by Denis Smith
Jimmy Gardiner’s ambitions, like those of John Diefenbaker, always reached beyond Saskatchewan. The election of 1935 gave him his opportunity, and two weeks after the Liberal victory he was sworn into the new King cabinet as minister of agriculture.44 He held that portfolio for twenty-two years, as prairie baron of the federal party, until the Liberal government’s defeat in 1957. At the end of October, W.J. Patterson succeeded Gardiner as premier of Saskatchewan.
Bennett returned to the House of Commons as leader of the opposition, with a dispirited and divided party behind him. For two years he maintained his position while discord mounted – some of it, inevitably, in public. Finally Bennett faced a private meeting of national party delegates in March 1938 and announced his resignation as leader, to take effect after a leadership convention in July. Diefenbaker attended the March meeting and was impressed by Bennett’s bitter leavetaking. In his papers Diefenbaker preserved a copy of that speech and later extracted from it Bennett’s concluding words: “Every time you publicly criticise anyone in your Party you do a great harm to your Party and every time you publicly criticise the leader of your Party you add fuel to the fires of opposition that must always burn against him … I ask you – why assist the enemy? Surely my successor will receive better treatment than did I … As for me, my task is done … Give to my successor loyalty. By loyalty I mean loyalty – true loyalty, not loyalty that will destroy.”45
Diefenbaker and his friend Jack Anderson spent the evening of Bennett’s resignation with the leader in his parliamentary office. It was apparently a boozy session – for Bennett at least – as telegrams of regret and praise began to come in. Diefenbaker recalled that one wire read: “History will give you a large place. Deeply regret your resignation. Suggest the Conservative Party will now need a leader and that you get behind George Drew. He’s going places.” Bennett fumed and dictated a reply: “Thank you. Stop. Do not intend to get behind George Drew. Conservative Party and Drew not going same places.”46
The same evening, after learning that Diefenbaker had been married for almost nine years, Bennett apologized for not sending him a wedding present. On his return to Prince Albert, Diefenbaker found that Bennett had transferred a gift of $2500 into his trust account.47 Ten months later, when Bennett left Canada to live in England, Diefenbaker wired Bennett as he boarded the SS Montcalm in Saint John, New Brunswick: “I wish to extend to you sincere good wishes coupled with expression of the hope that you may be long spared to serve the Empire.”48
JOHN DIEFENBAKER’S REPUTATION AS A DEFENCE COUNSEL BROUGHT HIM FOUR more murder cases from 1930 to 1936. In October 1930 Diefenbaker and Bill Elder opposed crown attorney Samuel Branion in defence of Nadia Bajer of Wakaw on a charge of murdering her newborn daughter by suffocation a few weeks earlier. Bajer was a penniless mother of two young children who had been abandoned three years before by her husband. She lived in the village as an occasional house-cleaner and laundress, and in 1930 found herself pregnant by one of her customers. The man urged her to abort the child, and left her when she refused. In early September the local RCMP detachment received a report that, although Bajer was no longer pregnant, there was no baby in the house. When Corporal DesRosiers investigated, Bajer said that she had given birth, but that the baby had fallen to the floor and died. She had buried the body in the garden in a shoebox.
The child’s body was exhumed and examined by the coroner and a second doctor, who found a bruise on its head and a small piece of cotton cloth in its mouth. Bajer told the police corporal that she had used the cloth to stop the baby’s crying, “as I did not want anyone to know that I had had a baby.” Both doctors concluded that the child had died by suffocation, and Nadia Bajer was charged with murder.
The trial opened before a crowded Prince Albert courtroom on October 9, 1930. Diefenbaker and Elder raised reasonable doubts over the crown’s medical testimony about the probable cause of death, and in defence brought four witnesses to the stand. The first, A.E. Danby, was a former Prince Albert chief of police who was then Wakaw’s justice of the peace. He had conducted the preliminary inquiry, and testified that the body showed none of the signs usual in cases of suffocation or strangulation. The revered director of the Wakaw hospital, Dr Robert G. Scott, who was also a political opponent of Diefenbaker, testified to the same effect. Two more doctors confirmed his judgment.
