by Julian Sher
Back in Ottawa, Diefenbaker told the justice department to review the case “in order that the government could consider an immediate reprieve.” But five days later, Solicitor General Léon Balcer put the brakes on any speedy help for Steve. He told cabinet he had not yet seen the trial transcripts or the judge’s reports, but had consulted “press reports.” The boy, he assured his ministerial colleagues, was not in a “death row” but in the Goderich jail, where “he did not seem unduly depressed.” The solicitor general recommended cabinet defer any formal action until Steven’s lawyers had filed an appeal.
Diefenbaker and the other ministers agreed that “premature commutation might well be criticized as setting an undesirable precedent for the future.” So they stalled, leaving Steve in a judicial limbo where everyone assumed he would not hang, but technically—and legally—the noose still beckoned from the shadows.
Contrary to the assurances exchanged around the cabinet table, the tiny jail cell that had been Steve’s home for four months had indeed turned into his death row cell. Now that he was a convicted murderer, the rules changed. No more regular meals at the tables in the common room outside the cellblock. No more regular doses of sunshine in the exercise yard. Guards let him out of his cell only once a week for a shower. Otherwise, he stayed on his metal cot, the only sign of daylight coming from the narrow slits in a small window.
The boy was now more alone than he had ever been in his life. His family and friends had always been there to support him during the summer ordeal. But a death sentence was his alone to face.
“Taken to the place of execution and hanged by the neck until you are dead.” Justice Ferguson’s words echoed in Steven’s brain. And the boy who would not cry when a sliver of wood sliced into his body, the teenager who would never shed a tear in public when he was on trial because “it was not the air force way,” now, in the dark solitude of his death cell, sobbed the sobs of a frightened child.
“At night time you lie there and cry,” he admits today. “But it doesn’t really accomplish that much. So after a while you even stop doing that. You kind of harden yourself up for what’s to come.”
The tears stopped, but not the fear. One morning Steve heard a noise outside the jail window. “I woke up one day and somebody was building something outside the wall. You could hear the hammering. I figured they were building scaffolding [for the gallows]. It’s just kind of living in terror because nobody tells you any different and it’s getting closer and closer to the date that they set.”
Five decades earlier, they had been building a scaffold in the same county jail that held Steven to hang the murderer of another young girl. Like Lynne Harper, she was twelve years old. Her name was Elizabeth Anderson. Fifty summers before Lynne and Steve played baseball in the fields of Clinton, Elizabeth went missing from her home near Goderich on September 20, 1910. Her nude body turned up in the cellar of an abandoned home near the county fairgrounds, where eyewitnesses saw a man named Edward Jardine with the girl. A court found Jardine guilty the following spring.
“He broke down for half an hour but he recovered and walked to the scaffold, apparently without a tremor,” the Goderich paper recounted. “Less than sixty seconds elapsed from the time the procession started from the cell until the trap dropped. It was eight minutes and a half after the drop when the heart stopped beating.” If that seemed like a long time to dangle from the end of a rope, the newspaper assured its readers they need not worry. “Of course, death to all intents was instantaneous, Executioner Ellis doing his job well,” the newspaper said, never explaining why it took Jardine’s heart more than eight minutes to get the message.
Canada had executed more than seven hundred people since Confederation; there were no accurate records prior to 1867, but hundreds more were hanged. According to Frank Anderson in Hanging in Canada, by the start of the nineteenth century, there were more than one hundred offences—many of them minor—for which death was the ultimate penalty. On September 18, 1803, the noose claimed a boy named B. Clement, whose crime was stealing a cow. Authorities hanged another thief who had stolen a few potatoes, and executed three men for the theft of an ox in 1829. By 1833, governments reduced the number of capital offences to a dozen, but they still included crimes such as robbery, arson and burglary. The rebellions of 1837–38 saw the widespread use of political executions after the British authorities crushed the uprisings.
The first hanging after Confederation was a gala affair, according to Anderson. Admission was by invitation only to the execution of a Norwegian sailor condemned to die for murdering his landlady. Doctors, reporters, lawyers and students snapped up the tickets, printed with black borders. Organizers boarded up the bottom of the scaffold, presumably to hide the man’s final death spasms. But the spectators insisted on a full show. “So great was the desire to view the last struggles that boards were torn from the sides,” according to one report.
Canada’s hangmen continued to perfect their technique, replacing a short rope with the “long drop” technique. A short rope meant the criminal died of strangulation, at times slowly and in agony. The “long drop,” which Canada perfected twenty years before it was used elsewhere, ensured a faster death with an efficient dislocation of the neck. It was not an exact science, however, and there were always botched jobs. Decapitations were not uncommon, with spectators gasping as they got a much bloodier and more Gothic spectacle than they had bargained for.
The last known teenager to be executed in Canada was a sixteen-year-old named Archibald MacLean of New Westminster, B.C., hanged for the fatal shooting of a policeman in 1881. Not since 1875 had anyone as young as Steven been convicted for murder and condemned to death. In that year, a fourteen-year-old Native boy named Quanamcan was convicted of murdering a woman and her small son by bludgeoning them with rocks. The government later commuted his sentence to life. Before Christmas came in 1959, would Steve be the first fourteen-year-old to be executed in Canada in more than a century?
