Not surprisingly, there had been considerable hesitation about including Poland in the February 15 roundup. The day before, Commissioner Taschereau had asked Counsel Williams, “As to Poland; the witness mentioned Polland, with two ‘l's’ but he did not identify that cover name of Polland as being the person mentioned in your application [for arrest].” Williams replied confidently, “The evidence will be placed before you to show that a man named F.W. Poland occupied the position indicated in the note of Colonel Zabotin at the time.” “That he works in Toronto in the Intelligence Branch?” Taschereau asked. “Yes,” was the response. Commissioner Kellock chimed in: “You say ‘at that time.’ What time?” Williams assured the commissioners (wrongly) that Poland had worked in Toronto “during the whole period of 1943” and also that he would have further evidence to show his guilt; namely, that Poland shared an Ottawa apartment with Gordon Lunan.5
A telegram to London on February 18 (apparently from Dwyer) made a reference to the weak case against Poland: “there is [a] possibility that poland, against whom evidence was anyway light, may prove to be only very slightly involved. He is at present writing [a] statement on activities of LUNAN, with whom he shares an apartment. He will be better assessed after serious interrogation.” (Presumably, “serious interrogation” meant the RCMP would be employing more extreme forms of pressure.) Yet on February 20, the message about Poland was the same: “Interrogator is not prepared to give any opinion yet, but there must continue to be very considerable doubt as to POLAND'S implication [in spying].”6
Despite the RCMP's Gestapo-like tactics, Poland confessed to nothing. He was brought to trial on recommendation of the Royal Commission and acquitted. Edward Mazerall, on the other hand, a twenty-nine-year-old electrical engineer employed by the Canadian National Research Council, confessed early on and implicated Lunan, who had been his contact. On February 18, the following telegram was sent to MI6: “MAZERALL has written guarded confession, admitted to working for LUNAN and quoted his own cover name ‘bagley.’ He has minimized importance of how much information he gave. He has implicated no one else and only mentioned lunan with reluctance. Fred rose first approached him. He is an impracticable idealist.” Two days later, the RCMP was able to report, “Mazerall's nerves and memory are improving simultaneously. He has recalled considerable details of [the] communist cell to which he belonged . . .”7
While the Canadian press was making free use of the word tre
ason (an offense which could bring the death penalty), the fact remained that, while the spying had occurred, Russia was a friend, not an enemy. It was difficult to prove that persons passing information to a friendly nation were doing serious harm. Thus it made more sense for the Canadian authorities to charge the suspects under the Official Secrets Act, which was modeled after a similar law in Britain and was open to sweeping interpretation by the courts.
Revised in 1939, the law stipulated that the onus was not on the court to prove guilt, but on the defendant to prove his or her innocence. In addition, the definition of guilt was so broad that any contact with an agent of a foreign state could be interpreted as a crime. Thus, for example, section 3(2) read, “It shall not be necessary to show that the accused person was guilty of any particular act . . . he may be convicted if, from the circumstances of the case, or his conduct or his known character as proved, it appears that his purpose was a purpose prejudicial to the safety or interests of the State.” And section 4(a) stipulated that “a person shall, unless he proves to the contrary, be deemed to have been in communication with an agent of a foreign power if he has either within or without Canada visited the address of an agent of a foreign power or consorted or associated with such agent or . . . the name or address of, or any information regarding such an agent, has been found in his possession. . . .”8
This law was later to prove embarrassing to Norman Robertson, who had been in contact with mp Fred Rose on numerous occasions over the years and even entertained him at his home in the exclusive Rockcliffe section of Ottawa. Rose furnished Robertson information during the war about Fascist and Nazi activities in Canada, information that Robertson passed on to the RCMP. And Rose also discussed with Robertson government policies toward the Communist Party. In October 1946, during the trial of one of the accused spies, the fact that Rose had been invited to Robertson's house came up and was mentioned in the papers. Robertson, who was by then Canadian High Commissioner to London, was mortified, and sent a long letter explaining his position to Lester Pearson, who had recently been appointed Canadian Minister of External Affairs.9
In fact, Robertson was well acquainted with others among the suspects. Fred Poland was associate secretary of the Ottawa branch of the Canadian Institute of International Affairs, to which many of Ottawa's leading civil servants, including Robertson, belonged. Robertson had also had close links with the Wartime Information Board, where both Poland and Gordon Lunan had held senior positions. As Robertson's biographer observed, “The spy net stretched widely, and Ottawa was still a small enough town that Robertson must have felt very uneasy as he contemplated the list of suspects.”10 For Robertson – with his prominence, and his record of loyal service to the Canadian government – his contacts with alleged spies amounted to nothing more than a political embarrassment. But for the thirteen scientists and civil servants languishing at Rockcliffe Barracks, association with the ubiquitous Rose and other communists was crucial evidence of guilt.