By late afternoon, with the courtroom audience now overflowing from the building, Diefenbaker rose for his summation of the case for the defence. As the accused woman sobbed uncontrollably in the background, Diefenbaker described her painful life, her courage in rejecting an abortion, her fear of ostracism in the tiny town. This was a case to tug the heartstrings, and Diefenbaker knew it.
She had the courage to refuse, the courage to admit her sin, the courage to confess her wrong. Would such a woman then take the cowardly course of murdering her own child and covering up the crime?
This is not a case of trying to cover up murder, but of a woman trying to hide her shame. Yes, Nadia Bajer buried a body. Early in the morning she laid her child away, but not a child taken by her hands.
Scientific medical evidence has shown that the prosecution has not proven that the child died because of a rag in its mouth, a rag placed there to stop the child from crying. Nadia Bajer’s child died from natural causes.49
Bajer’s crying alone broke the silence of the courtroom as Diefenbaker resumed his seat.
Samuel Branion offered a brief and subdued closing for the prosecution, and the trial judge, Mr Justice H.Y. MacDonald, asked the jury to rule on three questions: Had the child been murdered? Had Nadia Bajer borne a baby? And had she concealed its birth? The jury took only fifteen minutes to reach its verdict. Nadia Bajer was not guilty of murder, but guilty of concealing a birth. Diefenbaker and Branion agreed that the accused had suffered enough, and MacDonald imposed a suspended sentence. The distraught woman was free. Diefenbaker and his partner accepted the praises of the crowd. “It was doubly satisfying,” wrote the Wilsons, “to have won at home in Prince Albert. The glory lasted for weeks down on Central Avenue.”50
In September 1933 Diefenbaker defended nineteen-year-old Steve Bohun on a charge of murdering Peter Pommereul, a general store keeper and postmaster in the village of Redberry, near North Battleford. Faced by the police with strong evidence of his complicity, Bohun had confessed to shooting and robbing Pommereul of $324 in postal funds. The cash, which was found in his possession, gave him a stake to elope with his pregnant girlfriend, Annie Barchuk. Motive, footprints, murder weapon, and confession all pointed to Bohun’s guilt. But when his parents visited him in jail, Steve Bohun claimed that the RCMP had beaten him into a false confession. Diefenbaker entered a plea of not guilty when the case opened in the Court of King’s Bench in North Battleford before Chief Justice J.T. Brown.
Almost at once, the jury was excluded for forty hours while Brown heard argument on whether to allow evidence of Bohun’s confession and his other admissions of guilt. Eventually the judge admitted the statements. When the jury returned, the prosecution called Constable Arthur Cookson, the investigating detective. In all the formality of the courtroom, before robed and high-collared judge and counsel, Cookson appeared equally impressive in his RCMP dress uniform of redcoat, breeches, high boots, and spurs. But as he faced cross-examination from the formidable John Diefenbaker, he recalled that “I was anything but the serene and confident Mountie I appeared to be … It was his eyes, most of all.”51
The police officer knew that the original defence lawyer had taken possession of one of Bohun’s shirts, bloodied by a self-inflicted nosebleed after the young man had retracted his confession. Cookson dreaded Diefenbaker’s use of that evidence to suggest police intimidation. The defence counsel, after a calculatedly slow opening, moved towards Cookson.
Arriving at the witness box, Diefenbaker rested his right arm on its railing, and, now only a couple of feet from Cookson, fixed him with a piercing glare.
“Do you un
derstand the nature of an oath?” he demanded loudly. It was one of his standard opening gambits, almost certain to unnerve any witness.
And then it began. For an hour and a half, John Diefenbaker paced slowly up and down before Arthur Cookson, penned in the witness box, probing, attacking, pleading, criticizing and confusing, trying to create the impression that Steve Bohun had been manhandled and threatened from the moment of his arrest.
“His eyes were steely, his lips somehow became firm, and his jaw jutted out at me. He was very fierce and intimidating. And all the while I was waiting for that damn shirt to jump out at me,” Cookson remembers.52
Diefenbaker pressed his questions about police intimidation of the suspect. “Using a technique he had learned in this very courtroom from a Winnipeg lawyer who beat him in a contested divorce case, John Diefenbaker stood facing the rapt spectators. With his back to Cookson, he continued to throw questions at him, increasing his psychological mastery of the situation.”53
Diefenbaker took Cookson through the details of his first, night-time encounter with Bohun, ending with a visit to the Pommereul store. “And there,” Diefenbaker suggested, “you showed him the blood stains still upon the floor, the blood of the dead Peter Pommereul, didn’t you?” Cookson agreed that he had done so.
