Rogue Tory

by Denis Smith

  Meanwhile Diefenbaker – his sensational courtroom skills now widely renowned – was involved in another front-page murder trial. This one involved a cast drawn from the depression’s refugees who had wandered north to Lake Athabasca seeking a livelihood in the bush. Winter darkness, isolation, and loneliness added to the normal burdens of poverty in these empty lands. John Harms, an American from Colorado, had been in the area since 1932, running a trapline out of cabins at Spring Point and Scorched Dog Island. He often carried a Smith & Wesson .38 Special in a shoulder holster. In the summer of 1935 a young Albertan, John Anthony, who had left his family in the dustbowl while he searched for income in the north, made a partnership agreement with Harms and joined him at Spring Point. Within a few months the pair were quarrelling over their take, and in November, while drinking homebrew beer in Harms’s cabin, they argued and fought. In the course of a struggle Harms drew his gun, fired once, and Anthony fell dead. What followed, Harms claimed, was lost in an alcoholic fog. After a drunken encounter with a frightened woman neighbour who saw the corpse and escaped, Harms retreated to his Scorched Dog Island hut by dogsled and awaited the arrival of the RCMP. Nine days after the killing, an RCMP officer from Fort Chipewyan, Alberta, flew in with a Canadian Airways bush pilot and arrested Harms. He surrendered willingly, signed a statement, and was flown to Goldfields on Lake Athabasca, where he was charged with murder. There, in the bar-room of the Goldfields Hotel, a preliminary hearing sent John Harms for trial at the Court of King’s Bench in Prince Albert.

  When he reached Prince Albert jail, Harms sought out the celebrated defence counsel John Diefenbaker. Diefenbaker could see that acquittal was unlikely: There were no other suspects, and Harms had told his story of the argument and shooting to the arresting officer. But the conviction might be reduced to manslaughter if the defence could demonstrate provocation or drunkenness. Diefenbaker decided to call no witnesses and to present no evidence for the defence; instead, he would rely on his skills in cross-examination and rhetoric to convince the jury that John Harms had not intended to kill John Anthony.

  The trial took place before Mr Justice H.V. Bigelow and a six-man jury on February 4, 1936, providing melodramatic copy for the local press. “The court heard … of an orgy in Athabasca homebrew that left its victim crazed, and of the suspicion engendered in the lonely cabin, that suddenly blazed into hatred and spent itself in a single puff of revolver smoke as the drink-mad Harms faced his partner in a last man-to-man struggle for mastery.”63

  The crown called nine witnesses. Diefenbaker, in a mood of relaxation or carelessness, allowed all the technical evidence and Harms’s statement to go into the record without challenge. He cross-examined only the police officer, Sergeant Vernon, who had made the arrest, and the woman, Micky Lindgreen, who had confronted Harms on the day of the murder. Lindgreen conceded that Harms had a bad temper and was easily provoked when drinking. She testified to his drinking that day; and after the killing, she agreed, he had behaved for an instant “in a very wild manner” towards her and her child and had frightened her. But Lindgreen’s responses to Diefenbaker’s questions were careful and laconic. With Sergeant Vernon, Diefenbaker concentrated on Harms’s precise words at the time of his arrest. Vernon insisted that Harms had not said that he had been drinking heavily before the crime; only that “he had got pretty drunk afterwards and he doesn’t remember a thing. His mind is a blank.”

  “As to what took place at the time of the shooting,” Diefenbaker asked, “he made the statement, ‘I don’t know what I did’?”

  “No, he didn’t say,” Vernon replied. “I remember asking if he aimed and how many shots he fired, and he said only one shot. And with regard to aiming, he said, ‘I don’t know what I did.’ ”

  Diefenbaker could squeeze nothing more from the witness, and by mid-afternoon the case had reached final arguments. In his closing address, the defence counsel offered his reconstruction of the incident to the jury. Harms had been drinking heavily, had acted in self-defence under provocation, and had not been able to appreciate his act when he shot John Anthony. The statement made by the accused to Sergeant Vernon was the only evidence before the jury of what had happened, and that, Diefenbaker claimed, supported his argument. He called for a verdict of manslaughter.