In addition to Emma Woikin, three other suspects – Kathleen Willsher, Gordon Lunan, and Edward Mazerall – appeared before the Royal Commission on February 22, 1946. Kathleen Willsher, who had been working in the office of British High Commissioner Malcolm MacDonald, had confessed early on to the RCMP, telling them she had meant only to help the cause of the Canadian Communist Party, not the Soviets. Willsher was a cooperative witness before the commission, in large part because she, too, thought she might be executed if she did not confess. “Yes,” she said, “I know I can be shot quite easily, if necessary.”11
Educated at the London School of Economics and fluent in several languages, Willsher had come to Canada in 1930 and within a few years joined the Canadian Communist Party. Like Woikin, Willsher was attracted to the party because it offered her a useful cause, as well as social contacts. According to her testimony to the Royal Commission, she conveyed general information verbally to the party because she was told that it would help in persuading the Allies to open a second front in the war against Germany. Nothing very specific, she insisted, and no written documents. Although the commissioners claimed that the transcripts of RCMP interrogations were not available to them, their lawyer made free use of them. Thus, while questioning Willsher he consulted the RCMP transcript to correct and clarify her statements.12
Remarkably, the only documentary evidence against Willsher provided by Gouzenko turned out to be letters that she never saw and could not have crossed her desk at the British High Commission. When Zabotin received the letters he mistakenly attributed them to Willsher in his long list of Canadian documents sent to Moscow. Although the Royal Commission acknowledged this, they had the admission from Willsher about passing on verbal information, which was enough for them. She pleaded guilty to violating the Official Secrets Act at her subsequent trial and was sentenced to three years in prison. Had Willsher been allowed to have a lawyer after being arrested by the RCMP, she doubtless would never have been convicted.13
As Gouzenko reluctantly acknowledged to the commission, the mailing list he stole from the embassy was not typed by Zabotin but by the wife of the embassy driver, who did secretarial work for the GRU. Also, it was dated January 1944, while the items listed as having been sent to Moscow were from well after that date. Yet for the RCMP and the Royal Commission this document was one of the major pieces of evidence against the spy suspects. Thus, according to the mailing list, an individual code-named “Ernst” passed along a lot of information about the dispatch of munitions to England during the period of November to December 1944. Gouzenko said that Ernst was Eric Adams, an employee of the Bank of Canada, who Willsher acknowledged as a contact. But in late 1944 Adams was working for the Canadian Industrial Development Bank, examining credit applications from Canadian factories. And in some scribbled notes stolen by Gouzenko, Zabotin described Ernst as a Jew who worked as a coordinator in a “united committee of military production of the U.S. and Canada.”14
Adams was not Jewish and was not involved with any joint military committee either at the Canadian Industrial Development Bank or the Bank of Canada. This did not stop the commission from asking the RCMP to detain Adams. The fact that Adams was flirting with communism and had visited the Soviet Union with his wife some years before clinched it for the Royal Commission, which pronounced him a spy. Adams had withstood the efforts of the RCMP to get him to talk and insisted on his innocence to the Royal Commission, but the commissioners did not believe him. Once Adams got to trial, his lawyer grilled Gouzenko, who persisted in claiming that Ernst was a Jew who worked in coordinating American and Canadian war industries. Gouzenko recalled having seen a GRU dossier on Ernst (which he never mentioned to the Royal Commission) confirming that his name was Eric Adams, but he then said he never opened the file. The court acquitted Adams.15
As one legal expert later pointed out, the commission's failure to inform those being questioned that they could refuse to answer on grounds of possible self-incrimination might have been less reprehensible if the commission had stuck to its mandate of merely gathering information. But the commission far overstepped its bounds: “the commissioners felt it their duty not only to report misconduct, but, in effect, either to perform the function of the grand jury or magistrate or to provide briefs for counsel who would conduct the prosecutions for the Crown.”16 The Ottawa Civil Liberties Association came to the same conclusion: “If the Commission was to usurp the functions of a court and bring in findings of guilt, it has no right to depart from the established rules of evidence binding on all courts.”17 The fact that the two commissioners were members of the highest court in the country and their counsel, E.K. Williams, was head of the Canadian Bar Association made their disregard for legal rights especially shocking.
Given that the burden of proof in Official Secrets Act cases was shifted onto the defendant, and that the rules of evidence were so broad, it was almost impossible for the accused to mount an effective defense, especially without a lawyer. Adams, Woikin, Lunan, and several other
defendants had lawyers only once their cases came to trial. By this time they had already been pronounced guilty of violating the Official Secrets Act by the Royal Commission, which questioned them on the basis of earlier interrogations by the police (where they had incriminated themselves).
Although Gordon Lunan was highly intelligent, articulate, and assertive, he was naive about legal matters, something that in retrospect he acknowledged: “The Canada Evidence Act extends protection against self-incrimination to witnesses provided they do not perjure themselves. A common thief knows all about this – but not, alas, an educated well-read thirty-year-old whose only brush with the law had been the odd traffic ticket.” But, he allowed, “of course, some inner-voice whispered that such protection surely must exist.”18