As Steven waited behind the historic walls of the Goderich jail for news about his execution date, he knew little of the history of executed prisoners who preceded him. He did not know he was sitting in the same jail, perhaps even the same cell, that Edward Jardine occupied before he was strangled at the end of a rope.
Steve had more immediate concerns on his mind—could that constant banging outside his jail cell really be the sound of his scaffolding being prepared? With relief, Steve soon discovered it was only some construction work going on near the jail. Still, the fear and uncertainty over his future lingered, and not just for him.
Pierre Berton, one of Canada’s most prominent commentators at the time, broke the journalistic tradition of objective prose and penned a poem about Steven in his column for the Toronto Daily Star. Berton took no stand on the boy’s innocence or guilt, but he recoiled at the notion of a legalized execution:
The cell is lonely
The cell is cold
October is young
But the boy is old;
Too old to cringe
And too old to cry
Though young,—
But never too young to die.
. . . . . . . . . .
We’ve a national law
In the name of the Queen
To hang a child
Who is just fourteen.
Berton’s words unleashed a storm “more violent than I have yet known,” as he wrote in a follow-up column. A man called to say he hoped one of Berton’s daughters was raped. Another woman shouted into the phone that Steve should never have been brought to trial: “If I’d been his mother I’d have killed him myself,” she screamed. A third person wrote in with another suggestion: “The child should be whipped before he dies.”
“It is blood they want and blood they mean to get, and there is no reasoning with them,” Berton wrote. He reiterated that it was not necessarily the guilty verdict he objected to, but the death penalty, “a law that belongs to the Dark Ages.”
“It is not the hangman whom we must weep for, in this grisly matter, but the multitude who guides his hands—ourselves,” Berton concluded. “Has no one got the point? Have we become so used to the extremes of cheap television, the blacks and whites of overblown westerns, the easy and lazy alternative of Mickey Spillane, that we see no other way out but death or anarchy?”
There were other signs of unease. Shortly after, the Clinton News-Record ran an uncharacteristically bold cartoon—not about Steve’s case in particular but about the death penalty in general. Underneath the shadow of an executed man hanging from a noose, a police officer, a judge and a member of Parliament stare as Lady Justice rushes in holding a paper and screams, “Hold it—here’s some new evidence.” The caption read, “The sentence that is irreversible is not Justice!”
By law in the 1950s, the federal cabinet had to review any death sentence, though at times the process could be quite perfunctory. Decisions were “often taken quickly and simply on the oral report of the solicitor general,” according to one Globe and Mail report. One unnamed but “particularly taciturn minister” thought cabinet wasted its time on such cases. “Whenever one arose,” the Globe recounted, “it was his custom to demonstrate his feelings by gathering up his papers, declaring ‘hang the bastard’ and stomping from the cabinet room.”
For Canada’s youngest prisoner in nearly a century sentenced to die, there was little comfort when the first chill winds of November blew off the river that ran next to the Goderich county jail. Steve’s execution date of December 3 loomed just weeks away. The assurances from lawyers and prison officials that Canada would never hang a teenager did little to calm the boy. He had been burned too many times already by legal promises of a smooth and quick end to his ordeal.
On November 20, Steve got a temporary reprieve. Justice Minister Davie Fulton announced he was postponing the boy’s death sentence to give Steve’s lawyers time to appeal. Steve’s next date with the hangman was Tuesday, February 16.
Meanwhile, Steve had to endure another kind of trial. Dark nights in the shadow of the hangman’s noose were not to be his only nightmares. Psychiatrists came to the Goderich jail to probe his mind, searching for proof of guilt in the twisted mind of the jailed teenager. It was a preview of what was to come in the following years, as Steven fought to keep his sanity and maintain his innocence in the face of a psychiatric onslaught.
Glenn Hays, the prosecutor who had successfully put Steven behind bars, was convinced that the boy convicted of Lynne’s murder was undoubtedly psychologically disturbed. “The evidence of Jocelyne Gaudet,” he wrote in a memo, “might indicate the accused had sexual designs not limited to the deceased girl and might be a potential menace. He seemed to me to be utterly without fear, and almost lethargic most of the time.”
The authorities sent in psychiatrist J. P. Cathcart to investigate. On January 8, 1960, the doctor began his tests of the boy. Steven told him his father had cautioned him not to speak to anyone about his case, but the doctor assured the prisoner his interrogation “had nothing to do with his appeal.” That did not stop the doctor from spending much of his time questioning Steve about the crime.
“How did you feel when you heard about the tragedy [of Lynne’s death]?” the doctor asked.
“I didn’t feel so happy when I heard she was dead,” Steve replied, according to Cathcart’s notes.
Did he read sex literature, the doctor wanted to know.
“No, most of the books I read are of mechanics and agriculture,” Steve answered. “Claims no special interest in girls or sex curiosity or books on sex,” the doctor noted.
