No judge wants to order a mistrial. Their most fundamental responsibility in any trial, all the more so in a criminal trial, is to ensure the fair administration of justice. Armed with rules of evidence and procedure, intelligence and common sense, judges are typically vigilant in ensuring a fair trial. And to order a mistrial is to acknowledge that the defendant can’t get a fair trial in the judge’s court. Beau always thought it must feel as though they have personally failed in that responsibility.

After the weekend, and with the prosecution set to continue with witnesses, Beau rose from his seat, brandishing a copy of the Whitehorse Star, “a motion for mistrial, m’ Lord.”

“I beg your pardon Mr. Jackson!” spat the judge not even bothering to conceal his anger, “What an earth do you think would support a mistrial.”

“Thank you m’ Lord” Beau had anticipated the cold reception. To win the motion at this stage of the trial was not his goal, to get it on the record was. And the judge’s response reminded him this would not be easy.

Gallagher saw his opening, “Speaking for the Crown, m’ Lord if I may, and with respect, my learned friend is being obstructionist. There is nothing in the conduct of this trial that warrants such a motion.

Gallagher was hoping the judge would summarily reject this specious application.

“Proceed Mr. Jackson but let me be clear I will not look kindly on some sort of trial balloon, not in my court. Go ahead, if you must.”

Beau had his opening. “This is today’s copy of the Whitehorse Star my Lord. The headline on the front page reads, ‘COLD BLOODED KILLER GETS LIFE’. The story actually has nothing to do with the Yukon. The victim was not from the Yukon, neither was the killer, and the crime didn’t happen anywhere in the Yukon. It is a story about an Ontario man, killing an Ontario drug dealer in Toronto. And it happened two months ago! This headline and story in today’s Whitehorse Star was intentional.”

“Surely you’re not suggesting that I admonish the publisher of the Star for reporting on a serious crime in Canada.”, the judge was not receptive.

“M’ Lord, the Whitehorse Star is the paper of record for the people of the Yukon and Whitehorse and it is the most influential media in the region. This headline today, in the middle of the Stokes trial was intentional. There is no need to report that story on the front page of the Star. Why is it the Star chose to report on it today, in the middle of this trial? There can be only one reason. They want to influence this jury, the Whitehorse Star wants to ensure my client is convicted again for first degree murder.”

And it was on the record. The judge was right, it was nothing yet. Beau knew that before he made the motion. But it could not be unheard.

“That is a preposterous stretch Mr. Jackson.” not hiding his impatience, “You had better be careful making empty claims in my court. And let me say this about mistrials, lest it inform you going forward. I have been on the bench for over twenty five years and not once in all that time, not once, have I ever granted a motion for mistrial. You might gather from that Mr. Jackson, that I am not about to begin anytime soon.”

Beau knew that was a warning, a knuckle wrapping in the understated judge to lawyer exchanges of criminal courts.

This was not the first judge Beau had infuriated and it would not be the last, “Mr. Jackson, Chambers now!” had often preceded a very direct dressing down by any number of judges over the years. It was never fun and Beau took no pleasure in them, but if this was the way he needed to advance his clients defence, then so be it. It was however, a fine line.

He was only too aware that a judge can sanction any lawyer in his court if he thinks his conduct has brought the administration of justice into disrepute; making meritless mistrial motions would fit into that category.

Beau gathered himself.

“My Lord I mean no disrespect. I can tell you I thought long and hard before I made the motion. But why is the Star reporting it today? It is intentional and all part of a pattern of editorial influence. The Whitehorse Star has an obvious bias.”

“Enough Mr. Jackson, not another word. Call your next witness Mr. Gallagher.”

Beau looked back at the gallery. Peter Franklyn and his publisher were seated at the back, barely contained smirks on their faces. Beau exchanged a glance with the young reporter; he supposed they figured he’d been put in his place and that had pleased them both.

Gallagher went in for the kill. He’d had a good hand dealt from the beginning; the victim, the weapon, a confession and eye witnesses. And Beau knew he was taking obvious pleasure nailing every damaging fact to the wall, giving the jury no doubt whatsoever as to the guilt of Joe Stokes. If Jackson wouldn’t plead Stokes guilty to first degree, which Gallagher knew was the inevitable result, he would at least suffer a painful loss in open court.

And Beau couldn’t do much about it, right then at least. He had acknowledged as a matter of fact that his client Joe Stokes had killed Hank Woods. And he’d gone further, he’d acknowledged that Joe confessed and that he’d threatened to kill Woods. Beau could hardly challenge any of the witnesses who Gallagher put on the stand to testify to those things.

Beau knew he would have done the same thing if he’d been prosecuting this case in front of a jury. He had agreed to those facts to avoid them being proven in minute detail with testimony delivered day after day. He knew that by the end of the Crown’s case the jury’s mind would be well on the way to being made up.