  In his brief summing up, Mr Justice Bigelow threw doubt on most of Diefenbaker’s argument without offering clear guidance to the jury. He pointed out that Harms was a partial witness in his own defence, whose statement could be accepted or rejected in whole or in part. Claims that he had killed in self-defence or under provocation had to be judged according to ordinary standards of reasonableness, and drunkenness was irrelevant to such claims. But drunkenness might be taken into account in considering whether Harms was able to form an intention to kill, and thus could possibly justify a reduced conviction for manslaughter. At this point in his charge to the jury, Bigelow noticed that the dinner hour had come and he suddenly concluded. He neglected any effort to review the evidence, asked the jury to consider a verdict, and adjourned the court until the following morning. The jury returned at ten o’clock the next day with a verdict of guilty. Mr Justice Bigelow immediately imposed the death sentence.64

  Harms had been able to pay his lawyer only $35 as a retainer to take his case and he remained without funds. Nevertheless, Diefenbaker filed notice of appeal, at the same time requesting appointment by the court as counsel for the defence, which would provide him with transcripts of the trial and a small fee for services of $75. The Court of Appeal obliged.

  The appeal was heard in Regina on April 6 and 7, 1935, with Chief Justice Haultain presiding. By now, thanks to the work of John Cuelenaere, Diefenbaker was meticulously prepared to challenge the propriety of Mr Justice Bigelow’s charge to the jury. He presented several grounds of appeal, essentially claiming that Bigelow had failed to explain the defence’s case fairly to the jury. The court was sympathetic – although Diefenbaker was discomfited by a remark of Chief Justice Haultain: “In Milwaukee,” he commented, “people drink sixty or seventy bottles of beer a day.” On April 20, just eighteen days before the date of execution, the Court of Appeal found Bigelow’s charge to the jury unacceptable and ordered a new trial.65

  The trial took place in early June before Mr Justice H.Y. MacDonald. John Diefenbaker was accompanied at the defence bench by John Cuelenaere, and this time all parties made patient efforts to explain the legal complexities of the case to the jury. The hearing took two days rather than one. Again, Diefenbaker called no witnesses, but he emphasized in much greater detail the evidence of Harms’s intoxication. The judge, too, reviewed the evidence and the law with care. The jury took less than two hours to return a verdict of manslaughter with a recommendation for mercy, and “a haggard but obviously grateful John Harms gazed adoringly upon his defence counsel, John Diefenbaker.”66 Harms, now saved from hanging, was sentenced to a penitentiary term of fifteen years.

  AFTER THE ELECTORAL DEFEATS OF 1934 AND 1935, THE SASKATCHEWAN Conservative Party was orphaned and impoverished, existing as scarcely more than a paper organization. Its active membership had been reduced to a handful of lawyers scattered across the province and a few hundred volunteers who might be rallied reluctantly for the next campaign. J.T.M. Anderson remained as lame duck leader of the provincial party, but he was prepared to resign at any time. John Diefenbaker, as acting president, held the loose strings of the party in his hands; he alone enjoyed sufficient income to devote time to the party’s affairs. Once Anderson was gone, the leadership seemed there for the taking. It was puzzling why anyone would want it.

  By the spring of 1936 the local remnants of the party began to call for a leadership convention, without any signs of enthusiasm for the obvious candidate. We do not know how much Diefenbaker coveted the leadership; for months he neither rejected nor asserted his candidacy. His silence suggested either genuine indecision or a cautious desire to avoid another humiliating rebuff. A press report in May suggested that he was “maki
ng a strong bid for provincial leadership of the party,” although there were few overt signs of it. Diefenbaker told his correspondents vaguely that he knew nothing about the leadership except that the choice would occur at a convention sometime in the autumn.67 As late as October 2 he wrote to his friend Dinny Hanbidge that “I have not, nor do I now seek that leadership, nor have I at any time intimated to anyone that I was a candidate for the leadership, and my own impression is that the item that appeared in the Press some months ago … was put there by someone desirous of doing me harm.”68 How that could do him harm if he did not in fact seek the leadership remains obscure. The remark may have hinted inadvertently at his real intention. In the meantime, Diefenbaker used two devices of delay. He called on the constituency parties to begin a Utopian effort to create “completely new organizations” before the still-unscheduled provincial convention. The call to that leadership convention would have to come from the party president himself. Perhaps judging that the easiest way to avoid premature pressure for the call would be to make himself scarce, Diefenbaker decided to travel. He would join the “Vimy Pilgrimage” in July 1936 to attend the dedication of the great Canadian war memorial in France. He had had an exhausting few years in the courtroom and on the hustings, and could certainly justify a holiday. So on July 13 he sailed for Europe on the SS Montcalm from Montreal, leaving Edna behind in Prince Albert. He remained away until the end of August.

