As I have detailed on these pages, our first prime minister, John A. Macdonald, honed his famous oratorical skills in the courtroom when he began his career as a criminal lawyer (John A. Macdonald at the [other] bar, Jan. 11). He was well on his way to becoming a real-life Atticus Finch until he took over the commercial practice of a leading Kingston lawyer upon the man’s sudden death. After that, Macdonald used his lawyering skills only to triumph in the court of public opinion. Criminal law was Sir John A.’s profession, but politics was his vocation.
Not so for our 13th prime minister. John G. Diefenbaker saw criminal law as both his profession and his vocation. And one cannot understand the man’s political career without understanding what made him tick as a lawyer. From The Bill of Rights to his decision to commute Steven Truscott’s death sentence to life, his actions as prime minister from 1957-1963 were rooted in his early career as a criminal lawyer.
In the summer of 1919, a young Diefenbaker, still wet behind the ears from law school, decided to set up his legal practice in the small prairie town of Wakaw, Sask. It was a decision not without thought. Dief confessed to his biographer that he had perused the town’s court dockets and concluded its inhabitants were quite litigious.
He was proved correct. Within two months of setting up his legal practice, a farmer, John Chernyski, retained the novice lawyer to defend him against a charge of criminal negligence for shooting a young boy who trespassed across his property.
Upon his arrest, Chernyski told the police he had been awakened early in the morning by the barking of his farm dogs. He had then grabbed his shotgun and fired at what he thought was a fox his animals had cornered. It was, in fact, a child.
Diefenbaker successfully argued that his client could not see the boy in the early morning light because his vision had not yet adjusted from leaving his well-lit house.
Word quickly spread of the young advocate’s creative defence and commanding courtroom presence. Soon Diefenbaker was inundated with criminal trials. Whether it was defending a murder charge with a convoluted story of self-defence (R. vs. Bourdon), or getting a murder confession tossed out on the basis of the feeble-mindedness of his client (R. vs. Olson), Diefenbaker mesmerized his juries with the use of his dramatic voice, his penetrating azure eyes and a raised right arm with accusatory finger pointing at some distant enemy. He would use the same dramatic techniques all his life to mesmerize the Canadian people into voting for the Progressive Conservative Party.
No criminal lawyer has a perfect record. Diefenbaker had his fair shares of losses. Perhaps the hardest for him was his miscalculation in R. vs. Wysochan. It was a sordid murder case involving a husband (Dief’s client Alex Wysochan) brandishing a revolver and threatening to shoot his wife’s lover in her presence. The cowardly lover jumped out of a window, reporting later that he had heard four shots. The wife ended up dead. Diefenbaker rejected an easy defence of intoxication that would have reduced his client’s charge to manslaughter; instead, he argued it was the lover who had killed the wife. On June 20, 1930, Alex Wysochan was hanged in the Prince Albert prison, protesting his innocence from the gallows.
Diefenbaker recalled in a CBC interview that it was his direct experiences as a criminal lawyer that brought him to oppose the death penalty. Many know that Steven Truscott was wrongly convicted of the murder of Lynne Harper. But few know it was Diefenbaker who granted him a reprieve.
Three years after the Chernyski case, Diefenbaker earned himself the reputation as a defender of minority rights. He successfully assisted Saskatchewan’s small French-speaking community fight legislation requiring English as the sole language of instruction.
It was a dangerous case to take in Saskatchewan’s anti-French and anti-Catholic political climate — but take it he did precisely because he was offended by the law’s discriminatory nature. It was this same sense of outrage against discrimination that fuelled Diefenbaker’s passionate defence of his treasured Bill of Rights.
Criminal law taught Deifenbaker when to seize the moment and press his advantage. On one occasion he defended a telegraph operator charged with manslaughter for failing to warn a conductor of an oncoming troop train carrying Canadian soldiers to the Korean War. At one point, the prosecutor — a retired Canadian colonel by the name of Pepler — clumsily responded to a Diefenbaker objection by barking that the case was not “about the death of a few privates going to Korea.” The jury was visibly shocked at his perceived callousness. What he meant to say was that the telegraph operator was technically charged with the single death of a CNR employee and not with the deaths of the 17 soldiers who perished in the tragedy. Nevertheless, Diefenbaker turned the jury against Pepler by never missing a chance to remind the jury of his military antecedents. Diefenbaker won the case.
Diefenbaker was just as sharp seven years later when a newly minted Liberal leader by the name of Mike Pearson stood in the house and demanded that Diefenbaker’s government resign for its mishandling of the economy — meaning the reins of power be handed back to the Liberals without an election. Diefenbaker knew immediately he had his election issue. He pounded the Liberals for their arrogance for 10 days before dissolving parliament and, much like in 2011, the Conservatives returned with a commanding majority.
Unfortunately, Diefenbaker’s cunning failed him in 1966. As a young lawyer back in Wakaw in 1923, he knew how to spot and how to deal with the enemy. When in 1923 a big-city law firm from Prince Albert sent over an articling student to set up a law office in Wakaw — a student who started romancing Dief’s corporate clients — Diefenbaker immediately reported them to the Law Society for allowing their student to practise unsupervised. But he never saw Dalton Camp’s betrayal at the 1966 convention coming. His own party president asked for a leadership review behind the great man’s back. He lost and was replaced by Robert Stanfield.
If only Diefenbaker had been as guileful a politician as he was a lawyer.
This article was originally published at National Post on Wednesday, January 18, 2012 @ 7:30 AM | By Sam Goldstein.