He had to give it to Gallagher. He had seen Beau coming a mile away, all too happy to accept the admissions of fact on the record, never for one minute thinking he wouldn’t build his case in front of this jury one painstaking fact after the other, as though not one admission of fact had been made. He was the director, his case was strong and he had the floor. Beau would just have to bide his time.

As the weekend approached and with it the end of the prosecution’s case Beau knew he was facing the most difficult decision of any criminal trial: Do you put the defendant on the stand? The case against him was compelling and strong and ordinarily that leaves little choice, you put your client on the stand and hope they can survive cross examination. But Beau was not so sure. He would need to think more on that.

One thing he did know though. He was beat, exhausted after several weeks of intense preparation and the first two weeks of the trial. He needed a break.

Jury trials are marathons. They are exhausting intellectually, emotionally and physically, particularly one’s like this stretching over several weeks; away from home, ever alert during trial, dousing flair ups with witnesses and judges and the prosecutor, evenings generally spent revisiting testimony, recalibrating strategy, thinking about the next day. Beau had learned long ago that getting away from it all was important, essential if he was to stay sharp. The weekend had arrived and not a minute too soon.

Beau knew he’d be in the Yukon for several weeks and had read as much as he could about it.  It was a great opportunity to spend time in a part of Canada which has played such a defining role in Canadian history. The land is vast and epic and spellbinding and the story of the men and women who came from all over the world in search of unimaginable wealth is riveting in its reality. Beau had read Pierre Berton’s Klondike, The Last Great Gold Rush, and couldn’t wait to visit Skagway down on the coast in Alaska; it was the natural starting point to retrace the path of those extraordinary adventurers. He knew Skagway would be the refreshing escape from the trial that he needed. 

Beau drove over to Carcross, home to one of the world’s smallest deserts, one square mile of sand dunes resting in the shadow of the southern mountains. He had a stranger take a photo of him running and jumping over one of the sand dunes. He thought it would be fun to say he had flown over the desert in Carcross. From there he took the train to Skagway.

The White Pass and Yukon Railway was built in 1898 during the peak of the Gold Rush, built in harsh weather and through daunting mountain passes and over steep river gorges, it had taken thousands of workers. “Big’ Mike Henry, the railway builder, famously said, “Give me enough dynamite and I’ll build you a railway to hell.” And he did.  The White Pass and Yukon is the only narrow gauge railway in North America and for Beau watching the precipitous drops from the rails edge to the canyons below, still littered with the carcasses of some of the thousands of pack horses which perished in the harsh journey to the Klondike gold fields, it was a humbling journey.

“Hello”, came a voice from across the aisle, “Isn’t this awe inspiring?” A pretty young woman looked over, the interruption made even more welcome by her English accent, not exactly commonplace in these parts, Beau thought to himself.

“Hi there. So humbling. That thousands of ordinary men and women would struggle up these mountains with pack horses and carts before this train track was built. I can’t imagine the hardships.” Beau wanted to keep the conversation going, she was after all the only woman he’d had a meaningful conversation with since he’d arrived in Whitehorse. But the carriage was noisy and he felt a bit self conscious shouting back at her. 

“May I sit with you?” he asked. She smiled and patted the seat beside her. He didn’t need to be asked twice. 

“Aren’t you the lawyer defending Joe Stokes?” 

“I am” Beau replied, feeling a little unsure all of a sudden. His last conversation with a stranger, the reporter, had not gone well.

“I thought so. I live in Whitehorse during the winter and I’ve been down to the courthouse a few times to see the trial. You’re doing a good job.” she smiled again, Beau realizing he was attracted to her.

“Whitehorse for the winter?” he asked aloud, “That’s got to be unusual.” 

“Not as much as you’d think. The Yukon is a sanctuary for many people, a place of peace and serenity and privacy. I’m one of those people. I love it here. It’s like a cold spa retreat, a completely safe getaway. So refreshing for me.”

“What do you do?”

“Oh, let’s save that for another time shall we. If there is another time?” and there was that smile again.

Beau saw an opening, “Can we get together for dinner, maybe this weekend?” 

“We’ll see.” she said, getting up and heading to the doorway. The train had arrived at Skagway. 

“Well, what’s your name at least?” Beau shouted after her.

“Penny” she replied looking over her shoulder, as she walked away. And there was that smile again.

Beau was hooked, line and sinker. Any stranger seeing him in the Skagway train station would have wondered why this man had a wide smile and a faraway look in his eyes. But enough of that he thought, I’m in Skagway, Alaska and I’ve been looking forward to this for months.