  John Diefenbaker was not a reflective writer and he left little on the record about this journey. It began with the unveiling of the memorial at Vimy Ridge on July 26, continued with four days in England, then six days in France under official French government patronage, and ended with a private trip lasting one week to the Olympic Games in Berlin. Diefenbaker had a friendly contact in Berlin, and after three days on his own he was given tickets to the Olympic stadium and discussed Hitler’s regime with his host. But there is no documentary evidence of Diefenbaker’s firsthand reactions to Nazi Germany.69 In a speech in 1937 he referred with distaste to his experience of Nazi propaganda. And in 1940 he wrote to an acquaintance with a touch of hyperbole that “no foreigner without an official position could have had a better opportunity of seeing the Nazi system in operation, and I concluded, during my trip, that Hitler was determined to destroy the liberty of the individual of his Nation and of the entire world.” In a brief correspondence with his Berlin friend after the games, Diefenbaker exchanged postage stamps, tourist pamphlets, and an Olympic Games publication, without any reflections on politics.70

  Back in Prince Albert in early September, Diefenbaker continued to hedge about the date of a leadership convention, but by the end of the month he had called it for October 28 in Regina. Various candidates for the leadership were being canvassed, but no one had come forward with any enthusiasm and there was no sign of a draft. Hanbidge wrote to Diefenbaker on September 25 suggesting that there was support in the south both for Diefenbaker and for M.A. MacPherson. The party was still divided between the “true blues,” who had abandoned Anderson’s cooperative government, and the loyalists. “The position of the leadership in the Province,” Hanbidge admitted, “is a mighty difficult one … and one of our big problems will be to try to choose a man as leader who can bring all these more or less combative groups into a harmonious organization, fighting together for one cause.”71

  Diefenbaker, in response, wrote on October 2 that he could support either Anderson or MacPherson as leader, but knew that neither one would accept. In a show of humility that neatly echoed Hanbidge’s desire for unity, he offered himself for the job. “I have been asked over and over again whether I will let my name stand at the Convention, and I have decided to do so providing that there is a substantial request from Conservatives in the Province that I do so. I would sooner stay at my profession as I know what a sacrifice it will be on my part, but I am prepared to take a try at it if, and only if the Party would unite behind me.”72 One week before the convention, Diefenbaker set out, belatedly, to solicit that “substantial request” for his own nomination. He wrote to friends in a number of constituencies urging them to attend the convention, to encourage others to come, and to give him their support if they could. He asked his legal colleague H.E. Keown of Melfort to nominate him, but Keown declined.73

  More than five hundred delegates gathered in the Regina city hall on October 28. As acting president of the party, John Diefenbaker took the chair. J.T.M. Anderson offered his formal resignation as leader, and Diefenbaker rose to invite nominations for vice president of the party. A delegate asked why, if the president was in the chair, the meeting needed to name a vice president. Diefenbaker – still playing coy – would not say that he would be forced to vacate the chair in order to accept nomination, but instead remained silent and embarrassed for a few awkward moments. Then a discerning delegate stepped forward as substitute chairman, and the meeting proceeded.

  One after another the nominations for leader came forward; one after another they were declined: Anderson, MacMillan, MacPherson, Perley. Then came Diefenbaker, who did not decline. Then there were more: Craig, Weir, Hanbidge, Keown, Sallows, Lynd, Turnbull. All declined; only Diefenbaker remained. He stepped up and said that he would accept the nomination: “If you think I can lead this party to victory, I’ll lead the party. If you think I’m not the man, then I’ll get behind the man you choose, and give him my wholehearted support.” There was no one else. Diefenbaker promised a platform that would honour the party’s traditions but would be radical enough to meet the unusual needs of the day, “radical in the sense that the reform program of the Honourable R.B. Bennett was radical.”