“And then, Constable Cookson, then you tried to force this young boy to put his hands upon those blood stains. What do you say to that?” Diefenbaker whirled and pointed a long finger and arm at the investigator.
“I did no such thing.” The policeman was vehement in denial and he rose from his seat in indignation.
But the accusation itself left a vestige of doubt. Of course, the police would deny any such action. But there was an intriguing element to the suggestion. Might it have happened? It was a very clever ploy by the defence lawyer.54
There was no mention of the bloodied shirt.55 Cookson finished his examination under strain, but with his essential story undamaged. Diefenbaker put the other police witnesses through the same daunting tests, and then asked the judge once again to consider ruling Bohun’s statements out of court. This time Chief Justice Brown accepted Diefenbaker’s request. Just one of the defendant’s statements remained in evidence: His assertion that “I didn’t shoot the old man,” made at the moment of his arrest but before Cookson had told him of any killing. Sample plaster casts of Bohun’s footprints were also excluded on the ground that they, too, might have been obtained by coercion.
The last witness for the prosecution was a doctor who had treated Bohun for a head injury seven years earlier. He conceded in cross-examination that Bohun had probably suffered “a serious and permanent impairment of his mental processes” as a result of the accident.
Diefenbaker’s only witness for the defence was Dr S.R. Laycock, a prominent educational psychologist from the University of Saskatchewan. He had tested Steve Bohun, and said that Bohun was “high-grade feeble minded.” He doubted that the accused could understand “the nature and quality of the act which he was alleged to have committed.”
In his summing up, Diefenbaker made a double claim for the defendant. There was reasonable doubt that he had committed the crime, but if the jury decided he had done it, the professional evidence pointed to insanity. “Mentally crippled as a boy, distraught over the pregnancy of his young love, in his mind abandoned by his father, Steve Bohun could not appreciate the action he took, in the legal sense. Neither did he really know it was wrong,” Diefenbaker concluded.
The prosecutor, R.B. Mills, made his own careful review of the evidence, suggesting that it pointed beyond reasonable doubt to the accused. On the issue of insanity, he insisted that the defence had provided insufficient evidence to accept such a claim. The judge agreed that the jury could not properly find Bohun not guilty by reason of insanity.
The jury retired at 7 pm on a Saturday evening and returned only three hours later with a verdict of guilty, adding “a strong recommendation to mercy on account of his age and inferior mentality.” One week later Steve Bohun was sentenced to hang in Prince Albert jail on February 23, 1934. The chief justice noted that the recommendation for mercy would be drawn to the attention of the minister of justice.56
As in the Pasowesty case five years earlier, John Diefenbaker inexplicably waited until after a conviction before seeking adequate psychiatric assessment of his client. Now he arranged for examination of Bohun by two physicians and another specialist in intelligence testing. The doctors reported that Bohun had “low mentality” or “feeble mentality” and could not distinguish right from wrong. The educational psychologist placed his mental age at nine years, and said that “he had no conception whatever that he is under sentence of death … and … cannot in his own mind associate any connection between the crime for which he was convicted and the punishment he is to receive.”57
When Ottawa refused clemency on the jury’s recommendation for mercy, Diefenbaker went to court on February 22, 1934, to seek a stay of execution so that the minister of justice could examine the new evidence of mental incapacity. The court granted a two-week stay until March 9. Within a few days, petitions from two hundred residents of Prince Albert also arrived in Ottawa pleading for mercy.58
Early in March the superintendent of the Homewood Sanatorium in Guelph, Ontario, the psychiatrist Dr Harvey Clare, examined Bohun, acting, apparently, on behalf of the minister of justice. On March 7 John Diefenbaker was informed that the cabinet would not halt the execution, and on March 9 at 6 am the Canadian hangman, Arthur Ellis, pulled the trap in Prince Albert jail. Bohun showed no emotion as he went to the gallows.59
Seventeen months later a violent murder occurred in John Cuelenaere’s home town of Leask, fifty miles from Prince Albert. The victim was Ernest Fouquette, a sixty-two-year-old farmer whose badly beaten body was found in a downtown alley after a normally raucous Saturday night in the farming community. One year before, Fouquette’s wife, Annie, had separated from him and moved into town with the couple’s nine children. Diefenbaker had acted for Annie in a successful lawsuit for family support, but Fouquette had refused payment. When the court seized Fouquette’s goods and arranged to auction them to enforce payment, Fouquette’s friends rallied to him. They arrived at the sale towing a dead and tarred steer, and warned that successful bidders would win a free ride. The auction sale collapsed. Subsequently, Fouquette’s farm was vandalized, and the tense affair remained unsettled until his murder. Now it had become a prairie gothic horror story.