Beau had learned about the difficulties the horde of adventurers faced as they headed inland from Skagway. Until the railway was built they had to bring all of their provisions with them; tenting, bedding, lumber, gold panning equipment, shovels and axes, food enough to last several months and weapons. It averaged about two thousand pounds of provisions. There was no train until 1898 and pack horses were in short supply and expensive. If they could even secure a pack horse they then faced the daunting prospect of getting the provisions up and over the White Pass and over to the lakes and rivers to barge their goods to the Klondike. For some it was so overwhelming they simply left and returned home.

For the hardy and the foolish the task ahead was spirit breaking. The seasons offered little respite, each of them bringing their own nightmare of hardships and in any event none of the men and women who had voyaged to Alaska were in any mood to wait for better travelling weather. 

In mid winter they faced the prospect of climbing up to the summit of the Chilkoot Pass, on ice steps carved into the mountain.  There was no mechanized help, reduced for the most part to carrying their provisions on their backs, like so many beasts of burden, backs bent over by the one hundred pounds of goods, one step after another, an exhausting climb they would have to repeat at least ten times. Such was the lust for gold that these men and women would rather die trying than turn back. 

Beau had known little of the Yukon and the Gold Rush, nor as he had come to understand, the defining role it had played in the history of Canada. 

Most of the travellers were armed to the teeth as they journeyed north, expecting a lawless country which would leave them largely to their own devices when it came to personal safety.  

The Gold Rush would attract all manner of brigands and bandits, and most of them came from the US, a country which valued individual liberty and the right to bear arms over public order. For them, carrying several weapons was not open for debate. Until they reached the summit of the Chilkoot Pass that is, where they were greeted by a small guard post of the Northwest Mounted Police. Generally manned by two police officers, who had hiked up the mountain each day from their own quarters, these men were the first exposure to a national police force, what would become the Royal Canadian Mounted Police.

Many a heated argument ensued as the travellers were ordered to surrender all but one of their weapons and only permitted enough ammunition to see them through a season. It was a defining Canadian moment, made all the more remarkable for the backdrop against which it was played out. On the one side, the United States, from its birth a country which had experienced widespread lawlessness, celebrated in the story telling and hero worship of the Wild West, a country which had enshrined into its Constitution the right to bear arms. On the other side, Canada, a country not born of revolution but of declaration, established from infancy as a country governed by the rule of law with an embedded expectation of submission to the authority of government. 

Beau knew his reflections on Canadian sovereignty and what it is to be Canadian were shallow but as he retraced the steps of history he thought the story of the Yukon and the Klondike were instructive. In 1898 Canada was young, infant as a nation, without status or influence in the world of nations, regarded for the most part as a country without identity, existing in fiefdom to the ruling class in England, the seat of the British Empire.

And yet, here at the summit of the Chilkoot Pass, set in a remote and unforgiving landscape, the Northwest Mounted Police imposed one of our country’s core values on the Gold Rush’ers; an insistence on compliance and an expectation of respect for the rule of law and civil society, the first measure of which was to impose restrictions on the right to bear arms. 

By nightfall, Beau was tired but satisfied, the day’s experience the perfect tonic, the escape from the trial he needed. He was fascinated by it all. He had thought he could understand the lust and passion and dreams that drove people through such hardship but he had not given much thought to how profound the impact of the Klondike Gold Rush of 1898 had been in his own country. Back in Kelowna he’d always enjoyed time at the Eldorado Hotel, unaware until he came to the Yukon that the name was injected into our cultural mythology during the Klondike Gold Rush; as word spread like wildfire around the world that gold nuggets ‘big as a man’s fist’ had been found at Eldorado Creek in the Yukon, the word ‘Eldorado’ became synonymous with striking it rich. 

Breathless commentary in the San Francisco Chronicle did nothing to tamp down the frenzy, “Word is a man just has to reach down with his bare hands and they come up loaded with bright yellow gold nuggets!.” Following suit after rich discoveries at Bonanza Creek, ‘bonanza’ has been forever associated with winning big.

In that place and in that time, Beau reflected, is where we announced that to live in our country would be different. Through the viewfinder of our history we can draw a straight line from up there at the Canadian border atop the Chilkoot Pass in 1898, to what it is to be Canadian today; tough, resourceful, uncompromising, obedient, law abiding and peaceful. And to the extent that history permits comparison, Beau thought, the two countries have journeyed down different paths. The US struggling to this day with widespread violence, standing militias ready to do harm to its own government, several hundred million weapons in civilian hands, racial division and racism running rampant. Canada has its own reckoning on treatment of our indigenous people and First Nations and other profound issues beckoning from our past but at least by comparison, we are a lawful society enjoying for the most part universal compliance and respect for the rule of law. There was little doubt in Beau’s mind that the Yukon is where we first began to answer the question: What is it to be Canadian? 

Beau returned to Whitehorse on Sunday night, tired and refreshed. Recharged for what lay ahead. He had asked Tippy Mah to save copies of the Whitehorse Star from over the weekend for him. They were in Beau’s room on the dresser.