  The Regina Leader Post said: “He carries his forty years lightly, is darkly slim and erect, and thunders forth his convictions and ideas in resonant tones of purposeful youth.” The Conservative Regina Daily Star called him “one of Saskatchewan’s most able young criminal lawyers. He has figured in some exceptionally remarkable court cases and his powers of speech are well known.” The Saskatoon Star-Phoenix noted that “there has been little doubt these last few months as to who would get the bid to lead the Conservative forces in Saskatchewan,” but warned that he had inherited a party “little inclined to follow any single lead … There seems to be another division in the party as well. This one is over matters of change in policy. There is a general feeling that the party must shift its ground considerably to the left of traditional Conservatism. The question which will bother the convention and the leader is: How far to the left?”74

  No one, with the possible exception of Edna, believed that Diefenbaker could make much of the moribund provincial party. She told a reporter: “His heart is in his work. He will try even harder now that he has been chosen leader. I know he will be happy at it … I am happy, of course I am. His happiness is mine too … He will succeed, I know it.”75

  Diefenbaker could expect about eighteen months to prepare for the next provincial election in 1938. During that time he would have to reunite the party, attract enough funds to finance a campaign, seek out candidates, and decide how to confront the new and burgeoning forces of the CCF and Social Credit. These were complex and not altogether distinct problems. In the absence of a staff or a leadership team, they fell almost exclusively into Diefenbaker’s hands, and he dealt with them out of his Prince Albert law office. This dictate of necessity probably suited his own taste as well: He had never before managed an organization or delegated authority, and his habits as a courtroom lawyer inclined him to keep all the strings in his own hands. As leader, he never let them go. His only active companion in the discouraging struggle was Keown, who had succeeded him as president of the party. Diefenbaker’s partner Jack Cuelenaere took over most of the office’s legal business.

  The key to solving the party’s dilemmas, Diefenbaker believed, was cash. Money would permit the hiring of regional organizers, the nomination of candidates, and the conduct of a campaign. Since the province’s residents were insolvent, that cash would have to come from elsewhere
– from the national party organization and its fundraisers in Ottawa, Toronto, and Montreal. Diefenbaker set out, by letter, telephone, personal visits, and approaches through intermediaries, to solicit funds for the Saskatchewan party. R.B. Bennett was a friend and potential ally, but he was handicapped by his own declining authority in the defeated national party. When Bennett expressed his intention to remain as party leader in August 1937, Bennett’s and Diefenbaker’s mutual friend Jack Anderson wrote to congratulate him and to plead that the national party should now come to the aid of the provincial party.76 Simultaneously Diefenbaker set out for Ottawa, via the Canadian bar convention in Toronto, “to see whether something can be done.” But as he left Saskatchewan, one of the party’s chief Ontario fundraisers, J. Earl Lawson, MP, told Keown: “If there was anything in the world I could do to assist Mr. Diefenbaker I should be only too anxious to do so. It is impossible for me, however, at this time to suggest any way in which you could secure funds.”77 Aside from Bennett’s unexpected personal gift of $2500 to Diefenbaker in March 1938 – which may or may not have been intended for partisan uses – the national party contributed nothing to the provincial party until after the 1938 Saskatchewan election.78

  Diefenbaker persisted in his lonely task, criss-crossing the province to encourage local Conservative nominations well before an election call. By the spring of 1938, on paper, he seemed to have about forty candidates ready to share his martyrdom. But when Premier Patterson called the election for early June 1938, the party’s bank accounts were still empty. “One by one,” Diefenbaker recalled, “my candidates drifted away. They had lived through the drought, and the vast majority of them did not have enough money to pay their deposits, let alone to fight an election. With a personal loan from the bank I covered the election deposits of twenty-two of our candidates.”79 In a legislature of fifty-two members, this meant that Diefenbaker could not hope to form a government even if he won all his seats.