The RCMP conducted an exhaustive investigation, which placed Annie Fouquette, her son Napoleon, Annie’s two brothers, and her brother-in-law in Leask that evening. All of them claimed to have left town before the killing, and no evidence emerged to connect them with the crime. In frustration, the RCMP decided to conduct a fishing expedition at the inquest, in the hope that something incriminating might slip out in testimony under oath. For a full week in November 1935, forty-two witnesses were called before the coroner and jury in the Leask Legion Hall. What emerged was a great confusion of memory loss and contradiction among members of the family, but no direct evidence about the crime. Two witnesses claimed they had heard Ernest Fouquette and his son Napoleon talking in the lane just before the murder, but no one had seen them.
Finally, Annie Fouquette’s brother-in-law, Nick Grovu, told the coroner that he had something to add to his testimony. He paused nervously on the stand, but eventually claimed that his wife was providing a false alibi for Napoleon Fouquette. Anne Grovu shouted a denial, and the Legion Hall erupted in disorder. The coroner wrestled the hearing to a close and sent out the jury. It returned with the expected verdict of “murder by a person or persons unknown,” and general suspicions of perjury.
The coroner requested that the police arrest Annie Fouquette, Anne Grovu, and one of their brothers on charges of perjury. Although the RCMP suspected Annie Fouquette of the crime, they lacked any evidence to justify a charge against her. Instead, in a further attempt to force the issue, they charged her son Napoleo
n with murder. Annie Fouquette called in her lawyer, John Diefenbaker, for the defence.60
On November 26, 1935, the preliminary hearing opened to another packed house in the Leask Legion Hall. It too lasted five days. The Star-Phoenix noted dryly that “reports indicate the village was as busy as on sports days.”61
Knowing the crown had a dubious case against his client, Diefenbaker gambled that he could expose enough weaknesses in the evidence to have the charges thrown out before trial. As the prosecution introduced its witnesses, Diefenbaker toyed mischievously with them in cross-examination, to the delight of the audience and the annoyance of the crown attorney. Tony Verrault, who claimed to have heard father and son in heated discussion just before the murder, admitted under relentless questioning that he had once proposed marriage to a Fouquette daughter, “but had not been very serious.” He had not volunteered his evidence to the RCMP at the beginning because, he said, he was afraid of “Mrs. Fouquette and her relations.” Nick Grovu, whose accusation had probably precipitated the charge against Napoleon, testified uneasily that he had left for Saskatoon after the inquest, “to be away from my wife’s relatives.” Diefenbaker soon had him tied up in knots.
Despite the defence lawyer’s unusual efforts to prevent an indictment, the magistrate committed Napoleon Fouquette to trial for murder and commended the police for a fair investigation in the face of “a solid wall of opposition in their efforts to solve this mystery.” The wall of silence held. When the case came up for trial in Prince Albert in February 1936, the crown still lacked sufficient evidence and argued for an adjournment until April. In that event, Diefenbaker called for the release of his client on bail. The judge set over the case as requested and granted bail of $20,000 – an amount far beyond the capacity of the destitute family. When the trial opened again on April 28, the police had no more evidence to offer. The crown attorney conceded defeat and entered a stay of proceedings. Napoleon Fouquette went free, the case remained unsolved, and John Diefenbaker had a victory by default.62