But Cathcart was having difficulty figuring out the patient he called “an enigma.”
“A puzzling item in the case,” he admitted. “Prisoner does not seem to be the type—a lad busy in all kinds of sport and spending a lot of spare time after school and on weekends with neighbouring farmers and exhibiting boyish enthusiasm about driving tractors.”
The doctor had Steven fill out more than 150 answers to the “family and group experience inventory.” The boy answered “True” to such questions as “My father never gave me doubts about his love and affection for me” and “My mother was pretty happy when I was born.” Steve checked off “False” to such questions as “I would be interested in reading a magazine called Women and Crime” and “Once in a while I like a good sexy story.”
“He has all the right answers,” Cathcart wrote. “But are they too correct? He claims innocence of the crime and acts the part? … I have a hunch that the lad is guilty but incapable of admitting it, perhaps even to himself.”
Steven could not win. Even his good behaviour counted against him. Since coming to the death cell, the doctor reported, his jailers taught him to play cribbage, “which he has picked up so fast that he is now able to beat any of the staff guards.”
“He accepts the close confinement without apparent protest—almost as if guilty and resigned or perhaps indifferent,” the psychiatrist said.
Still, Cathcart could not end Steve’s first major examination without a hint of optimism. “I cannot see him as a monster, as has been suggested, nor such a menace as to prohibit future parole,” the doctor concluded, “and there is no reason to believe that he will be any trouble during confinement.”
Steven, for his part, was beginning to form an impression about what these doctors were up to. “After the first couple of questions, automatically you go on the defensive because this guy is just like another cop—somehow or some way they are going to try to get something to prove that you’re guilty,” he says. “You know where it’s going and what they’re after. You’re defensive—then they wonder why.”
The psychiatrists Steve would encounter over the years would see this defensiveness as simply more proof, in their eyes, of the boy’s guilt.
As the year drew to a close, the fourteen-year-old grew more and more despondent. “You don’t even know if you’re going to see Christmas,” he remembers. “People wonder why you live day to day. Probably because you don’t know if you’re going to be alive the next day or not.”
In the late fall, the governor of the jail invited Steve to his private residence inside the prison to watch a baseball game on television. Steve relished the break, but it lifted his spirits only for a while. By the time the holiday season arrived, Steve spent the first of what would be many Christmas evenings alone. Typically, he was sadder for his family than for himself. “You know your whole family is having Christmas, but you’re not there, and you know it’s not going to be the same for them.”
Meanwhile, outside Steven’s jail cell, his family turned to John O’Driscoll, a senior and well-respected lawyer in the province, to handle the boy’s application before the Ontario Court of Appeal. The high court judges could not consider new evidence, only points of law. For three days, beginning January 12, 1960, five judges pondered the legal intricacies of the September trial. Opposing Steven’s appeal for the Crown was William C. Bowman, the director of public prosecutions, a determined and skilled attorney who would fight Steven’s case again in six years’ time in a much more public and prominent arena—the Supreme Court of Canada.
O’Driscoll tried to convince the appeal court to set aside the jury verdict. He said that some of the child witnesses did not appreciate the nature of the oath. He kept his harshest words for Justice Ferguson, arguing “that the theories of the defence were not sufficiently and adequately placed before the jury.” He attacked the judge for appearing to criticize Steven for his failure to testify on his own behalf. And most seriously, he said that Ferguson “in effect dismissed the theories of the defence and in fact took the matter from the jury and substituted his own finding on the facts.”
O’Driscoll told the appeal court that the Crown prosecutor’s reference to the statement Steven signed at the police station the night of his arrest was “highly prejudicial” and the jurors were likely to think Steve made a confession. Chief Justice Dana Porter did not disag
ree, but he wondered why “the defence counsel did not see fit to call for mistrial.… I think the defence counsel might have well thought it all right. He made no comment.” It would not be the last time high court judges would make Steven pay the consequences for his attorney’s decision not to push a matter.
The appeal court judges showed some disquiet on other issues as well. One judge commented that the evidence from Steven’s clothing was “valueless” because police seized the clothes several days after the crime. Another judge felt the way Justice Ferguson twisted and turned to get Butch George to understand an oath was “highly improper.” A third judge was critical of the way the police interrogated the boy. “I understand the police were of the opinion they were going to charge the boy, yet no warning was given,” he said.
Crown attorney William Bowman argued that none of these factors was sufficient to overturn the verdict and the judges, in the end, agreed. They found the grounds for appeal were “without substance.” The court conceded the Crown should not have referred to Steve’s statement to the police, but took comfort from the fact that Hays never called it a confession. They concluded the incident did not cause any “substantial wrong or miscarriage of justice” because the controversy over the statement took place at the start of the trial, fourteen days before the jury retired to deliberate. It was a curious judicial logic, implying that even if something untoward had happened, the jurors with any luck had forgotten about it. Despite their other misgivings, the appeal court concluded the trial was fair. “Therefore, the appeal fails on all grounds and will be dismissed,” the court pronounced on January 20.